Three Colorado Democrats running for state attorney general forcefully backed Boulder’s climate lawsuit against the energy industry during a debate hosted by the Colorado Sun on Wednesday.
The comments mark a monumental shift for Democrats seeking for statewide office in Colorado. Gov. Jared Polis and Attorney General Phil Weiser have largely declined to publicly back the lawsuit, and as EID Climate has documented, former Gov. and now-Sen. John Hickenlooper did not publicly support the case when it was first filed in 2018.
The candidates are also out of step with prominent Colorado voices across the political spectrum. The Denver Post editorial board came out against the lawsuit in 2018, writing that it “dangerously misses the mark.” Gale Norton, former Secretary of the Interior and former Colorado attorney general, has likewise argued against Boulder’s lawsuit, previously writing a “patchwork of litigation by municipalities should not determine America’s path forward on energy and climate.”
The timing makes this shift especially significant. In February, the U.S. Supreme Court agreed to review Boulder’s case and consider whether state and local governments can use tort law to regulate global greenhouse gas emissions, or whether national energy policy and interstate commerce fall under the purview of the federal government.
Now, as nearly 40 amicus briefs urge SCOTUS to reject Boulder’s claims and deliver a hammer blow to the nationally coordinated climate litigation campaign, Colorado Democrats running for attorney general are openly publicly standing with Boulder.
The topic came up when Colorado Sun reporter Jesse Paul asked each candidate: “Would you consider bringing or joining a similar climate lawsuit against oil and gas producers on behalf of Colorado, as other Democratic attorneys general have done?”
In response, the candidates stated:
Michael Dougherty, Boulder County District Attorney:
“This is one of those moments where I’m really proud to live and work in Boulder County. That Boulder County has taken the lead on this, and taking companies and holding them to account, and making sure we’re doing everything we can to protect our climate and our environment.”
Hetal Doshi, Former Department of Justice Deputy Assistant Attorney General:
“The short answer is yes, with respect to making sure that Colorado does everything through the Attorney General’s office that we can to fight back in this existential moment where a planet is being boiled and where corporate polluters, you’re getting away with just about everything.”
David Seligman, Executive Director of Towards Justice:
“Yes, yes… The Boulder litigation is essential. The fight at the Supreme Court, I think, is going to be a really important one.”
What Will Jena Griswold Do?
Notably, Colorado Secretary State Jena Griswold – the frontrunner in the attorney general race – declined to participate in the debate, avoiding the question of whether she would support the lawsuit.
Griswold has made no previous comments about the lawsuit, but now that her three most serious opponents have publicly stated their support, the spotlight turns to Griswold to clarify her position on the Boulder case and to state whether she would purse similar litigation if elected attorney general.
The pressure doesn’t stop there. U.S. Senator Michael Bennet and Weiser, the two leading candidates for governor, will now face increased scrutiny on whether they would use the power of that office to back the lawsuit – or encourage the next attorney general to take similar action at the statewide level.
Lawsuits Trump Affordability
If Boulder’s lawsuit succeeds, it would give state and local governments across the country a roadmap to impose massive retroactive liability on the American energy industry for global greenhouse gas emissions.
Boulder is seeking billions in alleged climate damages, and dozens of similar lawsuits are already pending nationwide. The result could be hundreds of billions of dollars in exposure for companies that produce, refine, transport and sell the energy Coloradans use every day.
Those costs would not disappear in the courtroom. Boulder’s own former attorney has described the litigation strategy as a backdoor carbon tax and said they would effectively bankrupt American energy companies, guaranteeing those added costs would be passed through the economy in the form of higher fuel prices, higher utility bills, higher transportation costs and higher prices for everyday goods.
That warning is not just coming from the companies. In their amicus brief to the Supreme Court, the Associated Governments of Northwest Colorado (AGNC), along with Archuleta, Delta, Grand, Garfield, Mesa, Montezuma, Montrose and Rio Blanco counties, argued that Boulder does not speak for Colorado’s energy-producing communities.
The counties warned that Western Slope counties depend on energy production and related industries for severance taxes, mineral lease and royalty revenues, property taxes, employment, roads, schools, emergency services and other basic public services.
That makes Dougherty’s praise for Boulder “leading” on climate litigation at the forum especially hypocritical. Boulder may want to lead a national litigation campaign against the energy industry, but many Colorado communities would be left to deal with the consequences.
It also undercuts the affordability message coming from Democratic candidates. Doshi has said she would use “every tool in the tool box” to make housing and food more affordable, while Seligman has railed against “oligarchs” ripping off Colorado. Griswold has warned that Colorado families and small businesses should not have to “foot the bill” for rising costs. For the candidates claiming affordability is a top priority, supporting Boulder’s lawsuit is the height of hypocrisy.
As the energy companies told the U.S. Supreme Court last month, allowing this litigation to proceed and giving even a single jury the power to impose ruinous liability on selected members of the energy industry is a recipe for chaos.”
Bottom Line: Three of the candidates for Colorado AG have now publicly backed Boulder’s climate lawsuit, flying in the direct face of the claims from the candidates in the debate talking about prioritizing affordability. If these candidates want to claim they are focused on lowering costs for Colorado families, they should explain why they support a lawsuit designed to impose billions in new costs on the energy Americans use every day.
Now, Jena Griswold faces the same question: Does she stand with Boulder’s climate litigation campaign, or with the Colorado communities and consumers who would pay the price?
FULL TRANSCRIPT:
Jesse Paul: So, Mr. Seligman, Boulder County’s climate change lawsuit against ExxonMobil and Suncor Energy is going before the U.S. Supreme Court right now. AG Weiser is planning to support the suit in the coming weeks, he told me, but he’s not filed or joined similar challenges brought by other states. So, would you consider bringing or joining a similar climate lawsuit against oil and gas producers on behalf of Colorado, as other Democratic attorneys general have done?
David Seligman: Yes, yes. And as I had mentioned earlier, I think this is core of the work that I see in building out a more robust environmental justice and protection office and effort inside the Attorney General’s office, independent of the work of the state agencies, CDPHE, ECMC, and others. We cannot lose track of the existential threat of climate change, absolutely not. And meanwhile, we’ve got big oil oligarchs that are making money hand over fist, polluting our planet, lying to us about the harms, knowingly lying to us about the harms, and they should be held accountable for it. The Boulder litigation is essential. The fight at the Supreme Court, I think, is going to be a really important one. The question about whether state laws apply, notwithstanding potential implied preemption challenges. I’m optimistic that we’re going to prevail in that fight. I think the arguments on the part of these corporate defendants are relatively weak, but we are going to need to keep the fight up, and I absolutely would pursue similar efforts to those, for example, the California Attorney General has engaged in. I want to make one further point about this, which is that sometimes some of this work, some of these efforts across the country have involved engaging with private law firms to help support that litigation, and I would be open to collaborating with outside support, outside resources to help fight for the people of Colorado. It’s frankly something I think we need to be doing more of here in Colorado.
Michael Dougherty: This is one of those moments where I’m really proud to live and work in Boulder County. That Boulder County has taken the lead on this, and taking companies and holding them to account, and making sure we’re doing everything we can to protect our climate and our environment. In fairness to our Attorney General, Phil Weiser, I will say, Jesse, I think it’s more of a three-decision tree that Phil Weiser had to choose from. 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. He didn’t decline to be involved at all, from my view, and from my understanding of the litigation. I know that the Attorney General’s office has strongly supported the work of Boulder County and our allies in this fight, and that was the absolute right thing to do, because we have to hold climate polluters responsible, we have to protect our air, land, and water. And eight months after we arrived, my family and I here in Colorado, I was made deputy attorney general and put in charge of the entire criminal section, and I’ve handled cases all around the state, including environmental crimes. I was in charge of the environmental crimes unit. The next AG, as I said earlier, has to step up and do even more, and that requires us to be adventurous and bold in litigation and ensuring that we’re supporting local communities in their efforts. That’s why I’ve been to the Superfund site down in Cañon City, why the advocates there are supporting my campaign, and it’s why I continue to engage people who are standing up and fighting for the environment all throughout the state of Colorado, at the local level, and as AG, I’ll be actively engaged in supporting them and fighting alongside them.
Hetal Doshi: The short answer is yes, with respect to making sure that Colorado does everything through the Attorney General’s office that we can to fight back in this existential moment where a planet is being boiled and where corporate polluters, you’re getting away with just about everything with, as my colleagues have described it, as parking tickets or other things, right, but the way to do this, this case, this case is going to be pending before the United States Supreme Court, that is a court of federal jurisdiction, a lot of these battles, all 65 of the lawsuits that are pending against the federal government right now, and other huge environmental cases of this sort will eventually end up in federal court, and eventually on their way to the United States Supreme Court. I am the one candidate in this race that has spent more than a decade inside the federal government, exclusively in that federal courthouse, understanding the limits of federal constitutional power, and also understanding the playbook in terms of how to craft a case with the right record and right set of facts to end up before the United States Supreme Court, where we have the strongest chance of success. We have to be really open and honest about the fact that this Supreme Court is not a Supreme Court of our choosing in terms of who we want deciding creative theories around nuisance or implied preemption, and so it is all the more important that your next attorney general have the right federal court and federal litigation experience to win this battle. I will tell you, there’s a lot of discussion around holding big corporations to account, and I will tell you that I brought creativity and tenacity to that work, because I have done that work. I held big international investment banks that were responsible for the 2008 global financial crisis to account to the tune of billions of dollars already. I will do that same work in taking on corporate polluters.
