Boulder Considering ‘Potential Costs And Risk’ Of Climate Change Lawsuit

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The City of Boulder is considering “potential costs and risk” associated with launching a lawsuit against oil and gas companies, according to documents obtained through a Colorado Open Records Act request.

Boulder’s Mayor, Suzanne Jones, asked the City Attorney’s Office for advice on a possible climate change lawsuit against unnamed energy producers.

In January, it was revealed that the Boulder City Council had already opened talks, both internally and externally, with an as-yet-unnamed Washington, D.C. law firm “shopping” a lawsuit.

Three weeks later, Jones sought “clarification on the climate change litigation from the City Attorney,” according to the council agenda committee summary from Jan. 29.

The notes indicated that the City Attorney’s Office “will send out a confidential memo with updated information regarding potential costs and risk.”

There is no timeline for the preparation of the memo listed in the summary.

Jonathan Koehn, Boulder’s regional sustainability coordinator, told Climate Liability News in mid-January that the name of the plaintiffs’ attorneys would be available after a retainer agreement is signed, which he speculated might be as soon as 30 days.

Boulder City Council spokeswoman Emily Sandoval told Western Wire that there was no contract as of February 15.

The first public indication that officials were considering legal action emerged on November 14, 2017 at a city council special meeting, when a request for a “Nod of Five” majority of the nine-member council was approved to “direct staff to investigate the possibility of having the city join a lawsuit against leading oil companies for costs incurred because of climate change.”

In discussions at the November 14 meeting, City Attorney Tom Carr told the council that the lawsuit would be brought by the unnamed law firm on Boulder’s behalf, pro bono, with other Colorado local governments potentially joining as named parties.

Carr outlined a California model. “That is, suing under a nuisance or negligence theory in state court, which is what they’ve done in California. Not federal court,” Carr said in video of the council meeting.

Previous nuisance lawsuits in federal court have failed, legal experts told Western Wire in January.

“This Nod of Five would be to basically direct me to work with this group that has contacted [Mayor] Suzanne and find out the details about what they’re planning to do. I understand that the county is also interested,” Carr said. “And from what Suzanne has told me, they’re not expecting us to pay for the litigation – they would be doing it themselves. We would be a named party. We would have some potential risk if it was deemed frivolous for attorney’s fees but I would want to work and examine how to limit that potential risk so that the city didn’t have any exposure.”

“This is a part of a legal strategy to, obviously, propel change. Ultimately a price on carbon. So this is kind of in that context,” Jones responded on November 14. “Mostly it would be other lawyers being paid by other people to do this.”

Council next discussed possible legal action in January. The City of Boulder City Council agenda for January 4 included a “discussion of potential climate change litigation.” Jane Brautigam, City Manager, and Carr, City Attorney, presented.

“The purpose of this council agenda item is to seek council direction regarding the city’s potential participation in a lawsuit against large fossil fuel producers and/or large greenhouse gas emitters to compensate local governments for their climate mitigation and resilience expenses and damages caused by a changing climate,” according to the agenda’s executive summary. “The lawsuit would be filed by a group of Colorado local governments, potentially including Boulder County.”

Three primary factors are given for pursuing the litigation, the agenda item continued. “The purpose of the litigation would be to seek to recover the additional costs that the city has incurred and will incur because of human-caused climate change,” the agenda states under economic impacts.

The environmental reasoning is straightforward—“Human-caused climate change is most likely the most important environmental issue facing the planet.”

“The entire social fabric is affected by the human-caused climate change,” with the agenda’s authors, Brautigam and Carr, citing the flooding in 2013 and recent wildfires. “Scientists predict that such events will become more common as temperatures rise causing increased injury, dislocation and death.”

In the next section called “Background & Analysis,” the authors recap the need for such a lawsuit, as “[c]ommunities, businesses and local governments all have to adapt to a climate future that will include longer droughts, more frequent and intense wildfires, and flooding.”

The cost for such adaptation should be borne by “specific large fossil fuel producers (with a substantial presence in Colorado) and/or large in-state greenhouse gas (GHG) emitters,” Brautigam and Carr write.

Boulder City Council staff suggested taking a page out of California’s multiple climate lawsuits, including the types of defendants, complaints of injuries—including public nuisance, and possible relief.

“The city’s action could be patterned after litigation currently pending in California. Five local governments in California have filed litigation against fossil fuel [companies] seeking to recover damages caused by climate change,” the agenda item continues.

“Their complaints included claims for public nuisance, strict liability for failure to warn, strict liability for design defect, private nuisance, negligence, negligent failure to warn, and trespass. The relief sought by the local governments includes compensatory damages, abatement of the alleged nuisance, attorneys’ fees, punitive damages, and disgorgement of profits,” Brautigam and Carr informed the city council.

They also acknowledged that the City of Boulder “could perhaps not be more geographically different from the coastal communities in California currently litigating” in terms of rising sea levels. However, they argued, “the city will face distinct and serious impacts from human-caused climate change.”

Carr’s November 14 statement to the council explained that the shopped lawsuit seeks to expand the impact of climate lawsuits by seeking a willing plaintiff with divergent impacts.

“Obviously California is a coastal community; we are not. And so the who people have approached us are interested in branching out to other communities in the country who have different kinds of climate effects than those that are affecting the coastal communities,” Carr said.

Last month, New York City joined a half dozen California cities—San Francisco, Oakland, Santa Cruz, San Mateo, Marin, and Imperial Beach—in filing lawsuits seeking billions in damages from oil and gas producers.

The New York City lawsuit named BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell. Boulder’s lawsuit could include oil and gas producers based primarily in Colorado.

Details from the open records request indicate possible progress on the planning for a city-led lawsuit.

Another document appears to confirm that plans for a potential “climate change lawsuit” could include Boulder County. The council agenda committee summary for Jan. 22, 2018 lists a future meeting scheduled on January 30 for a lunch with Boulder County Commissioners. The lunch will “[f]ocus on successful collaborations with the county,” including the “climate change lawsuit,” which is listed first.

The CORA request demonstrated no internal email discussions by city council members or between council and staff about the potential climate lawsuit or of any agreement with plaintiffs’ attorneys through the end of January.


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