Washington D.C., April 10, 2023 – With the U.S. government and the unanimous decisions of 20 federal appellate judges supporting them, three Colorado communities urged the Supreme Court today to allow their climate lawsuit against Big Oil to proceed in state court.
Boulder County, the City of Boulder, and San Miguel County, which sued oil companies Exxon and Suncor in 2018, were recently assisted by a U.S. government brief that agreed that their cases should continue in Colorado state court. In their own supplemental brief last week, the oil companies charged that the government’s brief – which the Supreme Court specifically requested – should be ignored because it is political, claiming that the government has reversed itself from positions that were more friendly to Big Oil under the Trump administration. A brief filed today by the Colorado communities refutes this attack on the integrity of the government.
“The United States has examined the law and concluded that our position is correct,” said Marco Simons, General Counsel for EarthRights International, which represents the Colorado communities. “The oil companies have lost their argument in every court that has heard it. It would be far more surprising if the U.S. government departed from the unanimous view of six federal appellate courts. This is a legal analysis – and a correct legal analysis – not a political position.”
The Trump administration, which at one point included former Exxon CEO Rex Tillerson in the President’s cabinet, previously took positions that were out of step with the emerging judicial consensus that the cases could proceed in state court. Since then, that consensus has solidified; every court decision in the past three years has agreed that these climate cases can be heard in state courts.
“If politics affected any positions of the U.S. government, it was the prior positions of the famously oil-friendly Trump administration,” said Simons. “But what’s more likely is that the government simply revised its views in light of the wave of appellate decisions on our side.”
The Colorado communities argue that Big Oil, which made billions of dollars selling fossil fuels while concealing and misrepresenting the dangers of the profligate fossil fuel use they promoted, should share some of the responsibility for the costs of climate injuries. The companies’ first response has been to try to force the climate cases into federal court – where, they say, the communities have no remedies. The Tenth Circuit Court of Appeals, like every other federal court, rejected this argument last year, and the oil companies sought review from the Supreme Court.
The Supreme Court could decide the petition within two weeks; if the justices decline review, the communities’ lawsuits will move forward in Colorado state court.
At the Supreme Court, the Colorado communities are now represented by Kevin Russell of Goldstein, Russell & Woofter LLC, which also runs the popular SCOTUSblog website. The Niskanen Center and The Hannon Law Firm, LLC, are also representing the communities.
At the Supreme Court, the case is Suncor Energy (U.S.A.), inc., v. Board of County Commissioners of Boulder County, No. 21-1550.
Learn more about the case.
Read communities’ reactions to the recent U.S. Government brief.
Kate Fried, EarthRights International