Three years ago, when the City and County of Boulder and the County of San Miguel introduced their climate lawsuit, the municipalities’ elected leaders made it unmistakably clear that their case was solely about seeking damages to pay for the costs associated with climate change.
As it turns out, that’s not exactly true.
During a Boulder City Council study session last month, a top city official turned that argument on its head, revealing that the plaintiffs are also looking to use the lawsuit as a means of advancing a “fundamental systems change.”
Admitting that they’re pursuing a lawsuit to force political changes undermines Boulder’s argument and instead reinforces its role in the larger political campaign to attack the oil and natural gas industry and enact preferred public policies through the court system.
Boulder Officials Admit Lawsuit Supports “Systems Change”
On June 8, 2021, the Boulder City Council held a study session in which it provided, among other things, an update on the city’s Climate Action Plan.
A memo prepared for the study session touted the city’s “evolved approach to climate action designed to address the more fundamental causes of climate change.”
It listed several “system-scale” climate actions on which the city is focused, including its climate lawsuit:
“Boulder has also been a national leader in exploring the use of the legal system in pushing for larger systems-level change. Both through its active participation in multi-jurisdiction efforts — like the Clean Power Plan Plaintiffs group — or its climate liability lawsuit with Boulder and San Miguel Counties against ExxonMobil and Suncor, Boulder has demonstrated that there are a range of different levers cities can take hold of to drive more fundamental systems change.” (emphasis added)
So, is this lawsuit meant to “drive fundamental systems change” or “ensure that these companies pay their fair share of the climate impacts” as explained on the Boulder County website?
A slideshow accompanying the study session and memo features the below slide, titled “Systems Change: Legal Systems”, with media examples of the lawsuit.
The slide was featured during a presentation led by Brett KenCairn, the city’s Senior Sustainability and Resilience Policy Advisor, who said the lawsuit was about forcing energy companies to change their business practices and not about damages:
“Legally, you might remember that in 2018, we did this audacious thing, along with the county again, of filing a lawsuit against Exxon and Suncor. That is, in fact, a picture from The New York Times from 2018. Well, as it turns out, that was a pretty good strategy that other people are using. And some of you may remember from last week, the major decisions handed down both in Europe and here that is actually putting the oil companies on notice that they are going to have to start making significant change.” (emphasis added)
Past Public Communications Have Focused Solely on Liability and Costs
The memo, the slideshow, and KenCairn’s comments support the idea that Boulder and San Miguel’s lawsuit isn’t just about the costs and damages associated with climate change, but rather it’s a tool to support the municipalities’ political goals to address climate change.
This is completely at odds with what Boulder and San Miguel officials have touted as the rationale behind their lawsuit in the past.
Boulder County’s website that hosts information about the lawsuit, for example, states:
“The communities are demanding that the companies pay their fair share of the costs associated with climate change impacts so that the costs do not fall disproportionately on taxpayers.”
On May 4, 2018, Boulder County Commissioner Elise Jones and San Miguel County Commissioner Kris Holstrom wrote a joint column in the Denver Post, which stated the lawsuit did not seek to change public policy:
“This lawsuit is not seeking a political discussion on how to curb greenhouse gas emissions. Dangerous levels of greenhouse gases are already trapped in the earth’s atmosphere. Reduction of future emissions won’t help to curb the impacts that are already underway.”
Instead, they said that the purpose of the lawsuit was to fund mitigation efforts associated with climate change:
“All of these climate impacts carry an enormous price tag for local governments. In the next 30 years, Boulder County alone may have to spend more than $100 million in additional costs just to adapt our transportation and drainage systems to climate impacts and to mitigate an elevated wildfire risk. We believe our communities cannot and should not bear the costs of climate change alone.”
Likewise, the attorneys representing Boulder and San Miguel wrote in a February 2020 court brief that the lawsuit was not about policy, but rather damages, via the Boulder Daily Camera:
“This case is not an attempt to litigate a policy solution to the climate crisis, limit fossil fuel use or production, or control emitters. Plaintiffs do not ask this Court to weigh the costs and benefits of fossil fuels nor revisit federal government decisions.
“This case is only about compensating Plaintiffs for harms in their jurisdictions. The only question is whether, under established Colorado law, a jury can consider whether Defendants — who promoted and sold enormous amounts of fossil fuels while misrepresenting their dangers — bear any liability for Plaintiffs’ damages.”
The Niskanen Center – the Washington, D.C.-based libertarian think tank that is serving as outside counsel for Boulder and San Miguel – also has been focused on damages.
David Bookbinder, an attorney with the group working on the lawsuit said:
“The local governments, their property and the property of their constituents is being damaged by climate change. And they’re seeking compensation from the defendants.”
Similarly, EarthRights International – the Washington D.C.-based legal firm that’s also serving as outside counsel – has said that damages are the primary goal.
However, an attorney with the group did acknowledge in an interview with KOTO that there are other goals:
“Simons says the first aim for winning the lawsuit is to collect damages for San Miguel and Boulder. But there’s a secondary aim too.
“His hope is by shifting the costs of producing the costs of fossil fuels onto the companies, the lawsuits can also shift behavior.
“‘Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.”
Boulder officials have simply said the quiet part out loud: they are using their climate lawsuit to drive “systems-level change” to support their public policy goals, despite the official line being that the case is all about the “fair share of costs associated with climate change.”
It’s not the first time this has happened.
In 2017, Steve Berman of the plaintiffs Hagens Berman, which has represented Oakland and San Francisco in its climate lawsuit (a case also about pursuing damages), told VICE News that “It’s got the potential really to bring down the fossil fuel companies.”
It’s now the same highlight reel in Boulder as plaintiffs across the country pursue their “systems-level change.”
Read more at EID Climate
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