Preemption, the Free Parking Doctrine, and Patent Law
Suncor Energy v. Boulder County involves a state tort suit that broadly alleges that certain companies contribute to climate change by encouraging the use of fossil fuels. The Supreme Court heard oral arguments on that case at the beginning of the 2026 term. Whether such a suit is wise is not really the issue; nor is really about whether the defendant corporations cause climate change. What the case is about is whether the Clean Air Act, enacted by Congress in the 1970s, preempts the use of state tort claims. If preemption applies, the state case ends and the fossil fuel companies “win.” If it doesn’t apply, Boulder County “wins,” and the case will continue in Colorado state court in Boulder County under Colorado state tort law theories of liability.
The rule of preemption is seemingly straightforward: Congress can expressly say that it is preempting all state law claims (not the case here), it can make it such that a regulated entity has an impossible choice to follow state law or follow federal law, or Congress can enact a federal law that provides a scheme of federal regulation “so pervasive that it leaves no room for a state to supplement.” See English v. General Elec. Co., 496 U.S. 72, 78-82 (1990).
The legal question thus becomes whether Colorado is correct in allowing a state tort claim to go forward despite the presence of federal law. And, as we will see later, preemption also rears its head in other areas of law, including patent law.
The Free Parking Doctrine
A popular house rule when playing the Monopoly® game is to put all tax collections and penalties at the center of the board and award that cash to a person who lands on the “Free Parking” space. It is a house rule because the official Monopoly® rules specify that nothing happens when a player lands on “Free Parking.” Indeed, a consequence of adopting the “Free Parking” house rule is that a player that might otherwise exit the game suddenly becomes flush with cash. Thus, adopting the “Free Parking” house rule might lead to the unintended consequence of making an already long game last even longer.
Legal reasoning generally tries to avoid consequential thinking where it can because the rules of the game should not (in an ideal world) reflect the consequence of who “wins” or “loses” the game. But sometimes it’s hard to avoid such thinking because trying to avoid certain downside consequences inform how to adopt and/or interpret rules.
Consider how this “Free Parking” house rule is relevant and timely in light of the Supreme Court oral arguments in Suncor Energy. The precise question before the Court is “[w]hether 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,” (Question Presented at www.supremecourt.gov.), i.e., preemption.
The briefing in Suncor Energy tries to reason why or why not the rules for or against preemption apply to this case. Much of the briefing is dedicated to the consequences of having individual states hold multi-national companies liable for contributing to climate change. Set aside whether that allegation has merit; the defendants want to cut this suit off at the knees so they do not face similar suits in different localities. As the briefing put it, “if claims such as Boulder’s are allowed to proceed, every political jurisdiction in the Nation could bring a similar suit against any subset of the world’s fossil-fuel producers (with the defendants carefully selected, as here, to keep the suit in state court).” Per the Petitioners, that’s no way to set national policy concerning climate change.
Indeed, the fossil fuel companies’ lawyer led with that point: “If Boulder’s claims are allowed to go forward, some 90,000 municipalities across the country will have the ability to make national and international energy policy by asking juries to impose catastrophic damages on selected fossil-fuel producers.” (Oral Arg. Tr. 6:1-6). The lawyer then ended with a charge that “this case and others like it reflect an all-too-regrettable trend of trying to resolve major political issues in court rather than leaving them to the political branches where they belong.” (Oral Arg. Tr. p. 119:12-19)
Consequentialism was not limited to the fuel companies’ counsel. When questioning the attorney representing Boulder, Justice Kavanaugh identified the EPA as “an expert agency” that is “best suited to serve as primary regulator of greenhouse-gas emissions. (Oral Arg. Tr. p. 117:9-23). And when questioning the attorney representing Boulder, Chief Justice Roberts likewise made the point that Boulder County would not be the only municipality to try to bring actions against fossil fuel companies. (Oral Arg. Tr. 94:6-16)
Indeed, those arguments and questions did not rely on some legal principle; rather, the passages above illuminate the likely effect of deciding that the Clean Air Act did not displace all state tort laws relating to air pollution. That’s a forward-looking policy argument — the “Free Parking” doctrine, not necessarily something that is derived from existing legal principles.
The impact on patent law
Of course, Congress sometimes does create a scheme of laws and regulations that do create a broad field of preemption. For example, in patent cases, preemption arises during a litigation where a party raises a state tort claim that rises and falls with a patent issue. In those cases, the cases go to a federal court. In a 1999 case, also coincidentally originating in Colorado, the Court of Appeals for the Federal Circuit ultimately determined that state law tort claims cannot supplant the patent system, specifically how the patent system identifies inventors of U.S. Patents. Moreover, if preemption did not apply, that “might frustrate the dual federal objectives of rewarding inventors and supplying uniform national patent law standards.” Univ. of Colo. Found., Inc. v. Am. Cyanamid Co., 196 F.3d 1366, 1372 (Fed. Cir. 1999)
Patent law lends itself to preemption arguments because, among other things, the U.S. Constitution charged Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (U.S. Const. Art. I, Sect. 8, cl. 8). And Congress implemented that directive by creating the U.S. Patent Office and then enacting a series of laws and regulations that established how the federal government was to issue patents. See U.S.C. tit. 35 et seq. So while it is foreseeable that broad preemption might attach to any state torts that touch on U.S. patents, that broad preemption does not necessarily apply to other areas of the law.
Final thoughts
In Suncor Energy we see the “Free Parking” doctrine in action: if we were to adopt “Rule X,” then “parade of horribles Y” would occur. A litigant can tell a story as to why Rule X is justified by first principles, but “Y” is likely going to dictate this decision. Do we desire a uniform rule set by the federal government (as in patent law), or do we want to allow each State to independently determine whether its police powers are broad enough to regulate any behavior of a corporation? Change the municipality, the subject matter, and the political party in control of the executive branch in four years and then ask whether the legal rule on preemption created in the wake of Suncor Energy was wise.
