On April 2018, local governments in Colorado filed a lawsuit against fossil fuel companies for harms from climate change. This case follows similar suits in New York and San Francisco that have sued major fossil fuel companies for climate change damages. The Board of County Commissioners of Boulder County, San Miguel County, and the City of Boulder brought a Colorado common law and statutory claim against SunCor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., Suncor Energy Inc., and Exxon Mobil Corporation for injuries occurring to their property and citizens of their jurisdictions
The lawsuit asserted claims on public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act, and civil conspiracy. It alleges the Defendants “substantially contributed to the harm through selling fossil fuels and promoting their unchecked use while concealing and misrepresenting their dangers.” The claim states that as a result of the Defendants’ emission of greenhouse gases (GHG), Plaintiffs are “experiencing and will continue to experience rising average temperatures and harmful changes in precipitation patterns and water availability, with extreme weather events and increased floods, drought, and wild fires.” Plaintiffs are seeking monetary damages and requesting a pro rata share of the costs of abating the impacts on climate change they have allegedly caused.
Shortly after the suit was filed in 2018, SunCor Energy Ing. et al responded by successfully transferring the case to the U.S. District Court in Denver. The Board of County Commissioners of Boulder County, et al. in turn filed a Motion to Remand, transferring it back to state court. The United States District Court cases have come to different decisions whether federal courts have jurisdiction over state law claims related to climate change.
SunCor Energy (U.S.A.) et. al. argued this case should be heard in federal court because the cases involve a federal law that creates the cause of action. For a case to be transferred to federal court, it must be of a “uniquely federal interest” and federal common law would displace state law where there is a conflict between the federal policy and state law.
The Defense argued the case belongs in federal court because it threatens to interfere with federal policies of national importance. These policies include energy policy, environmental protection, and foreign affairs. It further stated the federal government’s policy to decrease its reliance of foreign oil and promotion of fossil fuel production is critical for the U.S. economy and national security. It stated, the government has worked with other nations to respond to global warming. This suit challenges U.S. government policy and decisions by requiring the court to “delve into the thicket of the “worldwide problem of global warming.” The Defendants argued the solutions to global warming should be left to government, and not the judiciary. It further asserted the claims against them required adjudication of whether the benefits of fossil fuels outweigh its costs on a global scale, not just Boulder, Colorado.
The Court's Decision
The Court stated the complaint pleaded only state law claims and issues. No federal law or issue was raised in the complaint. It argued that though the Defendants argued the Complaint raises federal questions about energy, environment, and national security, removal to federal court is not appropriate. To support removal of jurisdiction to federal court, “the federal controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.” The Defendants cannot transform the action into one arising under federal law, allowing them to select the forum which it would be litigated.
What Comes Next?
The Defendants' attempt to remove the case to a higher court were unsuccessful. The Court found they did not meet the burden of showing that federal jurisdiction existed. The defendants filed an appeal September 9, 2019 with the U.S. District Court for the District Court of Colorado that is of yet to be heard. Many regard this as a win for Board of County Commissioners of Boulder County et al. Similar cases where fossil fuel companies have been sued by local governments have ruled that corporations cannot be sued under public nuisance claims because the U.S. Environmental Protection Agency regulates greenhouse gas emissions through the Clean Air Act. If the appeal is unsuccessful, many more cases where local governments seek damages from fossil fuel companies may result. For more information on how this case may affect you, please contact Whitcomb Selinsky Law PC at (866) 476-4558 or complete an online contact form.