Remember the Boulder climate lawsuit? It certainly doesn’t get much attention these days in the state, but a recent legal development could spell trouble for the case. The Colorado Supreme Court recently signaled it may intervene in the ongoing lawsuit, adding uncertainty to Rockefeller-financed climate nuisance litigation campaign that’s seen a series of recent setbacks in state courts like Maryland.
On July 29th, Colorado’s highest court asked both the district court and City of Boulder to address whether a district court judge erroneously ruled in June that the municipalities’ claims could proceed under state law. Plaintiffs have until August 26th to respond to the state Supreme Court, clouding the future of what many activists once touted as a landmark case.
A recent Denver Gazette editorial argued the Colorado Supreme Court “should laugh this [case] out the door.” The editorial board highlighted the hypocrisy of City of Boulder seeking to recover any costs associated with climate change given the wealthy Front Range community has historically maintained a far larger carbon footprint than average communities:
“If these plaintiffs really cared about climate change, they’d sue their constituents for lifestyles that generate massive amounts of CO2 — not the companies they paid to help them live that way.”
Lawsuit Part of Boulder Plan to Drive “Large Systems-Level Change”
In June, Colorado District Court Judge Robert R. Gunning allowed Boulder’s lawsuit to move forward – largely intact – in state court, Colorado Politics reports:
“Gunning reiterated what the federal courts had observed: Boulder County and the city were not trying to force a change to national climate policy, but rather were seeking compensation for local harms the oil and gas industry allegedly caused.” (Emphasis added)
But Boulder’s case and others like it have faced scrutiny about whether these lawsuits’ are really about recovering alleged damages, as opposed to using state law to litigate federal climate policy.
In 2020, a lawyer supporting the case told a local public radio station plaintiffs hoped the litigation would change consumer behavior by raising the price of energy:
“Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.”
Moreover, as EID Climate documented in 2021, the Boulder City Council characterized the suit as part of a larger “climate action” policy campaign intended to drive “large systems-level change.” This characterization flies in the face of arguments Boulder has made publicly and in court, where the city maintains their suit is simply about recovering costs associated with climate change.
And just weeks before the Boulder development, a Maryland judge threw out Baltimore’s lawsuit, finding state law cannot be used to advance national energy policy and address a global phenomenon such as climate change. Judge Vindetta A. Brown said the city’s complaint amounted to a “back door” attempt to regulate emissions, a decidedly different conclusion than Judge Gunning reached in the Boulder case this June.
The Colorado Supreme Court’s decision to request responses from the City of Boulder and Gunning may suggest the Colorado justices will evaluate similar questions over the coming weeks.
Boulder Climate Suit Has Little In-State Support
Boulder’s climate suit, filed in 2018, has long enjoyed far more out of state support from activists than actual backing from voters or Colorado elected officials, whose views on climate nuisance suits are somewhat distinct from national out-of-state funders supporting the lawsuit.
Boulder continues to receive received legal support from EarthRights International (ERI), which is financed by a number of wealthy benefactors including the Rockefeller Family Fund and the Rockefeller Brothers Fund.
The Niskanen Center – another Washington DC based group formerly supported by the Rockefellers – no longer represents the City of Boulder. Former Chief Counsel David Bookbinder appears to have departed the organization sometime in 2023, and joined the Rockefeller-funded Environmental Integrity Project in April of this year. Bookbinder continues to represent plaintiffs in Boulder, apparently through his own law firm.
Despite Bookbinder’s claims otherwise at the time, Rockefeller grants to Niskanen, which span back to 2018, appeared tied to financing Bookbinder’s work as outside counsel on the Boulder case. Niskanen’s departure from Boulder’s suit, as well as Bookbinder’s exit from the organization, follow a change of leadership at Niskanen in 2022. In recent years the organization has turned its climate focus to other issues, including permitting reform.
Aside from the Rockefeller groups pushing the suit, the case has fallen on deaf ears among Colorado officials across both parties and opinion pages alike.
The Denver Post blasted Boulder’s case after it was filed, writing it “dangerously misses the mark.” And now-Sen. John Hickenlooper, who was governor when the suit was introduced, didn’t endorse the case, nor has Gov. Jared Polis. Colorado AG Phil Weiser also refused to back the suit when first campaigning for office in 2018, stating:
“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.”
While Polis was the driving force behind a variety of significant oil and gas regulations after entering office, in recent years the administration appears to have shifted tactics when it comes to Colorado energy.
Instead of levying retroactive costs on energy production like Boulder’s climate suit, the Polis administration has largely sought to institute policies that tax energy production to fund other climate priorities like conservation and transportation. While the state’s new fee on energy production will surely lead to higher costs, the accompanying agreement to cease targeting the sector with new regulations through 2028 may produce more near-term certainty for energy producers.
BOTTOM LINE: The Colorado Supreme Court’s decision to review the district court’s ruling allowing Boulder’s case to move forward adds uncertainty to the case amid a summer that’s been filed with setbacks for climate litigation plaintiffs. Should cases like Boulder and Maryland continue to produce divergent rulings on questions of litigating climate policy through state law, it could strengthen calls for the U.S. Supreme Court to review those fundamental questions.
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