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.

Action by Colorado local governments seeking damages and other relief from fossil fuel companies for climate change harms.

County Commissioners of Boulder County v. Suncor Energy USA, Inc.

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

Colorado Supreme Court Said Federal Law Did Not Preempt Common Law Tort Claims in Boulder’s Climate Change Suit Against Fossil Fuel Companies

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Actions to reduce emissions in energy generation and supply.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Work that is productive and delivers a fair income, security in the workplace and social protection for all, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity.

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

This sector involves the wholesale and retail selling of goods.

This sector involves activities to move goods and people, alongside the storage of products.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

Colorado Supreme Court Said Federal Law Did Not Preempt Common Law Tort Claims in Boulder’s Climate Change Suit Against Fossil Fuel Companies

Policy instrument

Risk

Just transition

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance