Analysts warn of consequences if SCOTUS doesn't toss Boulder climate lawsuit

Legal analysts and advocates warn that a case before the U.S. Supreme Court could have dire consequences on climate change litigation depending on the ruling. On Oct. 5, justices on the high court will hear arguments in Suncor v. Boulder County, a case that is seeking millions of dollars in damages from energy companies for contributions toward climate change. Lawyers for Boulder County, Colorado, argued that the Clean Air Act and state nuisance laws provide community leaders with the ability to regulate global climate change emissions. "There is no constitutional bar to states addressing in-state harms caused by out-of-state conduct, be it the negligent design of an automobile or sale of asbestos," lawyers for Boulder County wrote in a brief to the high court. However, analysts warned that Colorado's arguments in the case could be taken as a way to regulate climate change emissions across the country in violation of the Constitution's commerce clause. "The producers of greenhouse gas intensive products like steel or concrete could be regulated by Boulder, both within Colorado, but also throughout the United States, and also around the world because those have greenhouse gas implications," said Saikrishna Prakash, a constitutional law professor at the University of Virginia. Prakash warned about further implications if justices on the high court were to agree with Boulder County. He said adversarial nations could use this legal precedent to regulate energy standards in the United States. "[Boulder] can regulate the entire United States because of the effects that are felt within their jurisdictions and then they can go further and regulate the entire world," Prakash said. "Of course, this argument will be used by other nations and their subdivisions to regulate activities in the United States." Todd Zywicki, a law professor at George Mason University, said the case is born from local jurisdictions across the United States that prohibit the use of gas-powered vehicles and appliances. He said Boulder County is attempting to place its restrictions on the rest of the country with this case. "What this case is about is a bunch of hippies in Boulder County who want to tell the rest of us how we have to live and want to tell poor people around the world that they should not be allowed to have access to inexpensive fossil fuels," Zywicki said. Lawyers argued the Clean Air Act opened opportunities for state governments to have greater control over environmental regulations. Megan Wold, a partner at the law firm Cooper & Kirk, argued that states are not allowed to fill in supposed gaps in the Clean Air Act with their own laws to regulate energy companies. Previously, federal common law prevented states from applying specific statutes for environmental regulations. While the Clean Air Act did not explicitly enumerate this power, Wold said it was not left out either. "Passing the Clean Air Act and leaving some gaps about certain things that aren't directly regulated, doesn't mean that those gaps are free from the structures of the federal common law that preceded them," Wold said. Lawyers for Boulder County also argued that energy companies like ExxonMobil and Suncor, two entities involved in the lawsuit, misled the public in its contribution to climate change. Zywicki slammed this argument and pointed to the widespread use of fossil fuel products across the country, regardless of any promotions. "Under their theory, literally every single person in the world could be both a plaintiff and a defendant in every one of these cases because every single person in the world uses fossil fuels in the way in which was intended to make their lives better," Zywicki said.