By Julia Caulfield
Colorado saw its two largest forest fires in state history in 2020. This fall, the U.S. Drought Monitor classified the entire state as in drought. Colorado’s average temperature has risen by 2 degrees Celsius in recent decades. Scientists say all of these effects are caused by climate change.
While these statistics have an impact from an environmental standpoint, according to San Miguel County Commissioner Hilary Cooper, they also affect the pocketbook of state and local governments.
“Our roads are deteriorating faster than they have in the past from extreme temperatures,” says Cooper, “and then of course the effects on our economy of extreme weather and especially drought conditions and the effects that that has on the ski area’s ability to operate and then also our farmers and ranchers.”
San Miguel County Commissioner Hilary Cooper (courtesy of Hilary Cooper)
Cooper says the changes in climate means the county needs to budget more money for climate mitigation, and she says they had a choice.
“Either going to our taxpayers and increasing their taxes or we can go to these companies who are making massive profits off of their sale of fossil fuels and make them accountable for at least a percentage of what it’s costing local governments,” says Cooper.
San Miguel County went to the companies.
In 2018, San Miguel County, along with Boulder County and the City of Boulder - representing both urban and rural parts of the state - filed a lawsuit against ExxonMobil and Suncor Energy, to make them pay a portion of the price for climate mitigation on the local level. Exxon and Suncor are two of the largest fossil fuel companies working in Colorado - one of Suncor’s two U.S. offices is in the state.
The Colorado municipalities are not the first to file similar lawsuits, there have been cases in California, New York, and Hawaii – to name a few - though none of the cases have been decided in court yet. But the Colorado lawsuit is the first to be filed by governments in a non-coastal state. Marco Simons, General Council at EarthRights International, and part of the legal team in the lawsuit, says they wanted to tell the story of climate change from a different perspective.
“It’s not just about sea level rise, and it’s not just about coastal communities…It’s really affecting everyone across the United States,” says Simons, “and there’s a range of climate impacts that are visible to many folks in Colorado, whether that’s the changes in precipitation and snowpack, the damage to forests, heat waves, wildfires. All of these impacts which are happening throughout the Mountain West.”
Simons says the first aim for winning the lawsuit is to collect damages for San Miguel and Boulder. But there’s a secondary aim too, and it’s wrapped up in tort law.
“What tort law essentially does is it shifts the cost of dangerous or injurious activities onto the people who are engaging in those activities, rather than simply the victims,” says Simons.
In this case, Simons argues Exxon and Suncor are the agents, with residents and taxpayers in San Miguel and Boulder as the victims. His hope is, by shifting the cost, the lawsuits can also shift behavior.
Simons says, “whether that’s cutting back on the harmful activities, especially where the cost of those activities might exceed the benefits; and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.”
The litigation process is long. Filed two years ago, the Colorado case still hasn’t been approved for a trial. But policy experts say lawsuits like the one in Colorado are having an impact already, noting as the lawsuits move further into the court process - and there’s discovery and hearings - oil and gas companies may lose their social license to operate, or acceptance from the general public.
Attorneys representing ExxonMobil and Suncor in the lawsuit did not respond for comment, neither did Suncor Energy. Exxon spokesperson Casey Norton commented in an email that lawsuits such as the one in Colorado “waste millions of dollars of taxpayer money and do nothing to advance meaningful actions that reduce the risks of climate change”.
But with the potential a loss of social license, oil and gas companies might be forced to change direction, or risk losing investment. That’s according to Patrick Parenteau, a professor of environmental law and former lawyer with the Environmental Protection Agency. He says the banks that finance the oil and gas companies are looking at the rising number of lawsuits.
“And of course they’re looking at the science, and they’re beginning to get nervous. You can begin to see that the financial institutions are going to be disinvesting in oil and gas and reinvesting in renewables…so I think these cases could actually result in a major disinvestment in these companies that will push the energy transition that we’re seeing already even faster”, says Parenteau.
Time will tell if the tides are turning on the oil and gas industry. Until then, San Miguel and Boulder Counties, the City of Boulder, and all their residents will be stuck with the bill.