The Supreme Court's First Climate Case of the Term Never Mentioned Minnesota. It Could Still Reach Minnesota's.

The first words in the transcript of the Term’s first argument were the Chief Justice’s: “We’ll hear argument first this term in Case 25-170, Suncor Energy versus County Commissioners of Boulder County.” That was October 5, 2026. Over the next 119 pages of transcript, eight justices, two lawyers on the oil companies’ side, and Boulder’s lawyer argued about whether a Colorado county can make ExxonMobil and Suncor pay for what climate change has done to it.

The word “Minnesota” doesn’t appear once.

It should have. Minnesota has its own case against ExxonMobil, Koch, and the American Petroleum Institute, sitting in Ramsey County District Court right now. And the lawyer who argued first for the oil companies on October 5, Kannon Shanmugam, was API’s counsel of record when it asked the Supreme Court to take Minnesota’s case in 2023. The Court said no. Now it’s hearing Boulder’s.

Here’s what almost nobody tells you. Boulder’s case and Minnesota’s case aren’t the same case. Boulder sues for the damage. Minnesota sues for what the companies said. Whether that difference matters is the whole ballgame for Minnesota, and the argument spent about a tenth of its pages on it.

What’s the Supreme Court actually deciding?

The question the oil companies asked the Court to answer is this one:

Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.

When the Court granted review on February 23, 2026, it added a second question of its own: “Whether this Court has statutory and Article III jurisdiction to hear this case.” On September 28, the Clerk told counsel that Justice Alito “will not continue to participate in this case.” So eight justices heard it.

Boulder filed in state court in April 2018. By the time the Colorado Supreme Court took it up, Boulder was pressing five common-law claims: public nuisance, private nuisance, trespass, unjust enrichment, and civil conspiracy. Its trespass theory is that the companies’ conduct caused “floodwaters, fires, hail, rain, snow, wind, and invasive species” to invade county property. It wants “monetary damages to compensate it for its past and future costs to mitigate the impacts of climate change”.

Boulder did plead a deception claim under the Colorado Consumer Protection Act. The trial court threw it out in June 2024 for lack of particularity, noting that “the dismissal of the CCPA claim is without prejudice.” What went up to the Colorado Supreme Court was the tort case. On May 12, 2025, that court held the claims weren’t preempted, over a two-justice dissent, and sent the case back to the trial court.

Boulder’s complaint does accuse the companies of misleading the public. Shanmugam called it “the misrepresentation strand of the claims”. But the claims it rides on are torts, and the money it wants is for the damage. Strip away the briefing and Boulder’s a damages case about weather.

And what’s Minnesota suing for?

The Attorney General’s office filed State v. American Petroleum Institute in Ramsey County on June 24, 2020. The complaint pleads five counts: the Prevention of Consumer Fraud Act, failure to warn, common-law fraud and misrepresentation, the Deceptive Trade Practices Act, and the False Statement in Advertising Act.

One of those is already gone. On February 14, 2025, Judge Reynaldo Aligada, Jr. dismissed the Consumer Fraud Act count. That statute reaches deception made “with the intent that others rely thereon in connection with the sale of any merchandise,” Minn. Stat. § 325F.69, subd. 1, and the court found the State hadn’t tied the statements to any sale: “Because the State has not identified any sale, or the connection between Defendants’ alleged statements and that sale, the Court grants Defendants’ motions to dismiss as to the MCFA claim.” Everything else survived.

The surviving advertising statute is a 1913 law, and it reads like it. Section 325F.67 covers anyone who, “with intent to increase the consumption thereof,” places before the public “in this state” an advertisement containing a material statement of fact “which is untrue, deceptive, or misleading”. And then the legislature added a line that the oil companies would probably like to frame:

. . . and any such act is declared to be a public nuisance and may be enjoined as such.

So Minnesota’s false-advertising claim is, by statute, a nuisance claim. Just not the kind Boulder brought. (I covered how these consumer statutes work, and who they actually pay, in a piece on the Consumer Fraud Act and the Deceptive Trade Practices Act.)

The bigger difference is the remedy. The State asks the court to enjoin future violations, order the companies to publish their climate research, make them “fund a corrective public education campaign in Minnesota relating to the issue of climate change,” impose civil penalties, and order restitution and disgorgement. The Court of Appeals read that list in January and put it flatly: “The state does not ask for monetary legal damages.”

Side by side:

How much of the argument went to deception?

By my count, the line between you polluted us and you lied to us came up on 11 of the 119 pages of argument. The word “deception” was spoken seven times. Boulder’s lawyer, Kevin Russell, said it every time. The phrase “failure to warn” never came up at all. The United States’ lawyer, Principal Deputy Solicitor General Sarah Harris, never said “deception” or “misrepresentation”.

Justice Kagan opened the subject. She compared this suit to the 1990s state tobacco cases and the opioid litigation, then asked: “This is chapter 3. So, if this is chapter 3, were chapters 1 and 2 also preempted?” Shanmugam’s answer: “I don’t think so.”

That’s a real concession, and he built his distinction around it. Tobacco, he said, “feels a lot more like a traditional misrepresentation claim”. Here, he said, “Respondent has attempted to back up one step to the misrepresentation”, and “the injury is not suffered by the Colorado consumer in the traditional sense.” Justice Kagan wasn’t done: “But this is the same kind of lawsuit against the same kind of actors for the same kind of harm.” Asked whether his real point was that the claim is about air and water, Shanmugam said, “That is basically what we’re saying”, and then gave the sentence a Minnesota defendant would lean on hardest:

And our core submission for this Court is that whatever state law label you attach to the claims – and, again, I would direct you to the paragraphs that talk about misrepresentation. The gravamen of the claim here is that some marginal increase in greenhouse-gas emissions attributable to my clients’ conduct caused the harm.

Justice Kavanaugh offered a different answer to the tobacco question: “I thought the answer was that this Court has consistently said that air and water pollution are different in our federal enclaves.”

On Boulder’s side, Justice Sotomayor asked Russell a string of yes-or-no questions, starting with “The Clean Air Act does not regulate marketing or advertising of fuel, correct?” Russell: “Correct.” Russell’s best line for the deception theory came when the Chief Justice asked, “isn’t your suit an attempt to evade those decisions?” His answer:

Under our deception theory, they can continue to produce as much fossil fuels as they like and contribute to as much air pollution and greenhouse-gas emissions as the market will bear when consumers are properly informed about the consequences of that decision.

Justice Kagan then put the problem the other way around: “The entire, you know, causal chain of the suit is, by virtue of what the defendants have done, the products they’ve made, the way they’ve marketed those products, they have caused emissions to increase.” Russell’s reply: “The EPA doesn’t have authority for regulating the – the ideal amount of deception in the marketing of fossil fuels.”

Russell conceded something too, and it’s the most important concession in the transcript for anyone who brings an emissions-damages case. Justice Kavanaugh asked, “Do you agree that under Ouellette, you could not proceed under Colorado law?” Russell said “Yes”, after first telling the Court that his case isn’t on all fours with Ouellette, “and we don’t think it is”.

The government drew its own line, and a Minnesotan should read it twice. Harris said ordinary tort suits are fine when they target conduct aimed at the forum state: “if you bring your cars in my state, if you bring your opioids in my state, you’re liable for conduct within my state.” Colorado’s mistake, in her telling, was regulating the companies’ conduct everywhere. Minnesota’s advertising statute, by its own words, reaches advertising placed before the public “in this state”. That’s my reading of how the two fit. The government didn’t say it.

Can the Court even hear this case?

That’s the second question, and it could end the case without a word on the merits.

The statute that lets the Supreme Court review state courts, 28 U.S.C. § 1257(a), reaches “Final judgments or decrees rendered by the highest court of a State in which a decision could be had”. Boulder’s case hasn’t been tried. The Colorado Supreme Court took it up before trial, through its original-proceeding rule, and when it was done it said “we discharge the order to show cause and remand this case to the district court”.

Justice Thomas started the morning asking Shanmugam to “explain why we have jurisdiction”. His answer was that a prior case, Atlantic Richfield, “is directly on point” because the Colorado proceeding was self-contained. Justice Sotomayor asked, “How do we know, since the court below didn’t tell us, that this was an original writ or just an interlocutory appeal?” Justice Jackson said the morning’s discussion made her think “this is sort of premature from the standpoint of this Court exercising its jurisdiction.” Russell framed it as “this interlocutory appeal” that the oil companies hadn’t shown the Court could hear.

In plain words, the Court has two ways to leave the Colorado ruling untouched. It can decide it lacks jurisdiction and dismiss. Or the eight justices can split four to four. A tie affirms. The Court explained what that means in 1972, quoting an 1869 decision: “The judgment of the court below, therefore, stands in full force.” And an affirmance by an equally divided Court isn’t “entitled to precedential weight.” Neil v. Biggers, 409 U.S. 188, 192 (1972). Either way, the case goes back to Boulder for trial and nobody in Minnesota learns anything.

Minnesota already had this fight

The oil companies have tried the federal-law argument against Minnesota twice already. They lost both times.

They tried federal court before anything else. The Eighth Circuit said no on March 23, 2023, and its description of the case is the one Minnesota’s lawyers will quote for years: “the activity causing injury in this case is not the mere production of fossil fuels . . . but rather the alleged ‘misinformation campaign’ carried out via false advertising and misrepresentations in Minnesota.” The Supreme Court denied review on January 8, 2024. Justice Kavanaugh would have granted it. (Removal fights have their own Supreme Court history; I wrote about the Enbridge removal-deadline decision in April.)

Judge Stras agreed that, as the law stands, the case doesn’t belong in federal court. He wrote separately to explain why he thinks it should. His first two sentences: “Artful pleading comes in many forms. This is one of them.” And: “The complaint itself all but dares the companies to raise a federal-preemption defense.”

They raised it. In Ramsey County the companies argued that “[t]he structure of the Constitution requires alleged harms caused by interstate and international emissions to be addressed under federal law, including federal common law.” You heard that argument again from Shanmugam on October 5. Judge Aligada rejected it. His main ground was displacement: Congress had replaced the old federal common law of interstate pollution with the Clean Air Act, and “[b]ecause the federal common law was displaced, and no other provision of the Constitution applies”, the companies’ Constitution argument failed. The deception line was his backup there. Even if that federal common law still existed, he wrote, it wouldn’t reach claims that “do not aim to restrain pollution or regulate emissions.” On the Clean Air Act argument, the deception line was the main event. He’d framed the case at the outset (“As the State argues, all of its claims allege deception or failure to warn”), and he held that “all claims arise from Defendants’ alleged failure to warn and deceptive marketing conduct, not emissions-producing activities regulated by the CAA.” He rejected a foreign-affairs argument too.

That preemption ruling wasn’t part of the appeal that followed. The Court of Appeals took up personal jurisdiction and anti-SLAPP instead, and affirmed on January 26, 2026, in a nonprecedential opinion by Judge Larkin. API and ExxonMobil consented to Minnesota jurisdiction by registering to do business here. A registering foreign corporation must state “that it irrevocably consents to the service of process upon it”, Minn. Stat. § 303.06, subd. 1(4), and under Minnesota Supreme Court precedent that consent reaches personal jurisdiction. (For the more common route into a Minnesota court, see our piece on the long-arm statute.) And the old anti-SLAPP statutes didn’t apply because “the state’s lawsuit seeks equitable remedies and not ‘damages’ as that term is used in caselaw.” (More on Minnesota’s anti-SLAPP history here.) On April 15, 2026, the Minnesota Supreme Court denied review. The case is back in Ramsey County.

Now, what a ruling does and does NOT mean for Minnesota

I’m not going to guess how this comes out. Here’s how each result would travel north, so you can read the opinion when it lands.

A dismissal or a tie. Nothing changes. Minnesota’s case keeps moving.

A narrow win for the oil companies — say, that Ouellette and the Clean Air Act bar a damages suit under the law of the state where the injury landed. That’s the case Boulder brought, and Russell conceded the Ouellette point if his case were on all fours with it. Minnesota will argue that a suit asking for restitution, penalties, and a corrective ad campaign over what was said “in this state” isn’t that case. Ramsey County has already agreed once.

A broad win built on Shanmugam’s “whatever state law label you attach” line. That one goes straight at Minnesota. If the gravamen of any climate case is emissions no matter what it’s called, then “deception” is just a label, and I’d expect the companies back in front of Judge Aligada soon after the opinion comes down. And Minnesota will have to deal with an inconvenient fact. Its own complaint, as Judge Stras quoted it, accuses the companies of “caus[ing] a substantial portion of global atmospheric greenhouse-gas concentrations”. It also pleads failure to warn, which is a tort. Justice Kagan’s “same kind of harm” question is the one Minnesota will have to answer.

How federal preemption actually works when a state claim collides with a federal scheme is its own subject. I walked through it in the Monsanto Roundup decision, where the Court found the line and a state failure-to-warn claim landed on the wrong side of it.

The Supreme Court is deciding a case about weather. Minnesota brought a case about words. The next opinion will tell us whether the Court thinks there’s a difference.

Madgett Law, LLC represents Minnesotans in consumer-protection litigation, including deceptive-trade-practices and false-advertising claims, and in the threshold fights over removal, preemption, and personal jurisdiction that decide where a state-law claim gets heard and whether it survives. If a federal-preemption or jurisdiction defense has been raised against your claim, send us a message or call 612-470-6529.

Sources: Transcript of Oral Argument, Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, No. 25-170 (U.S. Oct. 5, 2026), at 4 (first argument of the Term), 6 (Justice Thomas on jurisdiction; Atlantic Richfield “directly on point”), 24 (Justice Sotomayor, original writ or interlocutory appeal), 29–32 (Justice Kagan and Mr. Shanmugam on tobacco, opioids, misrepresentation, and “gravamen”), 36 (Justice Kavanaugh, “air and water pollution are different”), 52 (Justice Jackson, “premature”), 62–63 (Ms. Harris, “cars” and “opioids”), 86 (Mr. Russell, “interlocutory appeal”; deception claims), 92 (Justice Sotomayor, marketing and advertising), 97 (the Chief Justice, “evade”; Mr. Russell, “deception theory”), 101–102 (Justice Kavanaugh and Mr. Russell on Ouellette), 113 (Justice Kagan, “causal chain”; Mr. Russell, “ideal amount of deception”), supremecourt.gov. Supreme Court docket No. 25-170 (petition granted Feb. 23, 2026, with added jurisdiction question; Clerk’s letter Sept. 28, 2026, Justice Alito not participating; argued Oct. 5, 2026) and the Court’s question-presented page for No. 25-170. Supreme Court docket No. 23-168, American Petroleum Institute v. Minnesota (petition denied Jan. 8, 2024; Justice Kavanaugh would grant; Kannon K. Shanmugam counsel of record for petitioners). County Commissioners of Boulder County v. Suncor Energy USA, Inc., 2025 CO 21, ¶¶ 1–2, 7, 10 (Colo. May 12, 2025) (claims, trespass theory, damages, holding and remand; Samour, J., joined by Boatright, J., dissenting), and Order re Defendants’ Motions to Dismiss, Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 2018CV30349 (Colo. Dist. Ct. Boulder Cnty. June 21, 2024), at 50a (action commenced April 2018) and 133a–136a (Colorado Consumer Protection Act claim dismissed without prejudice), both reproduced in the Petition Appendix, No. 25-170. 28 U.S.C. § 1257(a), Cornell Legal Information Institute. Neil v. Biggers, 409 U.S. 188, 192 (1972) (equally divided affirmance), Caselaw Access Project. Minnesota v. American Petroleum Institute, No. 21-1752 (8th Cir. Mar. 23, 2023), slip op. at 10–11 (“misinformation campaign”); id. at 18, 21–22 (Stras, J., concurring), Eighth Circuit opinion archive. Order and Memorandum, State v. American Petroleum Institute, No. 62-CV-20-3837 (Minn. Dist. Ct. Ramsey Cnty. Feb. 14, 2025), Order ¶¶ 1–4 and Mem. at 1 (filing date), 4–5 (five counts), 21 (“all of its claims allege deception or failure to warn”), 24 (defendants’ “structure of the Constitution” argument rejected), 26 (Clean Air Act argument rejected), 63 (Consumer Fraud Act count dismissed). State v. American Petroleum Institute, Nos. A25-0407, A25-0408, A25-0410 (Minn. App. Jan. 26, 2026) (nonprecedential), slip op. at 2–3 (claims and rulings below), 5–6 (consent jurisdiction under the Minnesota Foreign Corporation Act), 23–24 (relief sought; “does not ask for monetary legal damages”; equitable remedies), 25 (anti-SLAPP statutes inapplicable), Minnesota State Law Library archive. Order, State v. American Petroleum Institute, Nos. A25-0407, A25-0408, A25-0410 (Minn. Apr. 15, 2026) (further review denied). Minn. Stat. § 325F.69, subd. 1; § 325F.67; § 303.06, subd. 1(4) — Minnesota Office of the Revisor of Statutes.

This article is general legal information about Minnesota and federal law, not legal advice, and reading it does not create an attorney–client relationship. It describes pending cases involving other parties; nothing here predicts how the Supreme Court or any other court will rule, and no outcome is promised or implied.