A recused Alito leaves Boulder's climate suit one vote from a tie

The US Supreme Court opened its term on Monday with nearly two hours of argument in Suncor Energy v. County Commissioners of Boulder County, and did not show a majority ready to shut the case down. Justice Samuel Alito is recused. A 4-4 split would leave standing the Colorado Supreme Court ruling that let Boulder's suit proceed in state court. A decision is expected next year.

Boulder and Boulder County sued Suncor and ExxonMobil in Colorado state court eight years ago. Suncor, part of one of Canada's largest energy groups, runs the only two oil refineries in Colorado. ExxonMobil is the largest energy company in the United States. The local governments want money for costs they say come from climate effects, including work to protect public and private property. They also allege that both companies deceived the public about the effects of climate change and about the role of fossil-fuel products, and that producing, refining and marketing those fuels contributed to the harm.

The companies argue that federal law bars the claims. Several conservative justices pressed Boulder on the prospect of states entering a field they described as long controlled by Washington. They also pressed the companies. Amy Howe of SCOTUSblog wrote that after the argument it was not clear a majority agreed with the energy firms. CNN's John Fritze described the bench as conflicted, with particular concern among conservatives about state tort suits in an area of federal control, and hard questions in both directions.

Dozens of other cities have filed similar suits. Boulder's case is the one the Court chose for this term, and it is the first climate case of this kind on the docket in nearly two decades, on CNN's account. The practical stake is not a damages figure from Monday. No number was fixed. The stake is the forum. If the Court holds that federal law preempts this kind of state-tort claim, the city cases stop or move. If it affirms the Colorado court, or splits 4-4, Boulder and the cases behind it stay in state court, where a jury and a state damages law do the next work.

Alito's recusal is the arithmetic fact under the argument. Eight justices heard it. The empty seat was visible in the sketches. A tie does not produce an opinion. It produces the status quo, which in this instance is Boulder's right to continue. Counsel for the companies therefore needed five votes, not four. Counsel for Boulder needed four. That is an unusual burden for a petitioner, and it is why a muddled argument is more useful to the county than to Suncor and ExxonMobil.

The deception claim and the production claim are pleaded together and do different work. A deception count sounds in fraud and consumer protection. A production count sounds in nuisance and asks a court to price the effect of fuels sold lawfully under federal permits. Justices who worry about states running energy policy are mostly worrying about the second count. Justices who think a fraud suit can live in state court are mostly talking about the first. Monday did not separate them. The opinion, when it comes, may have to.

What Monday settled is the posture: argued, recusal in place, city cases waiting, ruling due in 2027. What it did not settle is whether a Colorado jury will ever hear Boulder price a flood or a fire against a refinery balance sheet.

The case caption names Suncor first because the company petitioned. Boulder is the respondent that wants to stay in the court it chose. ExxonMobil is beside Suncor on the defence. The two refineries Suncor runs in Colorado are the local fact that makes a state-court filing plausible to a jury and awkward for a preemption argument: the plants are in the jurisdiction, the alleged deception was aimed at people who live there, and the costs Boulder lists are local. The companies' answer is that the climate effect of fuels is national and international, and that a state jury cannot price it without writing energy policy.

Monday's argument did not produce a vote. It produced a transcript and a recusal. The next public marker is an opinion, or an affirmance by an equally divided court, sometime in the 2026 term that runs into 2027. Cities with similar complaints will read that marker as their own. Until it arrives, Boulder's suit is alive in the posture the Colorado Supreme Court left it.