Earlier this week, Boulder County Commissioners filed their response to energy producers’ petition urging the U.S. Supreme Court to review Boulder’s climate case. [emphasis, links added]
In doing so, they asked the highest Court to deny review, while contradicting arguments that their attorneys have made for years.
Boulder claims the case involves only local harms—despite its own legal team, including David Bookbinder, having long made clear that the lawsuit’s goals extend far outside of Colorado.
By submitting their response, Boulder inadvertently showcased why this case is the perfect opportunity for the Supreme Court to weigh in on climate litigation.
Their brief offers little new information, rephrasing the same weak arguments in other climate cases – many of which have been rejected by courts across the country.
Notably, Boulder had to be forced by the Court to respond at all, raising the question: if their arguments are so compelling, why did SCOTUS need to order them to file a reply?
Ulterior Motives Exposed
Like other climate cases, Boulder’s case is sold under the guise of corporate accountability, when in reality, climate cases are about using states’ legal systems to achieve broader policy goals that have failed at the ballot box or in the legislatures.
Even the plaintiffs’ lawyers cannot conceal the true motives.
During a recent Federalist Society panel, David Bookbinder, who served for years as part of the legal team representing Boulder and San Miguel, acknowledged that climate litigation is not really about accountability at all, calling it an “indirect carbon tax.”
The admission followed remarks from another of Boulder’s outside attorneys, Marco Simons, of EarthRights International, who said a key goal of the litigation is to “raise the price of the products” created by energy companies; hence, they become too expensive to use.
Similarly, in 2021, a Boulder County official characterized the ongoing lawsuit as a means to advancing “systems-level change.”
A Clear Need for National Involvement
One of Boulder’s arguments is that, because SCOTUS declined to hear Honolulu’s climate case earlier this year, “there is no reason for a different result now.”
But the landscape has shifted significantly since that denial – something Boulder itself inadvertently concedes by noting that the federal government has changed its position:
“…the United States’ present brief backtracks on other positions the Government took in Honolulu.”
The courts have shifted as well.
Since Honolulu’s case was allowed to proceed in state court, courts in South Carolina, Pennsylvania, New York, New Jersey, and Puerto Rico have all dismissed similar claims, reinforcing the constitutional limits on using state law to regulate global emissions.
The U.S. Department of Justice recently made clear that the U.S. Supreme Court should step in and proactively file an amicus brief before the Court.
The brief followed DOJ’s lawsuits against Michigan and Hawaii for future climate lawsuits, as well as an executive order in April that highlighted the dangers of coordinated climate lawfare.
DOJ’s filing was reinforced by a broad coalition – 26 state attorneys general, more than 100 members of Congress, think tanks, legal scholars, and more – each urging the Court to intervene. Among them, Professors Richard Epstein (NYU) and John Yoo (UC Berkeley) explained why these claims should not be brought under state law:
“Neither Boulder, Colorado, nor other state and local actors applying state and local common law and statutes can decide climate and energy policy for the entire Nation.”
Taken together, the amicus briefs show overwhelming national interest and a clear consensus that this case warrants review by the Supreme Court.
Notably, while numerous federal voices oppose Boulder’s lawsuit, support within Colorado itself is scarce.
Even the Colorado Supreme Court decision to allow the case to proceed in state court was accompanied by a strong dissenting opinion.
Key state leaders, including former Governor John Hickenlooper and current Governor Jared Polis, did not back the lawsuit. The Denver Post editorial board and former Colorado Attorney General Gale Norton criticized the effort.
Bottom Line
SCOTUS has an opportunity to provide needed guidance and put an end to the litigation campaign’s attempts to shove concealed policymaking through the legal system.
The time is right to put an end to this frivolous climate lawfare.
Top image: Inside the U.S. Supreme Court by Phil Roeder, via Wikimedia Commons, cropped.
Read more at EID Climate
