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Colorado Judge Rejects Oil Companies’ Attempt to Move Climate Case

Filed Under: Colorado Lawsuit, Liability Litigation

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.”

Big Oil Again Asks SCOTUS to Keep a Climate Suit in Federal Court

Filed Under: Colorado Lawsuit, Latest News

By Karen Savage

ExxonMobil and Suncor are asking the Supreme Court to reverse a ruling by the Tenth Circuit sending a climate liability suit filed against them by three Colorado communities back to state court.

In a petition filed earlier this month, Exxon and Suncor argue that since the high court has agreed to review a ruling by the Fourth Circuit in a similar case filed by Baltimore against several fossil fuel companies, it should not act on their request until it rules in that case.

Exxon and Suncor say both cases involve “materially identical facts.” They are asking the court to rule in favor of the companies in the Baltimore case, which is set for oral argument on Jan. 19, and to then “grant the petition in this case and dispose of it.”  

In both instances, the fossil fuel companies maintain the appellate courts erred by not reviewing all of their reasons for wanting the cases heard in federal court.

Pat Parenteau, a professor of environmental law at the Vermont Law School, said he is not surprised by the filing and said he wouldn’t be surprised if the companies being sued by Rhode Island file a similar petition. 

“The strategy is to emphasize the importance of consolidating these cases by issuing a sweeping decision that vests the federal courts with exclusive jurisdiction over all claims related to climate change damages,” Parenteau said. “That would be an unprecedented usurpation of the authority of state courts to adjudicate tort cases based on state common law.”

The Colorado case was filed in state court 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.

As has been the pattern in dozens of cases filed against them by municipalities across the country, the companies moved the case to federal court, where they think they have a better chance of shaking it. The Tenth Circuit later upheld a district court ruling that the case belongs in state court, where it was filed.

Similarly, Baltimore filed suit in Maryland state court in 2018 alleging ExxonMobil, Chevron, Shell, BP and several other fossil fuel producers and distributors violated multiple state laws, including its consumer protection law. In that instance, the Fourth Circuit ultimately upheld a lower court ruling that the case belongs in state court.

At issue is whether the appellate courts have properly reviewed the lower courts’ jurisdictional rulings.

The energy companies initially presented several arguments for having the cases heard in federal court. If presented alone, those arguments are ineligible for appellate review, however the companies contend that they are all eligible for review when presented along with an argument based on the Federal Officer Removal Statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official. The companies have claimed that because they sold or extracted fossil fuels under government contract, they operated as federal officers. 

Thus far, appellate courts—including the First, Fourth, Ninth, and Tenth Circuits—have rejected that logic.

“These companies are doing everything they can to delay any consideration of their liability for climate change harms,” said Marco Simons, general counsel of EarthRights International, which is representing the Colorado municipalities. 

“They’ve been fighting for over two years about what court should hear this case, while communities continue to suffer the impacts of climate change—Colorado faced its worst wildfires in state history this summer—without sufficient resources to respond to the problem.”

As Climate-Fueled Wildfires Worsen, Communities Wrestle With Paying the Costs

Filed Under: California Climate Lawsuits, Colorado Lawsuit, Liability Litigation

By Karen Savage

Pennie Opal Plant spent much of last weekend anxiously scanning the horizon for smoke from California’s growing wildfires, packing and repacking treasured items into her car, and trying to decide which to bring if she needed to evacuate.

Plant, the co-founder of Idle No More SF Bay, a group led by Indigenous women dedicated to climate activism, is no stranger to climate-fueled disasters, including California’s growing wildfire crisis. But for the first time ever, Plant was preparing to flee from the flames at a moment’s notice. She has lived in her home in Richmond for more than 20 years.

She left once last year because of the smoke—Plant and her husband both have respiratory conditions—but this was different. This time she was afraid if they left, she’d never see her home again. 

“I wanted to make sure that we all photographed everything, if we lose everything, here’s what we had, so proof for the insurance company,” Plant said. 

Fortunately for Plant, her husband, daughter and grandson who live with her, the immediate threat—lightning embedded in the remnants of Hurricane Genevieve that could have sparked an inferno in the dry canyon below—never materialized.

But hundreds of thousands of Californians who have been forced to flee their homes haven’t been so lucky. A record-breaking heatwave, exceptionally dry conditions and lightning from a rare thunderstorm—all made worse by climate change and happening during the Covid-19 pandemic—have fueled some of California’s largest wildfires.

The economic costs associated with the 2020 fires are still unknown, but by all estimates, the amount spent by municipalities to contain the fires is staggering. 

“And that’s not the total fire cost,” said fire ecologist Robert W. Gray, adding that wildfires cost far more than the taxpayers often realize because the costs don’t happen all at once.  

 “Colorado is still paying for the damages the Hayman Fire from 2002 did to its watershed—so the costs are really quite significant,”  Gray said. “Infrastructure damages can occur up to a decade afterward because we’ve taken vegetation off the site, we have a significant rainfall event on a burn scar, and out comes the watershed.”

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