Think Bad Oil and Gas Litigation Is Limited to Calif. and N.Y.? Colorado is Next in Line

A national trend of venue-shopping farfetched and meritless climate lawsuits is making its way to Colorado’s court system.  What first began as a taxpayer-wasting exercise in California and New York City is now being brought into Colorado by anti-fracking activists backed by deep-pocketed environmentalist groups.  The goal is to test drive frivolous and absurd legal theories in different jurisdictions, hoping one will stick—and Colorado is their latest testing ground of choice.

First, we have the Our Children’s Trust case playing out in Colorado’s state courts. The national environmentalist group—backed by wealthy funders like the Rockefeller Brothers Fund and the Leonardo DiCaprio Foundation—brought forward this case with the hopes of curtailing fossil fuel use and production. The group started its campaign several years ago in Oregon and has expanded its legal fights into eight separate states, including Maine, Massachusetts, North Carolina, New Mexico, Pennsylvania, Washington, and Colorado.

The Colorado Appeals Court ruled in its favor, but Colorado’s Attorney General Cynthia Coffman is seeking a review by the Colorado Supreme Court. However, that hasn’t stopped State Representative and Democratic Attorney General hopeful Joe Salazar from introducing legislation that would codify the Appeals Court ruling, even before the matter is fully adjudicated.

We’ve already covered the activity happening in Lafayette, Colo., where the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF) has chosen as its latest victim. The group—which is known for forcing anti-fracking measures onto local ballot boxes (where they’re often defeated) and saddling these communities with expensive legal bills to fight the measures in court—is bringing lawyers into the community to discuss how to ban fracking and energy development in the town. Meanwhile, Colorado’s courts have already ruled that local bans are not legal, so any pursuit of these policies would be a pointless but costly exercise.

And just last month, a case seeking “personhood rights” for the Colorado River was dismissedby a federal judge for being frivolous.

All these legal initiatives being pursued in Colorado originate from large national organizations who are shopping around their cookie-cutter legal tactics to any jurisdiction that will take the bait.

Boulder, Colo. looks to jump on climate lawsuit bandwagon

Case in point: Boulder.

Who’s Involved?

Recent reports indicate that the Boulder City Council is moving forward with a lawsuit against energy companies to sue for damages relating to climate change. While we won’t know which specific companies will be named as defendants, we can infer based on similar suits filed in California.

An unnamed Washington, D.C.-based law firm will be handling the case pro-bono, and the city council admits that the firm “approached” them and asked them to pursue the litigation. It’s also looking to get other Colorado municipalities involved.

Why Boulder?

These law firms are bringing similar cases wherever they can. Boulder is one of the first in Colorado to serve as a plaintiff in these cases, but in name only. Boulder’s legal counsel admitted as much when the idea of the lawsuit was first introduced for discussion last November:

“(T)hey’re not expecting us to pay for the litigation – they would be doing it themselves. We would be a named party. We would have some potential risk if it was deemed frivolous for attorney’s fees but I would want to work and examine how to limit that potential risk so that the city didn’t have any exposure.”

Boulder mayor Suzanne Jones added:

“Mostly it would be other lawyers being paid by other people to do this.”

Legal Tactics in Boulder Deployed Nationally

Boulder represents the latest conquest for a select group of firms being bankrolled by activist green groups, or as the mayor put it, “other people,” to pursue frivolous cases against the nation’s largest energy companies.

Similar cases have failed to advance at the federal level, and have been struck down by the Supreme Court on multiple occasions. So now activists are focusing their efforts on more friendly jurisdictions, searching for sympathetic towns and counties and shifting their fight into state courts where they think they can get a better result. Unsurprisingly, coastal California towns and New York City, all of which are represented by the same network of law firms and plaintiffs’ attorneys, are the only willing participants in this scheme so far.

As Boulder’s attorney put it:

“Obviously California is a coastal community; we are not. And so the people who have approached us are interested in branching out to other communities in the country who have different kinds of climate effects than those that are affecting the coastal communities.”

The ultimate purpose of these cases is to achieve a favorable court ruling that would further impinge on these companies’ rights to operate, and hold them directly liable for damages associated with climate change amounting to millions or billions of dollars (despite the fact that we are all collectively dependent on using fossil fuels to power daily life).

For the law firms involved, there could potentially be a huge pay day down the line if they are successful using this new state court strategy.

Pushing Back Against Weaponizing of the Courts

The National Association of Manufacturers (NAM) is taking the lead on pushing back against these frivolous lawsuits via the Manufacturers’ Accountability Project. When introducing the project, Linda Kelly, the NAM’s senior vice president and general counsel, said these lawsuits don’t only threaten energy companies themselves, but all manufacturers and companies that use fossil fuels in their operations.

“Left unchecked, what has been an orchestrated effort focused on the manufacturing sector could eventually lead to an attack on other sectors, while further damaging our legal system. MAP is intent on stopping this concerning trend in its tracks.”

Many legal voices have already commented on the frivolous nature of these lawsuits.

• “These suits sound pretty crazy to me given that the city will have to establish that climate change is real, the industry caused the problem and the city can now solve it…They have an incredible proof problem that I think is unattainable,” William Perry Kendley, president of Mountain States Legal Foundation, told Legal News Line.
• “But what matters for the claimants is not really the legal judgments or the money sought. It is the publicity for what appears to be a co-ordinated and well-funded campaign, with the goal of casting a shadow over the companies’ future profitability and therefore their market value. A secondary goal is reputational damage,” Nick Butler, visiting professor and chair of the Kings Policy Institute at Kings College London, wrote in the Financial Times.
• “Indeed, these public nuisance lawsuits are especially dubious, given that the oil companies did not by their sales emit any carbon dioxide into the atmosphere. The dangerous releases came from many different parties, both private and public, including the municipalities bringing these lawsuits. These numerous parties used these products in countless different ways, with as much knowledge of their asserted effects on global warming as these five defendants,” wrote Hover Institution’s Richard A. Epstein, who is also a Professor of Law at New York University Law School.
• “All this is to stigmatize oil in the eyes of the public, pressure oil producers and spread the divestment movement further without consideration that this may lead to future shortages and extreme rise in oil prices. Let us hope it does not work,” Saadallah Al Fathi, former head of the Energy Studies Department at the Opec Secretariat in Vienna, wrote in the Gulf News.

Conclusion

Local towns are facing increased pressure from outside groups who want to impose their will upon these communities when it comes to oil and gas policy. But the question is, why would Colorado want to follow in the footsteps of Bill de Blasio or Tom Steyer’s coastal California home base? And why would these towns agree to be pawns in this political campaign?

Boulder’s mayor made clear the true motivation behind the proposed lawsuit when she called it a “forward-thinking climate litigation that we’d want to be a part of” and told the city council, “This is a part of a legal strategy to, obviously, compel change. Ultimately a price on carbon. So this is kind of in that context.”

So the mayor admitted this suit is not about damages or reparations, but about joining a political fight against the energy industry and enacting some sort of carbon-pricing legislation that Congress hasn’t seemed to have written yet.

Instead of allowing billionaire funders or coastal cities like New York and San Francisco to weaponize Colorado’s courts to dictate climate policy, state officials and citizens should be left to decide for themselves.