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In Latest Blow to Fossil Fuel Industry, Appeals Court Sends Colorado Municipalities' Climate Case Back to State Court

"It's been a tough week for the oil industry."

The Decker fire burns in the Sangre de Cristo Wilderness on October 8, 2019 in Salida, Colorado. (Photo: RJ Sangosti/MediaNews Group/The Denver Post via Getty Images)

The U.S. Court of Appeals for the Tenth Circuit ruled late Tuesday that a lawsuit filed by three Colorado municipalities against two powerful fossil fuel companies will proceed in state rather than federal court in what was a blow to the oil giants.

Boulder County, San Miguel County, and the City of Boulder sued ExxonMobil and Suncor Energy in 2018 over the corporations' decades of contributing to the climate crisis via fossil fuel extraction.

The crisis is affecting communities across the U.S., the plaintiffs argued, and not just in coastal areas where sea level rise is a concern. Representing the counties and city, advocacy group EarthRights International (ERI) argued that the communities are facing intensifying heat waves, wildfires, droughts, and floods which threaten local economies and public health and safety. 

"Exxon and Suncor are disproportionately responsible for the crisis that our clients now face. Their reckless behavior has caused part of the damages that these communities are contending with and they should be held accountable for those damages."
—Marco Simons, ERI

"Exxon and Suncor are disproportionately responsible for the crisis that our clients now face," Marco Simons, general counsel for ERI, said Tuesday. "Their reckless behavior has caused part of the damages that these communities are contending with and they should be held accountable for those damages."

The organization hailed the appeals court decision as a victory, as the case will now be decided within Colorado, where the effects of ExxonMobil and Suncor's actions are readily apparent.

"Federal courts have consistently ruled that these climate cases belong in state courts—which makes sense because these cases are about harms experienced at the local level," said Simons. 

"Colorado is one of the top fossil fuel-producing states in the U.S.," he added. "The oil and gas industry has spent millions of dollars over the past several decades on lobbying and deceptive advertising to spread its destructive message there and to block meaningful climate action. This has led to rampant fossil fuel extraction that is connected to more air pollution, increased risk of wildfires and droughts, and reduced snowpack. These clear indicators of climate change are also undermining public health, local economies, and essential infrastructure systems like roads."

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The fossil fuel industry has fought consistently to have environmental cases adjudicated in federal courts, counting on the courts to rule that climate issues should be left up to the Environmental Protection Agency to oversee and are not legal matters.

In May, the U.S. Circuit Court of Appeals for the Ninth Circuit in California sent cases filed by three counties and five cities back to state courts as well, in another setback for Exxon as well as Chevron, BP, ConocoPhillips, and Shell.

The same court also ruled that previously-dismissed climate lawsuits should be sent back to a district court to consider the proper jurisdiction.

"That's now three federal appeals courts that have rejected fossil fuel companies' bids to punt climate liability lawsuits to federal courts," tweeted environmental journalist Dana Drugmand.

The decision came on the heels of a U.S. district court ruling requiring the Dakota Access Pipeline to be shut down and emptied of oil by Aug. 5 and a decision by two oil companies to cancel the Atlantic Coast Pipeline due to "ongoing delays and increasing cost uncertainty." Both developments were announced Monday.

"It's been a tough week for the oil industry," tweeted Keith Slack, director of strategic impact and campaigns for EarthRights.

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