WASHINGTON — The Supreme Court began its term on Oct. 5 with eight justices on the bench and a question that Monsanto's lawyers had answered in their favor 102 days earlier.
On June 25, in Monsanto v. Durnell, the court threw out a Missouri jury's failure-to-warn verdict over the weedkiller Roundup, 7 to 2. Justice Brett M. Kavanaugh wrote that because the Environmental Protection Agency had approved a label without a cancer warning, a state jury could not require one. Justice Ketanji Brown Jackson dissented, joined by Justice Neil M. Gorsuch.
The first case of the new term, Suncor Energy v. County Commissioners of Boulder County, asked a version of the same question about a different industry: when federal law governs a field, how much of it is left for state courts?
Justice Samuel A. Alito Jr. did not take part. A clerk's letter on Sept. 28 said he had withdrawn from the case, and gave no reason. A 4-4 split would leave the Colorado Supreme Court's ruling in place and set no precedent.
Boulder sued in 2018 under Colorado law, asserting nuisance, trespass, unjust enrichment and deception. It did not ask to close a refinery. It asked the oil companies to pay for roads, culverts and wildfire response in a county of about 330,000 people. The companies spent five years trying to move the case to federal court and lost at each level, including a denial of review by the Supreme Court in 2023. The Colorado Supreme Court then ruled against them, 5 to 2, in May 2025. In February, the justices agreed to hear the case and added a question of their own: whether the court has jurisdiction to hear the appeal at this stage.
Kannon Shanmugam, representing Suncor and Exxon, opened by calling the suit "an unprecedented effort to use state law to regulate global conduct." He closed, two minutes later, with a figure: if Boulder prevails, "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."
The argument turned on two terms that are easily confused. When Congress legislates on a subject, it displaces any federal common law judges had developed there. That happens automatically. Preemption, which is what federal law does to state law, does not; it requires a conflict or a clear statement from Congress, and the presumption favors the states.
The oil companies' position collapses the two. Interstate pollution, they argue, was never a matter for state law, and when the Clean Air Act displaced federal common law, nothing fell back to Colorado.
Justice Gorsuch put the consequence to Sarah Harris, the principal deputy solicitor general, who argued for the United States. Before the Clean Air Act, he said, Boulder could have sued under federal common law. Because of the act, and because Congress did not address the question, did that mean "nobody can sue at all?"
"Again, I think that's correct," Ms. Harris said.
Justice Elena Kagan pressed the text. "Where's the support for that? Where's the precedent for that? Where's the anything for that?" she asked of the argument that the Constitution reserves the subject to federal law. She also named the larger context. "This suit appears to be based on the old 1990s tobacco suits," she said, adding that the opioid litigation followed the same model. "This is chapter 3. So, if this is chapter 3, were chapters 1 and 2 also preempted?" Mr. Shanmugam said it was "a very different book."
Justice Kavanaugh was not persuaded by the constitutional theory on either side. "We have four precedents on point," he said, and read them as making "crystal-clear that interstate air and water pollution are matters for federal law unless Congress specifically preserves state law." He called the idea that Congress revived state tort law with the Clean Air Act "an all-time elephant in mouse hole."
He also raised a case that may matter more than any other. In International Paper Co. v. Ouellette, in 1987, Vermont lakefront owners sued a New York paper mill. The court held that the Clean Water Act barred suits under the law of the affected state, Vermont, but allowed suits under the law of the source state, New York. If Boulder relies on Colorado law, Justice Kavanaugh said, "that resolves this case."
Kevin Russell, Boulder's lawyer, answered that the complaint never named a source of state law. Justice Jackson followed with a question that points to the other way the case could go: Suncor operates refineries in Commerce City, Colo. "Aren't they also at least in part a source state?"
Justice Amy Coney Barrett, who with Justice Gorsuch may hold the deciding votes, gave each side something to work with. She told Mr. Shanmugam that the Clean Air Act's saving clause "says 'preserve,'" and that "a saving clause suggests that you're saving something that already exists." She asked Mr. Russell whether anything would stop Colorado from capping emissions in the other 49 states. A tort suit is not a cap, he said; it "requires them to internalize a portion of the costs."
Justice Clarence Thomas, who asked the first question of the term and made it about jurisdiction, asked Mr. Russell whether the theory could reach large retailers of fossil fuel products. "Nothing in our theory prevents that," Mr. Russell said.
Chief Justice John G. Roberts Jr. asked what would follow a Boulder victory. "A municipality in every single state will file a lawsuit," he said. Mr. Shanmugam had already put the number at more than 60 municipalities and about three dozen cases, the most recent filed the previous Wednesday.
Several outcomes are open. One follows Justice Kavanaugh: law of the affected state is out under Ouellette, and source-state law is left for another day. Another follows a suggestion from Justice Kagan to Mr. Russell, that the court could hold the Clean Air Act preempts the claims without reaching the constitutional question. [Karen: confirm sourcing for any statement about how observers read the argument; the earlier draft's line about "no one who watched it" is removed.] Under either path, Boulder's deception claims, which Mr. Russell kept apart from the emissions claims, might survive. For lawyers who plead consumer protection counts against regulated industries, that is the part to watch.
Related cases are waiting. A Honolulu trial court refused a stay in May. Maryland's highest court dismissed Baltimore's case in March, a split with other state supreme courts. Coordinated California cases have been paused since April.
Salazar v. Paramount Global (argued Oct. 14)
In 1987, a reporter for the Washington City Paper asked a video store for Robert H. Bork's rental history. The clerk handed over 146 titles; Mr. Bork was then a Supreme Court nominee. A year later Congress passed the Video Privacy Protection Act, which sets damages of $2,500 per violation. For three decades it was rarely invoked.
Then came the Meta Pixel, code that lets websites share visitors' Facebook identities with the company. Michael Salazar subscribed to a free newsletter from 247Sports, a Paramount site, and watched videos there while logged into Facebook. He sued, and the Sixth Circuit ruled that a newsletter subscriber is not a "consumer" under the act. The Second and Seventh Circuits have ruled the other way; the D.C. Circuit sided with the Sixth.
Joshua Hammack of Bailey & Glasser, arguing for Mr. Salazar in his first Supreme Court argument, relied on the text. The act defines "consumer" as any renter, purchaser or subscriber of "goods or services." Neighboring definitions say "audiovisual." This one does not. "It's following the definitions where they lead," Justice Kagan said.
Paul D. Clement, for Paramount, answered with a list of companies. Chick-fil-A has videos on its website, he said, and so does La-Z-Boy. Chief Justice Roberts was not satisfied. "I would think your job is to focus on the hard ones, at least from our point of view," he said.
Mr. Clement acknowledged the stakes: more than 100,000 subscribers at $2,500 each, "$250 million of liability in this case alone." Four justices, Kagan, Kavanaugh, Sotomayor and Jackson, said the remedy is straightforward. "You have two very simple solutions," Justice Kagan said. "One is to get consent." Justice Barrett raised standing, which no party had briefed; Mr. Clement offered supplemental briefing.
According to the Retail Litigation Center's brief, 61 such class actions were filed in 2022, 129 in 2023, 112 in 2024 and 65 last year, with 19 through mid-June of this year. A ruling for Mr. Salazar would likely reverse that decline. Mr. Hammack asked the court to vacate rather than reverse, so whether a sports site is "in the business" of delivering video would go back to the Sixth Circuit.
Anderson v. Intel (argued Oct. 6)
Intel's 401(k) plan committee put employees' target-date and diversified funds heavily into hedge funds and private equity. The funds trailed comparable options for a decade. The Ninth Circuit affirmed dismissal because the complaint did not identify a "meaningful benchmark," a comparator with the same aims and the same asset allocation.
Matthew Wessler, for the employees, said no such fund exists, so the rule ends the case before discovery. The rule dates to Meiners v. Wells Fargo, an Eighth Circuit decision from 2018, and has spread to several circuits; the Third and Sixth have rejected it.
No justice disputed that underperformance claims need a comparison. "You are agreeing that a meaningful benchmark standard is appropriate," Justice Barrett told Mr. Wessler. "You're fighting a little bit about what is meaningful." Justices Kagan and Sotomayor wanted it recorded that an identical asset allocation is not required, a point the government's brief also makes, and the Solicitor General's lawyer agreed. Justice Gorsuch read Mr. Wessler the question the petition had presented and then listened as he argued another.
At stake are 155 fiduciary class actions filed in 2025, and nearly 70 in the first three months of this year, against fewer than 40 in the same months of earlier years.
Hoffmann v. WBI Energy (argument Nov. 9)
Leonard Hoffmann farms wheat and alfalfa in McKenzie County, N.D. In 2018, WBI Energy condemned 17,730 feet of his family's land and their neighbors' for a 24-inch gas pipeline. After a favorable ruling on valuation evidence, WBI settled. A federal judge awarded $383,375.76 in fees and expenses under North Dakota law, which makes a condemnor pay when an owner must sue to be paid fairly. The Eighth Circuit vacated the award in March 2025, holding that a federal taking carries only the Fifth Amendment minimum. Five other circuits apply state law. The Solicitor General is arguing alongside WBI.
Robert McNamara of the Institute for Justice will argue for the landowners.
Apple v. Epic Games (argument not yet set)
The court agreed on June 30 to decide whether a party can be held in contempt for violating the "spirit" of an injunction when the order does not name the conduct. The First, Second and Tenth Circuits require a clear prohibition of the precise act; the Ninth, Third and Fifth look to purpose. Apple's brief was filed Sept. 14, and Epic's is due Nov. 13.
Younge v. Fulton County (set for argument Nov. 2)
Dr. Jasmine Younge, a deputy chief of staff in the Fulton County district attorney's office, told the office she was pregnant on July 1, 2019, and was fired two weeks later. The office raised the "personal staff" exemption to Title VII for the first time at summary judgment. The question is whether Rule 8(c), which says affirmative defenses "must" be pleaded, requires a motion to amend. Three circuits say yes; eight do not. [Karen: confirm that argument took place Nov. 2 and add what the justices asked; the research file predates the argument.]
The court will not issue opinions in these cases for months. Suncor, lawyers say, is the one to watch for anyone who sues an industry; when it comes down, [Karen: confirm "source state" as the phrase to search for in the opinion].
Miller v. McDonald, No. 26-438, is a pending petition, not a granted case; the response is due Dec. 2. Quotes are from argument transcripts on supremecourt.gov. Bailey & Glasser and Siri & Glimstad are clients of Oliver & Ginger. [Confirm client status before publication.]
Sources
Transcripts: Suncor, Oct. 5 · Salazar, Oct. 14 and Anderson, Oct. 6 (supremecourt.gov/oral_arguments/argument_transcripts/2026/). Dockets: 25-170 · 25-459 · 25-498 · 25-159 · 25-1311 · 25-352 · 26-438. Monsanto v. Durnell summary · Ouellette · Meiners v. Wells Fargo · Bloomberg Law on Hammack, Oct. 12 · PLANSPONSOR on Anderson · Legal Planet on Suncor · SCOTUSblog OT2026. Full notes: research_notes/SCOTUS term for plaintiff lawyers/