Boulder mayor Suzanne Jones in April 2018 discusses a lawsuit filed by Boulder County, the city of Boulder, and San Miguel County against ExxonMobil and Suncor Energy, seeking to recover damages tied to the consequences of climate change. Attorneys on Monday argued several motions in the lawsuit, including the correct jurisdiction for the suit. (Jeremy Papasso / Staff Photographer)

Concerns with a state court’s jurisdiction dominated arguments made virtually Monday to Boulder District Court Judge Judith LaBuda in a high-profile lawsuit filed in 2018 by the city of Boulder and San Miguel and Boulder counties seeking compensation from oil industry giants for the impacts of climate change.

While the defendants Exxon Mobil Corporation, Suncor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., and Suncor Energy Inc. appealed to a three-judge panel last month to have the case moved back to federal court, the local governments continue to fight for a trial in Boulder District Court. Meanwhile, no ruling on the appeal has been issued.

The federal 10th Circuit court sent the case back to the Boulder court, where it was originally filed, last year. While defendants’ attorneys have moved to have the case dismissed, lawyers for Suncor argued Monday for the case to be sent to a completely new jurisdiction: Denver District Court.

That’s because they say a deal between Suncor and San Miguel County concerning the local government’s asphalt purchase contract with the company contains an agreement that any legal dispute between the parties would be handled by the Denver court. Splitting off San Miguel claims from the Boulder and Boulder County cases by moving just the former aspect of the suit could lead to potential inconsistencies in rulings, so the lawyers argued for the entire case to be heard in Denver District Court.

Furthermore, Justin Anderson, a lawyer for Exxon, believes the plaintiffs have failed to show that the company is responsible for climate change anymore than other entities or people.

“Plaintiffs can’t show their claims arise out of or relate to Exxon Mobil’s conduct in Colorado, because climate change would be happening with the same pace and the same intensity absent every in-state contact plaintiffs have identified,” Anderson said to the judge. “That’s because climate change depends on the individual actions of billions of factors whose conduct is entirely independent of anything Exxon Mobil has done in Colorado.”

Another lawyer for Exxon, Dan Toal, took the position that “state law is an improper vehicle for challenging interstate and international conduct.”

Rick Herz, an attorney with the EarthRights International environmental group representing the plaintiffs, disputed that contention.

“This is not an attempt to avert the climate crisis. It’s only an attempt to have parties who are responsible pay their fair share instead of foisting all those costs onto local taxpayers,” Herz said. “The reason there is a strong presumption against federal preemption of state law, is because preemption is a serious intrusion into state sovereignty.”

Sean Powers, another attorney for the plaintiffs, opened by stating it is not challenged that fossil fuel consumption and production is causing climate change, and said actions in Colorado by the defendants should be considered along with those taken outside the state.

“The specific jurisdiction dispute here is narrow,” Powers said.

A decision on whether the case proceeds to trial, is transferred or dismissed entirely from LaBuda’s court may not be made for weeks. LaBuda provided no indication of her thinking during the hearing.

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