After months of silence and delay, the City of Boulder appears finally ready to announce the filing of a climate-related lawsuit targeting “fossil fuel-producing corporations.” In fact, Boulder’s elected officials will host a rally today on the Pearl Street Mall in Boulder with the national anti-fossil fuel organization they are partnering with to bring the suit. Of course, all the usual activist groups will be on hand to speak as well, including national activist groups like the Sierra Club, Earth Guardians and

Boulder is following the likes of New York City and a handful of municipalities in California in pursuing this climate litigation campaign. Up until now the same plaintiffs’ attorneys have been behind each of the cases, spearheaded by climate activist and attorney Matt Pawa.

But this time, the Boulder Daily Camera reports that the city was approached by EarthRights International (ERI) to pursue the litigation pro bono. We knew from the Daily Camera’s prior reporting that a D.C.-based firm had offered to bring forward the climate litigation, but this is the first time that group was named.

What differentiates Boulder from the other similar lawsuits filed to date is that Boulder is landlocked and has a different geography from the other existing plaintiffs in coastal California and New York City. Those prior complaints relied on projections of future sea-level rise to estimate the damages they seek from the energy companies – a risk unlikely to affect a population located a mile above sea level.

Boulder has considered bringing a lawsuit for months, having passed a measure in executive session last winter. Shortly thereafter reports leaked out indicating that the Boulder City Council was moving forward with a lawsuit against energy companies to sue for damages relating to climate change.

The Boulder suit is simply the latest example of climate activists pushing public officials to attack the energy industry, whose economic impact in Colorado is measured in the tens of billions of dollars.

As we await the official announcement today, here are four things you need to know about the Boulder lawsuit

  1. EarthRights International is Funded by Groups Pushing Anti-Fossil Fuel and Climate Litigation Campaigns

EarthRights is funded by several wealthy anti-oil and gas funds, including George Soros’ Open Society Foundations, the Rockefeller Family Fund, the Rockefeller Brothers Fund and the Tides Foundation. These groups have perpetuated climate action against fossil fuel-producing companies, seeking to demonize the fossil fuel industry in both the courts and the court of public opinion. The Rockefellers in particular have funded every step of the campaign and have admitted to conspiring with public officials and activists to demonize the industry and “creat[e] scandal.”

ERI also has strong ties to several other activist groups that are pushing climate litigation against energy producers. Lara Johnson is on ERI’s Board of Directors, but her day job is at the Rocky Mountain Institute (RMI), which is chaired by Ted White – climate activist billionaire Tom Steyer’s lawyer. A Daily Mail investigation last year revealed that Matt Pawa, who represents San Francisco, Oakland and New York City in their lawsuits against energy companies, originally pitched the idea of climate liability litigation to Steyer in 2015. Steyer then made a $30,000 donation to the mayor of San Francisco just before the city hired Pawa to bring its lawsuit. According to ERI’s latest financial report, Ted White gave ERI between $25,000 and $50,000 last year, while Tom Steyer made a donation of over one million dollars.

ERI is also representing Carroll Muffett, President and CEO of the Center for International Environmental Law (CIEL) and a leading actor in the campaign against oil and gas companies, as he fights to avoid turning over documents detailing his collusion with government officials and other activists. In fact, Katie Redford, the co-Founder and US Office Director of ERI, is on CIEL’s Board of Trustees, serving alongside the previously mentioned Matt Pawa.

ERI also have an extensive history of suing energy companies. Part of the play in Boulder was to lure in neighboring towns to join their campaign, but attempts fell flat with only San Miguel County (Telluride) and Boulder County joining the city of Boulder in accepting the D.C. organization’s offer.

  1. Governor Hickenlooper’s Administration Has Previously Commented on Possible Boulder Lawsuit – And Certainly Didn’t Endorse it

When asked if he endorsed the possible climate lawsuit being brought forward in Boulder, Colorado Governor John Hickenlooper, a Democrat, and his staff did not endorse the idea. Instead, Martha Rudolph, who is one of the leading health and environmental regulators in the state as director of environmental programs for the Colorado Department of Public Health and Environment, recommended “taking baby steps” on pushing climate action and cautioned that the City of Boulder’s potential climate lawsuit against oil and gas developers might not be the best approach in pushing an environmental agenda.

Rudolph also said a potential climate lawsuit represented a heavy-handed approach, adding, “Trying to get to the goal and figure out why you would want to go there” is important when considering any potential action as a government entity, including consideration of a lawsuit. When asked about Boulder filing a lawsuit, she said, “What would be beneficial to you to go there? And sort of figure that out and talk about it.”

Rudolph cautioned that the impact of bringing a lawsuit could backfire in swaying public opinion, instead hardening minds.

“There’s a saying that I believe in which is, ‘A man convinced against his will is of the same opinion still,’” Rudolph said. “So if you sue somebody and you win, they still don’t agree with what you’ve done. They just have to now do it,” Rudolph continued.

Governor Hickenlooper essentially echoed those sentiments when asked to respond to what Rudolph said about the lawsuits, adding, “I’m glad she said it so that I don’t have to.”

The lawsuit emerges during a very consequential time in Colorado’s politics. After the 2018 elections, the state will have a new governor and new attorney general. Unlike previous municipalities that filed lawsuits—all in deep blue states of California and New York—this announcement comes in a purple state in the midst of campaign season. Outgoing Gov. Hickenlooper made his thoughts on the lawsuit known, but how will potential Democratic gubernatorial and attorney general candidates respond?

  1. It’s All About PR – The Merits of These Lawsuits Have a Bad Track Record in Court

Similar cases have failed to advance at the federal level, and have been struck down by the U.S. Supreme Court on multiple occasions. Since the federal court system has essentially rejected the legal arguments already, activists are now turning to more sympathetic state courts in order to achieve a better result.

Unsurprisingly, up until now coastal California towns and New York City have been the only willing participants in this litigation scheme. They are all represented by the same network of law firms and plaintiffs’ attorneys, and have put forward nearly identical legal arguments. Boulder’s City Attorney made it known during a previous City Council meeting that the municipality was chosen as the next target in an effort to achieve more geographical diversity among plaintiffs. As Boulder’s attorney put it:

“Obviously California is a coastal community; we are not. And so the people who have approached us are interested in branching out to other communities in the country who have different kinds of climate effects than those that are affecting the coastal communities.”

The ultimate purpose of these lawsuits is to use the court system to halt or curtail what is otherwise legal oil and natural gas development, and to assign full blame for climate change on companies—despite the fact that we all rely upon oil and natural gas in daily life. Holding these companies liable for damages could mean payouts amounting to hundreds of billions of dollars.

  1. Many Voices in the Legal Community and Media Have Already Called out the Frivolous Nature of These Lawsuits
  • “These recent climate change suits have not yet survived the initial pleading stage, and defendants are mounting strong challenges. The local governments’ standing to sue the defendants appears dubious, and even if they can establish standing, the plaintiffs will be hard pressed to meet their burdens of proof, particularly as to causation. To date, similar suits have been unsuccessful in holding individual corporations responsible. But these new efforts appear well-funded, and reliant on new legal tactics designed to avoid some of the pitfalls from the prior cases, most notably the courts’ deference to federal regulatory action,” wrote Eric Waeckerlin and Christopher Chrisman, attorneys at Holland & Hart LLP.
  • “But what matters for the claimants is not really the legal judgments or the money sought. It is the publicity for what appears to be a co-ordinated and well-funded campaign, with the goal of casting a shadow over the companies’ future profitability and therefore their market value. A secondary goal is reputational damage,” Nick Butler, visiting professor and chair of the Kings Policy Institute at Kings College London, wrote in the Financial Times.
  • “Indeed, these public nuisance lawsuits are especially dubious, given that the oil companies did not by their sales emit any carbon dioxide into the atmosphere. The dangerous releases came from many different parties, both private and public, including the municipalities bringing these lawsuits. These numerous parties used these products in countless different ways, with as much knowledge of their asserted effects on global warming as these five defendants,” wrote Hoover Institution’s Richard A. Epstein, who is also a Professor of Law at New York University Law School.
  • “Whatever your beliefs about climate change, you don’t have to dismiss the idea of human-induced global warming to see the cities’ lawsuit approach as misguided. The intent of these suits is to portray petroleum companies as the new Big Tobacco. I oversaw California’s tobacco litigation. I can tell you these lawsuits are nothing like those against tobacco… This is just another example of activists trying to replace the power of the people and their elected representatives with the decision-making of the courts in an area in which judges have no particular expertise,” wrote former Congressman Dan Lungren, who also served as California’s Attorney General.