Exxon claims Boulder climate lawsuit aims to reshape national energy policy

Federal judges are weighing the fate of a high-stakes climate lawsuit in Colorado, one of many cases taking aim at fossil fuel companies for their role in global temperature rise.

During oral arguments Wednesday before the U.S. Court of Appeals for the 10th Circuit, Exxon Mobil Corp. argued that litigation from Boulder and other local governments shouldn’t proceed in state court.

The hearing is the latest in climate litigation pingpong, as local governments and energy companies spar over the proper venue — state court or federal court — for allegations that the industry should pay for local damages associated with climate change.

Boulder County, the city of Boulder and San Miguel County sued oil and gas companies in state court in 2018. Industry lawyers pushed the case to a federal court, which sent it back to the state level. The 10th Circuit is reviewing that decision.

The procedural debate is important, as industry advocates think they’ll have an easier time making their case in federal court.

Exxon lawyer Kannon K. Shanmugam, of Paul, Weiss, Rifkind, Wharton & Garrison LLP, argued Wednesday that state tort law “is not an appropriate vehicle” for the case because it involves “reshaping national and, indeed, global energy policy.”

The circuit court addressed both technical issues and the merits of the debate over climate litigation during Wednesday’s telephone arguments.

Lawyers for industry and local governments disagree over whether Boulder’s case, filed under state common law, actually falls under an area of federal common law that is displaced by the Clean Air Act — meaning no court can decide it.

Judge Carolyn B. McHugh took aim at the industry argument, saying she “had a hard time accepting a complete preemption argument under the Clean Air Act.”