The Supreme Court is set to hear Suncor v. Boulder County, a case in which Colorado local governments accuse oil companies of deceptive marketing about climate risks. The companies argue that federal law preempts these state-based tort claims, citing the interstate nature of air pollution and the federal government's foreign-affairs interest in climate change. The Colorado Supreme Court rejected that argument, but the U.S. Supreme Court could overturn that decision this fall, with Justice Samuel Alito's last-minute recusal adding uncertainty to the outcome.
The authors warn that a ruling for the oil companies would mark a major shift in preemption doctrine. Courts have historically been skeptical of preemption claims unless there is a clear constitutional or statutory basis, but the companies are pushing a more amorphous standard. If adopted, that approach could extend far beyond fossil fuels, potentially insulating Big Tech and chemical manufacturers from state lawsuits. Conservative and business groups have filed amicus briefs supporting the oil companies.
The deeper concern, the authors argue, is the effect on the separation of powers. Because the president controls federal agencies and foreign affairs, an expanded preemption doctrine would place more policy decisions under presidential authority. That would further erode the vertical checks of federalism and make it easier for powerful industries to focus their influence on a single institution—the presidency—rather than many levels of government. The case, in their view, is less about climate litigation and more about accelerating the slide toward an imperial presidency.