BREAKING: Boulder Likely To Follow California, NYC To File Climate Change Lawsuit Against Colorado Energy Producers

The City of Boulder is expected to join a climate change lawsuit targeting “fossil fuel producers,” and will likely announce the litigation tomorrow at a rally at the Boulder County Courthouse.

Boulder County and San Miguel County will join the City of Boulder at the “Rally for Climate Accountability” on Tuesday at 12 p.m. on the Boulder County Courthouse Lawn.

“The Colorado communities of Boulder County, the City of Boulder, and San Miguel County are coming together to announce the launch of a crucial effort in the fight against climate change,” the City of Boulder wrote in an email on Friday.

“Don’t miss out! All interested members of the public are welcome and encouraged to attend the rally and learn about these Colorado communities’ new major undertaking in response to climate change,” they continued.

EarthRights International, a D.C.-based organization, approached the City of Boulder, according to the Daily Camera.

Boulder County Commissioners will meet Tuesday to consider authorization to join a lawsuit.

“15. County Attorney’s Office: Request for authorization to file lawsuit to recover County costs related to climate change,” a Board of County Commissioners email detailed, including signing an “Attorney-client pro bono retainer agreement” and “Contingent fee agreement.”

According to the Daily Camera, San Miguel County’s Board of County Commissioners will also take up the topic of litigation in an executive session on Tuesday before the rally.

As the details of the Colorado litigation emerge, previous Western Wire coverage details a months-long deliberation, some public and some behind closed doors, as the City of Boulder prepped for litigation.

The City of Boulder first publicly discussed climate change litigation on November 14, 2017 at a city council special meeting, when 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.”

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

In his comments, Carr outlined a California model for the potential litigation.

“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.

Lawsuits in federal court have repeatedly failed using the nuisance argument, legal experts told Western Wire in January. A pair of the California lawsuits in Oakland and San Francisco, originally filed in state court, have been referred to federal court.

As early as November, Carr indicated that Boulder County could also participate in the litigation.

“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.

Western Wire open records documents confirmed Boulder County’s interest in participation, with a January 30, 2018 lunch with Boulder County Commissioners and City of Boulder city council members scheduled for a “[f]ocus on successful collaborations with the county, to include: climate change lawsuit.”

The parameters for the litigation were becoming clearer by earlier in the month, when the City of Boulder City Council discussed the plan of action in more detail.

A January 4 agenda item included a “discussion of potential climate change litigation.” Jane Brautigam, City Manager, and Carr, the City Attorney, presented.

“Communities, businesses and local governments all have to adapt to a climate future that will include longer droughts, more frequent and intense wildfires, and flooding.”

Those adaptations will have a cost, they argued, and that cost should be paid for by “fossil fuel producers.”

“[S]pecific large fossil fuel producers (with a substantial presence in Colorado) and/or large in-state greenhouse gas (GHG) emitters,” Brautigam and Carr wrote.

They laid out the case against fossil fuel producers in more detail, along with who might join the City of Boulder in bringing the case.

“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.”

The presenters offered three reasons for pursuing litigation now.

“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 officials said described the environmental reasoning as 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.”

The pro bono litigation could expose the City of Boulder to potential risks, acknowledged by the City Attorney as early as November.

“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,” Carr said in November. “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.”

The concern lasted several months, as it was still unresolved by the start of 2018, when Boulder sought further information on risk exposure for the city by undertaking a lawsuit.

In January, documents uncovered by a Western Wire open records request showed the City of Boulder’s Mayor Suzanne Jones asked for “clarification” from the City Attorney on possible climate change litigation, and the City Attorney’s Office was to prepare a “confidential memo with updated information regarding potential costs and risk.”