UCLA School of Law

State and local governments across the United States have filed suit in state courts against major fossil fuel companies, seeking compensation for climate-related damage to their infrastructure, public resources, and communities. These suits allege that the defendant companies knew for decades that their products were driving catastrophic climate change, concealed that knowledge, and ran sophisticated deception campaigns to protect their profits. The companies and their supporters contend that the Clean Air Act and the Constitution foreclose the claims. The Supreme Court's grant of certiorari in Suncor Energy, Inc. v. Board of County Commissioners of Boulder County will require the Court to decide whether these preemption arguments succeed.

This essay argues that they clearly do not. The Clean Air Act's savings clauses affirmatively preserve state remedies, and American Electric Power Co. v. Connecticut expressly left the state-law preemption question open; the presumption against preemption in this area of traditional state authority applies with full force and has not been rebutted. Neither the Act's text, nor its occupation of any field, nor any conflict with its objectives forecloses state common law claims for climate-related harm—from nuisance, negligence, and trespass to fraud and concealment. The claim that the Constitution's allocation of foreign affairs authority to the federal government preempts such suits misreads relevant precedent, has no limiting principle, and has been rejected by the courts that have considered it. And the fraud and deception allegations at the heart of many of these suits are further still from any basis for preemption: they address conduct the Clean Air Act does not regulate and that no federal statute has ever been held to preempt.

The essay also advances several arguments that the parties' briefs do not reach. First, damages and locally confined relief lack the extraterritorial reach that alone could justify centralizing authority over emissions. Second, the Trump Administration's 2026 rescission of the greenhouse gas endangerment finding removes the regulatory predicate on which the "speaks directly" rationale, and thus the preemption theory, depends. Third, after Loper Bright, courts owe no deference to any agency claim that federal inaction preempts state law. Finally, preserving overlapping state and federal authority provides significant governance benefits. Communities that have endured the costs of climate harm—caused by corporations that allegedly knew the consequences and hid them—are entitled to their day in court. The Constitution simply does not shield polluters from paying for the harms they cause.