Colorado has abundant evidence of destruction caused by the warming, more volatile climate. Wildfires, ever larger and more destructive, now happen year-round — including the ghastly Marshall Fire of late December and the much smaller fires of recent weeks. Rising temperatures have robbed flows from the Colorado River, from which Boulder and Boulder County get substantial amounts of water. Air conditioning has become more necessity than luxury.
But can Boulder and other jurisdictions show harm from burning of fossil fuels — the primary cause of global warming — in their climate liability lawsuits against oil companies?
In 2018, Boulder (both the city and the county) as well as San Miguel County sued two oil giants, ExxonMobil and Suncor. These Colorado cases are among more than 20 climate lawsuits now in courts from Hawaii to Massachusetts. They’re the only cases from an inland state claiming actual damages from climate change — and after a recent legal victory, they could be among the first where substantive arguments are heard in court. (Only Honolulu’s case is on a faster track.)
Despite all the evidence of climate destruction, the legal case will be challenging, according to Pat Parenteau, a professor of environmental law at Vermont Law School.
“In a court of law, you have to prove by the preponderance of evidence and you have to convince the jury, all 12 of them,” says Parenteau, who has advised some parties who filed similar lawsuits, but is not currently involved directly in the litigation.
He points to the difficulty of pinning health impacts on tobacco companies in the 1990s. “Cigarettes kill people. Global warming, per se, kills people: Heat waves kill people. High tides kill people.”
Proving responsibility in a courtroom will be the tricky part. “There are multiple links in the causal change that you have to prove with climate change,” Parenteau says. “It was difficult enough to prove with tobacco. It never was proven [in court]. It was just settled. Just imagine how difficult it is for climate change.”
A legal victory: Home court matters, but how much?
Suncor operates a refinery in Commerce City northeast of downtown Denver that processes 98,000 barrels of oil daily. “We purchase crude oil from the Denver-Julesburg Basin, process it in Commerce City, and sell nearly 95% of our products within the state,” Suncor’s website says.
Exxon has no refinery in Colorado, but it does sell fuel in the state.
“They are the two most consequential oil companies in Colorado, given their local operations,” says Marco Simons, the lead attorney with EarthRights International, the organization representing the three jurisdictions in Colorado.
So far, the arguments in the Colorado cases (and others) have been about process — namely, where the cases should be tried.
In legal cases, as in basketball, home court matters. This is likely why Exxon and Suncor wanted lawsuits filed against them by Boulder and San Miguel heard in federal courts instead of Colorado district courts.
“Basically, their argument was that you can’t let state law allow these people to seek remedy before climate change injury when federal law doesn’t provide that remedy,” Simons explains.
The oil companies lost that round. The U.S. Court of Appeals for the 10th Circuit ruled on Feb. 8 that the two lawsuits should be heard in Colorado. The court then ordered, on March 2, for that mandate to take effect.
“The court is basically saying there’s nothing wrong with using ordinary state law to hold oil companies accountable for their contribution to climate change,’” says Simons. “That does not in any way violate federal law. It’s not something inappropriate for states to do.”
Parenteau agrees there is value to the climate cases being heard in state courts. The empirical evidence is clear: “Where do the states and cities find the best success? It’s in their own courts. The faster these cases get back to state courts from federal courts, the better.”
Colorado’s cases, originally filed as one, have been separated. San Miguel County’s case is to be heard in Denver District Court, and the Boulder and Boulder County case in Boulder County District Court.
‘They just need one good victory to hang their hats on’
But home-court advantage goes only so far. Attorneys for EarthRights International must now prove that the fossil fuels sold by Suncor and ExxonMobil in Colorado have produced damages from a changing climate to the local jurisdictions.
While many legal analysts say that will be difficult to prove, some observers think the Colorado lawsuits could be successful, even short of total courtroom victories.
One person making that case is Cara Horowitz, co-executive director of the Emmett Institute on Climate Change & the Environment, a program embedded in the law school at the University of California Los Angeles. She has coordinated with counsel for several jurisdictions in California that filed climate change lawsuits in 2017, but is no longer involved in those other climate liability cases.
“On an even more deep level, one goal that the plaintiffs have across the set of cases is undermining the social license of the corporations to do what they have been doing for decades,” says Horowitz. “They just need one good victory to hang their hats on.”
That could help supporters of these suits win verdicts in the court of public opinion.
Neither Suncor nor Exxon responded to requests for comment, but the premise of the fossil fuel companies is that they have been doing nothing wrong by peddling gasoline, diesel and other fossil fuel products.
‘If you harm someone, you have to pay for it’
Climate change-related lawsuits have been filed since the mid-1980s. Early lawsuits generally sought to force actions by state governments and federal agencies. The most notable such case is Massachusetts v. EPA, which resulted in the Supreme Court’s landmark 2007 decision that gave the U.S. Environmental Protection Agency authority to regulate carbon pollution under the Clean Air Act. Other lawsuits, such as Connecticut vs. American Electric Power in 2011, targeted energy companies. For complex legal reasons, these cases using federal courts have struggled to go forward.
Investigative reports in 2015 by Inside Climate News and independent work by the Los Angeles Times about ExxonMobil, the world’s largest oil and gas company, were important in triggering the wave of lawsuits of the last five years. The journalists showed that the oil giant misled the public about what it knew about climate change and the risks posed by fossil fuel emissions decades ago. The investigative series were based largely on the company’s internal records.
Since then have come a wave of lawsuits by state and local governments.
California jurisdictions — first Marin and San Mateo counties, along with the city of Imperial Beach in July 2017, followed by Oakland and San Francisco that September — were at the forefront of suits by state and local governments. Currently pending are lawsuits filed by seven states and the District of Columbia and 19 by cities and counties, according to the Center for Climate Integrity.
These lawsuits fall into primarily two overlapping buckets. The two cases in Colorado fall into both.
In one bucket of lawsuits are claims of fraud and deception by oil companies, primarily by Exxon. The second bucket consists of suits alleging the oil companies have created “nuisances” that have caused damages. In the Colorado cases, local governments have suffered harm as a result, the lawsuits say.
“It’s about fundamental principles of tort law that basically boil down to, ‘If you harm someone, you have to pay for it,’” explains Simons, the EarthRights attorney.
The 2018 lawsuits for the Colorado jurisdictions cite many climate impacts from fossil fuels. Rising temperatures will affect water supplies. Emergency management services will have to be ramped up because of increased wildfires, heavy rainfall and other extreme weather events. Warmer temperatures will worsen the already problematic ground-level ozone in Boulder County.
Some increased costs have already occurred, the lawsuit filed by the three Colorado jurisdictions in 2018 says. It points to the West Nile virus spread by mosquitoes amid rising temperatures. Prior to 2002, Boulder had no mosquito control program. That was the year the virus first appeared in Colorado. After that, costs of mosquito abatement grew steadily. By 2018 mosquito management nicked the city budget roughly $250,000. In Boulder County, the cost approached $400,000.
Buildings will have to be modified, the combined lawsuit says. “Due to the expected continued heat rise in Boulder County, a place that historically rarely saw days above 95 degrees, Boulder County and the City of Boulder are expected to see increased public health heat risks, such as heat stroke, and their associated costs.”
This increasing heat, the lawsuit continues, will drive up costs, such as that of cooling infrastructure for buildings. “Cooling centers that are available during heat waves, and/or assisting with home air-conditioning installation, could cost Boulder County and the City of Boulder millions of dollars by mid-century.”
The lawsuit cites the $37.7 million of a $575.5 school construction bond for the Boulder Valley School District used for air-conditioning and better ventilation.
How the Colorado cases are different
Colorado’s lawsuits were the first filed in an interior state. Even now, the only other states without coastlines to have filed climate change lawsuits against oil companies are Minnesota and Vermont. They claim fraud. That makes the Colorado cases the only ones claiming damages.
This duality, an inland state claiming actual damages from climate change, sets Colorado’s cases apart from all others.
“It’s easy to imagine a city like Miami or other coastal cities being imperiled by climate change,” says Horowitz, the UCLA law professor. “The Boulder case is helping to illustrate that even inland cities, cities in the middle of America, are being harmed by climate change.”
One long-sought goal of the litigation is getting to what in courts is called the discovery phase. That’s the stage where documents, emails, other correspondence and information related to the suits could reach the public and prove devastating to the company. (That is essentially what happened to the tobacco industry, with the release of memos and documents in discovery.)
Horowitz, the law professor in Los Angeles, expects the filings and rulings to accelerate. “You will start to get state court decisions sooner rather than later, by which I mean probably in the next year,” she says. Appeals will follow, but these Colorado cases — and those similarly proceeding in other states — will move along.
“I wouldn’t think it will take five to 10 years,” she says.
And the fact that Colorado has no beachfront property could spur other similar cases. Sea level rise is not imminently threatening Boulder the way it is in Imperial Beach, a city of 26,000 people near San Diego that has also filed a climate change lawsuit.
“I wouldn’t be surprised if more jurisdictions realize they will need help in funding climate change adaptation,” Horowitz says. “And the fossil fuel companies are logical places to look as sources for that funding.”
This article was published as part of a collaboration between the Boulder Reporting Lab and Big Pivots, a nonprofit that covers energy and other transitions in Colorado and beyond, made necessary by climate change. Big Pivots is published by Allen Best. Subscribe for free at BigPivots.com.