U.S. Constitutional System of Co-federalism Collides with the Climate Hoax

I recently delved into the purpose and importance of the Separation of Powers in our constitutional scheme, and the requirement that our Legislative, Executive and Judicial branches “remain in their own lanes.”  This week I am going to address another equally important issue: our American system of co-federalism—the relationship between the 50 states and the national, federal government.  

These longstanding issues emerge again within the context of a case now before the U.S. Supreme Court—Suncor Energy, Inc. v. Commissioners of Boulder County—which will address whether or not state courts may constitutionally weaponize tort law to implement a comprehensive national regulatory regime applied to interstate, and even international, climate energy policy.  This is an area constitutionally, and practically, preempted by federal law.

Our U.S. Constitution sets up a framework by which the states and the federal government are co-equal sovereigns, with the authority of the states being generally limited to their own state lines.  The Framers grounded this idea of dual sovereignty on the principle that both the states and the federal government each have their own independent spheres of authority to protect individual liberty.  (I would argue that the 10th Amendment, primarily, but other constitutional provisions as well, actually provide the states with greater authority in our system of co-federalism but I will address that another day).  

So, by splitting power between state and federal governments, the Framers intended to establish a national government of limited powers while maintaining a distinct zone of autonomy within which the state governments could exercise general police powers on behalf of their state residents including health, education, welfare and the running of elections.  What this really means is that under the Supremacy Clause the federal government would have the final word if there was a conflict between federal and state law but, beyond that, each individual state was to be given great freedom to govern themselves as they saw fit.

Now, let’s apply this principle of co-federalism to the Suncor Energy v. Boulder County case.  Directly at issue are the constitutional limits of states and localities who are attempting to punish oil and gas companies for supposedly contributing to “global warming.”  Boulder, Colorado sued oil companies in Colorado state court for “local climate damage” allegedly caused by their global greenhouse gases.   

Firstly, because I have done so before I won’t again today address the fallacy and deceit surrounding so-called “proof” of man-made climate change.  I simply re-urge that our climate has always changed, including long before man was ever on the earth!  Earth’s temperature occurs in certain rhythmic cycles and did so long before humans appeared on earth, approximately 200,000 years ago.  So, honest science reflects that humans are not the principal cause of climate change, but the Climate Change Religionists stay fanatically focused on it anyway.  

However, today I am focusing only on the key issue in the Suncor Energy case: whether states and localities can turn federalism on its head and dictate policies for the rest of the country.    Well, the U.S. Supreme already broadly addressed and answered this question in AEP v. Connecticut, a 2011 case, wherein the Supreme Court held that federal law—the Clean Air Act—preempts state law claims related to CO2 emissions. 

Here, the attorney for Boulder is attempting to get around that ruling by arguing, in Colorado state court, that Suncor is different: that the oil companies supposedly violated Colorado state law by creating a “public and private nuisance,” “trespass,” and “unjust enrichment” by selling products (presumably oil and gas) without warning about their impact on the climate.

That’s a real reach and flies directly in the face of Supreme Court precedent addressing state and federal power. As the Wall Street Journal summed it up: “… the Framers wrote the Constitution to prevent states from pursuing self-interested policies that intrude on the powers of other states and the nation.  Individual states have sovereign police powers over crime and other matters, but they don’t extend to running the U.S. economy or its foreign policy.”

What this means for us is that, while the Climate Change Religionists in states like Colorado, California and New York may generally pursue such policies within their own state borders, they may not dictate that policy insanity to the rest of the country.  Rather, our Constitution clearly places that responsibility with the U. S. Congress and President.  I hope the Supreme Court will make that point, yet again, unmistakably clear.