Numerous cities and counties around the United States, including Boulder, Colorado, are attempting to address the effects of “climate change” on their communities by suing fossil fuel producers for damages under state tort laws. Boulder’s lawsuit against the Exxon-Mobil Corporation, along with one other oil company, has reached the United States Supreme Court. There, the oil companies complain, in part, that the state tort laws the cities rely on for their lawsuit violate the United States Constitution. See Suncor Energy v. Commissioners of Boulder County, U.S. Sup.Ct. docket number 25-170.[1]
In essence, the oil companies argue that the Constitution implicitly regards each state’s sovereignty as equal to the sovereignty of every other state, and that that understanding of the Constitution prohibits any one state, like Colorado, from imposing its own laws on any other state to try to regulate the nationwide or worldwide problems of “climate change.” But the federal Constitution contains no such prohibition.
The United States Constitution is a legal instrument commissioned by “the people of the United States”[2] in the exercise of their basic right to form a government that derives its “just powers from the consent of the governed.”[3] The attribution of intents and purposes that are not written into that instrument by “the people” who commissioned it, or that are not clearly implied by the historical circumstances of their writing, destroys the very character of the United States Constitution. The Constitution of the United States has neither the writing, nor the historical circumstances of its writing, to justify the oil companies’ arguments in these kinds of cases against “climate change.” To preserve the integrity of the United States Constitution, the oil companies’ Constitutional arguments should be rejected.
That is not to say, however, that state governments have a free hand in formulating tort lawsuits for damages. The Constitution authorizes the Congress created by that instrument to prevent the enforcement of state laws that are contrary to the federal laws the Congress has enacted. The “Supremacy Clause” of that document reads as follows:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const., Article VI (second sentence)
With respect to climate change caused by man-made air pollution, Congress has enacted the Clean Air Act pursuant to the Commerce Clause, and arguably pursuant to the Necessary and Proper Clause of Article I, Section 8 of the United States Constitution. That Act authorizes the federal Environmental Protection Agency to set enforceable standards for man-made air pollution across the entire United States, and to enforce those standards against actual air polluters located anywhere in the United States. See The Clean Air Act, 42 U.S.C. §§ 7401 et.seq. If and when a state attempts to enforce its own air pollution standards by its own means and methods of enforcement against out-of-state polluters, the state collides with the regulatory provisions of the Clean Air Act. Under those circumstances, the state’s individual laws should be held to be pre-empted by the Clean Air Act, as a matter of pure interpretation of the laws not requiring a jury. The Court should therefore dismiss Boulder, Colorado’s lawsuit for damages against Exxon-Mobil and its fellow oil company defendant in the lawsuit.
/s/ Dan D. Rhea
[1] The case was argued by counsel for the parties, and by counsel for the federal government on October 5, 2026. Audio recordings and written transcripts of the arguments are available on the Court’s web page at www.supremecourt.gov.
[2] U.S. Const., Preamble
[3] U.S. Declaration of Independence
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