Boulder’s climate lawsuit heads to the U.S. Supreme Court on Monday, and supporters of the case would like the justices, and everyone else, to believe a fairly simple story: this is a local lawsuit, backed by Coloradans, seeking local damages for local climate harms.
There’s just one problem: nearly every part of that story gets harder to sustain the closer you look.
Eight years into the litigation, Boulder has attracted remarkably little support from other Colorado local governments. Attorneys involved in the campaign have openly discussed raising the price of energy and using litigation as an “indirect carbon tax.” And a new review of nonprofit tax filings shows that the supposedly grassroots coalition surrounding the case is backed by a familiar collection of wealthy national foundations and activist organizations.
With oral arguments days away, here are three claims about Boulder’s lawsuit that deserve a reality check.
Myth #1: Boulder’s Climate Lawsuit Has Broad Local Support
For a supposedly homegrown Colorado cause, Boulder’s lawsuit has a remarkably thin hometown cheering section.
In fact, the response to the filing of the lawsuit was met immediately with strong opposition from Colorado state leaders, including the Denver Post editorial board, the environmental activist group Conservation Colorado, and former Secretary of the Interior Gale Norton, who also served as Colorado’s Attorney General.
Meanwhile, more than eight years after Boulder filed the case, not a single other Colorado city or county has joined the lawsuit. Nor did another Colorado local government sign onto an amicus brief supporting boulder before the Supreme Court.
Instead, eight Colorado counties along with the Associated Governments of Northwest Colorado directly opposed Boulder’s lawsuit.
That is not exactly a groundswell.
Activists have made much of a manufactured amicus brief filed by seven self-described Colorado ranchers. Former Congressman and longtime Colorado rancher Bob Beauprez recently put that showing in perspective:
“In a state with a nearly two-century legacy of farming and ranching, the plaintiffs’ bar found a grand total of only seven self-professed ranchers to file an amicus brief in support of Boulder.”
Beauprez also pointed out that Colorado Attorney General Phil Weiser has hardly been a champion for the lawsuit. While he recently defended Boulder’s right to sue in an amicus brief, he previously told reporters that he was “uncomfortable” with such lawsuits. He also never filed a lawsuit at the state level.
Myth #2: Boulder’s Climate Lawsuit is Just About Damages
Supporters of Boulder’s lawsuit insist that its lawsuit seeks damages for local climate harms, rather than an attempt to set national energy policy.
But the attorneys and officials involved with the case have been considerably less coy.
A new report from Power the Future and the Heritage Foundation examined the potential consumer costs of climate litigation and climate superfund policies around the country. Under the report’s central “full success” scenario – which assumes the campaigns succeed on their stated terms – the resulting costs could reach roughly $194 billion annually, or about $1,465 per year per American household. The basic point is difficult to miss: impose massive new costs on the companies that produce and supply energy, and those costs do not simply vanish into the ether.
More importantly, attorneys working on the litigation campaign have said as much themselves.
An EarthRights International attorney working on Boulder’s lawsuit said a key goal of climate litigation is to “raise the price of the products” produced by energy companies so that consumers would be forced to use less of them.
And former Boulder counsel David Bookbinder last year described climate litigation as a backdoor “carbon tax” because liability costs passed on through energy prices would discourage their use.
But it goes beyond just raising prices. Boulder officials have also described the lawsuit as part of something substantially larger.
During a 2021 Boulder City Council study session, city materials identified litigation as one of the tools the City was exploring to advance “larger systems-level change,” or a way of advancing specific political goals to phase out oil and natural gas.
That is quite a leap from local infrastructure funds and helps explain why the lawsuit has drawn pushback from far beyond the defendants themselves.
Colorado counties have warned about the implications for energy-producing communities. Former national-security and foreign-policy officials have argued that allowing local governments to impose liability tied to worldwide greenhouse-gas emissions could interfere with national energy and foreign policy.
Boulder, naturally, disputes these characterizations. But when attorneys involved in the campaign are talking about higher prices and indirect carbon taxes, while city officials are talking about “fundamental systems change,” it becomes increasingly difficult to pretend the only issue on the table is compensating Boulder for local damages.
Myth #3: This Is a Grassroots Movement
While climate litigation supporters routinely market these lawsuits as local communities standing up to giant energy companies, the reality is that the campaign was designed, funded, and executed by billionaires and national activist groups.
A new report from Americans for Public Trust investigated the Rockefeller network’s long-running role in the climate litigation campaign. Among the findings:
As E&E News previously reported, The Rockefeller Family Fund has funded EarthRights International, Boulder’s outside counsel, in the years leading up to Boulder’s lawsuit. Between 2015 and 2019, RFF provided $175,000 to EarthRights International. Similarly, the Rockefeller Brother’s Fund gave $200,000 to the Niskanen Center, Boulder’s other outside counsel, two months before the complaint was filed.
But the Rockefeller funding is only part of the story. The same groups that fund EarthRights International also funded many of the groups that were involved in amicus briefs that supported the climate lawsuit.
Bottom Line: Boulder’s defenders want the Supreme Court to see a straightforward local case, but the support surrounding it and the potential impacts are anything but local. As the Supreme Court hears Boulder’s case on October 5, that is the myth supporters will have an increasingly difficult time explaining away.
