By Dana Drugmand
Oil companies ExxonMobil and Suncor Energy are asking a Colorado court to dismiss a climate lawsuit filed against them last year by the counties of Boulder and San Miguel and the city of Boulder.
The companies filed a motion to dismiss the case late Monday in Boulder County District Court, where the case was initially filed in April 2018. As in other climate liability cases brought by municipal governments against fossil fuel companies, the companies are waging a jurisdictional battle to have the case heard in federal courts, where they have had success in getting similar cases dismissed. But over the past few months, several federal district judges, including in Colorado, have ordered the cases be sent back to state courts. The companies are appealing those orders while the cases proceed in state courts.
The four defendants in the Colorado case—Exxon, Suncor Energy USA, Suncor Energy Inc. and Suncor Energy Sales—filed four motions in the Boulder court. Exxon and Suncor Energy Inc. both filed motions to dismiss for lack of personal jurisdiction because the companies are headquartered outside of Colorado. Exxon is based in Texas while Suncor Energy, Inc. is a Canadian company. The three Suncor companies, two of which are based in Colorado, also filed a motion to transfer the case to Denver. All four defendants filed a joint motion to dismiss the lawsuit entirely.
The Colorado communities bringing the case want the companies to help pay for damages and costs associated with climate change, which are estimated to exceed $100 million by 2050. The case was brought under Colorado state law alleging claims of nuisance, trespass, unjust enrichment, civil conspiracy, and violation of the Colorado Consumer Protection Act. The communities say the companies not only significantly contributed to climate change, but misled the public on the consequences of using their products.
Exxon and Suncor pushed back against these claims with various defenses ranging from the notion that everyone is responsible for climate change and therefore no company can be held liable, to the idea that misleading advertising is speech protected by the First Amendment.
In its motion to dismiss for lack of personal jurisdiction, Exxon argued that anyone who uses fossil fuels is responsible for climate change. “Plaintiffs’ claims necessarily implicate innumerable third parties, including anyone who used automobiles, jets, ships, trains, power plants, heating systems, and factories since the dawn of the Industrial Revolution. As one federal judge considering similar claims recently recognized, ‘[e]veryone has contributed to the problem of global warming,’” Exxon attorneys wrote. The motion argues that as a Texas-based, multinational company incorporated in New Jersey, Exxon is not “at home” in Colorado.
Suncor Energy Inc., headquartered in Calgary, also filed a motion seeking to transfer the case to Denver County District Court, or alternatively to dismiss it altogether. Suncor argues that contracts between San Miguel County and Suncor governing the county’s purchase of petroleum products that come from Suncor’s Commerce City refinery stipulate that legal disputes be litigated in Denver. This motion for venue transfer was made while Suncor and Exxon are simultaneously arguing in the Tenth Circuit Court of Appeals that the case belongs in federal, not state, court. This apparent contradiction means Suncor is arguing state court in Denver is the proper venue while also saying the case should not be in state court.
Arguments for Dismissal
The joint motion to dismiss makes the familiar arguments that climate change is a worldwide phenomenon caused by countless actors, that federal common law governs the complaint, and that the allegations implicate and interfere with federal energy policy and foreign affairs. Defendants in other climate liability cases have made the same arguments.
Exxon and Suncor argue that the Colorado claims are both displaced and preempted by federal law. The companies point to previous climate change nuisance cases that courts have dismissed under federal common law. “Thus, as in AEP, Kivalina, Oakland, and New York, Plaintiffs’ claims are displaced by existing federal laws regulating GHG emissions,” the companies write.
They also repeat the assertion that these climate liability cases are about solving climate change, which the communities have vigorously denied. Such litigation, the companies argue, infringes on federal doctrines including federal foreign affairs power, separation of powers, the Commerce Clause, due process, and free speech. The free speech defense describes the issue of climate change as “controversial.” This argument ignores the fact that, outside of arguing these cases, the companies say they accept the overwhelming scientific consensus that fossil fuel burning is warming the atmosphere.
The companies argue that the communities cannot prove they caused climate change. They also say that “unreasonable conduct,” a key element of a nuisance claim, cannot apply to their conduct since fossil fuel production is not only legal but expressly encouraged by the federal government.
According to Exxon and Suncor, the Colorado plaintiffs’ fraud allegations under the state consumer protection statute are false because the alleged deception was not directed at consumers, there is no proof that statements made by industry groups like the American Petroleum Institute were attributable to defendants, and alleged deceptive statements are “protected commercial speech.”
The companies say there is no evidence that they acted with industry groups in a coordinated effort to mislead the public.
The Colorado plaintiffs have until February 6 to respond to the motion to dismiss. They also have until the end of this month to move for jurisdictional discovery.