The U.S. Supreme Court recently announced it would hear jurisdictional arguments stemming from Baltimore’s climate litigation case, a move that could have a ripple effect for many of the similar cases pending nationally including the lawsuit filed by the City and County of Boulder and San Miguel County.
The question before the Supreme Court is very technical in nature but will ultimately help determine whether public nuisance and climate lawsuits belong in state or federal court. To date, the U.S. Circuit Courts have handed down mixed rulings on the matter.
The plaintiffs – states and municipalities – have pushed for these cases to be heard in state court where they believe they have a higher chance of success. Defendants, on the other hand, praised the Supreme Court’s move as they’ve argued that energy policy is an inherently federal issue and thus should be heard by federal courts. The Washington Post notes that these companies are favored if the cases are “heard instead in the federal judiciary, where precedent indicates they will very likely prevail.”
This issue has defined the recent legal battles in Boulder’s lawsuit against ExxonMobil and Suncor Energy over climate change damages. The companies had fought for the case to be heard in federal district court but the U.S Circuit Court of Appeals for the 10th Circuit in Denver ruled in July that the appropriate venue was the Boulder District Court.
The news from the Supreme Court follows a new report released by the Manufacturers’ Accountability Project that sheds light on the extensive coordination among plaintiffs lawyers, activists, and wealthy foundations that have supported these climate lawsuits.
The report, “Beyond the Courtroom” highlights how this national campaign found a foothold in Colorado through major financial assistance from foundations based on the East Coast.
“The Washington, D.C.-based Niskanen Center launched in 2015 as a libertarian think tank, but stopped identifying with libertarianism three years later. Niskanen has received funding from philanthropies engaged in environmental advocacy such as the Hewlett Foundation and the Open Society Foundation. Niskanen also received a $200,000 grant ‘for its climate program’ in February 2018 from the Rockefeller Brothers Fund,” the report stated.
Though not publicly confirmed, the donations appear to have supported legal efforts in the Boulder case.
“The grant from the Rockefeller Brothers Fund was well-timed. In April 2018, the Niskanen Center joined with EarthRights International and the Denver-based Hannon Law Firm as counsel for the City and County of Boulder and San Miguel County in Colorado in filing a public nuisance lawsuit against ExxonMobil and Suncor Energy, a Canadian oil producer,” the report continued.
While the legal teams for the plaintiffs claim that municipalities bear no financial costs, Western Wire’s investigative reporting has shown that taxpayers do in fact carry financial burden associated with bringing these lawsuits forward.
Yet, despite the support from out-of-state forces, Colorado’s Democratic elected leaders have not expressed support for Boulder’s case. During the 2018 campaign, Gov. Jared Polis declined to endorse the lawsuit. Going even further, Attorney General Phil Weiser said, “so I’m uncomfortable with that litigation because the case for it hasn’t been made.” Conservation Colorado, a leading environmental group, also did not back the lawsuit.
