Energy corporations ask U.S. Supreme Court to determine if Boulder climate lawsuit should be heard in state or federal court

Deborah Swearingen, Daily Camera, Boulder, Colo.
·2 min read
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Jun. 11—The defendants in the 2018 climate change lawsuit filed by the city of Boulder and Boulder and San Miguel counties are asking the U.S. Supreme Court to determine whether the case should be heard in state or federal court.

The petition filed by energy corporations Suncor and ExxonMobil with the federal Supreme Court on Wednesday comes about four months after the U.S. Court of Appeals for the 10th Circuit ruled that the lawsuits should proceed in state court, rather than federal. According to a Boulder news release published after that decision, the court's ruling sets a precedent for more than two dozen similar cases across the country.

The city of Boulder, alongside Boulder and San Miguel counties, sued Suncor and Exxon in Boulder District Court in April 2018, claiming the companies are responsible for "billions of tons of the excess greenhouse gas emissions in the atmosphere" and that they should be financially liable.

However, the energy corporations argue that while judges have twice determined that the Colorado case should be determined locally, other states have come to different conclusions.

"This has been an ongoing dialogue if you will," Phil Goldberg, special counsel for the Manufacturers' Accountability Project, which is the leading group opposed to the litigation, said in an interview.

"We want a full review of the issue of whether it should go to federal or state court," he added.

Goldberg argued that the federal courts should be determining energy policy and that there should be a consistent approach given that the ways in which energy is used and sourced is a fundamental societal question.

According to court documents, the plaintiffs are not trying to enjoin oil and gas operations or sales, to enforce emissions controls or to seek damages or abatement relief for injuries occurring on federal lands. Instead, the city of Boulder and Boulder and San Miguel counties are seeking monetary damages to help offset the impacts of climate change.

"To date, every appellate court to consider Exxon & Suncor's position has rejected it. Their actions have harmed our clients — Colorado communities experiencing the dangerous consequences of a changing climate," Marco Simons, general counsel with EarthRights International, said in an emailed statement.

"This case is about claims under Colorado law, for injuries to Colorado communities, filed in Colorado state court. It should continue be heard in state court and these oil companies' responsibility for climate harms should be determined by a local jury."

The effort to move the case to federal court is a "cynical delay tactic intended to avoid addressing their actual culpability for the climate harms affecting communities across the country," Simons added.

The Supreme Court session generally ends in late June or early July and begins again in October. October would be the earliest the court could decide whether it wants to take on the issue.