Attorneys for the oil companies have argued in court filings that Boulder is attempting to use state law to tackle global climate change.

“Plaintiffs’ claims are not limited to harms allegedly caused by fossil fuels extracted, marketed, sold, or used in Colorado,” they wrote. “Instead, Plaintiffs attempt to use this state’s tort law to control the worldwide activity of companies that play a crucial role in virtually every sector of the global economy.”

The most recent U.S. Supreme Court decision, issued in January, denied attempts to move the state of Minnesota’s case, which was filed in 2020, to federal court.

“The fact that this whole avenue of delay and distraction has been shut down is huge,” said Leigh Currie, director of strategic litigation with the Minnesota Center for Environmental Advocacy. Currie helped write and litigate the lawsuit in her previous role with the state attorney general’s office. “We can go forward and actually answer some of the questions that these lawsuits pose.”

Minnesota is experiencing extreme weather, droughts, floods and wildfire smoke as a result of climate change, Currie said. While the state’s lawsuit does not directly seek damages for those harms, it attempts to compel the oil companies to surrender the profits they made as a result of unlawful behavior.

In their petition before the Supreme Court, the oil companies facing the Minnesota lawsuit argued that without federal review, “climate-change cases will continue to proliferate in state courts, resulting in the application of the laws of fifty states to climate change-related disputes, in conflict with the national-security, economic, and energy policies of the United States.”

‘A war of attrition’

The cases illustrate the arduous legal path just to get before a jury.

“[Oil companies] have an open checkbook, and they’re making record profits,” said Pat Parenteau, an emeritus professor of environmental law at Vermont Law School, who also serves in an informal advisory group that supports some of the governments’ cases. “The real test for the plaintiffs is whether they can compete and fight tooth and nail for years. It’s a war of attrition. That’s what Exxon’s counting on.”

The steep cost of taking on the oil industry has kept some states from joining the fray. But climate advocates say they’re seeing increasing momentum after the Supreme Court wins. Chicago filed a lawsuit this year. Last September, California became the largest government to file a lawsuit, seeking to force oil companies to pay into a fund that would help pay for climate adaptation efforts. Democratic Gov. Gavin Newsom’s office told Politico that the earlier victories gave California confidence that its case would be heard in state court.

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