Climate Lawfare Is a Back-Channel Campaign to Win in Court What Activists Couldn't Win Democratically, and the Supreme Court Should Reject It
Source: "Supreme Court hears Boulder County climate nuisance suit against oil firms | Fox News." October 23, 2026. www.foxnews.com
The Gist
The author argues that climate activists, having lost at the ballot box and in federal court, are quietly working through state courts and by influencing judges to make oil companies pay for global climate change. He says the case can't meet normal standards of proof, would let thousands of localities set national energy policy, and would raise costs for everyday Americans, so the Supreme Court should shut it down.
Conclusion
The Supreme Court should reject Boulder County's public nuisance suit against oil companies, because it is the product of a covert activist campaign to circumvent democratic lawmaking and impose national energy policy through state courts, with the costs ultimately borne by ordinary Americans.
Premises
- After the Supreme Court's unanimous 2011 decision in American Electric Power v. Connecticut shut down federal climate-nuisance suits, climate activists who could not win through voting or legislation turned to state and local courts as a 'back door.'
- House Judiciary Committee documents show that Paul Hanle's Climate Judiciary Project explicitly sought to steer outcomes by targeting 'key judges' with climate seminars (at least 140 federal judges) because court rulings could achieve what legislative or executive action had not.
- Michael Burger, who is of counsel at a firm representing localities suing oil companies, contributed 'behind the scenes' to the climate chapter of the federal judiciary's Reference Manual on Scientific Evidence after the Federal Judicial Center objected to his involvement; the chapter was later withdrawn.
- Climate plaintiffs cannot prove causation in open court, since greenhouse gases mix globally and about 90 percent of emissions occur outside the U.S., so a specific harm in Boulder cannot be tied to any particular company's output; as a result they need courts to accept 'extreme event attribution' or lower the causation standard.
- If Boulder prevails, roughly 90,000 municipalities could set national energy policy through jury awards, and Boulder's own lawyer conceded that its theory does not preclude suing retailers; the logic could extend to other industries such as animal agriculture.
- Allowing a small minority to use local litigation to impose policy on the whole nation violates the constitutional structure and federalism, and the resulting costs would be passed on to consumers.
Assumptions
- Policy changes of this magnitude belong to legislatures and the political process rather than courts applying state nuisance law.
- Educational seminars and expert-manual contributions by advocates are improper influence on judges rather than legitimate legal education.
- Problems with causation and attribution make the claims legally invalid, not merely difficult to prove.
- The slippery-slope extension to retailers and agriculture is a realistic outcome rather than a speculative one.
- Litigation costs and damages awards will be passed on to consumers as higher prices.
- Federal law and the structure of federalism preclude a single state's or county's courts from addressing global emissions.