Western Wire

Energy producers and named defendants in Boulder’s climate lawsuit argue the case should remain in federal court as opposed to state court in a brief filed with the U.S. District Court for the District of Colorado. The brief was filed in response to a motion by Boulder County, the City of Boulder and San Miguel County to remand the case back to Boulder County District Court, where the plaintiffs had initially filed their complaint last April.

“This case belongs in federal court because it threatens to interfere with longstanding federal policies over matters of uniquely national importance, including energy policy, environmental protection, and foreign affairs,” reads the brief.

The document marks the latest in a legal back-and-forth to determine where the case will ultimately be heard. The lawsuit targets Suncor and ExxonMobil alleging the two companies are responsible for damages related to climate change and seeks compensation for the communities bringing the suit. The venue for the lawsuit could very well determine the outcome since federal precedent has typically been less favorable to similar climate suits.

Federal legal precedent on the issue of climate change liability hinges on a 2011 U.S. Supreme Court case, American Electric Power v. Connecticut. In an 8-0 ruling, the Court ruled that corporations cannot be sued under federal common law for their greenhouse gas emissions because Congress delegated that authority to the Environmental Protection Agency under the Clean Air Act.

The municipalities argue that the lawsuit should be heard at the state level because their claims do not reference federal statutes and the alleged damages are all Colorado-based, but the defendants took issue with this characterization.

“Although nominally focused on alleged environmental consequences within Colorado from increased fossil fuel usage, Plaintiffs’ claims predicate liability on emissions resulting from the eventual combustion of fossil fuels that Defendants produce or sell worldwide.”  This puts them at odds with federal policymaking on the environment and climate change, attorneys for the defendants argued.

Extending their argument, the defendants claim that the lawsuit addresses policy that is not local, but rather international in scope, and therefore is a question for federal courts and lawmakers.

“As the foregoing makes clear, this case is not just national in scope, but international. It is, after all, about global emissions. Plaintiffs seek to accomplish indirectly what they cannot do directly: reshape national economic and foreign policies by holding four energy companies liable for harms allegedly caused by worldwide fossil fuel production and the global greenhouse gas (“GHG”) emissions of countless nonparties,” reads the brief. “…Plaintiffs seek to hold Defendants liable for global conduct—the vast majority of which involved nonparties and occurred outside of Colorado.”

The brief also references the fate of similar climate cases that were filed in Oakland, San Francisco and New York City— all of which were ultimately heard in federal court and later dismissed.

“The Colorado court should follow the lead of federal judges in California and New York and keep the suit brought by Boulder and San Miguel County in federal court,” said Lindsey de la Torre, Executive Director of the Manufacturers’ Accountability Project, which is a project of the National Association of Manufacturers. “This issue requires a uniform national solution, not a patchwork of 50 different answers. This case should be kept in federal court and, consistent with precedent, dismissed.”

In addition to the New York City, Oakland and San Francisco cases, there are several other climate cases in various stages of adjudication filed by municipalities in California and Washington State as well as the State of Rhode Island.

In a separate court filing last month, ExxonMobil and Suncor pushed back against claims that they were at fault, noting that the plaintiff’s “alleged damages” were the result of “lawful, global conduct by innumerable parties.”

“Indeed, Plaintiffs Board of County Commissioners of Boulder County, Board of County Commissioners of San Miguel County, and City of Boulder combust fossil fuels—the alleged root cause of their injuries. Accordingly, albeit parties, Plaintiffs are by definition “at fault” for the alleged damages they claim to have sustained,” the September legal filing stated.