Lawyer Behind Colorado Climate Suit Says the Quiet Part Out Loud: Litigation Is a Tax on Oil Companies and Consumers
October 20, 2025
As environmental activists across the country increasingly turn to the legal system to target oil and gas companies, a key attorney behind a case that may end up before the Supreme Court is saying the quiet part out loud: Climate change lawsuits are intended as a tax on oil companies and consumers, their legal merits notwithstanding.
David Bookbinder, director of law & policy at the Environmental Integrity Project, worked for years on the legal team that brought a suit on behalf of the county of Boulder, Colo., alleging that two major energy companies concealed the impact their products would have on climate change and are therefore liable for the resulting damage to the county.
Speaking during a Federalist Society webinar titled “Can State Courts Set Global Climate Policy,” Bookbinder made an admission that may seem obvious to observers but that is strategically omitted from the legal arguments environmental lawyers like Bookbinder take before the court. Bookbinder, who still serves in an advisory role on the case, explained that the Boulder lawsuit, and the many like it that have been filed in recent years, is part of an effort to increase costs on oil companies, costs that will ultimately be passed down to consumers and, as a result, dampen fossil fuel demand.
“Essentially, the tort liability is an indirect carbon tax. You sue an oil company, an oil company is liable, the oil company then passes that liability on to the people who are buying its products,” Bookbinder said. “In some sense, it is the most efficient way — the people who buy those products are now going to be paying for the cost imposed by those products.”
Since climate activists haven’t been able to advance their anti-fossil fuel crusade through the normal democratic process, Bookbinder explained, they’ve had to resort to punitive litigation to impose their agenda on consumers.
“I’d prefer an actual carbon tax, but if we can’t get one of those, and I don’t think anyone on this panel would [dis]agree Congress is likely to take on climate change anytime soon — so this is a rather convoluted way to achieve the goals of a carbon tax,” Bookbinder said. “The people who use the products pay for the damage that they cause.”
The case, Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., alleges that energy companies Suncor Energy and ExxonMobil were not transparent about climate change to protect profit and sell more fossil fuel products.
The lawsuit is part of a growing trend of litigation that treats climate change as a “public nuisance,” which is traditionally defined as “an unreasonable interference with a right common to the general public.” Typically, such cases offer easily defined, hyper-localized solutions: Remove a homeless camp blocking a sidewalk, clean up a specific factory that’s producing harmful fumes. In the case of the Boulder suit, neither Suncor nor Exxon is based in the county and the alleged “nuisance” their products have created applies equally to any jurisdiction across the globe.
Bookbinder is not the first persona affiliated with the Boulder case to offhandedly referred to the real motivation behind the suit: In 2021, city officials drafted a memo that referred to the suit as part of an effort “to drive more fundamental systems change” and, in 2020, another attorney working on the case told reporters the suit was intended to “raise the price of the products” offered by fossil fuel companies.
The Colorado Supreme Court has nevertheless allowed the case to proceed, and the Supreme Court will soon decide whether to grant cert in the case and consider its novel claims. Over 100 members of Congress urged the Supreme Court to do just that in an amicus brief filed last week. Led by Representative Steve Scalise, the signatories argued that the Boulder suit “upends the constitutional balance between federal and state authority” and, if successful, would allow “every locality in the country sue essentially anyone in the world” over climate change.
John Yoo, Heller professor of law at the University of California and senior research fellow at the Civitas Institute, told National Review that this litigation is a “backdoor” to attack and potentially dismantle energy companies. The federal government oversees environmental regulation, and more specifically, climate change.
“There are a variety of cities and states that don’t agree with the federal government, and they would like to see the energy companies taxed,” Yoo said. “Some of them probably like to see them go out of business. Since they can’t persuade through the normal political process of elections and legislation like the rest of the country, they’re using this back door, trying to bankrupt these companies by suing them on made-up claims that these companies somehow deceived people who are buying energy and gas and oil, about climate change.”
The process, according to Yoo, is discrete. The lawsuits never mention an indirect carbon tax, nor the desire to bankrupt the energy companies, but rather sell the story that these companies sold their products — oil, gas, and electricity — but failed to explain that consumption of their products would exacerbate climate change.
If successful, the settlements in these cases would then be used to address budget deficits in cities like Boulder or Honolulu, where many of these climate lawfare cases are playing out. Cities and states are not allowed to impose a carbon tax — the power rests with Congress — so instead, revenue is raised via climate lawsuits.
Yoo described Bookbinder’s comment as “revealing.”
“They pulled the curtain aside and showed us the real agenda of these lawsuits, which is not to allegedly protect consumers in Boulder or consumers in Hawaii,” Yoo said. “It’s really an effort to punish the energy companies, which actually provide the energy that we need for modern life.”
The Boulder County case is consequential because the Supreme Court is about to determine if it will grant the plaintiffs’ petition to hear the case.
“The Supreme Court should make clear states and cities don’t get to decide whether there’s going to be a tax on energy — that that’s up to Congress,” Yoo said. “The Court should stand up for the prerogatives of the federal government and its control over the issue of climate change.”
According to Bookbinder’s comment, this is not a lawsuit about grievances, but rather implementing a carbon tax under wraps.
“When woke activists tell us who they are, we should believe them. This confirms exactly what Alliance for Consumers has been saying for years: Woke lawfare is a disastrous attempt to wipe products off the shelf and enact a radical climate agenda that could never pass at the ballot box or in the halls of Congress,” O. H. Skinner, executive director of Alliance for Consumers, said.
Kamden Mulder is a William F. Buckley Jr. Fellow in Political Journalism.
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