Colorado climate suitExxon and Suncor Energy filed motions to convince a federal appeals court to move a Colorado climate suit to federal court. Photo credit: George Frey/Getty Images

By Dana Drugmand

The oil companies fighting a climate liability lawsuit from several Colorado communities are asking a federal appeals court to overturn a ruling sending the case to state court. 

ExxonMobil and Suncor Energy filed a brief outlining their argument for federal jurisdiction to the Tenth Circuit Court of Appeals on Monday. The companies are appealing a decision by District Court Judge William Martinez in September remanding the case to state court, where it was originally filed by the city and county of Boulder and the county of San Miguel. 

Fossil fuel companies have fought to move this and similar climate lawsuits to federal courts because they believe they have an easier route to dismissal at the federal level. Federal courts have dismissed climate lawsuits both past (Connecticut v. AEP, and Kivalina v. ExxonMobil) and present, including early dismissals in cases brought by Oakland/San Francisco and New York City. 

A recent string of federal court decisions, however, have ruled against the companies by sending the cases to state courts. The plaintiffs filed the cases in state court because they believe they have a better chance at success under state laws such as public nuisance and failure to warn. The Colorado case is one of three cases currently proceeding in state court while the companies appeal the remand orders in federal court. In all three cases, the Supreme Court refused to grant the companies’ request to pause proceedings while the appeals are considered. Those appeals are pending in the First Circuit (for Rhode Island’s case), the Fourth Circuit (for Baltimore), and the Tenth Circuit (Colorado). The Ninth Circuit is also considering the same jurisdictional question for a batch of cases brought by California communities. 

A central question in these appeals is whether the court can review the entire remand order, or whether review is limited to the companies’ argument that they operate as “federal officers” because they get federally issued permits. The companies argue the entire order is reviewable, while the plaintiffs say the scope of review is limited to the federal officer claim as a basis for federal jurisdiction. 

Martinez rejected the companies’ claim when he remanded the Colorado case to state court, and the Colorado plaintiffs have requested the Tenth Circuit dismiss all aspects of the appeal except for the federal officer argument. 

Exxon and Suncor argue that Martinez made the wrong call, not only in rejecting the federal officer argument but in rejecting their broader claims that the case raises federal issues and implicates matters of federal policy. According to the companies’ brief, the case “threatens to interfere with longstanding federal policies over matters of uniquely national importance, including energy policy, environmental protection, and foreign affairs.” The companies argue that federal, not state, common law must apply to the plaintiffs’ claims. They also say that plaintiffs are seeking to regulate greenhouse gas emissions, bypassing the regulatory authority of the Environmental Protection Agency. 

The communities say this mischaracterizes their cases, as they are not asking courts to regulate emissions. Instead they seek monetary damages to help pay for escalating costs of climate impacts, alleging that fossil fuel companies knew their products caused these impacts and waged a campaign of public deception to stall action on climate change. 

“Exxon knew since the 1960s of the role of fossil fuels in driving global climate change and misled the public through an elaborate disinformation campaign. Exxon’s actions contributed to the climate crisis that now affects every person on the planet,” EarthRights International’s general counsel Marco Simons, who is representing the Colorado plaintiffs, said in a statement

While Exxon and Suncor take up their appeal with the Tenth Circuit, they are simultaneously fighting the case as it proceeds in Colorado state court. The companies are preparing a motion to dismiss and are expected to file that motion by December 9 in the Boulder County District Court. 

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