Justice Samuel Alito’s sudden decision to recuse himself has caused a stir in an important Supreme Court case that could significantly impact climate litigation nationwide.
The Supreme Court is set to hear arguments on October 5 in the case of Suncor Energy v. County Commissioners of Boulder County. This case addresses whether local governments in Colorado can utilize state tort laws to seek compensation from energy companies for alleged damages related to global greenhouse gas emissions. Alito stepped aside from the case on September 28, which means eight justices will now deliberate on the matter.
Harold Hongju Koh, a law professor at Yale, mentioned that Alito’s recusal raises the chance that the Colorado Supreme Court’s ruling could be upheld without a decision if the U.S. Supreme Court ends up split 4-4. However, this raises a pertinent question for the upcoming oral argument: which justice might cast the fourth vote to affirm the lower court’s decision?
An evenly divided court would leave the 2025 ruling from the Colorado Supreme Court unchanged.
Jonathan H. Adler, a law professor at William & Mary, expressed that the timing of Alito’s recusal was somewhat surprising, though he noted that Alito has previously stepped back from cases involving energy firms due to his stock holdings.
Alito did not publicly state his reasons for stepping down from the case. While he doesn’t own stock in Suncor or ExxonMobil, the companies directly involved in the lawsuit, his financial disclosure indicates he has investments in other energy firms, such as ConocoPhillips and Phillips 66, both of which are also facing climate-related lawsuits. Alito’s disclosure lists his ConocoPhillips investment valued up to $15,000 and his Phillips 66 holdings between $15,001 and $50,000.
Most experts had considered Alito likely to support the petitioners’ arguments, as he tends to favor federal preemption more consistently than other justices.
Boulder County and the City of Boulder filed suit against Suncor and ExxonMobil in 2018, alleging that their fossil fuel operations contributed to local climate-related issues. The Colorado Supreme Court permitted the case to move forward in 2025, with the companies contending that claims regarding interstate and international emissions fall under federal jurisdiction. Meanwhile, advocates for climate litigation are strategizing on how to hold fossil fuel companies accountable under state laws as the high-profile conflict approaches.
Other similar state-level climate cases are also advancing throughout the country. For instance, California and various local governments have taken legal action against major oil companies, asserting they misled consumers about the climate consequences of fossil fuels, seeking damages and other forms of relief under state law. A California court paused these coordinated cases in April, determining that the Supreme Court’s ruling in Boulder could address many of the issues posed in the litigation.
In Hawaii, the state has sued multiple defendants, including BP, Chevron, and ExxonMobil, claiming a long-term deception campaign regarding the climate impacts of fossil fuels. A Hawaii court opted not to delay the proceedings for Boulder, noting that the Supreme Court’s decision might not resolve Hawaii’s specific claims of deception.
Similarly, Minnesota’s case against ExxonMobil and other companies accuses them of misleading consumers about fossil fuels and climate change. Most of Minnesota’s claims were allowed to proceed in 2025, and the state Supreme Court recently declined to review an appellate ruling permitting the litigation to continue.
New Jersey’s lawsuit against ExxonMobil and other major energy companies was dismissed in 2025 after a judge found that federal law overshadowed the state’s climate claims. Although New Jersey has appealed this decision, the appellate court paused the appeal in March while they await the Supreme Court’s decision in Boulder.
The outcome of this case may not solely hinge on the justices’ views regarding preemption.
When the Supreme Court agreed in February to take on this case, it specifically asked the parties to address whether the court even has the jurisdiction to hear it.
Legal experts caution that predicting how a justice will rule ahead of oral arguments is typically tricky. There’s a possibility of a 4-4 split, which would mean affirming the lower court’s decision.
This case also raises complex jurisdictional questions that could hinder the justices from reaching the fundamental issue of federal preemption.
Glicksman noted that the jurisdictional question complicates predictions further. If the Colorado Supreme Court’s ruling did not involve a final order, the Supreme Court might lack jurisdiction, which could prevent it from addressing the merit of the preemption question.
The justices may not align with traditional ideological divisions in this case, as it delves into the dynamics of state versus federal authority.
Additionally, while Alito has been known to narrow the scope of significant environmental legislation in the past, his recusal has sparked various reactions from legal professionals. Some, like Rebecca Bratspies, argue that Alito made the right choice to recuse himself due to clear conflicts of interest stemming from his energy stock holdings. Others express optimism that this recusal won’t ultimately affect the case’s outcome.
On the flip side, Jason Isaac from the American Energy Institute criticized the notion of recusal in this particular instance and pointed out that Justice Kagan is still involved in issues related to climate science, which some argue could raise questions about her impartiality.
The surrounding discussions reveal the complex interplay of financial interests, the legal ramifications of climate litigation, and the evolving landscape of judicial decision-making in these critical cases.
