OPINION:
In the past two years, Colorado’s highest court has tried twice to overstep its authority and impose a partisan political agenda on the country. The Supreme Court has already shot down one of these attempts and now has a chance to do the same to the other.
The first attempt was in 2023. Four of the Colorado Supreme Court’s seven Democratic-appointed justices ruled that Donald Trump was ineligible for the presidency and could not appear on the ballot. They based this decision on Section 3 of the 14th Amendment, which bans anyone who had “engaged in insurrection or rebellion” against the United States from holding public office.
These justices were entitled to their personal views about Mr. Trump’s conduct after the 2020 election. Those personal opinions, however, have no force of law.
“Insurrection” is not some amorphous standard that any judge can apply as he or she sees fit. It’s a federal crime defined by Congress. As with all crimes, no punishment can be meted out until the defendant has been tried and duly convicted in a court with proper jurisdiction.
Mr. Trump was never convicted of insurrection in federal court and wasn’t even charged with it. The U.S. Supreme Court refused to let this egregious decision stand. In a swift 9-0 ruling, liberal and conservative justices agreed that “the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders.”
Although the Colorado Supreme Court’s more recent overreach hasn’t generated as many headlines, another alarming case is making its way to the U.S. Supreme Court.
In May, the Colorado court ruled that the lawsuit by the city and county of Boulder against energy companies Exxon Mobil and Suncor could proceed. The lawsuit aims to extract damages from these companies for the harms that their alleged contributions to climate change allegedly inflicted on Boulder residents.
This case has several problems. For one thing, it’s impossible to quantify the damage caused by rising global temperatures, and climate activists have an incentive to attribute all social ills to that single cause. In January, for example, Democrats leaped to blame California’s Palisades fire on climate change. Just this month, we found out the actual cause was arson.
The lawsuit also threatens to reverse all our progress in securing the nation’s energy independence. In 2019, the U.S. became a net exporter of energy for the first time since 1952, thanks largely to increased natural gas extraction. If Boulder gets its way, blue cities and states would have full permission to shake down energy companies for billions of dollars in payouts. Continuing to produce inexpensive, plentiful energy under such conditions would be impossible. In fact, a lawyer who has advised the Boulder case acknowledges it is a back door to a carbon tax and will increase consumer prices.
Most important, though, is that Boulder’s lawsuit violates the U.S. Constitution. If a Colorado chemical plant were dumping toxins in a Colorado lake, state courts would have every right to hold the polluter accountable. When the supposedly harmful activity — carbon emissions, in this case — took place in another state or even another country, the issue clearly falls under Congress’ authority “to regulate Commerce with foreign Nations, and among the several States.”
If the Colorado Supreme Court justices want stricter environmental regulations, they can go to the polls like everyone else and vote for federal lawmakers who support that policy. What they can’t do is abuse their offices to impose their ideological agenda on a nation that rejected it at the ballot box. The judiciary interprets the laws; it doesn’t make them. If the U.S. Supreme Court allows it to do so with respect to environmental policy, it will negatively affect American manufacturing and agriculture.
Most judges understand that regulating interstate emissions is the federal government’s job, but Colorado’s justices aren’t the only robed activists trying to undermine the Constitution. In 2023, the Hawaii Supreme Court allowed a similar lawsuit to proceed. Other states and jurisdictions have tried and failed, with cases dismissed in New Jersey, New York, Maryland and Pennsylvania. Without a clear reassertion of federal authority, climate groups will continue “forum shopping” to find liberal judges willing to rule their way.
Thankfully, the U.S. Supreme Court is poised to step in again to restrain Colorado’s overreach. The Justice Department and more than 100 members of Congress have filed briefs urging a ruling on the case, and the court has set Nov. 10 as the deadline for Boulder to present its arguments.
• Bob Goodlatte is a former member of Congress from Virginia. He chaired the House Judiciary Committee.
Please read our comment policy before commenting.