In the West, you learn early that water ignores state lines. Snow that falls in Colorado鈥檚 mountains becomes irrigation water in Kansas and drinking water hundreds of miles downstream in the Southwest.I spent much of my public career confronting the perplexing question: When a problem crosses borders, whose law decides?
On October 5, the Supreme Court takes up a new version of that question in Suncor Energy v. County Commissioners of Boulder County. Boulder seeks damages under Colorado law from Exxon Mobil and Suncor for local costs it attributes to climate change. The Colorado Supreme Court refused to dismiss the case, holding that federal law does not pre-empt the claims. The nation鈥檚 justices will now review that ruling, assuming they conclude they have jurisdiction to do so at this stage.
Boulder is one case among two dozen, filed by cities, counties and states in a coordinated campaign that started a decade ago. What the Supreme Court says here will reverberate well beyond Colorado. The question is not who pays for climate costs but which institution has the authority and the reach to decide.
Colorado has confronted interstate problems before. When I was Attorney General, our state was before the Supreme Court in its long-running dispute with Kansas over the Groundwater pumping in Colorado had arguably reduced usable flows into Kansas. Any harm was downstream, but the river was part of an interstate system governed by a compact between sovereigns. The legal mechanism was different from the one before the Court today, but the institutional problem was not. The river crossed state borders. The legal framework had to cross them too.
As Secretary of the Interior, I saw the same principle from another direction. In 2003, I signed the at Hoover Dam after years of negotiation among the Colorado River Basin states and the federal government. The agreement helped rein California鈥檚 use back within its allocation while protecting the shares of the other basin states. Every farm and city along that river had a local interest. None could govern the river alone.
Now consider the phenomenon underlying Boulder鈥檚 climate lawsuit. Fossil fuels are produced and consumed across the country and around the world鈥攊n cars, factories, farms and power plants. Their combustion produces greenhouse gases that mix with emissions from innumerable other sources in a common atmosphere. Boulder seeks compensation under state nuisance law for costs it says arrive in Colorado through that global process. There is no single oil well upstream. There is no single source whose emissions can be followed across a state line. The sources are everywhere.
Whatever legal theory is attached to the claim, its interstate and international character presents a difficult question about the reach of state law.
The Supreme Court has confronted a narrower version of the problem before. In International Paper Co. v. Ouellette, it held that Vermont nuisance law could not govern pollution from a New York paper mill. The Court recognized that interstate sources otherwise could be subjected to multiple, conflicting state regimes. When the “source” is not a single mill but the entire global fossil fuel economy, the logic of Ouellette should apply with greater force, not less.
Boulder’s response is that it seeks money, not regulation of interstate emissions. The distinction is real, but it does not resolve the case. A series of damages awards, entered by different state courts under different standards, would steer the nation’s energy development without any of the deliberation that Congress and federal agencies are supposed to bring to it.
There is a practical problem as well. Energy policy does not stand still. It changes with technology, with supplies , and with geopolitics. This year鈥檚 turmoil around the Strait of Hormuz pushed oil above $100 a barrel and sent prices moving sharply as supply routes opened, closed and shifted. Congress, legislatures and agencies can alter policies as circumstances change.
Damages litigation works differently. It looks backward, fixes responsibility on a historical record, and produces a judgment that cannot adapt as circumstances change. Multiply that process across dozens of state court systems, applying different state laws to the same global phenomenon, and the result is not a national policy but a patchwork of potentially conflicting judgments that limit lawmakers鈥� and companies鈥� ability to adapt.
The question before the justices is therefore narrower than the climate debate and more enduring. They need not decide whether climate change is serious. They need not write national energy policy. Their task is to determine whether one state鈥檚 law may assign legal responsibility for consequences produced through activity that crosses every border.
That is an old American problem. Water disputes taught the West that a local harm can also be an interstate issue. Climate change makes the boundary harder to see, not less important. The atmosphere has no state line. To provide legal certainty that is vital for our nation鈥檚 energy future, the law still has to know where one state鈥檚 authority ends.
Gale Norton is president of Norton Regulatory Strategies. She was Colorado Attorney General 1991-1999 and Secretary of the Interior 2001-2006.
