Recently published, in the Notre Dame Journal of Law, Ethics and Public Policy: In Limine, Ryan J. Walsh & Michael A. Fragoso, Is the SCOTUS Climate Change Case a “Conservative Intuition in Search of a Constitutional Clause”? (8 Notre Dame J.L., Ethics & Pub. Pol’y: In Limine 1 (2026)). Here is the introduction:
On the Divided Argument podcast last month, Will Baude previewed Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, the climate-tort case the Court will hear in October. He wondered whether Suncor’s position—that federal law precludes state-law claims for harms from worldwide greenhouse-gas emissions—is “one of these conservative intuitions in search of a constitutional clause questions.”
The search should be called off. Baude is asking the wrong question. And his own brilliant scholarship and that of other leading originalists explain why.
Let’s begin with the scope of Boulder County’s suit. It alleges that Suncor and Exxon contributed to climate change by producing, selling, and promoting fossil fuels “globally and historically.” And it seeks damages for past and future harms in Boulder it attributes to global warming, as well as a share of the defendants’ profits. Nearly all of the allegedly tortious conduct occurred outside Colorado—much of it outside the United States—and the complained-of emissions were released by billions of people, mostly abroad. Liability under Colorado law would thus turn almost entirely on what the defendants did in other States and, for the most part, other countries: Texas, Alberta, Angola, Qatar, and beyond.
Boulder’s quarrel, it turns out, is with a rule older than the Constitution: that no State can legislate for another. The Constitution left that rule in place, took from the States every means of altering it, and made it subject only to Congress’s exercise of its enumerated powers. Thus, Colorado’s power to regulate interstate and international greenhouse-gas emissions has not been, and cannot be, “preempted.” It never existed.
Posted at 6:35 AM