Seeking to fund climate mitigation with 'super tort' relief, U.S. cities, states struggle with federalism

RJ Peltz-Steele with Google Gemini CC0 1.0

In today's First Monday in the U.S. Supreme Court, the Court heard and livestreamed oral arguments in a bellwether climate case.

In Suncor Energy Inc. v. County Commissioners of Boulder County, the city and county of Boulder, Colorado, demand compensation from Big Oil actors for damage wrought by fossil-fuel-driven climate change, such as floods, droughts, extreme heat, heavy precipitation, floods, and wildfires.

Before the Court are issues far preliminary to the substantive. The corporate defendants argue that the public suits are preempted by federal statutes and by constitutional limitations on state power vis-à-vis both the federal government and other states.

The Court decision in the case will have implications for a wave of similar lawsuits by local governments across the country, such as Honolulu, San Francisco, and Baltimore, and by states, such as Minnesota and Rhode Island. Writ large, the suit has implications for state- and municipal-government efforts to use litigation to fill coffers to respond to a range of crises, not limited to climate change, such as air and water pollution, epidemics of drug addiction, failures of physical infrastructure, and vulnerabilities in cybersecurity.

State and local governments invoke multiple legal theories with tort law, sometimes in this context called "super tort," leading the way. The federal government, with either party in the White House, has resisted super tort theories—excepting an impulse of the Biden Administration—viewing them as a threat to coherent national policy. Meanwhile public plaintiffs naturally want to keep their claims in state courts, which they rate as friendliest to state claims, and in which the states naturally have the most sway over interpretation of state law. 

Pumpjacks in Williams County, North Dakota, 2026.
RJ Peltz-Steele CC BY-NC-SA 4.0

A skeptic such as me might say that federal resistance is grounded in bought-and-sold federal politicians having more interest in perpetuating campaign contributions from the corporatocracy than in ensuring public health and security. At the same time, I recognize that there must be some guardrails on a state's latitude to so distort tort litigation as to effectuate tax or confiscation.

Today's argument was wide-ranging, from disparate understandings of causation in state tort law, to choice-of-law principles, federal preemption, and limitations on state power over interstate commerce and U.S. foreign affairs.

"Everybody agrees that state tort law is a form of regulation," Justice Amy Coney Barrett prefaced one question to Boulder County attorney Kevin Russell. The observation highlights the balance that courts in tort cases try to maintain in constraining their power in corrective justice, that is, righting wrongs between parties before the court, while acknowledging that tort litigation has, and is supposed to have, reverberations in politics and public policy.

Suncor Energy attorney Kannon Shanmugam summed up the defense position in context: "This 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."

As I asserted some years ago, the courts are being drawn more and more into the uncomfortable domain of political disputes as the public grows frustrated with the dysfunctions that paralyze the political branches.

Post-argument analyses will abound. I suggest checking out SCOTUSblog and Reason. The oral argument at C-SPAN is embedded below. The case, again, is Suncor Energy (U.S.A.), Inc. v. County Commissioners of Boulder County, No. 25-70 (U.S. oral argument Oct. 5, 2026).