Photo courtesy of the City of Carmel, Indiana Government, Facebook
During the spring 2026 semester, I taught Climate Change Law and Policy at the Indiana University McKinney School of Law. The last time I taught the class was in 2021 before I joined the Biden Administration. Boy, how times have changed! Because of actions by the current Administration attempting to dismantle EPA’s regulatory authority over greenhouse gases under the Clean Air Act, including most notably the rescission of the Endangerment Finding, a course that in 2021 required six hours on EPA climate programs required less than half that amount in 2026. I expect I will have more work to do in future years, depending on how the legal challenges to these actions are decided.
To prepare for the course, I found myself having to learn new material (imagine!). In particular, I focused on the citizen climate suits, especially Juliana v. United States [see Juliana v. United States, 947 F.3d 1159, 1171 (9th Cir. 2020)], and the numerous efforts by state and local governments to seek damages from the fossil fuel industry through litigation or state legislation.
My students and I were inspired by the energy and creativity of the States of Hawaii, Connecticut, Vermont, and New York, the cities of New York and Honolulu, and others, struggling to plan and pay for infrastructure and other solutions to protect their residents, institutions, and businesses from flooding, wildfires, sea level rise, extreme heat, and extreme weather—the increasing impacts of our changing climate. But we were also worn down by their continuous court losses. Industry defendants have successfully argued that the Compact Clause, federal pre-emption, the Dormant Commerce Clause, political questions, and the Supremacy Clause preclude states and local governments from bringing tort claims such as nuisance, trespass, or misrepresentation, or constitutional claims under the public trust doctrine. While increasingly acknowledging the undeniability of harm from climate change caused by emissions of greenhouse gases, courts have mostly thrown up their hands at finding a path to give plaintiffs their day in court.
In 2018, the city of Boulder and Boulder County sued various oil and gas companies under state tort law alleging that the companies deceived consumers and the public about the climate harms of their products, seeking damages under state common law. After a five-year battle over whether the case should be removed to federal court, the 10th Circuit decided it should not, Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022), and the Supreme Court denied certiorari. 143 S. Ct. 1795 (2023). The state court denied defendants’ motion to dismiss on federal preemption grounds and the Colorado Supreme Court affirmed. 2025 CO 21. This time, the US Supreme Court decided to hear the case, which will be argued on October 5, 2026.
In addition to jurisdictional questions, the substantive question presented is whether federal law precludes a local government from seeking damages under state tort law for misleading the public about the damaging effects of greenhouse gas emissions on the global climate. Dozens of briefs have been filed by amici curiae on both sides, all available at the Supreme Court Docket. Despite the increasingly serious real-world impacts on communities across America, dealing meaningfully with climate change has proven to be impossible for the legislative branch and very challenging for the administrative branch given election cycles, litigation, and the overall political toxicity of the issue. With Boulder v Suncor, the US Supreme Court has the opportunity to decide whether those who are suffering injury and monetary loss have the ability to go to court to prove their case and seek damages.
