Boulder Mayor Suzanne Jones explains a lawsuit against oil and gas companies brought by the city of Boulder and Boulder and San Miguel counties during a rally April 17.
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In what could be at least a short-term win for the plaintiffs, the city of Boulder and Boulder County climate change lawsuit against several fossil fuel companies was sent from federal court back to state court by a judge’s ruling on Thursday.

However, the companies targeted in the suit swiftly sought a provisional stay of execution of that order, which was granted by U.S. District Court Judge William J. Martinez. If the defendants plan to appeal Friday’s order in the U.S. 10th Circuit Court of Appeals, they must file a formal motion for a stay by Sept. 13.

The lawsuit, the first to seek compensation against the extraction industry for meeting the costs of climate change to be filed from a landlocked state, had originally been filed in April 2018 in Boulder District Court by the city of Boulder, Boulder County and San Miguel County versus Exxon Mobil Corporation, Suncor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., and Suncor Energy Inc.

The defendants last year quickly and successfully moved to have the case transferred to U.S. District Court in Denver. In similar cases on both coasts, fossil fuel companies have seen some success before federal judges.

In the Boulder case, the plaintiffs argued the case should be sent back to the state court, but resolution of that jurisdictional battle was prolonged by the May 10 death by heart attack of U.S. District Judge Wiley Daniel, 72, to whom it was originally assigned.

The case was subsequently reassigned in the wake of Daniel’s death to Martinez, who on Thursday issued a 56-page ruling, which sets the stage for the case, pending resolution of the defendants’ appeal, to be continued in a Boulder courtroom.

”Plaintiffs’ claims implicate important issues involving global climate change caused in part by the burning of fossil fuels,” Martinez ruled. “While defendants assert, maybe correctly, that this type of case would benefit from a uniform standard of decision, they have not met their burden of showing that federal jurisdiction exists.”

‘A significant victory’

Martinez’s ruling follows decisions by federal judges in California, Rhode Island and Maryland to also send similar lawsuits back to state courts to be decided.

And, while federal judges have decided the jurisdictional issue both ways, defendants in such cases show a clear preference for federal court. They lean on arguments including the foundational assertion that a global issue is ill-suited to litigation at the state level, and also cite precedents including the 2011 decision in the United States Supreme Court in American Electric Power Co. v. Connecticut, in which it was ruled that because the U.S. Environmental Protection Agency regulates greenhouse gas emissions under the Clean Air Act, corporations effectively can’t be sued under public nuisance claims raised in the Boulder litigation and similar cases.

Martinez’s ruling was applauded by EarthRights International, which is representing the plaintiffs on a pro-bono basis, while the Hannon Law Firm of Denver doing so for a 20% contingency fee.

“This is a significant victory for our clients, confirming that their claims should be heard in Colorado courts under Colorado law,” said Marco Simons, general counsel for EarthRights International. “These local governments are doing what they can to address the climate crisis, while Exxon and Suncor have acted and continue to act recklessly. These companies knew of the damages that fossil fuels inflict on the environment and communities, but chose not to come clean.”

A statement attributed to David Bookbinder, chief counsel at the Niskanan Center, a Washington, D.C.-based think tank partnered in the climate change litigation with EarthRights International, said, “Defendants threw in the kitchen sink to try and get this case in federal court, arguing seven different bases for federal jurisdiction.

“The court recognized defendants’ arguments for what they were — an attempt to find a more favorable forum by confusing the issues, and ultimately to avoid having to answer for their behavior. We are pleased that the court saw through this effort.”

Also, a statement attributed to the Boulder County Board of County Commissioners, released through EarthRights International, said Colorado communities and industries are suffering economic, health and safety consequences of the climate crisis.

“Adapting to these impacts requires significant planning and spending by local governments,” the commissioners said. “It’s unjust for these costs to fall on Colorado residents. Exxon and Suncor, who profited from their reckless actions, need to step up and pay their fair share rather than footing Colorado taxpayers with the bill.”

‘Baseless litigation’

Martinez’s decision was assailed, however, by the National Association of Manufacturers’ Accountability Project.

“Climate change is a shared global challenge that requires a broad and innovative response from policymakers,” its special counsel, Phil Goldberg, said in a statement. “At the end of the day, regardless of this procedural ruling, it is not a liability issue for state or federal court. If these Colorado communities really want to do something about climate change, they should work with manufacturers on energy innovations, not target them for baseless litigation.”

Energy in Depth, a research and education outreach campaign launched by industry trade group Independent Petroleum Association of America, also spoke out against the Martinez ruling.

A statement attributed to Energy in Depth spokesman Will Allison said, “Judge Martinez’s decision to remand Boulder’s lawsuit to state court does nothing to strengthen the frivolous claims made by the city and will only lengthen this unproductive legal battle.

“Meanwhile the companies implicated in the lawsuit are leading the charge to reduce emissions in Colorado and beyond. The lawsuit does nothing to solve the global challenge posed by climate change and only sows further division on an already difficult issue. This is why there is overwhelming bipartisan opposition to this case by leading Coloradans.”

Simons,the EarthRights general counsel, said in an interview on Friday that decisions sending cases from federal court back to state court are typically not appealable.

“The general rule is this is supposed to be a quick determination of what court should hear the case, and the ordinary rule is that they cannot be appealed,” Simons said. “Typically if the federal court remands to state court, the only way to review that is at the end of the case if you take the appeals up through the state system, and then petition the U.S. Supreme Court.

“That’s because Congress expressly did not want years of litigation over which court a case should be in.”

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