Justice Dept. says Suncor, Exxon climate case should stay in Colorado court

Part of a composite image of Suncor Energy's plant off of Interstate 270 near Denver.Photo byMax and Dee Bernt via Flickr

By Matt Whittaker / NewsBreak Denver

(Boulder, Colo.) The Biden administration this week sided with Boulder and other local governments in their climate lawsuit against Exxon Mobil and Suncor Energy, recommending the case should proceed in state court instead of federal.

The companies are asking the United States Supreme Court to decide whether the lawsuit, originally brought in 2018 by Boulder, Boulder County and San Miguel County, can be moved to federal court if its state-law claims fall under federal common law.      

The Justice Department on Thursday told the Supreme Court that an appeals court already correctly decided that the lawsuit should stay in state court—generally considered more favorable for the local governments. That’s because the federal Clean Air Act has displaced federal common law regarding climate change and the companies didn’t identify a sound basis for recharacterizing the state-law claims.

The recommendation came after the high court in October asked the Justice Department to weigh in. The Supreme Court doesn’t have to follow the recommendation, but it generally does so when it has asked for such opinions.

“Since the Colorado communities filed this case in 2018, Exxon Mobil and Suncor have consistently sought to delay the litigation—moving the case from court to court and losing each step along the way,” said Marco Simons, general counsel with EarthRights, which is representing the municipalities.  

“The Marshall Fire alone cost upwards of $2 billion in damage—and that is just one of the many impacts we have seen locally since this case launched in 2018,” Boulder County Commissioner Ashley Stolzmann said. “As our communities suffer, Exxon and Suncor continue to take in record profits while taxpayers shoulder the burden created by Big Oil.”

“Lawsuits like this one do nothing but waste time and resources and, more importantly, don’t advance efforts to address climate change,” Exxon spokesman Todd Spitler said. “While we’ll fight this, we’ll also continue devoting billions of dollars to meet today’s energy needs while leading the way in a thoughtful energy transition towards net zero carbon.”        

Suncor didn’t respond to a request for comment. 

The original lawsuit alleges that Exxon and Suncor should pay damages for causing and increasing the harms from climate change after selling fossil fuels they knew would harm the climate, all the while concealing that knowledge from the public, contributing to overreliance on fossil fuels.

The companies say their fossil fuel activities can’t be directly tied to local climate effects that could have happened even if they weren’t involved. 

“Billions around the world, including plaintiffs themselves, combusted fossil fuels for transportation, electricity, or heat, and the GHGs (greenhouse gas emissions) emitted mixed with the aggregated emissions of other users around the world for many decades to increase the concentration of GHGs in the atmosphere,” the companies say in court documents.