America’s energy policy is being hijacked in local courthouses. What look like small, state-level lawsuits — like the recent one filed by Boulder County, Colorado — are in fact part of a nationwide campaign to punish energy producers for “causing” climate change and pass sweeping climate regulations through the back door without a single vote in Congress. These lawsuits aren’t about saving lives or protecting the planet. They’re about political power.

On Sept. 11, the Trump administration’s Department of Justice said enough is enough. It stepped in, urging the U.S. Supreme Court to take up Suncor v. Boulder County, and stop this lawfare before it spreads any further.

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The Boulder case could determine whether activist groups around the country, or the federal Congress in Washington, D.C., are in charge of regulating global carbon emissions. For now, the Colorado Supreme Court has said that the lawsuit can go forward.

The case was scheduled to be in front of the justices for their consideration on Sept. 29, though that date has effectively been pushed back past Oct. 9, as the Court ordered Boulder to provide a legal brief articulating its thoughts by then. Just days ago, the DOJ weighed in, advising the justices of the Court that now is the time to roll up their sleeves and get involved. 

Here’s hoping that they do. Because unless the Supreme Court intervenes, climate lawfare will continue running rampant in courthouses across America. These suits are not just in Colorado, but also in Hawaii, Minnesota, California, Maryland, and even the City of Charleston, South Carolina. The defendants are companies such as Suncor and ExxonMobil that have reliably provided energy to Americans for decades. And the goal, perversely, is to punish them. 

But for now, Colorado is the flashpoint. In 2018, Boulder County’s board of commissioners sued Suncor and ExxonMobil for extensive damages, claiming that the companies caused local harm by convincing residents to burn fossil fuels for their daily energy needs.

Even though the emissions at issue occurred far beyond Colorado’s borders, the suit has proceeded and now has the green light to press forward, unless the Supreme Court gets involved. The plaintiffs have even publicly bragged about their court victories, while essentially giving the game away. They admit that “dozens of courts around the country are looking to these decisions as they consider similar cases.”

But large-scale energy regulations shouldn’t come from either local governments or state courts. These are issues for Congress. And federal law agrees. Interstate and international emissions are a federal matter, according to the U.S. Constitution, the common law, and the federal Clean Air Act. 

The DOJ brief puts a point on it: If Boulder’s theory stands, “every locality in the country could sue essentially anyone in the world for contributing to global climate change.” Not only is that true, but it’s also catastrophic — by design, it would hurt U.S. production of affordable, clean, reliable, safe energy, and raise costs for families, while localities and anti-progress “special interest” groups pocket billions in cash.

Fortunately, some state courts have already seen through the widespread effort. A New Jersey judge, for instance, dismissed the Democratic state attorney general’s climate lawsuit in February, ruling that “claims seeking damages for interstate and international emissions … are preempted by federal law.” What a novel concept.

Three months later, a judge in Bucks County, Pennsylvania, summarily dismissed a similar lawsuit. “Pennsylvania cannot apply its own law to claims dealing with air in its ambient or interstate aspects,” Judge Stephen A. Corr wrote in his decision.

Yet a handful of others, such as Hawaii’s judiciary, have gone the other direction, and have allowed similar lawsuits to continue, rejecting the idea that out-of-state emissions fall under federal jurisdiction.

That inconsistency among different courts across the nation is exactly why the Supreme Court should take the opportunity to step in and clarify how the Constitution and laws apply to these cases. By taking up the Boulder case, the justices can settle once and for all that global emissions are a federal issue, not a backdoor way to get around voters and Congress.

The urgency couldn’t be higher. The organizations that want to destroy American energy production show no signs of retreating. If anything, they’re getting bolder and more creative. 

For example, in May, a Seattle woman sued six oil companies, claiming that their activities — along with their “misrepresentations and omissions” about climate change — led to her 65-year-old mother’s death during a 2021 heat wave. Never mind that access to reliable energy has saved far more lives than it has ever taken. 

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And let’s not kid ourselves about the bigger game here. The goal isn’t just the money being demanded in state court. It’s political power. By bankrupting energy producers, the plaintiffs can short-circuit the regulatory process and the need to balance energy needs with environmental responsibilities.

The Supreme Court is the only institution that can put an end to this dangerous, unconstitutional trend. By reaffirming that climate policy is a matter for the federal government, not local courts, it can both defend the rule of law and rein in activists who would otherwise control your energy supply. 

William E. Trachman is the General Counsel of Mountain States Legal Foundation (MSLF). MSLF is counsel of record in another brief urging the court to take the Suncor v. Boulder matter.