By Karen Savage
Exxon and Suncor have filed an extraordinary appeal with the U.S. Supreme Court to prevent a climate liability suit filed by three Colorado municipalities against it from going to trial in state court.
The companies on Thursday filed an application asking the high court to recall—or reverse—U.S. District Judge William J. Martinez’s order sending the case to state court. It is thought to be the first time such a request has been made at this stage of a lawsuit.
“The oil companies are really pulling out all the stops, and asking for unprecedented action by the courts, in order to keep this case away from a local Colorado court and jury,” said Marco Simons, general counsel for EarthRights, who is representing the communities along with the Niskanen Center, a libertarian think tank, and Denver attorney Kevin Hannon.
Following a pattern similar to other climate liability cases, Exxon and Suncor have filed repeated appeals to higher courts to keep the case in federal court, which they believe is more favorable to them. In this case, they are using an extraordinary step of asking for the Supreme Court to recall an order by a local court because they have exhausted their avenues for halting the case.
The companies filed a motion to stay in September, but Martinez declined to pause the case, prompting the companies to file an emergency motion to stay, which he also rejected. Exxon and Suncor then tried their luck with the Tenth Circuit, filing another emergency motion to stay, but the appellate court shot down that motion last week.
The city and county of Boulder and the county of San Miguel allege that Exxon and Suncor have known for decades that their products contribute to climate change, but deliberately downplayed that risk to policymakers and the public. In the suit, which was filed last year, the communities assert state law claims of public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act and civil conspiracy and are seeking to force the companies to help pay for the costs of climate change impacts.
It is similar to suits filed by Rhode Island and Baltimore, which also involve public nuisance claims and allege that fossil fuel companies have known for decades that their products drive climate change but deliberately failed to inform the public about those risks.
Exxon, which is facing trial for climate fraud in New York starting Tuesday, is named in each of the three suits, which have proceeded further than any of the dozens of climate liability suits filed across the country.
In an effort to avoid facing trial—and a potentially damaging discovery process—in state court, defendants in the Baltimore and Rhode Island suits have appealed to the Supreme Court, asking it to extend stays in those cases while they argue their appeal that the cases should be returned to federal court.
They have also indicated that if that appeal is denied, they will ask the Supreme Court to weigh in.
Exxon and Suncor want to halt the proceedings in Colorado while they appeal the ruling returning the case to state court, but aren’t able to ask for an extended stay because their motions to stay have all been rejected.
Instead, they are asking the Supreme Court to recall the order returning the case to state court pending appeal and pending jurisdictional decisions in the Baltimore and Rhode Island suits.
In a statement, a Suncor spokesperson said the company believes the Colorado lawsuit is polarizing and counterproductive. “Climate change is a global issue that needs to be addressed collectively, and Suncor has long contributed to that effort,” the spokesperson said.
Doug Kysar, a deputy dean and professor at Yale Law School, said while the request by Exxon and Suncor is extremely unusual, it may not be effective, at least not at this stage.
“To me, this reflects a sense on the part of the fossil fuel defendants that the Roberts court is so decidedly pro-business that it will pay no heed whatsoever to orderly procedure,” Kysar said.
“But I don’t think the conservative justices will take the bait—there will be plenty of opportunity for them to weigh in on the cases after they have percolated in lower courts, federal and state.”