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. 

In addition to the Fourth Circuit’s Baltimore ruling, the Ninth Circuit similarly sent a set of suits filed by California communities back to state court. 

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. 

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.