The disclosure of agreements between Boulder County and attorneys involved in a climate lawsuit against ExxonMobil and Suncor Energy unveils the potential financial risk to taxpayers if the legal action fails, as per documents obtained by Western Wire.
Boulder County provided a contingent fee agreement with Hannon Law Firm and a pro bono retainer agreement with Earth Rights International (ERI) in response to a request under the Colorado Open Records Act.
The agreement between Earth Rights International (ERI) and the Board of County Commissioners of Boulder County outlines the obligations related to the anticipated legal action against Exxon Mobil and other fossil fuel companies aimed at seeking damages for climate change impacts, encompassing both direct damages and costs associated with resilience and adaptation efforts (“Colorado Climate Action”).
Cindy Domenico, the chair of the Board of County Commissioners, signed both documents on April 17, the same day the lawsuit was officially announced. The City of Boulder and San Miguel County are also parties to the lawsuit as plaintiffs.
ERI collaborated with the Colorado-based Hannon Law Firm (HLF) because, as stated in the retainer agreement, “ERI’s attorneys are not licensed to practice law in Colorado, but are teaming up with attorneys who are licensed in Colorado.”
HLF is requesting an attorney fee equivalent to 20 percent of the total amount recovered, and anticipates that the expenses for this case up to trial, excluding appeals, will be around $1,000,000.
ERI acknowledges its provision of representation to Boulder County on a pro bono basis, while including legal standard language outlining Boulder County’s potential financial responsibilities in various 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.”
The contract continues to state that in certain instances, if a lawsuit is deemed frivolous, lacking reasonable legal or factual basis, and/or initiated solely to intimidate or force a settlement, a court may mandate Boulder County to cover the defendants’ legal fees and/or impose penalties.
If the climate litigants achieve success but the litigation expenses surpass the court-awarded amount, Boulder County is responsible for covering the shortfall.
The contract states that while the court might award a certain sum for costs, the Attorneys are entitled to complete reimbursement even if it exceeds the awarded amount. Boulder County agrees to cooperate in securing reimbursement for these costs.
Boulder County agrees to compensate the attorneys employed on a salaried basis, understanding that to finance their salaries, the attorneys may solicit and receive funding from individuals, organizations, or corporations not involved in this legal action.
The agreement does not specify the identity of the individuals, organizations, corporations, or other stakeholders from whom funding may be sought or obtained.
In April, officials from Boulder County stated that only minimal expenses would be incurred by the three governments involved, noting that salaried staff time has been allocated for work on the lawsuit but no additional outside counsel will be hired.
A memo from January 2018, obtained by Western Wire, indicates that Boulder City Council, Boulder Mayor Suzanne Jones, and the City Attorney’s office expressed apprehension regarding the potential expenses and risks linked to climate change litigation. Mayor Jones requested further clarification and a memo from City Attorney Tom Carr on this matter.
The Niskanen Center, based in Washington, D.C., has also provided pro bono legal assistance to ERI and HLF. The Niskanen Center received a $200,000 donation from the Rockefeller Brothers Fund (RBF) in February. David Bookbinder, the chief legal counsel at Niskanen, stated that this donation did not impact the organization’s decision to participate in the Colorado litigation.
Lawsuits pursuing damages for climate change impacts initially surfaced in California and New York City. Recently, King County in Washington State initiated its own lawsuit, bringing the total number of such lawsuits to 11.