(Article from Climate Change Alert, February 2025)
Board of County Commissioners of Boulder County v. Suncor Energy USA, Inc., No. 2024SA206 (Colo.)
On April 17, 2018, the City of Boulder, the Boards of County Commissioners of Boulder, and San Miguel County filed a lawsuit against Exxon Mobil and Suncor Energy to recover damages and other related relief for Defendants’ alleged role in causing climate change.
Defendants sought dismissal asserting that Plaintiffs’ claims should be dismissed because they are governed by federal common law, preempted by federal common law, impair the federal foreign affairs power, violate the separation of powers doctrine, violate the Commerce Clause and the Due Process Clause, amongst other claims. On June 21, 2024, the Court granted in part and denied in part the Motion to Dismiss, finding that Defendants’ arguments as to preemption lacked merit and were not preempted by federal common law or the Clean Air Act. The Court emphasized that the Clean Air Act does not contain an express preemption clause, and, in the Court’s view, Congress did not intend to “occupy” the entire field of greenhouse gas emissions (leaving space for state regulation). The Court also rejected the Defendants’ other arguments, which argued that the complaint violated the Commerce Clause, the Due Process Clause, and other related clauses.
Defendants petitioned the Colorado Supreme Court for permission to appeal the question of whether federal law precludes state law claims for injuries allegedly caused by global climate change. The Court granted review and ordered briefing. A ruling from the Colorado Supreme Court remains pending.
City of Annapolis v. BP P.L.L.cc, No. C-02-CV-21-000250 (Md. Cir. Ct.)
On February 22, 2021, the City of Annapolis, Maryland filed suit against various fossil fuel entities. The City sought relief under theories of public nuisance, private nuisance, and products liability.
Defendants filed a Motion to Dismiss for failure to state a claim upon which relief could be granted and for lack of jurisdiction. Specifically, Defendants argued that they were not subject to general or specific jurisdiction in Maryland because the claims did not arise out of or relate to the Defendants’ alleged contacts with Maryland. Defendants also argued that they cannot be liable for any purported misrepresentations as to the connection between oil or gas products and climate change, denying that they had knowledge that use of fossil fuel products contributed to climate change.
On May 16, 2024, the Court denied the Motions to Dismiss as to jurisdictional grounds and deferred ruling on the substantive claims until trial and/or until further dispositive motions are considered and after facts are discovered which can or cannot support the allegations. The Court granted the Motion to Dismiss with respect to the punitive damages claim, however, finding that the City did not sufficiently plead malice, ill will, or fraud necessary to support a punitive damages recovery. Discovery is currently underway.
Fuel Industry Climate Cases, JCCP No. 5310, No. CJC-24-005310 (Cal. Super. Ct., San Francisco Cnty.)
On September 15, 2023, the State of California, through its Attorney General, filed a Complaint against fossil fuel producers and industry trade associations. The Court consolidated the matter with eight other actions filed by local governmental entities in California. Plaintiffs seek to recover under theories of public nuisance, untrue or misleading advertising, unlawful, unfair, or fraudulent business practices, strict products liability, and negligent products. After significant briefing on jurisdiction, the Court entered a mixed ruling allowing claims against the majority, but not all, of the defendants to go forward.
The Court concluded that the majority of the Defendants are subject to jurisdiction in California because the claims arise out of or relate to the Defendants’ extensive contacts with California, which includes the sale and promotion of fossil fuel products in California. Further, the Court explained that Plaintiffs, who were California residents, suffered harms in California as a result of Defendants’ actions. As such, the Court permitted Plaintiffs’ suit to proceed.
As to a few Defendants headquartered and operating outside of California, however, the Court found jurisdiction improper. Those Defendants— Hess Corporation, Occidental Petroleum Corporation, and CITGO Petroleum Corporation—argued that they are not subject to specific jurisdiction in California because they do not conduct fossil fuel product-related business in the State of California. Defendants emphasized that they do not market fossil-fuel related products in California, but, instead, engage in extraction and sales to industrial and/or utility customers. The Court agreed, concluding that Plaintiffs’ claims “do not arise out of or relate to” any contacts by these Defendants with the State of California. The Court found it insufficient for Plaintiffs to show that Defendants made sales into the State of California, especially where those sales were made to industrial and/or utility customers, and not to consumers. Notably, any such industrial and/or utility sales by Defendants did not involve deceptive advertising or marketing to consumers—the root of Plaintiffs’ allegations. Defendants in other climate change suits are likely to emphasize this same distinction, given the Court’s acceptance of the argument in this case and resulting dismissal of some of the Defendants.
The Court also considered, and rejected, a motion by Chevron to dismiss the suit pursuant to anti-SLAPP (Strategic Litigation Against Public Participation). The anti-SLAPP statute enables courts—early in the litigation process—to dismiss and/or strike certain claims brought against those engaged in the business of selling or leasing goods or services when those claims “risk chilling ‘continued participation in matters of public significance.’” Chevron argued that anti-SLAPP applied on the grounds that the statements attributed to it involved climate change, a matter of public concern. Those statements included Chevron marketing its gasoline as having “cleaning power” that “minimizes emissions” and Chevron emphasizing its “cleaning” technology. The Court rejected Chevron’s efforts to apply anti-SLAPP to these statements. The Court found that Chevron’s challenged statements were primarily commercial in nature (and thus, unprotected under anti-SLAPP), even if Chevron also sought to influence public opinion on climate change. As such, the Court denied Chevron’s motion to strike and allowed Plaintiffs’ allegations premised on Chevron’s statements to remain in the case. This matter is still ongoing.