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EPA Issues “Compliance First” Memorandum, Shifting Enforcement Approach

2 minute read

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On December 5, 2025, the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) issued a memorandum that directs all EPA staff responsible for civil judicial and administrative enforcement activities to prioritize a “compliance first” approach to enforcement. 

The memorandum criticizes previous enforcement approaches which pursued findings of violation or orders that prolonged negotiations and delayed actual compliance. Going forward, however, the EPA’s primary focus in all inspection, investigation, and enforcement activities is “achieving and ensuring timely compliance.” The memorandum outlines six key factors that will guide EPA staff in their compliance-first operating framework:

  1. Compliance Assistance Toolkit. EPA will prioritize deployment of its “compliance assistance tools,” including proactive outreach, technical assistance, and training. EPA will also promote voluntary audits to encourage regulated entities to proactively identify and correct compliance issues. 

  2. State Partner Coordination. EPA will demonstrate “proper deference and support” to state and local leads who have primary jurisdiction over environmental programs, ensuring consistency in compliance determinations and in enforcement of federal environmental law.

  3. Open Communication. EPA will maintain transparent communication with states, tribes, and regulated entities in order to avoid duplicative enforcement activities and unnecessary contradictions. EPA will also operate a “no surprises” framework by maintaining open communication with regulated entities throughout the inspection and enforcement process.

  4. Finding of Violation. Findings of violation must be “clear and unambiguous, well-tailored, and based on the ‘best reading’ of the relevant statute and regulation,” which will expedite compliance and reduce time and expense in litigating interpretations that seek to broaden statutory or regulatory interpretations beyond plain meaning. If a regulated entity raises concerns regarding EPA’s application of a statute or regulation to its specific case, “such questions must be elevated immediately for further analysis.”

  5. Compliance Requirements and Injunctive Relief. When formal enforcement is necessary, the primary focus of the strategic negotiations and litigation must be achieving timely compliance in the most efficient and economic means possible. In particular, the memorandum notes that injunctive relief provisions “shall be based on the best, most defensible interpretation of the law,” and rescinds previous guidance on expansive injunctive relief remedies. The memorandum also mandates a pause on the use of Supplemental Environmental Projects (SEPs) in settlements.

  6. Reasoned Decision Making. When making decisions on noncompliance determinations and the appropriate means for achieving compliance, EPA must apply the “LEAPS” factors, using Law, Evidence, Analysis, Programmatic Impacts, and Stakeholder Impacts to “ensure sound and responsive decisions.” 

The memorandum is effective immediately and applies to all ongoing and future civil and administrative enforcement matters. Notably, the memorandum states that it is not legally binding but is rather “intended to improve the internal management of EPA.”

For more information, please contact Liskow attorneys Greg Johnson, Clare Bienvenu, Emily von Qualen, and Colin North, and visit Liskow’s The Louisiana Industrial Insights Hub. 

 

"This policy reinforces prioritizing environmental compliance across all OECA civil judicial and administrative enforcement activities in the most efficient, most economical, and swiftest means possible, while ensuring that our actions align with the clearest, most defensible interpretations of our
statutory and regulatory mandates."

files.passle.net/…

LDR Clarifies Pass-Through Treatment for S Corporations Under Act 382

3 minute read

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The Louisiana Department of Revenue (“LDR”) has issued Revenue Information Bulletin 25-032 to provide guidance on changes to the state’s taxation of S corporations enacted by Act 382 of the 2025 Regular Legislative Session. Effective for income tax periods beginning on or after January 1, 2026, Act 382 amends La. R.S. 47:287.732 to align Louisiana’s treatment of S corporations with federal law by recognizing them as pass-through entities for Louisiana income tax purposes.

Prior to Act 382, Louisiana did not automatically follow federal flow-through treatment for S corporations. Instead, S corporations were generally taxed as C corporations unless they affirmatively elected an S corporation exclusion under prior law. Income excluded under that election was taxed at the shareholder level, while any remaining income was subject to Louisiana corporation income tax. Act 382 eliminates this dual system. Beginning in 2026, all income, losses, deductions, and credits of an S corporation automatically pass through to shareholders, and no special election is required to achieve pass-through treatment (unless a pass-thru entity election is filed).

The bulletin distinguishes filing requirements based on the applicable taxable period. For taxable periods beginning in 2025 and earlier, S corporations remain subject to the pre-Act 382 rules and must file LDR Form CIT-620, Louisiana Corporation Income Tax Return, reporting corporate-level tax unless the S corporation exclusion election is made. For taxable periods beginning on or after January 1, 2026, S corporations are no longer subject to Louisiana corporation income tax. Instead, they must file an informational return. Although Form CIT-620 is still required to compute allocation and apportionment, it is informational only, and the shareholders, rather than the corporation, are responsible for reporting and paying Louisiana tax on their distributive shares on their individual or fiduciary returns. Both the informational return and any composite return must be filed electronically.

Act 382 also changes Louisiana’s treatment of Qualified Subchapter S Subsidiaries (“QSubs”). For taxable periods beginning on or after January 1, 2026, Louisiana follows the federal approach and treats QSubs as disregarded entities automatically. As a result, all income, losses, deductions, and credits of a QSub are reported on the parent S corporation’s return, without the need for a separate election.

Although S corporations are now treated as flow-through entities, Louisiana law continues to permit the filing of composite returns on behalf of nonresident shareholders. Beginning in 2026, an S corporation may file a composite return by indicating “S corporation composite filing” on the face of Form CIT-620 and completing the required schedules. When a composite return is filed and tax is paid on behalf of nonresident shareholders whose only Louisiana income is from the S corporation, those shareholders are not required to file separate Louisiana income tax returns. However, if the S corporation has a net loss, a composite return is not permitted, and each shareholder must report their share of the loss on an individual Louisiana return.

The bulletin also addresses the interaction between composite filings and Louisiana’s pass-through entity tax election. An S corporation may still elect to be taxed as a C corporation under La. R.S. 47:287.732.2, but it may not combine that election with a composite return for the same taxable period. Similarly, an S corporation that files a composite return and makes composite payments for nonresident shareholders may not also make the pass-through entity tax election for that period.

Finally, Revenue Information Bulletin 25-032 clarifies estimated tax obligations. Because S corporations are no longer subject to Louisiana corporation income tax, they are not required to make estimated payments. However, an S corporation expecting to file a composite return may voluntarily make estimated payments following the procedures applicable to C corporations. If no composite payments are made, each nonresident shareholder remains responsible for making estimated Louisiana income tax payments on their share of S corporation income.

RIB 25-032 provides important practical guidance on compliance with Act 382. S corporations and their shareholders should review these changes carefully to ensure proper reporting, payment planning, and coordination with composite and pass-through entity elections beginning in the 2026 tax year. If you have any questions about this update or any of the other recent Louisiana tax changes, please contact Liskow attorneys Bob Angelico, Leon Rittenberg III, Caroline Lafourcade, and Kevin Naccari, and visit the firm’s Tax Practice page.  

EPA Guidance Reinforces That PFAS Should Be Considered in Phase I Environmental Assessments

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In December 2025, the U.S. Environmental Protection Agency (“EPA”) clarified that recipients of pending Brownfield grants must demonstrate that they are not liable for PFAS contamination under CERCLA. In 2024, EPA designated perfluorooctanoic acid (PFOA) or perfluorooctane sulfonic acid (PFOS), as well as their salts and structural isomers, as CERCLA hazardous substances under CERCLA. In September 2025, EPA announced that it would retain this designation and that it would defend its designation in the pending litigation challenge. 

To demonstrate that they are not liable under CERCLA for PFAS contamination, grant recipients will need to establish that liability protections, such as the bona fide prospective purchaser defense, are in place where PFOA or PFOS could be present. This requires conducting All Appropriate Inquiries that meet the current ASTM standards. Under the current standards for Phase I Environmental Site Assessments, purchasers must consider “conditions indicative of releases or threatened releases” of hazardous substances. This guidance now clarifies that this includes considering the potential presence of PFOA or PFOS, which could be indicated, for example, by a history of biosolids application or flammable liquid fires.

EPA’s guidance reinforces the need for potential site owners and developers seeking bona fide prospective purchaser status, as well as environmental professionals conducting Phase I assessments, to ensure PFAS contamination is considered as part of the Environmental Site Assessment, to ensure that the All Appropriate Inquiries standard is met.

For more information, contact Liskow attorneys Emily von Qualen and Clare Bienvenu, and visit Liskow’s Industrial Insights Hub. 

Suncor Is Justices’ Chance To Rule On Climate Nuisance Suits

4 minute read

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The U.S. Supreme Court is currently presented with what many believe is its best opportunity to provide sorely needed guidance in the growing climate change docket — where energy companies are facing liability for injuries allegedly sustained due to greenhouse gas emissions.

The last time the court considered an issue related to the merits of climate change litigation was in 2011, in American Electric Power v. Connecticut.

In a 7-0 decision written by former Justice Ruth Bader Ginsburg, the court held that federal law — namely, the Clean Air Act — displaced federal common-law nuisance claims brought against electric power companies identified as being among the largest sources of greenhouse gases and carbon dioxide emissions.

Following American Electric Power, plaintiffs pursuing climate change cases shifted away from asserting claims based on federal common law, focusing instead on state law nuisance actions.

The Supreme Court has yet to decide whether the conclusion reached in American Electric Power — that federal law displaces federal common-law nuisance claims complaining about greenhouse gas emissions — applies equally to state law nuisance claims.

The court has the opportunity to answer that question in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, Colorado, where energy companies are asking the high court to decide whether federal law precludes state law nuisance claims targeting interstate and global emissions.

In Suncor, the Boulder County District Court denied the defendants’ motion to dismiss the suit brought by the city and county of Boulder, finding that federal law did not preempt the state law claims. The Colorado Supreme Court granted the energy companies’ request to review the decision and affirmed, with two justices dissenting.

In urging the U.S. Supreme Court to take the case, the energy companies note that the Colorado Supreme Court’s decision, which paves the way for Boulder to proceed to trial on claims attacking global emissions, conflicts with a 2021 decision from the U.S. Court of Appeals for the Second Circuit in City of New York v. Chevron Corp.

In City of New York, the Second Circuit held that federal law preempts state law claims when those claims reach beyond the state’s borders and attempt to target the defendants’ nationwide and global operations. Notably, the U.S. filed an amicus brief in support of the energy companies in Suncor, asking the Supreme Court to take up the case, which it says presents “a frequently occurring issue of exceptional importance.”[1]

For its part, Boulder argues, among other things, that this is not the right case or the right time for the Supreme Court to tackle thorny climate change litigation.[2]

According to Boulder, the Colorado Supreme Court’s decision is only interlocutory, and thus, if the U.S. Supreme Court prematurely takes up the case at this time, it would be wading “into a thicket of preliminary questions that promise nothing but rabbit holes and dead ends.”[3]

The energy companies countered, asking, “If not now, when?” They asserted that “[w]hile the defendants in these cases will theoretically be able to seek review after liability is imposed, that is cold comfort given the growing number of cases and the sheer magnitude of the potential liability.”

To emphasize this point, the energy companies pointed to a statement describing the nationwide climate change litigation as a “carbon tax” aimed at crippling the entire industry.[4] Ultimately, the companies contend that the issue presented is paramount in our constitutional system: Can state law tort suits effectively regulate interstate, and international, energy policies?

Climate change litigation has proliferated in the last decade. Many of the most high-profile cases involve claims, like those against Suncor, brought by cities, municipalities and local governments.

But the expanse of climate change litigation also includes cases involving a plethora of claims brought by individuals asserting a vast array of damages, such as injuries related to heat strokes allegedly caused by the rise in global temperatures and injuries sustained by rising homeowners insurance premiums as a result of weather-related damage attributed to climate change.

The majority of these claims complain about companies’ interstate and global emissions, not just the emissions within the forum state of the plaintiffs. These state law claims thus seek to regulate conduct outside the state’s borders.

Several states have tried to push back against the rise of state tort litigation to regulate conduct outside the state’s borders.

Last year, 18 states petitioned the U.S. Supreme Court for leave to file a lawsuit against California, Connecticut, Minnesota, New Jersey and Rhode Island on the basis that the defendant states were abusing state tort lawsuits involving climate change to target and punish energy companies’ out-of-state operations.

According to the 18 plaintiff states, use of state tort lawsuits to address climate change violates the horizontal separation of powers and the power of the federal government to regulate interstate commerce under the commerce clause.

By a 5-2 vote, the court denied the plaintiff states’ request for leave to file the petition. Justices Clarence Thomas and Samuel Alito dissented, stating that “[t]he Court’s reluctance to accept jurisdiction in cases between the States is also troubling because this Court is the only court that can hear such cases. … Accordingly, the Court today leaves the 19 plaintiff States without any legal means of vindicating their claims against the 5 defendant States.”

If the Supreme Court decides to take up the cert petition in Suncor, its decision could have wide-ranging implications for many cases based on allegations of activities causing climate change. Specifically, if the court holds that federal law displaces state law nuisance claims attacking interstate or global emissions, many of the current legal theories in cases involving climate change would likely fail.

Several amicus briefs have been filed in Suncor, advocating for the Supreme Court to weigh in on this important issue. One of the amicus briefs was filed by 103 members of Congress “to defend their role in setting energy policy for the United States — including regulation of interstate and international emissions — and to prevent state and local governments from undermining the comprehensive statutory schemes that Congress enacted.”[5]

This closely watched case is now poised for the Supreme Court to decide whether it will grant the cert petition. Stay tuned.

[1] U.S. Amicus at 3.

[2] Boulder Response at 17.

[3] Boulder Opposition at 1.

[4] Suncor Reply at 2.

[5] Amicus of Steve Scalise and 102 Other Members of Congress at 1.

This article was originally published by Law360. Read the original article here.

IRS Issues Revenue Procedure 2026-6 Establishing Advance Election Process for New Education Tax Credit

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The Internal Revenue Service recently issued Revenue Procedure 2026-6, which provides procedural guidance allowing States to make an Advance Election to participate in a new federal tax credit program created under the “One, Big, Beautiful Bill Act” (Public Law 119-21) for calendar year 2027. This guidance is the first step in administering the new nonrefundable federal income tax credit for individual contributions to Scholarship Granting Organizations (SGOs) that support elementary and secondary education expenses.

Under § 25F of the Internal Revenue Code, individuals may claim a federal tax credit of up to $1,700 for cash contributions to SGOs that provide scholarships for qualified educational expenses. Eligibility for the credit depends not only on the taxpayer’s contribution but also on whether the organization receiving the contribution is included on an IRS-recognized list of SGOs submitted by a participating State. To qualify, a State must voluntarily elect to participate and must identify its qualifying SGOs to the IRS.

Revenue Procedure 2026-6 establishes a formal Advance Election process that permits a State to signal its intent to participate in the credit before submitting its official list of qualifying SGOs. This advance process is intended to give SGOs and other stakeholders additional planning time before the credit’s implementation for tax year 2027. Under the revenue procedure, States may submit Form 15714, Advance Election to Participate Under Section 25F for 2027, beginning January 1, 2026, through the deadline specified in future IRS guidance. The IRS will acknowledge receipt of valid Advance Election submissions, but no alternative forms or attachments, including SGO lists, will be accepted with the Advance Election form itself.

Importantly, the revenue procedure emphasizes that an Advance Election must ultimately be “perfected” by submitting the State’s certified list of qualifying SGOs in accordance with statutory requirements and future IRS instructions. Failure to do so by the applicable deadline would mean the State has not met the statutory prerequisites to be treated as a covered State under § 25F for tax year 2027, making contributions ineligible for the federal credit.

Revenue Procedure 2026-6 offers critical clarity on the procedural pathway States must follow to join the new federal education tax credit regime. As future guidance is released clarifying filing deadlines and election “perfection,” stakeholders should monitor developments closely to ensure compliance and maximize the benefits of this new credit framework.

IRS Withdraws Proposed Regulations on Relief from Joint and Several Liability and Community Property Rules

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The IRS and the Treasury Department  formally withdrew two notices of proposed rulemaking that addressed relief from joint and several tax liability under Internal Revenue Code § 6015 and relief from federal income tax liability arising from the operation of state community property laws under § 66.  The eliminated  Proposed regulations issued in 2013 and 2015  both  attempted to update and clarify the administrative framework governing innocent spouse and community-property-related relief claims. Married taxpayers seeking relief under existing statutory provisions remain subject to the current rules and procedures, which are not affected by this action.

The 2013 proposed regulations (REG-132251-11) sought to provide comprehensive guidance on the process for requesting innocent spouse relief and relief from community property allocation rules. The 2015 proposed regulations (REG-134219-08) attempted to incorporate statutory changes enacted in the Tax Relief and Health Care Act of 2006, as well as judicial developments that had reshaped the interpretation of § 6015. However, the agencies determined that the number of comments received, the passage of significant time since their publication, and shifting administrative priorities warranted reevaluating the proposals.

In announcing the withdrawal, the IRS noted that additional consideration is required given the substantial statutory and case-law developments that have occurred since the proposed regulations were issued. They also stated that if they decide to move forward with updated guidance, they will issue new proposed regulations and solicit fresh public comments, rather than finalize the decade-old proposals.

Importantly, the withdrawal does not alter the existing statutory framework governing innocent spouse relief and community property allocations. Taxpayers seeking relief must continue to rely on the current statutory provisions, existing regulations, and relevant case law. The decision may signal a potential future rulemaking effort but, for now, leaves the longstanding rules under §§ 6015 and 66 unchanged. If you have questions about this update, please contact Liskow attorneys Leon Rittenberg III, John Rouchell, Caroline Lafourcade, and Kevin Naccari and visit our Tax practice page. 

IRS Proposal to Withdraw Basis-Adjustment Disclosure Rules Moves to White House Review

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The IRS’s plan to revoke recently issued disclosure regulations relating to partnership basis-adjustment transactions has advanced to White House review, advancing the current administration’s goal of reversing the prior administration’s crackdown. According to the Office of Information and Regulatory Affairs (OIRA), the proposed regulations were received for review on Thursday, December 4, 2025.

The regulations at issue, finalized in January, had designated certain partnership basis-adjustment transactions as “transactions of interest.” The designation triggered disclosure obligations for material advisers and certain transaction participants, requiring them to report such arrangements to the IRS. In April, however, the IRS announced that it intended to withdraw the rules as part of a broader reevaluation of partnership basis-shifting transactions. 

Basis adjustments reflect changes in the value of a taxpayer’s investment in a partnership or other entity. Under the prior Biden administration, the IRS had pursued heightened scrutiny of related-party basis-shifting, transactions in which one partner’s or shareholder’s basis is shifted to another party, potentially generating tax deductions the IRS viewed as artificial and questionable. The disclosure regime adopted earlier this year was one element of that enforcement effort.

Taxpayers and practitioners, however, raised significant concerns about the breadth and impact of the disclosure rules. Following a change in administration, Treasury and the IRS signaled a shift away from the prior crackdown, culminating in the move to rescind the January regulations. The withdrawal proposal now undergoing OIRA review is expected to formalize that change and eliminate the transaction of interest designation for basis-adjustment transactions. If finalized, the revocation would remove the associated disclosure requirements.

While taxpayers may experience reduced compliance obligations as a result of the removal of these regulations, taxpayers involved in partnership transactions should be aware of the potential for scrutiny regarding basis-shifting activities as the IRS has indicated that many of these transactions lack economic substance and could be challenged.

If you have questions about this update or require partnership tax planning advice, please contact Liskow attorneys Leon Rittenberg III, John Rouchell, Caroline Lafourcade, and Kevin Naccari and visit our Tax practice page. 

LDR Issues New Electronic Filing and Payment Mandates Effective Next Year

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The Louisiana Department of Revenue (the “Department”) has issued Revenue Information Bulletin 25-030 announcing expansions to the state’s electronic filing and payment requirements. These amendments broaden the types of returns and payments that must be submitted electronically beginning January 1, 2026. The expanded requirements apply to all filings and payments made on or after that date, regardless of the underlying taxable period, unless an express exception applies.

Under the revised rules, electronic submission will be mandatory for all sales and use tax returns except the Louisiana Consumer Use Tax Return, the Fairs, Festivals, and Other Special Events Sales Tax Return, and Watercraft Sales Tax Payment Certifications. The requirement applies to all Forms R-1029, Louisiana Sales Tax Return, regardless of a taxpayer’s average payment amounts. In addition, all sales tax payments must be made electronically beginning in 2026, subject to the same narrow exceptions. Returns and payments may be submitted through the Louisiana Taxpayer Access Point (LaTAP), Parish E-File, Sales Tax Online, credit card services, financial institutions, or approved third-party software providers.

Withholding tax reporting will also transition fully to electronic submission. All Forms L-1 must be filed and paid electronically beginning January 1, 2026, using LaTAP or the Federal/State Employment Taxes program through approved software. Electronic filing for Forms L-3 will become mandatory one year later, beginning January 1, 2027. 

Additionally, the Department is expanding its electronic requirements regarding information reporting. Louisiana Revised Statute 47:114.1 currently mandates electronic filing of Forms 1099-NEC only for service recipients submitting 50 or more forms. Effective January 1, 2026, this threshold is eliminated, and all Forms 1099-NEC filed with the Department must be submitted electronically through LaWage or approved third-party software. 

Additional filing categories are affected by the expanded mandates. Oilfield site restoration fee reports and related payments must be submitted electronically via LaTAP beginning January 1, 2026. S corporations, which are required to file an annual information return for taxable periods beginning on or after January 1, 2026, must file those information returns electronically. S corporations may elect to file composite returns and make composite payments, but any such filings or payments must also be transmitted electronically. Composite payments may be submitted using approved software, LaTAP, financial institutions, or credit card options.

The Bulletin reiterates that failure to comply with the electronic filing mandate will result in penalties, unless a hardship exemption applies. A taxpayer that fails to file electronically may be assessed either a $100 penalty or five percent of the tax due, whichever is greater. Failure to comply with electronic funds transfer requirements will cause payments to be treated as delinquent and subject to standard penalties and interest. 

Taxpayers who do not yet have a LaTAP account should register as soon as possible to avoid compliance challenges ahead of the effective date. Existing LaTAP users should ensure access to all relevant tax account types before January 1, 2026. The Department provides online resources and FAQs to assist with registration, account creation, and system navigation. If you have any questions about his update, please contact Liskow attorneys Bob Angelico, Caroline Lafourcade, and Kevin Naccari and visit our Tax practice page. 

LDR Updates Sales and Use Tax on Digital Products and Related Services Guidance Document

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The Louisiana Department of Revenue recently updated its Sales and Use Tax on Digital Products and Related Services guidance document to clarify what constitutes digital audiovisual works, things that do not constitute website hosting, and what constitutes communication and collaboration tools. The guidance document was originally published in August to clarify some of the sales tax changes made during the Third Extraordinary Session of the Louisiana Legislature in 2024 affecting digital products and related services, which were effective January 1, 2025. 

The update adds an illustrative example of the types of digital audiovisual work that would be subject to sales and use tax. “A company operates a website that allows customers to purchase and view prerecorded music concerts. The prerecorded music concerts are digital audiovisual works and are subject to sales and use tax.”

The update also explains that web hosting services refer to the providing of storage for website files, domain name connections to make the site publicly accessible, and management of email addresses. However, web hosting does not refer to website building or design. Finally, the update explains that digital communication and collaboration tools such as software applications and platforms that allow a group of people to work together remotely over the internet, such as Microsoft Teams and Zoom, are examples of non-exempt digital tools.

If you have any questions about this update or any of the other recent Louisiana tax changes, please contact Liskow attorneys Bob Angelico, Leon Rittenberg III, Caroline Lafourcade, and Kevin Naccari, and visit the firm’s Tax Practice page.  

SCOTUS Presented with Best Opportunity to Weigh In on Climate Change Litigation

2 minute read

The United States Supreme Court is currently presented with what many believe is the best opportunity for the Court to provide sorely needed guidance in the vastly growing climate change docket—where energy companies are facing liability for injuries allegedly sustained due to greenhouse gas emissions. In Suncor Energy (U.S.A.) Inc., et al. v. County Commissioners of Boulder County, energy companies are asking the Supreme Court to decide whether federal law precludes state law nuisance claims targeting interstate and global emissions.  The state trial court denied the defendants’ motion to dismiss the suit brought by the City and county of Boulder, finding that federal law did not preempt the state law claims. The Colorado Supreme Court granted the energy companies’ request to review the decision and affirmed, with two justices dissenting.

In urging the Supreme Court to take the case, the energy companies note that the decision of the Colorado Supreme Court, which paves the way for Boulder to proceed to trial on claims attacking global emissions, conflicts with a 2021 decision from the United States Second Circuit in City of New York v. Chevron Corp. In City of New York, the Second Circuit held that federal law preempts state law claims when those claims reach beyond the state’s borders and attempt to target the defendants’ nationwide and global operations. Notably, the United States filed an amicus brief in support of the energy companies in Suncor, asking the Supreme Court to take up the case which presents “a frequently occurring issue of exceptional importance.” United States Amicus at 3.

For its part, Boulder argues, among other things, that this is not the “right case” or the “right time” for the Supreme Court to tackle the thorny climate change litigation.  Boulder Response at 17. According to Boulder, the decision of the Colorado Supreme Court is only interlocutory and thus if the Court prematurely takes up the case at this time, it would be wading “into a thicket of preliminary questions that promise nothing but rabbit holes and dead ends.” Boulder Opposition at 1. Last week, the energy companies replied strongly that “if not now, when?” Suncor Reply at 10. The companies made a compelling pitch that “[w]hile the defendants in these cases will theoretically be able to seek review after liability is imposed, that is cold comfort given the growing number of cases and the sheer magnitude of the potential liability.” Suncor Reply at 10. To emphasize this point, the energy companies pointed to a statement describing the nationwide climate change litigation as a “carbon tax” aimed at crippling the entire industry. Suncor Reply at 2. Ultimately, the companies contend that the issue presented is paramount in our constitutional system: can state law tort suits effectively regulate interstate, and international, energy policies?  This closely watched case is now poised for SCOTUS to decide whether it will grant the cert petition.

Stay tuned for more climate change litigation updates from Liskow attorneys Kelly Becker, Jamie Rhymes, and James Lapeze.