When the Marshall Fire raged through the suburbs of Boulder, Colorado in the winter of 2021, about 37,500 people were forced to flee their homes and the fast-moving blaze. “I felt abject terror,” Boulder County Commissioner Matt Jones told me days later. Jones was lucky his house remained intact — more than a thousand others were burned down in what became the costliest wildfire in state history.
The fire was a particularly devastating example of just some of the climate costs the city and county of Boulder are aiming to recover in a lawsuit filed in 2018 against ExxonMobil and Suncor Energy. The lawsuit argues that the oil companies deceived the public about the risks of burning fossil fuels and should help pay for the resulting local damages.
On October 5, the U.S. Supreme Court will consider the oil companies’ appeal of a Colorado Supreme Court ruling that allowed the case to move toward trial. The outcome could have broad implications for other states and communities trying to recoup climate costs, and even for other industries facing liability for harms to the public, depending on what the justices decide.
A complex network of front groups, industry allies, and members of the Trump administration have sprung up in the lead-up to these arguments to block these cases. Last week in a conversation with Covering Climate Now, I spoke with experts and journalists to cut through the noise for their key takeaways about Boulder’s case.
Here are some of those insights from the conversation with Ishan Thakore, a climate and environment reporter at Colorado Public Radio; Lesley Clark, a climate law reporter at Politico; and Alejandro Camacho, an environmental law scholar and professor at the UCLA School of Law.
A ruling could determine who pays for Boulder’s compounding climate costs
Boulder’s case argues that Exxon and Suncor “misrepresented the truth about climate change and the negative impacts of fossil fuel use” for decades, paving the way for more oil and gas operations that fueled more severe and frequent heat waves, wildfires, droughts, and floods. Boulder argues the oil companies should shoulder some of the local costs of adapting to and recovering from those disasters.
The state experienced one of its worst winter droughts this year, followed by a record heat wave in March, which led to a “supply crunch” for available drinking water, said Thakore of Colorado Public Radio, who lives in Boulder. Colorado has been in a climate-fueled “megadrought” since 2000, but “this year was a real wake-up call for a lot of people,” he said. Another year of drought in Colorado would likely lead to “devastating consequences,” a recent report by Colorado River experts warned.
Primed by drought and warmer temperatures, disastrous wildfires have torn through the state since the Marshall Fire. Boulder City firefighters were deployed this summer to fight wildfires across the West, and the county has its own program to help its residents prevent wildfire damage. Residents are paying for the program through a sales tax approved in 2022.
“That costs money — it’s going to keep costing money, and those costs are going to go up as more homes require it,” Thakore said.
The lawsuit seeks compensation from oil companies — including for wildfire prevention and recovery, repairing flood damage, helping residents and farmers respond to drought, medical treatment resulting from extreme heat events, and upgrading infrastructure to manage future storms — so Boulder communities don’t have to shoulder these costs on their own.
The Trump administration has complicated its own arguments against Boulder’s case
The Trump administration may have flummoxed the oil companies’ main argument against the Boulder suit.
Exxon and Suncor argue that the case is a covert attempt to regulate greenhouse gas emissions through the courts, which is the purview of the federal government under the Clean Air Act. This is one of the two questions the Supreme Court justices will consider on October 5 — whether Boulder’s case is preempted by federal law, and whether the Supreme Court actually has the authority to rule on the case at this point in time.
Boulder specifies that its case has nothing to do with greenhouse emissions regulation. As UCLA’s Camacho explained on the panel, “they’re not looking for an injunction, they’re not looking for an emissions cap, they’re not looking for an order to stop producing or selling anything anywhere.”
The Trump administration, which will be arguing in support of the oil companies on October 5, may have weakened Exxon and Suncor’s argument by drastically shrinking the EPA’s authority to regulate emissions under the Clean Air Act. Earlier this month, the EPA rolled back limits on climate-warming emissions from power plants after rescinding the Endangerment Finding, the federal government conclusion that greenhouse gases pose a danger and must be regulated under federal law.
“The companies need the Clean Air Act to be everywhere in order for [their] case to be successful, and the administration has declared that it is nowhere,” Camacho said.
Without EPA regulations on the pollution that causes climate change, and without the ability to recover the resulting damages in state court, the administration is arguing that American communities will have to suffer the unchecked consequences of fossil fuel operations with “no remedy” for addressing the costs, he added.
A ruling for oil companies could make it more difficult to hold other corporate giants accountable in court
A ruling from the Supreme Court could have legal consequences in the United States beyond just climate lawsuits, some legal experts say.
If the justices rule that state courts can’t address in-state harms from companies or products that are already subject to federal regulations, that decision could implicate a far greater reach of cases. Camacho said it could impact contaminated groundwater cases and PFAS litigation, for example. “Every argument the companies are making is written at a level of generality that reaches past climate,” he said.
The oil companies and their allies are also arguing that a state court can’t hold multinational companies accountable for harm that is global in nature under “the structure of our constitutional system,” but Ian Millhiser, a senior correspondent at Vox covering the Supreme Court and the constitution, writes they don’t ground their assertion in any existing constitutional text.
A ruling on that argument could have wide-ranging consequences, too. “Asbestos litigation involves multinational mining and manufacturing companies with products used worldwide,” noted Camacho. “Pharmaceutical injury litigation involves global companies whose marketing decisions have international dimensions. The [oil companies] have not offered any kind of principle that would stop [a ruling in Boulder’s case] from reaching these cases as well.”
In a brief to the Supreme Court in support of Boulder’s case, Colorado and 18 other states and the District of Columbia argue that a ruling for the companies would “intrud[e] on state sovereignty” beyond just their ability to address local climate damages, challenging the historic role of state courts in holding major corporations like tobacco and opioid companies accountable for harms to their residents.
The justices have also raised the question of whether they have jurisdiction to rule on the case at all before there has been a final decision on the case’s merits. The court sometimes decides after initially agreeing to hear a case to drop it at the last moment, otherwise known as DIGs, or “dismissed as improvidently granted.” But "it's very unusual for that to happen,” said Clark, of Politico.
The outcome of a Supreme Court ruling in Boulder’s case could set the course for other state and local governments trying to put oil companies on trial for their own climate costs, with consequences for communities now competing for increasingly politicized federal funds for disaster relief and recovery.
Years after the Marshall Fire, survivors are still trying to rebuild their lives after their homes and entire neighborhoods were destroyed. If the justices decide to stop Boulder’s case and others from moving forward, Camacho said, then “the public, frankly, all of us end up footing the bill before the case can even be heard.”
P.S.: “The public should know” more about Alito’s last-minute recusal
On Monday, the Supreme Court notified parties in Boulder’s case that Justice Samuel Alito would sit out from hearing arguments next week. His eleventh-hour recusal comes after Alito rejected numerous calls from researchers and advocates to recuse from the arguments because of his significant financial investments in oil companies, including ConocoPhillips and Phillips66 — defendants in similar cases that could be affected by a ruling in Boulder’s.
The court gave only a one-sentence letter notifying parties of Alito’s recusal this week, with no explanation of why he changed course.
Back in May, a court spokeswoman insisted that “Justice Alito does not have a financial interest in any party” in Boulder’s case. Alito had previously recused himself from hearing oil companies’ petition in Boulder’s same case in 2023. Phillips66 and ConocoPhillips warned investors for years in disclosures and briefs that climate lawsuits were a financial risk, a recent report by Consumer Watchdog found.
Lisa Graves, a former senior Justice Department official, executive director of watchdog group True North Research, and co-founder of the nonprofit Court Accountability, said Alito’s recusal should have happened a long time ago. In May, True North Research and other watchdog groups asked the Senate Judiciary Committee to investigate whether Alito was violating federal law. Graves pointed out that Alito already participated in the decision to take up oil companies’ latest petition for the justices to intervene in Boulder’s case in February, and could have been one of the four votes ensuring the case was heard.
The court does not have a legally binding ethics code, nor does it require justices to reveal the basis for deciding whether to recuse or not. “The public should know, in my view,” Graves said.
