Former Officials Urge Supreme Court to Hold Energy Companies Accountable for Climate Change Harms
A bipartisan group of former senior U.S. government climate experts has asked the Supreme Court to allow Boulder, Colorado, to hold energy companies accountable for local damage caused by climate change. The officials filed an amicus brief in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, arguing that, in the absence of congressional approval, the current Administration’s withdrawal from climate regulation does not constitute foreign affairs lawmaking sufficient to block Colorado courts from hearing Boulder’s lawsuit. The case reached the Supreme Court after Colorado’s highest court ruled that Boulder’s tort claims could move forward.
The group of bipartisan former senior U.S. government officials is represented by Yale Law School’s Peter Gruber Rule of Law Clinic, Paul D. Phillips ’76 (longtime head of the environmental group at a leading Denver firm), former U.S. Attorney for the District of Colorado Robert C. Troyer, and Paul Hoffman of Schonbrun Seplow Harris Hoffman & Zeldes LLP.
The former officials who signed the brief include senior leaders from the Department of State, the Environmental Protection Agency, the Department of Energy, the Department of Commerce, the Department of the Interior, the National Security Council, and other federal institutions involved in climate policy and international affairs. Their service spans Republican and Democratic administrations and includes officials who shaped American climate policy and represented the United States in global climate diplomacy, among them presidential climate envoys Todd Stern and John Podesta and lead climate negotiator Sue Biniaz.
The energy companies, backed by the Trump Administration, claim that the federal government’s authority over foreign affairs blocks state lawsuits like Boulder’s under a doctrine known as “foreign-affairs preemption.” The former officials disagree. Drawing on their decades of government experience, they explain that federal law can override state law only when the federal government takes binding action, such as through a statute, regulation, or treaty, that conflicts with the state law. Mere policy preferences or disengagement from federal policy cannot displace state law. As the bipartisan group of former officials argues, the Trump Administration has no clear climate policy with which state law could conflict. Instead, the Trump Administration has stepped back from climate policy by withdrawing from international agreements and disclaiming the EPA’s authority to regulate greenhouse-gas emissions. As the brief puts it, the Supreme Court has never recognized “preemption by disengagement”: when the President leaves a “policy vacuum,” states retain their traditional authority under the 10th Amendment to protect their residents and their land.
The brief also warns that the energy companies are asking the Court to expand federal power in an unprecedented way. In earlier climate cases, polluting energy companies argued to the U.S. Supreme Court that the Clean Air Act cut off federal lawsuits over their emissions. Now, to escape Boulder’s suit, they argue the opposite — that emissions are “inherently federal” and that state lawsuits should be cut off too. As the brief explains, accepting the companies’ position would go against longstanding precedent and upend the Constitution’s careful balance between state and federal power.
“Amici have devoted their careers to building the nation’s climate policy through the channels the Constitution prescribes — statutes enacted by Congress, regulations promulgated through lawful process, treaties and executive agreements, and diplomacy sustained across administrations of both parties,” the brief concludes. “That experience confirms what this Court’s precedents require: that displacement of state law requires an affirmative act of federal lawmaking, not the absence of coherent policy.”
Founded in 2016, the Peter Gruber Rule of Law Clinic addresses threats to the rule of law in the United States and around the world. The clinic was founded by Sterling Professor of International Law and former Dean Harold Hongju Koh (counsel of record on the amicus brief) and William O. Douglas Clinical Professor of Law Michael Wishnie ’93. The clinic is now led by Koh, Aharon Barak Distinguished Rule of Law Fellow Bruce C. Swartz ’79, Peter Gruber Senior Litigation Fellow Mary J. Hahn ’01, and Peter Gruber Academic Fellow Sonia Mittal ’13, as well as Visiting Clinical Lecturers in Law Eugene Fidell, Margaret Donovan, and Justin Cole ’23.
Yale Law students and clinic members who worked on the brief include Kit Beyer ’28, John David Cobb ’28, and Julian Watrous ’27, with support from Madeline Babin ’26, Riler Holcombe ’26, Caroline Kapp ’27, Samantha Kiernan ’26, Jake Mattis ’26, Jake Reagan ’26, and Gwyn Reece ’27.
