Colorado justices mull lawsuit over fossil fuel producers’ liability for local climate change harms 

Members of the Colorado Supreme Court considered on Tuesday whether to permit Boulder County and the city of Boulder to seek damages against two fossil fuel producers for the harms they allegedly caused over multiple decades by concealing and misrepresenting the dangers of climate change.Although the lawsuit is the first of its kind to reach the state’s highest court, the case has already wound its way through every level of the federal court system and resembles litigation that courts around the country have already considered.The local governments’ claims implicate a variety of political and policy questions, including the executive and legislative branches’ prerogative to set energy policy and the slippery slope of permitting every municipal government to potentially seek money from private entities for climate-related disasters.But the legal question during oral arguments was straightforward: Can the plaintiffs even rely on state law in the first place to seek localized damages for localized climate change injuries?”This is Boulder. Some other county in another state could bring another lawsuit and if they recover a large verdict, that’s gonna change their behavior. That’s gonna change policy,” said Justice Carlos A. Samour Jr. “So, how do we deal with that?”Compensation for injuriesIn the plaintiffs’ telling, the defendants — ExxonMobil and Suncor — knew for decades that the burning of fossil fuels and the release of greenhouse gases into the atmosphere would change the planet’s climate. Yet, the companies misrepresented or concealed their internal findings from the public. As a result, Boulder County and the city of Boulder have had to spend money to address droughts, wildfires and other manifestations of extreme weather.The plaintiffs brought claims of trespass, nuisance and civil conspiracy under the state’s common law — which refers the longstanding category of civil claims that does not originate with a specific statute. In their telling, the lawsuit was not about regulating emissions or influencing federal policy, but to use the same tools as plaintiffs who are harmed by faulty products, for example.On their side, the local governments wielded a 2023 decision of the Hawaii Supreme Court, finding the city of Honolulu’s similar state-law claims against Sunoco and other defendants could proceed. Last month, the U.S. Supreme Court declined to review that decision. The outgoing Biden administration submitted a brief in support of Honolulu, arguing the claims should proceed even if the evidence later shows federal law blocks the energy companies’ liability for specific acts.Federal or state court?Meanwhile, the defendants in the Boulder County case leaned on a different decision out of the New York-based U.S. Court of Appeals for the Second Circuit. In that lawsuit, where New York City sued ExxonMobil and other energy corporations, the Second Circuit ruled that the city would be “jeopardizing our nation’s foreign policy goals