Liberal justices sought a jurisdictional exit in the Boulder climate case against oil firms, critics say they fear losing on the merits.
The Supreme Court opened its new term with oral arguments in Suncor v. Boulder, a high-stakes fight over whether cities can use state tort law to extract climate damages from energy companies. Fox News Digital reported that Justices Ketanji Brown Jackson and Sonia Sotomayor repeatedly steered the discussion toward jurisdiction instead of the core federalism question.
At issue is whether Colorado can impose liability for alleged climate harms tied to emissions far outside its borders, or whether that kind of national energy policy belongs to Congress. Attorneys general and conservative legal analysts watching the argument said the liberal justices looked for an early exit rather than a straight ruling on the merits.
Carrie Severino, president of the conservative judicial group JCN, put it bluntly after listening to the bench.
"The fact that they kept going back to trying to create a jurisdictional problem tells me they don't feel confident that they have the votes in this space. Jackson and Sotomayor were looking for an escape hatch."
Justice Jackson called the dispute “premature from the standpoint of this court exercising its jurisdiction.” She said the Court doesn’t “have the whole set of facts” and doesn’t “really know enough to be confident” that the legal theories on the table even apply.
She pressed Principal Deputy Solicitor General Sarah Harris, who argued in support of Suncor, on why the companies were back in federal court so soon. Jackson said it felt as if the defendants were pulling the case up “before the state courts have really had a chance to sort out who is the source, what is their allegation with respect to how this causation is happening.”
Justice Sotomayor took a similar line with Suncor attorney Kannon Shanmugam. She floated sending the matter back rather than deciding it now.
"If we're unsure of your characterization, because there's certainly a number of amici brief who disagree with that characterization, shouldn't we be certifying this question to the Colorado court instead of us deciding it? We have to be sure of our jurisdiction before we take it."
The case remains before the Colorado Supreme Court. If the U.S. Supreme Court declines to reach the federalism question, the state court’s ruling allowing Boulder’s claims to move forward would stay in place. That procedural reality hung over the entire hour of argument.
Readers following Justice Jackson’s recent public schedule will recognize the same pattern of careful, process-heavy questioning she often brings to major cases.
Republican attorneys general watching the argument said the liberal justices’ jurisdictional focus was no accident. Alabama Attorney General Steve Marshall told Fox News Digital he saw both Jackson and Sotomayor searching for an out so the Court would not have to issue a final ruling at this stage.
Marshall framed the real goal of these suits in plain terms.
"It's to basically create a carbon tax on both producers and emitters across the country, which would include, by the way, my cattlemen in Alabama producing beef for our country, those that are creating concrete to be able to build structures and be able to grow our economy. They ultimately want to bankrupt that industry to have their preferred climate change policies be in play."
Utah Attorney General Derek Brown drove at the same structural problem. Boulder’s theory, he said, reaches conduct far beyond Colorado.
"They're literally addressing behavior that takes place all over the world. They want to regulate not just what happens in Colorado, but what happens in my state of Utah or in Saudi Arabia. That's not the way the system works. So, really, this case comes down to one main issue and that is who gets to decide things like energy policy. And ultimately, under our system, it should be Congress."
That is the federalism core the companies want decided now. Hans von Spakovsky, senior legal fellow with Advancing American Freedom, said Jackson and Sotomayor’s “premature” language was simply an attempt to dodge the main question: whether federal law, including the Clean Air Act, preempts state tort claims like Boulder’s.
The Court has already seen related maneuvering in this litigation. One justice’s earlier decision to step aside from the Boulder climate suit underscored how closely watched every procedural move in this docket has become.
Chief Justice John Roberts pressed Boulder attorney Kevin Russell on whether a win for the city would invite copycat lawsuits across the country. Russell said legal limits exist, yet he acknowledged to Justice Clarence Thomas that Boulder’s theory could open the door for suits against other fossil-fuel businesses.
Von Spakovsky noted that Shanmugam closed by highlighting the absence of any limiting principle. The Suncor lawyer pointed out that roughly 90,000 political jurisdictions could sue, and that individuals could file damage claims tied to global warming as well. He also stressed that Boulder is trying to settle a major national policy fight in the courts instead of in the legislative branch, a path the Court’s conservative majority has repeatedly resisted.
Boulder’s amended complaint alleges ExxonMobil and Suncor knew for decades about climate risks from fossil fuels and misled the public. The filing cites a 1977 internal ExxonMobil memo that circulated among top managers and reported that “current scientific opinion overwhelmingly favors” the view that fossil fuels contribute to rising CO2. City officials estimate taxpayers could face more than $100 million in adaptation costs from wildfires, drought, and damage to roads and other infrastructure.
Those figures remain allegations. They have not been proven in a full trial on the merits, which is precisely why the jurisdictional timing fight matters so much to both sides.
Separate coverage of how Alito explained his recusal from the same Boulder matter has already shown how personal and institutional conflicts can reshape the bench that hears these energy cases.
Former Washington Gov. Jay Inslee, a longtime advocate of aggressive climate policy, defended the lawsuits outside the legal-process debate. He said families who lost homes and communities that burned should get their day in court.
"Their own scientists knew that their product was dangerous, that it was going to cause more fires. And they knew this for decades, 1967, their own scientists told them it could be catastrophic, so they knew about it, they lied about it. Now it's an American right to be in court. Nobody should bar an American from their day in court."
Inslee’s framing treats state tort suits as ordinary accountability. Marshall, Brown, Severino, and von Spakovsky treat them as an end-run around Congress and the Clean Air Act. The oral argument made clear that several justices are weighing both the causation theories and the institutional question of who sets energy policy for the entire country.
Climate activists gathered outside the Court before the arguments. Inside, the bench spent substantial time on whether it should decide anything at all while the Colorado case is still live. That procedural focus is the “off-ramp” conservative observers keep describing.
Court-watchers who track major institutional fights, including recent rulings such as the decision that cleared a mail-ballot executive order in a 6-3 vote, know how heavily process can shape outcomes long before a final merits opinion drops.
The justices still must decide two linked questions: whether the Supreme Court has jurisdiction to act now, and whether state tort law can reach global emissions through local damage claims. A narrow jurisdictional ruling would leave the Colorado Supreme Court’s green light for Boulder’s lawsuit intact and keep the larger preemption fight for another day.
A ruling on the federalism question would draw a brighter line. It would tell cities and states whether they can keep using tort suits to impose climate costs on producers whose operations sit far outside their borders, or whether that authority stops at the water’s edge of federal law and congressional power.
Shanmugam’s warning about 90,000 potential plaintiff jurisdictions is the practical stake. If every county, city, and special district can sue over global temperature trends, energy policy migrates from elected lawmakers to whichever courtroom a plaintiff prefers. That is the outcome Alabama’s cattlemen, Utah’s producers, and concrete suppliers across the country are being told to fear.
Boulder wants damages and a public finding that the companies misled Americans for decades. The companies and the supporting attorneys general want the Court to say state tort law cannot revise national energy rules one lawsuit at a time. Jackson and Sotomayor spent the argument testing whether the Court must answer that question yet. Their colleagues will decide soon enough whether the off-ramp exists.
When liberal justices suddenly discover a passion for waiting on state courts, it usually means the merits look worse than the calendar. Voters still elect Congress to set energy policy, not trial lawyers in Boulder.