For all the fanfare made two months ago in Boulder with officials announcing a climate lawsuit against two oil and gas companies, it wasn’t until last week that the City and County of Boulder, along with San Miguel County, actually moved forward with their climate lawsuit.
What took Boulder so long to actually move forward with the lawsuit? That’s a good question. As Energy In Depth pointed out at the time, the suit itself is plagued with problems and lack of citations. But as bad as the original filing was, this version might be even more absurd.
Of course, those following the lawsuit know that the case has been overwhelmingly rejected by local Colorado voices. In fact, the state’s leading environmental group refused to back it. The Democrats and Republicans running for governor refuse to back it. And the Denver Post quickly editorialized against it. Nevertheless, despite the overwhelming opposition, Boulder decided last week to finally move forward with the case.
So, What’s New?
The amended version includes a sixth cause of action – civil conspiracy. What’s the conspiracy? The City and County of Boulder allege that the companies dared to sell energy in Colorado – legally.
“Exxon and the Exxon co-conspirators jointly targeted their fossil fuel activities at the State of Colorado, including through the co-conspirators based in, doing business in and/or incorporated in Colorado,” the complaint alleges. Of course, there is no conspiracy to sell fossil fuels in Colorado – fossil fuel production is encouraged by the United States and Colorado governments, and no law has ever been passed that bans the sale or promotion of fossil fuels.
The amended filing claims that “the climate has been altered because of the Defendants’ fossil fuel activities.” However, “Boulder emits nearly 1.6 million metric tons of carbon dioxide equivalent into the atmosphere each year.” This is roughly 19 times the average yearly emissions of ExxonMobil across the entire state.
The lawsuit clarifies that this “unchecked use” by the city is actually the result of “unchecked production, promotion, refining, marketing and sale of fossil fuels.” In other words, the city is attempting to shirk their responsibility for their own emission contributions by blaming Exxon and Suncor for making fuels and convincing us that our lives are better with electricity and cars. Boulder’s representatives seem to think their communities would be better off without those amenities.
The amended complaint also replaces language in the original complaint that expressed uncertainty about the timing and impact of climate change. The original complaint said that that they don’t know what their future maintenance costs for roads and other infrastructure will be, especially as a result of climate change. The amended complaint removes that language, replacing it with a vague prognostication that climate change will cause them to spend more money than they otherwise would have.
Awkward Timing for Boulder
Of note, Boulder’s filing came just as New York U.S. District Court Judge John F. Keenan expressed doubts last week that a city reliant on oil and gas could sue fossil fuel companies.
As an editorial in the Denver Post rightly noted, “such lawsuits are especially unfortunate in a state like Colorado where tens of thousands of people work in a vibrant energy industry,” adding that these companies are being, “stigmatized and even demonized for engaging in commerce still critical to our economy.”
In fact, as Energy In Depth pointed out in a video released last month, these companies have significantly benefitted Colorado’s local economy. The oil and gas industry contributes approximately $31 billion annually and is expected to double its severance tax revenue for Colorado to $140.3 million in FY 2019/20.
Even as production surges, emissions continue to fall. The state’s volatile organic compounds (VOC) emissions have been nearly halved over the past 6 years. Consider too, that in 2014, Obama’s EPA administrator Gina McCarthy gave a speech in Boulder saying the industry’s, “responsible development of natural gas is an important part of our work to curb climate change.”
And this lawsuit could backfire on the plaintiffs, who would be forced to pay the companies’ legal costs should Boulder lose its case. “In some cases, if a lawsuit is frivolous, not reasonably based in law or fact, and/or brought solely to harass or to coerce a settlement, a court may order you to pay the defendants’ attorneys’ fees and/or pay a penalty,” their agreement with their lawyers states.
Meanwhile, it’s worth noting that the city’s co-council includes David Bookbinder, chief counsel for the DC-based Niskanen Center, which recently received a $200,000 donation from the Rockefeller Brothers Fund – an organization with a long history of funding novel attacks against the fossil fuel industry. Niskanen also received a $300,000 grant from the anti-fossil fuel Hewlett Foundation last year for its “climate policy and litigation program.”
Boulder’s filing comes as anti-fossil fuel activists are observing the 30-year anniversary of Dr. James Hansen’s Congressional testimony on global warming, an event some consider to be “the opening salvo of the age of climate change.” The anniversary poses an awkward question: If Boulder has known about climate change for 30 years, why didn’t they bring their lawsuit 30 years ago?
After a nearly two-month delay, Boulder has finally filed their complaint, kickstarting the lawsuit that will likely take years to resolve and will divert the city’s attention and resources from other issues. Though their amended complaint fixes a few typos and attempts to shift the burden of global climate change onto two companies, it fails to address the glaring deficiencies in its legal arguments.