Oil giants ask Supreme Court for immunity

Exxon Mobil and Suncor are asking the Supreme Court to block Boulder, Colorado from suing them for climate change costs. The case, Suncor Energy v. County Commissioners of Boulder County, will be heard October 5.

Boulder's lawsuit seeks climate damages

Boulder sued Exxon and Suncor in Colorado state court, asking them to pay for costs the city faces from climate change caused by the oil industry. This could be the first of many such lawsuits against fossil fuel companies.

The audacious constitutional argument

Exxon and Suncor claim state courts are forbidden from hearing climate suits based on the Constitution's "structure," not any actual text. This argument exists nowhere in the Constitution itself.

“the "structure of the Constitution"”

This contradicts textualism

Conservative justices like Neil Gorsuch and Amy Coney Barrett claim to follow textualism, which requires grounding arguments in the Constitution's actual words. The oil companies' argument does neither.

Gorsuch warned against this exact thing

In 2016, then-Judge Neil Gorsuch wrote that the Constitution is not "some inkblot on which litigants may project their hopes and dreams," but a carefully drafted text judges must apply according to its original meaning.

“Ours is the job of interpreting the Constitution. And that document isn't some inkblot on which litigants may project their hopes and dreams”

Precedent allows state environmental suits

In Ohio v. Wyandotte Chemicals (1971), the Supreme Court ruled that Ohio could sue chemical companies in Michigan and Canada for dumping mercury into streams. State courts regularly hear interstate pollution cases.

The Clean Air Act doesn't block suits

The Clean Air Act says air pollution control is primarily the responsibility of states and local governments. It explicitly protects state authority to enforce pollution standards on stationary sources like refineries.

Oil companies cite an abandoned doctrine

Exxon and Suncor point to Missouri v. Illinois (1906), where the Supreme Court heard a sewage pollution case. But the Court abandoned this federal common law approach many decades ago when Congress passed environmental statutes.

The logical leaps are enormous

Oil companies claim an old workaround that no longer exists still preempts state suits, even though Congress replaced it with the Clean Air Act and Clean Water Act. They claim this rule is in the Constitution's "structure" despite being nowhere in its text.

Recent Supreme Court precedent contradicts them

In Hencely v. Fluor Corp. (2026), the Supreme Court said there is no preemption "in vacuo," meaning without a constitutional text or federal statute. The oil companies cite neither.

“there is no federal pre-emption in vacuo”

Oil companies have a policy argument

Setting aside the legal flaws, oil companies make a reasonable policy point: determining which company caused specific climate harms is difficult, and state suits create diplomatic complications with foreign actors.

But Congress should decide, not courts

These policy arguments belong in Congress, not the Supreme Court. Congress could pass a law creating a federal process for climate compensation while preventing state suits, but that requires compromise.

Federal law would require bipartisan work

Passing federal climate legislation would require oil companies to work with Democrats and compromise with voters who want different outcomes. That's harder than asking a Republican Supreme Court to ban state suits.

Oil companies are bypassing democracy

Instead of working through Congress, oil companies are asking the Republican Supreme Court to declare state climate suits unconstitutional. They're so confident they barely articulated a legal argument.

The test of judicial consistency

Suncor will reveal how far the Supreme Court will go in ignoring textualism to achieve political goals. The stakes extend beyond climate to any lawsuit challenging state or federal law.

Justices have ignored text before

The Republican justices have already invented doctrines without textual support, like the "major questions doctrine" used to veto federal regulations, and claims that Trump can use presidential powers to commit crimes.

Oil companies are betting on inconsistency

Exxon and Suncor clearly believe the Supreme Court will ignore its textualist principles to rule in their favor. The case will show whether that confidence is justified.