The climate-change lawsuit launched in state court against ExxonMobil and Suncor Energy by the city of Boulder, along with San Miguel and Boulder counties, is the wrong complaint in the wrong forum, panelists said Thursday at a Colorado Association of Commerce & Industry (CACI) event.
“Litigation tends to produce delayed results, and if the objective … is to talk about policy solutions for global climate change, I’d suggest litigation isn’t the most efficient way to do it or the best way to do it,” said Colorado state Rep. Cole Wist, R-Centennial.
In April, the lawsuit was filed in Boulder district court by the two counties and city claiming that the oil companies “knowingly and substantially contributed to the climate crisis” and that those actions will have a substantial impact on the localities.
Canada-based Suncor Energy Inc. operates a gasoline refinery in Commerce City; Irving, Texas-based Exxon Mobil Corp. has natural gas rights in western Colorado’s Piceance Basin.
“We are taking on some of the world’s largest and most politically powerful corporations,” Boulder Commissioner Elise Jones said at a rally the day the lawsuit was filed. “But we have so much at stake. We are confident that the courts will agree with us. And so we feel that we have little choice but to take this bold action.”
The Boulder case is part of a “troubling trend across the country (of) famous attorneys and politicians bringing misguided lawsuits against manufactures,” Lindsey de la Torre, executive director of the Manufacturers’ Accountability Project, said Thursday.
There have been at least 11 lawsuits filed against manufactures including recent climate change suits in California, New York and Washington State, de la Torre said.
The panel, held Thursday at the Colorado History Center, was co-sponsored by CACI and de la Torre’s group.
Bret Sumner, an oil and gas attorney with Beatty & Wozniak, said that in the past environmental lawsuits tended to focus on whether federal environmental laws and regulations were being met and were argued in federal courts.
The pivot to state courts and the use of common law complaints is a new wrinkle, Sumner said. Nuisance law, for example, is used to stop “unreasonable interference” with the public good. Targets tend to be things such as dilapidated buildings, junk-strewn vacant lots, odors from factories and building used for criminal activity.
In the Boulder case, plaintiffs are suing over legal activities that comply with state and federal laws, Sumner said. “To fit this into common law, I think that is really hard,” he said.
The Boulder suit cites private nuisance, trespass and violation of the Colorado Consumer Protection Act for deceptive trade practices. The suit seeks unspecific monetary damages for adverse impacts to city and country property and operations as a result of climate change.
Fashioning climate policy is not “not something courts at the state level or the federal level are suited to do,” Sumner said.
“If you have 100 different courts give 50 different opinions (and) legal standards on how you address climate change, it is going to create a lot of legal uncertainty,” he said.
Wist, an attorney who has represented industry in product liability and consumer safety cases, said he thought the case could be rejected by the court. He said the suit is “more a political statement.”
Marco Simons, general counsel of EarthRights International, the nonprofit environmental law group representing Boulder in the case, disagreed.
“Courts have applied nuisance law to deal with environmental problems for centuries, long before most environmental regulations,” Simmons in a statement.
“Congress could always decide to enact a comprehensive scheme to address climate change and to provide resources to communities affected by climate change, but even where it has done so for other environmental problems, it has generally preserved the right to sue,” Simons said.
On that point Simons and Wist agreed. “Sometimes lawsuits help to drive policy changes,” Wist said. “Where people feel policy makers aren’t adequately addressing issues.”
“While I don’t think courts are the most appropriate nor efficient way to resolve the issues, we have to recognize why we are where we are.”