Boulder, Colo., has sued two oil companies to recover climate damagesBoulder, Colo., is one of the communities successfully arguing—so far—that their climate suit against Exxon and Suncor should be heard in state court. Photo credit: Thomas Cooper/Getty Images

By Karen Savage

After a U.S. District Court judge rejected attempts by Exxon and Suncor to halt a climate liability suit in Colorado twice in less than 24 hours, the companies filed an emergency motion with the Tenth Circuit Court of Appeals. 

The oil companies are aiming to pause the proceedings—including discovery—while they try to convince the appellate court that the case belongs in federal court.

The city and county of Boulder and the county of San Miguel allege that Exxon and Suncor knew for decades that their products contributed to climate change, but deliberately downplayed the risk to policymakers and the public. 

In the suit, filed last year, the communities assert state law claims of public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act and civil conspiracy. They are seeking to force the companies to help pay for the costs of climate change impacts.

As fossil fuel companies have in climate-related public nuisance suits filed by municipalities across the country, Exxon and Suncor immediately moved the suit to federal court, where precedent has favored them.

U.S. District Court Judge William J. Martinez remanded the suits back to state court in September. The oil companies then appealed to the Tenth Circuit and asked the lower court to stay, or pause, the proceedings pending the appellate court’s decision. 

In their motion to stay, Exxon and Suncor cited two cases—American Electric Power v. Connecticut and Kivalina v. Exxon—when attempting to persuade the court that their appeal is likely to succeed, a criteria that must be met before a stay can be granted. 

Martinez rejected the companies’ reliance on those cases, and in an order issued late Monday, wrote that plaintiffs in Kivalina and American Electric Power “expressly invoked federal claims, unlike this case which involves only state law claims asserted in state court, and those cases appear to be inapplicable.”

Martinez also rejected assertions by Suncor and Exxon that they would be irreparably harmed if the case proceeds, writing that “claims in this case were filed over a year ago,” and adding that “the public interest is furthered by the timely conclusion of legal disputes.”

Exxon and Suncor early on Tuesday filed for an emergency motion to stay the case, which Martinez rejected by mid-morning, noting that the companies’ initial motion had been denied in the order he issued the night before and writing that the new motion “is a motion for reconsideration of that order in all but name only.”

Marco Simons, general counsel for EarthRights, which is representing the municipalities, said Martinez’s refusal to halt the case is a significant victory for the communities and their residents.

“Judge Martinez appropriately returned this case to state court without further delay,” Simons said in a statement. “This sends a definitive message to oil companies like ExxonMobil and Suncor that they cannot avoid justice in the local courts of the communities that their actions have harmed.” 

EarthRights, along with the Niskanen Center and Denver attorney Kevin Hannon, are working on behalf of the Colorado communities.

The oil companies later on Tuesday filed another emergency motion to stay, this time with the Tenth Circuit. The court has ordered the municipalities to file a response to that motion by Oct. 18.

Exxon and Suncor did not immediately respond to a request for comment. 

“We welcome this development as a critical step forward in alleviating the financial burden that climate change is imposing on communities in Colorado,” Simons said. 

“It is not fair for those costs to fall on taxpayers, particularly when these corporations profited from contributing to the climate crisis.” 

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