By Karen Savage
The Tenth Circuit Court of Appeals upheld a lower court ruling that a Colorado climate liability lawsuit against ExxonMobil and Suncor belongs in state court.
A three-judge panel decided unanimously, avoiding a conflict with other circuit rulings —at least for now—and reducing the likelihood that the Supreme Court will step in at this stage. Chevron and other companies have asked the high court to review a similar ruling by the Fourth Circuit in a case filed against them by Baltimore. Had the circuits come to different conclusions instead of agreeing these cases should be in state court, the Supreme Court might have felt compelled to weigh in.
Instead, the communities filing these suits have won a wave of victories in keeping them in state courts. The fossil fuel companies named in nearly two dozen of these lawsuits have tried repeatedly to get the cases heard in federal court, where they have historically had a better chance at shaking them.
So far, they’ve struck out.
The First Circuit is also considering whether Rhode Island’s lawsuit against many of the same companies should stay in state court after a district court ordered it there.
“Federal courts have consistently ruled that these climate cases belong in state courts—which makes sense because these cases are about harms experienced at the local level,” said Marco Simons, general counsel of EarthRights International, which is representing the Colorado municipalities.
The Colorado case was filed in 2018 by the City of Boulder and the counties of Boulder and San Miguel, claiming Exxon and Suncor violated state laws involving public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act and civil conspiracy. After a district court ruled the case belongs in state court, Exxon and Suncor appealed, relying heavily on the Federal Officer Removal Statute, which grants federal courts jurisdiction over civil actions directed at the United States or any federal official. They argued that because they sold or extracted fossil fuels under government contract, they operated as federal officers.
The Tenth Circuit was not persuaded.
“Here, ExxonMobil is not tailoring its output to detailed federal formulations customized to meet pressing federal needs. Rather, it is leasing federal land to facilitate commercial production of a standardized, undifferentiated consumer product,” the appellate court wrote.
Exxon and Suncor initially presented several other arguments to support their quest for federal court. All were rejected by the district court and both the fossil fuel companies and the Colorado municipalities seemed to agree that if presented alone, those arguments would not be eligible for appellate review.
Exxon and Suncor, however, maintained that an obscure statute rendered all of their arguments eligible for review when presented along with the federal officer removal argument, a contention the Tenth Circuit judges rejected.
“We hold, however, that [the statute] limits our appellate jurisdiction to just one of them—federal officer removal,” Justice Carolyn B. McHugh wrote in the order.
Exxon spokesperson Casey Norton said the company is “reviewing the decision and evaluating next steps.” Suncor did not immediately respond to a request for comment.
The municipalities allege that Exxon and Suncor have known for decades that their products contribute to climate change, but have deliberately downplayed that risk to the public. They are seeking to force the companies to help pay for the costs of climate change-related impacts.
The case is currently proceeding in state court.
“Our clients have a responsibility to their constituents to prepare for the rising costs associated with the changing climate,” Simons said.
“This lawsuit is an important effort to help reduce the financial burden of the climate crisis on Colorado communities, who now must invest considerable resources in cleaning up the fossil fuel industry’s mess.”