10th Circuit hands Boulder's climate lawsuit the home court advantage
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(Reuters) - An appeals court on Tuesday said a lawsuit by Colorado municipalities accusing oil giants of climate change-related harm should be heard in state court, clearing an important hurdle for the municipalities, which seek millions of dollars to adapt infrastructure.
A panel of the U.S. Circuit Court of Appeals for the 10th Circuit disagreed for the second time with defendants Suncor Energy USA Inc and Exxon Mobil Corp that the lawsuit seeking damages to cover the costs of adapting to climate change belongs in federal court, a venue that has proven less favorable to plaintiffs.
Casey Norton, a spokesperson with Irving, Texas-based Exxon, said that lawsuit is "wast(ing) millions of dollars of taxpayer money and do(ing) nothing to advance meaningful actions that reduce the risks of climate change." Canada-based Suncor did not immediately respond to a request for comment.
The 10th Circuit is the first of a handful of appeals courts to issue a decision regarding where these climate "nuisance" cases should be heard, after the U.S. Supreme Court in May ordered them to consider all of the oil and gas companies' arguments in similar cases, rather than limit themselves to one technical point.
In Tuesday's ruling, U.S. Circuit Judge Carolyn McHugh in Denver rejected the oil firms' argument that the plaintiffs had made their allegations under state law "to conceal the federal character of their claims in state garb." The panel also rejected the firms' argument that the case is inherently federal because the Clean Air Act displaces state law.
"The CAA is designed to provide a floor upon which state law can build, not a ceiling to stunt complementary state-law actions," McHugh wrote.
The city of Boulder and San Miguel and Boulder counties filed the case in 2018 saying the oil companies created a public and private nuisance in addition to violating the state's consumer protection act by producing fossil fuels in Colorado and selling them despite knowing their activities threatened the climate.
About two dozen similar lawsuits are underway nationwide, including ones by Baltimore and Rhode Island.
Boulder Mayor Aaron Brockett said in a statement that he was pleased with the decision. "It's time we make those responsible pay," he added.
The case is Boulder County Commissioners v. Suncor Energy USA Inc, U.S. Circuit Court of Appeals for the 10th Circuit, No. 19-1330.
For Boulder County Commissioners, et al: Rick Herz of EarthRights International; and David Bookbinder of David Bookbinder Law Office
For Suncor Energy: Hugh Gottschalk and Evan Stephenson of Wheeler Trigg O'Donnell
For Exxon Mobil: Kannon Shanmugam of Paul, Weiss, Rifkind, Wharton & Garrison
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