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Bd. of Cty. Comm'rs v. Suncor Energy (U.S.A.) Inc.

United States District Court for the District of Colorado

September 5, 2019, Decided; September 5, 2019, Filed

Civil Action No. 18-cv-01672-WJM-SKC

Opinion

 [*954]  ORDER

Plaintiffs brought Colorado common law and statutory claims in Boulder County, Colorado District Court for injuries occurring to their property and citizens of their jurisdictions, [**2]  allegedly resulting from the effects of climate change. Plaintiffs sue Defendants in the Amended Complaint ("Complaint") "for the substantial role they played and continue to play in causing, contributing to and exacerbating climate change." (ECF No. 7 ¶ 2.) Defendants filed a Notice of Removal (ECF No. 1) on June 29, 2018. Plaintiffs filed a Motion to Remand (ECF No. 34) on July 30, 2018.

For the reasons explained below, the Court grants Plaintiffs' Motion to Remand. Defendants' Motion to Reschedule Oral Argument on Plaintiffs' Motion to Remand (ECF No. 67), is denied as the Court finds that a hearing is not necessary.

I. BACKGROUND

Plaintiffs assert six state law claims: public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act,  [*955]  and civil conspiracy. The Complaint alleges that Plaintiffs face substantial and rising costs to protect people and property within their jurisdictions from the dangers of climate alteration. (ECF No. 7 %% 1-4, 11, 221-320.) Plaintiffs allege that Defendants substantially contributed to the harm through selling fossil fuels and promoting their unchecked use while concealing and misrepresenting their dangers. [**3]  (Id. %% 2, 5, 13-18, 321-435.) The fossil fuel activities have raised the emission and concentration of greenhouse gases ("GHGs") in the atmosphere. (Id. %% 7, 15, 123-138, 321-38.)

As a result of the climate alterations caused and contributed to by Defendants' fossil fuel activities, Plaintiffs allege that they are experiencing and will continue to experience rising average temperatures and harmful changes in precipitation patterns and water availability, with extreme weather events and increased floods, drought, and wild fires. (ECF No. 7 %% 145-179.) These changes pose a threat to health, property, infrastructure, and agriculture. (Id. %% 1-4, 180-196.) Plaintiffs allege that they are sustaining damage because of services they must provide and costs they must incur to mitigate or abate those impacts. (Id. %% 1, 4-5, 221-320.) Plaintiffs seek monetary damages from Defendants, requiring them to pay their pro rata share of the costs of abating the impacts on climate change they have allegedly caused through their tortious conduct. (Id. at % 6.) Plaintiffs do not ask the Court to stop or regulate Defendants' emissions of fossil fuels (id. at %% 6, 542), and do not seek injunctive relief. [**4] 

Defendants' Notice of Removal asserts the following: (1) federal question jurisdiction—that Plaintiffs' claims arise under federal common law, and that this action necessarily and unavoidably raises disputed and substantial federal issues that give rise to jurisdiction under Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005) ("Grable"); (2) complete preemption; (3) federal enclave jurisdiction; (4) jurisdiction because the allegations arise from action taken at the direction of federal officers; (5) jurisdiction under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349(b); and (6) jurisdiction under 28 U.S.C. § 1452(a) because the claims are related to bankruptcy proceedings.

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405 F. Supp. 3d 947 *; 2019 U.S. Dist. LEXIS 151578 **; 49 ELR 20154; 2019 WL 4200398

BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY; and CITY OF BOULDER, Plaintiffs, v. SUNCOR ENERGY (U.S.A.) INC.; SUNCOR ENERGY SALES INC.; SUNCOR ENERGY INC.; and EXXON MOBIL CORPORATION, Defendants.

Subsequent History: Stay denied by, Remanded by Bd. of Cty. Comm'rs v. Suncor Energy (U.S.A.) Inc., 2019 U.S. Dist. LEXIS 173621 (D. Colo., Oct. 7, 2019)

CORE TERMS

preemption, fuels, fossil, emissions, Air, climate, global, nuisance, preempted, well-pleaded, oil, enclaves, warming, leases, displaced, prong, pollution, invoked, abatement, quotation, state-law, nexus, interstate, worldwide, energy, greenhouse, chemical, lawsuit, environmental, flooding

Civil Procedure, Subject Matter Jurisdiction, Jurisdiction Over Actions, Limited Jurisdiction, Constitutional Law, The Judiciary, Jurisdiction, Subject Matter Jurisdiction, Removal, Specific Cases Removed, Federal Questions, Evidence, Burdens of Proof, Allocation, Preliminary Considerations, Postremoval Remands, Inferences & Presumptions, Presumptions, Creation, Federal Questions, Well Pleaded Complaint Rule, Substantial Questions, Federal & State Interrelationships, Federal Common Law, Supremacy Clause, Federal Preemption, Federal Common Law, Interstitial Law, Applicability, Environmental Law, Administrative Proceedings & Litigation, Nuisances, Strict Liability, & Trespasses, Governments, Legislation, Interpretation, Air Quality, Enforcement, Civil Actions, Citizen Suits, State Implementation Plans, Business & Corporate Compliance, Environmental Law, Emission Standards, Justiciability, Political Questions, Foreign Affairs, Congressional Duties & Powers, District of Columbia & Federal Property, Specific Cases Removed, Cases Involving Federal Officers, Energy & Utilities Law, Pipelines & Transportation, Pipelines, Offshore Gas & Oil Pipelines, Bankruptcy Law, Procedural Matters, Jurisdiction, Bankruptcy Related Claims, Elements for Removal, Removability, Joinder of Parties, Compulsory Joinder, Indispensable Parties, Torts, Multiple Defendants, Joint & Several Liability, Nonremovable Actions