Earlier today, the Colorado Supreme Court allowed Boulder’s seven-year-old climate lawsuit to limp forward, barely, even as the broader climate lawfare campaign faces growing bipartisan opposition nationwide. [emphasis, links added]
While courts across the country are tossing out similar suits, Boulder’s case now clings to life thanks to a divided ruling from Colorado’s high court.
But even with this procedural step, the path ahead is uncertain, and the plaintiffs now face additional years of grinding and pointless litigation, which does nothing to address climate change.
Crucially, the decision does not address whether Boulder’s claims are valid. Those questions remain for trial courts to evaluate, and plaintiffs face an uphill battle.
The decision in Colorado stands out against a backdrop of recent dismissals from judges in New Jersey, New York City, Baltimore, Annapolis, and Anne Arundel County.
A Forceful Dissent
The Colorado Supreme Court justices were not unified in their decision to let Boulder’s case move forward in trial court.
In a dissenting opinion, two justices from the court highlighted concerns about the potential implications of the majority’s decision on federal authority over interstate and global emissions.
Justices Carlos Samour and Justice Brian Boatright favored dismissing all of Boulder’s claims.
Their powerful dissent, written by Justice Samour, lays bare the dangers of letting the lawsuit proceed:
“Boulder is not its own republic; it is part of Colorado and, by extension, of the United States of America. Consequently, while it has every right to be environmentally conscious, it has absolutely no right to file claims that will both effectively regulate interstate air pollution and have more than an incidental effect on foreign affairs.”
The two justices also emphasized the destructive implications the majority’s decision may have on future cases, effectively leading to “regulatory chaos”:
“Because there are numerous other local governments within the United States doing just what Boulder has done (and yet others that will undoubtedly follow suit in thefuture), and because multiple out-of-state courts have now reached the conclusion my colleagues in the majority do in this case, I am worried that we are headed for regulatory chaos.”
Quoting Fleetwood Mac, Justice Samour concluded his dissent by urging the U.S. Supreme Court to take up the issue to avoid this chaos of a “patchwork of inconsistent local standards”:
“To borrow from Fleetwood Mac’s old hit song, the message our court conveys to Boulder and other Colorado municipalities today is that ‘you can go your own way’ to regulate interstate and international air pollution. In our indivisible nation, that just can’t be right. I respectfully dissent.”
The Lawsuit is About “Systems Change”
In the courtroom, the plaintiffs attested that their case simply seeks to recoup costs from activities that allegedly harmed the environment.
This was sufficient to convince the majority of the justices, who rejected companies’ claim that Boulder’s case is “an attempt to regulate GHG emissions.”
But time and time again, outside the courtroom, plaintiffs in Colorado revealed their true intentions are to reshape the energy mix and eliminate the use of fossil fuels.
As Energy in Depth has previously covered, city officials publicly argued the lawsuit actually means advancing a “fundamental systems change,” not a way to receive compensation for alleged climate change damages in the county.
A memo prepared for a Boulder City prepared for a Boulder City study session in 2021 makes the true goal clear: study session in 2021 makes the true goal clear:
“Boulder has also been a national leader in exploring the use of the legal system in pushing for larger systems-level change. Both through its active participation in multi-jurisdiction efforts — like the Clean Power Plan Plaintiffs group — or its climate liability lawsuit with Boulder and San Miguel Counties against ExxonMobil and Suncor, Boulder has demonstrated that there are a range of different levers cities can take hold of to drive more fundamental systems change.”
In this case, “fundamental systems change” plainly means “increase the price of fossil fuels.”
An attorney for the plaintiffs in 2020 was even more explicit, telling a reporter that one goal of the Boulder lawsuit is to raise the price of fossil fuel to reduce consumption:
“Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.” (emphasis added)
Bottom Line: Boulder’s lawsuit is part of a broader climate lawfare strategy that’s struggling to survive with growing bipartisan opposition. And as Justice Samour warns, letting municipalities go their own way invites regulatory chaos and undermines federal authority on global challenges like climate change.
The U.S. Supreme Court should heed Justice Samour’s call and bring clarity to this issue.
Top photo by Markus Spiske on Unsplash
Redad more at EID Climate
