On October 5, the Supreme Court will hear argument in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, in which the Court is poised to consider whether the Constitution or the Clean Air Act preempts state-law climate-change tort suits against fossil fuel companies. The case arrives after nearly a decade of litigation in which state, tribal, and local governments across the country have sought damages for and abatement of climate-related injuries from investor-owned oil and gas majors under a variety of common-law and statutory theories, including public nuisance, trespass, and failure-to-warn, among others. None of these other entities are parties to Suncor, but each has a significant interest in the case, as Petitioners have asked the Court to strike the full slate of cases all at once, with either a newly constructed constitutional rule of unprecedented scope or, alternatively, an extraordinarily broad reading of the preemptive reach of the federal statute. Other posts in this series address various aspects of the merits of the case from a variety of perspectives. This post explores what’s at stake for the cases that rely specifically on deception as the basis for fossil fuel company liability.
(Full disclosure: Through my work with Sher Edling LLP, I represent some of the state, tribal, and local governments in these other cases. Some of the local governments filed an amicus brief urging the Court to affirm the Colorado Supreme Court’s interlocutory decision finding Boulder’s case is not preempted, and I took part in that briefing. In addition, some of our client state and tribal governments signed onto separate amicus briefs supporting Respondents.)
The Question Presented
The Question Presented to the Court is this: Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate. A key ambiguity in this phrasing is how much and what kind of weight to put on the words “caused by.” Will the Court’s decision cover all cases in which climate change is part of the causal chain? Or will the Court read the scope of the question more narrowly, to give legal meaning to those particular words?
Boulder’s complaint advances two distinct theories. The first alleges that the defendants are liable because they produced, marketed, and sold fossil fuels while knowing that doing so would contribute to global climate change (the “production claim”). The second alleges that the defendants are liable because they engaged in a decades-long campaign of deceptive marketing: they learned of the climate risks of their products by the 1960s, worked to discredit the science in the 1980s and thereafter, and more recently rebranded themselves as “clean” or “green” while continuing with fossil fuel business as usual (the “deception claim”). With this second theory, Boulder seeks damages tied to the incremental harm caused by that deception — not for all harms attributable to defendants’ fossil fuel activities. The deception claim is the one shared with the majority of the other climate damages cases.
Petitioners treat these two theories as equivalent, arguing that any claim relating to harm caused by climate change (a) is necessarily a claim that seeks to regulate interstate pollution and (b) is therefore necessarily committed to federal law. This is a crucial point of contention — whether a particular claim is about emissions regulation or not. But the preemption analysis differs in the two circumstances. Because even if the production claim is somehow tantamount to interstate emissions regulation — and, as discussed further below, there are plenty of reasons to conclude it is not — the deception claim clearly isn’t. The causal chain for both theories runs through greenhouse gas emissions, global climate change, and localized impacts, but the starting point — the tortious activity, the thing for which the defendants would be held liable — is distinct. And that distinction has consequences.
Why the Line Between Production Claims and Deception Claims Matters
It is possible the Court will not reach the merits of the preemption question at all. There is a separate Question Presented, asking whether the Court has constitutional or statutory jurisdiction to hear Petitioners’ appeal of the Colorado Supreme Court’s decision on an interlocutory appeal of a trial court’s denial of a motion to dismiss. Other authors in this series will address that question. But if the Court does reach the merits, the impact of the Court’s ruling will look very different depending on which theory or theories it addresses.
If the Court accepts Petitioners’ argument that claims premised on the sale and production of fossil fuels are preempted — a proposition several courts, including the Second Circuit in City of New York v. Chevron, have accepted — the practical effect on Boulder’s own case, and on the broader landscape of climate tort litigation, would be significant but bounded. Production claims would be foreclosed; deception claims would not. If the Court accepts Petitioners’ broader framing — that federal law preempts state law from applying to any claim connected to climate change harms, regardless of the duty being enforced — the effect would be broader, too. It would reach both of Boulder’s theories, and, most likely, by extension, the other climate deception suits as well.
The broader rule Petitioners press would arguably reach even further, with even more restrictions imposed on states and localities as a result. An amicus brief filed by Colorado, joined by California and seventeen other states and the District of Columbia, makes just this point: if the Constitution’s structure alone — untethered to any specific text — can displace state tort claims whenever they involve harms that relate to climate change, there is no obvious reason the same reasoning would stop at tort claims. The rule would just as easily reach state legislation on energy siting, emissions disclosure, and climate pollution control more generally, all of which seek in one way or another to address injuries caused by the effects of GHG emissions on the climate. There is also no obvious reason the same reasoning would stop at climate change. There are plenty of other problems that are interstate, national, even global in nature, but whose impacts are experienced locally. As the states’ brief indicates, state common law has long provided the vehicle for holding industries accountable for these kinds of diffuse, border-crossing harms, including harms from asbestos, lead paint, tobacco, and opioids. Defendants in these other areas have also raised, and lost, arguments that the scale or novelty of the harm alone justified displacing state law. But the Court has repeatedly refused to grant preemptive effect to this kind of “brooding federal interest.”
Why Deception-Based Claims Should Survive
Ultimately, the Court should preserve deception-based claims because petitioners’ preemption theories simply do not fit them.
The constitutional argument is weak. Most centrally, Petitioners rely on constitutional principles they argue underlie a body of federal common law that once governed sovereign-versus-sovereign disputes: one state suing another to abate pollution crossing a shared border. That law was confined for sixty years to cases resolving competing claims to a shared natural resource, and it was displaced entirely by the Clean Air and Clean Water Acts. Nothing in that line of cases speaks to a state’s right to punish a company for deceptive conduct. And climate deception claims do not ask any court to decide how much pollution a defendant may emit or to resolve a dispute between coequal sovereigns over air or water. Rather, they ask whether defendants violated their duty not to mislead the public, a duty states have always been free to enforce regardless of whether the underlying product crosses state lines. Advertising, unfair-business-practices, and consumer-fraud law are among the most conventional exercises of state police power there are. And the Supreme Court has repeatedly declined invitations — most recently in National Pork Producers Council v. Ross — to convert the extraterritorial effects that follow from ordinary state regulation into a freestanding constitutional bar.
Petitioners’ foreign-affairs argument fares no better against climate deception claims. Whatever positions the United States has taken over the years in international climate negotiations, those positions always concerned state-to-state relations, not the liability of private companies under state tort law. No relevant treaty commitment addresses that question at all, and, if anything, longstanding U.S. trade and consumer-protection commitments cut in the opposite direction: they reflect an affirmative American interest in policing exactly the kind of misrepresentation at the heart of the climate deception cases.
Importantly, the Court decided Hencely v. Fluor Corp. in April, midway through the briefing in this case, rejecting the Fourth Circuit’s “battlefield preemption” doctrine, which had treated the mere fact that a tort claim arose in a war zone as sufficient to displace state law. The Court, in an opinion by Justice Thomas, held that implied constitutional preemption is available only in a narrow set of areas involving genuinely “uniquely federal interests,” and only where there is an identifiable, significant conflict between that interest and the operation of state law — not merely a setting or category in which federal power acts. The analogy to Suncor is a close one. Petitioners’ theory is that because Boulder’s suit arises in the “battlefield” of interstate pollution it must be preempted, without regard to which duties are actually being enforced. Hencely forecloses that reasoning. Courts may not manufacture a categorical preemption rule for broad policy domains out of general constitutional structure. In short, there is no free-floating preemption “in vacuo,” of the sort Petitioners seek to install.
The statutory argument is even weaker. The Clean Air Act does not preempt deception-based claims. To start, the Act’s saving clauses have long been read to preserve, rather than displace, state common-law remedies, and the Act’s text does not mention marketing or advertising in any respect. Nor is there any possible conflict: a company can comply fully with whatever emissions obligations the Act imposes while also telling the truth about its products. The state law duties not to deceive pose no obstacle to Congress’s purposes in requiring statutory compliance. What’s more, the idea that the Clean Air Act preempts the “field of interstate air pollution” runs counter to the statute and Supreme Court precedent. The local government amici make this last point through Silkwood v. Kerr-McGee Corp., where the Court held that a punitive damages award for a plutonium release was not preempted even though the Atomic Energy Act gave the federal government exclusive authority over nuclear safety, because that occupied field did not extend to every claim that punished or deterred conduct related to radiation hazards. The same logic applies here: even if the Clean Air Act did occupy the field of interstate emissions regulation—and it doesn’t—that field does not stretch to cover misleading statements to consumers about that pollution merely because the emissions are a step in the causal chain.
The City of New York’s amicus brief adds doctrinal depth here, and explains why even production-based nuisance, trespass, and unjust-enrichment claims do not ask a court to set an emissions standard: in short, a nuisance claim asks only whether it is unreasonable for a defendant to keep imposing costs without paying for them, not whether the underlying conduct should be enjoined or capped, and trespass and unjust-enrichment claims turn on intent and unjust benefit rather than any emissions baseline. Thus, the City argues, ordinary tort law is well equipped to absorb both of Boulder’s theories, and always has been. Cost-shifting to the party responsible for an injury is, on the City’s account, tort law’s oldest and most basic function — the same logic that let New York’s highest court order a cement plant to pay damages for the pollution its otherwise lawful and valuable operations caused in Boomer v. Atlantic Cement Co., without ever asking a court to decide how much cement production was too much. Tort liability may or may not end up affecting a defendant’s future conduct, the City argues, but any downstream effect is true of virtually any damages award and has never been treated as “regulation” for preemption purposes. The City makes the point explicitly that this logic applies “only more plainly” to claims built on deception, since a defendant sued for lying about its products can avoid all liability simply by telling the truth — a point that requires no assessment of appropriate emissions levels at all.
What to Watch For
If it reaches the merits, the Court has several options. It could address Boulder’s two theories separately, treat them together, or decline to distinguish them at all, leaving the applicability of its decision open to interpretation. A decision that disentangles the tortious activity at the start of the causal chain (production or deception) from the intermediate activities along the way to injury (GHG emissions), asking what duty is being enforced and what relief is being sought, is the most appropriate analytic approach. A decision that elides the distinction focuses on the nature of the harm, rather than the nature of the tort, and risks not only misunderstanding the doctrinal issues at play but also running afoul of key principles of federalism.
