The Colorado Supreme Court ruled Monday that a landmark municipal lawsuit seeking to hold two of the state’s largest oil and gas companies financially responsible for climate-change harms to Boulder County can move forward.
Boulder’s city and county governments filed the lawsuit seven years ago in an effort to hold Suncor Energy and ExxonMobil accountable for knowingly driving climate change and the damages the companies’ pollution has caused.
The case wound its way through state and federal courts before the state Supreme Court heard arguments in February over whether Boulder and Boulder County can sue in state court over air emissions that may not originate in Colorado or may drift somewhere else.
On Monday, the Colorado Supreme Court ruled 5-2 that Boulder’s legal claims are not preempted by federal law and that a lower court didn’t err in declining to dismiss the case. The state Supreme Court ruling sends the case back to district court.
Boulder Mayor Aaron Brockett praised the ruling as an affirmation that corporations cannot mislead the public and avoid accountability.
“Our community has suffered significantly from the consequences of climate change, and today’s decision brings us one step closer to justice and the resources we need to protect our future,” Brockett said in a statement.
But the National Association of Manufacturers, which filed as an interested party in the case, called on the U.S. Supreme Court to step in and rule that “neither the law, nor common sense, subjects energy producers and sellers to liability for climate change.”
“This entire litigation is a misguided approach to addressing the very real challenges of climate change and a distraction from real solutions that will allow the world to source and use energy in ways that are affordable and sustainable,” Chief Legal Officer Linda Kelly said in a statement.
Through the lawsuit, Boulder officials want to force Suncor and ExxonMobil to pay for the impacts of climate change, including millions of dollars spent recovering from increasingly severe weather that causes devastating wildfires, floods and droughts, and alters snowfall that mountain communities depend on for recreational tourism.
The oil companies’ lawyers argue that greenhouse gas emissions released by oil and gas production from within the United States and countries around the world do not fall to individual states to regulate. Instead, they contend, it’s up to the federal government, through the Clean Air Act, to decide how to regulate emissions from oil and gas operators.
In response, lawyers representing Boulder and Boulder County argue that Colorado law allows local governments to pursue claims against Suncor and ExxonMobil because the municipalities are not trying to regulate emissions but, rather, want to receive compensation for the damage caused by the companies’ pollution.
“Those claims could therefore proceed”
The Colorado Supreme Court majority sided with Boulder’s legal interpretation, and the justices were “unpersuaded” by arguments from the oil companies, going as far to question whether the premise of the companies’ argument was correct.
“We conclude that the district court correctly concluded that federal law did not preempt Boulder’s claims and that those claims could therefore proceed under state law,” Justice Richard Gabriel wrote for the majority.
Gabriel also pointed out several vague or apparently inaccurate statements by Suncor and Exxon’s lawyers, such as claiming Boulder’s lawsuit would hinder the federal government from dealing with foreign nations but not saying how it would hamper those relationships.
The justices did not take a stance on the substance of the lawsuit.
Justices Carlos Samour Jr. and Brian Boatright disagreed with the majority’s ruling, arguing that the majority incorrectly interpreted the role of federal law and previous court rulings. The justices also called for the U.S. Supreme Court to intervene in the matter.
“Boulder is not its own republic; it is part of Colorado and, by extension, of the United States of America,” Samour wrote in the dissenting opinion. “Consequently, while it has every right to be environmentally conscious, it has absolutely no right to file claims that will both effectively regulate interstate air pollution and have more than an incidental effect on foreign affairs.”
Samour is concerned that the Colorado Supreme Court’s decision, along with similar court rulings across the country, will create patchwork standards that will “beget regulatory chaos,” he wrote.
“To borrow from Fleetwood Mac’s old hit song, the message our court conveys to Boulder and other Colorado municipalities today is that ‘you can go your own way’ to regulate interstate and international air pollution,” Samour wrote. “In our indivisible nation, that just can’t be right.”
Most similar cases have been dismissed
The city of Boulder, along with Boulder and San Miguel counties, originally filed the climate-change lawsuit in Boulder District Court in 2018 against Suncor, which operates the state’s only petroleum refinery in Commerce City, and Exxon, one of the largest oil producers and refiners in the United States.
The lawsuit argued that the two oil companies were public nuisances, that their pollution was trespassing into the counties, and that their pollution violated the Colorado Consumer Protection Act. The plaintiffs alleged that the petroleum companies also had participated in a conspiracy to deny that climate change is happening and to convince the public to keep using fossil fuels.
Since the original lawsuit was filed in Boulder District Court, the cases have been separated. San Miguel County’s separate lawsuit is now pending in Denver District Court. The case ruled on by the state Supreme Court on Monday only involves the city and county of Boulder.
Since 1983, average temperatures in Colorado have risen 2 degrees and are projected to rise another 2.5 to 5 degrees by 2050, according to documents filed in the case.
Similar cases filed against fossil fuel companies in New Jersey, New York and Maryland have been dismissed, while one filed in Hawaii was allowed by that state’s supreme court to stand.
The U.S Supreme Court has so far declined to accept climate-change lawsuits against oil and gas companies filed by state and local governments. The 10th U.S. Circuit Court of Appeals, which takes appeals cases from Colorado, said the issue belongs in state courts where the damages have occurred.
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