Ahead of oral argument in Suncor Energy v. Boulder County, a new amicus brief has ignited a debate among conservative legal scholars about the proper scope of state climate litigation. The brief, filed by Prof. Jonathan Adler in support of Boulder County, argues that federal law does not preempt state-law claims for climate injuries—but it adds a crucial caveat: only the jurisdiction where emissions actually occurred may apply its law. That caveat, according to attorney Michael Buschbacher, undermines Adler's own conclusion.
Buschbacher, writing in a guest post on Reason, contends that Boulder County's case is "all home cooking"—the county seeks to hold energy companies liable for emissions that occur largely outside Colorado. He argues that Adler's reading of the Clean Air Act, which treats interstate pollution as a matter of federal control, should lead Adler to side with the petitioners or remain neutral. Buschbacher points to a recent Maryland Supreme Court decision rejecting similar claims and notes that even pro-climate dissents there agreed that state law cannot reach worldwide emissions directly.
The stakes are enormous: the broader litigation campaign against energy companies asserts roughly $28 trillion in damages, nearly a full year of U.S. GDP. The Supreme Court's decision in Suncor will determine whether states and municipalities can use their own tort law to regulate greenhouse-gas emissions beyond their borders. Adler has promised a reply to Buschbacher, but the exchange already highlights a deep fault line in conservative legal thought over federalism and climate policy.