America could be in store for another First Amendment battle as questions about energy companies’ free speech rights emerge in a high-stakes Colorado climate case. [some emphasis, links added]
Of the roughly 20 “friend of the court” briefs filed in Boulder County’s climate lawsuit against Suncor Energy and ExxonMobil, free speech advocacy groups Protect the First Foundation and Neutral Principles argue the case raises First Amendment concerns, as it potentially imposes liability on fossil fuel companies for protected speech and efforts to influence public policy.
The lawsuit dates back to 2018, with Boulder County and the City of Boulder seeking to hold the companies financially responsible under Colorado tort law for alleged climate-related harms.
The energy giants argue Colorado cannot apply state law to claims involving greenhouse gas emissions that cross state and national borders, claiming such matters fall under federal law.
“This litigation raises serious First Amendment issues insofar as it seeks to hold companies liable for statements about contested matters of public import,” Jonathan H. Adler, Tazewell Taylor Professor of Law at William & Mary Law School, explained to the Daily Caller News Foundation.
Adler has filed an amicus brief in the case.
The Supreme Court set a hearing date in October after the companies appealed a 2025 ruling from Colorado’s high court.
‘Protected By The First Amendment’
The First Amendment question is distinct from the central issue before the Supreme Court.
Suncor and ExxonMobil argue that federal law preempts state-law claims regarding global greenhouse gas emissions, even as the First Amendment-focused briefs contend that such lawsuits raise additional constitutional concerns if liability is based on companies’ public statements or political advocacy.
Protect the First Foundation alleges that “respondents seek to punish petitioners because of who they are.” Both organizations argued that parties must remain free to express their views and advocate for government action, citing the Noerr-Pennington doctrine, which protects private entities’ ability to petition the government.
Protect the First Foundation did not respond to the DCNF’s request for comment.
The amici seek to extend that principle beyond traditional antitrust disputes. They argue that fossil fuel companies do not lose First Amendment protection simply because their advocacy concerns climate and energy policy.
If a company urged lawmakers to reject an emissions restriction, publicly opposed an international climate agreement, or advocated for policies favorable to fossil fuels, the groups contend that such activities cannot form the basis for imposing liability.
“The same is true of petitioning activity related to climate change, or speech to the public arguing for or against adopting particular laws (like the Kyoto Protocol),” Erik S. Jaffe, legal counsel from Neutral Principles, said.
“Because the activity is protected by the First Amendment, and the final decision is made by the government or by voters, you cannot premise liability on such protected speech or petitioning activity. Which is exactly what plaintiffs in these climate cases are trying to do to the defendants.”
“Our society thrives on public debate over topics that affect us all. There is a disagreement about what to do in response to climate change as a matter of public policy, setting aside scientific debate about climate change itself,” O.H. Skinner, executive director at Alliance For Consumers, told DCNF. Skinner has filed an amicus brief in support of Suncor.
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