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.

The full article can be read here.

A handful of California cities and counties want billions of dollars from the oil industry for the problems arising from climate change, and their far-reaching legal push is about to face a crucial test in a Pasadena courtroom.

On Wednesday, the Ninth U.S. Circuit Court of Appeals is scheduled to hear arguments from three counties and five cities, including San Francisco and Oakland, on why their lawsuits against several oil companies should proceed in state court rather than federal court. The widely watched challenges are thought to have better odds in state court.

The eight California communities behind the suits are at the forefront of a small but growing effort nationwide to hold oil companies financially responsible for rising seas, wildfires and other climate-related havoc. The new legal tactic, now being employed by New York, Baltimore and other cities and counties, comes as global warming has become a low priority during the Trump administration.

The decision on which court should settle the suits will directly affect only the California municipalities. In addition to San Francisco and Oakland, they include Richmond, Santa Cruz and Imperial Beach (San Diego County), and Marin, San Mateo and Santa Cruz counties. However, the rulings in Pasadena also feed into a national debate over court jurisdiction on the matter, which legal experts say may ultimately prompt the Supreme Court to weigh in on the climate issue.

The full article can be read here.

A New York judge last week soundly rejected a lawsuit by that state’s Attorney General that cuts the legs out from climate lawsuits by Massachusetts, Rhode Island, and other governments. The New York lawsuit, which sought up to $1.6 billion from ExxonMobil, was widely hailed as “the trial of the century” by those advocating legal action against energy manufacturers over climate change.   

Global climate change is one of the defining political issues of our time, and for good reason. There are urgent, widespread efforts to figure out how to mitigate the impacts of modern society on our planet. This includes sourcing and using traditional energy more efficiently, finding ways to capture or suppress the release of greenhouse gases, and developing sustainable renewable energy. 

Several years ago, some climate activists decided that the best way to try to steer this debate to their desired policies was to vilify energy manufacturers. Their goal, an internal email showed, was to get their friends in government to “delegitimize” the companies, their workers, and supporters as political actors. They met with then-New York Attorney General Eric Schneiderman, Massachusetts Attorney General Maura Healey, and several mayors around the country. 

What followed was a series of investigations and lawsuits seeking to reinforce this vilification—regardless of whether the allegations were true. Healey launched an investigation, saying ExxonMobil misled consumers about climate change.  Rhode Island filed a lawsuit against a bunch of oil and gas manufacturers, saying they should pay for climate-related local infrastructure projects for illegally “conceal[ing] the dangers” of climate change.  

The full article can be read here.

The state of New York may have suffered an emphatic defeat in a legal battle against ExxonMobil last week, but that has not deterred the city of Imperial Beach from pursuing its own lawsuit looking to force 18 energy companies in the oil and coal sectors to pay for damages associated with rising sea levels.

“We’re going full-speed ahead,” Imperial Beach Mayor Serge Dedina said Monday. “The reality is the fossil fuel industry has caused climate change and they need to pay for it.”

On Dec. 10, a New York Supreme Court Justice ruled the state’s attorney general “offered no testimony from any investor who claims to have been misled” by ExxonMobil in a lawsuit that claimed the oil giant deceived investors about the impacts of climate change.

Justice Barry Ostrager’s 55-page ruling not only rejected the state’s claim the company committed fraud but said there “was not a single ExxonMobil employee whose testimony the Court found to be anything other than truthful” while the testimony of the state’s expert witnesses was “eviscerated on cross-examination and by ExxonMobil’s expert witnesses.”

The case was dismissed “with prejudice,” which means it cannot be reintroduced in New York.

The full article can be read here.

The oil-and-gas industry has faced a barrage of lawsuits in recent years from cities, counties and states across the U.S. seeking damages for the costs they say they have incurred as a result of climate change.

Some lawyers are going after big oil firms for securities fraud, saying they knew for decades that climate change posed a material risk to their businesses but failed to fully disclose the danger to investors. Other lawyers are arguing that extracting and selling oil and gas is a public nuisance because it leads to greenhouse-gas emissions, which in turn results in the harmful impacts of climate change.