Boulder, Colo. has big plans to go carbon neutral by 2035, but the local government’s ambitions don’t stop at the city’s borders: They want to use the courts to take the rest of the country with them.
As part of its climate efforts, the city is considering all-electric construction in new buildings and plans to eliminate all single-use plastics, including cutlery, straws and water bottles, by 2025. It also collects a climate tax to fund conversion from gas to electric appliances and EV charging stations, as well as other measures to “center equity and work toward systems change in and beyond Boulder.”
In its Climate Action Plan, Boulder makes clear that it seeks to influence change well outside Colorado. It lays out an underlying theory that addressing climate change and “other emerging existential crisis”— including equity and social justice — “depends on changing the underlying system pillars in ways that drive subsidiary systems to produce the outcomes we want.” Examples include making non-recyclable plastics expensive to produce or illegal to use and instituting an increasing tax on fossil fuel-based transportation systems while making electric-based systems the cheapest and most readily available.
The plan also suggests communities can influence markets to bring about change by partnering with other cities to but electric vehicles and other green technology in bulk to artificially juice demand.
Now, the city is trying to strong-arm energy companies to comply with its climate vision through the use of a public-nuisance lawsuit. While public-nuisance lawsuits once centered largely on disputes between neighbors, the Left has grabbed onto the litigation as a tool that might be used nationally to circumvent normal legislative processes by instead asking courts to make decisions on a host of issues, from climate change to gun rights.
Public-nuisance claims argue that a lawful activity is unreasonably interfering with a public right. In climate cases, local governments argue that power generation is unreasonably interfering with “the right to use and enjoy public property, spaces, parks, ecosystems, and the environment; the right to public health, safety, emergency management, comfort and well-being,” among other things.
The City of Boulder, Boulder County, and San Miguel County, Colo., filed a lawsuit against ExxonMobile and Canadian energy giant Suncor in 2018 with legal support from EarthRights International and other counsel.
The lawsuit claims the companies “knowingly and substantially contributed to the climate crisis by producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use.”
Using a nuisance suit to address transnational issues is “pretty far afield from somebody’s beehive is hurting somebody else’s neighboring properties,” which is the type of issue many early nuisance suits addressed, O. H. Skinner, a former Arizona solicitor general and the executive director of Alliance for Consumers, told National Review.
The danger with the climate-related nuisance suits is that climate activists could be expected to accomplish their goals with only a few wins, he said.
In the Boulder suit, the Colorado municipalities are seeking a monetary judgment to finance health-care programs, to generally mitigate the costs of climate change, and to “green-fit” cities, streets, and public transportation.
If a court tells a company it must spend billions of dollars a year to counteract the effects of greenhouse gasses on the environment it would be an “astronomical” ruling before any other decisions even follow suit, Skinner said.
The Supreme Court is considering whether it should weigh in on a fight over whether the case should be heard in state or federal court. Any decision the Supreme Court makes could have major implications for roughly two dozen lawsuits filed by states and municipalities against major oil companies, including Honolulu, Baltimore, and the states of Rhode Island and Delaware.
In the Boulder case, the Tenth Circuit Court of Appeals previously sided with the plaintiffs and ruled that it should be heard in state court.
The Supreme Court asked the Biden administration to file a brief expressing the government’s view — a rare move the Court uses in only a handful of cases each year that could indicate that it intends to hear the case.
Solicitor general Elizabeth Prelogar filed a legal brief on Thursday in support of the local municipalities in Colorado, arguing that the case should be heard in state court.
The Biden administration has “definitely come out on the side that the climate advocates wanted,” Dan Farber, law professor at the University of California, Berkeley, told The Guardian.
Attorneys for Suncor filed a certiorari petition in the Supreme Court arguing that the lower court decision to allow the suit to remain in state court opens the door to “countless” state-court nuisance lawsuits seeking redress for climate change. “Such a result would upset the careful balance that has been struck between the prevention of global warming, on the one hand, and energy production, economic growth, foreign policy, and national security on the other.”
Skinner said activists have lost several of the climate-related nuisance suits that have ended up in federal courts, “in part because federal courts have said, ‘Look, you’re trying to solve a transnational issue that involves treaties between countries and greenhouse gasses all over the world.’”
“That implicates questions of federal law because it covers the entirety of the nation and frankly reaches outside of the nation,” he said, adding that such a question would be better answered by congressional policy than by a state or even federal court being asked to decide that one company is responsible for a “worldwide phenomenon.”
“Nuisance is really, really, really useful for left-wing activists because in many states it’s like a common law thing, which just means there’s no statute,” Skinner said.
Another reason is that radical climate advocates can work with liberal activists in big cities, even in red states, to try to push for statewide “solutions” through nuisance suits that they could never achieve through policymaking.
“This is a way for activists to team up with trial lawyers to get courts to impose policy solutions that the left wants,” he said.
Asking courts to force companies to spend billions of dollars to remediate alleged harm could lead companies to stop making products due to liability or to even potentially change the focus of their business to more “green” technology, Skinner said.
The climate-related nuisance cases “really picked up steam” after similar cases against big tobacco companies in the 1990s resulted in a master settlement of more than $200 billion.
Skinner said while there hasn’t been any major final judgments on the climate side, there has largely yet to be a “killer rejection” of this type of case. “In part because of the way the litigation has unfolded, it’s just taking a really long time, which the activists aren’t upset about.”
The cities, essentially, are asking that the companies abate the effects of climate change on their city. “The way they’re talking about it isn’t save Boulder and not the rest of the world, it’s stop the effects of climate change,” Skinner said.
“And if you’re a judge who’s ready to undo that, I think you could envision how the effects on a company, even one loss, would be catastrophic,” he added.
The Supreme Court could decide to hear the case, in which case oral arguments could happen in fall 2023 before a decision is made in 2024. The Court could rule that the cases belong in federal court and there is no such thing as a “global nuisance” case, and they would all go away, Skinner said.
“Or the Supreme Court doesn’t take the case and these things are allowed to proliferate in state court, and if they’re proliferating in state court, you would expect that the theoretical risks on energy companies would be really high and you’re going to start to see them, they’ll lose some, maybe they’ll settle some.”
Marco Simons, an attorney representing the Colorado municipalities with EarthRights International, said the group is “encouraged by the Solicitor General’s recommendation that the Supreme Court decline the fossil fuel companies’ petition for certiorari in this case, and we hope the Supreme Court ultimately follows the U.S. government’s advice and allows this crucial climate litigation to move forward without further delay.”
Meanwhile, an ExxonMobil spokesperson blasted the lawsuit.
“Lawsuits like this one do nothing but waste time and resources and, more importantly, don’t advance efforts to address climate change,” the spokesperson said.