When the U.S. Supreme Court opens its new term on Oct. 5, the justices will face the critical question of whether Congress or Boulder, Colo., controls American energy policy. Cities such as Boulder, Honolulu and Baltimore have pursued frivolous lawsuits against energy companies on the claim that big oil concealed the effects of their products on climate change.
While states generally set policy over public health and safety, constitutional law and precedent should make the answer clear. Energy forms a central part of the national economy and makes a foundational contribution to American national security. The Constitution vests authority over interstate commerce and national security in the federal government, not the states.
But until the court resolves this matter once and for all in Suncor v. Boulder, dozens of states and municipalities, backed by climate activists, will keep pushing legal theories in state court intended to impose for lawful carbon emissions. Without the courts intervention, climate litigants would sue American energy into financial oblivion, inflict enormous costs on the American economy and render the nation more vulnerable to coercion by nations such as Russia and Iran.
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The decisions about how to regulate carbon emissions and respond to belong to the federal government, not the states or localities. Greenhouse gases do not remain within state or even national borders. Once emitted, they enter the global atmosphere. Emissions from a gas station in Boulder are functionally indistinguishable from emissions from a coal plant in another state or a factory overseas. A problem that transcends state and national borders requires a uniform national solution that includes foreign policy implications and the costs and benefits of energy for the country as a whole.
Courts have long recognized interstate pollution disputes as a federal domain. Before Congress legislated on the subject, the Supreme Court held that interstate water and air pollution were governed by federal common law to be created by the courts directly. It found that states have conflicting interests and that the underlying activity is national in scope. Therefore, the court concluded, there is an overriding national need for one uniform rule of decision, not 50 competing ones.
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Consider the implications of Boulders lawsuit. Close to 90% of global carbon emissions originate from outside the United States. The lions share comes from China, which accounts for close to a third of worldwide emissions alone. A Colorado state court judgment holding U.S. energy producers responsible for the worlds emissions is ultimately a tax on American energy that our international competitors do not have to pay. Good luck persuading Beijing to pay for the harms inflicted by its pollution on the rest of the world.
Energy is ultimately an instrument of power. U.S. foreign policy and national security demand a unified federal approach. Energy and climate policy are inseparable from foreign affairs. The United States has negotiated over carbon emissions for decades through climate agreements and diplomacy with allies and adversaries alike. State court rulings penalizing global emissions necessarily affect the bargaining positions and policy choices available to the federal government, whether or not any existing treaty speaks to the point direct
