We Told You So: Boulder’s Climate Lawsuit Is About Speech

​Sometimes an opposing party makes your argument for you.

In Suncor Energy v. Boulder County, the City and County of Boulder are seeking damages from Suncor and ExxonMobil for the alleged local effects of global climate change. At the certiorari stage, Boulder presented the lawsuit principally as a conventional application of state tort law, invoking nuisance, unjust enrichment, trespass, and civil conspiracy.

Protect The 1st’s amicus brief urged the U.S. Supreme Court to look past those labels. We explained that Boulder’s theory of liability turns substantially on speech – specifically, claims that the companies misled the public about fossil fuels, emissions, and climate change – despite the complexities of this issue.

Boulder has now filed its merits brief. Right at the outset, it confirms what we said all along.

The brief characterizes the lawsuit as one seeking damages “for deceptive marketing and sales (rather than emissions).” It later alleges that the companies, “through their advertising,” misled the public about climate change and the role of fossil fuels. Its table of contents even devotes a section to arguing that “the deception claims are not preempted.”

To be precise, Boulder’s statutory consumer-protection claims were dismissed without prejudice and are not before the Supreme Court. But its surviving tort theories still rely heavily on the same allegation: The companies caused harm by communicating a deceptive message. That is inescapably about speech.

A similar lawsuit brought by Honolulu, which failed before the Court, shows how far such theories can reach. Plaintiffs there sought to depose hundreds of third-party witnesses, including alleged “climate-denial leaders and authors of climate disinformation,” public-relations strategists, scientists and academics, media organizations, think tanks, and interest groups. Such sweeping discovery targets not just commercial advertising, but public commentary and expressive associations engaged in scientific and political debate.

Misleading commercial speech can, of course, be regulated. But government plaintiffs cannot evade First Amendment scrutiny merely by declaring contested speech about a controversial issue as indisputably false and then packaging that speech as nuisance, trespass, and unjust enrichment. Courts must distinguish provably deceptive commercial claims from protected participation in public debates.
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Agree or disagree with what the companies said, Boulder has now made it clear that the case turns substantially on just that.

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