Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc.

A 5-2 majority of the Colorado Supreme Court concluded that federal law did not preempt common law tort claims brought by the County Commissioners of Boulder County and the City of Boulder (together, Boulder) under Colorado law against four fossil fuel companies seeking damages for the companies’ alleged role in exacerbating climate change and causing harm to Boulder and its residents. Boulder asserted claims of public and private nuisance, trespass, unjust enrichment, and civil conspiracy. The court concluded that federal common law did not preempt Boulder’s state law common law claims because the Clean Air Act had displaced federal common law concerning air pollution. Instead, the court considered whether the Clean Air Act preempted the claims and determined that no form of preemption—express, field, or conflict—applied. The court also found that Boulder’s claims did not involve “uniquely federal areas of regulation” and that litigating the claims “would not upset any balance set by Congress because Boulder’s claims do not seek to impose liability for activities” regulated by the Clean Air Act. The court also disagreed with the fossil fuel companies’ contention that Boulder asserted what formerly would have been federal common law claims. The court said Boulder was not bringing an action against a “pollution emitter to abate pollution” but instead was seeking “damages from upstream producers for harms stemming from the production and sale of fossil fuels.” The court also found that the defendants did not support the proposition that because federal common law formerly existed, the Constitution’s structure precluded application of state law even though the federal common law no longer existed. The court also rejected the contention that state law claims previously preempted by federal common law could only proceed if authorized by federal statute. In addition, the court rejected arguments that Boulder’s claims were essentially attempts to regulate greenhouse gas emissions and therefore preempted by the Clean Air Act; instead, the court found that the common law claims “seek compensation for allegedly tortious conduct” not addressed by the Clean Air Act. The court also was not persuaded that the federal foreign affairs power preempted Boulder’s claims. The Supreme Court discharged the order to show cause and remanded to the district court for further proceedings, noting that it was not expressing any opinion on the “ultimate viability” of the claims. Two justices dissented. They would have considered whether the Clean Air Act affirmatively authorized “the interstate aspect of Boulder’s claims” and would have concluded that it did not. They also would have concluded that the federal government’s “primacy in foreign affairs” precluded the international aspect of Boulder’s claims.

The Colorado Supreme Court scheduled oral argument for February 11, 2025 in the climate change case brought by the City of Boulder and Boulder County against Exxon Mobil Corporation, Suncor Energy USA, Inc., and related companies. The Supreme Court agreed in July 2024 to consider whether a district court erred when it allowed the City and County to proceed with claims under state law.

On April 24, 2023, the U.S. Supreme Court denied fossil fuel industry defendants’ petitions for writ of certiorari seeking review of decisions affirming remand orders that sent climate change cases brought by state and local governments back to state courts. The fossil fuel companies had asked the Court to consider whether there was federal jurisdiction over state-law claims seeking redress for injuries allegedly caused by the effects of interstate or transboundary greenhouse gas emissions on the global climate because federal common law necessarily governs such claims. Justice Alito did not participate in the consideration of or decision on the petitions. In the case brought by Colorado local governments, the order list noted that Justice Kavanaugh would have granted the petition. The April 24 denials of certiorari involved decisions by four circuit courts of appeals (First, Fourth, Ninth, and Tenth) and 11 cases.

On March 16, 2023, the Solicitor General filed a brief expressing the United States’ view that the Supreme Court should deny fossil fuel companies’ petition for writ of certiorari seeking review of the affirmance of a remand order in a climate change case brought by three local governments in Colorado. The brief argued that the Tenth Circuit Court of Appeals “correctly declined to recharacterize [the local governments’] state-law claims” as arising under federal common law because the Clean Air Act had displaced any relevant federal common law and no exception to the well-pleaded complaint rule applied. The brief asserted that the Grable test for when a state-law claim necessarily raises an actually disputed and substantial federal issue was not satisfied because “no federal issue is ‘embedded’ within respondents’ own articulation of their claims.” The Solicitor General’s brief also argued that “artful pleading” and complete preemption exceptions to the well-pleaded complaint rule did not apply. The brief contended that the Tenth Circuit’s affirmance of the remand order did not conflict with decisions in other courts of appeals, including the Second Circuit’s affirmance of the dismissal of <a href="https://climatecasechart.com/case/city-new-york-v-bp-plc/">New York City’s state-law claims</a> against fossil fuel companies.

The fossil fuel companies requested that the time to file be extended until July 8, which the companies said would allow them “to sharpen the issues for review.”

Justice Gorsuch granted an application to extend the time for filing a petition for writ of certiorari seeking review of the Tenth Circuit’s opinion affirming the remand order in the case brought by Boulder County, the City of Boulder, and San Miguel County. Justice Gorsuch extended the time to file until June 8, 2022.

On May 24, 2021, the Supreme Court granted the fossil fuel companies' petition for writ of certiorari and vacated the Tenth Circuit's judgment affirming the remand order. The Supreme Court remanded to the Tenth Circuit for consideration of grounds for removal other than the federal-officer removal statute in light of the Court's May 17 decision in BP p.l.c. v. Mayor & City Council of Baltimore.

The Boards of County Commissioners of Boulder County and San Miguel County and the City of Boulder (plaintiffs) filed their opposition to fossil fuel companies’ petition for writ of certiorari seeking review of the district court order remanding their climate change case. The plaintiffs agreed with the companies that this case presented the same question regarding the scope of appellate review of remand orders as <a href="https://climatecasechart.com/case/mayor-city-council-of-baltimore-v-bp-plc/">BP p.l.c. v. Mayor & City Council of Baltimore</a>, in which the Court heard oral argument in January. The plaintiffs did not object to the companies’ position that the petition should be held pending the decision in Baltimore and then disposed of pursuant to the Baltimore decision. The Court distributed the petition for its April 16 conference and then again for its May 20 conference.

In December 2020, fossil fuel companies filed a petition for writ of certiorari seeking review of the Tenth Circuit decision affirming the remand order in the climate change case brought by the City of Boulder and Boulder and San Miguel Counties in Colorado. The companies requested that the petition be held pending the outcome of the Baltimore case since their petition raises the same jurisdictional issue.

Justice Sotomayor, the circuit justice for the Tenth Circuit, <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19a428.html">denied</a> the application for recall of the remand order. The federal district court in the case notified the state court of the remand order on October 8, immediately after denying oil and gas companies’ emergency motion for a stay.

On February 8, 2022, the Tenth Circuit Court of Appeals affirmed the remand order sending a case brought by three Colorado municipal governments alleging climate change-based claims against energy companies back to state court. In a 2020 decision, the Tenth Circuit affirmed the remand order but only reached the question of whether the defendants had properly removed the case based on the federal officer removal statute. In 2021, however, the Supreme Court vacated that decision after holding in <a href="https://climatecasechart.com/case/mayor-city-council-of-baltimore-v-bp-plc/">Mayor & City Council of Baltimore v. BP p.l.c.</a> that appellate jurisdiction over remand orders such as this one, where federal officer removal was one of the asserted grounds for removal, extends to the entire remand order, and not just to federal officer removal. In its February 8 decision, the Tenth Circuit again considered and rejected federal officer removal as a basis for federal jurisdiction, concluding that the companies did not establish that one of the defendants, ExxonMobil Corporation (Exxon), “acted under” a federal officer by complying with the terms of its outer continental shelf leases. Second, the Tenth Circuit found that federal district courts would not have original jurisdiction over the municipal governments’ case. The Tenth Circuit held that neither federal common law nor the Clean Air Act completely preempted the municipalities’ state-law claims. The Tenth Circuit distinguished the Second Circuit’s 2021 decision affirming the dismissal of New York City’s climate change-based claims against energy companies, noting that the Second Circuit’s decision was not in the removal context, which allowed the Second Circuit to consider the companies’ ordinary (as opposed to complete) preemption defense. The Tenth Circuit also held that there was no “substantial federal question” (i.e., Grable) jurisdiction because the federal issues asserted by the companies—related to foreign affairs and weighing of the costs and benefits of fossil fuel production—were neither necessary to the municipalities’ claims nor substantial to the federal system. In addition, the Tenth Circuit rejected the companies’ argument that there was federal enclave jurisdiction based on the complaint’s allegations of injuries within Rocky Mountain National Park and the Uncompahgre National Forest. The Tenth Circuit also found that there was not a sufficient connection between the municipalities’ claims and Exxon’s operations on the outer continental shelf to provide a basis for jurisdiction under the Outer Continental Shelf Lands Act.

On July 22, 2024, the plaintiffs filed a motion in the district court to direct a partial final judgment as to the court’s dismissal of defendant Suncor Energy, Inc. for lack of personal jurisdiction, so that the plaintiffs could immediately appeal the dismissal.

On July 5, 2024, the defendants filed a motion in the district court for certification for immediate appeal of the court’s order on the motion to dismiss. The defendants said they wished to petition the Colorado Court of Appeals for permission to appeal the question of whether federal law precludes state law claims for injuries allegedly caused by global climate change.

The Colorado District Court in Boulder County allowed the City of Boulder and Boulder County to proceed with climate change-based common law claims against three energy companies but dismissed the Canadian parent company of one of those defendants from the lawsuit and dismissed, without prejudice, a claim under the Colorado Consumer Protection Act (CCPA). The local governments allege that the companies concealed and misrepresented the climate change impacts of fossil fuel products while continuing to market and sell the products, leading to injuries from extreme weather, wildfires, and other climate change impacts. The court first addressed personal jurisdiction, finding that the local governments did not establish that Exxon Mobil Corporation (Exxon) consented to general jurisdiction in Colorado courts but that the local governments did show specific jurisdiction over Exxon. Although the court said it indisputably had personal jurisdiction over the owner of an oil and gas refinery in Colorado, the court dismissed the owner’s Canadian parent entity for lack of personal jurisdiction. The court next considered the companies’ preemption arguments and concluded that neither the federal common law nor the Clean Air Act preempted the local governments’ claims. The court also rejected the energy companies’ contentions that the claims were preempted because they interfered with the federal government’s foreign affairs power, violated separation of powers and federalism principles, or violated the dormant Commerce Clause’s extraterritoriality doctrine, the Due Process Clause, or the First Amendment. The court then concluded that the local governments had adequately alleged an injury in fact to establish standing. The court dismissed the claim under the Colorado Consumer Protection Act (CCPA) as time-barred because the alleged specific misleading and deceptive communications to the public were made more than four years before the lawsuit was filed and there were insufficient factual allegations regarding whether the governments filed their claim within three years after they discovered or should have discovered the alleged misleading and deceptive communications. (As noted below, the dismissal of the CCPA claim was without prejudice.) The court concluded, however, that statutes of limitations did not bar the governments’ common law tort claims because they were subject to the continuing tort doctrine. On the merits, the court rejected the energy companies’ arguments that the governments did not sufficiently plead causation. The court further found that the local governments plausibly alleged causes of action for private and public nuisance, trespass, and civil conspiracy claims. The court declined to grant the motion to dismiss the unjust enrichment claim because the motion did not include a separate section elaborating on the challenge to this claim. The court dismissed the CCPA claim without prejudice for failure to meet heightened pleading standards for fraud-based claims. The local governments were granted leave to amend by August 8, 2024 to more particularly plead the CCPA claim.

The court held oral arguments on February 1, 2024 on motions to dismiss Boulder County’s case.