One week from today, the Supreme Court will open its term with oral argument in Suncor Energy v. Boulder County. This case, concerning whether federal law or the constitution preempts state-law claims for damages allegedly caused by climate change, is almost certainly the most significant case of the Supreme Court's October sitting, and may be among the most consequential of the entire OT 2026 term.
This morning, the Court delivered unwelcome news to the Suncor petitioners: Justice Alito is out. According to a letter to counsel from the Clerk of Court, "Justice Alito has determined that he will not continue to participate in this case."
Justice Alito's recusal is likely bad news to the petitioners as he is among the more preemption-friendly justices on the Court, having dissented in both Virginia Uranium v. Warren and Hencely v. Fluor (both of which were recent 6-3 decisions rejecting preemption). Like most observers, I have assumed that Justice Alito was among the most likely to side with the petitioners claims (along with the Chief and Justice Kavanaugh).
