By Amy Westervelt
Several Colorado communities squared off against Big Oil on Wednesday, before a three-judge panel in a virtual U.S. 10th Circuit Court of Appeals courtroom, over the perennial issue in climate liability lawsuits: jurisdiction.
Richard Herz, an attorney with Earth Rights International, argued on behalf of the City and County of Boulder and San Miguel County that last year’s decision by federal district court Judge William Martínez to keep the case in state court should stand, and that the 10th Circuit’s legal leeway to review the lower court’s decision was limited.
Representing ExxonMobil and affiliates of Suncor Energy, attorney Kannon Shanmugam countered that the case belongs in federal court, arguing that under the Clean Air Act, as well as precedents set in some other climate cases, federal law preempts state law when it comes to greenhouse gas emissions.
Judge Carolyn McHugh seemed unpersuaded. “I have a hard time accepting a complete preemption argument under the Clean Air Act,” said McHugh, interrupting Shanmugam’s argument,“when the statute specifically indicates that it doesn’t displace state law.”
The panel questioned Herz closely as well, with Judge Carlos Lucero asking for an explanation of how the communities have calculated the fossil fuel firms’ monetary liability.
Herz compared his case to past litigation by states against tobacco firms, as well as more recent opioid lawsuits. “All these things are about sales and misrepresentations,” he told Judge Lucero, ”and local governments have sued for local injuries in these areas, in state court, under state law.”
In late March, the Colorado communities sent a letter to the court arguing that the March 2020 decision by the 4th U.S. Circuit Court of Appeals, in which the court ruled that a similar suit by the city of Baltimore belonged in Maryland state court, has set a precedent that applies in the Colorado case.
In the lawsuit, first filed 2018, the Colorado communities are seeking monetary damages from the fossil energy firms to cover the costs of dealing with the intensifying effects of climate change, including more frequent and destructive heat waves, wildfires, droughts, and floods. They argue that the firms are liable for these costs because they knowingly misled the public for decades on the link between burning fossil fuels and rising global temperatures, while continuing to produce and sell “a substantial portion of the fossil fuels that are causing and exacerbating climate change.”
The court’s decision on today’s hearing is expected by fall 2020.