DENVER (Legal Newsline) - Colorado's supreme court will let climate change litigation brought by Boulder move forward, giving the alliance of plaintiff lawyers and government officials a ray of hope after five rulings that said otherwise.
Companies like Exxon and Chevron face dozens of cases brought around the country and had scored five dismissals in a row until the Colorado Supreme Court ruled May 12 to deny Exxon and Suncor's motion to dismiss.
State court judges have refused to interject themselves in the international emissions debate, and two Colorado justices disagreed sharply with their colleagues who allowed Boulder's case to advance.
"Boulder is not its own republic; it is part of Colorado and, by extension, of the United States of America," dissenting justice Carlos Samour wrote. "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 case drew significant attention from associations that filed amicus briefs, like Colorado's plaintiff lawyer group, the U.S. Chamber of Commerce and the Natural Resources Defense Council.
Justice Richard Gabriel wrote the opinion for the 5-2 majority, which joins justices in Hawaii who reached a similar conclusion that let Honolulu's lawsuit proceed. Though asked to do so, the U.S. Supreme Court refused to hear Big Oil's appeal in that case.
Gabriel and the majority found the Clean Air Act didn't preempt the state law claims made by Boulder, like public nuisance.
"(T)he torts alleged in this case involve areas of traditional state responsibility," Gabril wrote.
"Moreover, we perceive no manner in which, through its tort claims Boulder is seeking to implement foreign policy. Nor have defendants demonstrated how Boulder's claims intrude on any power over foreign policy expressly or implicitly reserved to the federal government."
The lawsuits allege consumers would not have burned as many fossil fuels as they did had companies been more forthright about their effects and seek damages for infrastructure projects that they say will be needed as climate change continues.
Five judges, including two in Maryland and one in New York, have expressed concerns that though the cases make claims under consumer protection laws, they actually impact the global energy market.
Judge Videtta Brown, in Baltimore's case, said the litigation goes beyond the limits of Maryland law, or whatever states other cases are filed in.
"This Court holds that the U.S. Constitution's federal structure does not allow the application of state court claims like those presented in the instant cases," Judge Steven Platt wrote in tossing Annapolis' case.
"The States such as Plaintiffs here... can participate in the efforts to limit emissions collaboratively, but not in the form of litigation... If states and municipalities [or] even private parties are dissatisfied with the federal rulemaking or the outcome of cases, they may seek federal court review."
Trump's fight to stop climate change cases escalates
At issue is whether state court judges should have the power to essentially impact the international energy market. Twenty Republican state attorneys general argued the Hawaii case involves questions of interstate and international law that can only be decided by Congress or in federal courts.
But other AGs disagree, and when President Donald Trump realized Michigan's and Hawaii's were planning to join the list of plaintiffs, he issued an executive order forbidding it.
Then he went to federal court looking for injunctions to stop them.
"Congress delegated to EPA the authority to determine whether and how to regulate greenhouse gas emissions, thereby displacing federal common law claims and occupying the field of interstate air pollution regulation," the suits say.
Last week, a group of 14 attorneys general filed a lawsuit of their own against the executive order in Seattle federal court.
“This is just the latest in a long line of examples of President Trump illegally using his executive orders and administration to cater to his Big Oil campaign donors at the expense of our Great Lakes, our environment, and the people of Michigan," Michigan AG Dana Nessel said.
Meanwhile in South Carolina, the judge hearing Charleston's lawsuit has asked for input from both sides on how Trump's executive order will impact that case.
Charleston calls it a "forward-looking order" and adds "Neither this Executive Order nor the Executive branch possess constitutional authority to dictate to this Court or the judicial system how to rule in pending cases."
Of course, the defendants disagree, noting state Attorney General Alan Wilson is among those arguing against climate change litigation.
"In sum, the Executive Order underscores what was already clear: Plaintiff's claims are precluded and preempted by the U.S. Constitution and federal law and should be dismissed."
Other recent events
The Rhode Island Supreme Court May 8 heard arguments from Chevron on jurisdictional discovery, arguing the State has failed to show that court can exercise personal jurisdiction over it.
Rhode Island Attorney General Peter Neronha's lawsuit - brought by private, contingency fee lawyers hoping for possibly billions of fees if their cases find success nationwide - said Chevron sold a "substantial portion" of its fossil fuel products in the state.
In response, Chevron said it hasn't operated a gas station in Rhode Island since 1985.
And a lawyer in Puerto Rico whose lawsuit on behalf of San Juan was "an astonishing example of plagiarism" was officially fined $7,000 by a federal judge there.
The San Juan lawsuit “is almost a word-for-word carbon copy” of a class action that was drafted by lawyers at Milberg Coleman Bryson Phillips Grossman and Smouse & Mason, the judge said. Not only does it contain the same spelling errors but at least once, attorney David Efron left in a reference to “this class action,” when he represents a single plaintiff.