The Supreme Court will soon decide whether granola jurisdictions like Boulder, Colorado, can export their energy preferences nationwide. The answer should be an easy “no”—I bet only Justice Ketanji Brown Jackson’s vote is in doubt—but the case is worth exploring because it surfaces a mature understanding of federalism.
Last September, after having filed an amicus brief encouraging the Court to intervene, I argued that Colorado’s highest court must have been on a Rocky Mountain high when it allowed Boulder County’s cockamamie climate-change lawsuit against energy companies to proceed. The county alleges that emissions from fossil-fuel production are inflicting environmental harm on residents, entitling the government to damages.
Finally, a reason to check your email.
Sign up for our free newsletter today.
In effect, Boulder claims the authority to set national—indeed international—energy and environmental policy. At least two dozen left-wing enclaves have filed similar claims against energy providers.
The Supreme Court duly took the case, and Suncor v. Boulder County will be one of the first arguments it hears next term. Now, at this “merits” stage, I filed an amicus brief for the Manhattan Institute, the Frontier Institute, and the Independence Institute explaining that Boulder’s lawsuit, and others like it, turns federalism on its head and offends foundational principles of our constitutional order.
Of course, federalism is usually invoked in its “vertical” sense, which describes interactions between states and the federal government. But “horizontal” federalism—interactions among the states themselves—is no less important.
Under our first national charter, the Articles of Confederation, the states pursued their own interests. They enacted protectionist trade barriers to support their own industries, issued their own currencies, and even raised their own armies. This was not a union of equal partners but a competitive league in which a few could dominate the whole.
Against this backdrop, the Framers devised our Constitution to mitigate friction and establish equal sovereignty among the states. For example, the Constitution forbids the states from laying duties or entering compacts without congressional approval. And Article III extends federal judicial power to disputes between states or between citizens of different states. These provisions reflect the Founders’ conclusion that federal courts are best able to referee “bickerings and animosities” between coequal sovereigns, as Alexander Hamilton explained in Federalist 80.
Statutes of the early republic confirm the equal-sovereignty principle. For example, the Northwest Ordinance provides that new states would enter the union “on equal footing” with existing states. No special privileges accrued to the original 13.
Climate-change lawfare upends horizontal federalism and augurs a return to the Articles. While a state is sovereign within its own borders, it may not leverage its laws to govern the nation indirectly. Boulder County is trying to do just that.
Our brief identifies four ways in which climate lawfare offends horizontal federalism. The first two are closely related.
In general, a state may not regulate or punish conduct beyond its borders. Boulder County’s lawsuit is especially offensive in this regard, because it seeks to punish lawful conduct after the fact.
Nor may states leverage their regulations to coerce other states economically. Boulder County’s lawsuit is a covert, coercive regulation. The suit’s practical effect is to force energy companies to change their production practices nationwide. Boulder is free to enact the Green New Deal within its borders if it wants. But it may not force Wyoming or Texas to do so through market coercion.
When disputes do emerge among the states, a federal solution is appropriate. This structural premise runs through the Supreme Court’s interstate-pollution cases. Whether regarding carbon emissions or water pollution, the doctrine runs in one direction: federal law trumps state regulatory machinations.
Finally, this case embodies a basic premise of political fairness. If Boulder’s lawsuit succeeds, local officials in one affluent community will exercise extraordinary influence over other states, particularly states whose workforces and public finances depend heavily on fossil fuels. Horizontal federalism forbids the kind of favoritism in which some states, to paraphrase Animal Farm, become more equal than others.