Boulder vs. Exxon: A New Chapter in the Legal Battle over Climate Change

Last Tuesday, the city of Boulder, Colorado filed suit in Boulder District Court against two major fossil fuel companies, ExxonMobil and Suncor, in an effort to hold the fossil fuel industry accountable for costs of adapting to climate change. The city was joined in the lawsuit by two Colorado counties: Boulder County, which contains the city, and San Miguel County, home to the ski resorts of Telluride.

While a number of municipalities have filed similar lawsuits, Boulder’s is notable as the first from somewhere other than the coasts. Previous lawsuits have focused primarily on sea level rise, which is not (yet) a concern in Colorado; instead, Boulder’s filing focuses on issues of weather and water security. Warming temperatures have caused a rapid decline in snowpack, with major economic implications for Colorado’s ski industry, the country’s largest. Snowmelt is the source of the vast majority of water in the Colorado River, the water source for most of the Southwestern United States. Warmer temperatures could also expand the range of bark beetles, which, added to a sharp increase in wildfire risk, poses a significant threat to Colorado’s forests.

The suit accuses ExxonMobil and Suncor of acting “recklessly” in “selling and promoting fossil fuels without disclosing the dangers” of the continued use of fossil fuels, conduct that has endangered the health and safety of municipal residents and amounts to the creation of a public nuisance. Beyond this, the suit also accuses the defendants of trespass, with their contributions to climate change “causing flood waters, fire, hail, rain, snow, wind and invasive species to enter Plaintiffs’ property.” It also raises the idea that fossil fuel companies, by failing to disclose the risks of climate change, engaged in a deceptive trade practice in violation of the Colorado Consumer Protection Act. A lawsuit on similar grounds in Massachusetts recently won a major victory when the state’s Supreme Judicial Court found that the Attorney General has jurisdiction to investigate whether the company misled the public about climate change.

The bulk of the document is dedicated to the statement of facts, proving that fossil fuel companies were fully aware of the risks associated with climate change and nevertheless substantially contributed to it, all while concealing the dangers from the public. The lawsuit relies on documents from as long ago as 1968, when the American Petroleum Institute, the trade association for US oil and gas manufacturers, found that fossil fuels were responsible “for the additional CO2 now being observed in the atmosphere.” Despite this knowledge, the companies ran advertisements “downplaying the risks of climate change and emphasizing uncertainty,” a claim at odds with their own internal research.

The municipalities specify that they are not seeking to end oil and gas operators or sales, or to enforce any sort of emissions controls. All they seek is monetary compensation for the costs they have incurred in attempting to mitigate the effects of climate change, as well as money to cover the “reasonably certain” future damages that climate change will cause. These costs include a wide array of municipal expenditures, including responding to wildfires, repairing flood damage, and compensation for the decline in value of agricultural holdings as a result of climate change. Estimates put these costs of adaptation for Boulder County alone in the hundreds of millions through 2050.

The facts of the case are indisputable: climate change, almost entirely the result of the products manufactured by companies like ExxonMobil and Suncor, is producing significant and increasing costs for people across the world. Those manufacturers knew that their products would cause people to suffer those costs, but rather than alerting the public to this danger, the fossil fuel industry engaged in a systematic campaign of deception aimed at fostering denial and obfuscating the real costs of climate change. In the United States, given the lack of climate action at a federal level, those costs—in the form of controlling invasive species, managing dwindling water sources, and a myriad of other municipal responsibilities—have overwhelmingly been borne by local taxpayers.

While it may initially seem difficult to assign blame for a global phenomenon to a specific company, advances in climate attribution science have succeeded in tracing a direct relationship between specific climate change damages and specific fossil fuel products sold by companies like ExxonMobil. The question raised by the Boulder suit is simple: we know exactly which companies caused the problem. Should they be held responsible?

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