My third observation is that Justice Barrett gets it. After asking a series of incisive questions in the wake of Justices Gorsuch and Kavanaugh, she put the point to Boulder with a stiletto. She asked, “Everybody agrees that state tort law is a form of regulation. But what if Colorado passed a law purporting to cap emissions in the other 49 states? Is there any principle that would prevent that?”
Boulder responded that a state cannot do that, but that is “different than a state providing a tort remedy for conduct that took place elsewhere.”
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