Suncor Energy's Commerce City refinery. Sept. 11, 2020. (Lucy Haggard, The Colorado Sun)

Climate change is a pressing challenge shared by every person, business and government around the world. How we choose to address this crisis — whether we unite behind a common purpose or let it become yet one more pawn in the politics of division — will define our generation and our success.

The common-purpose approach happens to be what America has always excelled at: innovation. If we are going to overcome climate change, we need our elected and businesses leaders to focus like a laser on developing the technologies we need to protect people and our planet. 

The good news is that this approach is already working. The cost of wind and solar has fallen over the past decade while output has soared. Cars, airplanes and factories have become more efficient. 

Phil Goldberg

Manufacturers in America, which need energy to make products, have reduced the carbon footprint of the things they make by 21% over the past decade while contributing 18% more value to the American economy.

Unfortunately, the city of Boulder, along with Boulder County and San Miguel County, chose the other path, filing a lawsuit seeking to absolve themselves and blame others for this global problem. 

Their lawsuit targets ExxonMobil and Suncor  — companies that manufacture the energy we all use to turn on our lights, heat our homes and power our workplaces — for making products that cause climate change. 

Finger pointing does not lead to solutions.

In addition to being counterproductive, this litigation is turning out to be completely disingenuous. In making its case in court, Boulder repeatedly says it is not asking courts “to stop or regulate the production of fossil fuels” or “emissions in Colorado or elsewhere.” They know that regulating fuels and emissions and imposing carbon penalties is not the job of courts. The case would be a non-starter. 

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Similar lawsuits have been dismissed for this reason. In 2011, a climate case made it up to the U.S. Supreme Court. The unanimous court said setting national energy policy to account for climate change is not a liability issue for courts and that Congress and the EPA are “better equipped to do [this] job than individual district judges issuing ad hoc, case-by-case” decisions.

In 2018, a federal judge dismissed New York City’s lawsuit, which is nearly identical to Boulder’s case. He asked the city’s lawyer, “Aren’t you trying to dress a wolf up in sheep’s clothing?” He found that the lawsuit is “hiding an emissions case in language meant to seem it was” a state tort claim. Again, Boulder’s case is no different.

This is why it was so surprising when the general counsel for EarthRights International, which is representing Boulder in its climate case, fully acknowledged the regulatory purpose of the litigation in a Telluride radio broadcast. As KOTO news director Julia Caulfield explained, EarthRights is trying to use the lawsuits to regulate the industry and make us all pay more for the energy we need. 

Specifically, the attorney told Caulfield, “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.”

The admission is surprising, but the sentiment is not. A couple of years ago, Boulder’s other lead counsel wrote that the goal for this climate litigation is to control the public’s consumption of fuels by making them more expensive: “Given that companies are agents of consumers, however, holding companies responsible is to hold oil consumers responsible.”

Families in Boulder and around the country cannot afford to spend double, triple or more to fill up their cars with gas, use their kitchen appliances, and cool or heat their homes. Such cost increases could lead to job losses in Colorado and across the country. 

Perhaps the lawyers understand that Americans oppose energy policies that significantly raise their costs for energy and other products and risk their livelihoods, particularly when other countries could wipe out any climate gains. So, they are pursuing litigation to skip the legislative and regulatory process and avoid any consideration of consumer interests, economic impacts and the appropriate public policies. 

Coloradans cannot afford this climate lawsuit — just like we cannot unplug from modern life. America must lead today’s critical climate mission and bring the world together for meaningful solutions. 

Innovation, not litigation, is the right, only and proven path forward.

Phil Goldberg is special counsel to the Manufacturers’ Accountability Project, a program of the National Association of Manufacturers created to protect members against the rising number of climate change lawsuits. He also is a partner at Shook Hardy & Bacon, LLP and a fellow with the Progressive Policy Institute’s Center for Civil Justice.

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