Alito recuses, eight justices take the bench as Supreme Court opens term with climate case

Justice Samuel Alito will not participate in the Supreme Court's biggest climate case of the term, the court disclosed in a letter to lawyers shortly before Monday's oral arguments — a late-breaking development that turns an already consequential case into one where a 4-4 tie is now a live possibility.

The case is Suncor Energy Inc. v. County Commissioners of Boulder County (No. 25-170), and it arrives on the first day of the court's new term. At its core, the justices must decide whether federal law blocks state-court lawsuits seeking damages from oil companies for the local costs of climate change. The outcome could determine the fate of dozens of similar cases filed by state and local governments across the country.

Justice Alito has determined that he will not continue to participate in this case.— Supreme Court letter to counsel

Alito does not own stock in either Suncor or ExxonMobil, the two defendants. But his financial disclosure report shows he holds shares in ConocoPhillips and Phillips 66, as well as five other energy-sector firms. Advocacy group Consumer Watchdog pointed to disclosures those companies made to shareholders warning of the risks they face from climate lawsuits making claims similar to Boulder's — arguing Alito stood to benefit indirectly from a ruling in the companies' favor.

Justice Alito's recusal ... is the right decision, and one he should have made from the start.— Alexandra Nagy, organizing director, Consumer Watchdog

The court had previously said Alito's recusal was not required. A spokeswoman for the court told NBC News that Alito "does not have a financial interest in any party" and that the court's legal counsel had advised him no recusal was needed. The reversal came without explanation. With Alito out, the court sits at eight — and a 4-4 split would leave the Colorado Supreme Court's ruling in place without resolving the underlying legal questions nationally.

Litigation began in 2018, when Boulder's city and county filed suit against Suncor — which runs Colorado's only two oil refineries and accounts for about 35% of the state's gasoline and diesel supply, per Boulder County's website — and ExxonMobil, the largest energy company in the United States. Boulder brought claims under Colorado state law for public and private nuisance, trespass, unjust enrichment, and civil conspiracy, alleging the companies had deceived the public about fossil fuels' role in climate change for more than 50 years and seeking damages for local climate impacts.

The companies tried to move the case to federal court, failed, then asked the state trial court to dismiss it — and failed again. On May 12, 2025, a divided Colorado Supreme Court ruled 5-2 that Boulder's claims could proceed. The majority held that the claims were not preempted by either federal common law or the Clean Air Act. Suncor and ExxonMobil brought the case to the U.S. Supreme Court in August 2025; the justices agreed to hear it in February 2026.

Boulder asserts claims for public and private nuisance, trespass, unjust enrichment, and civil conspiracy, and it seeks damages for the role that defendants' production, promotion, refining, marketing, and sale of fossil fuels has allegedly played in exacerbating climate change, which, in turn, has purportedly caused harm to Boulder's property and residents. Boulder's claims are not preempted by either federal common law or the CAA.— Judge Richard L. Gabriel, majority opinion, Colorado Supreme Court

Because state law remains incompetent to regulate interstate and international air pollution, I disagree that Boulder can prosecute its claims. I'm concerned that this decision will contribute to a patchwork of inconsistent local standards that will beget regulatory chaos.— Judge Carlos Samour, dissent, Colorado Supreme Court

Before the justices can reach the merits, they must first decide whether they have jurisdiction to hear the case at all — a question experts describe as a potential off-ramp. State court rulings are generally only eligible for U.S. Supreme Court review when they are final, and Boulder contends that the Colorado Supreme Court's decision does not meet that threshold. The energy companies counter that the Colorado proceeding was a self-contained original-jurisdiction action, and that a separate exception established in Cox Broadcasting Corp. v. Cohn allows review when a state court has definitively resolved the federal-law questions in a case.

On the merits, the companies argue that the Constitution's structure bars any single state from regulating inherently transboundary issues like global climate change, and that because the injuries Boulder alleges were caused by emissions originating outside the United States, the federal government's exclusive authority over foreign affairs forecloses the claims. ExxonMobil and Suncor warn that the wave of state-court cases amounts to an enormous 'carbon tax' that could 'bankrupt the energy industry,' according to SCOTUSblog.

The problem is that climate change is caused by pretty much everybody living on earth. We need to figure out how to address that. We need to address it in a very meaningful way. This litigation doesn't do that.— Phil Goldberg, special counsel, Manufacturers' Accountability Project

The Trump administration has filed on the companies' side, arguing the lawsuits are a backdoor attempt to regulate greenhouse gas emissions and an unconstitutional power grab. In filings reported by ABC News, federal government attorneys argued that "no one state can superimpose its own regulatory preferences on the rest — least of all to address a global problem that exists almost entirely outside its borders and affects the world at large."

Boulder's position is that it is not trying to regulate emissions beyond its borders — only to hold companies accountable for costs already being borne locally. Sam Sankar, senior vice president at Earthjustice, which filed an amicus brief, put it this way: "Boulder County and city aren't trying to change what's happening in Texas or New York, they're trying to get compensation for things happening now in Colorado."

Boulder County and city aren't trying to change what's happening in Texas or New York, they're trying to get compensation for things happening now in Colorado.— Sam Sankar, senior vice president, Earthjustice

The human stakes are visible in communities like Louisville, Colorado, where Tawnya Somauroo lost her home in the 2021 Marshall Fire — the costliest wildfire in Colorado history, with total damage estimated at $2 billion. Climate change was considered a contributing factor. The fire occurred after Boulder's original suit was filed, but it has become a touchstone for what local governments say they are trying to recover.

We lost our homes and they left us to figure out for ourselves how to make our neighborhoods safe again. At the end of the day, it comes out of our pockets, you know? And it does feel like maybe the oil and gas industry should have a part in this.— Tawnya Somauroo, Louisville, Colorado resident

In recent years the court's conservative majority has moved to narrow the scope of environmental regulation, including a 2022 ruling that curtailed the EPA's power to limit carbon dioxide emissions from power plants. Adding to the complexity, the EPA last month repealed rules limiting greenhouse gas emissions from coal and natural gas power plants, a move ABC News noted could complicate the federal government's argument that the Clean Air Act gives Washington exclusive authority over emissions.

The ruling is expected to arrive before the term closes in June or July 2027. If the court splits 4-4, the Colorado Supreme Court ruling allowing Boulder's case to proceed would stand — but the national legal questions would remain unresolved, leaving the fate of dozens of other cases in limbo.

Why it matters — The ruling will determine whether dozens of state and local governments can use state courts to seek billions of dollars in climate-damage compensation from oil companies, or whether federal law shuts that avenue down entirely — and a potential 4-4 tie could leave the question unresolved for years.

Sources differ on Whether Justice Alito's recusal was required: Court spokeswoman said Alito 'does not have a financial interest in any party' and legal counsel advised recusal was not required (nbcnews.com) vs Consumer Watchdog and left-leaning groups argued Alito could benefit indirectly through holdings in ConocoPhillips and Phillips 66, which face similar lawsuits (nbcnews.com)

Reported by axios.com, pbs.org, deseret.com, abcnews.com, scotusblog.com, constitutioncenter.org, nbcnews.com