Colorado Supreme Court to decide whether Boulder’s landmark climate change lawsuit can proceed

Boulder and Boulder County have spent millions over the past few decades mitigating the effects of climate change: wildfire management, pest infestations, flood control, retrofitting buildings, and road replacements, among other things, they claim in a lawsuit against ExxonMobil and Suncor Energy. And now they want the oil companies to start paying for some of that damage. 

Whether or not those damages could be sought in court — as opposed to through policy and regulation — was the subject of debate on Tuesday at the Colorado Supreme Court. The court now must decide whether the case will be heard in state court or be kicked to a federal court where it will likely be dismissed.

In 2018, Boulder and Boulder County, along with San Miguel County, sued ExxonMobil and Suncor over their contributions to climate change. The lawsuit followed examples in New York and California, but was the first instance of the fight moving inland, and was the first of dozens of lawsuits since.

The hearing Tuesday did not include San Miguel County, which is on the Western Slope and has been spun off into a separate lawsuit pending in Denver County District Court.

Boulder alleges that the fossil fuels produced by the companies are directly linked to climate change, which exacerbates disasters like wildfires, heat waves, drought and floods, that severely impact people’s property, health and livelihoods.

The local governments argued that they have acted “reasonably” to mitigate the effects of climate change, while the oil companies acted “recklessly.”

“Alone, (the local governments) and their taxpayers cannot pay the full costs of all that is needed, nor should they,” the 2018 complaint reads.

Boulder further alleges that the oil companies have known about their outsized contribution to climate change for decades, yet misled the public about its dangers.

The plaintiffs have likened the lawsuit to those brought against the tobacco industry and opioid manufacturers.

“When corporations sell harmful products and then lie about the dangers and risks, courts are the proper place for harmed parties to seek justice,” said managing attorney Corey Riday-White from the Center for Climate Integrity, an advocacy group that has provided legal support to communities around the country suing oil companies.

The oil companies are fighting back by trying to show that Boulder is localizing the impacts of global climate change, and targeting “a select few of the many companies operating in these industries,” the companies wrote in a petition filed in July.

On Tuesday, Kannon Shanmugam, a lawyer for the oil companies, told the Colorado Supreme Court that Boulder was practicing “selective regulation” by targeting ExxonMobil and Suncor. If they are seeking damages from greenhouse gas emitters, then there is a much longer roster to choose from.

Think global, litigate local

The word “regulation” is a particular linchpin in these climate change cases around the nation. It’s something that lawyers for Boulder worked to clarify and avoid, and that the oil companies drilled into.

Emissions regulations are the job of the federal Clean Air Act, and by extension the U.S. Environmental Protection Agency, a federal level agency. But a federal appeals court already ruled the Boulder lawsuit should be heard in Colorado, and the U.S. Supreme Court has declined to consider the case.

The push and pull — mostly push — between federal and state courts is emblematic of the issue at large: how to litigate an international issue with local impacts.

Calgary-based Suncor’s U.S. headquarters is located in Commerce City, but ExxonMobil is headquartered in Texas. The effect of their emissions are not confined by state borders, but the impact of extreme weather events caused by climate change are felt — and dealt with — locally.

Marco Simons of EarthRight, representing Boulder on Tuesday, argued that Congress would not give a company in any state the “unlimited ability” to harm citizens in other states.

The question is not what gives Boulder the right to punish out-of-state companies, Simons said. It is, what gives Exxon the right to cause harm in Colorado?

Boulder’s original complaint states very carefully that they are not asking the court to regulate the emissions or production of fossil fuels in Colorado.

What the local governments want is compensation.

The plaintiffs claim they’ve spent “substantial dollars” on climate change mitigation and disaster cleanup.

Add to that the state’s “$41 billion agriculture industry (which is) imperiled by rising temperatures and drought, while the $5 billion ski industry is in jeopardy as a result of ‘low-snow’ winters and shorter seasons,” the complaint read.

In a section about wildfires, they noted a likelihood of increased premiums for insurance. This was filed before the Marshall fire destroyed more than 1,000 homes in Boulder County, and before the U.S. Senate issued a report stating that as climate change grows, “sky-high insurance premiums and unavailable coverage” could cause property values to fall, “sending household wealth tumbling.”

Since the 1980s Colorado has suffered from 75 weather- or climate-related losses that exceeded $1 billion in damage, with two-thirds of those occurring since 2010, according to the National Oceanic and Atmospheric Administration.

Last year a panel of insurance experts told The Colorado Sun that the state was second only to Kansas for increases in extreme weather events over the past 10 years, at 275%, and that property insurers as a group have lost money in Colorado in eight of the past 11 years. Moreover, insurers are dropping the state as a whole.

Courts are the wrong place to argue

During Tuesday’s arguments, a hypothetical situation was repeatedly lobbed around the court: What happens if every city in America decides to sue an energy company for climate change? That kind of action would in turn change the way that oil companies operate — a kind of behavioral regulation — that extends well beyond paying damages.

Phil Goldberg from the Manufacturer’s Accountability Project said that the courts are the wrong place to argue about the effects of climate change in the first place.

“A lot of (these cases) specify that they’re not trying to make anyone sell less oil or gas or any kind of energy,” Goldberg told The Colorado Sun. “They just want compensation. I heard that from Boulder’s attorneys today. What that’s going to end up doing is raising the cost of energy. … There’s not going to be any benefit at the end of the day to dealing with climate change.”

Those kinds of decisions, Goldberg said, should be made by legislators and regulators, people who can consider a wide variety of impacts, and not a narrow set of legal parameters around liability.

“The challenge of our time is not to figure out who to sue and how to artfully plead lawsuits,” he said. “The challenge of our time is figuring out how we’re going to source and use energy in ways that are sustainable for both us and the planet. And lawsuits don’t do that.”