Supreme Court weighs Suncor v. Boulder as ex-EPA officials back city's climate suit
The U.S. Supreme Court begins its new term with Suncor v. Boulder, a dispute that could shape how far state and local governments can go in holding corporations accountable for conduct they knew was harmful. ExxonMobil and Suncor Energy are urging the justices to reverse a Colorado Supreme Court decision that cleared the way for a lawsuit brought by the city and county of Boulder to proceed.
The two oil companies contend that the federal Clean Air Act, the landmark statute aimed at curbing air pollution and safeguarding public health, protects them from facing trial. Colorado courts turned down that theory, yet the companies maintain they should not be subjected to litigation over their actions.
A group of former senior officials of the U.S. Environmental Protection Agency has weighed in on Boulder's side. In a brief joined by former EPA officials who served under both Republican and Democratic administrations, they argue that Exxon and Suncor cannot identify any provision in the Clean Air Act that displaces Boulder's claims. The reason, they say, is simple: no such provision exists.
Boulder is not attempting to regulate air pollution, according to the former officials. What the city and county seek is monetary compensation for local harm they say the companies knowingly caused by releasing emissions that changed the climate while also spreading falsehoods about what those emissions would do. The lawsuit alleges that the companies deceived Boulder County residents by playing down risks to public health.
As a consequence, the community endured the loss of 1,084 homes in the 2021 Marshall Fire and is now confronting severe drought that endangers ecosystems and people's livelihoods. According to the former officials, the outcome of this case carries enormous stakes for Boulder County.
Boulder has stated clearly that it is not asking the court to control emissions or put an end to fossil fuel production. Exxon and Suncor, however, have claimed without evidence that a ruling against them could unsettle the fossil fuel market. The former EPA officials dismiss that as speculation in the best case and scare tactics in the worst, adding that it sounds especially hollow while the oil and gas industry reports record profits and tries to sidestep accountability.
The Supreme Court itself has expressed uncertainty. The justices have questioned whether they have jurisdiction to address Boulder's claims before the Colorado courts have reached a final judgment.
According to the former officials, the people of Boulder should be allowed their day in court against oil and gas companies that have caused direct harm to their communities. They argue that the Clean Air Act was never meant to give fossil fuels an advantage over other energy sources or to insulate producers from liability for misleading business practices.
State laws that forbid corporations from deceiving the public about the dangers of their products, the former officials say, do not stand in the way of the Clean Air Act's objective of reducing air pollution to protect public welfare. The statute gives the federal government the power to set reasonable limits on carbon pollution from motor vehicles, power plants, and oil and gas development, which together account for two-thirds of U.S. emissions. It does not stop states from enforcing their own laws against companies merely because doing so might indirectly reduce fossil fuel emissions, the former officials add.
They also highlight what they describe as a contradictory position taken by the current administration. While the administration says the Clean Air Act applies in this matter, it is at the same time pressing courts to conclude that the law does not permit the EPA to regulate greenhouse gases either now or in the future. The agency moved in that direction this month by repealing 2024 limits on carbon pollution from coal- and gas-fired power plants.
Some members of Congress who have filed a brief backing Exxon and Suncor are also promoting legislation that would grant oil companies sweeping legal protection from cases like Boulder's. The former officials point out that introducing such a bill is itself an acknowledgment that existing federal law does not block Boulder's claims.
The former EPA officials conclude that the Clean Air Act was intended to protect Americans from harmful pollution, not to shield fossil fuel companies from legal accountability or to weaken states' ability to protect their residents from conduct that harms communities and costs taxpayers billions. They urge the Supreme Court not to stand in the way of communities like Boulder having their day in court.
Gina McCarthy is a former White House climate adviser and administrator of the U.S. Environmental Protection Agency. Avi Garbow is a former general counsel of the U.S. Environmental Protection Agency and founder of Fiery Run Environmental Strategies.
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