Across the country, left-wing activists are attempting to convert America’s state courts into left-wing policy engines, using local lawsuits to impose their agenda on the rest of the nation. Later this year, the U.S. Supreme Court will have the opportunity to stop this coordinated lawfare campaign in Suncor Energy v. Boulder County.
On paper, Boulder’s case appears like just another climate change lawsuit against the energy industry. In reality, it is about turning a legal claim known as “public nuisance” into a national policy weapon, giving one county courthouse leverage over how Americans live their lives.
This coordinated campaign threatens the lives of everyday consumers, which is why, as a former solicitor general of Arizona, I recently filed an amicus brief in the case.
Traditionally, public nuisance was legal housekeeping for concrete local problems everyone could see and smell — blocked roads, a tent city and drug den that threatened safety, factories dumping waste into a river. Valid public nuisance claims addressed specific conditions in a specific place, with a clear link between what the defendant did and what neighbors suffered.
Boulder and its allies want to turn that history on its head by treating global climate change itself as the public nuisance and roping in any company that contributes to climate change, starting with the companies that produce fossil fuels. The claimed harm is everywhere and nowhere, and the alleged conduct stretches across states, countries and decades of lawful, heavily regulated production.
That is not a local nuisance, but instead an attempt to rewrite American energy and industrial policy from a single county courthouse, bypassing the voters and lawmakers who are supposed to make those decisions.
Over the last decade, a network of foundations, advocacy groups and specialist plaintiffs’ firms has poured money into building a public nuisance machine designed to do in court what activists could not do in Congress or state legislatures. When early climate theories flopped in federal court, the same actors pivoted into state courts, filing case after case under state law labels, often with donor dollars paying outside lawyers for cities and counties.
That is how you end up with Boulder, Honolulu, Baltimore, and a growing list of jurisdictions running the same play, creating a litigation demon in search of a host, lose in one state, move to another, and keep going until some court finally delivers the blockbuster judgment or settlement that forces national change.
The sovereignty and separation of powers problems here are as serious as the economic ones. If Boulder, Colorado, can recast global climate change a local “nuisance,” it can leverage that label to dictate how energy is produced and sold in states like Texas and West Virginia, hundreds of miles outside of its borders.
And climate change isn’t the end of the road, it is just the beginning, as public nuisance has been trained on everything from firearms to plastic straws to the design of automobiles the Left doesn’t like.
The Supreme Court has seen versions of this move before and has already warned against it. In recent years, the Court has had to remind regulators that you cannot smuggle “sweeping powers” into tiny corners of statutes and then use those powers to reorder whole sectors of the economy, pushing back when agencies tried to turn obscure provisions into vehicles for a nationwide eviction moratorium, hundreds of billions in student loan cancellation or wholesale restructuring of the power grid.
Now the Court will weigh in on the demon itself. And the only way to stop this public nuisance campaign from finding its next host is for the Court to say plainly that public nuisance has real limits, that one state cannot use its courts to project its policy preferences onto everyone else.
Nationwide fights over energy, products, and the economy belong in legislatures and, ultimately, at the ballot box, not in a handful of state courtrooms acting as shadow national regulators.
In Suncor, the Supreme Court has a rare chance to shut down this latest round of climate lawfare, shut down the coming waves of litigation over cars, firearms, plastic straws, and other items disfavored by the elite Left, and restore public nuisance to what it always was: a local tool for local problems, not a backdoor for activists and trial lawyers to run the country from a local courthouse.
O.H. Skinner is the executive director of Alliance for Consumers.
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