I appreciate my friend Michael Buschbacher taking the time to respond to my amicus brief in Suncor Energy v. Boulder County and my other work in this space. That he and others believe my work is worth responding to suggests that he and others believe it is important. (As they say, if you are taking fire, you must be over the target.) Yet he is mistaken to think that my arguments–-let alone the relevant history or legal principles–support the petitioners in this case.
To understand our disagreement, it is important to understand what is and what is not at issue in Suncor. The question is not whether the plaintiffs here (or in other climate cases) are making bold, ambitious, or potentially overbroad claims. Nor is it whether the alleged chain of causation is too attenuated and the attempt to attribute harms in Colorado to emissions elsewhere too speculative to support liability. Nor is it whether there are grounds to narrow or pare down the scope of the conduct they challenge or damages they seek. Rather, the question is whether the plaintiffs are wholly precluded from making their claims under state law, such that the case must be dismissed. After all, the Suncor petitioners are asking the Supreme Court for only one thing: An order reversing "the Colorado Supreme Court's decision to allow Boulder's claims to proceed." That request should be denied, which is why I filed a brief in support of the respondents.
As framed by Mr. Buschbacher, "the central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users." This is not quite right. The plaintiffs' claims do not target emissions, as such. Rather, their claim is that the production and marketing of fossil fuels by the defendants has caused or contributed to harms in Colorado, and Boulder County seeks compensation for such harms.
