News & Analysis
September 24, 2026
As the U.S. Supreme Court prepares to kick off its fall term with arguments in Suncor v. Boulder, a growing number of legal scholars are explaining why the justices should reject ExxonMobil and Suncor Energy’s arguments to stop the City and County of Boulder’s climate deception lawsuit against the companies before it can go to trial.
For SCOTUSBlog, Prof. Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, examined the “unusual” arguments that Big Oil and its allies have made to claim that climate deception lawsuits like Boulder’s are preempted by federal law. Though Exxon and Suncor can point to no language in the Constitution, Clean Air Act, or other federal laws that explicitly preempt cases like Boulder, they have argued that the Constitution implicitly preempts Boulder’s efforts to make Exxon and Suncor pay for local climate damages because of the 'interstate nature' of claims related to climate damages. Chemerinsky called that “a stunning claim given that the 10th Amendment always has been understood to allow states to do anything that is not forbidden by the Constitution.”
“If the court accepts this argument,” Chemerinsky wrote, “the implications could be enormous in denying states the ability to regulate activity with interstate effects. This conceivably could be taken to preempt any state environmental laws.”
Writing in the University of Chicago Law Review, Prof. Alejandro E. Camacho of UCLA School of Law and Prof. Robert L. Glicksman of George Washington University Law School called Big Oil’s preemption arguments “without merit” and “the latest, and perhaps most ambitious, effort to weaponize federal law to prevent polluters and fraudsters from paying for the harms they cause.”
At stake in Suncor is not merely a technical question of preemption doctrine but the fundamental structure of accountability in the American legal system. Boulder County and dozens of similar plaintiffs seek reimbursement for the real costs (ultimately borne by their taxpayers) of harm allegedly caused by corporations that knew the consequences of their conduct and concealed them. The common law of tort, one of the oldest and most established expressions of state sovereignty, provides those governments with a path to compensation, and federal preemption doctrine, properly understood, does not foreclose it. Communities that have suffered real harm deserve the opportunity to make their case before a court of law; the corporations that allegedly caused that harm deserve the opportunity to defend themselves. The Constitution does not—and should not—shield energy companies from paying for the harms they cause.
Indeed, state common law should be available for communities seeking to hold Big Oil companies accountable for damages caused by their deception, Prof. Rachel Rothschild of the University of Michigan Law School, wrote in a forthcoming piece in the Yale Law Journal Forum:
Climate tort suits do not warrant different treatment because the harms result from global processes, as the same is true of many injuries in our modern world. And in light of current case law and the Trump administration’s position that EPA has no authority to regulate greenhouse gas emissions, all state common law causes of action should be available absent new congressional legislation clearly preempting them. To find otherwise would suggest states cannot protect their residents and natural resources against damage from external threats unless the federal government intervenes – a position at odds with our Constitution and basic principles of federalism.
If the Supreme Court were to side with Big Oil and say that Boulder’s claims are preempted by the Clean Air Act, the results could be dire for state governments struggling to protect their residents from the rising costs of climate change, wrote Prof. Sidney Shapiro of Wake Forest University School of Law.
Congress stated in the Clean Air Act that it did not intend to preempt state civil justice claims, and such claims obviously do not interfere with the non-existent regulation preventing oil and natural gas companies from causing climate damage. If the Court nevertheless holds that Boulder Country’s lawsuit is preempted by the Clean Air Act, the regulatory capture of environmental policy will be complete. When EPA declines to fulfill its statutory obligations, the states will be unable to address that gap. This cannot be what Congress intended when it passed the Clean Air Act.
For more on Suncor v. Boulder, read CCI’s explainer about the case, as well as other coverage below.
