Boulder and Boulder County say taxpayers shouldn’t bear millions of dollars in local costs from wildfires, severe storms, extreme heat and flooding as the Supreme Court prepares to hear oil companies’ appeal. The court opens its new term Monday, Oct. 5, with a case that will test whether state and local governments can sue energy companies over alleged deception about fossil fuels’ damaging effects.
Who Pays for Climate Costs
Boulder argues that ExxonMobil and Suncor intentionally misled the public for decades about climate change and fossil fuels’ role in worsening its effects, even as they knowingly contributed to the problem. The county says the companies rank among the world’s largest contributors to climate change and have worked closely together in Colorado.
Boulder-area residents, including Marshall Fire survivor Maddison “Maddi” Schink, filed a friend-of-the-court brief supporting the lawsuit. Schink, a 26-year-old graduate student at the University of Denver, said the Dec. 30, 2021, fire “really just brought climate change home.”
“It's here. It's here to stay, and we need to do something about it,” Schink said. The fire, Colorado’s most destructive in history, burned more than 1,100 homes and a hotel and killed two people, along with multiple pets.
Schink said her grandmother called as hurricane-force winds pushed the fire through their neighborhood and asked what she should save. She grabbed a camera, a childhood blanket and a backpack covered in patches, then drove to safety. Their home just outside Boulder was spared.
Experts say climate change is drying areas that were once wetter and snowier, raising the risk that embers from dry grasses, pushed by stronger windstorms, can reach suburbs and ignite fires where houses become fuel. Schink pursued a graduate degree focused on international climate diplomacy because she believes necessary change must happen on a large scale.
She has signed up for air-quality alerts from the Suncor refinery in Colorado. Earlier this year, after a small grass fire broke out near her home, she canceled plans and recorded a video of her belongings for insurance purposes. “I have a really hard time not watching fire alerts, air quality alerts,” she said. “It was windy, I heard firetrucks and it was like, 'time to prepare for the worst.'”
What the Companies Knew
Boulder cites an internal 1979 Exxon memo that listed effects of rising carbon dioxide levels, including hotter, drier southwestern states, a diminished Colorado River and a more acute water shortage in the Southwest. In a 2000 New York Times advertisement titled “Unsettled Science,” ExxonMobil said “fundamental gaps in knowledge leave scientists unable to make reliable predictions about future changes.”
“This case is about the big oil companies’ deception,” said Corey Riday-White, legal director of the Center for Climate Integrity. “They deceived the public for decades about the harms they knew their products were going to cause. And this case is about holding them accountable for that deception.”
Exxon and Suncor say in court filings that greenhouse gas emissions contribute to climate change and that policy should be “balancing risk reduction with affordable energy.” They argue the lawsuits are barred because a Colorado jury shouldn’t regulate the global atmosphere.
The Trump administration backs the companies’ appeal even as it dismantles federal climate regulations, withdraws from international climate agreements and promotes fossil-fuel production. Dozens of similar suits have been filed around the country, with billions of dollars potentially at stake, making the case one of the term’s biggest.
The Court’s Decision
The Supreme Court is weighing whether the dispute concerns interstate pollution governed by federal law or corporate conduct that can proceed under state law. It must also decide whether to intervene at this stage. Other courts have reached different conclusions.
In 2011, the court unanimously held that cities and states couldn’t force major electric utilities to reduce greenhouse gas emissions because that decision belonged to the federal government. That ruling largely ended the first major wave of lawsuits. State and local governments later shifted their focus from greenhouse-gas emitters to the fossil-fuel industry, bringing consumer-protection laws and public-nuisance claims modeled on challenges to tobacco and opioid companies.
Boulder’s attorneys argue states can bring deceptive-marketing claims even when federal law regulates a product, citing lawsuits alleging tobacco companies misled consumers about “light” cigarettes. Exxon and Suncor say the cases shouldn’t proceed under state law.
Fordham Law School Professor Adam Orford said allowing Boulder’s lawsuit to proceed wouldn’t necessarily mean oil companies would pay damages. A court could find residents’ driving and other activities contributed to climate change so much that no one was responsible. But barring Boulder from suing would change how the law usually works, he said. “It is just one of those very important, fundamental precepts in the U.S. legal system that if someone hurts you, you should be able to bring them into court and at least ask them to compensate you for the harm,” Orford said.