A pair of agreements between Boulder County and lawyers in a climate lawsuit against ExxonMobil and Suncor Energy reveals the exposure to taxpayers should the legal gambit backfire, according to documents obtained by Western Wire.

A contingent fee agreement with Hannon Law Firm and a pro bono retainer agreement with the non-profit organization Earth Rights International (ERI) were obtained from Boulder County through a Colorado Open Records Act request.

The agreement between ERI and the Board of County Commissioners of Boulder County details the commitments in the “planned litigation against Exxon Mobil and other fossil fuel companies in order for the county to recover damages caused by climate change, including direct harms as well as resilience and adaptation costs (“Colorado Climate Action”).”

Both documents were signed by Cindy Domenico, chair of the Board of County Commissioners on April 17, the day the lawsuit was formally announced. The City of Boulder and San Miguel County are also plaintiffs in the lawsuit.

ERI partnered with the Colorado-based Hannon Law Firm (HLF) because, as the retainer agreement states, “ERI’s attorneys are not admitted to practice law in Colorado, but are associating with Colorado-licensed attorneys.”

HLF is seeking an attorney fee of 20 percent “of the gross amount of the recovery collected,” and estimates the “costs of this matter through trial but not including appeals is approximately $1,000,000.”

ERI acknowledges that it will represent Boulder County on a pro bono basis, but also adds in legal boilerplate on the county’s obligations. In a section entitled “Your obligations to pay,” ERI lays out the exposure for Boulder County under a number of legal scenarios.

“In some cases, a court may order you to pay certain costs or fees,” the contract states. “If we lose the case, the court may order you to pay the defendants’ costs of litigation.”

“In some cases, if a lawsuit is frivolous, not reasonably based in law or fact, and/or brought solely to harass or to coerce a settlement, a court may order you to pay the defendants’ attorneys’ fees and/or pay a penalty,” the contract continues.

If the climate litigants are successful, yet the cost of litigation exceeds the amount awarded by the court, Boulder County is on the hook for the difference.

“The court may award an amount of money for costs, but the Attorneys are entitled to full reimbursement even if that is greater than the amount of the costs award,” the contract says. “You [Boulder County] agree to cooperate in obtaining reimbursement for costs.”

To pay the attorneys “paid by salary,” Boulder County accepts “that in order to fund their salaries, the Attorneys may seek and obtain funding from individuals, organizations, or corporations who are not parties to this action.”

The agreement does not spell out who those individuals, organizations, corporations or other interested parties might be.

In April, Boulder County officials said only “nominal costs” to the three governments would be incurred, adding that it has directed salaried staff time for work on the lawsuit but will not hire any additional outside counsel.

A January 2018 memo obtained by Western Wire shows that Boulder City Council, Boulder Mayor Suzanne Jones, and the City Attorney’s office were concerned with the “potential costs and risk” associated with climate change litigation, with Jones asking for clarification and a memo on the subject from City Attorney Tom Carr.

The D.C.-based Niskanen Center has also offered legal support to ERI and HLF on a pro bono basis. The Niskanen Center received $200,000 from the Rockefeller Brothers Fund (RBF) in February. David Bookbinder, Niskanen’s chief legal counsel, said the donation did not influence the group’s decision to join the Colorado litigation.

Similar lawsuits seeking damages related to climate change impacts first emerged in California and New York City.  King County in Washington State filed its own lawsuit last month, bringing the total to 11.


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