Tenth Circuit Sides with Colorado Communities Struggling with Impacts of Climate Change – Update from Kaplan Kirsch Rockwell

In an important victory for Colorado communities grappling with impacts of climate change, the Tenth Circuit on Tuesday, July 7, 2020 sided with plaintiffs the City of Boulder, Boulder County, and San Miguel County, and dismissed Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc.  Affirming a lower court ruling, the Tenth Circuit held that plaintiffs’ state law claims seeking climate-change related damages from oil companies belong in state court.  Kaplan Kirsch & Rockwell LLP represented Colorado Communities for Climate Action (CC4CA), a non-profit coalition of 32 cities, towns, and counties through the state as an amicus curiae in the case. 

Plaintiffs alleged in state court that ExxonMobil Corp. and Suncor Energy Inc., companies with some of the largest oil operations in Colorado, knew about the dangers of increased burning of fossil fuels and deliberately misled the public and policymakers about the risks, causing local communities to face severe climate impacts, including increased risks of wildfire, drought, flooding, and severe heat, as well as rising costs to address these risks.  Suncor and Exxon argued that the plaintiffs’ state-law claims – which include nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act, and civil conspiracy – raised federal law issues, and removed the case to federal court.  The U.S. District Court for the District of Colorado sided with Plaintiffs and issued an order remanding the case to state court.  

On appeal of the district court’s remand order to the Tenth Circuit, CC4CA’s amicus brief explained that the oil companies’ position would result in unprecedented extension of federal preemption, deprive Colorado municipalities of their inherent powers to enforce laws within their jurisdictions, and rob them of the ability to obtain redress for the many harms they have caused Colorado communities. 

The Tenth Circuit panel rejected the oil companies’ sweeping arguments for federal court jurisdiction and held that only one portion of the district court’s remand order was reviewable on appeal – whether the claims were subject to the federal officer removal statute, which required Exxon and Suncor to show that their actions selling and promoting fossil fuels were completed under the direction of the federal government.  The court agreed with plaintiffs that the companies’ actions were not completed at the direction of the federal government and dismissed the appeal.  With this decision, the Tenth Circuit joins the Fourth and Ninth Circuits in holding that climate torts against fossil fuel companies based on state law should proceed in state court.  

Exxon and Suncor now have 150 days to file a petition with the U.S. Supreme Court asking it to review the Tenth Circuit’s decision.  A group of fossil fuel company defendants has filed a petition asking the Supreme Court to review a similar decision reached by the Fourth Circuit.  The fact that the Tenth Circuit has reached a similar conclusion as the Ninth and Fourth Circuits reduces the likelihood that the Supreme Court will grant that petition, because it shows that appellate courts are coalescing around an interpretation of the law rather than creating a circuit split for the Supreme Court to resolve.

Kaplan Kirsch & Rockwell attorneys Eric Pilsk, Sarah Keane, Sara Mogharabi, and Samantha Caravello prepared the amicus brief on behalf of CC4CA.  The Firm has an active climate change practice and regularly counsels clients on the constantly-evolving federal, state, and local landscape for climate change.  In Colorado, the firm has represented local governments, nonprofit organizations, and other parties on critical climate policies, including in regulatory proceedings and regulatory efforts to enable Colorado to achieve its science-based greenhouse gas reduction targets for 2025, 2030 and 2050.