By Karen Savage
The city of Boulder and two other Colorado communities have asked a state court to let a jury decide the outcome of their climate damages claims against two major fossil fuel firms.
In a brief filed earlier this month in state court by the city of Boulder and the counties of Boulder and San Miguel, the municipalities opposed the latest effort by Suncor and ExxonMobil to have the case dismissed.
"This is the first time that any state court has considered basically the merit of the climate tort cases brought by local governments,” said Marco Simons of the nonprofit environmental law firm EarthRights, who is one of the lead lawyers representing the municipalities. “Essentially, it’s the first opportunity for a state court to hear arguments about whether these are essentially valid claims and legal theories.”
The Colorado municipalities filed suit against ExxonMobil and Suncor in state court in April 2018, with charges including unjust enrichment, public and private nuisance, civil conspiracy, and violation of the Colorado Consumer Protection Act. They contend that the companies knew for decades that burning fossil fuels drives climate change, but deliberately failed to inform the public about those risks, as well as significantly contributing to worsening climate change.
The three communities are seeking billions of dollars in compensation from the firms to cover the costs of grappling with the effects of climate change, including increased wildfires, diminishing snowpack, more intense rain and flooding, worsening air quality, and insect and disease outbreaks.
Suncor and ExxonMobil moved quickly in 2018 to shift the lawsuit to federal court, a strategy fossil fuel defendants have consistently used because federal judges have so far proven more likely to dismiss such cases. But U.S. District Court Judge William J. Martinez sent the case back to state court last fall. Martinez also rejected efforts by Suncor and ExxonMobil to pause the case while they appealed that decision to a federal court, and the companies’ extraordinary plea to the Supreme Court also fell flat.
The oil companies now hope a Colorado state court will dismiss the case. They contend that they do not have a unique responsibility for climate change, and that misrepresenting the danger their products posed to the climate was free speech protected by the First Amendment.
They are also arguing that the Clean Air Act and other federal laws take precedence over Colorado’s regulatory authority.
“What I found interesting was that they didn't seem to have a good reason as to why they could not be held responsible just as a matter of what the law requires,” said Simons.
“They don't make it a very compelling argument that they're not responsible under state law,” he said, but the corporations’ motion offers a glimpse into how they may present their defense as the case proceeds..
It is not clear when the federal Tenth Circuit Court of Appeals will announce its decision on moving the case back to federal court. But that will not be the topic of arguments in June, at the next state court hearing on the case.
“The only question is whether, under established Colorado law, a jury can consider whether defendants — who promoted and sold enormous amounts of fossil fuels while misrepresenting their dangers — bear any liability for plaintiff’s damages,” Simons wrote in opposition to the companies’ motion to dismiss.
Suncor and ExxonMobil did not respond to requests for comment.
Along with several other recent state, city, and local climate cases around the country, the Colorado lawsuit stems from investigations published five years ago by InsideClimate News and the Los Angeles Times. Both publications found that while oil industry scientists understood the connection between burning fossil fuels and global warming as early as 1977, companies opted to cast doubt on climate science in public for decades, while continuing to do business as usual.