Supreme Court must reject Exxon and Suncor preemption bid

By Adele Rutherford · Reporting from Atlanta · October 4, 2026

As the Supreme Court considers Suncor Energy and Exxon Mobil's appeal against Boulder, justices must demand explicit statutory text rather than create implied federal preemption.

Procedure is where power lives

The Supreme Court begins its term on Monday with Suncor Energy v. County Commissioners of Boulder County. The bench will test an old truth. Procedure is where power actually lives. The case asks whether federal law precludes Boulder from pursuing state-law claims against Exxon Mobil and Suncor Energy. Boulder filed its lawsuit in the Boulder County District Court. The complaint alleges that the production and deceptive marketing of fossil fuels by Exxon and Suncor contributed to climate change. That conduct allegedly resulted in extreme heat, more frequent wildfires, and ecosystem damage. The district court denied a request by Exxon and Suncor to dismiss the case on preemption grounds. The Colorado Supreme Court sided with the city and county of Boulder. Now the high court considers whether federal law precludes Boulder's state-law claims. It also weighs whether it has jurisdiction to review that decision. Eight justices will participate in the arguments. Justice Samuel Alito recused himself due to individual holdings in ConocoPhillips and Phillips 66 listed in his financial disclosure. A 4-4 split in the Supreme Court would leave the Colorado Supreme Court's decision standing. The court's answer, expected by summer, will shape every state court docket from coast to coast.

The phantom preemption argument from big oil

The oil companies and their allies are asking the judiciary to write a rule that Congress never passed. Exxon and Suncor argue that the Constitution and the Clean Air Act preclude claims regarding interstate greenhouse-gas emissions. They warn that the litigation would authorize all fifty states, municipalities, and individuals to seek local court rulings. That would establish countless, conflicting climate policies for the nation. Michael Williams, solicitor general of West Virginia, supports the energy firms alongside the Trump administration and twenty-six states. He told the court that a national problem requires a national solution. He conceded that states can regulate sources within their own borders. But he argued they cannot make emitters pay money for emissions anywhere in the world. The Washington Post reported that the case could bankrupt major oil companies. That outcome follows if justices do not close the floodgates. Jonathan Adler, a law professor at William & Mary, spoke to CBS News. He noted that the foreign-affairs argument lets the executive branch preempt litigation simply by claiming a desire to negotiate in that space. That cannot be the law. As Boulder lawyers told the justices, nothing implicit in the Constitution bars the suit. Local costs incurred from tortious conduct remain fair game for state courts.

Requiring a textual hook for state authority

The energy companies want the justices to manufacture a shield out of thin air. They invoke the Virginia Uranium Mining Ban parallel. In that case, the court rejected the argument that a general federal interest in nuclear energy preempts state police power to ban mining. It required instead a specific textual hook in federal law to displace state authority. Hencely v. Military Contractor, a 2026 ruling, involved a military contractor's actions in a war zone. The court held that federal preemption cannot exist in vacuo without explicit constitutional or statutory text. Federal common law and statutory frameworks do not contain the explicit displacement oil companies need. Jonathan Adler correctly observed that Congress holds the proper tools. If lawmakers believe activists are making energy less available, the legislature can address it. That is a job for the legislature, not a job for the courts.

A fair share of local costs

The petitioner oil companies are wrong on the law and wrong on the process. They are wrong to ask the judiciary to bail them out of accountability. The Supreme Court must not kill state tort suits based on hazy fears of foreign-affairs friction. Doing so hands future administrations a blank check to wipe out disfavored state litigation with a wave of a pen. Boulder is not asking the courts to solve global climate change. It merely asks that corporations bear their fair share of local costs incurred in part because of deceptive marketing. Avoiding liability does not require reducing emissions at all. It requires telling the truth so the public can make informed consumption decisions free of distortion. A rule that only works while your preferred economic actors hold power was never a rule at all. The justices must hold the line. They must reject the oil companies' implied preemption arguments and let the state courts proceed.

Supreme Court must reject Exxon and Suncor preemption bid

Procedure is where power lives

The phantom preemption argument from big oil

Requiring a textual hook for state authority

A fair share of local costs

Sources