Legal experts and manufacturers said climate change lawsuits like the one recently filed by Boulder and San Miguel counties and the City of Boulder against ExxonMobil and Suncor Energy would prove frustrating, costly, and time-consuming.
“Is it [litigation] the most efficient way of going about doing it?” Rep. Cole Wist (R-Centennial), Assistant House Minority Leader asked. “If we have consensus that this is an important policy issue that we should come together on and try to achieve solutions, there are better vehicles for us to do it,” he added.
The lawsuit, filed April 17 by the City of Boulder, Boulder County, and San Miguel County demanded that the “companies pay their fair share of the costs associated with climate change impacts.”
The panel at the Colorado History Center, co-sponsored by the Colorado Association of Commerce & Industry (CACI) and the Manufacturers’ Accountability Project (MAP), a project of the National Association of Manufacturers, met with members of the state legislature, other current and former elected officials, and leading members of the business community.
“There is a growing threat to manufacturers in the United States, and that’s misguided litigation,” said Lindsey de la Torre, Executive Director of MAP. De la Torre said the 11 lawsuits filed—in California, New York City, Colorado, and most recently, Washington State—are dinging U.S. manufacturers for what she described as a global challenge “far beyond their control.”
Wist drew from three decades of experience in product liability litigation to explain that the path chosen by the Colorado communities would be long, expensive to businesses, and frustrating as a strategy.
Resolving issues of causation or comparative fault would be difficult, he said.
“Boulder County, San Miguel County, and the City of Boulder all consume fossil fuels,” Wist said. “How are we going to quantify what the comparative fault is for Boulder County, San Miguel County, and the City of Boulder in terms of their damages? How would you determine what that fault is?”
Wist said the courts could attempt to apportion those damages and other factors, but the resolution could take decades. If the issues are too important, as the plaintiffs’ attorneys argue, then the path through the courts a costly detour.
“When you try to do complex policy issues like climate change and try to put it in this box and try to resolve disputes utilizing traditional tools, you’re likely to meet with frustrating results,” Wist said. “It’s going to be incredibly expensive.”
Wist quoted former Colorado state treasurer and current gubernatorial candidate Cary Kennedy, a Democrat, who last week dismissed the lawsuit for several reasons.
“I don’t think litigation is the best strategy. It’s costly, it’s going to take a long time. I want to see our state take steps now,” Kennedy said, pointing instead to her call for increased use of renewable energy.
None of the three remaining Democratic gubernatorial hopefuls, U.S. Rep. Jared Polis, former state senator Mike Johnston, and Lt. Gov. Donna Lynne, supported the Colorado lawsuit either.
Bret Sumner, an oil and gas attorney for Beatty & Wozniak, agreed with Wist, saying that tackling the underlying issues with litigation has resulted in a weaponization of science and the prospect of uncertainty as multiple courts deliberate.
“These cases are frivolous from a legal standpoint. But they are not going to go away,” Sumner said. The cases would be appealed by the losing parties and would eventually require the U.S. Supreme Court to weigh in on a possible uniform standard for the entire country, he added.
“If the point of litigation is to use it as a leverage tool to have a broader policy dialogue and a broader initiative with the legislatures and with Congress, I think there are better ways to do that,” Sumner said.
“Until we quit trying weaponize science to create a bigger issue and actually look at this in a very rational manner, it is going to be hard to have that type of productive policy dialogue,” he continued.
Sumner said that adjudicating the issues involved is not something either state or federal court are particularly suited to do.
“If you have 100 different courts give 50 different opinions, legal standards on how you address climate change it is going to create a lot of legal uncertainty,” Sumner concluded.
Both Wist and Sumner said Congress and state legislatures are much better suited to producing meaningful clarity and uniformity and wading through the complex legal and political arguments.
George Brauchler, District Attorney for Colorado’s 18th Judicial District and a Republican candidate for attorney general this fall, compared attorneys general who support litigation “in a misguided crusade against America’s energy manufacturers” to political ambulance chasers.
“From protecting sanctuary cities to demanding greater federal overreach into state affairs, certain AGs have sought to weaponize their offices, transforming from prosecutors and protectors of their state’s laws into a political mishmash of Don Quixote and Machiavelli,” Brauchler wrote. “This is best highlighted by recent politically motivated climate change lawsuits.”
And while the current focus of the litigation on the oil and gas sector might seem narrow, it would not be long before other sectors of the manufacturing industry could see similar lawsuits.
“We believe that if left unchecked, special interests groups could broaden their targets beyond the energy industry into other sectors beyond what is attacked in this lawsuit,” Chuck Berry, President of CACI, told the audience.
CACI’s Leah Curtsinger wrote in a recent op-ed that the lawsuits are an expensive distraction for businesses, and for the organizations initiating the litigation, nothing more than a “disingenuous public relations campaign.”
“As outside groups scramble to create reports and find experts to ‘prove’ the exact damages for which these companies are responsible, legal fees mount. Funds that would otherwise be invested into these businesses and their employees, pay instead for lawsuits that seek to blame a global issue on only two companies,” Curtsinger wrote. “While these activist groups — like the DC-based Niskanen Center and EarthRights International — get their headlines about ‘taking on Big Oil,’ Coloradans miss out on new employment opportunities and lose taxpayer-supported resources to trial attorneys — all for the sake of a negative and disingenuous public relations campaign.”
