A Colorado lawsuit claiming oil companies owe Boulder and San Miguel counties reparations for past and future climate-related damage awaits a decision by the U.S. Supreme Court on whether it will take up the case … again.
Last week the U.S. Solicitor General, at the invitation of the Court in October, filed a brief opining that the oil company’s petition for certiorari should be denied. The Court is not obliged to follow the Solicitor General’s advice.
Citing last year’s Marshall fire as a product of climate change, among other things, in a statement on the county’s web page Boulder County Commissioner Ashley Stolzmann said: “As our communities suffer, Exxon and Suncor continue to take in record profits while taxpayers shoulder the burden created by Big Oil.”
The latest petition — a "petition for certiorari" is the legal term for "asking the Supreme Court to take the case" — was filed June 8.
Originally filed in Boulder District Court in 2018, the case claims Suncor Energy and Exxon Mobil — two of the largest oil companies in North America — violated Colorado consumer protection laws as well as common law torts including trespass and public nuisance by “knowingly producing, promoting, refining, marketing and selling a substantial amount of fossil fuels used at levels sufficient to alter the climate, and misrepresenting the dangers associated with their use,” according to court documents.
The plaintiffs want the oil companies to pay three times the amount of “past and reasonably certain future damages” under Colorado civil statutes. They also want the oil companies to pay the costs to analyze, evaluate, mitigate, abate, and remediate the impacts of climate change and attorney’s fees. No specific amount has been published.
“San Miguel County continues to face rapidly increasing challenges from the changing climate,” said San Miguel County Commissioner Hilary Cooper in a statement. “Our economy relies on a snowpack whose timing is no longer reliable. Our lower-elevation municipal drinking and irrigation water systems, dependent on the snowpack, are under immediate threat of becoming unreliable.”
The case has ricocheted around the state and federal court systems since it was filed as the oil companies try to move the case to federal court while the plaintiffs want it heard in state court. No court has held a trial on the merits of the case yet. It’s been presented to the U.S. Supreme Court once before, but the Court declined that petition.
Suncor and Exxon Mobil then went around the system again and ended up back before the Supreme Court.
“Lawsuits like this one do nothing but waste time and resources and, more importantly, don’t advance efforts to address climate change,” said Todd Spitler, Senior Advisor for Exxon Mobil Corporate Media Relations in a statement to The Denver Gazette. “While we’ll fight this, we’ll also continue devoting billions of dollars to meet today’s energy needs while leading the way in a thoughtful energy transition towards net zero carbon.”
Suncor declined to comment.
According to the oil companies’ filings, generalized interstate air pollution and global climate change complaints must be heard in federal courts because, in part, the issues impact both interstate commerce as well as international agreements on climate change. They also say the implications of potentially thousands of local jurisdictions filing climate change lawsuits against fossil fuel producers and even one another, would create chaos in what they say is clearly an issue of national and international importance that only the federal government can properly deal with.
According to the counties, the case should be held in state court “to impose liability on defendants in connection with misrepresentations about the known dangers of their products, in connection with their marketing of those products and in connection with the sale of those products.”
The plaintiffs, who are represented by EarthRights, a non-governmental, non-profit legal organization, say since the damage is to the counties, state law should be used to judge culpability and compensation.
“Since the Colorado communities filed this case in 2018, Exxon Mobil and Suncor have consistently sought to delay the litigation — moving the case from court-to-court and losing each step along the way,” said EarthRights General Counsel Marco Simons in a press release. “The Solicitor General’s office correctly concluded that this case presents state-law claims, which state courts regularly hear and decide without issue, and that this litigation thus belongs in state court.”
This isn’t the first time a municipality or state has tried to sue oil and gas companies under state laws. According to industry sources there are currently more than twenty such lawsuits, with several currently before SCOTUS on the same jurisdictional question in this lawsuit, including San Mateo and other California municipalities; Rhode Island; the City of Baltimore; Maui County and Honolulu, Hawaii.
A 2018 case filed by New York City against energy producers on substantially the same grounds as this case was thrown out for a second time in April, 2021 by the Second Circuit Court of Appeals, saying state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.”
“Ironically, the Solicitor General’s brief underscores the importance of the Supreme Court taking up the petition and providing clarity on the proper jurisdiction for climate litigation,” said Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project, a project of the National Association of Manufacturers.
