SPEAKER_00 0:00

BBHD, the frequency. Who should pay for climate change? That's the question we're exploring today, as the frequency takes you inside a Supreme Court case that started right here in Boulder County. Happy Friday, frequency listeners. I'm Jay Castle. Today's story is on Funcore Energy versus the County Commissioners of Boulder County. Docket number 25-170. The case is much bigger than its title suggests. The City of Boulder and Boulder and San Miguel counties are suing ExxonMobil and two Suncor entities for harms caused by climate change. The case was first filed in April 2018. And ever since, the two sides have been fighting about which court should get to take it off. Last May, the Colorado Supreme Court ruled the case could proceed in state court. The oil companies then appealed to the U.S. Supreme Court, arguing federal law shields them from local harms and local laws. The Supreme Court decided to review Colorado's ruling in its first case of the new term. Oral arguments begin October 5th. It's a case with huge implications. So I turned to an expert to help me and you make sense of things.

SPEAKER_01 1:24

My name is Chris Winter, and I'm an environmental lawyer, and I work at the University of Colorado Law School. So I serve as the executive director of a research institute there that focuses on natural resources law and policy, and it's called the Getus Wilkinson Center.

SPEAKER_00 1:41

Great. So we're here today to talk about the Suncor Boulder County case, which the Supreme Court is set to hear on October 5th. This was filed way back in 2018. Do you want to give a recap of how we got where we are today? I can also do this myself, but I didn't know if you had your own. Like this is what I want to say.

SPEAKER_01 2:00

Yeah, I've been following this case for quite a while, and it's had a very circuitous route through the court system. So this is a pretty big deal that the Supreme Court will be taking up this case in October. I think it's easiest to start by talking about what the city and county of Boulder are trying to accomplish with this case, and that might help to lay a foundation to understand why it's at the Supreme Court right now and how it got there. But the city and county of Boulder filed a case in Colorado state court originally, and they're trying to recover damages for the costs associated with responding to climate change here locally in our community. And so those costs are associated with heat waves, droughts, floods, and those kinds of effects that are connected to climate change are imposing real costs on local jurisdictions like the city and county of Boulder. So the city and county filed a state law claim against Suncor and some other major oil producers. And the claims are basically tort claims saying, oh, the oil companies were deceptive in their marketing and failed to warn the consumers intentionally, failed to warn the consumers about the risks of producing and marketing and selling fossil fuels. And because of that, the oil companies are liable to the city and county for the costs of responding to climate change. So it was a state-based tort law claim filed in state court. And the oil industry claims oh, this is preempted by federal law. And so that's kind of how we've ended up at the Supreme Court, the federal Supreme Court, because it's this struggle, this art-wrestling debate over whether this is a federal issue or a state issue.

SPEAKER_00 3:51

When you say tort law, what does that mean? Yeah.

SPEAKER_01 3:53

So tort law is like state common law. And so basically the principles of a tort law claim are some person or entity had a duty or responsibility to act in a certain way in order to prevent some kind of harm that might be caused to another party. And so, for instance, if you're driving down the street in your car, you have a duty under state law not to drive recklessly or not to intentionally run into somebody. And so that's like a common law duty that you have to behave like a reasonable person. And so that's a theory that the oil industry had a common law responsibility, duty to the people and to the county and to the city to act as a reasonable person, to be honest in how they are talking about the risks associated with their business activities. And these are the same kinds of theories that are applied to many, many other businesses, all other businesses. They have to be honest with us. They can't be deceptive. They have a duty to act reasonably and to prevent unreasonable harm to all of us.

SPEAKER_00 5:00

This is not the only lawsuit in the country to be filed trying to recoup some damages from oil and gas companies. Why is this the one that is going to the Supreme Court? Is it just the first one to be appealed there? Or is there something interesting about the case itself that the Supreme Court would agree to hear this?

SPEAKER_01 5:19

Well, this is one of the earliest cases around the country. And you're correct in that many other jurisdictions, other counties, municipalities, some tribes, have filed similar kinds of cases against the oil industry in different state courts around the country. So there's a whole number of these cases. And courts around the country have been struggling with the same kinds of questions that are at issue in this case. This is one of the first cases that was filed to kind of test out these legal theories. And that's one reason that it's going to be the first one. And the Supreme Court has taken up. I think one of the other reasons is just because it made its way through the state court, and then there's a state Supreme Court opinion on this. And so that's contributing also to the unique setting for this case.

SPEAKER_00 6:03

To your point about other courts struggling with this question, what are the legal arguments that we've seen so far?

SPEAKER_01 6:10

And so it's really important to understand that this case has not gone to trial. So there's been no determination by the courts on whether the fossil fuel companies were deceptive, whether the damages are actually connected to what the fossil fuel industry did. All of the issues right now are preliminary. They're essentially jurisdictional or questions of which law applies, is it federal law or state law, which court should hear the case? Is it the federal court system or the state court system? And so these are preliminary questions that the Supreme Court's going to be taking up as to whether this should really be a state court case or whether federal law has somehow preempted the state law that the city and county of Boulder are alleging governs this case. So these are preliminary jurisdictional questions. And we can talk about that a little bit, but at the outset, it's just really important to understand we're at a very early stage in this case, even though it was filed in 2018. There's been no determination on the marriage, there's been no discovery process, there's been no trial. So these are very, very preliminary jurisdictional questions, essentially.

SPEAKER_00 7:20

As a local government reporter for more than a decade, I know how slow things move, even at the local level. So this is nothing.

SPEAKER_01 7:28

Yeah, the gears of justice sometimes grind very slowly. And this is one of those cases. And that's partially because it's so complicated and there's this difficult and complex relationship between state and federal questions. And it's also because this is a novel legal theory.

SPEAKER_00 7:47

Can you talk a little bit maybe about the novel legal theory there?

SPEAKER_01 7:50

Yeah. This theory that the city and county of Boulder have brought to the courts basically says, well, there's these oil companies, they're multinational companies, and their conduct or behavior, their tortious conduct or behavior, their wrongful conduct happens internationally. It happens outside the state boundaries of Colorado, it happens wherever they're doing business, but the harms of that conduct occur inside the state. In other words, the city and county of Boulder are seeking to recover damages for the harms that have happened here in our local community, but the conduct happens all over the world, basically. And so that's creating this question of whether this is something that state law can really deal with, or is this something that federal law should be have the kind of the exclusive role or authority over? So is this a state law or federal case because the tortuous conduct is internationally or certainly nationally, and but the harms are here in Colorado. So the city of Boulder are basically like, look, this is common. So we often have state tort law claims that are based on conduct that happens all over the country or all over the world. And so that's normal. And so you might think of something like tobacco litigation or seat belts, which was one of the type of litigation that proceeded before tobacco litigation, or litigation over the marketing of opiates. In a modern society, an economy like we have now, there's all kinds of business activity that happens all over the country. And state courts are able to deal with the effects of that inside state boundaries. And so that's a fairly normal now type of legal relief to seek. But the oil industry is saying, oh, but this is climate change. So this is even more difficult. And because climate change is a global phenomenon, we really shouldn't be asking or allowing state courts to have a role in figuring this out.

SPEAKER_00 9:53

We've seen a lot of this recently in Colorado with the opioid crisis and the meta lawsuit that Colorado set to get $615 million from. So it seems like there's a good bit of case law on that particular side. What case law might the court rely on, I guess, in considering the whole case? And but specifically, I'm curious about what's the case law on the other side of like environmental issues don't count somehow.

SPEAKER_01 10:19

I think a lot of scholars and folks who are not directly engaged on behalf of one party or another here think that the substantive arguments that the fossil fuel industry are making are weak in that there really isn't a lot of precedent that supports their position that the state court should be prohibited from having a role in this question. The fossil fuel industry is hoping that a very conservative Supreme Court maybe strikes out on a new path or establishes some new precedent or stretches some previous precedent and pulls it into this kind of new area of climate change, state tort litigation. We can talk about that a little bit more, but there really isn't super strong precedent that the oil industry is bringing to this case. But they're making some constitutional arguments on this bigger picture of what the structure should be between the federal and state governments. But a lot of us don't believe they have strong precedent or even strong language in the constitution to support those arguments.

SPEAKER_00 11:26

What do we have from this court? What rulings do we have in these areas or touching these areas that might suggest where they might go? And I don't know whether that's rulings on federal versus state or rulings on federal environmental law, things like that. What do we know from what they've done that might suggest what they might do here?

SPEAKER_01 11:44

It's very hard to say, actually, because this case is so early on in its life history. So again, remember I mentioned that there's been no ruling on demerit, there's been no trial, there's no been no final determination. So this is what's called an interlocutory appeal. And basically the oil industry is saying, well, the case isn't over yet. This is just a preliminary ruling from the Colorado Supreme Court, and yet we still want the Supreme Court to intervene now, before there's even been a trial. All the Colorado Supreme Court said is we're not going to dismiss the case. It goes back to the lower courts, and there might be other procedural arguments, or there might be a trial. So it's very unusual actually for the Supreme Court of the United States to step into a state court dispute before there's been a trial or determination on the merits or a final judgment. And the Supreme Court has kind of been very cautious about overstepping those limitations on its role with respect to state litigation. And so I think that there is actually a decent chance that the conservative justices on the Supreme Court are concerned or at least interested in what precedent this might set if the Supreme Court kind of goes beyond what it's thought of as its traditional role with respect to state litigation in this case by stepping in early as compared to stepping in after a final judgment's been issued. So that's a really important preliminary question that I think when we listen to the argument in October, I think we're going to hear the justices on the Supreme Court ask a lot of questions about whether this is the right time for the Supreme Court to be taking up this question of state versus federal law. So that's the first thing I would say is that I think that's a really important question that maybe doesn't necessarily cleanly fall on ideological or conservative versus progressive lines of thinking in the Supreme Court.

SPEAKER_00 13:47

Well, then why did they take it at all? They don't have to hear it, right? Like they did, they were not compelled to.

SPEAKER_01 13:52

That's a really good question is why did they take this case at all? It was discretionary, right? They could have looked at the petition for Serge Ferrari filed by the oil industry and said, no, this is too early. And I think that's a question that many of us who've been watching this case have struggled with. Why did the Supreme Court take this case now? And I don't think there's a clear answer to that because the Supreme Court doesn't explain why it took the case when it grants the motion, the petition for search Ferrari. It just says petition granted. So we're not sure, but what the Supreme Court did say is that we want the parties to address standing, which is this question of whether the oil industry has actually been harmed by the Colorado Supreme Court's decision. So the Supreme Court explicitly asked the parties to address this question. And so we know that the Supreme Court is at least thinking about it, but we don't know why they granted the petition. And it's likely connected to the fact that this is such a significant issue and that the consequences of the case are potentially so sweeping. So I think it's that kind of like weighty significance of this potential litigation that certainly was in the court's mind when it granted the petition for Sir Ferrari.

SPEAKER_00 15:13

What are the arguments surrounding whether or not the oil and gas companies have been harmed? Is it like they may be harmed eventually, or do they have to prove like have been harmed right now?

SPEAKER_01 15:23

So typically, a party that goes to the Supreme Court and says, hey, we want you to take up our case, they have to show under the Constitution of the United States, Article III, that there's a case in controversy, meaning they have actually been concretely harmed by the decision of the lower court that they want the Supreme Court to review. So that's the constitutional minimum in order to march into federal court and ask a federal judge or the Supreme Court to take up your case. Now, here that's very speculative, right? Because the Supreme Court of Colorado didn't actually issue a final judgment. There's no impositional liability, no damages have been awarded. All the Supreme Court of Colorado said is yes, you have to respond to this lawsuit. And normally having to respond to a lawsuit is not enough in terms of an injury to get a higher court to step in because that would create chaos across the system. It'd be very difficult. There'd always be this ping-ponging of cases up and down from trial courts to appellate courts. And so that is the argument here that the city and county of Boulder made is there is no injury to the oil and gas industry simply by having to defend this lawsuit. That's the way our system works. And so when we listen to the argument, I'm quite certain that's going to be one of the first things that comes up is what is the harm to the industry? And it can't just be that they have to defend this lawsuit. That's not enough. There's got to be some other type of cognizable harm or injury to the party that asks the Supreme Court to take this case up. And I think that question is why the Supreme Court explicitly instructed the parties to brief or to present this issue of standing to the court as a part of these proceedings.

SPEAKER_00 17:08

I'd like to address some of the media coverage and public perception around this case. I think it's widely believed that this is a precedent-setting case. And I believe that it is, but I don't think it necessarily might be the precedent that people might think it is. So could you speak to that, like the possible outcomes and what that would actually, like what precedent they would actually set?

SPEAKER_01 17:29

Yeah, it's a great question. And there's a lot of confusion around this. So first of all, I think it's important to remember what the city and county and Boulder are actually asking for in terms of relief in this case. And so they've asked for damages from the oil industry that would compensate the local jurisdictions for the cost of having to respond to climate change. So it's a damages case. So they're saying, hey, we're having to spend more money in order to address the impacts and effects of climate change, heat waves, droughts, fires, floods, those kinds of things. But in this case, they are not asking a court to control the emissions, greenhouse gas emissions into the future. They're not saying, hey, we want the court to order the oil and gas industry to stop producing fossil fuels. This case isn't about a court ordering anybody, auto manufacturers, utilities, power plants. No request that the court order any of those entities to stop burning fossil fuels or emitting greenhouse gases. So this is just all about damages for the costs that are associated with the effects of climate change. So there's no forward-looking relief related to whether or not entities can continue to burn or emit greenhouse gases. So that's really important to understand. This is not a case that attempts to take the place of the Clean Air Act, Federal Clean Air Act, as an example, to kind of step in and say, oh, now state courts are going to do what the Clean Air Act should have been doing or what Congress should have been doing with respect to emissions. So I think that's the first and perhaps the most important thing to understand.

SPEAKER_00 19:12

Anything else that might be important there?

SPEAKER_01 19:16

I will say that the costs of responding to climate change are incredibly important. And how we as a community, as an economy, as a nation, as the state of Colorado are going to struggle with those costs moving forward, I mean, that's incredibly important for all of us, especially here in our local community. And so if that all just falls on our shoulders, right? If the citizens of Boulder and Boulder County, if it's all on us to deal with the effects of climate change, that is a huge lift. And meanwhile, the oil companies have been making billions and billions and billions of dollars of profit from producing, marketing, and selling fossil fuels. So that issue of the cost of adaptation is incredibly important for the future of our local community here, for the West in general, and for the future of how we navigate our way through this new reality that we find ourselves in. So that ultimate objective of recovering the cost is incredibly important. But the other thing that I think the oil industry is afraid of is an actual trial. So they don't want to go, for instance, through the discovery process where the city and county of Boulder could send them a request for documents that says, give us every document you have related to your activities that attempted to undermine climate science over the last 50 years. They don't want to have to respond to a discovery request that says, tell us whether you had a strategy in place to prevent the federal government and to convince the public that they shouldn't worry about the threats of climate change. So they don't want to have to answer for their activities, the production, the marketing, the selling of fossil fuel. They don't want to have to respond to these allegations that there was an intentionally deceptive strategy in place to prevent the public from knowing about how severe these threats were. So they don't even want to have to go through the discovery and trial process because they know that once they have to go down that road, that starts them down the same kind of road that they found themselves on with respect to tobacco and other kinds of very significant pieces of litigation in the past.

SPEAKER_00 21:37

And I would say there's already ample evidence of fossil fuel companies knowing the risk, downplaying them, attacking climate science. Like that's already out, regardless of what happens in this case. And imagine listeners would be unaware of that, but just in case they are.

SPEAKER_01 21:51

It's already out there, but it's much different than having it out there versus having somebody in the oil and gas industry having to sit down for a deposition. Under oath and testifying about that, and then having that testimony repeated in court in front of a judge under oath for the entire world to see, and then for there to be a judgment from a court about whether that's intentionally deceptive and what that means legally. So, yes, that information is out there, but it's the presentation of that information in a court of law and a judgment as to whether that's unlawful, that terrifies the oil industry.

SPEAKER_00 22:31

Since we're talking of being afraid, as a complete layperson and not entirely a legal dummy, but for all intents and purposes for sure, I think it's easy to look at this case and have not a lot of hope, particularly because of this court, not because of the case itself. Is that a fair position to take? Or is there some information I don't know as a layperson and legal dummy that might give some more hope?

SPEAKER_01 22:55

I think it's entirely fair to feel frustrated with the current Supreme Court and to be concerned about the direction that the court is leading the country right now. I think that frustration, that fear is shared by so many people across the country when we see things like the reversal of Roe v. Wade, which was settled precedent for so long, many of the other cases that have come down from the court recently. It just feels like, in some ways, that the court has lost touch with how we all feel as members of the public. So I share that frustration as somebody who watches the court pretty closely. And I think that it's entirely reasonable to feel that way. Now, I'm not totally hopeless, though, because I feel like this case is on a very firm footing, that it is aligned with how other courts, state courts around the country, have tried to rein in wrongful corporate behavior in the past. Because some of these questions about standing and injury and jurisdiction and the timing of when the federal court should step in, I feel like those are all very difficult and complex issues. So I think it's very much an open question as to what the Supreme Court does with this case in October. But I will say this I think the effects of climate change and whether we're making progress on climate change, meaningful progress, is a much more difficult issue. And this case is only one small part of that much larger and more significant question, which is are we actually doing what we need to do to prevent the most severe effects of climate change from really threatening not only what we have come to love about Colorado, but what our children and grandchildren are going to experience here. So I think that's a much more difficult question. And I think it's incumbent on all of us who care about that question to continue to put pressure on lawmakers at both the federal and state level to really step up and take this on in a much more meaningful and urgent way than we have in the past. That bigger and more important issue isn't going to be taken up by the court in this case, but I think is something that we all have a role in hopefully addressing.

SPEAKER_00 25:25

I have a little more hope because of the other big lawsuits that have come down. Like I mentioned, the opioid crisis and we haven't gotten the money from Meta yet. I watched the opioid crisis money disbursement, and it allows local governments to pay for things that they couldn't otherwise to not only handle the damage, but like retrofitting of buildings and expanding public transit. There's so much we could do that could create a future in which we do reduce emissions. Cities have been asked to do so much more than they can quite possibly handle.

SPEAKER_01 25:56

So yeah, it's totally true. And the one thing that I'd say about this suit is that it's really strategic and that it's targeting the producers of fossil fuel. It's targeting the people who are supplying fossil fuels into the system. And right now, most of our other legal strategies are instead focusing on the demand for burning fossil fuel, right? So, like renewable portfolio standards are attempting to decrease the demand for fossil fuels by transitioning the electric grid towards renewables. Fuel efficiency standards are attempting to decrease the demand for fossil fuels by making cars more efficient, by reducing tailpipe emissions. Our housing policies, our transportation policies, all of those other things target the demand side of the equation, but we're not really doing much to try to force the suppliers to internalize the otherwise externalized costs of their business activities. And we've never come up with a good system for saying, oh, we need to actually directly regulate how much fossil fuel we're producing in order to address this climate crisis. So it is strategic, this case, in that it is really targeting the supply side of the equation when it comes to climate change, where all our other tools right now are really focused on the demand side. And we really need to be focused more moving forward, I think, on this question of how do we regulate how much fossil fuel we produce, not just how we deincentivize the consumption of fossil fuels. Because if we keep producing fossil fuels around the world without regard to the effects on climate change, it's going to make the whole demand side of the equation much less effective at the end of the day.

SPEAKER_00 27:48

What else should I be asking you that I'm not? And I know this case is massive and complex, but again, keeping in mind our audience, which is general folks who might not even know this lawsuit isn't ending.

SPEAKER_01 27:59

When this case goes to Supreme Court, both sides file briefs, and then there's a whole bunch of amicus briefs or Friends of the Court briefs that also get filed with the court, trying to convince the court to support one party or the other. And it's interesting to read through those and try to understand who's aligning with which party in this case. Many of the states, including Colorado, the state attorney general Phil Weiser, led an effort by the state of Colorado to align with several other states around the country who feel similarly, to file an amicus brief, a friend of the court brief in support of the city and county here. Our attorney general, the state of Colorado, and the state as a whole has stepped up in support of what the city and county are trying to do. And then there was a really interesting amicus brief that was filed by some ranchers on the western slope. And they are saying, you know what? Yeah, we're dealing with this too. And we live in rural Colorado. We're connected to the land. We see the effects every single day on how climate change is affecting our water supplies, is affecting the local economy, is affecting wildfire risk. And we also support what the city and county are trying to do. They're trying to hold the fossil fuel companies accountable. And we want that too. Let's not forget about San Miguel County, because they are part of this suit also. And that's really important to note is that it's not just Boulder, it's also San Miguel County. The folks on the Western Slope feel this threat also every single day.

SPEAKER_00 29:22

How much influence do amicus briefs have? And obviously, you can't speak to this particular court and their personal motivations and all of that. But what do we know about amicus briefs and their role generally in cases?

SPEAKER_01 29:36

Yeah, they're really important. And I think the importance of any individual amicus brief depends a lot on the case, depends on the skills and the strategic vision of the lawyers and parties who are crafting those briefs. But in general, they're very important, which is why there is so much attention paid to them and why there's so much work that goes on behind the scenes by Supreme Court litigants to align all of these parties to figure out what they're going to say to coordinate those efforts. Sometimes you'll see the Supreme Court citing to the amicus briefs that were filed in their opinions. And that's just a good indication that, yes, the Supreme Court takes these things very seriously. And a lot of folks have studied how the Supreme Court cites to and uses amicus briefs and how it has done that over the course of its history. And in general, they're really important and they do, at the end of the day, influence, can influence the outcome and the reasoning of the Supreme Court, but it really depends on how well it's done and the specifics of each individual case.

SPEAKER_00 30:42

Anything else we should touch on before we sign off here?

SPEAKER_01 30:46

It's important to recognize when we're talking about climate change, these costs that the city and county are talking about, the effects of climate change, they aren't felt equally by everybody. The effects fall most heavily on those who are most vulnerable. And that's often low-income people, people of color, people in rural communities. And so I think it's really important for us to recognize that it's important for a city government, a county government to be stepping up in this way, because those government entities, I think, are situated or at least reasonably well situated to think through how to protect those who are most vulnerable from the effects of climate change. And so that's one of the reasons I think it's so important for local jurisdictions to be taking this kind of action and for the state of Colorado to be supporting them through this amicus brief, is because if it's not those government entities, then I don't know who is going to step up and serve as that guardian for the most vulnerable people who are going to be experiencing the worst effects of climate change on the front lines. There's also nobody really speaking for the children, the youth who are affected by this, the next generations, our children and grandchildren who are going to be dealing with the most severe effects of climate change. And again, I think that's why it's really important for our governmental entities to be thinking through their responsibilities to the young people and to future generations, because otherwise, who else is going to do that?