Empty Alito Seat Opens SCOTUS Term as Exxon and Suncor Try to Kill Boulder's Climate Suits

The U.S. Supreme Court Building in Washington, D.C. Photo by Carol M. Highsmith / Library of Congress, Prints and Photographs Division (public domain).

Eight justices will take the bench Monday for the first argument of the Supreme Court's 2026–27 term. The ninth chair — Justice Samuel Alito's — will stay empty after a Sept. 28 clerk's letter announced he will not continue to participate in the term's opening case.

That case is Suncor Energy Inc. v. County Commissioners of Boulder County, docket 25-170. ExxonMobil and Suncor Energy (U.S.A.) are asking the justices to hold that federal law — the Constitution's structure, the Clean Air Act, and foreign-affairs power — preempts Boulder city and county's state-law climate-damages claims. Argument is set for 10 a.m. Eastern Monday, Oct. 5, the first case of the fall term.

The companies told the Court that nearly 60 state and local governments have brought similar suits seeking billions from fossil-fuel producers. A ruling for Exxon and Suncor could knock down much of that ledger in one stroke. A 4–4 tie would do the opposite: leave standing the Colorado Supreme Court's May 2025 ruling that federal law does not preempt Boulder's claims and that those claims may proceed under state law.

The empty chair and the tie risk

SCOTUSblog reported that Clerk Scott Harris's letter gave no reason for Alito's exit — only that the justice "has determined that he will not continue to participate." Amy Howe's case preview notes Alito owns stock in oil and gas companies and that an eight-justice bench creates a real 4–4 possibility. Under Court practice, a tie affirms the judgment below without setting nationwide precedent — which here means Colorado's green light for Boulder survives, and the copycat suits keep breathing.

The Court's day call lists Kannon K. Shanmugam for the energy companies (20 minutes), Principal Deputy Solicitor General Sarah M. Harris for the United States as amicus supporting petitioners (10 minutes), and Kevin K. Russell for Boulder (30 minutes). The justices granted the Solicitor General divided argument on Sept. 4. Trump's Justice Department filed a friend-of-the-court brief backing the companies, arguing that lawsuits like Boulder's try to solve a global problem by forcing one state's regulatory preferences on the other 49 — a secondary fact here, not the center of the story.

What Boulder sued for — and what the companies say it really is

Boulder city and county sued in April 2018 under Colorado theories including public and private nuisance, trespass, unjust enrichment, and civil conspiracy. They seek money for infrastructure, emergency, and public-health costs they attribute to climate-driven harms, and they accuse the companies of promoting fossil fuels while concealing product risks. Boulder insists the suit is not about capping emissions or shutting production — only about shifting costs they say the industry helped create.

Exxon and Suncor call that framing a "carbon tax" by other means. In merits briefing highlighted by SCOTUSblog, they argue states surrendered power over inherently transboundary air and climate disputes when they joined the Union; that the Clean Air Act gives EPA the national emissions framework; and that Boulder's theory would let a Colorado jury price global greenhouse gases for conduct far outside Colorado. Amici on their side warn of ripple effects into plastics, autos, and guns if state tort becomes a cross-border policy battering ram.

Before the merits, the Court must decide whether it even has jurisdiction. Boulder says the Colorado Supreme Court decision was interlocutory, not a final judgment under 28 U.S.C. § 1257. The companies say it was a self-contained original proceeding — or fits a Cox Broadcasting exception because reversing would end the case. Cornell's LII bulletin frames both questions the justices ordered briefed when they granted cert Feb. 23, 2026.

Policymaking by lawsuit — outside Congress

Conservatives watching Monday's clock see more than one Colorado docket. The accountability angle is whether cities and attorneys general can use state tort and nuisance to regulate national energy markets Congress never voted to remake that way. Indiana's attorney general is not a party to this case, and this report invents no Hoosier filing. Softly, the same fight over who sets energy rules — Capitol Hill or county courthouse — is the one Hoosier energy workers and fuel-price watchers already feel whenever national climate litigation moves markets and litigation reserves.

Live audio of the argument is set for the Supreme Court's livestream. Boulder counsel said the teams will not take advance media interviews.

When the marshal calls the case Monday morning, the argument clock will start with Alito's chair vacant and nearly sixty similar suits hanging on how eight justices vote — or whether they split and leave Colorado's ruling exactly where it sits.

Written by Hoosiers, for Hoosiers.