In the nearly three years since the City and County of Boulder and the County of San Miguel filed its climate lawsuit, the case has mostly been defined by arguments over whether it belongs in federal or state court.
In fact, the most notable action around the lawsuit has been that Boulder County hired outside counsel who are operating on a contingency fee basis, taxpayers could be on the hook, top elected officials in Colorado don’t even support it, and New York’s comprehensive defeat last year spells bad news for the case’s outcome.
However, two recent shakeups could define the lawsuit moving forward, including the plaintiffs’ attorney supporting the case who revealed the true intention behind the case and an upcoming action at the U.S. Supreme Court that will have direct ramifications for this lawsuit and the entire climate litigation campaign.
The Goal: Raising The Price Of Energy For Consumers
In a story focusing on Boulder’s climate lawsuit produced by a local public radio station this week, the lead plaintiffs’ counsel for the case, an attorney with nonprofit EarthRights International, explained that forcing energy companies to pay for climate mitigation efforts was only one of the goals of Boulder’s case.
Additionally, he told the news outlet that the secondary goal of the litigation is to “raise the price of the products” created by those energy companies so they become too expensive to use. Of course, by extension, that would drive up the costs of those products for consumers and business who rely on energy companies for gasoline, electricity, heat and industrial power. As the EarthRights International attorney told KSUT:
“But there’s a secondary aim too. His hope is by shifting the costs of producing the costs of fossil fuels onto the companies, the lawsuits can also shift behavior.
‘Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.’”
This effort to “raise the price” stands in stark contrast to what have been the stated goals of Boulder and San Miguel up to this point. In the Boulder lawsuit, the municipalities are suing two energy companies to pay for things like wildfire damage or costs to rebuild a local road—costs typically taken on by the taxpayer. The plaintiffs’ attorney’s comments represent the first time that a lawyer involved in one of the climate lawsuits has admitted that one of the end goals of the cases is to make energy more expensive for the consumer.
Making plaintiffs’ attorney’s comments more interesting is the fact that the Boulder lawsuit’s original complaint clearly states that the case is not aimed at curtailing the production of or use of certain energy products:
“Plaintiffs are not asking this Court to stop or regulate the production of fossil fuels in Colorado or elsewhere and they are not asking this Court to stop or regulate emissions in Colorado or elsewhere; they ask only that Defendants help remediate the nuisance caused by their intentional, reckless and negligent conduct, specifically by paying their share of the Plaintiffs’ abatement costs.”
These recent comments undercut the claim that the lawsuit is all about “making polluters pay,” by implying that consumers would be forced to pay increased prices for gasoline and other energy products. However, not all parties to the lawsuit may agree that this is a benefit. The KSUT article also quotes a San Miguel county commissioner, Hillary Cooper, who ironically pitched the lawsuit as a way of avoiding raising residents’ taxes – an objective that would be undone if residents are paying more for energy:
“[To pay for climate mitigation we’re] either going to our taxpayers and increasing their taxes or we can go to these companies who are making massive profits off of their sale of fossil fuels and make them accountable for at least a percentage of what it’s costing local governments.”
It seems that there is not a consensus for why this lawsuit is being brought in the first place and a divide between the municipalities who are accountable to the taxpayer and the environmental activist groups who have graciously agreed to represent these localities free of charge while standing to make millions of dollars off of contingency fee agreements.
Action At The U.S. Supreme Court
The increased focus on the Colorado lawsuit comes as the U.S. Supreme Court could potentially throw a wrench into not only Boulder’s case but the entire climate litigation campaign.
On January 19, the court will hear arguments in BP Plc v. Mayor & City Council of Baltimore to decide if the City of Baltimore’s lawsuit, along with the nearly two dozen other pending cases around the country – including Boulder’s – should be heard in state or federal court. The plaintiffs in Colorado and elsewhere have fought to keep these lawsuits in state court, believing that venue gives them a better shot at success. Thus far, Boulder and San Miguel have successfully argued to have their case heard in Boulder District Court.
In particular, the Supreme Court will consider whether a U.S. Court of Appeals has the authority to review an entire remand order if it includes the federal officer removal statute as one of the grounds for removal, or if it can only review the federal officer removal question itself in such an order. The latter course of action is how multiple circuit courts have ruled in several of the climate cases, including the Tenth Circuit in its remand of Boulder and San Miguel’s lawsuit.
But the U.S. Supreme Court taking up this key jurisdictional question “gives the industry a fresh shot at arguing for federal jurisdiction,” Bloomberg reported, while the Washington Post noted:
“Should the Supreme Court rule in favor of the oil companies, it may make it harder for cities and states to secure victory in the climate cases.”
Earlier this month, the energy companies filed another petition before the Supreme Court that contests the Tenth Circuit’s decision and asks the high court to hold the petition pending the resolution of its review of Baltimore’s case, as it presents an “identical question.”
That means a win for the energy companies at the U.S. Supreme Court would likely overturn the circuit’s July decision and send Boulder and San Miguel’s lawsuit back to federal court.
Conclusion
The comments from the EarthRights International offers a welcome peak behind the curtain of the climate litigation campaign. Its purpose is not to address climate change but to attack the U.S. energy industry over economic and public policy disagreements. It makes for important context as the U.S. Supreme Court hearing looms next month.
