By Karen Savage
Three U.S. government associations, a coalition of 31 local governments from across Colorado and two national environmental organizations have filed friend-of-the-court briefs in support of the three Colorado communities’ bid to keep their climate liability suit against ExxonMobil and Suncor in state court.
The companies are appealing a ruling by the U.S. District Court sending the case back to state court, where it was filed. The National League of Cities, the United States Conference of Mayors and the International Municipal Lawyers Association said the federal court appropriately ruled that it lacked jurisdiction over the claims. Those groups filed their brief filed earlier this month in the Tenth Circuit Court of Appeals in Denver.
Briefs in support of the communities were also filed by Public Citizen, the National Resources Defense Council, and Colorado Communities for Climate Action (CC4CA), a coalition of local Colorado governments.
Exxon and Suncor have received support from the U.S. Chamber of Commerce.
The city and county of Boulder and the county of San Miguel allege that Exxon and Suncor have known for decades that their products contribute to climate change, but deliberately downplayed that risk to policymakers and the public. The communities filed suit in 2018, asserting state law claims of public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act and civil conspiracy and are seeking to force the companies to help pay for the costs of climate change impacts.
Exxon and Suncor initially moved the case to federal court, but it was remanded back to state court in September. The companies have made several failed attempts to stop the proceedings, including multiple appeals to the Tenth Circuit and to the U.S. Supreme Court, which also denied applications by companies facing similar suits in Baltimore and Rhode Island.
The case is currently proceeding in state court pending the outcome of the companies’ appeal of the remand order.
Exxon and Suncor say the case belongs in federal court because the claims asserted injuries that were caused by nationwide greenhouse gas emissions, which is covered by federal, rather than state law.
In support of the oil companies, the U.S. Chamber of Commerce told the court that if allowed to go forward the case would open the door for the court to “impose massive retroactive liability” on American companies, while other companies around the world have also contributed to the alleged harms.
“Uniform legislative and executive action, not countless state-law tort suits, are the best solution to the challenges of global climate change,” wrote the Chamber.
The National League of Cities, the United States Conference of Mayors and the International Municipal Lawyers Association pushed back on that assertion.
“Uniform adjudication of the financial burdens local governments bear for climate change adaptation measures might or might not be desirable public policy, but it is neither necessary nor mandated by any federal law,” wrote the associations, adding that local governments must maintain their ability to hold companies accountable for damages suffered by their communities.
Climate liability cases are similar to cases filed by cities against “financial institutions for the consequences of the subprime mortgage crisis, against pharmaceutical companies to help carry the costs needed to address the opioid epidemic, and against Monsanto to compensate for harms from Polychlorinated Biphenyl (PCB) contamination,” the associations wrote, adding they are also similar to cases seeking damages from lead paint companies that knowingly sold a product they knew was toxic.
“All these cases involved claims under state law, and none saw a state-law claim judicially converted into a federal common law claim, much less converted into a federal claim for subject-matter jurisdiction purposes, only to then find the federal claim displaced by a federal statute,” wrote the associations, adding that there are no “uniquely federal interests” at stake in the case, nor is it about regulating greenhouse gas emissions.
Exxon and Suncor have echoed a common argument from the fossil fuel industry that claims these cases seek to regulate emissions and should be heard in federal court.
In its brief, the NRDC told the court that even if the case were about regulating emissions it does not belong in federal court because federal common law does not provide a means for addressing the alleged harms.
Further, the Clean Air Act “does not completely preempt all state law causes of action related to emissions or climate change,” wrote the NRDC, adding that the case belongs in state court because “the Act expressly preserves states’ broad authority to address air pollution under state law.”
Moving the case to federal court would “obliterate the critical divisions of responsibility our federal system establishes between state and federal government,” CC4CA wrote in its brief.
“The result would not only deprive Plaintiffs and other local governments like CC4CA’s member jurisdictions of traditional and critical tools to protect the health and welfare of their constituents, but also would strip state governments of the authority to develop and apply state law to address matters of local health, safety, and welfare,” CC4CA wrote.
Public Citizen pushed back on the contention by Suncor and Exxon that the case is subject to federal jurisdiction under the federal officer removal statute, citing a Supreme Court’s unanimous rejection of that argument in a suit filed against tobacco giant Philip Morris.
Like Exxon and Suncor, Philip Morris had argued the federal officer removal statute, which says a federal court has jurisdiction over a civil action that is directed at the United States or any federal official, requires the case be heard in federal court. The oil companies argue that because they sold or extracted fossil fuels under government contract, they operated as federal officers.
“The Supreme Court stated that ‘the statute authorized removal by private parties ‘only’ if they were ‘authorized to act with or for [federal officers or agents] in affirmatively executing duties under … federal law,’” Public Citizen wrote in its brief. “The Court therefore held that self-interested commercial entities that acted under compulsion of federal regulation but had been given no authority to act ‘on the Government agency’s behalf … were not entitled to invoke the statute.”
While awaiting a decision on the jurisdictional issue from the appellate court, the case is proceeding in Colorado state court.
“We’re thrilled to see this outpouring of support for the case, defending the principle that communities across the U.S. have the right to go to court—under state law—to seek remedies for climate harms,” said Marco Simons, general counsel for EarthRights, which is representing the municipalities.
“This is yet one more piece of evidence that the tide is turning on climate—our future depends on it.