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. 

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

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

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Colorado Trial Court Denied Motions to Dismiss Local Governments’ Common Law Climate Claims Against Energy Companies; Canadian Company and Consumer Protection Law Claim Dismissed

Filed

United States of America

Colorado

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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.

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

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Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

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.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

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

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

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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.

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Colorado Trial Court Denied Motions to Dismiss Local Governments’ Common Law Climate Claims Against Energy Companies; Canadian Company and Consumer Protection Law Claim Dismissed

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Finance