Too Small to Fail: A New Perspective on Environmental Penalties for Small Businesses

In Suncor Energy v. Boulder County, the Supreme Court will consider whether the Clean Air Act and the foreign-affairs doctrine preempt state-law climate claims brought by state and local governments seeking to recover the mounting costs of climate adaptation. Because the Court has held that neither federal common law nor any federal statute affords these plaintiffs a damages remedy, state law is their only avenue; a finding of preemption would close the courthouse door on communities left to absorb costs caused by others. 

This Essay argues that the Court should not find preemption. It shows that the Clean Air Act neither expressly nor impliedly preempts these claims but affirmatively preserves them; that the foreign-affairs theory has no limiting principle and has already been rejected by courts; and that damages and locally confined relief lack the extraterritorial reach that alone justifies centralizing authority over emissions. The Essay develops two additional arguments: the implications of the 2026 endangerment-finding rescission, and why, after Loper Bright, courts owe no deference to EPA’s theory of preemption-by-inaction.

This Comment argues “reverse acquihires”—deals in which a Big Tech firm poaches an AI startup’s team and then paysits shell hundreds of millions—constitute asset acquisitions subject to Hart-Scott-Rodino (HSR) Act review. While regulators typically review only tangible asset acquisitions under the Act, this Comment argues that regulators can mandate review of certain intangible asset transfers as well. Drawing on regulatory treatment of intellectual property licensing agreements, language from divestiture orders, and guidance from foreign competition authorities, this Comment demonstrates that reverse acquihires are acquisitions of AI startups’ most valuable assets: their business information and know-how.

The False Claims Act is powerful. It enables the government to deter, punish, and remedy fraud. But, to date, the full extent of the False Claims Act’s power has gone underappreciated. It can also be used to obtain equitable relief. And if scholars and government lawyers are serious about promoting civil rights (or other policy objectives), they should use False Claims Act injunctions as policy-advancing tools.