From Pork Producers to Suncor: Extraterritoriality and Our Constitutional Structure

How far can states go in regulating conduct that has effects outside their borders?

At the Founding, the states entered a constitutional union in part because the Articles of Confederation proved incapable of managing interstate conflicts and preventing individual states from imposing burdens on their neighbors. At the same time, many of the Framers grew concerned that unchecked state legislatures, driven by local interests and factional pressures, threatened both individual rights and the stability of the Union. The Constitution created a framework designed to preserve both state sovereignty and a functioning union. Today, some commentators argue that climate litigation presents a modern version of those same concerns.

In a case currently pending before the Supreme Court, Suncor Energy v. Boulder County, Colorado local governments are seeking massive financial damages under state tort law for global climate-related harms.

Supporters of the energy companies contend that climate regulation is an inherently national and international issue, and therefore cannot be governed through a patchwork of state tort regimes or localized litigation. On the other side, the local governments argue that these suits involve traditional exercises of state police power–including nuisance, fraud, and consumer-protection law. While proponents frame these suits as localized consumer-protection disputes, critics argue they represent a dangerous breakdown of our constitutional architecture.

Notably, many of the amicus briefs filed in Suncor frame the dispute not merely as a question of statutory preemption, but as a broader debate over the structural Constitution itself—including the proper allocation of authority among Congress, courts, and the states. Is this case an example of the Constitution imposing structural limits to prevent individual states from effectively regulating the nation through litigation? Or does it embody the principle that states retain broad sovereign authority absent clear federal displacement? And what does the structural Constitution require of Congress, courts, and the states in resolving those conflicts?

More broadly, what are the constitutional limits on states regulations that impact activities outside their borders and what is the source for those limits? Three years ago, the Supreme Court made clear in National Pork Producers Council v. Ross that such restrictions are not found in the Dormant Commerce Clause doctrine. Does the structural Constitution answer that question, or is the answer found in one or more particular provisions of the Constitution?

Join us for a discussion examining these questions.

Featuring:

• Prof. Michael Greve, Professor of Law, Antonin Scalia Law School, George Mason University
• Prof. Daniel Rodriguez, Harold Washington Professor of Law, Northwestern University Pritzker School of Law
• O.H. Skinner, Executive Director, Alliance For Consumers
• Michael Williams, Solicitor General, West Virginia
• (Moderator) Hon. Jennifer Perkins, Judge, Arizona Court of Appeals, Division One

   

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.