Supreme Court Justice Samuel Alito has recused himself from Suncor Energy Inc. v. County Commissioners of Boulder County, the closely watched climate liability case brought by Boulder County against major oil and gas companies, just days before oral arguments were set to begin.
Scott Harris, clerk of the Supreme Court, notified lawyers for both sides in a letter sent Monday that Alito was stepping back from the case. No reason was given for the recusal, and the Court has not made one public.
The case was scheduled to open the Supreme Court’s 2026-27 term with oral arguments Monday. At issue is whether Boulder County can pursue state-law tort claims against oil and gas companies over their alleged contribution to climate change, rather than having such disputes handled through federal regulation or legislation.
Carrie Severino, president of JCN, said the recusal is unlikely to change how the case is ultimately decided.
“Justice Alito does not take his duty to sit lightly. We do not know why he recused himself, as the reason has not been made public, but I do not expect his recusal to ultimately change the outcome of Suncor v. Boulder.”
A Fight Over Who Sets Climate Policy
The lawsuit has drawn sharp criticism from Republican officials and conservative legal groups, who argue Boulder County and other local governments are using the courts to push climate policy that couldn’t pass through elected legislatures.
Steve Cox, a former Alaska attorney general who now advises Alaska Gov. Mike Dunleavy, described the strategy during a conference call this week as an attempt to sidestep democratic institutions.
“What they’re doing is they’re going around to these cities and these states, and using tort litigation, mass tort litigation, public nuisance lawsuits in state courts, and in a coordinated way to effectuate the same kind of a result, but just without having to go through their democratically elected officials.”
O.H. Skinner, former Arizona solicitor general and executive director of the Alliance for Consumers, framed the case as being less about climate science and more about the proper role of courts.
“It’s not a fight about climate change. It’s not a fight about climate science. It’s a fight about whether we’re going to allow this maneuver to be what reshapes American society, and that’s why I think everybody should care, irrespective of their views on climate change or their views on how to fix this problem or that problem. Do you want courts as our primary policymakers?”
Skinner said he believes Alito weighed the decision carefully but added that any absence from the bench is a loss for the Court.
“This is part of why the left constantly screaming at the justices about recusal and other things is counterproductive for the country. It doesn’t help the court when they don’t have their full complement.”
Skinner added that while Alito’s personal reasoning behind the recusal remains unknown, he does not expect it to affect the case’s outcome.
“At the same time, he made that decision knowing all of that and based on his own personal considerations, and we will never know all of the details of that. At the end of the day, it does not help the court to not have their full complement, but it is also not something that we think will be dispositive of the case, and it’s not something that we think is noteworthy, other than that he made that decision based on his own considerations and didn’t do it lightly, and he is making the right choice in his mind.”
Pattern of Recusals
Alito’s decision follows a similar move in January, when he recused himself from Chevron USA Inc. v. Plaquemines Parish, a Louisiana coastal erosion case, because he owned stock in ConocoPhillips, the parent company of a party involved in related litigation.
Separately, Justice Elena Kagan has faced calls from conservative legal groups to recuse herself from the Boulder case. Critics point to her having written the foreword to the Reference Manual on Scientific Evidence, which once contained a climate science chapter that was later criticized by congressional Republicans and GOP attorneys general as biased before it was removed.
In July, more than a dozen legal groups, in a letter organized by Severino, asked the Senate Judiciary Committee to investigate the matter.
“Justice Kagan’s endorsement of the partisan and now-removed climate science chapter of the judges’ reference manual continues to raise questions about her ability to impartially decide the case. I hope she is taking her own ethical obligation seriously.”
The case remains a significant test of whether local governments like Boulder County can hold energy companies liable in state courts for climate-related damages, with implications that reach well beyond Colorado.
