As Suncor Advances, Justice Alito Recuses

A week from now, the Supreme Court will begin its new term with oral arguments in Suncor Energy v. Boulder County. The dispute asks whether federal law or the Constitution preempts state-law damages claims tied to climate change, and it is widely regarded as the most consequential case on the Court’s October docket, with the potential to rank among the most influential cases of the entire OT 2026 term.

This morning the Court delivered disappointing news to the Suncor petitioners: Justice Alito will not participate. A Clerk of Court’s letter states, “Justice Alito has determined that he will not continue to participate in this case.”

Justice Alito’s withdrawal is likely troubling for the petitioners, as he is among the more preemption-friendly members of the Court, having dissented in both Virginia Uranium v. Warren and Hencely v. Fluor — decisions that were recently decided 6-3 against preemption. Like many observers, I have assumed that Justice Alito would be among the most probable supporters of the petitioners’ claims, alongside the Chief and Justice Kavanaugh.

The recusal seems plausibly connected to his ownership of individual energy-sector stocks. While he does not own shares in any of the companies involved in Suncor, he does hold stakes in firms that have faced similar suits and has recused in other cases on that basis. If that is what triggered the recusal here, it serves as a reminder that judges should favor mutual funds over holding individual stocks.

Before the news of Justice Alito’s recusal broke, I participated in a Federalist Society “Seat at the Sitting” webinar in which Suncor was a central topic. For those who are interested, here is the video:

And for those who want to explore my earlier writings on this topic, here are some prior posts:

• Why State Common Law Nuisance Claims Against Fossil-Fuel Firms Are Not Preempted, Oct. 27, 2021;
• Third Circuit Rejects Oil Companies’ Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
• Oil Companies Fail to Persuade the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
• Is Climate Change Returning to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
• D.C. Circuit Rejects Oil Company Attempt to Remove District’s Climate Suit to Federal Court, Dec. 19, 2023;
• William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
• Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;
• Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;
• Supreme Court Denies Certiorari in Climate Tort Suits, Jan. 13, 2025;
• Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits, Mar. 10, 2025;
• William Barr Discovers the Economics of Tort Law (and Misrepresents the Law Governing Interstate Pollution), Nov. 3, 2025;
• Placing Climate Tort Litigation in Context (Updated), Nov. 7, 2025;
• A Second Round with William Barr on Litigation Over Interstate Pollution, Dec. 2, 2025;
• Court Dismisses Trump Administration Effort to Block Michigan Climate Lawsuit, Feb. 4, 2026
• Climate Change Goes Back to the Supreme Court — Colorado Edition, Feb. 23, 2026.
• Previewing Suncor Energy v. Boulder County, Mar. 6, 2026.
• Amicus Brief in Suncor Energy v. County Commissioners of Boulder County, Aug. 3, 2026.
• Supreme Court Term to Start Hot, Aug. 6, 2026.