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

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On September 6, 2019, the court granted the defendants’ emergency motion for a temporary stay pending the court’s ruling on the defendants’ motion for a stay pending appeal.

On September 5, 2019, a federal district court in Colorado ruled that oil and gas companies had not met their burden of showing that federal jurisdiction existed for climate change-related claims asserted by Boulder County, San Miguel County, and the City of Boulder. Citing the well-pleaded complaint rule, the court concluded that removal was not appropriate based on federal question jurisdiction because the plaintiffs’ claims did not on their face raise the federal issues of energy, the environment, and national security. The court said the defendants’ argument that the plaintiffs’ state law claims were governed by federal common law appeared to be a matter of ordinary preemption, which would not provide a basis for federal jurisdiction. The district court also found that the defendants did not establish that the plaintiffs’ claims necessarily depended on the resolution of a substantial question of federal law. In addition, the court rejected the contention that the Clean Air Act or foreign affairs doctrine completely preempted the plaintiffs’ claims and also indicated that federal common law would not provide a basis for complete preemption. The court also was not persuaded that federal jurisdiction existed based on federal enclave jurisdiction, federal officer jurisdiction, jurisdiction under the Outer Continental Shelf Lands Act, or jurisdiction based on the claims’ relationship to bankruptcy proceedings.

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On October 12, 2018, fossil fuel company defendants in the climate change lawsuit brought by the City of Boulder, Boulder County, and San Miguel County filed their opposition to remand. The companies argued that the claims necessarily arose under federal common law, and that even if only state-law claims were asserted, the claims necessarily raised disputed and substantial federal issues. In addition, the companies argued that the Clean Air Act and other federal statutes completely preempted the claims and that federal jurisdiction was also available pursuant to the Outer Continental Shelf Lands Act, the federal officer removal statue, federal enclave doctrine, and the bankruptcy removal statute.

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On August 31, 2018, Boulder County, San Miguel County, and the City of Boulder filed a memorandum of law in the federal district court for the District of Colorado in support of their motion to remand their case seeking to hold fossil fuel companies liable for causing climate change-related damages, including increased wildfires, extreme weather, and drought. They filed the remand motion on July 30, 2018. In the memorandum of law, the plaintiffs argued that they had “filed state law claims, in state court, for harms suffered entirely in Colorado.” They argued that the well-pleaded complaint rule therefore foreclosed the fossil fuel companies’ argument that their claims were actually federal common law claims. In addition, they asserted that even if an unpled federal common law claim could be the basis for removal, federal common law did not govern their claims. The plaintiffs also argued that federal issues raised by the defendants were defenses and therefore did not create federal jurisdiction. In addition, the plaintiffs asserted that the Clean Air Act did not completely preempt their claims, and that the defendants’ other avenues for federal jurisdiction were not viable.

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On July 30, 2018, the Boulder County Board of County Commissioners, the San Miguel County Board of County Commissioners, and the City of Boulder moved to remand their climate change lawsuit against four fossil fuel companies to state court. The plaintiffs said they would fully brief the remand issues in accordance with a schedule ordered by the court.

The court set a schedule for the remand motion. The plaintiffs’ brief is due on August 31, the defendants must file a response by October 12, and the plaintiffs may file a reply on or before November 12. The court denied without prejudice a motion for an indefinite continuance of discovery and initial disclosures and said the parties could re-file before a magistrate judge if they consented to magistrate judge jurisdiction.