Rachel Rothschild (University of Michigan Law School) has posted The Collision of State Climate Tort Suits with Federal Deregulation (Yale Law Journal Forum, forthcoming) on SSRN. Here is the abstract:
In its October 2026 term, the Supreme Court will review Suncor Energy v. County Commissioners of Boulder, a tort case with significant implications for the balance of power between federal and state law. Three state supreme courts and one federal circuit court of appeals have now issued conflicting opinions on whether plaintiffs can bring state tort suits against fossil fuel companies over climate harms. The split in their decisions is the product of stark differences in their views about the history of litigation over transboundary environmental pollution and the preemptive effects of the Clean Air Act.
This Essay provides a historical corrective to arguments that state common law has been unavailable for litigation over transboundary environmental threats, detailing how and why the Supreme Court preserved such claims nearly four decades ago. It then assesses the preemption arguments in Suncor given this history, the Trump administration’s position that the Clean Air Act does not provide the federal government authority to regulate greenhouse gases, and the Supreme Court’s decisions limiting the Environmental Protection Agency’s regulatory authority. It argues that state common law should be available for most, if not all, climate tort claims in light of the Court’s recent statutory interpretation methods, traditional approaches to preemption doctrine, and states’ historic police powers over their natural resources and public health.
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