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

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.

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A Colorado District Court in Boulder County denied fossil fuel company defendants’ motion to transfer the City of Boulder and Board of County Commissioners of Boulder County’s action seeking damages for climate change harms to Denver County District Court, but ruled that venue for the claims of the third plaintiff—the Board of County Commissioners of San Miguel County—would only be proper in San Miguel County. The court found that a forum selection clause in a 2009 Master Contract between one of the defendants and San Miguel County for sale and purchase of asphalt that specified Denver as the venue did not apply; nor did the forum selection clauses in “Confirmation Contracts” that the defendant and San Miguel County executed in 2018 and 2019 after this lawsuit commenced. The court found that the public nuisance venue statute did not apply because the plaintiffs sought damages, not an injunction to abate the nuisance; the court also found that venue was not proper in Boulder County under the venue statute for tort actions because the plaintiffs did not satisfy their burden of demonstrating that the alleged tortious conduct and deceptive trade practices did not occur in the county. In addition, the court declined to find venue was proper in Boulder County based on the defendant’s subsidiary’s production of fossil fuels in the county. The court agreed, however, with the City and County of Boulder that venue was proper under the statute governing venue in actions affecting real property because the City and County alleged direct injury to real property in the county and sought remedies related to that property. The court further found that the plaintiffs conceded that venue in Boulder County was not proper for San Miguel under this statute. Counsel for San Miguel County <a href="https://earthrights.org/media/colorado-fossil-fuel-accountability-case-will-continue-in-boulder-county-court/">indicated</a> that claims against a defendant that did not join the venue transfer motion would continue to be heard in Boulder County.

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