Amicus Brief: Suncor Energy v. County Commissioners of Boulder County

The Colorado Supreme Court allowed Boulder County to pursue a cockamamie climate-change lawsuit against several energy companies, alleging various state tort-law claims. The idea is that, by producing greenhouse gases that cause climate change, the defendants are harming Boulder County. Of course, this is all “preempted” (trumped) by federal regulations. The genius of America’s constitutional structure is that it leaves most policy issues to the states while allowing the federal government to handle truly interstate issues. The regulation of our national energy network and of national—indeed global—greenhouse gas emissions are such areas of authority that the Constitution wisely gives to Congress, not to the states (let alone county and local governments). Last fall, the Manhattan Institute urged the U.S. Supreme Court to take the case, which it did.

Now on the merits, MI, joined by two Western think tanks that also vigorously defend federalism—the Frontier Institute (Montana) and Independence Institute (Colorado)—has filed another brief illustrating this dynamic and supporting the energy companies desire not to be regulated by hundreds or even thousands of separate environmental and energy agencies. If this case is allowed to proceed, we argue, Boulder County residents will be able to affect national policymaking, but nobody outside the county will have any role in electing the officials pushing here to drive national energy policy through tort suits at the local courthouse. In cases like these, the delicate balance of interstate relations can only be preserved by a federal umpire. We also update the Court on two developments that have transpired since previous briefing: (1) the Maryland Supreme Court considered substantially similar climate-tort claims and reached the opposite result from its Colorado counterpart, and (2) the EPA rescinded its 2009 endangerment finding for greenhouse gases under the Clean Air Act and repealed the accompanying motor-vehicle greenhouse-gas standards.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

With thanks to law school associate Addison Gills