On the first day of the October 2026 Term, the court will hear Suncorp Energy, Inc. v. County Commissioners of Boulder County, which poses the issue of whether suits under state law against energy companies for their role in causing climate change are preempted, or superseded, by federal law. Preemption issues constantly come to the Supreme Court. Yet it is difficult to find a pattern in the court’s handling of them. Some seem to be explainable on ideological grounds, but others don’t.
For example, last term, the court decided two major preemption cases. The issue in Monsanto Co. v. Durnell was whether a federal statute, the Federal Insecticide, Fungicide, and Rodenticide Act, expressly preempts state tort liability based on a failure-to-warn theory. The Supreme Court, in a 7-2 decision with the majority opinion written by Justice Brett Kavanaugh, found that the federal statute expressly preempted such state tort liability. Justice Ketanji Brown Jackson dissented, joined by Justice Neil Gorsuch.
In Watson v. Republican National Committee, the court ruled 5-4 that the federal law which specifies the date of the federal election does not preempt states from counting absentee ballots received within five days of the election. Justice Amy Coney Barrett wrote the opinion for the court and declared: “In sum, the election-day statutes require the electorate’s choice to be made on election day. That occurs so long as election day is the deadline for individuals to vote—as it is in Mississippi. But the election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.” Justice Samuel Alito wrote the dissenting opinion, joined by Justices Clarence Thomas, Gorsuch, and, in part, Kavanaugh, and would have found preemption.
The law of preemption
Article VI of the Constitution contains the supremacy clause, which provides that the Constitution, and laws and treaties made pursuant to it, is the supreme law of the land. In other words, if there is a conflict between federal and state law, the federal law controls and the state law is invalidated. As the Supreme Court has declared: “nder the Supremacy Clause, from which our pre-emption doctrine is derived, ‘any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.’”
Traditionally, the Supreme Court has identified two major situations where preemption occurs. One is where a federal law expressly preempts state or local law. The other is where preemption is implied by a clear congressional intent to preempt state or local law. To make things even more complicated, there are three types of implied preemption: conflict preemption, where the federal and state laws are mutually exclusive; objectives (or obstacle) preemption, where the state or local law interferes with achieving a federal objective; and field preemption, where Congress has evidenced a clear intent to have federal law wholly “occupy” that “area of law.”
Suncorp Energy, Inc. v. County Commissioners of Boulder County
The plaintiffs, the county commissioners of Boulder County and the city of Boulder, sued Exxon Mobil Corporation and three Suncor Energy entities in Colorado state court, seeking damages for the role that the companies’ production, promotion, refining, marketing, and sale of fossil fuels allegedly played in exacerbating climate change and thereby harming Boulder’s property and residents. Boulder brought claims for public nuisance, private nuisance, trespass, unjust enrichment, and civil conspiracy, alleging that the companies knowingly contributed to climate change while misleading the public about the dangers of their products. Boulder further alleges that it has incurred and will incur millions of dollars in costs to protect against climate impacts such as wildfires, flooding, and drought. Boulder does not seek to enjoin any oil and gas operations or sales, and it does not seek to enforce emissions controls of any kind.
The Colorado Supreme Court ruled that Boulder’s claims are not preempted by federal law and remanded the case, expressing no opinion on the ultimate viability of the merits. The court explained that the federal Clean Air Act contained no express preemption provision. Also, the state supreme court found that there was no field preemption because the act does not occupy the field of emissions regulation and, in fact, contains two savings clauses preserving stricter state standards and common-law rights. And, according to the Colorado Supreme Court, there was no conflict preemption because compliance with both the act and state tort law is possible and Boulder’s damages claims, which do not seek to regulate emissions, pose no obstacle to the act’s purposes.
This is one of many civil cases that have been brought against major oil companies for their role in contributing to climate change. But it is the first to make it to the Supreme Court.
Applying preemption doctrine
As I read the briefs in Suncorp Energy, Inc., I was trying to understand how it fit into the court’s framework for preemption cases. This is not an express preemption case; unlike Monsanto, there is no provision in the Clean Air Act or any other statute that explicitly preempts state regulation or state tort liability in this area.
As to implied preemption, there is no conflict between federal law and state law; there is no reason that they could not be both followed. In fact, as the Colorado Supreme Court noted, the Clean Air Act has provisions that protect the continued authority of states to regulate to protect air quality. Nor is there any basis for concluding that Congress meant for there to be field preemption.
One argument on the other side is that allowing states to regulate greenhouse gas emissions is inconsistent with the objectives of federal law. But as the county commissioners of Boulder County and the city of Boulder argue in their brief, the EPA recently has denied that it has the authority to regulate greenhouse gas emissions. As they say: There is no explanation “how the Court can hold that the Clean Air Act preempts claims indirectly relating to greenhouse-gas emissions when EPA maintains that the Act does not allow it to directly regulate some (perhaps any) greenhouse-gas emissions.”
Thus, this is a preemption case that does not fit into the categories of preemption which the court long has articulated. The energy companies nevertheless make three primary arguments for finding preemption.
First, they argue that the Constitution denies to the states the ability to regulate pollution because of its interstate nature. They write: “[T]he structure of our constitutional system continues to foreclose resort to state law unless Congress affirmatively authorizes its application. States have no residual or inherent power under our Constitution to regulate in this area, and no federal law authorizes state common-law claims for harms caused by diffuse interstate and international emissions.”
This is a stunning claim given that the 10th Amendment always has been understood to allow states to do anything that is not forbidden by the Constitution. If the court accepts this argument, the implications could be enormous in denying states the ability to regulate activity with interstate effects. This conceivably could be taken to preempt any state environmental laws. The energy companies point to Supreme Court cases creating federal common law in this area and say that the “Court has long held that interstate pollution is an inherently federal area in which state law cannot govern.” But the fact that federal law, even federal common law, exists doesn’t answer the question of whether there is preemption of state law.
Second, the energy companies argue that the Clean Air Act preempts state tort liability. They say that since the Constitution preempts state regulation, the Clean Air Act would need to expressly authorize it. The energy companies write: “If state law could not be applied before the enactment of the Clean Air Act, it thus follows that state law remains inapplicable unless the Clean Air Act affirmatively authorizes it. Both before and after the Clean Air Act’s enactment, the Constitution rendered state law inapplicable to interstate air-pollution disputes.” This argument seeks to shift the presumption which is usually against presumption in favor of it. The argument seems to be that states can regulate, but only with express permission from Congress.
Finally, the energy companies argue that inevitably there would be foreign policy effects to allowing state tort liability and it therefore should be deemed preempted on that basis. They write: The other sides’ “claims fail for the additional reason that, by seeking redress for the effects of international emissions, they infringe on the federal government’s exclusive authority over foreign affairs.”
This is an unusual, though not unheard of, form of preemption: implied dormant foreign affairs preemption. In Crosby v. National Foreign Trade Council, the court considered a Massachusetts law that prohibited the state and its agencies from purchasing goods or services from companies that do business with Burma (Myanmar). The state adopted this law because of human rights violations in that nation. The Supreme Court unanimously found that the state law was preempted by federal law. Justice David Souter, writing for the court, explained that Congress had enacted a sanctions law against Burma. He found that this preempted states from imposing their own sanctions.
The court also found preemption because of potential foreign policy issues in American Insurance Assn. v. Garamendi. California’s Holocaust Victim Insurance Relief Act required any insurer that did business in California and that sold insurance policies in Europe that were in effect between 1920 and 1945 to disclose certain information about those policies to the state insurance commissioner or risk losing its license. The state was concerned that insurance companies were “stone-walling” and refusing to disclose information about their Holocaust-era policies. The law applied only to insurance companies doing business in California and only required disclosure of information. Nonetheless, in a 5-to-4 decision, the court found the California law preempted based on the implied dormant foreign affairs power of the president.
But accepting such preemption in Suncor would be a substantial expansion of this doctrine. For example, if the court accepts the argument here, would that limit states creating tort liability whenever there are international consequences, including simply the presence of a multinational corporation?
Conclusion
Although the court deals with preemption cases every term, Suncorp Energy, Inc. v. County Commissioners of Boulder County is quite different because it does not fit into the usual categories of preemption and because it involves unusual claims of preemption based on the Constitution and foreign policy. And to make matters even more fraught, it arises in the context of climate change – which poses an existential threat to the planet – but at a moment when it is an issue that has become intensely political.
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[ H/T SCOTUSblog ]
