In oral arguments presented by telephone due to the coronavirus pandemic, the next chapter in the city of Boulder and Boulder County’s lawsuit against several fossil fuel companies seeking compensation for the cost of combating the effects of climate change played out before the United States 10th Circuit Court of Appeals in Denver this week.
Kevin Hannon, a Denver-based attorney representing the Boulder governments, and the third plaintiff to the suit, San Miguel County, said arguments were presented in about 35 minutes Wednesday to a three-judge panel of the 10th Circuit. Under appeal by the corporate defendants in the case is the ruling in September by U.S. District Court Judge William J. Martinez, which sent the matter back to Boulder District Court, where it was originally filed in April 2018.
The defendants in the case, Exxon Mobil Corporation, Suncor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., and Suncor Energy Inc., had previously successfully moved in June 2018 to have the venue switched from state court in Boulder to federal court; federal courts have proved more favorable ground for oil and gas companies in some similar cases elsewhere in the U.S. The Boulder/San Miguel case is the first climate change lawsuit seeking to hold the extraction industries accountable for the cost of coping with climate change from a landlocked state.
The Boulder climate change case was heard in just the second day of the justices’ handling their docket by telephone.
Arguments on behalf of the city and two counties were made by Rick Herz, senior litigation attorney for Washington, D.C.-based EarthRights International. Marco Simons, that organization’s general counsel, was listening in on the arguments, and said on Thursday that much of the debate was around whether the 10th Circuit could even properly hear arguments over venue, at this point. Simons maintained that litigants only have “a very limited ability to appeal, from orders sending a case back to state court.”
Simons said the companies also argued “It should be in federal court because, in their view, matters concerning climate change implicate lots of federal policies and concerns, and therefore they should be in federal court. And in our view, that’s just, first of all, not true. But second of all, that’s not enough for federal jurisdiction because of the implications for climate policy that happen at the state level every day, without any problem.
“State courts commonly hear all kinds of claims that may have national or even international implications that concern nationwide practices or global practices. And that just does not qualify them for federal” court. He cited, as one example, litigation concerning the opioid epidemic, which has ravaged many parts of the country, that has occurred in state courts.
In support of the defendants, Phil Goldberg, Special Counsel to the Manufacturer’s Accountability Project, said in a statement, “The most telling moment from (Wednesday’s) climate litigation hearing in the Tenth Circuit is when the lawyer for Boulder County acknowledged that this lawsuit was about going after the worldwide sales ‘across the entire enterprises’ of energy manufacturers.
“Trying to regulate worldwide sales of energy through tort liability is not the role of the courts or state law. Selling Coloradans the energy needed to power their homes, businesses and communities is not unlawful. There is no doubt that we need to mitigate global climate change, but scapegoating energy manufacturers and using state tort law for this shared global challenge is baseless and not productive.”
Goldberg said that if Boulder officials “really want to do something about climate change, rather than just try to score local political points, they should work with manufacturers on energy innovations. Innovation and collaboration, not litigation, is the only way to make a real difference for Colorado in the fight against global climate change.”
Hannon said it is not known when the appellate panel will rule on the arguments it heard Wednesday. Simons suggested a window as broad as between “two weeks to 12 months” could be possible.
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