A Big Moment for Federalism at the Supreme Court

The Wall Street Journal ^ | Oct. 2, 2026 5:39 pm ET | The Editorial Board

[E. Pluribus Unum]

Boulder’s climate lawsuit would return the U.S. to the era of the Articles of Confederation.

The Supreme Court kicks off a new term Monday with a case ostensibly about climate change but with much bigger stakes. The real issue in Suncor Energy v. Boulder County is whether states and localities can turn federalism on its head to dictate policy for the rest of the country.

Boulder and more than 30 other state and local governments have sued oil and gas producers for alleged damage caused by their global CO2 emissions. Boulder wants compensation for wildfires, the costs for mitigating pest infestations, reduced farm output and lower employee productivity, among other things.

The Supreme Court ruled unanimously in AEP v. Connecticut (2011) that the Clean Air Act pre-empts similar state nuisance claims related to CO2 emissions. But Boulder is trying to evade the Court’s holding by suing oil and gas producers in state courts. Boulder says the companies created a public nuisance and engaged in a “civil conspiracy” by selling products without warning about their climate effect.

The Colorado Supreme Court ruled Boulder’s state claims aren’t pre-empted by federal law. The judges reasoned that Boulder’s claims related to the production and marketing of fossil fuels, not their CO2 emissions. This is a semantic distinction without a difference. Under the Colorado court’s ruling, oil and gas companies would have no choice but to cease producing fossil fuels to avoid enormous liability. That’s the goal of the lawsuits, in addition to extracting a big government payday.

This makes the stakes much larger than a simple matter of federal pre-emption. Letting a state or locality dictate U.S. climate policy would turn the Constitution’s proper understanding of federalism upside down.

---

TOPICS: Government
KEYWORDS:

[E. Pluribus Unum]

"This is what Boulder and its fellow litigants are seeking to do. They want to hold oil and gas companies liable for production in states like Texas and Alaska that don’t share Boulder’s hostility to fossil fuels.

"That’s not merely climate lawfare. It’s economic warfare."

[maddog55]

I’m guessing a 5 / 4 decision and Boulder losses as it should. The who whole CO2 BS has been proven wrong over and over.

[antidemoncrat]

Here’s hoping they come out as the Supreme US Court of the US and not as the Supreme Clowns of the US.

[milagro]

Should be 9/0, but the SC liberals think they’re smarter than Mother Nature!

[Bruce Campbells Chin]

It won't be 5-4 because Alito has recused himself. But I'm pretty confident it will be 5-3.

This is one of those cases where it makes a huge difference that we had a Republican president nominating generally conservative justices to the Supreme Court.

This is the most conservative Supreme Court since the early 1930s, and I think we sometimes lose sight of how many huge decisions we have actually won. I could run down a list of decisions that if they had gone the other way, we would be in incredibly bad shape.

[Verginius Rufus]

Isn’t this the case which Alito has (unnecessarily) recused himself from?

[17th Miss Regt]

Boulder: “We are suing to prevent enforcement of the federal Civil Rights Act in regard to voting by certain minorities and we encourage others to do the same. This whole federalism thing is so overblown.”

[AZJeep]

Some activist judge and twelve well selected jurors somewhere in Colorado have the potential to killing our way of life in the whole USA

[Dilbert San Diego]

I hear you. It might be good to have a reference list somewhere. I don’t know if Free Republic is set up to have a repository like that.

There are a lot of complaints on this site about how Trump’s three nominees to the court are too liberal. Being able to balance it out when they have come through for conservative values would be helpful.

[Feckless]

Plead no contest, pay the fine then prohibit your products be sold there.

[kiryandil]

Shut down all “fossil fuel” deliveries to Boulder NOW.

Watch them poop their hypocritical panties when they can’t enfarce the law, because no gas for the cops, and can’t plow the roads, because no diesel for the plows.

Sell it outside the city limits for 10 times the going rate per gallon.

[kiryandil]

then prohibit your products be sold there

Just think of all the "whine" the oil companies could bottle from that...

[Eastern Shore Virginian]

“Boulder and more than 30 other state and local governments”

Of those, there are 20 states.

And yes, they are all blue anti-American Communist states.

[Spacetrucker]

“Whine” is a regulated substance, which i do not believe any of the Petroleum Conglomerates are licensed to sell. Very hazardous substance, that “Whine”.

[Bob Wills is still the king]

Because the Articles of Confederation worked so well they had to be replaced within a decade by the new Constitution?

[Bob Wills is still the king]

“The energy companies argue that the lawsuits pose a serious threat to the industry and that state courts are not the right place to deal with the global issue of climate change.

Alito had so far resisted calls to step aside in the case, which the court agreed to hear in February. He does not own stock in Suncor Energy and ExxonMobil but does have holdings in other oil companies such as ConocoPhillips and Phillips 66, according to his disclosures. The group Consumer Watchdog says that means he could indirectly benefit from a decision in the industry’s favor.

The group’s organizing director, Alexandra Nagy, pointed to the court’s recently adopted code of ethics, which says a justice should step aside if they or their families have a “subject matter or controversy”.

“Justice Alito’s recusal from Suncor v Boulder is the right decision, and one he should have made from the start,” Nagy said in a statement.”

The Hill, 9/30/26

[Track9]

Boulder is 36 square miles surrounded by reality.

[Political Junkie Too]

The Colorado Supreme Court ruled Boulder’s state claims aren’t pre-empted by federal law. The judges reasoned that Boulder’s claims related to the production and marketing of fossil fuels, not their CO2 emissions. This is a semantic distinction without a difference. Under the Colorado court’s ruling, oil and gas companies would have no choice but to cease producing fossil fuels to avoid enormous liability.

Not necessarily.

By the same logic, the oil and gas companies can argue that all they did was convert the fossil fuels into combustables, and it's the automobile engines that produce the CO2, so the oil and gas companies are not to blame, the auto manufacturers are the culprits.

-PJ

[kiryandil]

It would be entertaining to watch the Boulder retards Biden their pants if they got suddenly cut off from “fossil fuels” and couldn’t run the city government any more.

But you love your hypocrite Big Government pieces of crap, don’t you?