OPINION:
The Supreme Court has agreed to hear a Colorado case during its next term that, if decided incorrectly, could have devastating effects on the U.S. economy.
It could bankrupt large portions of our manufacturing, industrial and energy sectors while making the ambulance-chasing lawyers of the tort bar happy billionaires.
In Suncor Energy v. County Commissioners of Boulder County, the Colorado Supreme Court issued a reckless, unlawful decision that would allow every Tom, Dick and Harry — in this case, the city and county of Boulder — to sue companies under state tort laws over global “climate change,” the dubious theory liberals have been foisting on the public for years despite the growing number of reputable scientists questioning the underlying data.
Boulder sued Suncor Energy and ExxonMobil for billions of dollars, alleging that the companies cause global climate change through greenhouse gas emissions from the production and sale of fossil fuels — the fuels that keep us warm in the winter and cool in the summer and run our cars, trains, airplanes and ships.
In fact, the fossil fuels Boulder is complaining about (petroleum, natural gas and coal) account for more than 80% of our energy production. Without them, our lives would regress to the Middle Ages if we were lucky enough not to regress to the caveman era.
Yet the brainy politicos of Boulder claim that as a result of the defendants’ conduct, they have been negatively affected by “wildfires, pests, droughts, extreme heat, and flooding” caused by climate change. Apparently, Colorado didn’t have “wildfires, pests, droughts, extreme heat, and flooding” before the dawn of the modern industrial age. Ever heard of the Dust Bowl?
Suncor Energy and Exxon are right to argue that any claims about greenhouse gas emissions are federal issues. When Congress passed the Clean Air Act, it granted the Environmental Protection Agency the authority to regulate greenhouse gases and preempted all state laws and claims over interstate pollution, which would include Boulder’s fatuous claims.
Apparently, a majority of the Colorado Supreme Court is unaware of the supremacy clause in Article VI of the U.S. Constitution, which states that “the “Constitution, and the Laws of the United States … shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.”
Perhaps these state court judges don’t think they are “bound” by federal law. They made the nonsensical argument that because Congress displaced preexisting federal common law when it passed the Clean Air Act, any climate change litigation over interstate air pollution can still be pursued at the state level. Huh?
That is wrong as a matter of law and doesn’t make any sense to boot. The Clean Air Act regulates emissions of all gases from all factories, refineries, and energy plants across the country. Hence, Boulder’s state law claims about the supposed effects of interstate gas emissions are preempted, meaning they are not legally viable.
Regulation with national and international reach is reserved exclusively for the national government. Thus, any claim over any damage those gases are supposedly causing is beyond the purview of state courts and must be handled at the federal level under applicable federal law.
The Colorado state court refused to follow a 2021 federal appeals court decision, City of New York v. Chevron Corp., in which a similarly ridiculous lawsuit was filed against five oil companies. In that case, the 2nd U.S. Circuit of Appeals held, quite rightly, that it would be “too strange to seriously contemplate” that the passage by Congress of the Clean Air Act in an inherently federal area would “suddenly make state law” apply.
Significantly, and to their credit, two dissenting judges on the Colorado Supreme Court acknowledged federal supremacy. They warned that the majority was giving Boulder “the green light to act as its own republic” by regulating greenhouse gases at the interstate and international levels.
This would “interfere” with the federal government’s regulation and “contribute to a patchwork of inconsistent local standards that will beget regulatory chaos.” It also would have potentially major effects on our foreign policy and foreign affairs.
This is obviously a nationwide issue. No invisible walls separate the air in one state from another, and the effects of billion-dollar lawsuits would not be limited to one state. Having such walls surrounding Boulder might be useful given all the marijuana smoke arising from the city, although that doesn’t appear to concern the politicians behind this lawsuit.
The impact of state-level tort claims would be a disaster for the country. It would generate hundreds, if not thousands, of lawsuits by states, counties, cities and tort lawyers claiming their slice of the climate change pie and draining billions of dollars from American companies, which would likely curtail production, harming our quality of life and our national security.
In short, the effect on our economy would be dramatic and devastating.
The Colorado decision is egregiously wrong on the law. For the benefit of the nation, let’s hope a majority of the justices recognize that.
• Hans von Spakovsky is a senior legal fellow. Meaghen McManus is a program associate in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom.
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