The Colorado Supreme Court is poised to issue a ruling that could put Colorado at the epicenter of national climate litigation. The lawsuit, brought by the City and County of Boulder, is one of three dozen lawsuits nationally where governments are suing energy companies for local climate adaptation costs — costs that will ultimately be borne by workers, families and businesses.

When the state Supreme Court heard arguments in February, the justices indicated that they appreciated that this case is not about whether climate change is real — it is — or whether this litigation can do anything to solve climate change — it cannot. Boulder and the defendants both acknowledge these truths.

Rather, the question for the Court is whether Boulder can use Colorado law to impose liability on the production, promotion, sale, and use of oil, gas and other energy sources around the world to pay for its adaptation needs — even though nearly all of this activity took place outside Colorado.

Legally, the answer should be a hard “no.” The U.S. Court of Appeals for the Second Circuit and courts in New York, New Jersey, Delaware and Maryland have already said so in response to similar lawsuits under other states’ laws. The state must have a connection to any activity it seeks to regulate or impose liability.

In ruling to dismiss the other cases, the courts explained that climate change is not a local issue where state courts can assess blame on a company or group of companies. It is a byproduct of modern life caused by innumerable activities and emissions all over the world for hundreds of years. Therefore, deciding how to pay for climate adaptation is a policy, not a liability, issue.

Boulder counters that it just needs money to pay for climate adaptation, so why not get it from “big” companies? During arguments in February, one of the justices expressed a similar sentiment, saying that dismissing this lawsuit might leave Boulder “without any recourse.” However, this litigation is neither a legal nor a practical way for Boulder to fund its climate needs.

First, lawsuits are about determining legal rights and wrongs, not debating whether and how to fund government projects. Addressing climate change requires balancing a multitude of policy factors, including competing interests. For example, Boulder’s lawyers told KOTO that a goal of this lawsuit is to use liability to impose a carbon penalty by forcing energy companies to “raise” the price of oil and gas outside the checks and balances of Congress and state legislatures.

By doing this in the courts, they are trying to make this penalty retroactive and avoid questions over how much the penalty should be, who should pay it and where it should be spent. Courts do not have the tools to weigh these issues or prioritize maintaining affordable energy prices.

Second, the companies Boulder sued do not owe them this recourse. Here, Boulder named only two companies it wants to subject to liability for its climate needs. In the other suits, governments have named anywhere from one to dozens of companies. This ever-changing list of defendants underscores the politics behind this litigation. As an orchestrator of these lawsuits explained, “It’s no secret that we go around” and “look at the politics” in building these cases.

The Obama administration identified this problem more than a decade ago when it opposed an earlier form of this litigation. It said there is no principled legal basis for selecting “a handful of defendants from among an almost limitless array of entities that emit greenhouse gases.”

Third, there are much more effective and efficient ways to provide governments with climate recourse than this litigation. Congress and state legislatures can provide funding for this purpose, as was done during the Biden administration. Also, unlike litigation, these funding options do not require paying a 20% to 25% vig to contingency fee lawyers.

Finally, if companies doing business in the United States have to pay these costs — not just to Boulder, but governments around the country — it will add significant economic pressure on all Americans. It will be much more expensive to heat homes, fuel cars and power vital services, such as in hospitals, manufacturing plants and other workplaces. That is the last thing people can afford right now.

The good news is that manufacturers in Colorado and across the country are investing in cleaner, more efficient operations and cutting emissions while keeping energy reliable and affordable. Instead of endorsing political lawsuits that drive up costs and threaten jobs, Colorado courts should apply the law so that governments can focus on real solutions.

Phil Goldberg, of Maryland, is special counsel to the Manufacturers’ Accountability Project, a project of the National Association of Manufacturers Legal Center. NAM is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states.