Boulder’s Climate Lawsuit Is a Tax on Every American

By Marc Wheat & Mitchell G. Bahnsen

Saturday, June 20, 2026

 

This fall, the Supreme Court will hear a case that could do more damage to American household budgets — and our economy as a whole — than almost any piece of legislation ever passed by Congress. It doesn’t involve a new spending bill or a tax hike but rather a lawsuit filed by Boulder County, Colo. And if Boulder wins, every American will pay the price.

 

Suncor Energy v. Boulder County is the leading case in a wave of more than 60 climate lawsuits filed by progressive localities against oil and gas companies since 2017. Boulder (the county and the city together) alleges that since ExxonMobil and Suncor Energy produce and sell fossil fuels, they contribute to global warming, the effects of which, it claims, have harmed Boulder’s property and residents. As compensation for these harms, Boulder seeks billions of dollars. In a parallel case, a single Oregon county is demanding more than $50 billion. New York’s Climate Change Superfund Act, signed into law in December 2024, seems to impose $75 billion in assessments on major fossil fuel producers over the next quarter century.

 

The architects of this litigation campaign aren’t shy about what they’re doing. David Bookbinder, a former counsel of record in the Boulder case, described the strategy last year as “a rather convoluted way to achieve the goals of a carbon tax.” This is extremely telling, as proponents of a carbon tax have tried and failed repeatedly to move legislation through Congress. Now they’re trying to achieve through lawsuits what they couldn’t accomplish through legislatures.

 

The problem is that the costs of that end run won’t stay in Boulder but will land on everyone. The oil and natural gas industry contributes more than $2.1 trillion to U.S. GDP annually and supports more than 10 million jobs across the full supply chain, from wellhead through pipeline, refinery, and to the gas station. Oil and gas extraction workers earn a mean annual wage of $114,750, roughly double the national median. When litigation forces companies to set aside massive reserves and contend with reduced credit, they curtail investment in exploration and production, tightening domestic supply and leading to higher prices.

 

This will be another pressure point on affordability for middle America and a serious hardship on the poorest households. Low-income families already spend nearly 20 percent of their income on home energy and transportation fuel — a share more than three times what the average American household pays. A litigation-driven increase in energy prices functions as a regressive tax, severely harming the poor and middle classes as concerns about affordability continue to worsen.

 

Even starker are the national security implications. Only a few years ago, Europe was woefully dependent on Russian natural gas. After the Russian invasion of Ukraine, the EU leaned more heavily on American liquified natural gas exports to keep the lights on, a shift made possible by U.S. energy companies like Houston-based Cheniere Energy. The amount of liability that progressive Boulder proposes would force those companies to price massive litigation costs into every cargo barrel, making American exports less competitive overnight and handing a structural advantage to Russia, Qatar, and Iran, all of which would happily undercut us.

 

The Colorado Supreme Court allowed Boulder’s suit to proceed on the erroneous theory that, because the Clean Air Act doesn’t expressly preempt state tort claims, Boulder is free to use state nuisance law as a regulatory tool. But that reasoning turns on its head more than a century of federalism precedents. The Supreme Court established in Georgia v. Tennessee Copper (1907) that interstate air pollution is a federal question governed by federal law, not state tort law.

 

American Electric Power Co. v. Connecticut (2011) reaffirmed the point that Congress, in passing the Clean Air Act, transferred authority over interstate air emissions from the federal courts to the Environmental Protection Agency, not to the states. State tort law has never played a substantive role in governing interstate air pollution. It cannot assume that role now simply because the effects of the pollution are called “climate change.”

 

The core question before the Supreme Court is not about the legitimacy of climate science, which is a vigorously contested issue. It’s about who decides what federal policy looks like. Does the federal government, accountable to all 50 states and all 330 million Americans, set U.S. energy policy? Or do a few government officials representing a single, very progressive county in Colorado get to impose their preferred policy on the whole nation and damage our economy by imposing huge costs on families and businesses?

 

The Constitution has a clear answer.

 

The Framers built a system in which genuinely national problems — the kind that cross state lines and affect every citizen — are handled by the federal government. They did so precisely because they’d seen what happened under the Articles of Confederation, when states pursued their own economic interests at one another’s expense. James Madison called it one of the chief “Vices of the Political System.” States trespassed on each other’s rights and imposed costs on their neighbors, triggering retaliation and economic chaos. Boulder’s lawsuit is exactly such a dynamic in 21st-century dress, and the Court should shut it down.