Appeals Court Confirms that Historic Climate Lawsuit will Proceed in State Court

In the first ruling of its kind, the United States Court of Appeals for the Tenth Circuit ruled today that the historic climate accountability lawsuits filed by Boulder County, San Miguel County, and the City of Boulder will continue to proceed in state, rather than federal, court. This decision sets a precedent for more than two dozen similar cases across the country.

The cases, against oil companies Exxon Mobil and Suncor for their decades of misinformation and other contributions to the climate crisis, had been proceeding in state court following an initial decision from the Tenth Circuit in 2020. Last year, however, the Supreme Court decided in BP v. Baltimore that the appeals court had to take another look at the issues in this case and several other climate accountability cases.

“This is a massive win for the people of Colorado and for all communities on the frontlines of the climate crisis,” said Marco Simons, General Counsel for EarthRights International, which represents the plaintiff communities. “The oil companies’ strategy has been to delay these cases and to move them from court to court. But these lawsuits are now moving again, bringing these communities closer to remedies for the serious climate harms they are facing.”

Last month, the Marshall Fire tore through Boulder County, causing unprecedented damage. Colorado has experienced significant warming, increased risk of wildfires and droughts, and reduced snowpack. Experts agree that these impacts are evidence of a climate changed by fossil fuel use.

“We are pleased with the court’s decision to allow our groundbreaking lawsuit against Exxon and Suncor to proceed here in Colorado,” said Boulder Mayor Aaron Brockett. ”Boulder and Boulder County know all too well the threats climate change poses to our communities. It’s time we make those responsible pay.”

“We are pleased the courts are moving this case forward because climate change and its devastating impacts on our communities are not waiting,” said Marta Loachamin, chair of the Boulder County Board of Commissioners. “The destruction of the Marshall Fire underscores the urgency of the climate crisis and the importance of finding ways to pay for the costs of climate disasters so that we can rebuild and prepare for the next climate disaster.”

“We are facing climate change each and every day,” added Kris Holstrom, chair of the San Miguel County Board of Commissioners. “Addressing current impacts as a small local government falls increasingly on our taxpayers at a time when costs keep rising. We believe fossil fuel companies that have reaped huge financial benefits have a responsibility to pay for their contributions to climate change. We applaud this decision and look forward to having this matter heard in state court.”

The Baltimore case itself was re-argued to the Fourth Circuit Court of Appeals on Jan. 25, 2022. A decision in that case and several others are pending. “We hope that other courts will follow the Tenth Circuit’s lead, and quickly move to allow these cases to proceed in state court,” said Simons.

In addition to EarthRights, the plaintiffs are represented by David Bookbinder, Chief Legal Counsel of the Niskanen Center, and Kevin Hannon of the Hannon Law Firm LLC.