Boulder is at it again, being "Boulder"

https://www.nytimes.com/2018/04/18/climate/exxon-climate-lawsuit-colorad...

Climate Lawsuits, Once Limited to the Coasts, Jump Inland

By John Schwartz

April 18, 2018

Until recently, communities suing fossil fuel companies over the costs of climate change have been located on the coasts: cities and counties in California, and New York City. But now, the litigation has jumped inland.

Boulder and San Miguel Counties in Colorado, along with the city of Boulder, filed a lawsuit on Tuesday against two oil companies, Exxon Mobil and Suncor Energy, the Canadian giant. The suit, filed in state court, argues that fossil fuels sold by the companies contribute to climate change, which in turn has exacerbated wildfires, droughts, severe storms and other symptoms of a warming planet that have far-ranging effects on agriculture and tourism.

Dealing with these climate-related issues, the suit says, places a burden on local governments. “Our communities and our taxpayers should not shoulder the cost of climate change adaptation alone,” said Suzanne Jones, Boulder’s mayor. “These oil companies need to pay their fair share.”

The earlier lawsuits have largely focused on the obvious link between climate change, namely rising sea levels and damage to infrastructure. This new climate suit, far from the coasts, suggests that more communities around the country might take on energy companies in court.Each case could mean billions of dollars in damages.

But not without a fight. Exxon Mobil and its allies have pushed back hard.

Exxon gave notice in January in a state court in Texas that it planned to countersue, which would allow the company to demand documents and depositions from the communities. The fossil fuel company defendants have also acted together in California courts to have suits dismissed, arguing that climate change is a “national and global issue” best decided by legislatures and nations, not by the courts.

Industry pressure has not deterred officials like Kathrin Sears, the supervisor for District 3 of Marin County, Calif., which brought one of the first suits. “We expected from the get-go that there would be strong pushback, and that this would be a fight,” she said. “We’re not intimidated by this stuff.”

As for the newcomers, she said, “It’s good to have company.”

The state-level climate lawsuits focus on the area of nuisance under common law, which allows courts to hold parties responsible for actions that interfere with the use of property.

Attempts at the federal-court level to use nuisance in climate change litigation, in cases such as American Electric Power v. Connecticut, have been unsuccessful. In a unanimous 2011 decision, the Supreme Court said that the Clean Air Act displaced the federal common law of nuisance, leaving enforcement and regulation to the Environmental Protection Agency.

The new wave of cases relies on the nuisance doctrine at the state level, working from the theory that state common law has not been similarly displaced. The companies, understandably, have tried to get the cases moved to federal court, with mixed success.

In one case, Judge William Alsup of Federal District Court in San Francisco has suggested that the federal courts could still hear such cases. He kept the suits filed by San Francisco and Oakland and ordered a “tutorial” on climate change to familiarize himself with the scientific issues before setting a trial. In another case, Judge Vincent Chhabria — also of Federal District Court in San Francisco — sent the cases of California’s San Mateo and Marin counties and the City of Imperial Beach to state court.

Exxon has said its opponents are stifling “its First Amendment right to participate in the national dialogue about climate change and climate policy.” And, it has argued that it is a victim of a “conspiracy” brought by environmental zealots funded by activist philanthropists like the Rockefeller family.

In addition, in a line of counterattack, the company has argued that while the lawsuits against it claim that “imminent sea level rise presented a substantial threat,” municipalities and counties did not disclose the threat of climate change in their bond offerings.

The National Association of Manufacturers, which supports the fossil fuel companies, has focused on that point in a spirited campaign against the communities and their lawyers. In April, the group’s Manufacturers’ Accountability Project sent a letter to the Securities and Exchange Commission demanding an investigation of “potential wrongdoing” by those suing. When the Colorado case was announced, the group denounced the “baseless lawsuit” as “another example of trial attorneys attempting to enrich themselves at the expense of manufacturers and manufacturing workers.”

Daniel A. Zarrilli, New York City’s chief resilience officer, rejected the industry’s argument that local governments are being enticed into filing the suits by trial lawyers. “They’re going to throw a lot of things at the wall and see what sticks,” he said.

While most of the communities and environmental groups involved in these lawsuits can be considered on the liberal side of the political spectrum, one of the groups collaborating on the Colorado cases is decidedly not: the Niskanen Center, a libertarian policy group in Washington with a climate focus.

Jerry Taylor, the group’s president, said there was a conservative case for the suits. Rather than push for regulations, he said, it is better to deal with climate change in the courts, as a property rights issue.

David Bookbinder, a litigator who is working on the case with Niskanen, said that the companies had performed extensive research into climate change while paying others to help disseminate climate misinformation. “They knew this was going to happen,” he said of the companies, “and our taxpayers did not.” He added: “So why should we have to bear the burden of it?”

While the cases are generally considered long shots, legal underpinnings exist for the arguments, said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. But, he said, “The lawsuits are, without question, pushing the envelope of nuisance law and tort law.”

Should the cases reach the United States Supreme Court, Mr. Burger suggested that the communities’ chances would be slim. Even so, the litigation pressure on the companies could lead to settlements that would include changes in how the companies operate. They could, for example, trade a framework for carbon taxes that could finance infrastructure for protection from legal liability.

Exxon, which has publicly acknowledged climate change and supported the Paris climate agreement, has already said that it would support a carbon tax.

Serge Dedina, the mayor of Imperial Beach, Calif., who brought one of the first suits, said he expected more pressure to come from companies like Exxon. “They’re really good at that,” he said. “If Exxon Mobil spent as much time cleaning up their operations as they do fighting people who are trying to protect the planet, we’d be a lot better off.”

John Schwartz is part of the climate team. Since joining The Times in 2000, he has covered science, law, technology, the space program and more, and has written for almost every section. @jswatz•Facebook