In a hearing before the Boulder County District Court on June 1, attorneys representing ExxonMobil and Suncor argued that a climate liability lawsuit brought by three Colorado communities should be dismissed on multiple grounds. The lawsuit, originally filed in April 2018 by the counties of Boulder and San Miguel and the city of Boulder, seeks to hold Exxon, Suncor and Suncor subsidiaries liable for harmful climate impacts and associated costs in those Colorado communities. The suit is part of a wave of lawsuits filed by U.S. municipalities against fossil fuel companies over climate change damages that are incurred in communities across the country.
So far these lawsuits have been embroiled in a jurisdictional battle over whether they belong in state or federal courts. The fossil fuel companies are fighting to have them in federal courts because the companies have succeeded with getting several climate lawsuits dismissed there. But four federal judges, including in Colorado, and two federal appeals courts have ruled that the cases belong in state courts. Colorado’s case is proceeding in state court while a decision on the federal vs. state court issue is pending from the Tenth Circuit Court of Appeals. The June 1 hearing in Colorado state court is one of the first hearings on substantive motions to dismiss at the state court level in these climate liability cases.
In that hearing, Exxon and Suncor both argued the case should be dismissed for lack of personal jurisdiction, meaning the companies claimed they do not have sufficient ties to Colorado, even though both entities do business in the state. Suncor argued that while its U.S.-based subsidiaries operate in Colorado, the parent company is a Canadian entity based in Calgary and has no business operations in Colorado. An attorney representing the Colorado plaintiffs countered with the argument that Suncor placed products into the stream of commerce knowing they would be consumed in Colorado, and pointed out that Suncor products make up 35% of the gasoline consumed in the state. ExxonMobil also claimed it does not have sufficient contacts in the state, and tried to evade responsibility for its alleged harmful conduct by arguing that climate change is a global problem caused by “the independent actions of billions of actors.” Another attorney representing the plaintiffs, Sean Powers, rebutted that argument by pointing out the seeming absurdity of saying that because the harm is being caused globally, no one can be held accountable anywhere. “Exxon knew that it was causing and would cause harm to the state of Colorado,” Powers added.
On the more general motion to dismiss for failure to state a claim, Exxon attorney Daniel J. Toal repeated arguments that Exxon and other oil companies have made in similar climate cases, mainly that the case concerns global greenhouse gas emissions and therefore the claims are governed by federal common law, which the Supreme Court has ruled is displaced by the Clean Air Act. “This case is nothing more than an emissions case in disguise,” Toal said.
In the plaintiffs’ rebuttal, their attorneys pushed back on what they say is a mischaracterization of their claims. Plaintffs’ attorneys said this “isn’t an emissions case” and “is not an attempt to avert the climate crisis.” Rather, the case is about deceptive promotion of a harmful products, similar to litigation against tobacco and opioid manufacturers. “Defendants chose to misrepresent climate science so their unchecked sale of fossil fuels could continue,” attorney Kevin Hannon argued. “There is no social utility in concealment and deception.”
District Court Judge Judith L. LaBuda did not pose questions during this hearing, but simply listened to arguments from both sides. She said she would take the arguments into consideration and did not make any immediate ruling.