The upcoming Supreme Court case Suncor v. Boulder County presents a misunderstood challenge to the Supreme Court. The case involves an effort by Boulder, Colorado, to hold oil companies civilly liable for supposed effects of their out-of-state emissions. It is one of dozens of examples of “climate lawfare” being undertaken by states, localities, and private plaintiffs throughout the country. The proponents of this litigation are clear about their goal: it’s not money damages or other traditional forms of tort remediation, but rather the bankrupting and control of oil companies in order to enact climate policies they can’t achieve politically.
The legal theories espoused in climate lawfare are novel, aggressive, and almost always ineffective. Defendants have a strong track record of winning climate lawfare suits across the country, in liberal and conservative jurisdictions alike.
Hence, if the Supreme Court sides with Suncor, it would not be—as Boulder’s defenders would claim—a potential giveaway to the oil and gas industry. Instead, it would merely be a recognition of the status quo.
On the other hand, if the Supreme Court does not side with Suncor, it will fling open the courthouse doors to a new and unprecedented form of judicial activism. It would implicitly authorize states and localities around the country to take control of national oil and gas policy through their courts. It would be the single greatest arrogation of political power to the judiciary since the Warren Court in the service of judicial collectivization.
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