The Patriot Post® · Suncor Case Uses Climate to Threaten Federalism

A case that challenges the very concept of federalism has been taken up by the U.S. Supreme Court. The case in question is Suncor v. Boulder, where the apparent issue is climate change culpability, specifically tied to fossil fuel companies.

The case involves a lawsuit filed by the city of Boulder, Colorado, against Suncor Energy, in which the city seeks to hold the fossil fuel company financially liable for climate change.

The climate change alarmists have attempted this tactic to limit fossil fuel production, targeting oil companies for creating products like gasoline, which increases the amount of CO2 in the atmosphere.

The claim is outlandish on multiple levels, not least the lack of directly attributable data that definitively connects CO2 emissions to Suncor. Indeed, the lawsuit assumes what is still hotly debated: the actual impact of CO2 on climate change and whether it is actually a bad thing.

However, that question aside, the crux of the issue before the court is the potentially devastating impact this lawsuit would have on federalism if it is upheld.

“It’s actually bigger than ‘climate change,’” observes Alliance for Consumers Executive Director O.H. Skinner. “It’s about [Democrats’] overall ability to weaponize courts to accomplish policy goals that are sweeping and that are multibillion-dollar in scale, and they could end up with an order that basically rewrites the American economy [if they prevail].”

In short, the case threatens to turn federalism on its head.

The Constitution prohibits states from regulating commerce outside their borders, but, if upheld, this case would effectively eliminate that prohibition. At that point, there’s no telling what kind of actions Democrats would take in an effort to impose their radical agenda on the entire nation. It would boil down to economic lawfare.

Complicating the matter is Justice Samuel Alito’s decision to recuse himself from the case. Alito’s decision appears to be one of abundant caution to avoid any semblance of a conflict of interest. Although neither Alito nor the Court has explained Alito’s decision, it is widely speculated that his recusal is tied to the fact that he holds stock in an energy company, but importantly, not Suncor.

However, strong arguments and court precedent support the justices not avoiding cases unless they have a direct connection to the case in question. As the late Antoni Scalia argued after he was pressured to recuse himself in a case involving former Vice President Dick Cheney, “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.”

The problem is that this case sets up a possible 4-4 split decision by the Court. That would leave the Colorado Supreme Court’s decision upholding the lawsuit against Suncor in place.

Should this occur, it would likely result in a bevy of lawsuits on all kinds of issues, like attempts to hold gun manufacturers liable for firearm crimes. Furthermore, this would allow leftist ideologies to seriously threaten capitalism by holding our very economic system in limbo over products that the activist groups label as dangerous.

During the hearing, on Monday, Justice Brett Kavanaugh observed that federal law already regulates air pollution. He noted, “We don’t have to reinvent the wheel because we’ve said this multiple times and Congress, presumably when doing the Clean Air Act and doing the Clean Air Act amendments, has relied on this court’s precedents establishing that this kind of pollution is a federal-law matter, unless Congress speaks otherwise.”

Chief Justice John Roberts noted that if Boulder prevails, it would open the door to a slew of similar lawsuits. “Presumably, if you prevail, the next day a municipality in every single state will file a lawsuit,” Roberts told Boulder counsel Kevin Russell. “They’ll probably copy your pleadings.” He asked, “How would you think that will work out on the ground?”

Meanwhile, Justice Elena Kagan compared the lawsuit to the case against Big Tobacco, suggesting that those cases were allowed to proceed. “This is the same kind of lawsuit against the same kind of actors,” asserted Kagan.

However, Kavanaugh pushed back later, stating, “This Court has consistently said that air and water pollution are different in our federal enclaves.” Amy Coney Barrett agreed, though she called one of the company’s arguments about EPA jurisdiction “a little slippery.”

Unsurprisingly, Justice Ketanji Brown Jackson argued that the Court’s review of the case was “premature,” saying, “It feels like we don’t really know enough to be confident that the theories that you are proposing are actually applicable here.”

Brown Jackson may feel she lacks enough knowledge of the case to rule on it, but it seems pretty obvious what kind of Pandora’s box this case could open if the lawsuit is allowed to proceed. More than just a major blow to American federalism, it would undermine American independence from outside groups with an axe to grind.

The Court is expected to issue its ruling in the summer of 2027.