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Opening the book on the October Term 2026

The first Monday in October brings the new Supreme Court term and, with it, the first day of oral arguments. The opening case is Suncor Energy Inc. v. County Commissioners of Boulder County , on whether state-tort claims against energy companies brought by the city and county of Boulder, Colorado, are preempted by federal law. It’s a big case, with potentially significant implications. Before argument begins, Justice Brett Kavanaugh’s wife, Ashley Kavanaugh, and his parents, Everett and Martha Kavanaugh, arrive to take seats in the justices’ guest box. Also here are three Boulder County commissioners – Ashely Stolzmann, Marta Loachamin, and Claire Levy, as well as Boulder City Manager Nuria Rivera-Vandermyde. They will make brief remarks to the press on the court’s plaza after the arguments. Here as well are Suncor General Counsel Mike Korenblat and ExxonMobil General Counsel Jeffrey Taylor. They will not go to the plaza. At 10 a.m., the justices take the bench, except for Justice Samuel Alito, of course. He announced last week that he would no longer participate in Suncor . Some advocacy groups had called for his recusal based on his ownership of individual energy stocks, though not of Suncor or ExxonMobil. Alito told Bloomberg’s Greg Stohr last week, an interview tied to Tuesday’s release of his book “ So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country ,” that he felt it was “prudent” to withdraw even though the court’s legal office had advised him recusal was not required. One question debated among a certain especially law-nerdy set of observers, possibly just a couple of us here at SCOTUSblog, was whether the court would switch the order of today’s cases because of the late recusal. The court’s preferred custom is that when a justice is recused and there is more than one case being argued in a day, the case with the recusal will go second so the non-participating justice can slip out relatively quietly in the short break between cases. But Suncor was seemingly scheduled as a high-profile term opener (and touted as such in many a term preview session). The court evidently decided not to disrupt the narrative. The chief justice opens with some traditional business: “I have the honor to announce, on behalf of the court, that the October 2025 Term of the Supreme Court of the United States is now closed, and the October 2026 Term is now convened.” During bar admissions, one movant departs from the short, scripted motion to tout his “fellow Marine” who will “make a great ambassador for the court.” The chief justice does not seem amused by the ad lib. Among the groups being admitted today are several graduates of the University of the District of Columbia’s David A. Clarke School of Law, where Justice Ketanji Brown Jackson last month received a raucous welcome for her speech and conversation about the emergency docket, and a group from the U.S. House office of legislative counsel, whose members’ ears will perk up during the Suncor arguments and its many mentions of the potential role of Congress in regulating greenhouse gas emissions. Roberts then calls the Suncor case for “argument first this term.” Amy Howe has this site’s main account of the argument. To me, it was clear from early on that the question presented that the court added to the case, about whether it has jurisdiction over a Colorado Supreme Court decision that arguably isn’t final, was more than just a formality. Justice Clarence Thomas asks Kannon Shanmugam, the lawyer representing Suncor and ExxonMobil, the defendants in Boulder city and county’s lawsuit, to “spend some time and explain why we have jurisdiction.” Shanmugam was then forced to spend almost all of his allotted 20 minutes of traditional time on the jurisdiction question. When Justice Elena Kagan suggests that he was switching back and forth between two theories of jurisdiction that were perhaps in tension with each other and so he should maybe choose one, Shanmugan says, “Like my children, I love both of our theories equally, Justice Kagan.” She doesn’t seem amused and continues to press him. Only when he gets to the seriatim round does Shanmugam get to expound on the merits, though this is after Roberts turns to Thomas, who has no further questions, and then reflexively turns to Alito’s chair (which also has no questions). Before his time is up, Shanmugam is able to make a sweeping point that more than 60 municipalities across the country have filed some three dozen similar lawsuits seeking to hold oil and gas companies liable for damages related to greenhouse gas emissions. “I would submit that, given the extraordinary magnitude of these cases, where, in each of these cases, plaintiffs are seeking billions of dollars of damages, that we need an answer to this question sooner rather than later,” he says. Sarah Harris, the current principal deputy solicitor general arguing in support of the petitioners, argues that the Colorado Supreme Court treated the case as a self-contained original proceeding, and thus the U.S. Supreme Court has jurisdiction to review that court’s ruling allowing the lawsuit to proceed. Kevin Russell, representing the two Boulders and their officials, makes a few merits points before saying, “all of this must await another case because petitioners have failed to establish this Court's jurisdiction to hear this interlocutory appeal.” Roberts, who had suggested to Harris that this suit may not be different from other mass tort suits the Supreme Court has allowed to proceed in state court, takes a more skeptical tone with Russell. “If you prevail, the next day, a municipality in every single state will file a lawsuit—they’ll probably copy your pleadings—and then there will be at least 50, you know, different cities’ … causes of action filed,” the chief justice says. “[H]ow do you think that will work out on the ground?” Russell responds calmly, giving a little but saying, “the mere fact that … there could be a lot of litigation, I don't think there’s anything in the Constitution that says preemption arises from whenever, you know, a state law, if copied in other states, could cause a lot of litigation.” On rebuttal, Shanmugam takes one more stab at emphasizing the scope of the climate lawsuits that he is hoping the court will nip in the bud. “The breadth of Boulder's theory here is astonishing,” he says, “[t]here is no limit under Boulder's theory on who could be sued.” Under the lawsuit’s theory, he adds, “Boulder could tag me with personal jurisdiction when I am in Colorado in two weeks and sue me on a nuisance claim for refilling my car and thereby contributing to global climate change.” Shanmugam concludes by saying, “[T]his case and others like it reflect an all-too-regrettable trend of trying to resolve major political issues in court rather than leaving them to the political branches where they belong. Climate change is certainly one of the most pressing issues of the day, but we would submit that this is exactly the wrong way to go about resolving it.” With that, Roberts says the case is submitted, and many in the courtroom stand to leave. During this commotion, Alito slips in from the center curtain with a slight smile on his face and moves to his place on the bench. During the next argument , on veterans’ benefits , he will be back at home asking tough questions of counsel, rather than sitting around in his chambers, or perhaps worse, answering questions from news reporters, even if it is to promote his book.

Boulder Boulder County Colorado

Oct 5, 2026 · bySCOTUSblog

Court sends mixed signals on whether it will allow state-tort suits seeking to hold energy companies liable for climate change to go forward

The Supreme Court on Monday opened its new term by hearing arguments in a lawsuit filed in state court by the city and county of Boulder, Colorado, seeking to hold two major energy companies responsible for their alleged role in climate change and its impact. After nearly two hours of debate in Suncor Energy Inc. v. County Commissioners of Boulder County , it wasn’t clear whether a majority of the justices agreed with the energy companies that federal law prohibits Boulder’s claims. With Justice Samuel Alito recused from the dispute, a 4-4 tie would leave the ruling by the Colorado Supreme Court, allowing Boulder’s case to move forward, in place. Monday’s argument was the latest chapter in an eight-year-old battle that began when Boulder filed a lawsuit in a state court in Colorado against two energy companies: Suncor, a subsidiary of one of Canada’s largest energy companies, which operates the only two oil refineries in Colorado; and ExxonMobil, the largest energy company in the United States. It is seeking compensation for some of the costs that it has incurred as a result of the alleged effects of climate change – for example, protecting its own property as well as that of its residents. Boulder contends that both energy companies have long deceived the public about the effects of climate change and the role of fossil-fuel products in creating those effects; it also contended that the companies played a role in climate change by producing, refining, and marketing fossil fuels. After their efforts to move the case to federal court failed, the energy companies asked the state trial court to dismiss the case, but it turned down that request. The Colorado Supreme Court then agreed to decide whether Boulder’s state-law claims were trumped by federal law. It concluded that they were not, and its claims could go forward. The companies came to the Supreme Court last year, asking the justices to weigh in, which they agreed in February to do. Representing the energy companies, lawyer Kannon Shanmugam described Boulder’s claims as an “unprecedented effort to use state law to regulate global conduct.” The Constitution, he said, bars the application of state law to “certain inherently federal areas,” and the Supreme Court has long held that federal law governs interstate-pollution claims. Moreover, he added, a state cannot regulate out-of-state conduct “based solely on attenuated effects” that it might have within the state. Chief Justice John Roberts appeared skeptical, however. He suggested to both Shanmugam and Sarah Harris, the principal deputy U.S. solicitor general who argued on behalf of the Trump administration in support of the energy companies, that it was not uncommon for lawsuits to be based on conduct that occurs outside a state but has broad “effects,” including within the state. He asked Harris “what makes this situation different from those” other cases in which the court allowed lawsuits to proceed in state court. Harris answered that, unlike those lawsuits, Colorado would ban the production of fossil fuels anywhere in the country. Roberts did not appear persuaded. “That’s a question of relief” for Colorado, “and what might be available,” he said. It did not, in his view, necessarily seem to go to the question of whether Colorado could bring the lawsuit at all. Justice Elena Kagan also seemed dubious of the energy companies’ arguments. She told Shanmugam that Boulder’s “suit appears to be based on the old 1990s tobacco suits,” as well as more recent lawsuits against opioid manufacturers. Were those lawsuits also trumped by federal law, she asked? Shanmugam pushed back, describing the tobacco and opioid lawsuits as different. He stressed that the injury at the center of Boulder’s case “is not suffered by the Colorado consumer in the traditional sense.” He then pointed back to the principle that federal law has traditionally applied to claims involving interstate air and water pollution. Kagan remained doubtful, asking Shanmugam to point to the support for that argument in the text of the Constitution or federal law or in the Supreme Court’s cases. “Where,” she finally asked, “is the[re] anything for that?” Representing Boulder, lawyer Kevin Russell echoed Roberts’ point, telling the justices that states have long had the power to provide court remedies for injuries that occur within their borders even when the conduct that caused those injuries occurred elsewhere. Applying state law, he said, has never been interpreted as projecting that law nationwide. And he emphasized that Congress has the authority to pass laws that preempt state laws if and when it wants to. Russell faced tough questioning, however, from Justice Brett Kavanaugh, who was the member of the court most supportive of the energy companies’ position. He pointed to a series of Supreme Court cases that, in his words, “make crystal-clear that interstate air and water pollution are matters for federal law” unless Congress specifies otherwise. In Kavanaugh’s view, those cases mean that state law generally does not apply to claims like Boulder’s, and Congress could believe that interstate-pollution issues are federal issues – and that it therefore does not need to pass new legislation to say so explicitly. Several justices expressed concern about the possibility that allowing Boulder’s lawsuit to go forward would open the floodgates to even more cases in other states around the country. Justice Clarence Thomas asked Russell to describe any principles that might restrict whom state and local governments could sue. Russell cited constraints on a state’s jurisdiction over particular defendants and a constitutional doctrine (known as the dormant commerce clause) that bars states from discriminating against out-of-state defendants, among other things, as possible limiting principles. That prompted Thomas to ask whether, under Boulder’s theory, state and local governments could also sue “large retailers” of fossil fuels. Russell acknowledged that “[n]othing in our theory prevents that,” but he added that “when lots of people act together to cause widespread harm, it is not uncommon for multiple different defendants to be potentially liable.” Justice Amy Coney Barrett also sought to test the limits of Boulder’s theory, asking Russell whether Colorado could pass a law that sought to cap greenhouse-gas emissions in the other 49 states as well. Russell agreed that such a law would be prohibited and sought to distinguish that scenario from Boulder’s lawsuit. He emphasized that, with the lawsuit, Boulder wasn’t trying to directly regulate the energy companies’ actions. The lawsuit, he argued, “doesn’t prohibit them from engaging in the conduct.” Instead, he said, “[i]t requires them to internalize a portion of the cost of their activities by paying for some of the damage that those activities inflict.” Shanmugam picked up on these concerns in his rebuttal, telling the court that the “breadth of Boulder’s theory here is astonishing.” Indeed, he suggested, it would mean that on an upcoming visit to Colorado, Boulder could sue him “for refilling my car and thereby contributing to global climate change.” Moreover, he suggested, it would not be only state and local governments who could sue under Boulder’s theory, but “[a]ny individual who has suffered the effects of climate change.” “Climate change,” he concluded, “is certainly one of the most pressing issues of the day, but we would submit that this is exactly the wrong way to go about resolving it.” However the court opts to resolve the case, the justices devoted relatively little time to whether the Supreme Court has the power to consider the energy companies’ appeal at all – a question that the justices had asked the litigants to address when they agreed to take up the case earlier this year. Justices Sonia Sotomayor and Ketanji Brown Jackson appeared the most interested in the question, which would provide an off-ramp that would allow the justices to avoid deciding the merits of the dispute for now, but it received little traction elsewhere.

Boulder Boulder County Canada

Oct 5, 2026 · bySCOTUSblog

Supreme Court Takes Up Boulder Climate Suit Against Exxon and Suncor

Today, the U.S. Supreme Court will hear arguments about whether a lawsuit filed in state court in Colorado seeking damages from two major oil companies for the climate-change related damage inflicted on Boulder County can go forward. Here's the short version: The Canadian-based Suncor Energy Inc. and Texas-based ExxonMobil say that policies regarding climate change and any alleged damages resulting from it are matters for the federal government and courts only and that therefore the state suit should not be allowed to go forward. Boulder County…

Boulder County Colorado ExxonMobil

Oct 5, 2026 · byOilPrice.com

Grand openings: what four introductions in Suncor v. Boulder show about starting a brief

When the court opens its term on Monday with the blockbuster case Suncor Energy Inc. v. County Commissioners of Boulder County , the justices will have digested four principal briefs. They are Suncor Energy and the other energy companies’ opening brief (Kannon Shanmugam), the United States’ amicus brief supporting the energy companies (Deputy Solicitor General Sarah Harris), Boulder’s brief (Kevin Russell), and the energy companies’ reply . The merits question is whether federal law bars state-law claims for injuries attributed to interstate and international greenhouse-gas emissions. But this post is for anyone who writes briefs, in the Supreme Court or in any court, and it is about the introduction: the prime real estate that offers the court a frame for all the law and facts to follow. Each introduction combines, in its own recipe, the four techniques I outline in my book on legal advocacy, “Point Made” : Brass Tacks , the narrative lens explaining “who, what, when, where, why, how.” The Short List , the logical lens numbering your path to victory. Why Should I Care? , the pragmatic lens giving the court a reason to want to find for you. And Flashpoint , the contrasting lens drawing a line in the sand. The way each side navigates these introductions, each under 1,000 words, also reveals what it sees as its strengths and weaknesses. Brass Tacks: who, what, when, where, why, how Even, or especially, when the legal issues are abstract, the best introductions spin a narrative line showing how the parties reached an impasse and how the court should guide them out of it. Call it a Tale of Four Briefs. What story does each tell? For the energy companies: A city and a county in Colorado have sued “two of the world’s countless fossil-fuel producers” for local harms at the end of a global chain, in which production and marketing “resulted in consumers’ use of fossil fuels around the world, which released . . . emissions, which combined with all other greenhouse gases in the atmosphere to alter the global climate, which then resulted in localized physical harms in Boulder.” There’s the causal chain in one sentence. For the government: A single city wants the law of a single state to dictate how the world addresses a global problem: by penalizing conduct “outside Colorado,” much of it “entirely overseas,” for harms in Boulder “from wildfire damage to public-health costs.” The introduction also issues a verdict on this tale: “Absolutely not.” For Boulder: Petitioners “have run to this Court at the case’s outset” to ask for a rule that Congress, not courts, should make. The case is “far from final judgment,” and the Colorado Supreme Court has not yet decided whether respondents have stated a claim under state law. It’s a procedural tale of when and why, but with no concrete narrative of local injuries: Boulder never appears, and Colorado appears only in the name of its highest court. Recounting the injury tale would mean tracing the energy companies’ causal chain; the procedural opening keeps the focus instead on institutional authority and timing. For the energy companies’ reply: Four sentences recast the energy companies’ account of who, what, and why as propositions that, the reply says, Boulder “do[es] not dispute.” That is Brass Tacks used to pull the court back to the energy companies’ story – and to ask the court to treat its factual premises as common ground so that the fight is over their legal effects. For your own brief: Answer the questions you’d have if you were reading about your case online, spin the answers to your client’s advantage while sounding like an honest broker, and know which questions you’re leaving for another party to answer. Shape the story through characters, not characterizations: who gets named, who gets a label, and who gets which verbs. In a reply, use a narrative line to reorient the court: who is involved, what the dispute is about, what your client wants now, and why your client still deserves it. The Short List: number your path to victory The Short List consists of the three or four points you would make to a judge who gave you only 60 seconds to speak. The points must also work as a unit: what does each of these promise, and do they relate to one another as rungs (each a fallback for the one above), gates (reasons the court can abstain from action), or axes (independent grounds that add up)? Here is how I would distill each introduction’s path to victory. (By “introduction” I mean each brief’s opening overview, labeled or not.) The energy companies’ opening brief: rungs on a ladder, all resting on one premise – that the claims target interstate and international emissions Structure: the states “surrendered” their ability to redress transboundary issues such as climate change when they entered the union. Displacement: displacing federal common law “did not invite state law to apply in this area for the first time.” Foreign affairs: the claims reach emissions “outside the United States,” where the federal government is “the Nation’s exclusive voice.” Preemption: the Clean Air Act bars the claims “by its own force.” The government: axes, independent and cumulative Horizontal federalism: “no one State can superimpose its own regulatory preferences on the rest,” whether the bar is called structural, due process, the dormant commerce clause, or “an exclusively federal area.” Vertical federalism: suits like Boulder’s leave “subsets of the United States” effectively negotiating against it. The statute: with the Clean Air Act, Congress delegated to the EPA “the decision whether and how to regulate carbon-dioxide emissions from powerplants.” Boulder: gates, loosely speaking, united by restraint (who decides, when, and by what method) Wrong forum: Congress, not courts acting “on their own authority,” decides whether these harms belong at the federal level. Wrong time: the case is “far from final judgment.” Wrong arguments: there is no structural bar and no Clean Air Act preemption. Hence the relief line: “dismiss or affirm.” The energy companies’ reply: the opening list, restructured and reinforced Structure: petitioners read the federalism reasoning of precedent to bar one state’s law from governing climate claims even against emitters and to argue that claims against producers are even weaker. Extraterritoriality, which the opening brief elsewhere calls “closely related” to the structural bar, now earns its own mini-argument: a state cannot regulate “global conduct with undifferentiated global effects.” Foreign affairs: state law would infringe “the exclusive role of the President and Congress in foreign affairs.” The statute: “far from authorizing” state law, the Clean Air Act “independently preempts” it. What to take from the four sets: Decide whether your reasons are rungs, gates, or axes, and order them the way you’d deliver them if the judge asked you why you should win. Add “because” to each draft reason and finish with a detail specific to your dispute, not to just any dispute with the same procedural posture. In a reply, preserve the logic of your opening even if you change the order or emphasis, and respond to the other side without letting it dictate your structure. Stress why you’re still right, and claim only the concessions that the record and authorities support. Why Should I Care? Give the court a reason to want to find for you This technique gives the court a reason to feel good about finding for you, usually by triggering one of three judicial fears if it were to decide the other way: misconstruing a doctrine or statute; creating new duties, rules, or defenses; or reaching an unfair result or causing harm. Gauge this part of the introduction by the anxiety it triggers or relieves. The energy companies’ opening brief: an unfair result and harm, at national scale, without naming petitioner ExxonMobil in the introduction, which keeps attention on harm to others rather than on the petitioners themselves Scale: a ruling for Boulder lets “all fifty States, the tens of thousands of municipalities, and even the hundreds of millions of individuals in our country” ask local courts to establish “countless, conflicting climate policies for the Nation.” Ruin: the energy companies quote “a member of respondents’ legal team” – identified later in the brief as David Bookbinder – to portray the litigation as an enormous “carbon tax” that could “bankrupt[]” the energy industry, so the harshest characterization is attributed to Boulder’s own side. Chaos: one jury means “chaos,” and juries nationwide mean “disaster.” The government: harm to the federal system, tested through a hypothetical Collapse: the federal system “would disintegrate” if each state could force its prescriptions on “the other 49.” The analogy: Oregon penalizing cruise lines for pandemics that strain its hospitals, a test of the principle on facts removed from the climate dispute. Divided loyalty: Boulder and dozens of other states and localities would be “effectively negotiating against” the United States. Insolvency: liability “so unending and extreme that fossil-fuel producers may be forced out of business.” Boulder: misconstruing a doctrine and creating a new rule, a matter of method rather than scale Prematurity: the court would intervene before final judgment, based on an injury to petitioners that Boulder calls “entirely speculative,” before the Colorado Supreme Court has addressed the claims’ sufficiency under state law. A new rule: Boulder warns that the energy companies’ implied structural bar threatens products-liability, antitrust, fraud, and defamation law. A misread statute: Boulder argues that the energy companies adopt an interpretation of the Clean Air Act that would “condemn a host of unobjectionable laws” such as gasoline taxes and energy-efficiency rules. The reply: the opening brief’s scale argument, compressed into two images The problem of forum shopping: suits against “arbitrary groups of defendants in handpicked forums.” Policy by jury: a Boulder jury able to make “national and international energy policy.” Notice, too, that Boulder does not foreground residents’ injuries in the introduction. Rather, Boulder includes those harms at the start of the opening statement instead. The effect is to keep the opening focused on institutional authority and procedural restraint rather than on the causal chain that the energy companies emphasize. For your own brief: Trigger at least one judicial fear: misconstruing the law, creating new law, or reaching an unfair result. If your client is an unsympathetic conglomerate, suggest that defeat would be bad for others, too. Avoid the phrase “slippery slope.” Show the slope instead by naming the ordinary cases a ruling would sweep in. Give the judge a pragmatic reason to want to rule for you and borrow the proof elsewhere when you can: the other side’s words first, the court’s next, your own characterizations last. Flashpoint: draw a line in the sand A Flashpoint draws a line in the sand between two competing views of the dispute so that you can preempt your opponent’s attempts to make the case into something it’s not. The energy companies’ opening brief: scale, global against local, which makes the suit itself sound unprecedented Global against local: an “inherently interstate and international challenge” against “the mechanism of state tort law,” restated at the close as “State tort law is not the solution to global climate change.” Institutions: Boulder’s position pits the political branches against “even a single jury.” Causation: “all of humanity’s emissions” against “only a tiny fraction” from these energy companies’ products, making the causal attribution to two producers look disproportionate. The government: question and answer, then anaphora One city against the world: “Can one city wield one State’s law to dictate how the rest of the world must address a global problem with global effects?” “Absolutely not.” Congress against Boulder: “Whereas Congress targeted only domestic emissions, Boulder would regulate the world.” The paired “Whereas Congress ... Boulder would” clauses cast Congress as the rule-setter and Boulder as the disruptor. The statute: state law as a supplement to the Clean Air Act against state law as its “nemesis.” Boulder: normalcy against novelty Institutions: deciding whether these harms are better addressed at the federal level, which “the Constitution almost always assigns to Congress,” against barring suits “on [courts’] own authority” – a line Boulder borrows from the court itself – a great example of putting the court’s words before your own. Method: “traditional authority” (the states’ power to address in-state harms) and “normal statutory construction” (ordinary preemption analysis of the Clean Air Act) against “something implicit in the Constitution” (the energy companies’ structural bar, which Boulder believes they infer from the Constitution’s design rather than from any actual clause). The suit: state plaintiffs against local-government plaintiffs (“non-states”), an order to stop polluting against damages, emissions against “deceptive marketing and sales,” all in one sentence that separates this suit from the old interstate-pollution cases. In those cases, a state sued to make out-of-state polluters stop polluting; here, local governments seek money from companies for how they deceptively marketed and sold their products. Each contrast casts Boulder’s suit as an ordinary state-law tort claim, so the novelty lies in the energy companies’ attempt to stretch those precedents to a type of suit that they never covered. The energy companies’ reply: concede and split Novel against settled: “while the litigation may be novel, the principles barring the claims are not.” Granting that the litigation is “novel” shifts attention to the asserted familiarity of the governing principles and recasts the energy companies as the traditionalists. Causation: emitters against producers “further removed in the causal chain.” Boulder distinguishes the old pollution cases because they targeted the plants releasing the gases, whereas Boulder is suing producers that sold fuel others burned and, Boulder says, misled the public about it. The reply accepts the distinction but turns it against Boulder: if state law cannot reach the emitters, it cannot reach producers who are even further from the harm. For your own brief: Draw a line in the sand between two competing views of the dispute, with your side on ground the court already trusts. If their framing is partly correct, concede what is true and contest what matters: the reply allows that the litigation is new but denies that the law is. Check whether your word choices adopt the other side’s frame. If their signature words often appear in your own draft, recast the subject unless you can use their terms against them in your argument. When the key distinctions from a precedent form a pattern, link them together in a single sentence. Before you file The energy companies make the state-tort litigation sound novel and the principles barring it settled. Boulder makes the state-law remedies sound ordinary and the proposed bar novel. Both sides want the same advantage: to make the other side explain why the court should depart from familiar ground. Before you file, ask whether your introduction does the same.

Boulder Boulder County Suncor

Oct 5, 2026 · bySCOTUSblog

Supreme Court to consider whether suit may go forward seeking to hold energy companies liable for climate change

When the justices return to the courtroom on Monday after their summer recess, they will hear argument in one of the biggest cases currently on the Supreme Court’s docket – and certainly one of the most significant business cases of the 2026-27 term. In Suncor Energy Inc. v. County Commissioners of Boulder County , the court will consider whether a lawsuit filed in a Colorado state court, seeking to hold energy companies responsible for their alleged role in climate change and its impact, can go forward, or whether federal law instead bars such claims. The stakes in the case are high, not only because Boulder is seeking millions of dollars in compensation but also because there are dozens of similar lawsuits pending around the country that could be affected by the court’s decision. The energy companies contend that Boulder and others like it are trying to “impose an enormous ‘carbon tax’ that could ‘bankrupt[]’ the energy industry.” But Boulder insists that its case should be allowed to proceed, telling the justices that the energy companies are in the wrong place “at the wrong time with the wrong arguments.” The dispute began in 2018, when the city and county of Boulder filed a lawsuit in state court, seeking compensation for some of the costs that they have incurred as a result of protecting their property and those of their residents from the alleged effects of climate change. Boulder contended that the defendants in the case – Suncor – a subsidiary of one of Canada’s largest energy companies, which operates the only two oil refineries in Colorado, and ExxonMobil, the largest energy company in the United States – have long deceived the public about the effects of climate change and the role of fossil-fuel products in those effects; it also argued that Suncor and Exxon Mobil played a role in climate change by producing, refining, and marketing fossil fuels. The energy companies tried to transfer the case to federal court, but their efforts ultimately failed. They then asked the state trial court to dismiss the case, but it declined to do so. The companies next went to the Colorado Supreme Court, which agreed to decide whether Boulder’s state-law claims were superseded by federal law. The court acknowledged that the case presents “substantial issues of global import,” but it emphasized that “the question before us is narrow: whether the district court erred in concluding that” Boulder’s claims could go forward under Colorado law. The answer, it concluded, was yes. Suncor and ExxonMobil came to the Supreme Court in August 2025, asking the justices to take up the case, and the Supreme Court granted their petition for review in February. Before the justices can consider whether Boulder’s state-law claims can proceed, they will first need to determine whether they have the power to weigh in on the dispute at all, because the Supreme Court can normally only review final decisions by state courts. The companies insist that the Supreme Court does have that authority, for two separate reasons. First, they say, the Colorado Supreme Court ruling was the kind of final judgment that the Supreme Court has indicated that it can review because that proceeding was not actually an “appeal,” but instead an entirely separate proceeding, in which the companies had asked the state supreme court act under its “original jurisdiction” – that is, as a court of first resort, rather than an appeals court – to supervise the trial court’s actions. The Supreme Court also can review the case, the companies continue, under an exception to the general rule requiring a final judgment. In Cox Broadcasting Corp. v. Cohn , the companies explain, the justices ruled that they could step in when (among other things) the state court has decided the federal-law issues in the case. Here, they say, the state supreme court “finally decided the question” of whether federal law trumps Boulder’s state-law claims; if the U.S. Supreme Court reversed that ruling, it would “terminate the underlying litigation.” Boulder counters that the Supreme Court does not have the power to take up the case because the proceeding in the Colorado Supreme Court was not a “self-contained” proceeding at all. The energy companies, Boulder emphasizes, did not ask the Colorado Supreme Court to issue an order instructing the district court to take action. Instead, Boulder writes, they merely asked the state court to review the district court’s ruling and, ultimately, reverse it. The fact “[t]hat the Colorado Supreme Court called the appeal an ‘original proceeding’ does not change the outcome, which turns on the nature of the proceeding, not on labels,” Boulder argues. The dispute also is not covered by the Cox Broadcasting exception to finality, Boulder continues, because the energy companies still have other federal-law defenses – for example, based on the Constitution – that they could raise when the case returns to the state court. On the merits of the dispute – whether federal law bars Boulder’s claims – the companies point first to the structure of the Constitution itself. They say that, when they agreed to become part of the United States, the states gave up any right to try to regulate “inherently transboundary issues such as global climate change” on their own. Indeed, the companies write, the Supreme Court has made clear that “federal law governs disputes over the regulation of air and water in their ambient or interstate aspects.” And because the injuries for which Boulder is seeking compensation, the companies write, are “allegedly caused by greenhouse-gas emissions occurring outside the United States,” Boulder’s claims are also foreclosed because the Constitution gives the federal government control over foreign affairs. Lawsuits like Boulder’s, the companies assert, “interfere with the federal government’s extensive diplomatic efforts, which balance the need to address climate change on the international level with other competing foreign and domestic interests.” The companies next contend that the Clean Air Act also bars Boulder’s claims because it sets up a “comprehensive statutory scheme” to regulate air quality throughout the United States, giving the Environmental Protection Agency primary responsibility for setting emissions standards. The companies maintain that if Congress wants state law to apply to interstate pollution, “it must clearly express its intention to do so.” Boulder pushes back, stressing that the companies have not pointed to anything in the text of the Constitution that actually prohibits Boulder’s state-law claims. To the contrary, Boulder observes, many environmental problems can have effects that cross state lines, and courts have long applied state law to address such harms. “That,” Boulder says, “forecloses any claim that the Constitution silently forbids the practice.” Nor does the federal government’s power over foreign affairs require the dismissal of Boulder’s claims, Boulder writes. To prevail on such an argument, Boulder contends, the energy companies would have to “show a clear conflict with an express federal foreign policy embodied in” a document such as “a statute, self-executing treaty, or executive agreement.” But they cannot do so, Boulder argues, instead “invoking only generalized diplomatic concerns and government officials’ policy preferences, which cannot displace state law.” The Clean Air Act similarly does not supersede its claims, Boulder continues. That law “regulates point-source emissions” – pollutants released from a single, fixed location – and it is seeking only money to compensate for the harms caused by the energy companies; it is not trying to block sales or impose emissions controls. Moreover, Boulder adds, because the EPA has recently indicated that it does not have the power under the Clean Air Act “to directly regulate some (perhaps any) greenhouse-gas emissions,” the companies cannot now argue that the same law nonetheless prohibits “claims indirectly relating to greenhouse-gas emissions.” Finally, Boulder emphasizes, if Congress believed that efforts like Boulder’s to redress the harms from climate change are instead “best addressed at the federal or international level,” Congress could enact a law to do so – and Congress is in fact currently considering legislation that would give the companies “the immunity they seek.” The Trump administration filed a “friend of the court” brief supporting the energy companies. It tells the justices that lawsuits like Boulder’s “share the same avowed goal: to address a global problem caused by global conduct with global effects by imposing open-ended liability on fossil-fuel producers for every far-downstream consequence in that State that a state court attributes to global warming.” But, the government argues, “[t]he Constitution rejects that butterfly-effect theory of state authority.” “Our federal system would disintegrate,” the government stresses, “if each State could tackle inherently national or international problems by forcing its regulatory prescriptions on the other 49.” Other “friend of the court” briefs supporting the energy companies similarly contend that allowing Boulder’s lawsuit to go forward will have ripple effects far beyond this case. A brief from the Washington Legal Foundation argues that such a result “would have cataclysmic consequences for the Nation—indeed, the world.” “If even a fraction of” the potential plaintiffs “sue and win multi-billion-dollar judgments (as Boulder seeks here),” the group writes, “it would wipe out the corporate infrastructure (foreign and domestic) undergirding over 80 percent of world energy use and 83 percent of our domestic mix.” Another brief, filed by two former state solicitors general from Arizona , asserts that, unless the Supreme Court puts a stop to Boulder’s lawsuit, similar lawsuits in state courts will continue “in areas ranging from climate to plastics to cars to guns.” They urge the justices “to stop the use” of such suits “as an ideological, cross-border battering ram.” In Boulder’s corner, a brief by climate economists counters that “the economic evidence does not support the claim that” requiring energy companies to pay compensation for their role in climate change “would destabilize the American economy.” The Natural Resources Defense Council, in its own brief supporting Boulder, pushes back against suggestions by the energy companies and their supporters “that greenhouse gas emissions cannot be traced to their sources, and that the climate change harms affecting Boulder cannot be attributed to those sources.” To the contrary, the group writes, scientific experts “can identify and quantify human contribution to observed changes in the climate system,” and if Boulder’s claims were to go to trial, it “could draw on these methodologies to demonstrate the causal links it alleges between the climatic harms it is experiencing and” the companies’ emissions. And the Brady Center to Prevent Gun Violence, joined by the Giffords Law Center to Prevent Gun Violence, seeks to assure the justices that allowing Boulder’s lawsuit to proceed would not open the floodgates to unlimited lawsuits against large companies. The groups emphasize that various doctrines protect “out-of-state actors while leaving space for the exercise of traditional police powers to address serious threats to States’ residents” – for example, limits on the extent to which out-of-state defendants can be brought into court and the requirement to prove that the defendants caused the plaintiffs’ injuries. The picture became even more complicated on Sept. 28, when Justice Samuel Alito – who owns stock in oil and gas companies – announced that he would not participate in the Boulder case. This creates the possibility of a 4-4 tie, which would leave the Colorado Supreme Court’s decision allowing Boulder’s claims to go forward in place.

Tribunal Supremoneutral

Boulder Boulder County Colorado

Oct 1, 2026 · bySCOTUSblog

Justice Alito will no longer participate in climate change dispute

The Supreme Court on Monday announced that Justice Samuel Alito will not continue to participate in Suncor Energy Inc. v. County Commissioners of Boulder County , a significant dispute that will be argued in just one week, on Monday, Oct. 5, the first day of the 2026-27 term . Scott Harris, the clerk of the Supreme Court, revealed Alito’s last-minute recusal in a short letter to advocates involved in the case. Harris’ note does not provide an explanation for the decision, saying simply that “Justice Alito has determined that he will not continue to participate.” In Suncor Energy , the court is considering the use of state-level tort claims to hold oil and gas companies financially liable for their alleged role in exacerbating climate change. The case involves officials in the Boulder, Colorado, area, but it is likely to have nationwide ramifications, because similar lawsuits have been filed in states across the country. In May, a coalition of left-leaning watchdog groups urged the Senate Judiciary Committee to investigate Alito’s involvement in the dispute, contending that his “substantial holdings in individual oil and gas companies,” among other issues, would “undermin[e] public confidence in the impartiality of the Court.” They stated that Alito had “previously recused from considering a petition brought by” the same companies involved in Suncor Energy . “There is no apparent reason for this change in Justice Alito’s recusal practices, and Alito provided no statement justifying his failure to recuse,” the groups wrote. At the time, a Supreme Court spokeswoman told NBC News that “Justice Alito does not have a financial interest in any party” and that he had been advised that “recusal is not required” by the Supreme Court’s legal counsel. Under the Supreme Court’s code of conduct , which the justices issued in November 2023, justices are required to recuse themselves from “a proceeding in which the Justice’s impartiality might reasonably be questioned.” The code defines this as a situation in which “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” The code of conduct notes that this includes cases in which a justice “has a financial interest in the subject matter in controversy or in a party to the proceeding.” Justices are not required to explain why they are recusing themselves, although they sometimes do, especially when the recusal stems from “prior … judicial service” – that is, the justice worked on the case at an earlier point in the proceedings. Nevertheless, the lack of explanation in Monday’s letter is still somewhat notable given the amount of detail provided when Harris announced in January – less than a week before oral argument – that Alito would not continue to participate in Chevron USA Inc. v. Plaquemines Parish, Louisiana , a dispute over the circumstances in which a federal contractor can transfer a case from state to federal court that also involved oil and gas companies. Harris pointed to Alito’s “financial interest in ConocoPhillips, the parent corporation for Burlington Resources Oil and Gas Company.” Harris explained that “Justice Alito initially decided not to recuse because on June 2, 2025 Burlington was dismissed as a petitioner in this Court under Rule 46.1 after Burlington advised the Court by letter that it was ‘withdrawing’ from the petition and that ‘neither Burlington Resources nor ConocoPhillips will be a party to (or have any other involvement in) the above-referenced case.’ Later briefing, however, noted that Burlington remained a party in the district court.”

Samuel Alitoneutral

Boulder Boulder County Colorado

Sep 28, 2026 · bySCOTUSblog