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The Supreme Court is about to open its new term with one of the biggest climate cases on the calendar.
Now the bench will be down one of its most reliable conservative votes.
Justice Samuel Alito has withdrawn from Suncor Energy v. County Commissioners of Boulder County just one week before oral arguments. The Court gave no explanation for the last-minute move.
The first public notice was a one-sentence letter from the clerk of the Court:
The Supreme Court of the United States docket confirms that the case is set for argument Monday, October 5, the first day of the new term. It also records Monday’s letter informing the parties that Alito “will not continue to participate in this case.”
The case asks whether Boulder County and the City of Boulder can use Colorado tort law to seek damages from Suncor Energy and ExxonMobil for alleged climate-related harms tied to global fossil-fuel production and use.
The energy companies argue that interstate and international emissions are governed by federal law, not a patchwork of state-court lawsuits. The justices also directed the parties to argue whether the Supreme Court has statutory and constitutional jurisdiction to hear the dispute at all.
The Trump administration is backing the companies’ effort to stop the lawsuit. The solicitor general was granted time to participate in the October 5 argument.
Reuters Legal summarized the immediate stakes:
The dispute reaches far beyond one Colorado lawsuit. Similar climate cases have been filed around the country, and the outcome could shape whether local governments can keep using state-law claims to pursue enormous damages from energy producers over a worldwide issue.
Boulder and Boulder County filed their case in 2018. They accuse the companies of misleading the public about fossil fuels and seek money for alleged harms including floods, wildfires and other climate effects.
Suncor and ExxonMobil say the lawsuit is an attempt to regulate global emissions through Colorado courts. Their position is that federal law must control when the alleged conduct and emissions cross state and national borders.
That distinction matters far beyond two oil companies. If every city, county and blue-state attorney can impose its own liability theory on a global industry, energy policy stops being national policy and becomes a courtroom lottery.
The Daily Caller reports that Alito owns stock in several oil and gas companies, including ConocoPhillips and Phillips 66, but not Suncor or ExxonMobil. He had previously resisted demands from environmental activists to step aside and was reported to have been advised that recusal was not required because he had no financial interest in either party.
The report also notes that Alito stepped aside when the same litigation reached the Supreme Court at an earlier stage in 2023. A Court spokesperson later described that recusal as inadvertent, making Monday’s deliberate withdrawal a fresh turn rather than a continuation of the earlier posture.
Roughly 20 friend-of-the-court briefs have been filed. Environmental groups and Democrat-led governments are backing Boulder, while business groups, conservative legal organizations and free-speech advocates warn that liability tied partly to public statements and political advocacy could reach far beyond ordinary nuisance law.
Monday’s letter did not say whether those holdings caused the change. It did not offer any reason at all.
That silence makes the timing even more striking. The briefing is finished, the argument is days away and both sides prepared for a nine-member Court.
The announcement landed only seven days before argument:
An eight-member Court raises the possibility of a 4-4 split. If that happens after a decision on the merits, the Colorado Supreme Court’s judgment would ordinarily remain in place without creating a nationwide Supreme Court precedent.
That could leave the broader fight unsettled while allowing Boulder’s case to move forward.
Reason’s Volokh Conspiracy notes that Alito has been among the Court’s more preemption-friendly justices and was widely viewed as one of the votes most likely to favor the energy companies’ argument. The analysis points to his dissents in two recent federal-preemption cases as evidence of how he approaches conflicts between federal authority and state-law claims.
It also focuses on the timing. Calls for Alito to withdraw were made months ago and had been rejected, yet the change arrived only after the briefing was complete and the argument was one week away.
The likely explanation, according to the analysis, is Alito’s ownership of individual energy-company stocks, including shares in companies facing similar climate suits even though they are not parties in this case. That makes the withdrawal understandable as a conflict precaution while leaving the late reversal unexplained.
Losing Alito could therefore matter even if no one can predict the final alignment before oral argument. It removes one justice with a record favorable to broad federal-preemption arguments and leaves both sides recalculating their path to five votes.
Five or more justices could still agree on a result. They could resolve the jurisdiction question without reaching the full preemption fight.
The justices could also take another procedural route.
Alito’s exit changes the math before the first question is asked.
The Supreme Court will hear the case October 5. With billions of dollars and a national wave of climate litigation hanging in the balance, all eyes will now be on the eight justices who remain.
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[ H/T WLT Report ]
