By Karen Savage
A Colorado climate liability lawsuit brought by the city and county of Boulder against ExxonMobil and Suncor will proceed in Boulder County Court, a judge ruled this week.
Boulder, along with the county of San Miguel, alleges 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.
Exxon and Suncor have tried repeatedly to thwart the suit, including by trying to get it moved to Denver, instead of where the suit was filed.
Boulder County District Court Judge Judith LaBuda strongly rejected Suncor’s latest attempt to argue that the entire case should be heard in Denver based on a contract with the county that was updated after the case was filed.
Suncor, a Canadian oil company, operates a refinery in Commerce City, which is located in San Miguel County. The clauses the company relied upon were inserted into an asphalt supply contract the company has with the county.
“Suncor USA was prohibited from directly communicating with San Miguel County about any matter related to this lawsuit, let alone binding it to a venue-altering contract provision,” LaBuda wrote in the ruling, which was released Monday.
LaBuda in the same ruling granted a request by Suncor to have certain claims brought by San Miguel heard in San Miguel County, where the alleged harms occurred.
That means portions of the case, which was filed jointly by the three communities, will be heard in different venues. Because ExxonMobil did not join Suncor on the motion, San Miguel County’s claims against Exxon will continue to proceed in Boulder County.
“The court here properly ruled that claims for climate injuries can be heard where the injuries occur, rather than in the companies’ chosen forum—and soundly rejected Suncor’s tactics,” said Marco Simons, general counsel for EarthRights International, which is representing the municipalities in this case. “We do believe that it makes sense to hear the whole case together, however, and we continue to review this decision.”
In the suit, which was filed in 2018, the communities say the companies violated state laws involving public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act and civil conspiracy. They are seeking compensation from the companies to pay for the costs of climate change impacts.
LaBuda made plain her disdain for Suncor’s attempt to influence the venue.
“Because Suncor USA and San Miguel County were adverse litigants at the time the [updated contracts] were signed, Suncor USA had a professional obligation to communicate through counsel about all litigation-related matters,” LaBuda wrote.
“Suncor USA failed to alert counsel for San Miguel County that they included litigation-affecting language in the contracts but rather presented the contracts to a San Miguel County representative who was not involved with this pending litigation,” LaBuda added. “Suncor USA knew or should have known that the representative had not discussed the issue with counsel representing San Miguel County in this underlying litigation because Suncor USA themselves had not alerted opposing counsel of the inserted provisions.”
This is not the first allegation of improper communication by the fossil fuel companies named in the suit. Two Exxon public relations strategists in 2019 posed as reporters in an attempt to interview Simons.
At the time, the strategists—Michael Sandoval and Matt Dempsey—were employed by FTI Consulting, a firm long tied to Exxon and the oil and gas industry. The duo are also listed as writers for Western Wire, a website by the Western Energy Alliance, a regional oil and gas association of which Exxon was a member as recently as 2019.
Their call was potentially a violation of ethics rules for both the legal and public relations industries, and appeared to be a fishing expedition for information about the Colorado communities.
In light of the recent ruling, San Miguel County attorney Amy Markwell said the county is looking forward to holding the companies accountable for damage they have done to the climate.
“We are pleased that the court saw through Suncor’s attempt to use a routine supply contract to affect this litigation,” Markwell said in a statement.
Boulder County and the City of Boulder said they are pleased that Exxon and Suncor will be judged by a jury of local residents.
“After a year of climate-fueled wildfires and poor air quality, it is clear that the climate crisis is profoundly affecting our communities.”