Mike Hilgers, a Republican, is the attorney general for Nebraska.
The U.S. Supreme Court in October will hear oral arguments in Suncor Energy v. County Commissioners of Boulder County, a case arising from climate litigation but presenting a much older constitutional question: How far may one state extend its law into the affairs of another?
Boulder County seeks to use Colorado public nuisance law to pursue energy companies for their alleged contribution to global climate change. The Colorado Supreme Court allowed those claims to move forward. On appeal to the U.S. Supreme Court, Suncor and ExxonMobil argue that Boulder’s claims are blocked by the Constitution and federal law, because greenhouse gas emissions transcend state boundaries. Whatever state-law label is attached to Boulder’s claims, it is certainly true that the conduct and alleged harms are not confined to Colorado, and any court-ordered solution will be felt in my state of Nebraska and beyond.
That makes Suncor a case that every American should be following. Our founders understood sovereign states to have no right to interfere in the government of another. In Chief Justice John Marshall’s framing in 1818’s United States v. Bevans, “the jurisdiction of a state is co-extensive with its territory.” In other words, states have authority only up to the edge of their borders and not beyond. But the Colorado Supreme Court permitted Boulder’s suit to proceed on a legal theory that could extend to emissions produced anywhere in the world. As Colorado Supreme Court Justice Carlos Samour Jr. wrote in dissent, the decision gives Boulder “the green light to act as its own republic.”
Others are following Colorado’s misguided lead. More than 30 climate-liability lawsuits have been filed by states, counties and cities — including California, Delaware, Hawaii, Minnesota and New York. Each seeks remedies for alleged local harms stemming from global emissions, based on a theory that attempts to establish a causal link between local weather events and the actions of specific companies. Today, the defendants are energy producers. But should the plaintiffs succeed, suits against utilities, agriculture, manufacturing, transportation and any industry that can be linked to carbon emissions could follow. Just look at New York, which has already sued the world’s largest beef producer over the company’s climate pledges.
And the problems aren’t limited to lawsuits, either. New York and Vermont have enacted legislation that raises the same extraterritorial concerns. They seek to impose billions of dollars of retroactive liability on out-of-state energy producers for alleged climate change, just like Boulder has sought through litigation. Whether this overreach is pursued through courts or state legislatures, the injury inflicted on the federalist system is the same.
That’s why Nebraska joined more than two dozen states in an amicus brief urging the U.S. Supreme Court to reverse the Colorado decision in Suncor. These cases threaten Nebraska’s sovereignty and the structure of our constitutional republic.
Nebraska has seen this problem before. In recent years, my office fought California’s effort to essentially dictate which trucks could be made available to Nebraska farmers and businesses. California’s Advanced Clean Fleets rule compelled trucking companies to retire gas-powered trucks and transition to electric ones, and it applied to any fleet operating in California regardless of where it was headquartered. California coupled that rule with the so-called Clean Truck Partnership, an agreement between state regulators and the nation’s leading truck manufacturers that would have required manufacturers to build all trucks around California’s extreme emissions standards. California set things up so that choices made in Sacramento would determine which trucks could be sold in Nebraska.
We challenged that effort and prevailed. Nebraska filed an antitrust suit against the manufacturers, led a 24-state coalition opposing a federal waiver authorizing California’s regulations, and pressed the issue until California repealed its Advanced Clean Fleets rule and the manufacturers abandoned the Clean Truck Partnership. Last year, four of the nation’s largest truck manufacturers acknowledged that California’s rules no longer bind them.
States should not bear the burden of protracted legal battles like this every time another state tries to push its preferences nationwide.
Suncor gives the U.S. Supreme Court an opportunity to reaffirm states’ equal sovereignty. The issue is not whether Colorado may regulate conduct within Colorado or provide remedies for injuries caused there. The issue is whether Colorado may use its tort law to impose liability for worldwide conduct and unlock judicially directed remedies that reach far beyond its borders.
The Constitution does not empower the 50 states to exercise that kind of authority. States are coequal sovereigns, not regulators of one another. The U.S. justices should reverse the Colorado Supreme Court and reinforce the basic tenet of territorial jurisdiction that stretches back to the days before the nation’s founding.
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