Climate change-related litigation continues By EPN Staff The Colorado Supreme Court recently heard oral arguments in a case brought by municipal officials against energy heavyweights Exxon Mobil and Suncor Energy on claims that the companies are responsible for climate change and related weather disasters. Plaintiffs in the case, County Commissioners of Boulder County v. Suncor Energy USA, Inc., allege Exxon Mobil and Suncor Energy misled the public about the risks of consuming their products and are responsible for the climate change-influenced weather disasters in Boulder. Defendants argue that only the federal government is authorized to regulate emissions that cross state and international lines. Why it matters The case is the latest in a series of climate change-related litigation targeting energy companies in various courts. Mountain States Legal Foundation (MSLF), which filed an amicus brief in the case, has warned that if the Colorado Supreme Court upholds the lower court ruling, these two energy producers won’t be the only ones held legally responsible for climate change; anyone “who uses energy will unfortunately be held accountable for acts that aren’t in any way directly attributable to them.” The case and others like it would reshape energy and environmental policy via judicial decision, rather than through legislative processes where a full accounting of potential implications can be evaluated and factored into decisions. The Colorado Supreme Court is expected to rule several months from now. The bigger picture Other city and county governments have sued energy companies in state courts. While most are still in lower courts, cases in New Jersey, New York, and Maryland were dismissed following rulings that the state lacked jurisdiction. In Hawaii, the state supreme court ruled a lawsuit against Sunoco and Shell could proceed to trial; the U.S. Supreme Court declined to hear challenges to that case. Late last year, Montana’s highest court upheld a ruling requiring consideration of climate change and emissions in the permitting of new energy projects in the state. Montana’s primary energy source is still coal. In 2022, the state ranked 42nd in the list of states with the highest total annual carbon emissions in the U.S. In 2022, global carbon emissions were estimated at 37.29 billion tons. Montana contributed 29.5 million tons, meaning Montana accounted for less than .08 percent of global emissions, and less than 0.6 percent of U.S. carbon emissions. The court’s ruling is expected to increase project development costs, regulatory review and the risk of additional litigation, and could slow any transition from coal-fired generation to cheaper natural gas, which produces about half the carbon emissions of coal. Zeroing in In Colorado, if the state Supreme Court rules in their favor, plaintiffs would be able to seek damages against Suncor and Exxon for weather disaster-related expenses. Plaintiffs allege that billion-dollar weather disasters in Colorado have increased over the past four and a half decades and that Suncor and Exxon are responsible. The county experienced the Fourmile Canyon wildfire in 2010 and floods in 2013. In 2021, the Marshall Fire caused more than $2 billion in property damage. “Boulder is increasingly burdened by the impacts of an altered climate, and our community cannot keep bearing the costs alone while those responsible avoid paying their fair share,” said City of Boulder City Manager Nuria Rivera-Vandermyde. Additional detail Boulder and Boulder County and San Miguel County on the Western Slope filed the case in 2018. San Miguel County now has its own suit and is no longer a party to this one. In June of last year, a Boulder district court denied defendants’ motions to dismiss the case and allowed the city and county’s lawsuit to continue under state law. The 10th Circuit Court of Appeals ruled that the case could be heard in Colorado and in 2023 the U.S. Supreme Court refused to hear a challenge. The plaintiffs are represented by EarthRights International.
