Climate Lawfare Rings In Monday’s Supreme Court Session

When the U.S. Supreme Court gavels in for its 2026-27 term on Monday, it will hear oral arguments in one of the key energy cases in recent years. It is no exaggeration to say that the Court’s ultimate ruling in the case styled Suncor Energy v. Boulder County could determine the success or failure of the American Energy Dominance agenda being pursued by President Donald Trump. 

In a guest piece for the Wall Street Journal, former attorney general William Barr asserts that Boulder County should not be allowed to write American energy policy from a Colorado courtroom. Speaking to an audience in Texas this week, Barr said Boulder County’s case claims “interstate emissions have always been subject to regulation by the state. That’s not true.” He isn’t wrong.

Barr went on to add that “if Colorado doesn’t like what ExxonMobil is doing … they cannot sue ExxonMobil under their law for activities in Texas. That’s basic … and the plaintiffs’ theory ignores it.” There is no doubt the plaintiffs’ theory does ignore this basic facet of federal law — that the federal government has always held primacy when it comes to regulating air pollution under the Clean Air Act. That longstanding legal principle has led to a long series of similar cases brought by different plaintiffs using the same left-wing law firms being thrown out of courts all over the country over the last half decade. 

This Boulder case is not even the latest in this blatant lawfare campaign which is designed less to win judgments than to extract pounds of flesh from the industry defendants via tens of millions of dollars wasted on litigation costs. Middlesex County in New Jersey agreed to be the figurehead for another case in this campaign on Sept. 30. The design of the campaign is clearly to make the process itself punishment, and it will keep expanding until the courts force the litigant firms and leftwing billionaires to stop the madness.

George Mason law professor Todd Zywicki said it well during a recent webinar: “The bottom line in this case is whether it’s … a public nuisance theory, whether it’s a consumer protection theory, what it really is an effort through litigation, backed by deep pocketed billionaires and a bunch of 1 percenters, to force their preferred lifestyle on the rest of the world.”

It is lawfare, not environmental stewardship. Every dollar wasted by the industry throughout this lawfare campaign means a dollar less being spent on drilling, refining, or keeping power and fuel prices affordable. The courts, regulatory agencies, and Justice Department have repeatedly ruled during administrations of both parties that climate policy of national scale has to be handled by the federal government. 

No state can just “plop itself down in the middle of this turf and start making decisions about relative liability and relative contribution,” Barr said elsewhere in September. America’s courts are built to resolve disputes between conflicting parties. They are not built to weigh Brazilian deforestation against Chinese coal against Texas oil production and then hand a big check to Boulder County for alleged damages that may or may not really even exist.

Phil Goldberg, Special Counsel to the Manufacturers’ Accountability Project (MAP), said it succinctly during a recent panel discussion: “If you care about the climate, this is not the kind of answer that is going to be successful … it takes the decision-making process about what to do about this problem away from Congress, away from the federal and state agencies, and into the courts. And the courts can’t make decisions based on what’s best for the American people; they’re good at resolving disputes between parties, focusing rules of evidence, but they’re bad at making policy because they can’t look at all the stakeholders.”

The Constitution is unambiguous: States regulate conduct inside their borders; they do not and cannot export their tort law to the rest of the country, nor can they seize foreign policy questions that belong to Congress and the president to decide. The justices should tell Boulder and its lawfare attorneys no, but Justice Samuel Alito’s recent recusal leaves open the possibility that a 4-4 split might leave the mess made in the lower courts in place. That is a very bad place for America and its future energy security to be.