Colorado Focus of First Inland Climate Change Nuisance Lawsuit

Alleging public and private nuisance, trespass, unjust enrichment, and violations of the Colorado Consumer Protection Act, on April 17, 2018 Boulder County, San Miguel County, and the City of Boulder filed a nuisance lawsuit in Colorado State Court for Boulder County against Suncor and ExxonMobil. The lawsuit demands that the companies pay their alleged respective shares of plaintiffs’ claimed costs associated with climate change impacts, which the plaintiffs assert are caused by the use of fossil fuel products that were produced, promoted, and sold by defendants. The plaintiffs allege that the companies have known about the danger of their products for the climate for 50 years. The plaintiffs argue that fossil fuel products extracted and sold by the companies contribute to climate change.

This lawsuit is the latest in a string of climate change nuisance lawsuits brought by multiple cities and counties in California and New York. The Boulder lawsuit, however, is the first lawsuit brought in the U.S. interior, where sea level rise is not an issue. The Boulder lawsuit alleges damages related to changes in precipitation, dwindling snow pack, and more damaging fires.

Damages Sought in the Boulder Lawsuit

The plaintiffs seek compensation for past and future damages and costs to analyze, evaluate, mitigate, abate, and/or remediate the impacts of climate change, specifically, costs of the following:

• analyzing and evaluating the future impacts of climate alteration, the response to such impacts and the costs of mitigating, adapting to, or remediating those impacts;
• wildfire response, management, and mitigation;
• responding to, managing, and repairing damage from pine beetle and other pest infestations;
• increased drought conditions including alternate planting and increased landscape maintenance;
• additional medical treatment and hospital visits necessitated by extreme heat events, increased allergen exposure, and exposure to vector-borne disease, as well as mitigation measures and public education programs to reduce the occurrence of such health impacts;
• repairing and replacing existing flood control and drainage measures, and repairing flood damage;
• repair, maintenance, mitigation, and rebuilding and replacement of road systems to respond to the impacts of climate alteration;
• alteration and repair of bridge structures to retain safety due to increases in stream flow rates;
• repairing of physical damage to buildings owned by the plaintiffs;
• analyzing alternative building design and construction and costs to implement such alternative design and construction;
• loss of income from property owned by the plaintiffs due to reduced agricultural productivity or lease or rental income while property is unusable;
• public education programs concerning responses to climate alteration; and
• reduced employee productivity.

In addition, the Boulder plaintiffs seek compensatory damages for past and future damages, including but not limited to decreased value in water rights; decreased value in agricultural holdings and real property; increased administrative and staffing costs; monitoring costs; costs of past mitigation efforts; and all other costs and harms described in their Complaint. The plaintiffs also seek remediation and/or abatement of the hazards discussed above by the defendants “by any other practical means.”

The Boulder plaintiffs specifically disclaim seeking to enjoin any oil or gas operations or sales, or to force emissions controls, or for any damages for injuries to federal lands or for any of the defendants’ lobbying activities. The plaintiffs request a jury trial.

Likelihood of Success and Relationship to Other Recent Climate Change Lawsuits

As with the other climate change lawsuits, Boulder’s case will likely turn on two principle questions: (1) whether the alleged climate change impacts definitively be can traced to particular companies (in this instance ExxonMobil and Suncor); and (2) whether it can be proven that ExxonMobil and Suncor knowingly marketed their products despite actual knowledge of the harm the products could cause.

Previous efforts have failed because of the challenges of proof of causation between alleged events or harm and the actions of particular companies. The most notable recent case was the 2009 dismissal of the Alaskan village of Kivalina’s lawsuit against fossil fuel companies for their alleged role in sea level rise. Native Village of Kivalina, and City of Kivalina vs. ExxonMobil Corporation, et al. The Kivalina court found that there is no common law nuisance tort of global warming, that regulating greenhouse emissions was a political issue that needed to be resolved by Congress and the Administration rather than by courts, and found a lack of evidence linking sea level rise to the actions of particular fossil fuel companies. Because greenhouse gas emissions are created by almost everyone — from companies extracting oil to people driving cars — it is impossible, the court claimed, to pin the consequences of climate change on a single, or handful, of particularly bad actors.

The other previous lawsuit on the topic was the 2011 U.S. Supreme Court decision in American Electric Power v. Connecticut rejecting similar nuisance claims brought against companies for burning fossil fuels. The high court found that these lawsuits based on federal common law were improperly in federal court because greenhouse gas emissions were already regulated by an existing federal law: the Clean Air Act.

Climate change science has evolved significantly in the years since the Kivalina lawsuit, and scientists now claim to be able to attribute specific events to global warming. See "Researchers can now blame warming for individual disasters." Additionally, environmental NGOs are developing arguments and reports alleging that 100 companies are responsible for 70 percent of the world’s greenhouse gas emissions since 1988. See Carbon Majors Report 2017.

The success of the recent such lawsuits is far from certain, but the costs of defending such cases could be high. The damages sought are extremely high. The Boulder plaintiffs speculate that the damages are measured in hundreds of millions of dollars. See "Here's what Exxon Mobil, Suncor think of Colorado communities’ climate-change lawsuit." The other lawsuits combined ask for damages in the billions.

What Happens Next

The defendants in the Boulder lawsuit are likely to remove the lawsuit to federal court, similarly to the defendants in lawsuits brought by Oakland and San Francisco against ExxonMobil and other majors. After removal, Oakland and San Francisco moved to remand the state public nuisance claims back to state court. On February 27, 2018 the Northern District of California in California v. BP P.L.C., et al, denied the motion to remand and found that the plaintiffs’ nuisance claims are governed by federal common law.

In California v. BP, the plaintiffs assert nuisance claims against the defendants under common law, seeking an abatement fund to help pay for sea walls and other climate-related defense infrastructure. Distinguishing AEP v. Connecticut, the California federal district found that the AEP ruling may not apply to plaintiffs’ claims, because the Clean Air Act only regulates the companies that burn fossil-fuels, not the companies that sell them. This assertion was in the context of procedural decision (finding that a remand to state court was not appropriate) not on the merits of preemption, but has been hailed as potentially indicating the court believes these types of nuisance claims are not preempted by the Clean Air Act. If that indication proves true and is upheld on appeal (all big ifs), coal, oil, and natural gas producers could face federal common law nuisance claims nationwide, rivalling the tobacco and asbestos litigation of the 1990s and early 2000s.