A 4-year-old lawsuit blaming Suncor Energy and ExxonMobil for climate-change harms to Boulder County will go before the Colorado Supreme Court this week as the two oil and gas companies try to convince the justices that the state has no jurisdiction over the issue.
The companies’ attorneys will 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.
Meanwhile, lawyers representing the city of Boulder and Boulder County — the plaintiffs in the lawsuit — will argue that Colorado law allow 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.
Daniela Colaiacovo, a spokeswoman for EarthRights International, which is representing Boulder County, said attorneys were not available to talk about the case prior to Tuesday’s arguments before the state Supreme Court.
But Sean Powers, an EarthRights senior attorney, addressed the matter a statement after a Boulder District Court judge refused in June to dismiss the case.
“Since the beginning, defendants have been arguing against a case we did not plead,” Powers said. “Plaintiffs are not trying to litigate a solution to the climate crisis, they are seeking redress for harms they have suffered and will continue to suffer. The only conduct at issue is defendants’ own: what they knew, when they knew it and what they did with that knowledge.”
The state Supreme Court’s decision will be pivotal.
If the justices decide the case belongs in state courts, it will continue a lengthy legal battle that eventually could cost Suncor and Exxon millions of dollars in a settlement or judgment. If the court determines the matter isn’t a state issue, the municipalities could find it hard to bring the case in federal court since the 10th U.S. Circuit Court of Appeals ruled it belongs in state court and the U.S. Supreme Court declined to take the case when petitioned by the petroleum companies.
Tuesday’s hearing comes as state supreme courts in New Jersey, New York and Maryland already have dismissed similar lawsuits.
However, one state-level case, filed by the city of Honolulu against oil companies operating in Hawaii, was allowed to stand after making it to that state’s Supreme Court. In January, the U.S. Supreme Court declined to take that case, paving the way for it to continue in Hawaii’s state courts.
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 it violated the Colorado Consumer Protection Act. The plaintiffs alleged the petroleum companies also had participated in a conspiracy to deny climate change is happening and to convince the public to keep using fossil fuels.
The municipalities demanded the oil companies pay for the impacts of global warming, which includes recovery from increasingly severe weather that causes wildfires, droughts and alters the snowfall that mountain towns such as Telluride, in San Miguel County, depend on.
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 to be argued before the state Supreme Court this week 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.
“The altered climate is affecting communities, ecosystems and public health, including prolonged periods of excessively high temperatures, more heavy downpours, increase in wildfires and more severe droughts; resulting in loss of snowpack, precipitation changes, worsened air quality, and insect and disease outbreaks,” the plaintiffs’ attorneys argue in a brief filed with the state Supreme Court.
Boulder County and the city of Boulder say climate change is costing local governments millions of dollars as they address the problems it creates.
Boulder Mayor Aaron Brockett said the warming climate is resulting in all sorts of expenses, such as adding air conditioning to buildings that once did not need cooling to the costly recovery from disasters such as the 2021 Marshall fire.
“This is about holding Exxon and Suncor financially responsible for the harm climate change is causing our community,” Brockett said. “They have been aware of that effect and now the city is facing who knows how many millions in costs because of it.”
Environmental groups supporting the lawsuit agree the case belongs in state court.
The Natural Resources Defense Council wrote in an amicus brief that the Clean Air Act did not carve out exclusive jurisdiction over interstate emissions.
“NRDC takes no position on the merits of these claims,” the brief stated. “But NRDC strongly objects to defendants’ misconstruction of federal law, which would seemingly provide blanket immunity for deceptive business conduct of the sort alleged here. That is nonsense, as the Clean Air Act does not address such activity.”
When the lawsuit was filed, it was the first of its kind in a non-coastal state, with other cases mostly originating on the East Coast.
Suncor, Exxon and the state’s oil and gas industry immediately fought back, saying Boulder was trying to financially break them and the result would be increased costs for fuels and other petroleum products for consumers.
The costs for consumers remain an argument for the industry in fighting the lawsuit.
Phil Goldberg, special counsel to the Manufacturers’ Accountability Project, which tracks climate litigation on behalf of industry, said environmentalists want to drive the fossil fuels industry out of business. They don’t care if the lawsuits would make gasoline unaffordable, he said.
“If this kind of litigation becomes successful, then it’s going to increase the cost of all the energy sources,” Goldberg said.
Manufacturers acknowledge climate change is a real concern, he said, but suing oil companies is not the way to solve the problem. Instead, the companies need to find innovative technology that will reduce harmful emissions while still providing the fossil fuels that power modern life. That also includes producing more energy-efficient products such as refrigerators and other household products, fuel-efficient automobiles and buildings that don’t leak energy.
“It’s all of the above approach to figuring out how we’re going to create a new system to fuel the world,” Goldberg said.
It typically takes several months for the Colorado Supreme Court to issue an opinion after oral arguments are held.
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