October 5, 2026
By Yiannis Damellos
The administration's own retreat from climate regulation may have created the legal vacuum the Court now has to decide whether states can fill.
Today, the Supreme Court did not make a decision regarding the climate ruling. But oral arguments can reveal the legal fault lines. Gorsuch asked the question that matters: Does federal preemption become a legal vacuum in which nobody is responsible? This is a fascinating problem for the oil companies — and potentially for the administration.
Today, Oct. 5, produced something much more interesting than a routine climate ruling: the Supreme Court heard Suncor Energy v. Boulder County, and the questioning gives us a fairly revealing look at where several justices may be heading.
And Samuel Alito was absent. The Court announced his recusal last week without giving a reason. His 2025 financial disclosure lists individual holdings in ConocoPhillips and Phillips 66.
Today, Oct. 5, produced something much more interesting than a routine climate ruling: the Supreme Court heard Suncor Energy v. Boulder County, and the questioning gives us a fairly revealing look at where several justices may be heading.
The interesting part: Gorsuch literally cracked the wall regarding a case that concerns whether Boulder and other governments can use state-law lawsuits to make fossil-fuel companies pay for climate-related damages, including wildfire and other costs. The oil companies argue that federal law preempts those lawsuits.
Several conservative justices appeared concerned that allowing the lawsuits would let individual states effectively establish their own climate policy through tort law. Justice Brett Kavanaugh repeatedly emphasized the Court's earlier treatment of interstate air and water pollution as federal matters. Chief Justice John Roberts raised the prospect of a flood of similar lawsuits if Boulder wins.
But then, just when it seemed the oil companies had everything figured out, Neil Gorsuch threw a compelling twist into the mix—one that could spell trouble not just for the industry, but possibly for the administration as well.
He pointed to the Trump EPA's current position that the federal government doesn't have authority to regulate greenhouse-gas emissions under the Clean Air Act, and essentially asked: if federal regulation is being disclaimed, does that mean nobody can sue at all?
That was the crack in the wall.
The administration's position is effectively: climate regulation belongs to the federal government, so states can't do it. But if the federal government simultaneously says: we don't have the authority to regulate this particular pollution, Gorsuch's question exposes the consequence: Does federal preemption become a legal vacuum in which nobody is responsible?
And there was another important signal
Justice Elena Kagan challenged the oil companies' argument by comparing the Boulder case with litigation against tobacco and opioid companies. She pressed their lawyer on why those industries could face state-law claims while climate-related claims supposedly could not.
The oil companies responded that climate pollution is fundamentally different because it involves interstate and international emissions.
So we have an unusual split developing where Kavanaugh and Roberts are concerned about federalism and states effectively making national climate policy, with Gorsuch being interested in the consequence of federal authorities simultaneously claiming that climate regulation belongs to the federal government but it is outside their power, Kagan probing whether the fossil-fuel industry's conduct can be treated like other forms of allegedly deceptive corporate conduct, and Boulder insisting it isn't asking the Court to regulate emissions; it wants compensation for alleged deception and resulting local costs.
Several conservative justices appeared concerned that allowing the lawsuits would let individual states effectively establish their own climate policy through tort law. Justice Brett Kavanaugh repeatedly emphasized the Court's earlier treatment of interstate air and water pollution as federal matters. Chief Justice John Roberts raised the prospect of a flood of similar lawsuits if Boulder wins.
But then, just when it seemed the oil companies had everything figured out, Neil Gorsuch threw a compelling twist into the mix—one that could spell trouble not just for the industry, but possibly for the administration as well.
He pointed to the Trump EPA's current position that the federal government doesn't have authority to regulate greenhouse-gas emissions under the Clean Air Act, and essentially asked: if federal regulation is being disclaimed, does that mean nobody can sue at all?
That was the crack in the wall.
The administration's position is effectively: climate regulation belongs to the federal government, so states can't do it. But if the federal government simultaneously says: we don't have the authority to regulate this particular pollution, Gorsuch's question exposes the consequence: Does federal preemption become a legal vacuum in which nobody is responsible?
And there was another important signal
Justice Elena Kagan challenged the oil companies' argument by comparing the Boulder case with litigation against tobacco and opioid companies. She pressed their lawyer on why those industries could face state-law claims while climate-related claims supposedly could not.
The oil companies responded that climate pollution is fundamentally different because it involves interstate and international emissions.
So we have an unusual split developing where Kavanaugh and Roberts are concerned about federalism and states effectively making national climate policy, with Gorsuch being interested in the consequence of federal authorities simultaneously claiming that climate regulation belongs to the federal government but it is outside their power, Kagan probing whether the fossil-fuel industry's conduct can be treated like other forms of allegedly deceptive corporate conduct, and Boulder insisting it isn't asking the Court to regulate emissions; it wants compensation for alleged deception and resulting local costs.
And Samuel Alito was absent. The Court announced his recusal last week without giving a reason. His 2025 financial disclosure lists individual holdings in ConocoPhillips and Phillips 66.
The bigger story
This case could affect dozens of climate lawsuits filed by cities, counties and states against fossil-fuel companies. The lawsuits generally aren't asking courts to shut down oil production. They seek damages or other remedies based partly on allegations that companies knew about climate risks while publicly minimizing them. And there's an extraordinary coincidence of timing.
Just days ago, 21 states and several cities sued the Trump EPA over its repeal of Biden-era greenhouse-gas limits on power plants. The EPA is simultaneously pursuing a position that would prevent future administrations from regulating greenhouse-gas emissions from power plants.
So the Supreme Court is now looking at a question created partly by a changing regulatory landscape: If Washington withdraws from climate regulation, how much room remains for states and cities to make polluters answer for the consequences? In fact, the Court may not have to decide whether climate change is real or whether fossil fuels cause it. It may instead decide who gets to make polluters pay when the federal government chooses not to regulate the underlying problem.
Nonetheless, the Court says its decision is likely by June 2027, and with Alito out of the picture, the most important question is what happens if there is no majority ruling. At least four justices expressed skepticism today about the oil industry’s argument that the Clean Air Act explicitly prevents such lawsuits against polluters. And according to Politico, if the court can’t form a majority, "dozens of climate cases across the country would continue forward with looming question marks about their legality... meaning no nationwide precedent would be set, and some of the lawsuits would move toward trial, while others could be struck down by state judges."
This case could affect dozens of climate lawsuits filed by cities, counties and states against fossil-fuel companies. The lawsuits generally aren't asking courts to shut down oil production. They seek damages or other remedies based partly on allegations that companies knew about climate risks while publicly minimizing them. And there's an extraordinary coincidence of timing.
Just days ago, 21 states and several cities sued the Trump EPA over its repeal of Biden-era greenhouse-gas limits on power plants. The EPA is simultaneously pursuing a position that would prevent future administrations from regulating greenhouse-gas emissions from power plants.
So the Supreme Court is now looking at a question created partly by a changing regulatory landscape: If Washington withdraws from climate regulation, how much room remains for states and cities to make polluters answer for the consequences? In fact, the Court may not have to decide whether climate change is real or whether fossil fuels cause it. It may instead decide who gets to make polluters pay when the federal government chooses not to regulate the underlying problem.
Nonetheless, the Court says its decision is likely by June 2027, and with Alito out of the picture, the most important question is what happens if there is no majority ruling. At least four justices expressed skepticism today about the oil industry’s argument that the Clean Air Act explicitly prevents such lawsuits against polluters. And according to Politico, if the court can’t form a majority, "dozens of climate cases across the country would continue forward with looming question marks about their legality... meaning no nationwide precedent would be set, and some of the lawsuits would move toward trial, while others could be struck down by state judges."
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