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Colorado Lawsuit Against Big Oil Looks A Lot Like Those That Took Down Big Tobacco

Suncor Energy
Suncor's refinery in Commerce City, Colo., can produce up to 98,000 barrels a day of gasoline, diesel fuel and asphalt.

Coastal communities across the country are suing oil companies for contributing to climate change. Now, a lawsuit in the landlocked interior joins the list.

At the heart of the lawsuit is this realization: Climate change is expensive. Just look at worsening wildfires and floods nationally. 

“To fight a wildfire, we are looking at at least $200,000 a day,” saysAmy Markwell, the attorney for San Miguel County, Colorado.

She says taxpayers are footing the bill right now for these increasing costs.

Now, her county has joined with Boulder County and the City of Boulderto sue Exxon Mobil and Suncor Energy.

The communities estimate that in the next 30 years, they’ll have to pay $100 million to deal with the effects of climate change, from fighting wildfires to repairing washed out roads. They join agrowing list of places, mostly along the coasts, that are suing fossil fuel companies for their role in climate change.

“We’ve been trying to get ahead of the game and reduce our own impacts to climate. But the damages are just — they’re getting worse, and they’re expected to get worse,” says Markwell.

That being said, models of climate change and the events associated with it carry lots of uncertainty.

“It’s very hard to say that climate change caused something, whatever weather event or phenomenon we’re interested in,” saysRuss Schumacher, Colorado’s state climatologist.

He says it might be easier to prove the connection in coastal areas, because sea level rise has a more clear-cut relation to climate change, but not here in the interior.

Here’swhat we do know about climate change in Colorado in the last few decades. Snow has started melting earlier. It now starts melting 1 to 4 weeks earlier than it did 30 years ago, likely due to a combination of things including rising temperatures, but alsodust, which can cause snow to melt more quickly by making it darker.

“It’s gotten warmer,” says Schumacher.

The statewide annual average temperature has gone up by 2.5 degrees Fahrenheit in the last 50 years.

“That’s the one [change] we have the most confidence in and that’s sort of the best documented,” he says.

But how much of a hand does the warming caused by climate change have in causing an individual wildfire, or an individual flood? To go back another layer, how much of a hand did one oil company have in causing the warming that caused an individual fire or flood?

“I honestly don’t know how you do that,” he says.

Schumacher says researchers are working hard onteasing out the connections between climate change and individual disasters, but they don’t have very clear answers yet.

This isn't the first time local governments have taken on big companies for hard-to-untangle harms. In 1998, the state of Minnesotasuccessfully sued tobacco companies for harming public health. Other states quickly followed.

“That was in many ways, I think, an easier case on the causation side, but there are parallels,” saysMark Squillace, a law professor with the University of Colorado Law School.

One of the biggest parallels, he says, is that thelawsuit is built around the concept that industry has not just caused harm, but knew about the harm it was causing.

“It's similar because the plaintiffs in the tobacco litigation were able to show that the industry had specific information about the public harms associated with nicotine in particular -- and tobacco use generally -- and they hid it from the public,” he says. 

It was aclaim about deceit.

“And that's the same claim that I believe the plaintiffs are making in this case -- that Exxon Mobil in particular had information going back to the 60s and 70s about the adverse consequences of climate change and they hid that information from the public in a way that they will likely characterize as deceitful,” he says.

Indeed, the plaintiffsreference internal industry communications acknowledging that fossil fuel combustion contributes to greenhouse gas emissions.

“Present thinking holds that man has a time window of five to ten years before the need for hard decisions regarding changes in energy strategies might become critical,” reads one Exxonreport from 1978.

The Los Angeles Times reported that in 1997, Mobil Oilpublished an ad in national newspapers saying, “Let’s face it: The science of climate change is too uncertain to mandate a plan of action that could plunge economies into turmoil,” just one year after the company braced its own facilities for rising sea levels.

If the case is allowed to proceed, Squillace says, it could take years just to dig up and sort through all the relevant files from the energy companies.

“But if a court is willing to accept that the defendants are at least partially responsible – and so should be held partially liable – it could open the floodgates to much more litigation,” he says. “And if the plaintiffs in these cases – like the plaintiffs in the tobaccos cases – can show that these companies hid from the public or otherwise distorted significant information about the adverse impacts of greenhouse gas emissions, that could very well persuade a court to award the plaintiffs some measure of damages.”

Suncor and Exxon did not respond to interview requests.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, Yellowstone Public Radio in Montana, KUER in Salt Lake City and KRCC and KUNC in Colorado. 

Rae Ellen Bichell was a reporter for KUNC and the Mountain West News Bureau from 2018 to 2020.
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