California Attorney General Rob Bonta and Colorado Attorney General Phil Weiser co-led a coalition of 18 states and the District of Columbia in filing a Supreme Court brief supporting Boulder’s climate lawsuit against American energy companies.

But Weiser did more than lend Colorado’s name to another state’s filing. His office led the charge as a Colorado deputy solicitor general serves as counsel of record, and the coalition is asking the Supreme Court either to dismiss the appeal or affirm the ruling that allows Boulder’s claims to continue. That is an affirmative effort to keep the lawsuit alive.

Yet the filing leaves a basic question unresolved: Does Weiser merely believe Boulder should be allowed to pursue its claims in state court, or does he actually endorse the merits of the claims in the case?

Bonta Attacks, Weiser Hedges

Bonta left little doubt about his own position. In a press release announcing the filing, the California attorney general attacked the energy companies and accused them of relying on “deceptive tactics” to mislead the public about the impacts of climate change.

Weiser’s release was notably more restrained. Rather than agreeing that the companies had deceived the public or caused the damages alleged by Boulder, Weiser focused on federalism, state court authority and the procedural question of whether federal law prevents Boulder’s claims from being heard.

The brief itself also stops short of supporting Boulder’s underlying allegations. It states that “if Boulder’s claims are meritless, state courts can dismiss them,” and acknowledges that Boulder must still prove fault, causation, attributable damages and that the defendants made more than a “trivial contribution” to its alleged harms.

That distinction matters because Weiser never brought a comparable climate liability lawsuit on behalf of Colorado. Yet he has now joined attorneys general from California, Connecticut, Delaware, Maine, Massachusetts, Michigan, New Jersey, Rhode Island, Vermont and the District of Columbia, all jurisdictions that have brought their own litigation against energy companies.

New York also joined the brief, despite losing its separate climate-related securities case in 2019. In that lawsuit, the court found that the state attorney general had failed to prove that the company made material misrepresentations and dismissed the action with prejudice.

Weiser Flip Flops

Weiser’s participation also contrasts with his own past skepticism.

While campaigning for attorney general in 2018, he said he was “uncomfortable” with such lawsuits because “the case for it hasn’t been made.” In 2019, he said he remained “unconvinced,” questioning the logic of holding energy companies liable when Colorado’s transition natural gas had helped reduce emissions.

Weiser has now moved from publicly questioning the logic of climate litigation to putting the authority and legal resources of the Colorado Attorney General’s Office behind an effort to preserve one of the country’s most consequential climate cases.

What he has not provided is an explanation for that evolution.

More recently, Boulder County District Attorney Michael Dougherty suggested that Weiser’s involvement in the lawsuit began well before the Supreme Court brief.

During a Colorado attorney general debate, Dougherty said Weiser had chosen to support Boulder without formally joining its case by ensuring that the plaintiffs had access to outside counsel, resources and other assistance:

“He could have either joined in litigation, supported it without joining affirmatively by making sure that they had the support they needed from outside counsel and the access that they needed to the resources and support to bring that lawsuit, or third, decline to be involved at all, and he actually went with the second option.”

Dougherty added that, based on his understanding, the attorney general’s office had “strongly supported the work of Boulder County and our allies in this fight.”

If Dougherty’s account is accurate, Weiser’s involvement may have begun well before the Supreme Court brief. That raises questions about what assistance the attorney general’s office supplied, when it was supplied and whether Weiser’s public skepticism accurately reflected his office’s private actions.

Further, Colorado Secretary of State Jena Griswold, who is running for state attorney general, told Politico she intends to pursue her own climate litigation at the state level, with or without the help of Weiser should he be elected governor this fall.

Rather than resolving the discrepancy surrounding Weiser’s position, the new Supreme Court filing raises additional questions:

• Does Weiser believe Boulder can prove that the defendants deceived the public, caused specific local harms and are legally responsible for Boulder’s claimed damages?

• Would Weiser sign or oppose a Colorado climate-superfund law, which seeks to impose a retroactive tax for many of the alleged climate damages sought in the Boulder lawsuit?

• And what does Weiser make of the fact that the lawsuit has remained limited to its original Colorado plaintiffs, the City of Boulder, Boulder County and San Miguel County, with no additional Colorado city or county joining the case in the more than eight years since it was filed?
• If Jena Griswold becomes Colorado attorney general and files a statewide climate lawsuit in 2027, would Weiser support that litigation?

BOTTOM LINE: Weiser is trying to have it both ways. He has put Colorado’s name behind an effort to keep Boulder’s climate lawsuit alive while avoiding any clear statement that he believes its sweeping allegations against energy companies are true. As he campaigns for governor—and as Democratic candidates promise even more climate litigation—Colorado voters deserve to know whether Weiser’s support is merely procedural or part of a broader effort to expand the climate-litigation campaign statewide.