DENVER (CN) - In a 5-2 decision, the Colorado Supreme Court on Monday upheld a lower court's ruling denying oil producers attempt to dismiss Boulder County's tort claim for climate change-driven damages.
"The court now concludes that respondents' claims are not preempted by federal law and, therefore, the district court did not err in declining to dismiss them," Colorado Supreme Court Justice Richard Gabriel wrote in the 32-page opinion.
Boulder County sued Exxon Mobile and Suncor Energy on April 17, 2018, asserting the energy companies' production and sale of fossil fuels damaged the county's property and people by exacerbating climate change.
Nestled against the foothills of the Rocky Mountains 30 miles north of Denver, Boulder is home to 105,000 people, serving as a tech hub, college town, and magnet for outdoor enthusiasts.
In bringing a private nuisance claim, the county blamed the oil producers for interfering with residents quiet enjoyment of property. In bringing a trespass claim, the county argued the companies damaged Boulder property by driving in flood, fire, hail, rain, snow, wind and invasive species.
Suncor initially tried to move the case to federal court, but Barack Obama-appointed Senior U.S. District Judge William Martinez granted Boulder's request to send the case back to state court, a move affirmed by the 10th Circuit and denied for writ by the U.S. Supreme Court.
Parallel to federal proceedings, in December 2019, Suncor also filed to dismiss the case from state court, arguing the Clean Air Act and federal foreign affairs powers preempted any state claims. Twentieth Judicial District Judge Judith Labuda held oral argument in June 2020 before denying the motion to dismiss in January 2021. Suncor and Exxon appealed, arguing their case in February.
In a first for Colorado, the court considered whether federal law preempts state law for harms related to climate change.
"Whether these claims may proceed against defendants has important implications for Colorado and its citizens," Gabriel wrote. Ultimately, the court was unconvinced that Boulder seeking torts for climate change disrupted any foreign policies, and agreed with the county that the damages sought are typical of state torts proceedings.
In remanding the case to Boulder County, however, Gabriel added that the court would "express no opinion on the ultimate viability of the merits of Boulder's claims."
Chief Justice Monica Marquez, signed onto the opinion along with Justices William Hood, Melissa Hart, and Maria Berkenkotter.
Colorado Supreme Court Justices Carlos Samour and Brian Boatright penned a 27-page dissent raising concerns about the decision allowing Boulder County to operate as its own republic.
"To borrow from Fleetwood Mac's old hit song, the message our court conveys to Boulder and other Colorado municipalities today is that 'you can go your own way' to regulate interstate and international air pollution," wrote Samour.
Pointing to a similar case pending in Denver filed by rural San Miguel County, the justice worried that the majority opinion enabled every county in the state to wield such power.
The state supreme court's seven justices were all appointed by the state's last three Democratic governors.
"This lawsuit is based on a fundamental legal principle: you have to pay your fair share for the harm that you cause," attorney Marco Simons, who argued the case for Boulder, said in a statement. "Nothing in federal law stops Colorado courts from applying that principle to the fossil fuel industry's deception about climate change."
A spokesperson for Exxon said the company would continue to fight the lawsuit, calling the county's claims meritless.
"We've maintained from the beginning this case is meritless and has no place before a state court.," a spokesperson told Courthouse News over email. "We'll continue to fight these claims, but more importantly, will continue to provide millions of Americans with the products needed every day to power their lives and homes."
Exxon Mobil is represented by Faegre Drinker attorney Colin Harris. Suncor is represented by Eric Robertson of Wheeler Trigg, which did not immediately responded to an inquiry for comment.
The case now sits on the desk of 20th District Judge Michael Kotlarczyk for further proceedings.
Source: Courthouse News Service
