By Karen Savage
The production and promotion of fossil fuels don’t cause climate change, an attorney for ExxonMobil claimed during a hearing held before a Colorado state court judge on Monday.
“The climate change effects of which the plaintiffs complain are caused by emissions. Not by production, not by promotion,” Exxon attorney Daniel Toal said in arguing for dismissal of a lawsuit filed against it and Suncor Energy by the counties of Boulder and San Miguel and the city of Boulder. The suit, filed in state court in 2018, alleges that companies knew for decades that their products contributed to climate change, but deliberately deceived the public about that risk and violated the Colorado Consumer Protection Act with their deceptive practices.
The municipalities contend the suit is not about regulating emissions.
“This case is about getting parties who are responsible to pay their fair share instead of foisting those costs onto local taxpayers,” argued Richard Herz, an attorney with EarthRights International, which is representing the plaintiffs.
In his arguments, Toal did not explain how greenhouse gas emissions, which are caused by the burning of fossil fuel products, could happen if not for the production, sales and promotion of oil and gas by Exxon and other companies.
The arguments were part of a lengthy hearing held remotely by Boulder District Judge Judith LaBuda on Monday to deal with motions filed by Exxon, Suncor Energy USA, Suncor Energy Inc. and Suncor Energy Sales.
Exxon and Suncor have tried repeatedly to get the case, which involves only state law claims, moved to federal court, where fossil fuel companies have had better luck getting similar suits dismissed. A U.S. District Court judge determined it did not involve federal issues and returned it to state court last year. The companies asked the Tenth Circuit Court of Appeals to review that decision. A hearing was held in May and the case is proceeding in state court pending a ruling.
Exxon and Suncor continued to try to shake the case on Monday, arguing that federal common law preempts the municipalities’ state law claims and urging LaBuda to dismiss the case.
“The plaintiff’s complaint is clearly about interstate air pollution,” said Toal, a partner with Paul, Weiss, Rifkind, Wharton & Garrison, which is representing Exxon, adding it is “nothing more than an emissions case in disguise,” which cannot be heard in state court.
Exxon, which is based in Texas and Suncor Energy Inc., a Canadian subsidiary of Suncor, both told the court that even if the case could be heard in state court, Colorado has no jurisdiction over them because they are based out of state.
Exxon attorney Justin Anderson, a partner with Paul Weiss Rifkind Wharton & Garrison, also denied that Exxon’s actions in the state impacted the state’s residents.
“Climate change would be happening with the same pace and same intensity” regardless of whether Exxon operated in Colorado, Anderson said, adding that climate change “depends on actions of billions of actors” independent of Exxon’s in-state actions.
Sean Powers, an attorney with EarthRights International, which is representing the plaintiffs, pushed back on that argument.
“Exxon’s in-state acts need to be considered along with ExxonMobil’s outside acts which have caused the harm,” Powers said, adding that the company’s alleged violations of Colorado consumer protection laws all exclusively took place within the state.
Suncor Energy USA and Suncor Energy sales, which are based in Colorado, accepted that the state has jurisdiction, but argued the case should be transferred to a Denver court.
Exxon maintained that its actions did not damage the municipalities, but contends that even if they did, they are not liable because the harm could not have been predicted.
“No adequate allegation that injury to plaintiffs from defendants conduct was reasonably foreseeable by the defendants,” Toal said.
Kevin Hannon, an attorney representing the Boulder government, said the harm inflicted by Exxon and Suncor was foreseeable, particularly because the oil companies themselves were researching their product’s dangerous impact on the climate as far back as the 1970s. Hannon also discounted any suggestion that the cases should be dismissed on jurisdictional grounds.
“The deceptions occurred here, the misrepresentation of their knowledge occurred here and in our jurisdictions. The unchecked sales that led to climate damage and harms occurred here,” Hannon said.
“These corporations chose to market and sell fossil fuels knowing that they would be combusted at levels that would alter the climate, these corporations chose to conceal their knowledge, these corporations chose to misrepresent the state of climate science so their unchecked sales of fossil fuels could continue,” he said.
“These choices caused the climate to be altered in Colorado in our jurisdiction, resulting in harms that occurred in our jurisdictions.”