Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.

No. 25-170

In the

Supreme Court of the United States

____________

SUNCOR ENERGY (U.S.A.) INC., et al.,

Petitioners,

v.

COUNTY COMMISSIONERS OF BOULDER COUNTY, et al.,

Respondents.

___________

On Writ of Certiorari

to the Supreme Court of Colorado

____________

BRIEF OF WASHINGTON LEGAL FOUNDATION,

NATIONAL FEDERATION OF INDEPENDENT BUSINESS

SMALL BUSINESS LEGAL CENTER, INC.,

AND NATIONAL ASSOCIATION OF WHOLESALERDISTRIBUTORS AS AMICI CURIAE

SUPPORTING PETITIONERS

____________

Elizabeth Milito

Rob Smith

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th St., NW

Suite 1001

Washington, DC 20004

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

May 21, 2026

(Additional counsel on inside cover)

Karen R. Harned

NATIONAL ASSOCIATION

OF WHOLESALER-DISTRIBUTORS

1325 G St., NW

Suite 1000

Washington, DC 20005

i

QUESTIONS PRESENTED

1. Whether federal law precludes state-law

claims seeking relief for injuries allegedly caused

by the effects of interstate and international

greenhouse-gas emissions on the global climate.

2. Whether this Court has Article III and

statutory jurisdiction to hear this case.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................... i

TABLE OF AUTHORITIES ................................... iii

INTEREST OF AMICI CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 2

ARGUMENT ............................................................ 8

I.

THIS COURT HAS JURISDICTION ................ 8

a. This Court has Article III

jurisdiction ........................................ 10

b. This

Court

has

statutory

jurisdiction ........................................ 12

II.

AFFIRMANCE COURTS ECONOMIC

CALAMITY ................................................ 16

CONCLUSION ...................................................... 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. U.S. Dep’t of HHS,

594 U.S. 758 (2021)..............................................16

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989)..........................................5, 11

Atl. Richfield Co. v. Christian,

590 U.S. 1 (2020)........................................ 6, 12, 13

Bandini Co. v. Super. Ct.,

284 U.S. 8 (1931)..................................................13

Biden v. Neb.,

600 U.S. 477 (2023)..............................................16

Bost v. Ill. State Bd. of Elections,

607 U.S. 71 (2026)...................................... 5, 10, 12

Bowen v. Mass.,

487 U.S. 879 (1988)..............................................14

City of Charleston v. Brabham Oil Co.,

Case No. 20-3579,

2023 WL 11867279

(D.S.C. July 5, 2023) ............................................16

City of Riverside v. Rivera,

477 U.S. 561 (1986)..............................................11

iv

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)..............................................12

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975).................................... 6, 14, 15

Daimler AG v. Bauman,

571 U.S. 117 (2014)................................................7

Diamond Alternative Energy, LLC v. EPA,

606 U.S. 100 (2025)..............................................10

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024)..............................................10

Fed. Election Comm’n v. Ted Cruz for Senate,

596 U.S. 289 (2022)..............................................12

First Choice Women’s Res. Ctrs. v. Davenport,

608 U.S. ___ (2026) ............................ 1, 5, 6, 10, 11

Fisher v.

Dist. Ct. of Sixteenth Judicial Dist. of Mont.,

424 U.S. 382 (1976).................................... 6, 12, 13

Fla. v. Thomas,

532 U.S. 774 (2001)..............................................15

Learning Resources v. Trump,

607 U.S. __ (2026) ................................................16

Madruga v. Super. Ct.,

346 U.S. 556 (1954)..............................................12

Mercantile Nat’l Bank at Dallas v. Langdeau,

371 U.S. 555 (1963)..............................................14

v

Miami Herald v. Tornillo,

418 U.S. 241 (1974)..........................................6, 15

Mills v. Ala.,

384 U.S. 214 (1966)..............................................15

NAACP v. Ala.,

377 U.S. 288 (1964)................................................8

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023)............................................3, 4

Nat’l Rifle Ass’n v. Vullo,

602 U.S. 175 (2024)............................................5, 9

Nat’l Socialist Party of Am. v. Vill. of Skokie,

432 U.S. 43 (1977)................................................15

Rescue Army v. Mun. Ct.,

331 U.S. 549 (1947)..............................................12

People v. Dilka,

584 P.3d 564 (Colo. 2026) ....................................13

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023)..........................................6, 12

U.S. Catholic Conf. v.

Abortion Rts Mobilization, Inc.,

487 U.S. 72 (1988)..................................................8

Va. v. Am. Booksellers Ass’n, Inc.,

484 U.S. 383 (1988)..............................................12

vi

W. Va. v. EPA,

597 U.S. 697 (2022)..............................................19

Constitutional Provisions

U.S. Const., Preamble .................................................2

U.S. Const., art. I, § 8..........................................3, 4, 9

U.S. Const., art. I, § 10................................................3

U.S. Const., art. III ................................................. i, 3

U.S. Const., art. IV ......................................................3

U.S. Const., art. VI ...................................... 3, 4, 17, 21

U.S. Const., amend. V .................................................3

U.S. Const., amend. X .............................................4, 9

Statutory Provision

28 U.S.C. § 1257(a).................................... 6, 10, 12, 14

State Rules of Appellate Procedure

Colo. App. R. 21 .........................................................13

Colo. App. R. 21(b).....................................................13

Articles of Confederation Provisions

Arts. of Confed., art. II ................................................2

Arts. of Confed., art. III ..............................................2

vii

Arts. of Confed., art. IV ...............................................2

Arts. of Confed., art. VI ...............................................2

Arts of Confed., art. IX ................................................2

Other Authorities

Octavio M. Aguilar & Cristina Fuentes-Albero,

Energy Consumption and Inequality in the

U.S.: Who are the Energy Burdened?,

Fin. & Econ. Discussion Series – Bd. of Govs.,

Fed. Reserve Sys. (2025)..................................7, 20

Akhil Reed Amar,

America’s Constitution: A Biography (2006).........2

The Federalist, No. 12.................................................3

The Federalist, No. 42.................................................9

Gayle Gerson,

A Return to Practicality:

Reforming the Fourth Cox Exception to the

Final Judgment Rule Governing Supreme

Court Certiorari Review of State Court

Judgments,

73 Fordham L. Rev. 789 (2004) ...........................15

Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History (2018) ..............7

Int’l Energy Agency,

“World: Energy Mix” ............................................18

viii

NFIB Rsch. Ctr.,

Small Business Problems & Priorities (2024).....20

Brian Potter,

How an Oil Refinery Works,

Construction Physics – Inst. for Progress

(Apr. 30, 2026)......................................................18

Lexie Ryan,

Revenues and Disbursements from Oil

and Natural Gas Leases on Onshore

Federal Lands,

Cong. Rsch. Serv. (Feb. 12, 2026)........................19

Antonin Scalia,

The Doctrine of Standing as an

Essential Element of the Separation of Powers,

17 Suffolk U. L. Rev. 881 (1983) .........................10

Brenda Shaffer,

‘Renewable’ Energy Gives Us a Crisis,

Wall St. J. (Mar. 26, 2026) ..................................18

Amy Smaldone & Mark L.J. Wright,

Local Governments in the U.S.:

A Breakdown by Number and Type,

Fed. Reserve Bank of St. Louis

(Mar. 14, 2024) .....................................................17

U.S. Bureau of Economic Analysis,

Gross Domestic Product [GDP],

Fed. Reserve Bank of St. Louis .............................4

U.S. Energy Information Admin.,

U.S. Energy Facts Explained ..............................18

1

INTEREST OF AMICI CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. It defends free enterprise,

individual rights, limited government, and the rule of

law. To that end, WLF often appears as amicus curiae

to vindicate the Constitution’s supremacy against

unlawful judicial process. First Choice Women’s Res.

Ctrs. v. Davenport, 608 U.S. ___, 146 S. Ct. 1114

(2026); State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003).

The National Federation of Independent

Business Small Business Legal Center, Inc. is a

nonprofit, public-interest law firm established to

provide legal resources and be the voice for small

businesses in the Nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (NFIB),

which is the Nation’s leading small business

association. NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

DC, and all 50 state capitals, the interests of its

members.

National

Association

of

WholesalerDistributors (NAW) is an employer and a nonprofit,

non-stock, incorporated trade association that

* No party’s counsel authored any part of this brief. No

person or entity, other than Amici and its counsel, paid for the

brief’s preparation or submission.

2

represents the wholesale distribution industry—the

essential link in the supply chain between

manufacturers and retailers as well as commercial,

institutional, and governmental end users. NAW is

made up of direct-member companies and a

federation of national, regional, and state

associations across 19 commodity lines of trade which

together include approximately 35,000 companies

operating nearly 150,000 locations throughout the

nation. The overwhelming majority of wholesalerdistributors are small-to-medium-size, closely held

businesses. As an industry, wholesale distribution

generates more than $8 trillion in annual sales

volume providing stable and well-paying jobs to more

than six million workers.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Constitution “establish[ed]” “a more

perfect Union” than the Articles of Confederation.

U.S. Const., Preamble. Under the old Confederation,

each State retained virtually untrammeled “power,

jurisdiction, and right” to impose “duties, impositions,

and restrictions” on “the privileges of trade and

commerce.” Arts. of Confed., arts. II, IV, VI, IX.

This less perfect arrangement was “a firm

league of friendship,” not a serious plan of

government. Id., art. III; Akhil Reed Amar, America’s

Constitution: A Biography 26 (2006) (describing the

old Confederation’s “basic structure as a multilateral

treaty”).

It also didn’t work. The Articles invited poverty

and foreign predation. So the Founders replaced

3

them. The superseding Constitution stood up a

nationwide market in goods and services, capable of

providing a launch pad to unparalleled prosperity. Cf.

The Federalist, No. 12 (“The prosperity of commerce

is now perceived and acknowledged by all enlightened

statesmen to be the most useful as well as the most

productive source of national wealth, and has

accordingly become a primary object of their political

cares”).

To do this, the States had to surrender powers

they enjoyed under the old Confederation. The States

no longer could impair contractual obligations, tax

trade, establish their own bankruptcy laws, or

regulate interstate or international commerce. U.S.

Const., art. I, §§ 8, 10. And every State had to accept

that the federal Constitution and federal laws were

“the supreme Law of the Land,” with “the[ir] Judges.

. . bound thereby.” Id., art. VI. The federal

government, for its part, bound itself to protect

interstate

and

international

commerce

by

safeguarding property rights, ensuring due process,

establishing a federal Supreme Court to superintend

state courts of last resort, and guaranteeing that a

republican form of government would be maintained

in every State. Id., arts. III, IV, amend. V.

This system—offering nationwide legal clarity

to capstone business certainty—worked. The

Constitution “facilitated robust economic activity

within the United States and has helped generate

remarkable (albeit at times uneven) economic

prosperity and growth in America relative to the other

nations of the world.” Nat’l Pork Producers Council v.

Ross, 598 U.S. 356, 404 (2023) (Kavanaugh, J.,

concurring in part and dissenting in part). Today’s

4

America has an unimaginable $31.9 trillion national

economy, backstopped by an energy industry that

fuels worldwide transportation, keeps on the lights,

and helps transmit market information around the

planet in nanoseconds. U.S. Bureau of Economic

Analysis, Gross Domestic Product [GDP], Fed.

Reserve Bank of St. Louis; https://perma.cc/W75FVDZC. It’s an “extraordinary . . . record of progress.”

Ross, 598 U.S. at 404 (Kavanaugh, J., concurring in

part and dissenting in part).

But the constitutional design works only if we

enforce it.

The County and City of Boulder are suing

Suncor and Exxon in Colorado state court on a parade

of seemingly anodyne state tort claims—public

nuisance, private nuisance, unjust enrichment,

trespass, the list goes on. But there’s quite a wolf

under that wool. The County’s using the Colorado

courts to “abate and regulate global emissions.” Pet.

App. 33a (Samour, J., dissenting) (tense altered).

A single State (let alone a municipality or

county) can’t do that. Federal law and the Founders’

design, which—again—the state courts are

constitutionally “bound” by, U.S. Const., art. VI, both

forbid it. Pet. Br. 21–47. If Boulder passed a

continent-spanning (let alone worldwide) regulation

on greenhouse gas emitters, it would be

unconstitutionally

regulating

interstate

and

international commerce. U.S. Const., art. I, § 8

(delegating commerce power to the United States);

U.S. Const., amend. X (only “powers not delegated to

the United States by the Constitution . . . are reserved

to the States respectively, or to the people”). So it can’t

5

use the state courts to achieve that same outcome.

Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175, 190 (2024)

(governments can’t act indirectly to achieve an

unconstitutional aim). There’s no bank-shot exception

to the Constitution, and no state court can proceed to

a trial that dishonors the supremacy of the federal

Constitution and federal law. Cf. Pet. Br. 21–47

(discussing preemptive effect of federal law).

Never mind all that, Boulder says. Time

enough to deal with these defects later—after its case

has been tried to verdict and copycat litigation has

littered the land. For now, the County claims that this

Court has neither Article III nor statutory jurisdiction

to hear this case. That’s wrong on both counts.

Stripping Suncor and Exxon of a slam-dunk

legal defense—by denying federal supremacy—the

Colorado courts have tangibly altered Petitioners’

legal rights in a multi-billion-dollar tort suit. That

alone suffices to show Article III injury-in-fact.

ASARCO Inc. v. Kadish, 490 U.S. 605, 619 (1989). But

even if that wasn’t so, Petitioners still have Article III

standing because its constitutional right to be free of

abusive judicial process is being unduly burdened.

That’s (independently) enough to cross the Article III

threshold. Cf. First Choice, 146 S. Ct. at 1125.

There’s more. Suncor and Exxon’s only way out

of this Constitution-defying bind is to settle or

continue litigating. And spending money to “mitigate

or avoid” unlawful state action also establishes an

Article III injury. Bost v. Ill. State Bd. of Elections,

607 U.S. 71, 82 (2026) (internal quotation marks and

citation omitted); id. at 84 (“Pocketbook harm is a

traditional Article III injury”) (Barrett and Kagan,

6

JJ., concurring) (citing Tyler v. Hennepin Cnty., 598

U.S. 631, 636 (2023)).

This Court also has statutory jurisdiction. 28

U.S.C. § 1257(a). The Colorado Supreme Court case

below is a “self-contained,” Atl. Richfield Co. v.

Christian, 590 U.S. 1, 12 (2020), “judgment that

terminate[d] original proceedings in a state appellate

court” and is “final” for purposes of the final-judgment

statute. Fisher v. Dist. Ct. of Sixteenth Jud. Dist. of

Mont., 424 U.S. 382, 385 n.7 (1976).

But even if that weren’t so, since Boulder’s case

is so alien to the federal Constitution, the Colorado

Supreme Court’s judgment is “final” within the

meaning of section 1257 for the same reason that

Miami Herald v. Tornillo, 418 U.S. 241 (1974), was

properly before this Court. A state court of last resort

is seeking to “seriously erode federal policy” by

judicial fiat. Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 482–83 (1975). And not just any “federal policy,”

id., but perhaps the highest federal policy of all—the

proper, interlocking constitutional relationship

between the federal government and the States.

In short, Boulder may not have “take[n] three

limbs” from each petitioner, but it’s grabbed more

than enough. First Choice, 146 S. Ct. at 1129. The

Court properly granted the writ.

And thank goodness. “Success” for the

plaintiffs would be devastating to the prosperity

underwritten by our constitutional order. At bottom,

this litigation is custom-built to make the production

and distribution of fossil fuels unprofitable. With over

90,000 local governments, fifty States and D.C., and

7

even 340 million Americans susceptible to some

injury under Boulder’s various theories of liability,

there are plenty of plaintiffs at hand to bankrupt the

energy industry. If even a fraction of them sue and

win multi-billion-dollar judgments (as Boulder seeks

here), it would wipe out the corporate infrastructure

(foreign and domestic) undergirding over 80 percent

of world energy use and 83 percent of our domestic

mix. Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)

(state courts may obtain personal jurisdiction over

foreign national enterprises).

And even if plaintiffs won’t prevail in the end

and take the world economy with them, businesses

will still have to price the risk of a plaintiff’s bar

victory until that tension is finally resolved. Only this

Court can do that. Until then, lawsuits-of-Damocles

will freeze untold billions of dollars’ worth of

investment in hydrocarbon extraction and sales

(including innovation to make production and

distribution cheaper, more efficient, and less-carbonintensive). Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History 258 (2018) (All

firms “crave certainty as much as almost anything:

certainty is what allows them to make long-term

plans and long-term investments”).

That hesitancy to develop won’t end

civilization, but it will reduce supply in a time of

rising demand—and expensive energy costs always

disproportionately burden the least among us.

Octavio M. Aguilar & Cristina Fuentes-Albero,

Energy Consumption and Inequality in the U.S.: Who

are the Energy Burdened?, Fin. & Econ. Discussion

Series – Bd. of Govs., Fed. Reserve Sys. (2025);

https://perma.cc/2M2D-S8CJ.

8

The totality of the federal Constitution—

intricately designed to safeguard national markets

and international commerce—has something to say

about the use of state courts as an instrument to stifle

American prosperity. There’s only one constitutional

outcome here: the immediate deletion of Boulder’s

suit from the dockets of the Colorado courts.

ARGUMENT

I.

THIS COURT HAS JURISDICTION.

Boulder claims that Article III and the finaljudgment rule shrink this Court’s jurisdiction just

enough so it can’t stop Boulder’s use of the Colorado

courts to upend the American constitutional order.

Not so. State courts cannot “thwart review in this

Court applied for by those who . . . seek vindication in

state courts of their federal constitutional rights.”

NAACP v. Ala., 377 U.S. 288, 301 (1964) (internal

quotation marks and citation omitted).

It is, after all, “the central principle of a free

society that courts have finite bounds of authority,

some of constitutional origin, which exist to protect

citizens from the very wrong asserted here, the

excessive use of judicial power.” U.S. Catholic Conf. v.

Abortion Rts Mobilization, Inc., 487 U.S. 72, 77

(1988). And make no mistake: the “excessive use of

judicial power” happened in Colorado, not in this

Court’s decision to grant certiorari. Id.

Boulder says that it’s just bringing a state tort

case grounded in ancient causes of action (trespass,

private nuisance, public nuisance, unjust enrichment,

to name a few) against a malefactor. But that’s a devil

9

in disguise. “[S]tripping away the amended

complaint’s clever language confirms that this case is

about abating and regulating global emissions . . .

curb[ing] the energy companies’ conduct by hitting

them where it hurts—their wallets.” Pet. App. 33–34a

(Samour, J., dissenting). Yet Boulder has no writ to

regulate greenhouse-gas emissions across the Nation,

let alone around the world. Any municipal ordinance

purporting to do so wouldn’t survive first contact with

the Constitution.

For example, our national charter gives

Congress, not the counties, exclusive power “[t]o

regulate Commerce . . . among the several States.”

U.S. Const., art. I, § 8; The Federalist, No. 42 (“The

defect of power in the existing Confederacy to regulate

the commerce between its several members, is in the

number of those which have been clearly pointed out

by experience”). Since only “powers not delegated to

the United States by the Constitution . . . are reserved

to the States,” U.S. Const., amend. X (emphasis

supplied), Boulder, a subunit of one of “the several

States,” id., art. I, § 8, has zero power to regulate

interstate or international commerce. Congress could

pass a federal carbon tax or impose a nationwide

emissions cap, but neither the County nor Colorado

may do so. And even if (text and structure of the

Constitution notwithstanding) Boulder somehow

retained some such legislative power, Congressional

enactment of the comprehensive Clean Air Act

certainly took that away. Pet. Br. 29–34; 43–47.

And Boulder can’t “do indirectly” through the

state courts “what [it] is barred from doing directly”

by the Law of the Land. Vullo, 602 U.S. at 190. The

County’s clever “overjudicialization of the processes of

10

self-governance” must be rebuffed. Antonin Scalia,

The Doctrine of Standing as an Essential Element of

the Separation of Powers, 17 Suffolk U. L. Rev. 881,

881 (1983). There’s no “one weird trick” to

circumventing the Constitution.

But Boulder asks the Court to ignore all that

for now. Even if its suit is plainly unlawful, the

County claims, it’s just too early to stop because this

Court lacks Article III and statutory jurisdiction. BIO

6–17; 28 U.S.C. § 1257(a). The County’s wrong on both

counts.

a. This Court has Article III jurisdiction.

Constitutional standing “consist[s] of three

elements:

‘injury

in

fact,

causation,

and

redressability.’” First Choice, 146 S. Ct. at 1121

(quoting Diamond Alternative Energy, LLC v. EPA,

606 U.S. 100, 110–11 (2025)). Causation and

redressability aren’t at issue here—Boulder’s claim

rises and falls on its contention that Suncor and

Exxon haven’t suffered an Article III injury.

“Under Article III of the Constitution,

[Petitioners] must have a ‘personal stake’ in a case to

have standing.” Bost, 607 U.S. at 76 (quoting FDA v.

All. for Hippocratic Med., 602 U.S. 367, 379 (2024)).

“In more pedestrian terms, [standing] is an answer to

the very first question that is sometimes rudely asked

when one person complains of another’s actions:

‘What’s it to you?’” Scalia, 17 Suffolk U. L. Rev. at 882.

What’s it to Suncor and Exxon? That’s easy.

Petitioners don’t ask for “review of an advisory

opinion rendered through specific mechanisms for

11

obtaining a hypothetical ruling from a state court or

other state official.” ASARCO, 490 U.S. at 619. If this

Court revokes the writ, Petitioners face additional

litigation and ultimately a trial on Boulder’s amended

complaint for untold “billions of dollars” in damages.

Pet. App. 53a (“ExxonMobil earned hundreds of

billions of dollars and the Suncor entities earned tens

of billions of dollars in profits from fossil fuel sales”).

By ruling that Suncor and Exxon can’t rely on the

Constitution’s structure or the preemptive effect of

federal law as a defense, the Colorado Supreme Court

obviously “alter[ed]” Petitioners’ “tangible legal

rights.” ASARCO, 490 U.S. at 619. “This proceeding

constitutes a cognizable case or controversy” now—

not later. Id. So that’s one reason Suncor and Exxon

are properly before this Court.

Here’s another: every moment that Suncor and

Exxon are subject to the ultra vires whims of the

Colorado courts is an incompensable harm. City of

Riverside v. Rivera, 477 U.S. 561, 574 (1986)

(Brennan, J., plurality) (The “vindicat[ion]” of the

Constitution “cannot be valued solely in monetary

terms”). That also gives Article III standing to

Petitioners. “An injury in fact does not arise only

when a [party] causes a tangible harm to [another],

like a physical injury or monetary loss. It can also

arise when [a party] burdens . . . [another]’s

constitutional

right[]”

to

be

free

from

unconstitutionally coercive judicial process. First

Choice, 146 S. Ct. at 1125.

There’s more. Unless this Court intervenes,

Suncor and Exxon face a catch-22. It can either cave

(making the Colorado Supreme Court’s decision

forever unreviewable and yet firm precedent) or

12

continue to litigate. Either decision (neither of which

is Suncor and Exxon’s idea, mind you) will cost

money. Bost, 607 U.S. at 84 (“Pocketbook harm is a

traditional Article III injury”) (Barrett and Kagan,

JJ., concurring) (citing Tyler, 598 U.S. at 636).

Certainly, Petitioners “cannot ‘manufacture standing

by voluntarily’ incurring costs,” id. at 82 (quoting Fed.

Election Comm’n v. Ted Cruz for Senate, 596 U.S. 289,

297 (2022)), but it’s different when a party is

presented with a “significant and costly”

highwayman’s choice of “compliance” or the courts.

Va. v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392

(1988). Then, spending “to ‘mitigate or avoid’” the

“independent harm” of unlawful judicial power

ensures Article III standing. Bost, 607 U.S. at 82

(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398,

414 n.5 (2013)).

So there are least three avenues by which

Suncor and Exxon have Article III standing.

b. This Court has statutory jurisdiction.

Congress gave this Court power to “review[]

. . . by writ of certiorari” certain “[f]inal judgments or

decrees rendered by the highest court of a State.” 28

U.S.C. § 1257(a). As this Court has unanimously

reaffirmed, Atl. Richfield, 590 U.S. at 12, “[a]

judgment that terminates original proceedings in a

state appellate court, in which the only issue decided

concerns the jurisdiction of a lower state court, is

final, even if further proceedings are to be had in the

lower court.” Fisher, 424 U.S. at 385 n.7 (citing

Madruga v. Super. Ct., 346 U.S. 556, 557 n.1 (1954);

Rescue Army v. Mun. Ct., 331 U.S. 549,

13

565–68 (1947); Bandini Co. v. Super. Ct., 284 U.S. 8,

14–15 (1931)).

That’s what happened here. Petitioners

“initiated an original proceeding” in the Colorado

Supreme Court by “fil[ing] a petition for an order to

show cause.” Colo. App. R. 21(b) (capitalization

altered). The state court provisionally issued that

order, setting up a “self-contained case,” Atl.

Richfield, 590 U.S. at 12, about whether the showcause order should be made “absolute” or

“discharged.” Compare People v. Dilka, 584 P.3d 564,

570 (Colo. 2026) (“Accordingly, we discharge the order

to show cause and remand . . .”); id. at 574 (Gabriel,

J., dissenting) (“Accordingly, I would make our order

to show cause absolute . . .”) with Pet. App. 24a

(“Accordingly, we discharge the order to show cause

and remand this case . . .”); id. at 28a (Samour, J.,

dissenting) (“I would make the order to show cause

absolute and nip Boulder’s state-law claims in the

bud”). In discharging the show-cause order, id. at 24a,

the Colorado Supreme Court issued a “judgment that

terminate[d] original proceedings,” Fisher, 424 U.S.

at 385 n.7, and concluded a “self-contained case.” Atl.

Richfield, 590 U.S. at 12.

Boulder chalks all this up to so much

semantics, asking this Court to set aside Colorado’s

Appellate Rules because this “self-contained” original

proceeding, id., “bears other markings of a

discretionary, interlocutory appeal.” BIO 12. That’s a

little like saying that since a platypus has a bill, it

must be a bird. It’s curious that for all of Boulder’s

paeans to federalism, it asks the Court to ignore the

State of Colorado’s own pronouncements on its own

supreme court’s jurisdiction. Colo. App. R. 21.

14

But even if that’s wrong, review doesn’t conflict

with the final-judgment rule. When a state

proceeding vexes the Constitution, section 1257

doesn’t handcuff certiorari. Rather, “the policy

underlying the requirement of finality” compels an

immediate determination of Suncor and Exxon’s

constitutional defense before “long and complex

litigation which may all be for naught.” Mercantile

Nat’l Bank at Dallas v. Langdeau, 371 U.S. 555, 558

(1963). The final-judgment rule doesn’t force this

Court to wait out a “cornucopia of waste” before

defending the national charter from an unlawful state

attack. Bowen v. Mass., 487 U.S. 879, 930 (1988)

(Scalia, J., dissenting).

Under section 1257, the issue is not whether a

case has been tried to verdict, but whether (1) “the

federal issue has been finally decided in the state

courts,” (2) “with further proceedings pending in

which the party seeking review here might prevail on

the merits on nonfederal grounds,” (3) “where

reversal of the state court on the federal issue would

be preclusive of any further litigation on the relevant

cause of action,” and (4) “refusal immediately to

review the state court decision might seriously erode

federal policy.” Cox, 420 U.S. at 482–83.

That’s this case. The original proceeding in the

Colorado Supreme Court “finally decided” whether

the Constitution ousts Boulder’s judicial ploy. Id. at

482. It’s unlikely, but Suncor and Exxon can still

prevail on state-law grounds below. Id. Overturning

the decision below would kill Boulder’s case in the

state courts. Id. at 482–83. And greenlighting the

County’s litigation strategy will “seriously erode” the

15

constitutional order—“federal policy” of the highest

magnitude. Id. at 483.

On the other hand, if Boulder is right and the

final-judgment rule means this case was

improvidently granted, then Miami Herald v. Tornillo

was wrong. Cox, 420 U.S. at 484 (discussing Miami

Herald). And not just that cornerstone case, either.

This “Court has deemed sufficiently important the

constitutional policy against double jeopardy, federal

preemption of state safety rules for nuclear facilities,

the Federal Arbitration Act’s preemption of state

court jurisdiction, the NLRB’s exclusive jurisdiction

over labor disputes, and federal protection against

being subjected to litigation in certain state court

venues.” Gayle Gerson, A Return to Practicality:

Reforming the Fourth Cox Exception to the Final

Judgment Rule Governing Supreme Court Certiorari

Review of State Court Judgments, 73 Fordham L. Rev.

789, 826–27 (2004). Every single one of those cases

wasn’t decided by this Court acting ultra vires. In

fact, if they were, that would cast down on the

propriety of other foundational “premature” cases like

Mills v. Alabama, 384 U.S. 214 (1966), or National

Socialist Party of America v. Village of Skokie, 432

U.S. 43 (1977). Gerson, 73 Fordham L. Rev. at 827

n.258 (discussing Skokie as a Cox-like case). That

can’t be right.

The final-judgment rule isn’t a permission slip

for state courts to juke federal review of extraordinary

claims until after the unlawful litigation has finished

trampling the Constitution. See Fla. v. Thomas, 532

U.S. 774, 780 (2001) (applying Cox, 420 U.S. at

482–83). There’s no reason not to hear this case.

16

II.

AFFIRMANCE COURTS ECONOMIC CALAMITY.

Outsized consequences alone aren’t conclusive

evidence

that

a

government

is

acting

unconstitutionally. But they can suggest something’s

amiss. Cf. Learning Resources v. Trump, 607 U.S. __

(2026); Biden v. Neb., 600 U.S. 477 (2023); Ala. Ass’n

of Realtors v. U.S. Dep’t of HHS, 594 U.S. 758 (2021).

So it is here.

Allowing suits like Boulder’s to move forward

would have cataclysmic consequences for the

Nation—indeed, the world. The legal theory Boulder

advances is brazen: energy companies “have altered

the climate by producing, selling, and promoting fossil

fuels” in unsafe quantities and “[t]he consequences of

these actions have led to an altered climate with

concomitant costs.” Pet. App. 89a. That theory can’t

be cabined to a few large producers (or even just oil

and gas companies). Nor can it be limited by the

amended complaint’s occasional suggestions of

unsavory conspiracy. Boulder refuses to say the quiet

part out loud—its theory is that the fossil-fuel

industry itself is illegal.

So we aren’t talking about a backward-looking

injury against a known set of defendants—or limited

to “big” emitters. That’s not conjecture. Small, local

producers are being haled into court on similar

theories right now. City of Charleston v. Brabham Oil

Co., Case No. 20-3579, 2023 WL 11867279 at *6

(D.S.C. July 5, 2023); Pet. Br. 7 (“Nearly 60 state and

local governments have filed lawsuits such as this

one, and more are continuing to do so”). This is

precisely the sort of unpredictable legal chaos that the

Founders intended to preempt by making “the Judges

17

in every State . . . bound” to “[t]his Constitution, and

the Laws of the United States which shall be made in

Pursuance thereof.” U.S. Const., art. VI.

And this will get worse if not stopped now. If

the fossil-fuel industry itself is illegal and since global

climate change is, well, global, that means all local

governments must have suffered very similar

“harms” to those included in the amended complaint.

“The total number of U.S. local governments—

including county, township, municipal[,] and specialpurpose entities—was 90,837 in 2022.” Amy

Smaldone & Mark L.J. Wright, Local Governments in

the U.S.: A Breakdown by Number and Type, Fed.

Reserve Bank of St. Louis (Mar. 14, 2024);

https://perma.cc/Z2W4-CGRY. That’s a lot of

plaintiffs. Nor, for that matter, will the mischief stop

at

governments.

If

states,

counties,

and

municipalities can bring claims against members of

the fossil-fuel industry based on greenhouse-gas

emissions, why would Boulder’s theory stop there—

why not every person in the Nation?

Fifty states and the District of Columbia, all

U.S. overseas territories, 90,837 local governments,

340 million Americans, and 36 million business

entities—all potential plaintiffs. If even a fraction

bring suit and win, it will end the fossil-fuel industry,

from the largest oil companies down to the smallest

local producers. Even amortized settlements couldn’t

be structured in a way to staunch the bleeding from

judgments that would run to the trillions.

This result would have unimaginably vast

consequences. Like it or not, the world runs on fossil

fuels. Today, the three largest drivers of world energy

18

use are “[o]il and oil products” (30.2%), “[c]oal and coal

products” (27.8%), and “[n]atural gas” (22.7%). Int’l

Energy

Agency,

“World:

Energy

Mix,”

https://perma.cc/NXR8-RK87. Demand isn’t declining

either—“[g]lobal oil, natural-gas and coal demand

reached record levels in 2025.” Brenda Shaffer,

‘Renewable’ Energy Gives Us a Crisis, Wall St. J.

(Mar. 26, 2026).

America is no exception. “Fossil fuels have

dominated the U.S. energy mix for 100 years,” with

petroleum, natural gas, and coal combining for about

83 percent of “total U.S. energy consumption.” U.S.

Energy Information Admin., U.S. Energy Facts

Explained; https://perma.cc/V72G-D4XH.

And this isn’t “just” about fueling cars or

keeping the lights on. “In chemical manufacturing,

petroleum is” uniquely “critical: an astounding 90% of

chemical feedstocks are derived from oil or gas.

Virtually all plastic comes from chemicals extracted

from oil or gas, and petrochemicals are used to

produce everything from lubricants to paint to

plywood to synthetic fabrics to fertilizer.” Brian

Potter, How an Oil Refinery Works, Construction

Physics – Inst. for Progress (Apr. 30, 2026);

https://perma.cc/AZ6E-S5ET.

The future may see a rise in alternatives and a

swift transition to a nuclear or renewable baseload in

the United States. But we can’t count on it. And it’s

certainly not around the corner. American fossil fuel

production has soared—“[t]otal domestic production

of crude oil and natural gas in FY2024—the most

recent year for which data are available for both

federal and nonfederal production—was the highest

19

in the history of the United States for each

commodity.”

Lexie

Ryan,

Revenues

and

Disbursements from Oil and Natural Gas Leases on

Onshore Federal Lands, Cong. Rsch. Serv. (Feb. 12,

2026); see also id. at 1–5 (describing production

increases).

Consider: a phased-in, centrally directed effort

by the federal government to carry out an “aggressive

transformation in the domestic energy industry” was

estimated—by the implementing administration—to

“cause retail electricity prices to remain persistently

10% higher in many States” and “reduce GDP by at

least a trillion 2009 dollars by 2040.” W. Va. v. EPA,

597 U.S. 697, 714–15 (2022) (internal quotation

marks and citation omitted). Crushing the industry

wholesale would make that less-than-cheery outcome

look like overflowing abundance. After all, once the

world’s energy firms have been bankrupted by our

plaintiff’s bar—who would ever risk selling fossil fuels

in the United States ever again?

And even if these cases are ultimately losers,

unable to extract their trillions from fossil-fuel

producers, that doesn’t make them harmless. Until

the risk of jackpot litigation is taken off the table,

rational actors will have to price the uncertain, highimpact legal exposure of new hydrocarbon

exploration, production, or sales. Pricing that risk will

compel firms to cease new development and pause (or

claw back) investments in new (even if less-carbonintensive and more efficient) extraction.

The result? More expensive energy in a time of

increased demand until the heightened litigation risk

finally passes. That wait won’t end civilization, but it

20

won’t be cheap—and higher energy costs

disproportionately burden the least among us.

Aguilar & Fuentes-Albero, Energy Consumption and

Inequality; see also NFIB Rsch. Ctr., Small Business

Problems & Priorities (2024), https://perma.cc/7XPM332M (identifying “Cost of Natural Gas, Propane,

Gasoline, Disel, Fuel Oil” and “Electricity Costs

(rates)” as already significant problems for small

business success).

*

*

*

All this isn’t to say that the energy industry

can’t ever be held liable for honestly brought tort

cases. Of course it can. There’s no shortage of

lawsuits—or lawyers willing to bring them.

But are we really supposed to believe that the

Constitution, designed by boosters of markets and

commerce like Alexander Hamilton, Gouvernor

Morris, and Rufus King, has nothing to say about this

tort case—an effort by local governments to use the

state courts to destroy national prosperity? That’s

answered in the asking.

21

CONCLUSION

This Court is empowered to hear this case and

stop Boulder’s effort to subvert the “supreme Law of

the Land.” U.S. Const., art. VI. It should do so.

Respectfully submitted,

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

Elizabeth Milito

Rob Smith

NFIB SMALL BUSINESS LEGAL

CENTER, INC.

555 12th St., NW, Ste. 1001

Washington, DC 20004

Karen R. Harned

NATIONAL ASSOCIATION

OF WHOLESALER-DISTRIBUTORS

1325 G St., NW

Suite 1000

Washington, DC 20005

May 21, 2026