The Court opens its term with Boulder's climate suit against Big Oil. Alito sits out, and a 4–4 tie would let the case go on
The Supreme Court began its 2026–27 term Monday by hearing Suncor Energy (U.S.A.) v. Commissioners of Boulder County, No. 25-170. Boulder County and the City of Boulder sued Suncor and ExxonMobil under Colorado law, seeking money for the local costs of a warming climate and alleging the companies misled the public about fossil-fuel risks; Colorado's Supreme Court allowed the case to proceed. The companies, supported by the federal government, argue that federal law, including the Clean Air Act and federal common law, displaces state claims over global emissions. Justice Alito did not participate; the Court gave no reason. Eight justices heard nearly two hours of argument. Justice Thomas raised whether the Court has jurisdiction over a state case without a final judgment, a point Justices Kagan, Sotomayor and Jackson returned to. Justice Barrett said, 'Everybody agrees that state tort law is a form of regulation'; Chief Justice Roberts asked whether the suit was 'an attempt to evade' the Court's emissions precedents; Justice Kavanaugh warned such suits could 'bankrupt' defendants; Justice Kagan compared it to tobacco and opioid litigation. Commentators read the liberal justices as leaning toward Boulder and Roberts and Kavanaugh toward the companies. A 4–4 split would affirm Colorado's ruling without precedent; the Court could also dismiss the case as improvidently granted.
Dozens of states and cities have filed similar suits. If the Court says federal law closes the door, those cases end and climate liability goes back to Congress and the EPA. If Boulder survives, even by a tie, the cases move toward discovery and trial, where the companies' internal records become the main event. Alito's absence changes the arithmetic: the companies need five of eight, not five of nine.
Not on your gas bill this year. But the theory being tested, that a product's maker can owe a town for long-run harm, is the same one used against tobacco and opioid makers, and settlements in those cases ran to billions of dollars.
Climate change is a global problem driven by emissions everywhere. Letting one county's jury set a price on oil would give fifty states fifty energy policies; that is what federal law exists to prevent.
Boulder is not regulating emissions; it is asking companies to pay for a cost they allegedly knew about and hid. State courts have handled deception claims against national industries for decades.
Count to five. Without Alito the companies need five of the remaining eight, and Monday's questions suggest they have two firmly. Barrett's line about tort law as regulation is the one to reread when the opinion comes: if she means it as a premise, the companies are close. If she was testing it, a tie or a dismissal is live, and either would send dozens of cases back to state courts. Watch also for the jurisdiction question Thomas raised; it is the Court's quiet exit.
DailyDrop U.S. No. 1 · October 5, 2026