As Boulder goes, so goes the nation. At least, that is the hope of county officials in Colorado bent on imposing their preferred energy policies on the other 49 states. And Boulder is far from alone. From Maine to Hawaii, progressive cities, counties, and states have substituted tort litigation for the climate mandates they could not win in Congress. Soon, in Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, the Supreme Court will have the chance to reaffirm what the framers settled long ago: States generally may not govern outside their borders, and questions of national consequence belong to Congress.
Filed in Colorado state court in 2018, Boulder County’s lawsuit claims that America’s energy producers, through their contribution to global carbon emissions, have allegedly caused local climate-related harms for which the county now seeks untold damages. A small cohort of climate activist groups and plaintiffs’ firms drives Boulder’s suit and the tidal wave of copycat litigation behind it. Together, they threaten to bankrupt the energy industry and drive up prices for ordinary Americans. One of Boulder’s own lawyers conceded that this is the point, explaining that “this is a rather convoluted way to achieve the goals of a carbon tax.”
Under our federalist system, neither Boulder County nor Colorado may impose its policy preferences on other states. Boulder concedes that its complaint reaches interstate and international emissions, but it insists that the remedies it seeks are monetary, not policy changes. Multnomah County, Oregon, makes the same claim in its $51.5 billion suit against the industry, as do the more than three dozen other jurisdictions with nearly identical climate suits in state courts around the country. But the distinction collapses in light of what the plaintiffs have set out to achieve…