Climate Change Litigation in Colorado

Colorado communities sue fossil fuel companies to make them pay their fair share of climate costs.

Case Status: Ongoing

Issues: Climate Justice & Accountability

SUMMARY

We represent the Colorado communities of Boulder County, San Miguel County, and the City of Boulder in a lawsuit against Exxon Mobil and Suncor Energy, two oil companies with significant responsibility for climate change that have been particularly active in Colorado. Similar lawsuits are currently proceeding in coastal communities, but this is the first such lawsuit in mountain communities—or anywhere in the U.S. interior, to recover the costs associated with climate change impacts.

Climate change has already arrived in Colorado. Boulder County, San Miguel County and the City of Boulder are experiencing impacts associated with average rising temperatures. Over the next three decades, these communities will face increased harms, and their costs to adapt to and mitigate the impacts of climate change will climb into the hundreds of millions of dollars or more. These local governments have done everything in their power to address climate change, while these companies have continued to act recklessly. Exxon and Suncor have made substantial contributions to the climate impacts that are now affecting these communities.

Current impacts are projected to grow worse over time, including:

Higher average temperatures, leading to public health problems associated with poor air quality
More extreme heat days, affecting outdoor workers
More frequent and destructive wildfires
More frequent and severe droughts
Increasingly severe insect infestations
Reduced snowpack
Greater risk of flooding
Changing precipitation patterns that place stress on agriculture

These changes will hit at the heart of the local economy, damaging roads, forests, homes, the agricultural sector, the ski industry, open spaces, and much more. Adapting to such a wide range of impacts requires local governments to undertake unprecedented levels of planning and spending. Escalating costs have forced these Colorado communities to take legal action so that taxpayers are not stuck footing the bill alone.

The local governments of Boulder County, San Miguel County, and the City of Boulder brought this lawsuit to recover the costs of climate damages that would otherwise be borne by taxpayers. More than 330,000 residents call Boulder and San Miguel counties home. Due to the impacts of climate change, the health and safety of these residents are at risk. Since 1983, average temperatures in Colorado have risen more than 2℉ and are continuing to warm. Boulder County, San Miguel County, and the City of Boulder are already experiencing the impacts of climate change, and these impacts are projected to grow much worse in the coming decades.

Fossil fuel combustion accounted for nearly 80 percent of all greenhouse gas emissions between 1970 and 2010. Exxon is one of the largest producers, sellers and refiners of fossil fuel in history; Suncor too is one of the world’s largest fossil fuel companies, and a leader in developing tar sands, which produce higher concentrations of GHG emissions than almost any other fossil fuel.

Both companies are particularly active in Colorado. Exxon has done fossil fuel business in Colorado since the 1930s, while Suncor’s U.S. operations are based in Denver, Colorado. Suncor supplies about 35 percent of the state’s gasoline and diesel fuel demand. The two companies also work closely together in Colorado to market and sell fossil fuels; and the two companies also jointly operate Syncrude Canada Ltd., the largest developer of Canada’s tar sands. Exxon and Suncor have long known about the risks that their fossil fuel products pose to communities, especially in vulnerable coastal and mountain regions, but chose to continue business as usual. In 1968, industry scientists warned that “significant temperature changes are almost certain to occur by the year 2000” due to rising greenhouse gases, and that “the potential damage to our environment could be severe.” By the 1970s, these two companies knew with high certainty that fossil fuels were dangerous and that inaction would cause dramatic, even catastrophic, changes to the climate. Exxon even adapted its own facilities to protect them from sea level rise. Yet rather than act responsibly, Exxon and Suncor chose to act recklessly. They concealed their knowledge from the public and their consumers, and continued promoting and selling fossil fuels; and worse, they actively spread doubt about climate change and sought to discredit the scientific voices that they knew were telling the truth.

David Bookbinder, Chief Legal Counsel, Niskanen Center
Kevin Hannon and The Hannon Law Firm LLC

The plaintiffs seek compensation and other monetary relief under Colorado’s common law of nuisance, trespass, and unjust enrichment, as well as under Colorado’s consumer protection law. Exxon and Suncor have acted knowingly and recklessly and should pay their fair share of the damage. Taxpayers should not be expected to pick up the tab. In this case, because climate impacts are here, and their continuation and worsening is inevitable, the plaintiffs are being forced to spend significant amounts of taxpayer dollars to adapt to the changing climate.
Evidence demonstrates that these two companies knowingly and substantially contributed to the climate crisis by producing, developing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use. The plaintiffs have asked the court for compensation for the costs of adaptation measures needed to protect local residents and property. The communities have not asked the court to stop or regulate the production, sale or use of fossil fuels in Colorado or elsewhere.

TIMELINE

1958-1960s

An oil industry group, the American Petroleum Institute (API), began research on “gaseous compounds in the atmosphere to determine the amount of carbon of fossil fuel origin.”

1968

Stanford Research Institute completed a report commissioned by API titled “Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants.” The report concluded that atmospheric CO2 was rising, and that fossil fuel combustion was by far the most likely source. The study warned that increased atmospheric concentrations of CO2 would increase global average temperatures, and that there was “no doubt” that the potential damage to the environment could be severe. This information was shared with managers of both Defendants.

1970s-1980s

The fossil fuel industry studied the impact of fossil fuel combustion on the earth’s climate, and the industry’s own scientists repeatedly warned company executives that fossil fuel use would dangerously alter the climate. Both Exxon and Suncor participated in these activities.

1980s

Public awareness of climate change started to grow with discussion about the “greenhouse effect.”

1986-1992

Exxon’s research team examined the positive and negative effects that a warming Arctic would have on oil operations.

1988

The United Nations created the Intergovernmental Panel on Climate Change, a scientific and intergovernmental body dedicated to providing an objective view on climate science and the impacts of climate change. The IPCC becomes the leading and most credible authority on climate science. Since that time, the IPCC has published five assessment reports (1990, 1995, 2001, 2007, and 2014) reviewing the latest in climate science. The first report concluded that there was scientific certainty that human-caused emissions were substantially increasing greenhouse gas concentrations in the atmosphere, leading to rising average temperatures. By the fourth report in 2007, the IPCC emphasized that “warming of the climate system is unequivocal,” that there was a greater than 90% probability that the warming was due to human activities, and that the impacts were already evident.

Late 1980s – 2000s

The fossil fuel industry, led in large part by the American Petroleum Institute, created several entities whose mission is to cast doubt on climate science. Examples include the Global Climate Coalition created in late 1980s and the Global Climate Science Communications Team created in late 1990s. The industry also commissioned a number of scientists to publish papers casting doubt on climate science and attack the IPCC, such as Fred Seitz and Fred Singer.

1992

World leaders came together to create the UN Framework Convention on Climate Change. Over 130 countries will sign onto this treaty.

1990s-2000s

Exxon, Suncor, and other members of the fossil fuel industry spent millions of dollars and participated in initiatives to cast doubt on climate science. API leads many of these efforts to cast doubt on climate science. Exxon and Suncor are active members of API.

1996

While building offshore exploration facilities in Canada, Mobil Oil (now Exxon) made structural adaptations to account for rising temperatures and sea-level rise.

2006

Several polls found that a significant percentage of the American population doubted climate change, despite the scientific consensus at the IPCC. Time Magazine found that only 56% of Americans thought global temperatures had risen; ABC found that 80% believed global warming was “probably happening,” but 64% did not believe the science was settled, perceiving “a lot of disagreement among scientists”; Pew Research Center found that only 41% believed human activity caused global warming.

2008

A Pew Research Center poll found that only 44% of Americans believed there was solid evidence that global temperatures are rising. Only 47% said that temperatures are rising as a result of human activity, such as burning fossil fuels.

2009

In a sharp decrease from the previous year, a Pew Research Center poll found that only 35% of Americans believed there was solid evidence that global temperatures are rising. Only 36% said temperatures are rising as a result of human activity, such as burning fossil fuels.

2015

It came to light that a leading climate denial voice, aerospace engineer Wei-Hock (Willie) Soon at Harvard-Smithsonian Center for Astrophysics had received, but not disclosed, over $1.2 million from Exxon, API, and other fossil fuel interests in 2001-2012. His funders were given the right to review his work before it was published.

In September, a series of investigative reports by InsideClimateNews and the Los Angeles Times reviewed internal Exxon documents that disclosed that the company had known for decades about the dangers of climate change and then spent millions of dollars to create doubt and spread misinformation about climate science.

In November, the Attorney General of New York launched an investigation into Exxon to see if the company lied to the public about the risks of climate change and to investors about the implications of climate change on the oil business.

2016

In April, the Attorneys General of Massachusetts and the U.S. Virgin Islands began similar investigations into Exxon.

2017

In July, three communities in California–San Mateo County, Marin County, and Imperial Beach–filed separate lawsuits against 37 fossil fuel companies seeking compensation for the costs of adapting to sea level rise and other climate impacts.

In September, the California cities of San Francisco and Oakland filed lawsuits against five fossil fuel companies seeking compensation for the costs of adapting to sea level rise and other climate impacts.

In December, the California communities of Santa Cruz and Santa Cruz County filed a lawsuit against 29 fossil fuel companies seeking compensation for the costs of adapting to sea level rise and other climate impacts.

2018

In January, New York City filed a lawsuit against five fossil fuel companies seeking compensation for the costs of adapting to sea level rise and other climate impacts. The City of Richmond in California also files a similar lawsuit against 29 fossil fuel companies.

In April, Boulder County, San Miguel County, the City of Boulder and EarthRights International filed a lawsuit in Colorado State court against Exxon and Suncor.

In June, Plaintiffs filed an amended complaint. Later that month, Suncor and Exxon filed a motion to remove to federal court.

In August, Plaintiffs filed a remand brief to return the case to Colorado State court.

2019

In September, federal judge William J. Martinez ruled that the case should proceed in Boulder County District Court.

Defendants appealed that decision to the Tenth Circuit: Plaintiffs moved to dismiss the appeal for lack of jurisdiction; and the merits of Defendants’ appeal were fully briefed in January 2020. Several cities, States, and other groups submitted amicus briefs in support of Plaintiffs.

After the federal district court ordered remand, Defendants asked for a stay while their appeal to the Tenth Circuit was resolved. Their request for a stay was denied by the district court, the Tenth Circuit and the Supreme Court.

With the stay denied, Plaintiffs’ case was returned to Colorado State court, where Defendants filed motions to dismiss for failure to state a claim and for lack of jurisdiction in December. Plaintiffs opposed these motions.

2020

In June 2020, the parties presented oral argument on the defendants’ motions to dismiss before the Boulder District Court, as well as on Suncor’s motion to transfer venue.

In July 2020, the Tenth Circuit Court of Appeals affirmed the federal district court’s decision remanding the case to Colorado State court.

2021

In January, the Colorado state court partially granted Suncor’s venue transfer motion, splitting off the claims filed by San Miguel County. In March, the San Miguel County case was transferred to the Denver District Court.

On May 24, the Supreme Court granted the fossil fuel Defendants’ petition for writ of certiorari and vacated the Tenth Circuit’s judgment affirming the remand order. The Supreme Court ordered the Tenth Circuit to reconsider other potential grounds for removal jurisdiction, apart from federal officer removal, in light of the Supreme Court’s May 17, decision in BP, P.L.C. v. Mayor and City Council of Baltimore.

In state court, the cases were largely stayed, although the parties filed supplemental briefs on new decisions by other courts.

2022

In February, the Tenth Circuit issued a decision once again finding that the case belonged in state court. In June, Defendants filed a petition for writ of certiorari seeking the Supreme Court’s review of the Tenth Circuit’s decision. In October, the Supreme Court invited the Solicitor General to submit a brief expressing the views of the U.S. government.

In state court, the cases remained largely stayed.

2023

In March, the Solicitor General filed its invited brief with the Supreme Court, agreeing with Plaintiff municipalities that the case – and other similar climate cases filed in state courts around the country – belonged in state court. Noting that there was not disagreement among the circuit courts of appeal that had heard and decided the removal issues in question, the Solicitor General recommended that the Supreme Court deny fossil fuel companies’ petition and thus allow the case to move forward in state court in Colorado.

In May, the Supreme Court denied the oil companies’ petition for review, finally clearing the way for the cases to move forward in state court. The parties submitted supplemental briefs to both the Boulder and Denver courts in August.

2024

In February, EarthRights attorneys and co-counsel representing Boulder County and the City of Boulder in the lawsuit appeared in court to refute motions to dismiss from the fossil fuel companies.

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