Environmental groups tried to revive their pollution lawsuit against Suncor on Wednesday in federal court, arguing the state of Colorado is too lax amid ongoing violations and the Clean Air Act gives citizens the right to demand enforcement.
Earthjustice, Colorado GreenLatinos, Sierra Club and others told the 10th U.S. Circuit Court of Appeals that the district court should not have dismissed their 2024 suit, because Colorado is ignoring severe contamination in low-income neighborhoods and highly profitable Suncor considers any fines “the cost of doing business.”
The U.S. District Court in Denver had previously dismissed the environmental groups’ case, agreeing with Suncor that Colorado has been enforcing pollution laws all along and that citizen groups had no right to intervene. The groups then appealed, asking the appellate court to reinstate the lawsuit.
Citizens should be allowed to act because years of consent decrees followed by continuing Suncor violations show Colorado is not meeting the bar of doggedly prosecuting pollution, Earthjustice attorney Kirti Datla told the panel of three appellate judges.
“If, after 10 years, Suncor’s pattern of violation hasn’t changed, and neither has the government’s conduct or attempts to solve that problem, then that’s not diligence,” Datla said. “When state and federal agencies have continuously been unwilling or unable to rein in this pollution, environmental justice and climate groups are stepping in to enforce the law and ensure that Suncor does not continue putting corporate profits over people’s health and safety,” Sierra Club leader Ramesh Bhatt said when the lawsuit was first filed.
State actions — multimillion-dollar fines against Suncor’s billions in profits — have amounted to “useless slaps on the wrist,” Bhatt said.
Suncor attorneys responded Wednesday that “this court should defer to the discretion of the agencies and how they’re tackling this problem.”
“You have to look at what the agency has done to enforce the consent decree,” Suncor’s private attorney Hugh Gottschalk said. “There are five or six years of agency actions referring back to consent decrees, and that is the due diligence.”
The judges, interrupting each side’s 15 minutes of arguments with questions about past enforcement precedents, poked holes in both lines of reasoning.
One judge told the Earthjustice attorney that if a convicted criminal is released and commits more crimes, that doesn’t mean the government failed to act.
Earthjustice responded that if it’s clear over time that a criminal pattern isn’t changing, the government has an obligation to do more.
Ignoring ongoing pollution “would mean that Suncor can just keep violating, keep paying stipulated penalties that to us seem like it’s a cost of doing business at this point, and our clients will suffer,” Datla said.
The environmental groups, and past consent agreements between Suncor and state regulators, have said the Commerce City refinery continues to emits benzene, sulfur dioxide and other chemicals above allowed limits, with thousands of violations.
Judge Paul Kelly challenged Suncor on that front, asking, “How can that be considered diligent, if there has been nothing since a few consent decrees. … What has been done, I want to know, that qualifies as diligent in this case?”
Colorado regulators, Gottschalk responded, are well aware of any problems with Suncor and continue to enforce their past consent decrees. Gottschalk quoted from a past U.S. Supreme Court decision on agency enforcement.
“If citizens can file suit in order to seek civil penalties that the administrator chose to forgo,” that handcuffs a public official’s discretion to act in the public interest, he said. “That’s exactly why we believe this court should defer to the expertise of the agencies.”
The appeals court must now decide whether to allow the lower court’s dismissal of the environmental groups’ initial suit, or send it back to the district court for a trial on the merits.