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.

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.

<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>

Tenth Circuit Ruled that Colorado Municipalities’ Climate Case Against Energy Companies Belonged in State Court

Filed

United States of America

Colorado

The Climate Litigation Database

Find climate change litigation data and indicators for {text}.

{text} litigation

Sabin Center for Climate Change Law provides Climate Litigation Database, a comprehensive database of US and Global climate change caselaw

Quickly and easily search through the complete text of thousands of climate change law and policy documents from every country.

Search the Climate Litigation Database

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.

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

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.

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

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.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

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.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The activities of industries that transforms raw materials into finished goods through industrial processes.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the wholesale and retail selling of goods.

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

This sector provides communication services, software development, and IT solutions.

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

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

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.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

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.

Tenth Circuit Ruled that Colorado Municipalities’ Climate Case Against Energy Companies Belonged in State Court

Policy instrument

Risk

Impacted group

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance