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

Supreme Court briefMay 21, 2026

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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.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF COLORADO

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

SARAH M. HARRIS

Deputy Solicitor General

Counsel of Record

ADAM R.F. GUSTAFSON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

ROBERT N. STANDER

Deputy Assistant

Attorney General

FREDERICK LIU

Assistant to the

Solicitor General

ROBERT J. LUNDMAN

KYLE GLYNN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether this Court has statutory and Article III

jurisdiction to hear this case.

2. 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.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ........................................................ 1

Introduction ..................................................................................... 2

Statement ......................................................................................... 5

A. Boulder’s state-court complaint................................ 5

B. Petitioners’ attempted removal to federal

court .............................................................................. 6

C. The state trial court’s denial of the motion to

dismiss .......................................................................... 7

D. The Colorado Supreme Court’s exercise of

original jurisdiction .................................................... 7

Summary of argument ................................................................... 8

Argument ....................................................................................... 10

I. This Court has jurisdiction ............................................ 10

A. This Court has statutory jurisdiction .................... 10

B. This Court has Article III jurisdiction .................. 14

II. The Constitution precludes Boulder’s state

common-law claims ......................................................... 15

A. Boulder seeks to use Colorado law to regulate

petitioners’ worldwide conduct ............................... 15

B. The Constitution bars Boulder’s attempt to

unilaterally regulate global emissions ................... 17

C. Boulder’s attempt to regulate global emissions

interferes with the federal government’s

exclusive role in foreign affairs ............................... 26

III. The Clean Air Act preempts Boulder’s state

common-law claims ......................................................... 28

A. The Clean Air Act’s decisionmaking scheme

puts EPA and source States in charge of

emissions .................................................................... 29

B. Boulder’s claims conflict with the Clean Air

Act’s decisionmaking scheme .................................. 32

Conclusion ...................................................................................... 35

Appendix — Constitutional provisions, statutory

provisions, and rule .......................................... 1a

(III)

IV

TABLE OF AUTHORITIES

Cases:

Page

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) ..................... 14

American Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .............................4, 20, 23, 24, 29, 31, 34

American Ins. Ass’n v. Garamendi,

539 U.S. 394 (2003) ..................................................... 9, 26, 27

American Trucking Ass’ns v. Los Angeles,

569 U.S. 641 (2013) ............................................................... 33

Atlantic Richfield Co. v. Christian,

590 U.S. 1 (2020) ....................................................... 11, 13, 14

Atlantic Richfield Co. v. Montana Second Judicial

Dist. Court, 408 P.3d 515 (Mont. 2017) .............................. 13

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) ..................................................... 9, 18, 19

BP p.l.c. v. Mayor & City Council of Baltimore,

593 U.S. 230 (2021) ................................................................. 6

Bell v. Cheswick Generating Station,

734 F.3d 188 (3d Cir. 2013) .................................................. 31

Bonaparte v. Tax Court, 104 U.S. 592 (1881) ...................... 18

Cameron v. Vandegriff, 13 S.W. 1092 (Ark. 1890) .............. 23

Camreta v. Greene, 563 U.S. 692 (2011) ............................... 14

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) .............................................. 27, 30

Commonwealth v. Macloon, 101 Mass. 1 (1869) ................. 23

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000) ............................................................... 27

Daimler AG v. Bauman, 571 U.S. 117 (2014) ............... 19, 25

Edgar v. MITE Corp., 457 U.S. 624 (1982) .................... 18, 19

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) .......................... 31

Fisher v. District Court, 424 U.S. 382 (1976) ...................... 11

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) ............................................................... 14

V

Cases—Continued:

Page

Franchise Tax Bd. v. Hyatt, 587 U.S. 230 (2019) ............... 18

Fuld v. Palestine Liberation Org.,

606 U.S. 1 (2025) ................................................................... 26

Hernández v. Mesa, 589 U.S. 93 (2020) ................................ 26

Hines v. Davidowitz, 312 U.S. 52 (1941) .............................. 27

Hoery v. United States, 64 P.3d 214 (Colo. 2003) ............... 33

Hyde v. United States, 225 U.S. 347 (1912) ......................... 21

Illinois v. Milwaukee, 406 U.S. 91 (1972) ............................ 32

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) ......................................................... 20, 30

Jesner v. Arab Bank, PLC, 584 U.S. 241 (2018).................. 28

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) ............................................................... 28

Kurns v. Railroad Friction Prods. Corp.,

565 U.S. 625 (2012) ................................................... 15, 16, 33

Lamps Plus, Inc. v. Varela, 587 U.S. 176 (2019)................. 29

Lessee of Pollard v. Hagan, 44 U.S. 212 (1845)................... 17

Lewis v. Lewis, 189 P.3d 1134 (Colo. 2008) .......................... 33

MacPherson v. Buick Motor Co.,

111 N.E. 1050 (N.Y. 1916) ................................................... 23

Merrick v. Diageo Americas Supply, Inc.,

805 F.3d 685 (6th Cir. 2015) ................................................ 30

Mission Prod. Holdings, Inc. v. Tempnology, LLC,

587 U.S. 370 (2019) ............................................................... 14

Missouri v. Illinois, 200 U.S. 496 (1906) ............................. 32

Mullaney v. Wilbur, 421 U.S. 684 (1975) ............................. 12

National Pork Producers Council v. Ross,

598 U.S. 356 (2023) ................................................... 17, 19, 20

New York Life Ins. Co. v. Head,

234 U.S. 149 (1914) ............................................................... 21

Nielsen v. Oregon, 212 U.S. 315 (1909)................................. 18

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ..................... 29

VI

Cases—Continued:

Page

Pacific Bell Tel. Co. v. linkLine Comm’cns, Inc.,

555 U.S. 438 (2009) ............................................................... 14

People ex rel. Gallagher v. District Court,

933 P.2d 583 (Colo. 1997) ..................................................... 13

People in Interest of T.T.,

442 P.3d 851 (Colo. 2019) ..................................................... 12

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ....... 19

Sanders v. District Court, 444 P.2d 645

(Colo. 1968) ............................................................................ 12

Simpson v. State, 17 S.E. 984 (Ga. 1893) ....................... 21, 22

Slack Techs., LLC v. Pirani, 598 U.S. 759 (2023) ............... 14

State v. Lord, 16 N.H. 357 (1844) .......................................... 23

State ex rel. Glenn v. District Court,

563 P.2d 73 (Mont. 1977) ...................................................... 13

State ex rel. U.S. Fidelity & Guar. Co. v.

Montana Second Judicial Dist. Court,

783 P.2d 911 (Mont. 1989) .................................................... 13

State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003) ............................................................... 18

Strassheim v. Daily, 221 U.S. 280 (1911) ....................... 21, 22

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................................... 14

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) ............................................................... 20

Young v. Masci, 289 U.S. 253 (1933) ..................................... 22

Zschernig v. Miller, 389 U.S. 429 (1968) .............................. 27

Constitutions, statutes, and rules:

U.S. Const.:

Art. I, § 8, Cl. 3 (Dormant Commerce Clause) ......... 3, 19

Art. III ...................................................................... 8, 10, 14

VII

Constitutions, statutes, and rules—Continued:

Page

Art. IV:

§ 2 .................................................................................. 17

§ 3 .................................................................................. 17

Art. VI, Cl. 2 (Supremacy Clause) ............................ 29, 1a

Amend. VI .......................................................................... 17

Amend. XIV (Due Process Clause) ................................ 19

Colo. Const. Art. VI:

§ 2(1) .............................................................................. 13, 1a

§ 3 ........................................................................... 11, 12, 2a

Mont. Const. Art. VII:

§ 2(1) .................................................................................... 11

§ 2(2) .................................................................................... 11

Clean Air Act,

42 U.S.C. 7401 et seq. ........................ 4, 6-8, 10, 28, 29, 31-34

42 U.S.C. 7411 .................................................. 10, 31, 34, 3a

42 U.S.C. 7411(a)(1) .................................................... 30, 3a

42 U.S.C. 7411(b)(1)(A)............................................... 30, 4a

42 U.S.C. 7411(b)(1)(B)............................................... 30, 5a

42 U.S.C. 7411(d) ......................................................... 30, 7a

42 U.S.C. 7411(d)(1) .................................................... 30, 7a

42 U.S.C. 7416 ...................................................... 10, 30, 16a

42 U.S.C. 7521(a)(1) .......................................................... 34

42 U.S.C. 7604(e) ............................................................... 30

Clean Water Act, 33 U.S.C. 1251 et seq.:

33 U.S.C. 1365(e) ............................................................... 30

33 U.S.C. 1370 .................................................................... 30

Locomotive Inspection Act, 49 U.S.C. 20701 et seq. ........... 33

28 U.S.C. 1257(a) ..................................................... 8, 10-12, 2a

Colorado Consumer Protection Act,

Colo. Rev. Stat. § 6-1-105(1) et seq. ...................................... 6

VIII

Rules—Continued:

Page

Colo. App. R.:

Rule 21 .................................................................... 7, 12, 17a

Rule 21(a)(1) ............................................................... 12, 17a

Rule 21(a)(2) ............................................................... 12, 17a

Rule 21(h)(2) .............................................................. 10, 23a

Rule 21(o) ................................................................... 10, 25a

Mont. R. App. P.:

Rule 14(1) ........................................................................... 12

Rule 14(3) ........................................................................... 12

Miscellaneous:

91 Fed. Reg. 7686 (Feb. 18, 2026) ......................................... 34

In the Supreme Court of the United States

No. 25-170

SUNCOR ENERGY (U.S.A.) INC., ET AL.,

PETITIONERS

v.

COUNTY COMMISSIONERS OF BOULDER COUNTY, ET AL.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF COLORADO

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case involves whether federal law precludes

claims seeking to apply one State’s law to the activities

of fossil-fuel companies around the world to hold those

companies liable for injuries allegedly caused by global

climate change. The United States has a substantial interest in the proper interpretation of the federal constitutional and statutory provisions involved. The United

States has recently brought suit to block similar attempts

to impose state-law liability for global fossil-fuel emissions because such suits severely interfere with the federal government’s constitutional and statutory responsibilities. See, e.g., United States v. Minnesota, No. 26cv-2456 (D. Minn.); United States v. Vermont, No. 25-cv463 (D. Vt.). And the United States filed a brief as amicus curiae at the petition stage of this case.

(1)

2

INTRODUCTION

This case presents a basic question: Can one city

wield one State’s law to dictate how the rest of the world

must address a global problem with global effects? The

Constitution supplies the answer: Absolutely not.

Here, the city is Boulder, the law is Colorado common

law, and the problem is global “climate change” from the

world’s collective “greenhouse gas emissions.” J.A. 5.

Boulder’s solution is to fault fossil-fuel producers like

petitioners for extracting, selling, and advertising fossil

fuels, inducing others to use them, then failing to “bring[]

emissions under control.” J.A. 97-98. Virtually all of that

conduct and its alleged consequences—from petitioners’

activities to others’ emissions, to resulting “warming [of ]

the atmosphere and oceans,” J.A. 3, 34-35, to myriad collateral effects—happens outside Colorado, and much occurs entirely overseas.

Boulder wants to hold petitioners liable for causing

global warming based on alleged effects in Boulder, from

wildfire damage to public-health costs from increased

insect-borne illnesses. J.A. 46-48, 52-53. Similar harms

will purportedly affect the whole world. Indeed, 60 States

and localities have brought near-identical suits to hold

fossil-fuel producers liable for alleged past and future

climate-related harms in those places. Those suits share

the same avowed goal: to address a global problem caused

by global conduct with global effects by imposing openended liability on fossil-fuel producers for every fardownstream consequence in that State that a state court

attributes to global warming.

The Constitution rejects that butterfly-effect theory

of state authority. In our constitutional system, States

are separate, coequal sovereigns within a unitary federal

system. Each State retains powers to regulate matters

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within its own borders. However, no one State can superimpose its own regulatory preferences on the rest—least

of all to address a global problem that exists almost entirely outside its borders and affects the world at large.

Multiple doctrines forbid such extraterritorial regulation, whether described as a structural constitutional constraint, a due-process limit, a Dormant Commerce Clause

violation, or an exclusively federal area.

Our federal system would disintegrate if each State

could tackle inherently national or international problems

by forcing its regulatory prescriptions on the other 49.

That free-for-all would generate a scrum of competing

regulatory approaches and republic-threatening tension.

Colorado cannot leverage state law to impose liability

for petitioners’ worldwide fossil-fuel activities any more

than Oregon could use its law to penalize global cruise

lines for facilitating pandemics that strain Oregon’s hospitals. The Framers vested the federal government—not

each State—with powers to address national problems

with uniform national regulations.

Compounding the constitutional problem, Boulder’s

suit offends vertical federalism by interfering with the

federal government’s exclusive role over foreign affairs.

Global warming is a global issue, and the United States’

position in international negotiations has opposed the

very sorts of liability and compensation schemes that

Boulder and dozens of other States and localities are attempting to impose. The federal government cannot retain its primacy in international affairs if subsets of the

United States are effectively negotiating against it. State

and local suits like Boulder’s also invite needless diplomatic friction with the foreign countries where petitioners extract, produce, and sell fossil fuels, and where those

activities are presumably lawful. All of this underscores

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why the Framers vested the federal government alone

with authority over foreign policy.

Congress further precluded Boulder’s claims by enacting the Clean Air Act, 42 U.S.C. 7401 et seq., which preempts contrary state regulation. Congress “delegated”

to the Environmental Protection Agency (EPA) “the decision whether and how to regulate carbon-dioxide emissions from powerplants.” American Elec. Power Co. v.

Connecticut, 564 U.S. 410, 426 (2011). The Act reflects

Congress’s choice to address air pollution by targeting

only domestic emitters like factories and power plants.

The Act also gives the State where emissions occur a cooperative role in regulating emissions—but other States

cannot seize a seat at the regulatory table by alleging

in-state effects of emissions.

Boulder would upend that scheme. Whereas Congress mandated an EPA-helmed national air-pollution

scheme targeting stationary emissions sources, Boulder

would let any State force any actor anywhere in the chain

of production, distribution, and consumption to cease any

emissions-causing conduct. Whereas Congress targeted

only domestic emissions, Boulder would regulate the

world. Boulder’s state-law choices are no supplements

to the federal scheme; they are its nemesis, thwarting

EPA’s ability to determine whether and how to regulate

stationary sources by allowing all 50 States to impose

different regimes for different ends—here, attempting

to impose liability so unending and extreme that fossilfuel producers may be forced out of business. This Court

has never countenanced the notion that a single State

could dictate how the entire country—let alone the world

—addresses a global problem with indivisible global effects. The Constitution and the Clean Air Act foreclose

that topsy-turvy result.

5

STATEMENT

A. Boulder’s State-Court Complaint

In 2018, the City and county of Boulder (together,

Boulder) sued petitioners in Colorado state court. Pet.

App. 49a-50a. Petitioners are energy companies that engage in “fossil fuel activities”—the production, promotion, refining, marketing, and sale of fossil fuels, such as

oil, natural gas, and coal. J.A. 5, 14.1

Boulder alleges that petitioners’ worldwide production, promotion, and sale of fossil fuels prompted others

worldwide to use those fuels in ways that emit greenhouse gases into the atmosphere. J.A. 5-6, 18, 23-24, 35.

Boulder seeks to hold petitioners “responsible” for their

role, currently and “historically,” in facilitating “billions

of tons” of downstream greenhouse-gas emissions “globally.” J.A. 18, 24, 98, 102. The “increased” concentration of greenhouse gases in the atmosphere, Boulder alleges, “trap[s] heat in the climate system, and warm[s]

the planet,” J.A. 34, causing “more (and more serious)

heat waves, wildfires, droughts, and floods,” among other

effects—all injuring Boulder’s “property” and “residents” along with the rest of the world, J.A. 2.

Boulder asserts five Colorado common-law claims

against petitioners stemming from their role in “causing

and/or contributing to climate change,” J.A. 118: public

nuisance, private nuisance, trespass, unjust enrichment,

and civil conspiracy. J.A. 112-123, 127-136. Those claims

seek to compel petitioners “to compensate [Boulder] for

[its] past and future damages and costs to mitigate the

impact of climate change.” J.A. 136 (emphasis omitted).

Plaintiffs originally included San Miguel County, but the trial

court transferred its claims to a different venue. Pet. App. 49a n.1.

The court also dismissed Boulder’s claims against defendant Suncor

Energy, Inc., for lack of personal jurisdiction. Id. at 75a-87a.

1

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Boulder asserts that it has “spent and will have to spend

substantial sums to mitigate” its injuries, J.A. 115-116,

including “damage to property (valued in the billions of

dollars),” J.A. 114.2

B. Petitioners’ Attempted Removal To Federal Court

Petitioners removed the case to federal court. See

405 F. Supp. 3d 947, 955, 975. The district court ordered

the case remanded to state court. Id. at 954. The court

of appeals affirmed. 965 F.3d 792. This Court granted

a writ of certiorari, vacated the court of appeals’ judgment, and remanded for further consideration in light

of BP p.l.c. v. Mayor & City Council of Baltimore, 593

U.S. 230 (2021). See 141 S. Ct. 2667.

The court of appeals again affirmed the remand to

state court. 25 F.4th 1238, 1246. Petitioners sought review; at this Court’s invitation, the Solicitor General

filed a brief taking the position that the case was not

removable. U.S. Cert. Amicus Br. at 6-7, Suncor Energy

(U.S.A.) Inc. v. Board of County Comm’rs, 143 S. Ct. 1795

(2023) (No. 21-1550). The brief explained that Boulder’s

claims did not present a federal question under the wellpleaded-complaint rule and could not be recharacterized

as arising under federal common law. Id. at 7-16. The

brief, however, expressly distinguished the removability issue from whether the Clean Air Act preempts Boulder’s claims. Id. at 13-15. This Court denied review. 143

S. Ct. 1795.

Boulder also asserted a claim under the Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-105(1) et seq. J.A. 124-127. Unlike

the common-law claims, that claim sought to hold petitioners liable

only for “deceptive trade practices” “in Colorado.” J.A. 124. The

trial court dismissed that claim without prejudice based on Boulder’s failure to plead it with particularity. Pet. App. 133a-136a.

2

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C. The State Trial Court’s Denial Of The Motion To Dismiss

In state court, petitioners moved to dismiss Boulder’s

complaint for failure to state a claim. Mot. to Dismiss Am.

Compl. for Failure to State a Claim (Dec. 9, 2019). As

relevant here, petitioners contended that Boulder’s claims

involve unconstitutional extraterritorial regulation and

are preempted by the Clean Air Act. Id. at 14-16, 19.

Petitioners added that Boulder’s efforts to punish petitioners’ “worldwide” conduct impair the federal foreignaffairs power and violate due process. Id. at 16, 19.

The trial court denied petitioners’ motion to dismiss

Boulder’s common-law claims. Pet. App. 48a-139a. The

court reasoned that nothing in the Constitution precludes Boulder from seeking “damages for conduct causing in-state injuries.” Id. at 112a. The court also rejected

Clean Air Act preemption because Boulder’s claims are

“not about regulating emissions.” Id. at 105a.

D. The Colorado Supreme Court’s Exercise Of Original

Jurisdiction

Petitioner Exxon Mobil Corporation filed a petition,

which the other petitioners later joined, invoking the

Colorado Supreme Court’s “original” jurisdiction under

Colorado Appellate Rule 21. Pet. for Order to Show

Cause 6 (July 16, 2024). The Colorado Supreme Court

issued an order to show cause as to “[w]hether the [trial]

court erroneously concluded that [Boulder’s] claims could

proceed under state law.” J.A. 142.

After briefing and oral argument, the Colorado Supreme Court determined that the case warranted the

exercise of “original jurisdiction” under Rule 21. Pet.

App. 8a. The court discharged the order to show cause

and remanded for further proceedings, concluding that

neither the Constitution nor other federal law bars Boulder’s claims. Id. at 1a-47a.

8

The Colorado Supreme Court rejected petitioners’

reliance on “federalism concerns,” “the structure of the

Constitution,” and “the federal foreign affairs power.”

Pet. App. 16a-17a, 22a. The court reasoned that Boulder’s claims would not “impair the effective exercise of

this country’s foreign policy” because they “do not seek

to regulate [greenhouse-gas] emissions.” Id. at 24a.

The Colorado Supreme Court also held that Boulder’s

claims are not preempted by federal common law because the Clean Air Act “displaced the federal common

law in this area.” Pet. App. 11a, 16a. The court further

concluded that the Act itself does not preempt Boulder’s claims because those claims “do not seek compensation for any [greenhouse-gas emissions] by [petitioners] themselves but rather focus on [petitioners’] upstream production activities.” Id. at 21a.

Justice Samour, joined by Justice Boatright, dissented, Pet. App. 25a-47a, reasoning that the Clean Air

Act and “the federal government’s primacy in foreign

affairs” preclude Boulder’s claims, id. at 27a-28a.

SUMMARY OF ARGUMENT

I. This Court has jurisdiction. The decision below is

a “[f ]inal” judgment under 28 U.S.C. 1257(a) because it

terminated an original, self-contained proceeding in the

Colorado Supreme Court. Further, petitioners have Article III standing to invoke this Court’s authority. The

decision below increases the risk that petitioners will be

found liable and must pay damages, and it subjects petitioners to the burden of having to continue defending

against Boulder’s suit.

II. The Constitution precludes Boulder’s state-law

claims. Petitioners engage in the worldwide production,

promotion, and sale of fossil fuels. Boulder’s claims seek

to hold petitioners liable for their global activities—

9

most of which occurred outside Colorado and, indeed,

the United States—on the theory that they caused a

global problem (climate change) affecting the entire

planet (including Boulder). To avoid added liability, petitioners would have to cease any further fossil-fuel activities anywhere—triggering momentous consequences

for the global economy.

The Constitution bars Boulder’s attempt at universal

regulation. Under the Constitution, each State is an equal

sovereign over its own territory. Thus, each State may

regulate matters within its borders. No State, however,

can “impose its own policy choice on neighboring States,”

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 571 (1996)—

least of all to address global problems that exist almost

entirely outside its borders and affect the world at large.

Boulder cannot evade that principle by pointing to the

in-state effects of petitioners’ worldwide conduct. Those

effects are far too attenuated to justify imposing Colorado law on the rest of the country to address an inherently interstate issue.

The Constitution further prohibits Boulder from attempting to extend Colorado law to regulate the rest of

the world. The Constitution “allocat[es]” the “foreign

relations power to the National Government.” American

Ins. Ass’n v. Garamendi, 539 U.S. 394, 413 (2003). The

federal government has long opposed the establishment

of liability and compensation schemes at the international level to address the alleged effects of climate

change. Yet Boulder’s claims would impose just such a

scheme, forcing multinational fossil-fuel companies to

pay damages indefinitely for their alleged roles in causing climate change. Boulder’s claims would interfere

with foreign relations in myriad other ways, undermin-

10

ing the United States’ ability to speak with one voice on

the international stage.

III. The Clean Air Act also preempts Boulder’s statelaw claims. That Act makes EPA the decisionmaker on

whether and how to regulate emissions from stationary

sources. 42 U.S.C. 7411. States retain authority to regulate only sources within their borders. 42 U.S.C. 7416.

Boulder would instead make Colorado state judges the

decisionmakers; curb emissions by targeting upstream

fossil-fuel suppliers rather than stationary emissions

sources; and impose liability for worldwide emissionscausing conduct. Together, those choices would supplant

Congress’s careful choices and invite competing regimes from all 50 States.

ARGUMENT

I. THIS COURT HAS JURISDICTION

This Court has both statutory and Article III jurisdiction. The decision below is a final judgment under 28

U.S.C. 1257(a), and petitioners have Article III standing to invoke this Court’s authority.

A. This Court Has Statutory Jurisdiction

1. Section 1257(a) grants this Court jurisdiction to review “[f ]inal judgments or decrees rendered by the highest court of a State.” 28 U.S.C. 1257(a). The decision

below is the “final determination of [an] original proceeding in the [state] supreme court.” Colo. App. R. 21(h)(2)

and (o). The Colorado Supreme Court exercised its original jurisdiction to decide whether the Constitution or

other federal law precludes Boulder’s claims and

thereby created a self-contained case that concluded

with its decision holding that the claims are not precluded. Pet. App. 7a-8a, 24a. This Court thus has jurisdiction under Section 1257(a), even though the Colorado

11

Supreme Court contemplated further trial-court proceedings. See id. at 24a-25a; Fisher v. District Court,

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

That conclusion flows from Atlantic Richfield Co. v.

Christian, 590 U.S. 1 (2020), where this Court exercised

jurisdiction over a case in the same posture. There,

plaintiffs sued in Montana state court, pressing state

common-law claims. Id. at 9. The defendant, Atlantic

Richfield, countered that federal law precluded some

claims. Id. at 10. The state trial court rejected that argument, denied Atlantic Richfield’s motion for summary

judgment, and ordered the claims to proceed to trial.

Ibid. After Atlantic Richfield invoked the Montana Supreme Court’s original jurisdiction to issue writs of supervisory control, that court exercised original jurisdiction and affirmed the trial court’s ruling. Id. at 10-12.

This Court held that the Montana Supreme Court’s

decision was “final” under Section 1257(a) because “[u]nder Montana law, a supervisory writ proceeding is a

self-contained case, not an interlocutory appeal.” Atlantic Richfield, 590 U.S. at 12. Thus, the Montana Supreme

Court’s resolution of that proceeding was “final,” even

though it “allowed the case to proceed to trial.” Ibid.

“[T]he nature of the [state-court] proceeding, not the issues the state court reviewed,” determines finality. Ibid.

This case is materially identical. Like Montana’s Constitution, Colorado’s Constitution grants the state supreme court original jurisdiction over certain cases.

Compare Mont. Const. Art. VII, § 2(1) and (2) (granting

“original jurisdiction” and “general supervisory control”),

with Colo. Const. Art. VI, § 3 (granting “original” jurisdiction to issue such writs “as may be provided by rule of

court”). Like Montana law, Colorado law prescribes that

the state supreme court’s exercise of original jurisdic-

12

tion constitutes a self-contained proceeding. Compare

Mont. R. App. P. 14(1) and (3) (distinguishing exercises

of “original” jurisdiction from the “normal appeal process”), with Colo. App. R. 21(a)(1) and (2) (distinguishing exercises of “original jurisdiction” from “relief available by appeal”). Like the Montana Supreme Court’s

decision in Atlantic Richfield, the Colorado Supreme

Court’s decision here also terminates such a proceeding.

Pet. App. 24a. As in Atlantic Richfield, the decision below is a final judgment under Section 1257(a) despite

contemplating further trial-court proceedings.

2. Boulder instead contends (Br. in Opp. 10-13) that

the Colorado Supreme Court was exercising its appellate, not its original, jurisdiction when issuing its decision

below. But the Colorado Supreme Court—the “ultimate

expositor[]” of Colorado law, Mullaney v. Wilbur, 421

U.S. 684, 691 (1975)—disagreed, stating that it was exercising its “original jurisdiction under [Colorado Appellate Rule] 21.” Pet. App. 7a. That should be dispositive.

See Mullaney, 421 U.S. at 691.

Regardless, Boulder’s characterization is wrong; the

Colorado Supreme Court was not exercising a power of

“general superintending control” that is limited to appellate proceedings. Br. in Opp. 11 (citation omitted).

That court has long exercised general superintending

control in original, not just appellate, proceedings. See,

e.g., People in Interest of T.T., 442 P.3d 851, 856 (Colo.

2019) (finding an exercise of “original jurisdiction” appropriate “as a matter of [the state supreme court’s]

general superintending authority”); Sanders v. District

Court, 444 P.2d 645, 650 (Colo. 1968) (similar). Since

1999, Rule 21 has expressly approved that practice. Colo.

App. R. 21(a)(1); see Colo. Const. Art. VI, § 3. It is irrelevant that the Colorado Constitution’s grant of “gen-

13

eral superintending control” appears in the same provision as its grant of “appellate jurisdiction.” Br. in Opp.

11 (citation omitted). Nothing in that provision restricts

the exercise of “general superintending control” to appellate proceedings, Colo. Const. Art. VI, § 2(1), and the

Colorado Supreme Court has not read such a restriction

into the text.

Boulder also characterizes the decision below as involving an exercise of appellate jurisdiction because the

state supreme court “reviewed” a trial court’s order “de

novo” and “ ‘remand[ed]’ ” for further proceedings. Br.

in Opp. 12 (quoting Pet. App. 24a). The same was true in

Atlantic Richfield: The Montana Supreme Court “review[ed]” a trial court’s order “de novo” and “remanded”

for further proceedings. Atlantic Richfield Co. v. Montana Second Judicial Dist. Court, 408 P.3d 515, 518, 523

(2017). The original proceeding in the state supreme

court was still “a self-contained case, not an interlocutory appeal.” Atlantic Richfield, 590 U.S. at 12.

Boulder adds that the Colorado Supreme Court

sometimes refers to “[o]riginal proceedings pursuant to

[Rule] 21” as “interlocutory appeal[s].” People ex rel.

Gallagher v. District Court, 933 P.2d 583, 592 (1997);

see Br. in Opp. 12. But “interlocutory” in that context

means only that the trial court has not decided the entire case. Gallagher, 933 P.2d at 592. The Montana Supreme Court has similarly sometimes described the

type of proceeding in Atlantic Richfield as “interlocutory review.” See, e.g., State ex rel. U.S. Fidelity & Guar.

Co. v. Montana Second Judicial Dist. Court, 783 P.2d

911, 913 (Mont. 1989); State ex rel. Glenn v. District

Court, 563 P.2d 73, 73 (Mont. 1977) (per curiam). The

proceeding is still an original, self-contained case.

14

B. This Court Has Article III Jurisdiction

Article III’s case-or-controversy requirement is inapplicable in state courts, but petitioners must satisfy

that requirement here. ASARCO Inc. v. Kadish, 490

U.S. 605, 618-620 (1989). The decision below lets Boulder’s common-law claims for massive damages proceed.

Pet. App. 24a. Petitioners have a natural “stake” in challenging that adverse decision, and Boulder has a natural

“stake” in defending it. Camreta v. Greene, 563 U.S. 692,

701 (2011). That satisfies Article III.

Boulder contends (Br. in Opp. 14) that petitioners lack

Article III standing because the decision below “merely

declined to reverse denial of a motion to dismiss.” This

Court has repeatedly rejected that theory by exercising

Article III jurisdiction to review decisions declining to

reverse the denial of a motion to dismiss or motion for

summary judgment. 3 Here, the decision below injures

petitioners in two cognizable ways. First, it increases

the risk that, at the end of the litigation, they will be

found liable and ordered to pay damages. See Mission

Prod. Holdings, Inc. v. Tempnology, LLC, 587 U.S. 370,

377 (2019). Second, it subjects petitioners to the burden

of having to continue defending against Boulder’s claims.

See Susan B. Anthony List v. Driehaus, 573 U.S. 149,

165 (2014). A favorable decision from this Court would

redress those injuries caused by the decision below, satisfying each element of appellate standing. See Food

Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 432433 (2019).

See, e.g., Slack Techs., LLC v. Pirani, 598 U.S. 759, 765 (2023);

Atlantic Richfield, 590 U.S. at 10; Pacific Bell Tel. Co. v. linkLine

Comm’cns, Inc., 555 U.S. 438, 444-445 (2009).

3

15

II. THE CONSTITUTION PRECLUDES BOULDER’S STATE

COMMON-LAW CLAIMS

Petitioners engage in fossil-fuel activities worldwide.

Boulder’s state-law claims assert that petitioners’ worldwide activities facilitated others’ worldwide emissions

and are “responsible for causing, contributing to, and

increasing the impacts of climate change.” J.A. 84. Boulder would thus force petitioners to indefinitely pay multibillion-dollar costs of abating all downstream effects in

Boulder that Boulder attributes to climate change. See

pp. 5-6, supra. To avoid added liability, petitioners would

have to cease “future” fossil-fuel activities entirely. J.A.

136 (emphasis omitted). The Constitution bars that attempt at universal regulation, which contravenes territorial limits on state authority and the federal government’s exclusive role over foreign affairs.

A. Boulder Seeks To Use Colorado Law To Regulate

Petitioners’ Worldwide Conduct

The constitutional analysis must begin with an understanding of the sheer scope of Boulder’s claims,

which attempt to leverage state common law to regulate

(and effectively halt) petitioners’ worldwide production,

sale, and promotion of fossil fuels.

To begin, Boulder’s claims—styled as common-law

nuisance, trespass, unjust enrichment, and conspiracy

—involve state regulation. J.A. 112-123, 127-136. Common law “duties and standards of care” constitute “state

‘regulation,’ ” no less than a state statute or administrative rule. Kurns v. Railroad Friction Prods. Corp., 565

U.S. 625, 637 (2012) (citation omitted). “[S]tate ‘regulation can be effectively exerted through an award of damages,’ and ‘the obligation to pay compensation can be,

indeed is designed to be, a potent method of governing

16

conduct and controlling policy.’ ” Ibid. (brackets, citation,

and ellipsis omitted).

Here, Boulder’s regulatory method would be potent

indeed. Boulder’s claims posit that petitioners engaged

in wrongful conduct worldwide—“caus[ing], creat[ing],

contribut[ing] to and/or exacerbat[ing] dangerous alterations in the climate” by producing, selling, and advertising fossil fuels, J.A. 112, and by failing to “bring[]

emissions under control,” J.A. 98. Boulder targets those

activities “globally and historically.” J.A. 98, 102. Virtually all of that fossil-fuel activity occurred outside Colorado, and much of it outside the United States. See J.A.

14-15, 17-18, 21-24, 29, 32-34, 96, 99-103. For example,

the complaint describes Exxon’s “explor[ation] for oil

and natural gas on six continents” and “market[ing] [of ]

products all over the world,” citing activities in Texas,

Canada, Latin America, Angola, Qatar, Russia, and the

United Arab Emirates. J.A. 21-22, 29, 32, 99-101.

So too, billions of actors’ ensuing emissions from using fossil fuels occurred outside Colorado, and mostly

abroad. See J.A. 18, 23-24, 98, 102. Boulder alleges that

those global emissions combine invisibly and indivisibly

to create a global problem that inflicts global consequences, from more frequent storms to droughts, and

from rising sea levels to higher rates of insect-borne

diseases. J.A. 39, 52-53, 118. Boulder blames petitioners for all of this, for wrongfully selling and marketing

“fossil fuels at levels [they] knew would bring numerous

and catastrophic injuries to Colorado.” Resp. Colo. Sup.

Ct. Br. 1; see J.A. 2, 34, 112. Those are the same kinds

of injuries that the rest of the world would allegedly experience. J.A. 5, 34-35, 41, 88-89.

Boulder’s claims would leave petitioners indefinitely

on the hook for the many billions of dollars it takes to

17

remediate every past and future phenomenon that Colorado courts attribute to global warming. That apparently includes everything from impairment of Boulder

citizens’ rights “to use and enjoy public property,” to

interference with their rights to “emergency management” and “safe and unobstructed travel,” to costs associated with rebuilding infrastructure and mitigating

“pest infestations,” to losses arising from “reduced” agricultural and employee “productivity.” J.A. 113, 116117. Boulder also seeks petitioners’ “profits” from “not

incurring the costs necessary to reduce the impacts of

[their] contributions to climate change” in Boulder. J.A.

123. To avoid further liability, petitioners would need to

curtail their fossil-fuel activities so as to “bring[] emissions under control.” J.A. 98.

B. The Constitution Bars Boulder’s Attempt To Unilaterally

Regulate Global Emissions

The Constitution allocates sovereign authority equally

among the States and thereby generally disempowers

one State from regulating within others. That principle,

derived from the text and structure of the Constitution,

forbids a State from circumventing territorial limits on

its power and attempting to impose its own will on all

other States confronted with a shared interstate problem. The constitutional structure thus forecloses Boulder’s attempt to use Colorado common law to hold petitioners responsible for fueling global climate change.

1. The Constitution allocates power both vertically

(between the federal government and the States) and

“horizontal[ly]” (among the States). National Pork Producers Council v. Ross, 598 U.S. 356, 376 n.1 (2023). That

horizontal allocation of authority is territorial. See, e.g.,

U.S. Const. Art. IV, §§ 2, 3; U.S. Const. Amend. VI; Lessee of Pollard v. Hagan, 44 U.S. 212, 228 (1845). Under

18

the Constitution, each State is an “equal” sovereign

over its own territory. Franchise Tax Bd. v. Hyatt, 587

U.S. 230, 246 (2019) (citation omitted). Equal sovereignty means “each State may make its own reasoned

judgment about what conduct is permitted or proscribed

within its borders.” State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 422 (2003).

By the same token, equal sovereignty “implies certain

constitutional ‘limitations’ ” on a State’s authority. Hyatt, 587 U.S. at 245 (brackets and citation omitted). One

such limitation, embodied in the Constitution’s structure, is that a State generally may not reach across borders and regulate conduct in other States. “No State can

legislate except with reference to its own jurisdiction.”

Bonaparte v. Tax Court, 104 U.S. 592, 594 (1882). And

“no single State” can impose “a policy for the entire Nation” or “even impose its own policy choice on neighboring States.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559,

571 (1996). Doing so would violate “[e]ach State’s equal

dignity and sovereignty under the Constitution”—a

principle “embed[ded] * * * within the constitutional

design.” Hyatt, 587 U.S. at 245.

This Court has repeatedly enforced that constitutional

prohibition on extraterritorial regulation. In Bonaparte,

the Court rejected a State’s attempt to exempt securities held by residents of another State from taxation in

that other State. 104 U.S. at 592-594. In Nielsen v. Oregon, 212 U.S. 315 (1909), the Court rejected a State’s

attempt to “punish a man for doing within the territorial

limits of [another State] an act which that [other] State

had specially authorized him to do.” Id. at 321. Likewise, in Edgar v. MITE Corp., 457 U.S. 624 (1982), the

plurality rejected a State’s attempt to “directly regulate[]

19

transactions” that took place “wholly outside the State.”

Id. at 641.

Moreover, this Court has identified myriad constitutional provisions and doctrines that reinforce “the role

territory and sovereign boundaries play,” National Pork

Producers, 598 U.S. at 375—especially when one State

seeks to tackle inherently interstate issues. For instance,

the Court has interpreted the Fourteenth Amendment’s

Due Process Clause to prohibit a State from exercising

general personal jurisdiction over a defendant—and adjudicating his conduct nationwide—simply because he

placed his product in “the stream of commerce.” Daimler AG v. Bauman, 571 U.S. 117, 132 (2014). And due process prohibits a State from “impos[ing] economic sanctions on violators of its laws with the intent of changing

the tortfeasors’ lawful conduct in other States.” BMW,

517 U.S. at 572. So too, due process prohibits choosing a

single State’s law to govern every claim in a “nationwide

class action” when that State lacks a sufficient “ ‘interest’ ” in all the claims. Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 822 (1985).

This Court has also invoked the Dormant Commerce

Clause to “resolve disputes about the reach of one State’s

power.” National Pork Producers, 598 U.S. at 376. National Pork Producers held that the Dormant Commerce

Clause did not impose an “ ‘almost per se’ rule forbidding enforcement of state laws that have the ‘practical

effect of controlling commerce outside the State,’ even

when those laws do not purposely discriminate against

out-of-state economic interests.” Id. at 371 (citation omitted). But that case involved a state law that regulated

in-state conduct (the sale of pork) with out-of-state effects (on pork producers). Id. at 363-364, 376 n.1. This

case involves the opposite: a state-law attempt to lever-

20

age in-state effects (e.g., wildfires) to justify directly

regulating out-of-state conduct (e.g., oil production).

The Court in National Pork Producers aptly suggested

that such an effort to regulate out-of-state conduct could

violate “the territorial limits of state authority under

the Constitution’s horizontal separation of powers.” Id.

at 376 n.1.

Similarly, the Court has recognized certain controversies that “our federal system does not permit” to “be

resolved under state law” because “the interstate or international nature of the controversy makes it inappropriate for state law to control.” Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981). Thus, the

Court has said, “the regulation of interstate water pollution is a matter of federal, not state law.” International

Paper Co. v. Ouellette, 479 U.S. 481, 488 (1987). Accordingly, “borrowing the law of a particular State would be

inappropriate” when “ ‘deal[ing] with air and water in

their ambient or interstate aspects.’ ” American Elec.

Power Co. v. Connecticut, 564 U.S. 410, 421-422 (2011)

(AEP) (citation omitted).

Whatever the label, these doctrines all perform the

same function: to “referee disputes about where one

State’s authority ends and another’s begins.” National

Pork Producers, 598 U.S. at 375. Where global problems

with global reach are concerned, these doctrines favor

respecting “the role territory and sovereign boundaries

play” over allowing each State to force its policy choices

on its neighbors. Ibid. Across contexts, the constitutional rule against extraterritorial reach has particular

force with respect to inherently interstate issues. Those

issues present heightened risks that, by regulating conduct outside its borders, a State will impose its policy

choices on the Nation. When nationwide and global prob-

21

lems are at issue, it is especially important that States

remain “within the orbits of their lawful authority.” New

York Life Ins. Co. v. Head, 234 U.S. 149, 161 (1914).

Boulder’s claims clearly violate constitutional prohibitions on extraterritorial regulation. Boulder is attempting to use state law to hold petitioners liable for a worldwide problem caused by indivisible worldwide emissions

by effectively forcing them to abandon their worldwide

fossil-fuel activities—all because the problem has fardownstream alleged effects in Colorado that are no different from and may indeed be dwarfed by alleged effects in other States.

2. Boulder invokes an exception to the rule against

extraterritorial regulation, whereby States can regulate

conduct outside a State when that conduct produces, or

is intended to produce, certain effects within the State.

See Br. in Opp. 33; Resp. Colo. Sup. Ct. Br. 4, 19-20, 49.

That exception does not encompass attempts by one

State to regulate an inherently interstate or global problem arising from almost wholly extraterritorial conduct

whose in-state consequences are the same in kind in

every State.

Rather, the effects-based exception rests on a theory

of “constructive presence in a State” that requires a far

closer nexus to the regulating State. Hyde v. United

States, 225 U.S. 347, 362 (1912). If the effects of a person’s out-of-state conduct are sufficiently proximate,

the theory goes, the person can be treated as constructively, if not actually, present in the State where the effects occur, and thus subject to that State’s regulatory

authority. Ibid.; see Strassheim v. Daily, 221 U.S. 280,

285 (1911).

For example, Simpson v. State, 17 S.E. 984 (Ga. 1893),

involved a shooter standing in South Carolina who

22

aimed and fired a pistol at someone across the border in

Georgia. Id. at 985. The “balls from the pistol” missed

the intended victim but landed in Georgia and “took effect” there. Ibid. The Georgia Supreme Court held that

the shooter could be prosecuted under Georgia law

based on a theory of “constructive” presence: Although

the shooter never set foot in Georgia, he could be “regard[ed]” as “accompanying the ball, and as being represented by it, up to the point where it strikes.” Ibid.

Simpson illustrates that the effects of the out-of-state

conduct must be direct, traceable, and particularized.

One could draw a straight line from the firing of the

shots in South Carolina to their effects in Georgia, allowing Georgia to punish the shooter “as if he had been

present at the effect.” Strassheim, 221 U.S. at 285.

Young v. Masci, 289 U.S. 253 (1933), fits the same

mold. The Court stated that “a person acting outside the

State may be held responsible according to the law of

the State for injurious consequences within it,” id. at

259, because the injurious consequences in Young were

direct, traceable, and particularized. A car owner in New

Jersey lent his car to someone who drove the car into

New York and accidently hit a pedestrian. Id. at 256.

The Court explained that “[w]hen [the owner] gave permission to drive his car to New York, he subjected himself to the legal consequences imposed by that State

upon [the driver’s] negligent driving as fully as if he had

stood in the relation of master to servant.” Id. at 258.

That close nexus justified treating the owner as if he

had been present in New York.

Likewise, under the effects-based exception, someone

in Illinois could be punished under Michigan law for selling machinery under false pretenses to a buyer in Michigan. Strassheim, 221 U.S. at 281-285. Someone who se-

23

verely injured a man on the high seas could be punished

under Massachusetts law for causing the man’s death in

Massachusetts. Commonwealth v. Macloon, 101 Mass. 1,

4 (1869). A company that manufactured a defective car

in Michigan could be held liable under New York law for

causing the car to break down in New York. MacPherson v. Buick Motor Co., 111 N.E. 1050, 1051-1055 (N.Y.

1916). Someone who constructed a dam in Maine could

be held liable under New Hampshire law for flooding a

road in New Hampshire. State v. Lord, 16 N.H. 357, 359

(1844). And someone who blasted rock in Indian Territory could be held liable under Arkansas law for striking a person with a piece of rock in Arkansas. Cameron

v. Vandegriff, 13 S.W. 1092, 1092-1093 (Ark. 1890).

All of those decisions involved localized problems with

direct, traceable, and particularized effects. By contrast,

Boulder’s invocation of the effects-based exception posits that petitioners’ out-of-state conduct caused alterations to the climate affecting the entire planet, including

Colorado. J.A. 2, 21, 34. This Court, however, has “[n]ever held that a State may sue to abate any and all manner

of pollution originating outside its borders.” AEP, 564

U.S. at 422. To the extent petitioners’ fossil-fuel activities in Colorado contributed to ensuing emissions and

global warming, those activities played an infinitesimal

role at most. Boulder’s claims do not distinguish activities within Colorado from those outside the State; nor

could they disambiguate which sources of emissions

caused alleged harms in Boulder. See pp. 16-17, supra.

Nothing about the effects exception lets Boulder use

far-downstream effects in Boulder—which are just one

part of undifferentiated alleged global consequences—

as a hook to impose Colorado law on petitioners’ worldwide conduct.

24

Boulder’s complaint underscores just how many indirect steps separate petitioners’ worldwide conduct from

far-down-the-chain effects in Boulder. Take the alleged

connection between Exxon’s operations in Texas and the

alleged “costs associated with increased drought conditions” in Boulder. J.A. 29, 137. The complaint suggests

the following causal chain: (1) Exxon explores for natural gas in Texas, see J.A. 21-24, 97-98; (2) Exxon sells

natural gas to unspecified powerplants worldwide, see

J.A. 97-98; (3) powerplants worldwide burn the natural

gas to generate electricity, emitting greenhouse gases

into the atmosphere, see J.A. 35, 98; (4) those emissions

mix with others, trapping “heat inside the Earth’s climate system” and “warming the atmosphere and oceans,”

J.A. 34; see J.A. 34-35; (5) “[r]ising temperatures and

shifting precipitation patterns” cause severe droughts

in Colorado, J.A. 45; see J.A. 45-46; and (6) “increased

drought conditions” lead Boulder to incur “alternate

planting and increased landscape maintenance costs,”

J.A. 137.

Those alleged effects are indirect—reaching Colorado only after multiple links in the alleged causal chain.

They are not traceable, but untraceable: Because

“[g]reenhouse gases once emitted ‘become well mixed in

the atmosphere,’ ” Boulder cannot attribute a drought

in Colorado to any particular source of emissions—let

alone to any particular conduct by petitioners, even further down the alleged causal chain. AEP, 564 U.S. at

422 (citation omitted). Further, the effects are not particularized, but undifferentiated: The medium allegedly

transmitting them is the Earth’s entire atmosphere.

Boulder cannot say that petitioners’ activities altered

the climate any more in Colorado than they did in New

York—or anywhere else in the world. See ibid. (“[E]mis-

25

sions in New Jersey may contribute no more to flooding

in New York than emissions in China.”).

Adopting Boulder’s theory would transform the legal

fiction of constructive presence into farce. Any company

that produces natural gas anywhere would be constructively present everywhere that any downstream consequence from natural-gas production might manifest.

That sort of limitless stream-of-commerce theory has

never sufficed in other doctrinal contexts. Cf. Daimler,

571 U.S. at 132 (recognizing that placing “a product into

the stream of commerce” is not sufficient to establish

general personal jurisdiction). Otherwise, every jurisdiction in the country—and the world—could bring a suit

like Boulder’s; dozens of state and local governments already have. See Pet. Br. 7; U.S. Cert. Amicus Br. 20 n.3

(listing 22 other climate-change suits). Fossil-fuel companies would be subject not only to billions of dollars in

damages in each suit, but also to a multiplicity of rules

governing their conduct everywhere. State and local

governments could equally sue everyone else in the

causal chain; on Boulder’s theory, anyone involved in

producing or using fossil fuels contributed to the “nuisance” or “trespass” in Colorado.

Boulder’s theory would also invite suits targeting

other nationwide or global phenomena with global (and

thus local) effects. If the alleged causal chain linking oil

drilling in Texas to “potholes” in Boulder suffices to justify extending the reach of Colorado law into the rest of

the country (and world), J.A. 65, then little remains of

the Constitution’s territorial limits on state authority.

California could wield its law to prevent the country’s

refrigerator manufacturers from emitting chemicals that

destroy the world’s ozone layer and thus indirectly increase Californians’ incidence of skin cancer. Oklahoma

26

could seek to regulate Maine’s schools on the theory

that social and economic effects of a poor education are

felt nationwide (including in Oklahoma). And Montana

could seek to regulate health care costs in Florida, on

the theory that the healthcare market is interconnected.

Boulder’s theory cannot be squared with the Constitution’s territorial limits on state authority.

C. Boulder’s Attempt To Regulate Global Emissions

Interferes With The Federal Government’s Exclusive

Role In Foreign Affairs

Boulder’s attempt to mitigate alleged downstream

consequences of global climate change by regulating petitioners’ conduct abroad is even more problematic. That

regulation is unconstitutionally extraterritorial because

petitioners’ overseas activities—like coal mining in Latin

America or oil drilling in Qatar, J.A. 99, 101—are highly

attenuated in relation to Boulder’s asserted in-state

harms from global warming. Such international regulation is further unconstitutional because it usurps the

federal government’s primacy over foreign relations under the Constitution.

Again, the premise of Boulder’s complaint is that petitioners’ conduct—most of which occurred abroad—has

caused a “cross-border” global warming problem, which

is, “by definition,” “international” in scope, “affect[ing]

[multiple] countries’ interests.” Hernández v. Mesa, 589

U.S. 93, 104 (2020); see pp. 16-17, supra. The Constitution, however, “allocat[es]” the “foreign relations power

to the National Government.” American Ins. Ass’n v.

Garamendi, 539 U.S. 396, 413 (2003). Further, the Constitution “confers upon the Federal Government—and

it alone—both nationwide and extraterritorial authority.” Fuld v. Palestine Liberation Org., 606 U.S. 1, 15

(2025). “Our system of government” thus “requires that

27

federal power in the field affecting foreign relations be

left entirely free from local interference.” Hines v. Davidowitz, 312 U.S. 52, 63 (1941); see Zschernig v. Miller,

389 U.S. 429, 432 (1968) (similar).

Boulder’s claims “interfere[] with the National Government’s conduct of foreign relations” in multiple ways.

Garamendi, 539 U.S. at 401. The federal government

“has long opposed the establishment of liability and

compensation schemes at the international level for alleged climate change.” D. Ct. Doc. 12, ¶ 18, United States

v. Minnesota, No. 26-cv-2456 (D. Minn. May 11, 2026)

(Landau Decl.); see City of New York v. Chevron Corp.,

993 F.3d 81, 103 n.11 (2d Cir. 2021) (similar). Yet Boulder’s claims would impose just such a scheme, forcing

multinational fossil-fuel companies to pay damages indefinitely for allegedly “causing and/or contributing to

climate change.” J.A. 118.

Moreover, “by targeting fossil fuel companies for actions they took overseas,” Boulder’s claims would “create[] new frictions in all international negotiations that

implicate climate policies.” Landau Decl. ¶ 18. It would

be pointless for the federal government to engage in

such negotiations if States or localities could upend them

by invoking a single State’s law. See Crosby v. National

Foreign Trade Council, 530 U.S. 363, 381 (2000) (emphasizing the need for “the President to speak for the

Nation with one voice in dealing with other governments”). Worse, Boulder’s claims are the tip of the iceberg; dozens of States and municipalities, from Annapolis to Hoboken to Maui, have filed similar suits, pursuing materially similar theories to hold oil companies liable for alleged downstream global-warming consequences. U.S. Cert. Amicus Br. 20 n.3.

28

Claims like Boulder’s also invite “clashes” between

state law and the laws of foreign nations, sowing “international discord.” Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108, 115 (2013) (citation omitted). Petitioners’

overseas activities were presumably lawful in the countries in which they occurred, such as Angola, Qatar, and

Russia. J.A. 101. Yet Boulder would have Colorado law

deem those activities wrongful based only on their downstream effects in Boulder, creating tension between

Colorado and foreign laws. Other countries “may seek

to respond to the lawsuit through their relations with the

United States, including [by] expressing their concerns

through diplomatic engagements, retaliating through

increased costs on U.S. fossil fuel producers operating

in those countries, [and] taking other steps against U.S.

interests.” Landau Decl. ¶ 21.

The Constitution assigns to the President and Congress the “responsibility and institutional capacity to

weigh [such] foreign-policy concerns” and to decide

whether to embrace such foreign-policy consequences.

Jesner v. Arab Bank, PLC, 584 U.S. 241, 265 (2018); see

Kiobel, 569 U.S. at 116. By making Colorado common

law the arbiter of petitioners’ activities worldwide, Boulder’s claims would instead cede those “delicate” decisions to Colorado state judges. Kiobel, 569 U.S. at 115

(citation omitted). The Constitution prohibits that usurpation of the federal government’s foreign-relations role.

III. THE CLEAN AIR ACT PREEMPTS BOULDER’S STATE

COMMON-LAW CLAIMS

Even setting constitutional problems aside, the Clean

Air Act preempts Boulder’s attempt to function as a

super-EPA deciding who should bear primary responsibility for global emissions and what level of abatement

of global fossil-fuel activity is necessary to mitigate far-

29

downstream effects. The Act reserves to EPA the decision whether and how to regulate emissions from stationary sources, and preserves traditional territorial

limits on States’ regulatory authority. Boulder’s claims

would instead let Colorado law supply different standards and would disrupt EPA’s regulation of stationary

sources by targeting upstream fossil-fuel companies.

Further, Congress authorized regulation of only domestic emissions sources—but Boulder would subvert the

Act’s calibrated regulatory scheme by imposing liability

for worldwide fossil-fuel activities.

A. The Clean Air Act’s Decisionmaking Scheme Puts EPA

And Source States In Charge Of Emissions

Under the Supremacy Clause, federal law “shall be

the supreme Law of the Land * * * any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, Cl. 2. “Where state

and federal law ‘directly conflict,’ state law must give

way.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011)

(citation omitted). State law that “stands as an obstacle

to the accomplishment and execution of the full purposes and objectives” of Congress must also give way.

Lamps Plus, Inc. v. Varela, 587 U.S. 176, 183 (2019) (citation omitted). Here, federal law clashes with and thus

supplants state attempts to regulate out-of-state emissions sources.

1. As this Court has concluded, the Clean Air Act reflects Congress’s choices to make EPA—not States—

the “primary regulator of greenhouse gas emissions,”

and to address emissions by regulating stationary

sources, such as factories and power plants. AEP, 564

U.S. at 428. The Act requires EPA to list “categories of

stationary sources” that EPA determines “cause[], or

contribute[] significantly to, air pollution which may

30

reasonably be anticipated to endanger public health or

welfare.” 42 U.S.C. 7411(b)(1)(A). Once EPA lists a category, it must establish emissions standards for new or

modified sources within that category as well as existing sources (under certain circumstances). 42 U.S.C.

7411(b)(1)(B); see 42 U.S.C. 7411(a)(1) and (d). EPA’s

standards must “reflect[] the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account

the cost of achieving such reduction and any nonair

quality health and environmental impact and energy requirements) [EPA] determines has been adequately

demonstrated.” 42 U.S.C. 7411(a)(1).

The Act limits States’ role to regulating emissions

originating within their own borders. Pursuant to EPA’s

emissions guidelines, States submit for EPA approval

plans specifying emissions restrictions for existing stationary sources within their jurisdiction. 42 U.S.C.

7411(d)(1). The Act also preserves “the right of any

State or political subdivision thereof to adopt or enforce

(1) any standard or limitation respecting emissions of

air pollutants or (2) any requirement respecting control

or abatement of air pollution.” 42 U.S.C. 7416; see 42

U.S.C. 7604(e). That saving clause just preserves States’

authority to regulate in-state. That is how this Court

interpreted the Clean Water Act’s analogous saving

clause in Ouellette when rejecting the notion that the

saving clause could be read to allow multiple States to

impose conflicting rules over the same body of water.

479 U.S. at 496-497; see 33 U.S.C. 1365(e), 1370. There

is no reason to interpret Section 7416 differently. See

City of New York, 993 F.3d at 99-100; Merrick v. Diageo

Americas Supply, Inc., 805 F.3d 685, 692 (6th Cir. 2015);

31

Bell v. Cheswick Generating Station, 734 F.3d 188, 196

(3d Cir. 2013).

2. This Court’s decision in AEP reinforces that Boulder’s claims are preempted. In AEP, plaintiffs brought

federal common-law nuisance claims against power

plants whose greenhouse-gas emissions allegedly contributed to “global warming.” 564 U.S. at 418. AEP held

that the Clean Air Act displaced those federal commonlaw claims. Id. at 423-429. The Court concluded that

Section 7411 “delegated to EPA the decision whether

and how to regulate carbon-dioxide emissions from powerplants,” id. at 426, and that federal common-law claims

could not “be reconciled with th[at] decisionmaking

scheme” because they would “commit to federal judges,

in suits that could be filed in any federal district,” the

authority to determine “what amount of carbon-dioxide

emissions is ‘unreasonable,’ ” id. at 428-429 (citation

omitted).

So too here, Boulder’s state common-law claims

would commit to Colorado judges the same kinds of

“judgments” that the federal common-law claims in

AEP would commit to federal judges. 564 U.S. at 429.

Because Section 7411 reserves those judgments to EPA

and source States, Boulder’s claims “cannot be reconciled with the decisionmaking scheme Congress enacted.” Ibid. If Boulder’s claims could proceed, that

would open the door not just to one set of judges applying a single body of common law (as in AEP), but to 50

sets of judges applying 50 different bodies of common

law—eviscerating the uniform Clean Air Act scheme.

True, AEP reserved judgment on “the availability of

a claim under state nuisance law.” 564 U.S. at 429. But

this Court has held in cases before and after Erie R.R.

v. Tompkins, 304 U.S. 64 (1938), that federal common

32

law governs in the interstate pollution context. See Illinois v. Milwaukee, 406 U.S. 91, 104 (1972); Missouri

v. Illinois, 200 U.S. 496, 520 (1906). Congress did not

empower States to intrude in this longstanding area of

federal responsibility by enacting the Clean Air Act and

Clean Water Act. Rather, those Acts’ saving clauses reserve to States a role in regulating only in-state. See

pp. 30-31, supra.

B. Boulder’s Claims Conflict With The Clean Air Act’s

Decisionmaking Scheme

Boulder’s claims are preempted because Boulder

would substitute Congress’s regulatory choices with its

own even more far-reaching regulatory scheme. Far

from regulating only in-state activity, Boulder’s claims

use attenuated, in-state effects to regulate almost entirely out-of-state fossil-fuel activities that generate undifferentiated worldwide emissions. J.A. 18, 24, 98, 102.

Had Boulder brought the same state-law claims against

stationary sources outside Colorado, those claims would

plainly be preempted under the Clean Air Act. Boulder

cannot circumvent that problem by trying to regulate

companies that supply fossil fuels that generate the

emissions. J.A. 2.

Boulder’s public- and private-nuisance claims illustrate the incompatibility with the federal regime. Those

claims allege that worldwide emissions—nearly all of

which originated outside Colorado—have created a “nuisance” in Boulder. J.A. 114, 118. But under the Clean

Air Act, it is not for Colorado to say, through its courts’

definition of “nuisance,” whether emissions from stationary sources (and other sources) outside Colorado

have reached an unacceptable level. Rather, the Act prescribes the standard for when stationary-source emissions must be regulated and reserves to EPA and source

33

States the authority to determine what amount is “unreasonable.” Pet. App. 125a.

Likewise, Boulder’s trespass claim alleges that worldwide emissions—including from stationary sources outside Colorado—have caused an “uninvited physical intrusion” in Boulder. Pet. App. 131a; see Hoery v. United

States, 64 P.3d 214, 217 (Colo. 2003); J.A. 120-122. Boulder’s unjust-enrichment claim alleges that worldwide

emissions, including out-of-state stationary-source emissions, have caused an “unfair detriment” to Boulder.

Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008); see J.A.

122-123. (Boulder’s civil-conspiracy claim just alleges a

conspiracy to commit the other torts. Pet. App. 137a.)

Under each claim, Colorado judges applying Colorado

law would decide the appropriate amount of out-of-state

emissions from stationary sources on their way to deciding how much petitioners’ fossil-fuel activities should

be effectively curbed, in conflict with Congress’s choices

in the Clean Air Act.

This Court has “often rejected efforts by States to

avoid preemption by shifting their regulatory focus

from one company to another in the same supply chain.”

American Trucking Ass’ns v. Los Angeles, 569 U.S.

641, 652 (2013). Kurns, for example, held that plaintiffs

could not avoid the preemptive effect of the Locomotive

Inspection Act (LIA), 49 U.S.C. 20701 et seq., simply by

suing the manufacturers of locomotive equipment, rather than the railroads that used that equipment. 565

U.S. at 636-637. The “field pre-empted by the LIA” was

defined “on the basis of the physical elements regulated

—‘the equipment of locomotives’—not on the basis of

the entity directly subject to regulation.” Id. at 636 (citation omitted).

34

Likewise here, preemption is based on a conflict with

the Clean Air Act’s vesting of authority in EPA to determine whether and how to regulate emissions. Suing

the suppliers rather than the emitters magnifies rather

than avoids that conflict. Congress made the deliberate

choice to target stationary emitters, such as factories

and powerplants, and treat them as the relevant sources

of greenhouse-gas emissions. Boulder’s claims supplant

that decision by treating fossil-fuel production and sales

as the relevant “sources” instead. J.A. 18, 24. Boulder’s

substitute regulatory regime targeting companies whose

products cause emissions would render pointless the

standards that EPA and source States place on stationary emitters. Those downstream standards would be

unnecessary (and completely miscalibrated) were Boulder’s upstream regulation successful.

That Boulder’s claims also cover emissions from other

countries exacerbates the conflict. Section 7411 makes

EPA the primary regulator of “domestic” stationary

sources only. AEP, 564 U.S. at 425. Allowing Colorado

state judges to supplant EPA as the primary domestic

regulator is bad enough; appointing them as superEPAs with global reach further undermines the federal

decisionmaking scheme. 4

EPA recently concluded that it lacks authority under 42 U.S.C.

7521(a)(1) to prescribe greenhouse-gas emissions standards for new

motor vehicles and engines based on climate-change concerns. 91

Fed. Reg. 7686 (Feb. 18, 2026). But that conclusion about Section

7521(a)(1) does not apply to EPA’s authority under Section 7411 to

regulate emissions from stationary sources—the decisionmaking

scheme that AEP interpreted in ways that conflict with Boulder’s

claims. Cf. AEP, 564 U.S. at 430 (Alito, J., concurring in part and

concurring in the judgment). Regardless of what authority the Act

delegates to EPA, Boulder’s claims are constitutionally barred.

4

35

CONCLUSION

The judgment of the Colorado Supreme Court should

be reversed.

Respectfully submitted.

SARAH M. HARRIS

Deputy Solicitor General*

ADAM R.F. GUSTAFSON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

ROBERT N. STANDER

Deputy Assistant

Attorney General

FREDERICK LIU

Assistant to the

Solicitor General

ROBERT J. LUNDMAN

KYLE GLYNN

Attorneys

MAY 2026

* The Solicitor General is recused in this case.

APPENDIX

TABLE OF CONTENTS

Page

Appendix — Constitutional provisions, statutory

provisions, and rule:

U.S. Const. Art. VI, Cl. 2 ..................... 1a

Colo. Const. Art. VI, § 2 ....................... 1a

Colo. Const. Art. VI, § 3 ....................... 2a

28 U.S.C. 1257(a) .................................. 2a

42 U.S.C. 7411 ...................................... 3a

42 U.S.C. 7416 .................................... 16a

Colo. App. R. 21 .................................. 17a

(I)

APPENDIX

1.

U.S. Const. Art. VI, Cl. 2 provides:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of

the United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.

2.

Colo. Const. Art. VI, § 2 provides:

Appellate jurisdiction

(1) The supreme court, except as otherwise provided

in this constitution, shall have appellate jurisdiction only,

which shall be coextensive with the state, and shall have

a general superintending control over all inferior courts,

under such regulations and limitations as may be prescribed by law.

(2) Appellate review by the supreme court of every

final judgment of the district courts, the probate court

of the city and county of Denver, and the juvenile court

of the city and county of Denver shall be allowed, and the

supreme court shall have such other appellate review as

may be provided by law. There shall be no appellate review by the district court of any final judgment of the probate court of the city and county of Denver or of the juvenile court of the city and county of Denver.

(1a)

2a

3.

Colo. Const. Art. VI, § 3 provides:

Original jurisdiction—opinions

The supreme court shall have power to issue writs of

habeas corpus, mandamus, quo warranto, certiorari, injunction, and such other original and remedial writs as

may be provided by rule of court with authority to hear

and determine the same; and each judge of the supreme

court shall have like power and authority as to writs of

habeas corpus. The supreme court shall give its opinion

upon important questions upon solemn occasions when

required by the governor, the senate, or the house of representatives; and all such opinions shall be published in

connection with the reported decision of said court.

4.

28 U.S.C. 1257(a) provides:

State courts; certiorari

(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may

be reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or laws of

the United States, or where any title, right, privilege, or

immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission

held or authority exercised under, the United States.

3a

5.

42 U.S.C. 7411 provides:

Standards of performance for new stationary sources

(a)

Definitions

For purposes of this section:

(1) The term “standard of performance” means a

standard for emissions of air pollutants which reflects

the degree of emission limitation achievable through

the application of the best system of emission reduction which (taking into account the cost of achieving

such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.

(2) The term “new source” means any stationary

source, the construction or modification of which is

commenced after the publication of regulations (or, if

earlier, proposed regulations) prescribing a standard

of performance under this section which will be applicable to such source.

(3) The term “stationary source” means any building, structure, facility, or installation which emits or

may emit any air pollutant. Nothing in subchapter II

of this chapter relating to nonroad engines shall be

construed to apply to stationary internal combustion

engines.

(4) The term “modification” means any physical

change in, or change in the method of operation of, a

stationary source which increases the amount of any

air pollutant emitted by such source or which results

in the emission of any air pollutant not previously

emitted.

4a

(5) The term “owner or operator” means any person who owns, leases, operates, controls, or supervises a stationary source.

(6) The term “existing source” means any stationary source other than a new source.

(7) The term “technological system of continuous emission reduction” means—

(A) a technological process for production or

operation by any source which is inherently lowpolluting or nonpolluting, or

(B) a technological system for continuous reduction of the pollution generated by a source before such pollution is emitted into the ambient air,

including precombustion cleaning or treatment of

fuels.

(8) A conversion to coal (A) by reason of an order

under section 2(a) of the Energy Supply and Environmental Coordination Act of 1974 [15 U.S.C. 792(a)] or

any amendment thereto, or any subsequent enactment

which supersedes such Act [15 U.S.C. 791 et seq.], or

(B) which qualifies under section 7413(d)(5)(A)(ii) 1 of

this title, shall not be deemed to be a modification for

purposes of paragraphs (2) and (4) of this subsection.

(b)

List of categories of stationary sources; standards of

performance; information on pollution control techniques; sources owned or operated by United States;

particular systems; revised standards

(1)(A) The Administrator shall, within 90 days after

December 31, 1970, publish (and from time to time there1

See References in text note below.

5a

after shall revise) a list of categories of stationary sources.

He shall include a category of sources in such list if in

his judgment it causes, or contributes significantly to,

air pollution which may reasonably be anticipated to endanger public health or welfare.

(B) Within one year after the inclusion of a category

of stationary sources in a list under subparagraph (A),

the Administrator shall publish proposed regulations,

establishing Federal standards of performance for new

sources within such category. The Administrator shall

afford interested persons an opportunity for written

comment on such proposed regulations. After considering such comments, he shall promulgate, within one year

after such publication, such standards with such modifications as he deems appropriate. The Administrator shall,

at least every 8 years, review and, if appropriate, revise

such standards following the procedure required by this

subsection for promulgation of such standards. Notwithstanding the requirements of the previous sentence, the

Administrator need not review any such standard if the

Administrator determines that such review is not appropriate in light of readily available information on the efficacy of such standard. Standards of performance or revisions thereof shall become effective upon promulgation. When implementation and enforcement of any requirement of this chapter indicate that emission limitations and percent reductions beyond those required by

the standards promulgated under this section are

achieved in practice, the Administrator shall, when revising standards promulgated under this section, consider the emission limitations and percent reductions

achieved in practice.

6a

(2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for

the purpose of establishing such standards.

(3) The Administrator shall, from time to time, issue

information on pollution control techniques for categories of new sources and air pollutants subject to the provisions of this section.

(4) The provisions of this section shall apply to any

new source owned or operated by the United States.

(5) Except as otherwise authorized under subsection (h), nothing in this section shall be construed to require, or to authorize the Administrator to require, any

new or modified source to install and operate any particular technological system of continuous emission reduction to comply with any new source standard of performance.

(6) The revised standards of performance required

by enactment of subsection (a)(1)(A)(i) and (ii) 1 shall be

promulgated not later than one year after August 7, 1977.

Any new or modified fossil fuel fired stationary source

which commences construction prior to the date of publication of the proposed revised standards shall not be

required to comply with such revised standards.

(c)

State implementation and enforcement of standards

of performance

(1) Each State may develop and submit to the Administrator a procedure for implementing and enforcing

standards of performance for new sources located in

such State. If the Administrator finds the State procedure is adequate, he shall delegate to such State any authority he has under this chapter to implement and enforce such standards.

7a

(2) Nothing in this subsection shall prohibit the Administrator from enforcing any applicable standard of

performance under this section.

(d)

Standards of performance for existing sources;

remaining useful life of source

(1) The Administrator shall prescribe regulations

which shall establish a procedure similar to that provided

by section 7410 of this title under which each State shall

submit to the Administrator a plan which (A) establishes

standards of performance for any existing source for

any air pollutant (i) for which air quality criteria have

not been issued or which is not included on a list published under section 7408(a) of this title or emitted from

a source category which is regulated under section 7412

of this title but (ii) to which a standard of performance

under this section would apply if such existing source

were a new source, and (B) provides for the implementation and enforcement of such standards of performance.

Regulations of the Administrator under this paragraph

shall permit the State in applying a standard of performance to any particular source under a plan submitted

under this paragraph to take into consideration, among

other factors, the remaining useful life of the existing

source to which such standard applies.

(2) The Administrator shall have the same authority—

(A) to prescribe a plan for a State in cases where

the State fails to submit a satisfactory plan as he would

have under section 7410(c) of this title in the case of

failure to submit an implementation plan, and

(B) to enforce the provisions of such plan in cases

where the State fails to enforce them as he would

8a

have under sections 7413 and 7414 of this title with

respect to an implementation plan.

In promulgating a standard of performance under a plan

prescribed under this paragraph, the Administrator shall

take into consideration, among other factors, remaining

useful lives of the sources in the category of sources to

which such standard applies.

(e)

Prohibited acts

After the effective date of standards of performance

promulgated under this section, it shall be unlawful for

any owner or operator of any new source to operate such

source in violation of any standard of performance applicable to such source.

(f )

New source standards of performance

(1) For those categories of major stationary sources

that the Administrator listed under subsection (b)(1)(A)

before November 15, 1990, and for which regulations

had not been proposed by the Administrator by November 15, 1990, the Administrator shall—

(A) propose regulations establishing standards

of performance for at least 25 percent of such categories of sources within 2 years after November 15, 1990;

(B) propose regulations establishing standards

of performance for at least 50 percent of such categories of sources within 4 years after November 15, 1990;

and

(C) propose regulations for the remaining categories of sources within 6 years after November 15, 1990.

(2) In determining priorities for promulgating standards for categories of major stationary sources for

9a

the purpose of paragraph (1), the Administrator shall

consider—

(A) the quantity of air pollutant emissions which

each such category will emit, or will be designed to

emit;

(B) the extent to which each such pollutant may

reasonably be anticipated to endanger public health

or welfare; and

(C) the mobility and competitive nature of each

such category of sources and the consequent need for

nationally applicable new source standards of performance.

(3) Before promulgating any regulations under this

subsection or listing any category of major stationary

sources as required under this subsection, the Administrator shall consult with appropriate representatives of

the Governors and of State air pollution control agencies.

(g)

Revision of regulations

(1) Upon application by the Governor of a State showing that the Administrator has failed to specify in regulations under subsection (f )(1) any category of major stationary sources required to be specified under such regulations, the Administrator shall revise such regulations

to specify any such category.

(2) Upon application of the Governor of a State, showing that any category of stationary sources which is not

included in the list under subsection (b)(1)(A) contributes significantly to air pollution which may reasonably

be anticipated to endanger public health or welfare (notwithstanding that such category is not a category of major stationary sources), the Administrator shall revise

10a

such regulations to specify such category of stationary

sources.

(3) Upon application of the Governor of a State showing that the Administrator has failed to apply properly

the criteria required to be considered under subsection

(f )(2), the Administrator shall revise the list under subsection (b)(1)(A) to apply properly such criteria.

(4) Upon application of the Governor of a State showing that—

(A) a new, innovative, or improved technology or

process which achieves greater continuous emission

reduction has been adequately demonstrated for any

category of stationary sources, and

(B) as a result of such technology or process, the

new source standard of performance in effect under

this section for such category no longer reflects the

greatest degree of emission limitation achievable

through application of the best technological system

of continuous emission reduction which (taking into

consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impact and energy requirements) has been

adequately demonstrated,

the Administrator shall revise such standard of performance for such category accordingly.

(5) Unless later deadlines for action of the Administrator are otherwise prescribed under this section, the

Administrator shall, not later than three months following the date of receipt of any application by a Governor

of a State, either—

11a

(A) find that such application does not contain

the requisite showing and deny such application, or

(B) grant such application and take the action

required under this subsection.

(6) Before taking any action required by subsection

(f ) or by this subsection, the Administrator shall provide

notice and opportunity for public hearing.

(h)

Design, equipment, work practice, or operational

standard; alternative emission limitation

(1) For purposes of this section, if in the judgment of

the Administrator, it is not feasible to prescribe or enforce a standard of performance, he may instead promulgate a design, equipment, work practice, or operational

standard, or combination thereof, which reflects the best

technological system of continuous emission reduction

which (taking into consideration the cost of achieving

such emission reduction, and any non-air quality health

and environmental impact and energy requirements) the

Administrator determines has been adequately demonstrated. In the event the Administrator promulgates a

design or equipment standard under this subsection, he

shall include as part of such standard such requirements

as will assure the proper operation and maintenance of

any such element of design or equipment.

(2) For the purpose of this subsection, the phrase

“not feasible to prescribe or enforce a standard of performance” means any situation in which the Administrator determines that (A) a pollutant or pollutants cannot

be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, State, or local law, or (B) the

12a

application of measurement methodology to a particular

class of sources is not practicable due to technological or

economic limitations.

(3) If after notice and opportunity for public hearing,

any person establishes to the satisfaction of the Administrator that an alternative means of emission limitation

will achieve a reduction in emissions of any air pollutant

at least equivalent to the reduction in emissions of such

air pollutant achieved under the requirements of paragraph (1), the Administrator shall permit the use of such

alternative by the source for purposes of compliance

with this section with respect to such pollutant.

(4) Any standard promulgated under paragraph (1)

shall be promulgated in terms of standard of performance

whenever it becomes feasible to promulgate and enforce

such standard in such terms.

(5) Any design, equipment, work practice, or operational standard, or any combination thereof, described

in this subsection shall be treated as a standard of performance for purposes of the provisions of this chapter

(other than the provisions of subsection (a) and this subsection).

(i)

Country elevators

Any regulations promulgated by the Administrator

under this section applicable to grain elevators shall not

apply to country elevators (as defined by the Administrator) which have a storage capacity of less than two million five hundred thousand bushels.

13a

( j)

Innovative technological systems of continuous

emission reduction

(1)(A) Any person proposing to own or operate a

new source may request the Administrator for one or

more waivers from the requirements of this section for

such source or any portion thereof with respect to any

air pollutant to encourage the use of an innovative technological system or systems of continuous emission reduction. The Administrator may, with the consent of the

Governor of the State in which the source is to be located,

grant a waiver under this paragraph, if the Administrator determines after notice and opportunity for public

hearing, that—

(i) the proposed system or systems have not been

adequately demonstrated,

(ii) the proposed system or systems will operate

effectively and there is a substantial likelihood that

such system or systems will achieve greater continuous

emission reduction than that required to be achieved

under the standards of performance which would otherwise apply, or achieve at least an equivalent reduction at lower cost in terms of energy, economic, or

nonair quality environmental impact,

(iii) the owner or operator of the proposed source

has demonstrated to the satisfaction of the Administrator that the proposed system will not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation, function, or malfunction, and

(iv) the granting of such waiver is consistent with

the requirements of subparagraph (C).

14a

In making any determination under clause (ii), the Administrator shall take into account any previous failure

of such system or systems to operate effectively or to

meet any requirement of the new source performance

standards. In determining whether an unreasonable

risk exists under clause (iii), the Administrator shall consider, among other factors, whether and to what extent

the use of the proposed technological system will cause,

increase, reduce, or eliminate emissions of any unregulated pollutants; available methods for reducing or eliminating any risk to public health, welfare, or safety which

may be associated with the use of such system; and the

availability of other technological systems which may be

used to conform to standards under this section without

causing or contributing to such unreasonable risk. The

Administrator may conduct such tests and may require

the owner or operator of the proposed source to conduct

such tests and provide such information as is necessary

to carry out clause (iii) of this subparagraph. Such requirements shall include a requirement for prompt reporting of the emission of any unregulated pollutant

from a system if such pollutant was not emitted, or was

emitted in significantly lesser amounts without use of

such system.

(B) A waiver under this paragraph shall be granted

on such terms and conditions as the Administrator determines to be necessary to assure—

(i) emissions from the source will not prevent attainment and maintenance of any national ambient

air quality standards, and

(ii) proper functioning of the technological system or systems authorized.

15a

Any such term or condition shall be treated as a standard of performance for the purposes of subsection (e) of

this section and section 7413 of this title.

(C) The number of waivers granted under this paragraph with respect to a proposed technological system

of continuous emission reduction shall not exceed such

number as the Administrator finds necessary to ascertain whether or not such system will achieve the conditions specified in clauses (ii) and (iii) of subparagraph (A).

(D) A waiver under this paragraph shall extend to

the sooner of—

(i) the date determined by the Administrator,

after consultation with the owner or operator of the

source, taking into consideration the design, installation, and capital cost of the technological system or

systems being used, or

(ii) the date on which the Administrator determines that such system has failed to—

(I) achieve at least an equivalent continuous

emission reduction to that required to be achieved

under the standards of performance which would

otherwise apply, or

(II) comply with the condition specified in

paragraph (1)(A)(iii),

and that such failure cannot be corrected.

(E) In carrying out subparagraph (D)(i), the Administrator shall not permit any waiver for a source or portion thereof to extend beyond the date—

(i) seven years after the date on which any waiver

is granted to such source or portion thereof, or

16a

(ii) four years after the date on which such source

or portion thereof commences operation,

whichever is earlier.

(F) No waiver under this subsection shall apply to

any portion of a source other than the portion on which

the innovative technological system or systems of continuous emission reduction is used.

(2)(A) If a waiver under paragraph (1) is terminated

under clause (ii) of paragraph (1)(D), the Administrator

shall grant an extension of the requirements of this section for such source for such minimum period as may be

necessary to comply with the applicable standard of performance under this section. Such period shall not extend beyond the date three years from the time such

waiver is terminated.

(B) An extension granted under this paragraph shall

set forth emission limits and a compliance schedule containing increments of progress which require compliance with the applicable standards of performance as

expeditiously as practicable and include such measures

as are necessary and practicable in the interim to minimize emissions. Such schedule shall be treated as a

standard of performance for purposes of subsection (e)

of this section and section 7413 of this title.

6.

42 U.S.C. 7416 provides:

Retention of State authority

Except as otherwise provided in sections 1857c-10(c),

(e), and (f ) (as in effect before August 7, 1977), 7543,

7545(c)(4), and 7573 of this title (preempting certain State

regulation of moving sources) nothing in this chapter

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shall preclude or deny the right of any State or political

subdivision thereof to adopt or enforce (1) any standard

or limitation respecting emissions of air pollutants or

(2) any requirement respecting control or abatement of

air pollution; except that if an emission standard or limitation is in effect under an applicable implementation

plan or under section 7411 or section 7412 of this title,

such State or political subdivision may not adopt or enforce any emission standard or limitation which is less

stringent than the standard or limitation under such

plan or section.

7.

Colo. App. R. 21 provides:

Original Proceedings in the Supreme Court

(a)

In General.

(1) Original Jurisdiction Under the Constitution. This rule applies only to the original jurisdiction of the supreme court to issue writs as provided in Section 3 of Article VI of the Colorado

Constitution and to the exercise of the supreme

court’s general superintending authority over all

courts as provided in Section 2 of Article VI of the

Colorado Constitution.

(2) Extraordinary Nature and Availability

of Relief. Relief under this rule is extraordinary

in nature and is a matter wholly within the discretion of the supreme court. Such relief will be

granted only when no other adequate remedy is

available, including relief available by appeal, under C.R.C.P. 106, or under Crim. P. 35.

18a

(3) Forms of Writs Subject to this Rule. Petitions for writs of habeas corpus, mandamus, quo

warranto, injunction, prohibition, and other forms

of writs cognizable under the common law are subject to this rule. The petitioner need not designate

a specific form of writ when seeking relief under

this rule.

(b)

Initiating an Original Proceeding. The petitioner

must file a petition for an order to show cause specifying

the relief sought and requesting the court to issue to

one or more proposed respondents, as set forth in subsection (e)(1), an order to show cause why the relief requested should not be granted.

(c)

Docket Fees. Upon the filing of a petition under

this rule, the petitioner must pay to the clerk of the supreme court the docket fee of $225.00 and must comply

with C.A.R. 12.

(d)

Form, Caption, and Title of the Petition.

(1) Form. Unless otherwise provided, the petition and all documents filed under this rule must

comply with the requirements of C.A.R. 28(g) for

opening briefs and C.A.R. 32.

(2)

Caption and Title.

(A) If there is no underlying proceeding,

the petition must be captioned, “In Re [Petitioner v. Proposed Respondent(s)].”

(B) If there is an underlying proceeding, except as otherwise required by C.A.R.

32(f ) or another provision of these Rules, the

petition must use the full, exact, and unmodified caption given by the lower court or tri-

19a

bunal in the underlying proceeding, “In Re

[Caption of Underlying Proceeding].” Only

one case may be listed as the underlying

proceeding in the caption.

(C) The petition must be titled “Petition for Order to Show Cause Pursuant to

C.A.R. 21.”

(e)

Contents of the Petition. The petitioner has the

burden of showing that the court should issue an order

to show cause. To enable the court to determine whether

to issue an order to show cause, the petition must set

forth in sufficient detail the following:

(1) the identity of the petitioner and of the

proposed respondent(s), together with, if applicable, their party status in the underlying proceeding (e.g., plaintiff, defendant, etc.). The proposed

respondent(s) must be the real party (or parties)

in interest against whom relief is sought. When a

petition seeks a writ of mandamus or prohibition

directed to a court or tribunal, the proposed respondents must be the lower court or tribunal, if

appropriate, and all parties to the underlying proceeding other than the petitioner;

(2) the identity of the court or other underlying tribunal, the case name and case number or

other identification of the underlying proceeding,

if any, and identification of any other related proceeding;

(3) the ruling, action, or failure to act complained of and the relief being sought;

(4) the reasons why no other adequate remedy is available;

20a

(5)

the issues presented;

(6) the facts necessary to understand the issues presented;

(7) argument and points of authority explaining why the court should issue an order to show

cause and grant the relief requested;

(8) a list of supporting documents, or an explanation of why supporting documents are not

available; and

(9) the names, addresses, telephone numbers, and e-mail addresses (if any) of all parties to

the underlying proceeding; or, if a party is represented by counsel, the attorney’s name, address,

telephone number, and email address (if any).

(f )

Service. The petitioner must serve the petition

on every party and proposed respondent and on the lower

court or tribunal. All documents filed under this rule

must be served in accordance with C.A.R. 25. If a case

is filed through the court’s E-System, E-Service on a

party must be completed in the supreme court case; the

supreme court will not accept service of documents made

in the underlying proceeding or in the lower court.

(g)

Supporting Documents.

(1) Proceedings initiated under this rule are

not subject to C.A.R. 10.

(2) A petition must be accompanied by a separate, indexed appendix of available supporting

documents necessary for a complete understanding of the issues presented. The appendix must

include an index or table of contents of the supporting documents with page numbers noting where

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the documents appear. If the supporting documents are unavailable, the petition must explain

why they are unavailable, consistent with subsection (e)(8).

(3) In cases involving an underlying proceeding, the following documents must be included in

the appendix:

(A) the order or judgment from which

relief is sought if applicable;

(B) documents and exhibits submitted

in the underlying proceeding that are necessary for a complete understanding of the issues presented; and

(C) a transcript of the proceeding leading to the underlying order or judgment if

available.

(4) The filing party is responsible for reviewing all supporting documents, including any attachments, exhibits, and appendices, to determine if

the document contains information that should be

excluded from public access pursuant to Chief Justice Directive 05-01 section 4.60. Any supporting

document filed by a party that is not accessible to

the public pursuant to Chief Justice Directive 05-01

section 4.60 must be accompanied by a motion to

suppress or seal as prescribed in subsection (g)(4).

The filing party must certify compliance with this

subsection as directed by C.A.R. 32(h).

(5) Any document submitted as sealed or suppressed pursuant to Chief Justice Directive 05-01

sections 3.07 and 3.08 must be filed as a separate

supporting document and must be accompanied by

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a motion for leave to file the document as sealed

or suppressed. The motion must:

(A) identify with particularity the specific document containing sensitive information;

(B) explain why the sensitive information cannot reasonably be redacted in

lieu of filing the entire document as sealed

or suppressed;

(C) articulate the substantial interest

that justifies depriving the public of access

to the document; and

(D) cite any applicable rule, statute,

case law, or prior court order sealing or suppressing the document.

(6) Original proceedings involving the specific

case types listed in Chief Justice Directive 05-01

section 4.60(b)(1)-(9) are not accessible to the public. Unless a party intends to seal the proceeding

pursuant to subsection (g)(5), it is unnecessary to

file a motion to suppress the proceeding.

(h)

Stay.

(1) Pending a Decision to Issue an Order to

Show Cause. The filing of a petition under this rule

does not stay any underlying proceeding or the

running of any applicable time limit. If the petitioner seeks a temporary stay in connection with

the petition pending the court’s determination

whether to issue an order to show cause, a stay ordinarily must be sought first from the lower court

or tribunal. If a request for stay below is imprac-

23a

ticable, not promptly ruled upon, or is denied, the

petitioner may file a separate motion for a temporary stay in the supreme court supported by accompanying materials justifying the requested stay.

(2) Upon Issuance of an Order to Show Cause.

Issuance of an order to show cause by the supreme

court automatically stays all underlying proceedings until final determination of the original proceeding in the supreme court unless the court, acting on its own, or upon motion, lifts the stay in whole

or in part.

(i)

No Initial Responsive Pleading to Petition

Allowed. Unless requested by the supreme court, no re-

sponsive pleading to the petition may be filed prior to

the court’s determination of whether to issue an order

to show cause.

( j)

Ruling on the Petition.

(1) Denial. The court may deny the petition

without explanation and without an answer by any

respondent.

(2) Issuance of an Order to Show Cause. The

court may issue an order to show cause. The clerk

will serve the order on all persons ordered or invited by the court to respond and on the lower

court or tribunal in the underlying proceeding.

(k)

Response to Order to Show Cause.

(1) The court in its discretion may invite or

order any party, including a party in the underlying proceeding, to respond to the order to show

cause within a fixed time. Any party in the underlying proceeding may request permission to re-

24a

spond to the order to show cause but may not respond unless invited or ordered to do so by the

court. Those ordered by the court to respond are

the respondents.

(2) The response to an order to show cause

must comply with the requirements of C.A.R. 28(g)

for answer briefs and with C.A.R. 32.

(3) Two or more respondents may respond

jointly.

(l)

Reply to Response to Order to Show Cause. The

petitioner may submit a single reply brief within the

time fixed by the court. A reply must comply with the

requirements of C.A.R. 28(g) for reply briefs and with

C.A.R. 32.

(m) Amicus Briefs. Any amicus curiae may file a

brief only by leave of the court after a case number has

been assigned. A brief submitted by an amicus curiae

must comply with C.A.R. 29(a), (b), (c), (d), (f ), and (g).

(1) Before Ruling on a Petition. Before the

court rules on a petition an amicus curiae may tender a brief with a motion for leave to file supporting a petitioner, but the court may act on a petition

at any time after the petition is filed, including before the submission of an amicus brief.

(2) Af ter Issuing an Order to Show Cause.

If the court issues an order to show cause, an amicus brief supporting a petitioner must be filed

within seven days after the issuance of the show

cause order, or such other time as the court may

order for the submission of amicus briefs. An amicus brief supporting a respondent must be tendered

by the deadline for the respondent’s response, or

25a

such other time as the court may order for the submission of amicus briefs. An amicus curiae that

does not support either party must file its brief no

later than seven days after the issuance of an order to show cause, or such other time as the court

may order for the submission of amicus briefs.

(3) No Reconsideration. The filing of an amicus brief within the deadlines established by this

rule but after the court has acted on a petition is

not a ground for reconsideration of the court’s decision to issue an order to show cause or deny a

petition.

(n)

No Oral Argument. There will be no oral argu-

ment unless ordered by the court.

(o) Disposition of an Order to Show Cause. The

court in its discretion may discharge the order or make

it absolute, in whole or in part, with or without opinion.

Orders issued without an opinion will not be designated

for official publication by the court and will remain unpublished. Unpublished orders may not be cited as

precedent.

(p)

Petition for Rehearing. A petition for rehearing

may be filed only when the court has issued an opinion

discharging the order to show cause or making the order

absolute. Any petition for rehearing may be filed in accordance with C.A.R. 40(c)(2). No petition for rehearing

may be filed after denial of a petition without explanation, if the order was discharged without opinion, or if

the order was made absolute without opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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