It was two years ago today that the City and County of Boulder and the County of San Miguel, Colorado filed suit against energy producers and the case faces as steep a climb as ever.
While the plaintiffs are getting plenty of support from wealthy, connected activists, they have failed to garner any backing from leading Colorado experts or prominent elected officials. Meanwhile, in the months since the case was introduced, similar legal efforts in California and New York have been rejected.
The lawsuit brought against Suncor and ExxonMobil seeks to blame them for the impacts of climate change in a world filled with billions of people and tens of thousands of energy and industrial companies. But their argument makes no sense as it concedes that everyone – including people in Boulder – use fossil fuels every day to fuel up their car and power their home.
Since the lawsuit’s introduction on April 17, 2018, the two sides have sparred in court and gone back and forth over whether the case should be heard in federal or state court. It’s widely expected a trial won’t be held until 2021 at the earliest.
Here’s what you should know as the Boulder climate lawsuit turns two-years-old:
Lawsuit Hatched by Activists and Trial Lawyers
Like so many other climate cases around the country, the Boulder lawsuit isn’t an organic, grassroots effort like proponents would like the world to believe. Rather, it’s part of a broader climate litigation campaign powered by environmental activists and trial lawyers looking to destroy energy companies and earn themselves a nice payout.
Boulder is getting legal support from EarthRights International (ERI) which is funded by a number of wealthy benefactors opposed to oil and natural gas development including the Rockefeller Family Fund and the Rockefeller Brothers Fund, which have conspired with public officials to demonize the industry and “creat[e] scandal.” A Rockefeller Brothers Fund trustee even sits on the board of ERI, and ERI’s co-founder Katie Redford recently left the organization to lead the Equation Campaign, a forthcoming initiative from her “long-time friends and allies” at the Rockefeller Family Fund that will “aggressively and explicitly confront” the “expansion and overreach of oil and gas.”
ERI is also connected to failed presidential candidate and billionaire climate activist Tom Steyer, who has bankrolled similar lawsuits elsewhere. The group is also representing Carrol Muffet, the president of the Center for International Environmental Law (CIEL), and a board member of the Rockefeller-funded Climate Accountability Institute (CAI), which co-hosted the infamous La Jolla conference in 2012 where the ”Exxon Knew” campaign was designed and litigation was originally discussed as a means of stigmatizing the oil and gas industry.
Additionally, Boulder is getting support from the Niskanen Center – another law firm financially supported by the Rockefeller Brothers Fund.
As Energy In Depth has documented before, the Boulder lawsuit is just one piece of a large climate litigation campaign supported by ERI and other funders around the country. In fact, we know that ERI has been pitching similar lawsuits across the country.
Colorado Leaders Don’t Even Support the Lawsuit
While Boulder plaintiffs seem to be getting plenty of support from activists around the country, they can’t find many friends in their own home state.
John Hickenlooper, who was governor when the suit was introduced, certainly didn’t endorse it, nor did his predecessor, or the current governor Jared Polis. The state’s attorney general, Phil Weiser, also refused to back the effort, saying:
“This is what happens when you do your homework. You ask a basic question like, let me get this straight, our carbon footprint has been reduced by substituting natural gas for coal. How do you sue Exxon for causing climate change? That is a very hard question. I’ve asked it, I haven’t gotten an answer. And so, I’m uncomfortable with that litigation because the case for it hasn’t been made.” (emphasis added)
Conservation Colorado, a leading environmental group in the state that’s close with elected officials, declined to support it as well, and the Denver Post editorial board wrote:
“Without fossil fuels, transportation would stagger to a halt, agricultural productivity would plummet, millions would suffer from cold, heat and hunger, and untold legions would suffer premature death. That’s why any comparison between fossil fuel companies and the tobacco industry, whose product is a health disaster with no redeeming economic value, is so wide of the mark…”
Similar Lawsuits Are Failing
Ever since Boulder introduced their lawsuit in the spring of 2018, it’s been a run of losses for the climate litigation campaign, showing there is no clear path to victory in Colorado.
Just two months later in June 2018, federal judge William Alsup dismissed a similar case brought by the cities of San Francisco and Oakland against energy companies. In his opinion, Alsup said climate policy should be left to the executive and legislative branches of governments, not the courts, writing:
“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”
The New York Times said that the failure in the Bay Area spelled bad news for other cases:
“The decision is a stinging defeat for the plaintiffs, San Francisco and Oakland, and raises warning flags for other local governments around the United States that have filed similar suits, including New York City.”
And indeed, the very next month, New York City’s case was tossed out as well by U.S. District Judge John Keenan, who echoed Alsup’s position:
“The serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”
The New York attorney general’s office also tried the #ExxonKnew strategy but ran into a dead end. The office, keen to bring some sort of suit against ExxonMobil, was forced to ultimately resort to accusations around accounting practices, but that argument was outright rejected in December 2019 by New York State Supreme Court Justice Barry Ostrager, who wrote in his ruling:
“In sum, the Office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor”
The Massachusetts attorney general has conducted a related years-long investigation and filed its suit in October 2019, yet all it does is echo the failed argument made by the New York attorney general.
Even Boulder’s own website features a FAQ section that includes, “Have other lawsuits like this been successful?”
It cites the California and New York cases (which of course went on to fail) and doesn’t list a single case that’s succeeded.
Big Costs to Taxpayers, Big Fees for Attorneys
A lot of money is involved in these lawsuits and there will be clear winners and losers.
Regardless of the court’s decisions, Boulder taxpayers will almost surely lose money. In New York, the attorney general’s office spent more than $800,000 in taxpayer money on just two expert witnesses that bombed spectacularly in the courtroom.
But while taxpayers will be out some of their hard-earned money, the trial attorneys are poised for big paydays if they win. According to Boulder’s website:
“Most of the legal work will come from attorneys associated with nonprofit organizations like EarthRights International who are working on a pro bono basis. These attorneys will be assisted by private law firms who will need to put in a substantial amount of work in order to win the case. The private firms have agreed to be paid only if they win the case, in which case they would receive up to 20 percent of the award. The local communities have devoted salaried staff time to work on the lawsuit but will not be paying for outside counsel.” (emphasis added)
And if Boulder loses, taxpayers could still be on the hook. The Boulder Daily Camera reports:
“The agreements with ERI state that their representation is on a pro bono basis; however, the contract states that there are circumstances under which the county and city might have financial obligations to the group.
“‘If we lose the case, the court may order you to pay the defendants’ costs of litigation,’ the agreement states. It also adds, ‘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.’”
At the time same they’re spending municipal time, money, and resources on this lawsuit, and could be on the hook for even more if they lose, Boulder County has decided to furlough 737 employees because of the economic pressures caused by COVID-19. Boulder leaders have made it clear that misguided lawsuits supported by fringe activists are more important than paying workers.
Similar cases also feature big potential payouts. Sher Edling – a leading plaintiffs’ attorneys office – had an agreement with San Francisco that entitled the law firm to 25% of the first $100 million of an award, 15% the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million.
Conclusion
The Boulder climate lawsuit isn’t getting better with age. It receives barely any support from Colorado’s elected leaders and similar lawsuits around the country have been defeated. While wealthy activists and trial lawyers are ginning up new revenue to support their causes, taxpayers will be the ones footing the bill for an effort that even the plaintiffs admit is attacking companies that Boulder citizens and everyone else rely to power the economy.
