This is the first in a multi-part series covering the Boulder public nuisance global warming lawsuit.
It was one of the worst kept secrets in Colorado. Anyone involved in Colorado’s energy and environmental policy circles knew it was coming.
The “it” was Boulder’s global warming lawsuit against evil “Big Oil.”
Finally, in April, the city of Boulder, joined by Boulder and San Miguel Counties, which includes Telluride in southwest Colorado, filed a joint global warming public nuisance lawsuit in Boulder District Court. They named Exxon Mobile, Suncor Energy, and their subsidiaries as defendants in their 124-page compliant.
The Colorado plaintiffs follow the lead of nine coastal communities, mostly in California, seeking financial compensation and other relief from the oil and gas industry for alleged climate impacts from fossil fuel development, production and usage. However, with this lawsuit, Boulder city and county and San Miguel County become the first landlocked communities to file a complaint.
Interestingly, Exxon Mobile and Suncor aren’t Colorado’s largest oil and gas producers. That honor falls to Anadarko Petroleum Corporation and Noble Energy. But neither of those companies have Exxon or Suncor’s deep pockets. For instance, Exxon reports 69,600 employees with $19.71 billion in operating income versus Anadarko’s 4,400 employees and $456 million in income.
Washington D.C. based environmental groups EarthRights Internationaland the inappropriately named Niskanen Center are providing attorneys pro-bono to represent the Boulder plaintiffs with the Hannon Law Firm in Denver serving as local counsel.
Using state’s “public nuisance” theory is the latest attempt to litigate global warming. As Forbes explained:
Critical to these new lawsuits is a theory that seems to have been borrowed from other areas of tort law. To make the case that oil companies should pay for the flooding and other costs associated with global warming, the cities argue the oil companies knew the risks associated with their products and sold them anyway.
Boulder County Commissioner and eco-activist Elise Jones articulated it with an analogy comparing the oil and gas industry to the tobacco industry, earning this scathing critique from the Denver Post editorial page:
[A]ny 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. And yet, officials from the city of Boulder, Boulder County and San Miguel County who are seeking damages in a recently filed climate lawsuit against Exxon Mobil and Suncor had no trouble invoking this false equivalence in defending the litigation.
The Plaintiffs
It’s not surprising that these two counties joined together. They are similar demographically and ideologically.
About 30 miles northwest of Denver, Boulder, with a population near 110,000 is beautifully situated in the Front Range foothills. It’s home to the University of Colorado’s flagship campus that once boasted Ward Churchill as tenured faculty. Last year National Geographic named it “The Happiest City in the United States,” proclaiming, “This mountain town has it all—scenery, culture, and a world-class quality of life.”
That might be true assuming you are rich and white. Boulder is also one of the most expensive places to live with median home prices well above the half million-dollar mark. It’s anti-growth policies have led to what transportation and environmental economics expert Randal O’Toole calls “economic apartheid”:
Fewer than 1.6 percent of the residents of Boulder, Colorado have African-American ancestry, and it is becoming whiter than ever thanks to restrictive land-use policies that have made housing unaffordable. Census data show that, between 2010 and 2016, Boulder’s population grew by more than 10,000 people, but the number of blacks declined by 30 percent.
Recently, Boulder extended its intolerance to those residents who dare to responsibly own a firearm.
Boulder is mecca for high-tech hippies who hate cigarettes but embrace pot. The city also has been called “Best City to Raise an Outdoor Kid”, “Top 10 Healthiest Cities to Live and Retire (#6)”, “Top Brainiest City”, and “Top 10 Cities for Artists (#8).”
Both Boulder city and country are extremely left leaning. Registered Democrats out number Republicans nearly three to one, earning the entire area the nickname “The People’s Republic of Boulder.” This is especially true of for environmental issues. Their hatred of everything oil and gas is legendary. Yet, Boulder can’t run away from its past. It’s home to McKenzie Well #1 that dates back to 1902 and is listed on the National Register of Historic Places. It sits on top of the Boulder Oil Field, one of the longest producing fields in the state.
In the southwestern corner of Colorado is San Miguel county. Over 300 miles from Denver, the county is nearly 1300 square miles in the San Juan mountains, some of the most beautiful scenery in Colorado. According to 2017 census data, the total population is 7,967. With just over 2,300 residents, Telluride, the winter playground of the rich and famous, is the county seat.
Like Boulder, Telluride is far left of center. Democrats outnumber Republicans three to one. It’s also 90 percent white and very wealthy. The average price of a home in San Miguel county is over $500,000.
Bolder Boulder
The California and Boulder lawsuits are similar. Both employ the public nuisance theory for their legal justification, but Boulder dares to be bigger and more audacious. At 124 pages, the Boulder complaint is 2.5 times longer than the California complaint. And, Boulder recently amended its compliant to include “civil conspiracy”, which added another nine pages reports the Boulder Daily Camera.
When it comes to “Relief Requested” Boulder seems like an overachiever compared to California. All plaintiffs want money, but the Boulder plaintiffs demand “three times the amount of actual damages sustained, plus the costs of the action together with reasonable attorneys’ fees as determined by the Court.”
In addition, the Boulder plaintiffs demand an opportunity to grandstand via public jury trial in Boulder District Court and, of course, in the court of public opinion. The California plaintiffs didn’t even request an opportunity for that type of grandstanding.
The Contradictions
It’s impossible to miss the series of contradictions in the Boulder lawsuit. For instance, the compliant states: “A warmer atmosphere holds more moisture than a cooler one, which can mean heavier precipitation during rainfall events, causing more intense flooding.”
On the very next page it states, “Plaintiffs are experiencing an increased risk of drought.”
Which is it, flood or drought?
And another:
“Plaintiffs and their residents have already been injured because of climate change caused and contributed to by Defendants’ actions. They are mitigating current climate impacts and will be forced to continue mitigating and adapting to climate change for the foreseeable future.”
They are claiming injury, but when requesting relief, the Boulder plaintiffs don’t actually want to stop oil and gas development and production in the state of Colorado. In other words, you don’t have to stop injuring us. Yet, if the situation is as dire as the lawsuit claims, then why aren’t the plaintiffs demanding an immediate halt to all activity?
Hey Pot, it’s Kettle. You’re Boulder.
Boulder claims Exxon and Suncor knew.
“Defendants knew their fossil fuel activities were causing CO2 in the atmosphere to rise.”
“Defendants knew that climate alteration caused by their fossil fuel activities would likely cause adverse and hazardous impacts.”
If anyone knew, it was Boulder. Elected officials and residents all knew. Back in 2002, Boulder proclaimed it would meet the 1997 Kyoto Protocol goals of reducing “greenhouse-gas emissions to 7 percent below 1990 levels.” In 2006, Boulder voters passed a carbon tax to help meet those goals. The city’s updated goal is 80 percent below 2005 levels by 2050.
Yet, they never stopped using the product they claim is doing so much damage to the environment. It begs the question, if Boulder knew then what responsibility does it have to everyone else, including investors?
Didn’t Boulder have a responsibility to inform municipal bond investors of its concern over devastation from global warming and the possible risk it poses to city finances and the ability to repay those bonds as former Director of the Colorado Department of Natural Resources pondered in an editorial in the Grand Junction Daily Sentinel:
Speculation about the climate works both ways. Oil companies depend upon investors investing. But so do local governments. Most, including Boulder, depend on municipal bonds to fund infrastructure, including highways, bridges, and schools. Municipal bonds attract investors because they are tax-exempt, and fairly safe. Investors consider risks like fluctuating prices, reliability of city revenue, or inflation eroding the value. But what about the risk that a city might not even exist in a few years, the victim of catastrophic rises in sea level due to global warming? Many cities claim to face such an ominous future, yet no city warns bond investors about it.
Taxpayers may be on the hook for legal fees
All of the plaintiffs’ attorneys are working on a contingency fee basis. In other words, the attorneys don’t get paid unless they win. However, if they lose and Exxon and Suncor are awarded their attorneys’ fees then taxpayers in the city and county of Boulder and San Miguel County will be on the hook. Something that won’t help Boulder’s budget problems.
Few friends
While the environmental left, anti-fossil fuel community stands with the Boulder plaintiffs, those are their only allies. The lawsuit condemnation was swift and extensive. Joining a number of industry groups, trade associations, think tanks and editorial pages, were all of the Democratic gubernatorial candidates, including Congressman Jared Polis who represents Boulder city and county. None of whom endorsed the lawsuit wrote the Western Wire.
What’s this lawsuit really about?
First, it’s about money. Boulder plaintiffs didn’t name Colorado’s largest oil and gas producers as defendants, they named the deepest pockets. They are claiming damages in the hundreds of millions of dollars and they want three times that amount.
Also, just weeks before the lawsuit announcement Daily Camera reported the city of Boulder is facing a $4 million budget shortfall and possible cutbacks in city services.
But I also think the Boulder plaintiffs want to put oil and gas companies and science on trial, much the same way the state of Tennessee wanted to put teacher John Scopes and evolution on trial in the famous Scopes Monkey Trial in 1925.
They want an outcome they can’t get legislatively as the Independent Women’s Forum Erin Hawley explains in her legal brief:
“Instead of debating the complex issues surrounding global warming in Congress or the Executive Branch, a number of liberal- leaning cities have resorted to the courts.”
If the court indulges them with a jury trial, it could be the trial of the century but one that’s not likely to have a speedy outcome.
What’s next?
EarthRights International reports that this lawsuit could take years due to the complexity, which gives us time to do a deep dive into the attorneys for the plaintiffs and the defendants.