DENVER (Legal Newsline) - The rest of Colorado seems to have little interest in following the lead of three communities in the state that have sued Big Oil over the alleged effects of global warming.
State and local officials have so far rejected the blueprint used by Boulder, which is represented by attorneys at two nonprofits and a Denver personal injury lawyer who stands to make 20% of any recovery in litigation against Exxon and Suncor.
The city and county of Boulder and San Miguel County, home to the skiing resort Telluride, filed their lawsuit earlier this year, but no communities have followed them to the courthouse – even though the lawsuit was pitched as a low-risk, high-reward strategy funded by the lawyers, not the taxpayers.
“If you asked most people in Colorado what community would take the lead in something like that, it would be Boulder,” said Gale Norton, the former Secretary of the Interior under President George W. Bush who also served as Colorado’s attorney general in the 1990s.
“San Miguel County is where Telluride is located, so that’s a ski community in far southwestern Colorado. It’s very much focused on skiing and the public grounds around it, so they are arguing their concerns.”
The energy industry – and federal judges – are concerned that these lawsuits are missing the mark. Contrary to Colorado, the idea to sue over the “public nuisance” allegedly caused by oil companies spread in California, where eight communities have filed suit – including Richmond, where Chevron is the city’s largest employer and taxpayer.
Richmond and five others are hoping to have their cases heard in state court, while a federal judge has already dismissed the lawsuits of San Francisco and Oakland, ruling that federal common law claims like “public nuisance” are preempted by the Clean Air Act.
The California cases are pushed by the law firms Hagens Berman and Sher Edling, who will make a percentage of any settlement or award. Hagens Berman also has a lawsuit in King County, Wash., and its New York City case - recently booted from court - is being appealed by the City.
“It’s interesting that it was only Boulder city and county and the Telluride area that joined in the lawsuit,” said Norton, who has also worked at Royal Dutch Shell – a defendant in many of the cases.
“It appears Boulder tried to recruit other communities to join in and a number of those near Boulder are similarly college-based communities that are impacted by energy development.
“It’s interesting to me that those communities did not join in the lawsuit.”
Supporting that thinking has been Colorado’s current attorney general Cynthia Coffman, who came out against the claims being pursued by asking for the dismissal of the lawsuits of San Francisco, Oakland and New York City.
Coffman joined more than a dozen of her Republican colleagues in an amicus brief that said it is not up to the judiciary to regulate greenhouse gas emissions – it is the job of state and federal governments enforcing the Clean Air Act.
“She has common sense and she understands the industry,” Norton said.
“She’s someone who has seen Colorado’s economy flourish with the oil and gas industry and its recent boom here in Colorado – more on the natural gas side of things.”
Those companies employ a great deal of Colorado citizens, so joining any lawsuit against the energy sector might not have been appealing to public officials relying on their votes. In fact, George Brauchler felt the need to write an op-ed decrying the suits as he seeks to succeed Coffman, who is running for governor.
"Climate change lawsuits are not about enforcing laws," Brauchler wrote. "The plaintiffs, driven by seasoned activist attorneys, are using the façade of fairness to single out a single industry."
Of course, it could all change if Boulder is successful, given that it could provide a huge payday for the city and its contingency fee lawyers.
“I think you’re going to continue to see the contingency fee attorneys trying to recruit cities or states as clients and try different approaches,” Norton said.
“Here in Boulder, you have just two energy companies named, as opposed to they could have possibly named dozens or hundreds that might, it could be argued, have shared in the distribution of the products that generated greenhouse gases.”
The lawsuits seek funds to build infrastructure projects – not to change the acceptable level of greenhouse gas emissions. Norton said other Colorado communities might be hesitant to spend time in litigation that could be spent on other efforts.
“There are a lot more opportunities to resolve issues by discussion and negotiations and community planning and so forth so that you don’t have to go to litigation,” she said.
“I don’t see the immediate benefits.”
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.