DISTRICT COURT, COUNTY OF BOULDER
STATE OF COLORADO
Boulder County Combined Court
1777 Sixth Street
Boulder, CO 80302

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

DATE FILED: June 11, 2018 6:34 PM
FILING ID: F382A71DFA2C3
CASE NUMBER: 2018CV30349

▲COURT USE ONLY▲
_________________________________
Case Number: 2018CV30349
Division: 2

Kevin S. Hannon, #16015
THE HANNON LAW FIRM, LLC
1641 Downing Street
Denver, CO 80218
Tel: (303) 861-8800
Fax: (303) 861-8855
Email: khannon@hannonlaw.com
AMENDED COMPLAINT AND JURY DEMAND
Plaintiffs Board of County Commissioners of Boulder County, Board of County
Commissioners of San Miguel County and the City of Boulder, through counsel, allege the
following against Defendants Suncor Energy (U.S.A), Inc., Suncor Energy Sales, Inc., Suncor
Energy, Inc. and Exxon Mobil Corporation.

 TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
I. PARTIES ............................................................................................................................ 5
A. Plaintiffs .................................................................................................................. 5
B. Defendants ............................................................................................................ 12
II. JURISDICTION AND VENUE ....................................................................................... 21
III. STATEMENT OF FACTS ............................................................................................... 30
A. Defendants’ actions have altered the climate in Colorado.................................... 30
1.The climate has been altered because of Defendants’ fossil fuel
activities .................................................................................................... 30
2.The impacts of a climate altered by Defendants’ conduct are being
felt in Plaintiffs’ communities ................................................................... 34
B. Plaintiffs have acted to prevent climate change, but are still being harmed
by, and must act to mitigate, its impacts on their property and residents ............. 46
1.Plaintiffs have made substantial efforts to reduce their own GHG
emissions ................................................................................................... 46
2.Plaintiffs and their residents have already been injured because of
climate change caused and contributed to by Defendants’ actions.
They are mitigating current climate impacts and will be forced to
continnue mitigating and adapting to climate change for the
foreseeable future...................................................................................... 51
C. Defendants’ fossil fuel activities have caused and will continue to cause
Plaintiffs’ damages and losses .............................................................................. 75
1.Defendants knew their fossil fuel activities would result in
dangerous changes in the climate ............................................................. 76
2.Defendants contributed to, accelerated, and exacerbated climate
change by promoting and selling huge amounts of fossil fuels ................ 87

i

 3.Defendants concealed and misrepresented to the public what they
knew about climate change and the dangers of continued and
increasing fossil fuel use........................................................................... 93
IV. PLAINTIFFS’ CLAIMS ................................................................................................. 101
V. RELIEF REQUESTED ................................................................................................... 121
VI. JURY TRIAL DEMANDED .......................................................................................... 124

ii

 INTRODUCTION
1.

The Plaintiffs in this case are three local governmental entities in the State of

Colorado that face substantial and rising costs to mitigate the impacts of Defendants’ alteration
of the climate (“climate change”) on their property, and on the health, safety and welfare of their
residents.
2.

Plaintiffs bring this lawsuit against Exxon Mobil Corporation (“Exxon”) and

Suncor Energy (U.S.A), Inc., Suncor Energy Sales, Inc., and Suncor Energy, Inc. (collectively,
the “Suncor Defendants”) for the substantial role that their production, promotion, refining,
marketing and sale of fossil fuels played and continues to play in causing, contributing to and
exacerbating alteration of the climate, thus damaging Plaintiffs’ property, and the health, safety
and welfare of their residents.
3.

As recognized by both Colorado’s Governor and General Assembly, climate

change will bring more (and more serious) heat waves, wildfires, droughts, and floods to the
State, as well as myriad other consequences caused by rapidly rising temperatures.
4.

These impacts have already harmed Plaintiffs’ property and impacted the health,

safety and welfare of their residents. The damages will only multiply as climate change worsens.
Plaintiffs are taking reasonable and necessary measures to address and abate these impacts
within their respective jurisdictions. As the impacts of climate change grow more severe, they
will do more harm to Plaintiffs and cause greater expense.
5.

Alone, Plaintiffs and their taxpayers cannot pay the full costs of all that is needed

to attempt to mitigate the harm caused by climate change, nor should they. The costs should be
shared by Exxon and the Suncor Defendants because they knowingly caused and contributed to

1

 the alteration of the climate by producing, promoting, refining, marketing and selling fossil fuels
at levels that have caused and continue to cause climate change, while concealing and/or
misrepresenting the dangers associated with fossil fuels’ intended use.
6.

Plaintiffs are not asking this Court to stop or regulate the production of fossil fuels

in Colorado or elsewhere, and they are not asking this Court to stop or regulate emissions in
Colorado or elsewhere; they ask only that Defendants help remediate the harm caused by their
intentional, reckless and negligent conduct, specifically by paying their share of the costs
Plaintiffs have incurred and will incur because of Defendants’ contribution to alteration of the
climate.
7.

Changes to the climate were caused, and continue to be exacerbated, by

unchecked fossil fuel activities. Since the 1960s, unchecked production, promotion, refining,
marketing and sale of fossil fuels – which in turn led to unchecked fossil fuel use – has caused an
unprecedented rapid rise in the concentration of greenhouse gases (GHGs) in the atmosphere.
Fossil fuel use has occurred at a rate that accounts for nearly 80 percent of all GHG emissions
between 1970 and 2010. As a result, more heat has been, is being and will continue to be,
trapped by the atmosphere, triggering changes to the climate.
8.

The hazards created by climate change are real, recognized by every level of

the government in the United States, and pose a clear and present threat to property and
public health in Colorado. Climate change impacts in Colorado are and will continue to be
severe. For example, in 2017, the federal government reported that “[t]he frequency and
intensity of extreme high temperature events are virtually certain to increase” and “[t]he
incidence of large forest fires in the western United States [which has already increased on

2

 account of climate change] . . . is projected to further increase in those regions as the climate
changes, with profound changes to regional ecosystems.”
9.

These and other changes “are particularly important for human safety,

infrastructure, agriculture, water quality and quantity, and natural ecosystems.”
10.

Plaintiffs have taken substantial steps to prevent climate change, but have

been harmed, and will continue to suffer harms regardless. Climate change has already
injured Plaintiffs, as well as people and property in their communities. Recognizing this,
Plaintiffs have taken substantial steps to reduce their own GHG emissions. They have taxed
their residents to fund emission reduction efforts, limited their own fossil fuel use and/or tried to
prohibit or reduce the environmental impacts of fossil fuel production within their borders.
11.

In spite of these efforts, and in light of the hazards that are here and worsening,

Plaintiffs are spending, and must continue to spend, millions of dollars to protect their property
and their residents from the impacts of climate change.
12.

Defendants cannot contest the reasonableness or necessity of Plaintiffs’

climate response. While Defendants publicly fought against climate science – to protect their
profits from the impacts of regulation and informed public choice – they privately relied on the
same established science to protect their businesses from climate change impacts. Now that
Plaintiffs are also forced to grapple with and respond to climate change, Defendants cannot
contest the necessity of a response or Plaintiffs’ reliance on climate science.
13.

While Plaintiffs have acted reasonably, Defendants have acted recklessly.

Decades ago, Defendants understood that their fossil fuel activities were occurring at such a level
to contribute to a dramatic rise in the concentration of GHGs in the atmosphere; that “significant

3

 temperature changes” were likely to result, which would, in turn, “bring about climatic changes”;
that “there [was] no leeway” time for remedial action; and that “[w]e can either adapt our
civilization to a warmer planet or avoid the problem by sharply curtailing the use of fossil fuels.”
They were specifically warned that inaction could cause “dramatic climatic changes,” including
a temperature rise of 9°F, complete snow loss “in the contiguous states, except on higher
mountains,” and “major shifts in weather patterns in the northern hemisphere.”
14.

Despite receiving the warning that “fossil fuel use should not be encouraged,”

Defendants spent decades producing, promoting, refining, marketing and selling fossil fuels
(hereinafter “fossil fuel activities”) at levels that have caused and contributed to alteration of the
climate without disclosing the dangers that continued fossil fuel overuse posed.
15.

Defendants’ fossil fuel activities have caused, contributed to and exacerbated

the impacts of human-caused climate change, thereby contributing to Plaintiffs’ injuries.
Defendants are responsible for billions of tons of the excess greenhouse gas emissions in the
atmosphere. Their fossil fuel activities produced a substantial percentage of all the fossil fuels
whose intended and foreseeable use – i.e., combustion – caused, contributed to and exacerbated
the impacts of climate change.
16.

Moreover, long after they became aware of the dangers of climate change,

Defendants continued their fossil fuel activities in an unchecked manner. Defendants chose to
develop fuel sources that create substantially more GHGs than traditional fossil fuels when
produced and burned, notably those developed from the Canadian tar sands 1 and refined in
Colorado.

1

Tar sands are also known as oil sands.
4

 17.

Defendants’ present and planned fossil fuel activities will accelerate and

exacerbate climate change and its impacts. Defendants continue their fossil fuel activities at
levels which will significantly contribute to climate change. While they may now acknowledge
the reality of climate change, Defendants plan to increase their fossil fuel activities in the future.
The harm to Plaintiffs, including Plaintiffs’ costs of adapting to climate change, will only
increase if this happens.
18.

Defendants acted to prevent and forestall changes in energy use and supply

that they knew were needed to limit climate change, exacerbating the harms suffered by
Plaintiffs and their residents. By hiding the dangers and harm they knew were occurring and
would occur because of their levels of fossil fuel activities and affirmatively misrepresenting the
dangers of unchecked fossil fuel use, Defendants protected fossil fuel demand, worked to lull
consumers into a false sense of security with regard to the impacts of fossil fuels on climate
change, and obstructed the changes needed to prevent or at least minimize the impacts of climate
change.
I.

PARTIES
A. Plaintiffs
19.

The Plaintiffs in this case are the Board of County Commissioners of Boulder

County (“Boulder County”), the Board of County Commissioners of San Miguel County (“San
Miguel County”) and the City of Boulder (occasionally referenced hereafter as the “City”). 2

2

References in the Complaint to “Boulder,” or the “Boulder area,” refer to the geographic area
of Boulder County, which includes both the incorporated towns and cities, including the City of
Boulder, in addition to the unincorporated areas of the County.

5

 BOULDER COUNTY
20.

Plaintiff Boulder County, a subdivision of the State of Colorado, is a body

corporate and politic in the State of Colorado empowered to sue and be sued. It lies in north
central Colorado, on the eastern slopes of the Rocky Mountains in the Front Range Urban
Corridor, encompassing 753 square miles.
21.

Land within the County contains sub-alpine and alpine ecosystems and a

shrinking glacier. The County’s west contains forests, slopes, mountain communities and
canyons, which hold creeks that bring water to the cities, high plains, grasslands and farmlands
of the County’s east.
22.

The County is home to roughly 319,000 people, and includes both unincorporated

areas – the rural, mountainous and plains communities – and incorporated towns and cities,
including Plaintiff City of Boulder.
23.

Boulder County has long held a commitment to stewardship of the land,

environment and community. The eastern plains are rich in agricultural farmland, lakes and
rolling pastures filled with distinctly defined cities and communities, while the foothills and
mountains to the west feature prominent rock formations, forests and high-altitude valleys and
sweeping vistas. Preserving the County’s future in a way that maintains its agricultural
landscape, character and unique way of life is a top priority for County residents.
24.

As a governmental entity, Boulder County takes its stewardship responsibilities to

heart and works daily to further the County’s long-term vision for well-planned urban
development, economic vitality and the preservation of its rural and mountain communities.
25.

In its unincorporated areas, Boulder County owns and/or maintains hundreds of

6

 miles of paved and unpaved roads, over 80 major bridges, hundreds of large culverts and smaller
bridges/access points, as well as thousands of small culverts.
26.

The County provides a wide range of services to residents in unincorporated

areas, including health and human services, emergency services, wildfire mitigation and other
necessary governmental functions. It also provides services to residents living in the
incorporated areas of Boulder County, including housing and human health programs, as well as
emergency services.
27.

Boulder County owns or holds conservation easements over a substantial amount

of real and other property for its own benefit and for that of its residents. This includes 65,316
acres of publicly owned “open space”, i.e., County-owned public land preserved for recreation,
conservation, and agricultural purposes. The County has a duty to preserve and maintain this
open space for future generations. The County also holds conservation easements over roughly
40,000 acres of privately owned land, which protect agricultural land, wildlife habitat and scenic
open space from development.
28.

The County leases 25,000 acres of its open space to sixty-seven agricultural

tenants, generating approximately $125,000 in annual net income. In addition, the County also
owns, leases, and maintains and/or operates more than 45 public buildings, and the County
housing authority owns more than 800 units of affordable or subsidized housing.
29.

People, property (including County-owned property), and infrastructure within

Boulder County have been and will continue to be damaged on account of climate change caused
and contributed to by Defendants’ actions. Boulder County has taken substantial steps to abate
these hazards, and will and must continue to do so.

7

 SAN MIGUEL COUNTY
30.

Plaintiff San Miguel County is a body corporate and politic of the State of

Colorado empowered to sue and be sued. It lies in southwest Colorado, on the western slopes of
the Rocky Mountains, encompassing 1,289 square miles. The County encompasses the high
mountain communities of Telluride (the County seat) and Mountain Village at the eastern end of
the County and arid ranching communities in the County’s western end. In 2017, San Miguel
County had an estimated population of 7,967. Telluride, the County’s largest town, had an
estimated population of approximately 2,500.
31.

San Miguel County has historically valued preservation of natural resources and

land stewardship, starting with the land ethic of the early ranching pioneers who established the
Town of Norwood, and continuing through its commitment to preserving wild lands for
recreational opportunities and ecosystem services. The San Miguel River connects the
communities of the County from the high alpine headwater towns dependent on consistent snow
pack, forested landscapes and a healthy river system to the agricultural communities dependent
on healthy spring runoff and summer flows.
32.

In 2001, voters approved a mill levy for open space and historic preservation. In

2005, San Miguel County partnered with local governments to establish a regional sustainability
program whose mission was to reduce GHG emissions through an inventory and education
program. The mission of the San Miguel County Board of Commissioners is to “ensure our
residents are healthy and flourishing and that our communities are safe and vibrant by: providing
essential community services, practicing responsible stewardship of our environment,
prioritizing long-term fiscal stability, and partnering with others to enhance the quality of life in

8

 San Miguel County and the region.”
33.

San Miguel County provides emergency response services in the event of

wildfires, floods, road washouts and other threats to public health and safety. In addition, the
County owns and/or maintains hundreds of miles of roads, including paved and gravel roads; as
well as dozens of bridges, numerous culverts and public buildings.
34.

People, property (including County-owned property) and infrastructure within

San Miguel County have been and will continue to be damaged on account of human-caused
climate change caused and contributed to by Defendants’ actions. San Miguel County has taken
substantial steps to abate these hazards, and will and must continue to do so.
THE CITY OF BOULDER
35.

The City of Boulder is a home rule municipality in the State of Colorado

empowered to sue and be sued. It lies in Boulder Valley at the foothills of the Rocky Mountains,
25 miles northwest of Denver. The City’s 25.8 square miles is surrounded by over 70 square
miles of preserved City public land and parks space. It is bordered on one side by the iconic
Flatirons rock formations and on the other side by the Great Plains.
36.

The City of Boulder sits 5,430 feet above sea level and is surrounded by a

greenbelt of City trails and open spaces. It is known for its natural beauty, outdoor recreation,
natural product retailers and restaurants, outstanding alternative transportation options, diverse
businesses and technological and academic resources.
37.

The City is home to roughly 108,000 people. It serves as both the seat and the

most populous municipality in Boulder County and is home to approximately one-third of the
County’s residents. The City is also home to the main campus of the University of Colorado and

9

 boasts a high concentration of employment in STEM fields. In addition to the well-renowned
researchers at the University of Colorado Boulder, the City hosts a number of science and
environmental organizations, including research facilities for the National Center for
Atmospheric Research and the National Oceanic and Atmospheric Administration.
38.

The City and its residents have a long history of planning for the challenges of

tomorrow and fostering sustainability. For decades, the City has taken, and the community has
supported, some of the most progressive sustainability activities in the country, including a 40plus year legacy of open space preservation and pioneering commitments to climate action goals.
Stewardship and sustainability are part of the Boulder community DNA. The City not only
protects the health, security and livelihoods of its residents, it is a steward that protects the fabric
of the community, its ecosystems and way of life, including for future generations.
39.

The City of Boulder owns and/or maintains hundreds of miles of paved roads,

over 40 major bridges, fourteen reservoirs, two water treatment plants, sewage and stormwater
drainage systems and other critical infrastructure.
40.

The City provides a myriad of services that are essential to the health, safety and

welfare of its residents, including: emergency services; public utilities, such as water supply and
treatment; transportation infrastructure; fire protection; flood controls; and parks and public
outdoor space.
41.

The City also owns a substantial amount of real and other property for its own

benefit and for the benefit of its residents. This includes over 45,000 acres of “open space.” The
City leases 15,000 acres of that open space to 26 agricultural tenants. In addition to its open
space holdings, the City owns, leases, maintains, and/or operates many buildings and other

10

 structures.
42.

The City of Boulder also owns substantial and senior water rights, which it uses to

supply water to its residents and businesses, as well as to others outside the City limits, and from
which it derives revenue. 3
43.

The City’s water supply comes from both the East and West Slopes of the

Continental Divide of the Rocky Mountains. The City’s East Slope sources are diverted from
North Boulder Creek and Middle Boulder Creek through City infrastructure; its West Slope
sources are conveyed from the upper Colorado River and delivered to the City for treatment
through Northern Colorado Water Conservancy District facilities.
44.

The City stores its water in fourteen different City-owned and -operated

reservoirs. The City treats its water at two City-owned and -maintained facilities, and the City
transports its water – including, ultimately to residents – through City-owned and -operated
infrastructure.
45.

People, property (including City-owned property) and infrastructure within the

City of Boulder have been and will continue to be damaged on account of climate change caused
and contributed to by Defendants’ actions. The City of Boulder has taken substantial steps to
abate the hazards facing its residents, public property and infrastructure, and will and must
continue to do so.

3

Over the course of a year, the majority of the water supplied by the City goes towards indoor
uses, i.e., drinking and sanitation, with a smaller share going towards irrigation. The balance
shifts based on seasons and water availability: a greater portion of the water goes towards
irrigation in the warmer and drier summer months though water for irrigation purposes is
curtailed when water is in shorter supply. The City also leases some of the water for agricultural
purposes, when supplies permit.
11

 B. Defendants
46.

The Defendants in this case are Suncor Energy, Inc. (“Suncor Energy”), Suncor

Energy (U.S.A.) Inc. (“Suncor USA”), Suncor Energy Sales, Inc. (“Suncor Energy Sales”), and
Exxon Mobil Corporation (“Exxon”).
THE SUNCOR DEFENDANTS
47.

Defendant Suncor Energy is a Canadian corporation with its registered and head

office located in Calgary, Alberta. Suncor Energy does business in Colorado through its
numerous subsidiaries.
48.

Suncor Energy began as the Sun Company of Canada, a subsidiary of Sun Oil, an

American company. Suncor Energy was later known as Suncor Inc., an entity formed in 1979 by
the amalgamation under the Canada Business Corporations Act of Sun Oil Company Limited,
incorporated in 1923, and Great Canadian Oil Sands Limited, incorporated in 1953. In 1997,
Suncor Energy adopted its current name, Suncor Energy, Inc. In 2009, Suncor Energy
amalgamated with Petro-Canada to form a single corporation continuing the same name, which
to date has operated as an independent company. Suncor Energy benefited from, continues to
benefit from and is responsible for the actions of its predecessor entities.
49.

Suncor Energy is the parent company of a multinational, integrated oil and gas

enterprise that explores for, produces, refines, markets and sells fossil fuels (including oil,
natural gas, petroleum coke and other products). Suncor Energy publicly has stressed the
“integrated” nature of its operations stating that “the integration of our business, both financially
and physically, creates the conditions for our success.” Suncor Energy files consolidated
regulatory filings that include its subsidiaries, claiming profit and responsibility for the

12

 production, marketing, refining, transportation and fossil fuel sales of its subsidiaries.
50.

Suncor Energy controls and directs fossil fuel activities – including the fossil fuel

activities associated with the Canadian tar sands – across its corporate family, which include
many other subsidiaries and joint ventures, and which act as its agents.
51.

Suncor Energy refers to its subsidiaries as part of, and Suncor acts as, a single

enterprise:
•

In its 2017 Annual Report, Suncor Energy explains that “[r]eferences to “we”,
“our”, “Suncor”, or “the company” mean Suncor Energy Inc., its subsidiaries,
partnerships and joint arrangements, unless the context requires otherwise.”

•

The 2017 Annual Report explains that “Suncor’s R[efining] &M[arketing]
segments consists of two primary operations:
“Refining and Supply operations refine crude oil and intermediate feedstock into
a broad range of petroleum and petrochemical products. Refining and Supply
consists of:
“. . . .Western North America operations include refineries located in Edmonton,
Alberta and Commerce City, Colorado. . . .
“Marketing operations sell refined petroleum products to retail, commercial and
industrial customers through a combination of company-owned, Petro-Canada
branded dealers in Canada and a Sunoco branded-dealer and other retail stations
in Colorado . . . .”

52.

Suncor Energy directs the operations of its subsidiaries. Its 2017 Annual Report

advises shareholders of the planned maintenance of its refineries. “The Edmonton refinery has a
planned seven-week maintenance event, which includes a one-month full refinery turnaround,
and the Commerce City refinery has a four-week turnaround event, both of which are scheduled
to begin late in the first quarter of 2018 and extend into the second quarter of 2018 . . . and the
Commerce City refinery has a two-week maintenance event scheduled to begin in the fourth
quarter. The anticipated impact of these maintenance events has been reflected in the company’s

13

 2018 guidance.”
53.

Suncor Energy prepares consolidated financial statements that include its

subsidiaries, such as Defendants Suncor USA and Suncor Energy Sales.
54.

Suncor Energy’s control over Defendant Suncor Energy USA is reflected in other

locations of the 2017 Annual Report, which also states: “Refining and Marketing includes the
refining of crude oil products, and the distribution and marketing of these and other purchased
products through retail stations located in Canada and the United States (U.S.) . . . .”
55.

The Annual Report also lists “Material subsidiaries, each of which is a wholly

owned, either directly or indirectly, by the company as at (sic) December 31, 2017.” Defendant
Suncor USA is included in the chart that follows, as well as Suncor Energy (U.S.A.) Marketing
Inc. This is not a complete listing of Suncor Energy subsidiaries.
56.

Other statements by Suncor Energy reflect its control over its subsidiaries:

•

Suncor Energy refers to the refinery, operated by Suncor USA in Colorado, as
“our Commerce City refinery”;

•

Suncor’s CEO describes the Commerce City, Colorado refinery as “giv[ing] us
increased control of our product from production straight through to the
consumer”;

•

Suncor Energy publicly describes its “U.S. businesses” as a “vital link between
the company’s large scale oil sands resource base and the growing U.S. energy
market;”

•

Suncor Energy further notes that “[t]he various parts of Suncor’s businesses are
tightly connected”;

•

Suncor Energy “100% guarantee[s]” its crude oil marketing and trading business
under Suncor Energy Marketing Inc.; and

•

Suncor Energy describes its “Supply & Trading” function in a consolidated
unified way that is directed by Suncor Energy: “We are Suncor Energy Inc.’s
commercial centre of excellence for sales and marketing of selected energy
14

 products and services. With offices in Calgary, Alta., Denver, Colo., and London,
England . . . .”
57.

Defendant Suncor USA, a subsidiary of Suncor Energy, operates a refinery in

Commerce City, Colorado that produces 98,000 barrels per day of gasoline and diesel fuel. The
Commerce City refinery processes Canadian tar sands crude from Suncor Energy’s mining
operations in Canada and products from fractured oil and gas production in Colorado.
58.

Defendant Suncor Energy Sales, Inc., a subsidiary of Suncor Energy operates 47

retail gasoline and/or diesel fuel stations in Colorado under the following trade names: Coastal
Mart (1 station); Exxon (4 stations); and Phillips 66 (42 stations).
59.

References to Suncor, unless otherwise specified, will be to the collective Suncor

corporate enterprise, including the Suncor Defendants.
60.

Suncor conducts its fossil fuel activities according to a common design across the

corporate family, which is set by Suncor Energy. On information and belief, the other members
of the Suncor corporate family – subsidiaries, affiliates and other agents – do not have the ability
to deviate from the common design and cannot refuse to produce, promote, refine, sell and/or
transport Suncor fossil fuels.
61.

Suncor claims it is “the fifth largest North American energy company and has a

place on the global stage as one of the largest independent energy companies in the world.” In
2017, Suncor produced approximately 685,000 barrels of oil per day and refined approximately
441,000.
62.

As a result of their fossil fuel activities at levels sufficient to contribute to

alteration of the climate, the Suncor Defendants are responsible for billions of tons of excess
GHG emissions. Based on the GHG emissions that can be traced solely to fossil fuels produced
15

 by Suncor and its subsidiaries since 1988, the Suncor Defendants are responsible for the
emission of approximately 2 billion tons of extra CO2 into the atmosphere. Suncor is one of the
largest sources of historic and present-day GHG emissions.
63.

A substantial amount of Suncor’s fossil fuel products is derived from its Canadian

tar sands operations. Approximately 20 percent of the products produced at the Commerce City
refinery are derived from Suncor’s Canadian tar sands operations. Suncor trumpets its plans to
increase tar sands development over the coming decades.
64.

Suncor Energy publicly states that it has around 8 billion barrels of recoverable

oil, the majority of which comes from the Canadian tar sands.
65.

With its focus on tar sands, Suncor’s fossil fuel activities produce a proportionally

greater amount of GHG emissions than most fossil fuel companies do.
66.

Tar sands are deposits of a petroleum-like substance known as bitumen. Mining

and developing bitumen require a huge amount of energy, which itself releases enormous
amounts of GHGs. 4 Barrels of converted bitumen also have a higher concentration of carbon, as
compared to typical petroleum.
67.

The chart below, which was produced by the Carnegie Institute as part of a report,

“Know Your Oil: Creating a Global Oil-Climate Index,” shows the number of downstream
emissions – those created by combustion of the fuels – for different companies’ oil products.
Both Suncor’s own products, and products developed by Syncrude – a venture whose owners

4

In 2014, Suncor’s production and refining operations emitted more than 20 million tons of
GHGs, a number which they now expect to increase to more than 25 million tons by 2019, as its
tar sands operations continue to grow.

16

 include Exxon and Suncor – rank among the highest emissions per barrel.

68.

Additionally, the process of turning tar sands deposits into useable fuel produces

huge amounts of petroleum coke (“petcoke”), a coal-like substance. When combusted, petcoke
produces substantially greater GHG emissions per unit of energy produced, as compared to other
fossil fuels (including coal). Suncor is one of the largest sources of petcoke and has sold millions
of tons of it. 5
69.

Suncor is a very profitable fossil fuel company, deriving profits – in the tens of

5

The GHGs resulting from tar sands products are no different from GHGs produced from other
sources; the tar sands products simply produce more GHGs for the amount of energy they
generate. The fact that Suncor Energy has continued to invest heavily in these products, despite
its knowledge of climate change, only further demonstrates its recklessness.
17

 billions of dollars since the late 1980s – primarily from the production and sale of fossil fuels.
70.

From no later than the late 1960s, Suncor knew that its fossil fuel products would,

at the levels being used, release CO2 and other GHGs into the atmosphere, and contribute to
changes in the planet’s climate, including in Colorado, and cause the harms Plaintiffs allege
herein.
71.

On information and belief, through at least 2016, Suncor was a member of, had

access to information held by, participated in, directed, benefited from, agreed with, consented to
and ratified and/or adopted positions and actions taken by the American Petroleum Institute
(API) together with other fossil fuel companies. 6
EXXON
72.

Defendant Exxon is a New Jersey corporation headquartered in Texas. Exxon has

done business in Colorado since at least the 1930s.
73.

Exxon is a multinational, vertically integrated, fossil fuel company. While Exxon

has many predecessor companies, its current incarnation was formed in 1999 with the merger of
Exxon Corp. (originally the Standard Oil Company of New Jersey) and Mobil Corp. (originally
the Standard Oil Company of New York). Exxon has benefited from, and is responsible for, the
actions of its many predecessor entities.
74.

Exxon controls and profits from fossil fuel activities across its corporate family,

which includes many subsidiaries and joint ventures.

6

For example, in its 2016 “Sustainability Report” Defendant Suncor stated that it was “a
participant in the development of policy positions and contributes to the outcomes of [API]
meetings” and that API’s and Suncor’s positions on climate change were “consistent.”

18

 75.

On information and belief, the fossil fuel activities across Exxon’s entire

corporate family are pursued according to a common design set and controlled by Exxon.
According to that common design, the members of the corporate family – subsidiaries, affiliates
and other agents – do not have the ability to deviate from the common design and cannot refuse
to produce, promote, refine and sell and/or transport Exxon’s fossil fuels.
76.

Exxon’s filings with the U.S. Securities and Exchange Commission and other

public statements consolidate production, refining and fossil fuel sales figures across the
corporate family. (Further references to “Exxon” will be references to the entire corporate
enterprise, unless otherwise specified.)
77.

Exxon directs its subsidiaries and agents as a single enterprise. On its own

website, Exxon declares that “We operate facilities or market products all over the world and
explore for oil and natural gas on six continents.”
78.

Exxon also states that:

•

“We hold an industry-leading inventory of global oil and gas resources.”

•

“We are the world’s largest integrated refiner . . .”

•

“We sell natural gas in almost all major and developing markets.”

•

“Our total net oil and gas production available for sale in 2016 averaged 4.1 million
oil-equivalent barrels per day.”

79.

Specifically, Exxon manages the entire operation, across the corporate family,

with regard to climate change. Specifically, Exxon states that:
•

“In order to ensure that our corporate communications accurately reflect our internal
policy positions, we employ a corporate-wide global climate change and greenhouse
gas issue management team. As issues related to climate change arise at the local,
state, national and regional levels, our global team of experts evaluates and develops
a company position consistent with our principles.”
19

 •

The Exxon “Board or individual/sub-set of the Board or other committee appointed
by the Board” has “the highest level of direct responsibility for climate change within
[the] organization.”

•

It has a company-wide price on carbon, which it uses “when evaluating the
economics of ExxonMobil’s potential projects.”

80.

On information and belief, Exxon has control over the way that its fossil fuels are

marketed by franchisees, distributors and other retail suppliers of Exxon fuels. As noted by the
Supreme Judicial Court of Massachusetts – the highest court in that State – Exxon’s operative
franchise agreement gave Exxon “the authority to review and approve, in its sole discretion, all
forms of advertising and sales promotions . . . for the promotion and sale of any product,
merchandise or services” that “uses or incorporates any Exxon trademark” or “relates to any
Business operated at [Branded Franchise Agreement] Holder Branded Outlet.” Moreover,
franchise dealers expressly “agree to such review and control by Exxon.”
81.

Exxon has supplied a substantial portion of all fossil fuels used worldwide. Since

the 1960s, it has sold billions of barrels of oil, trillions of cubic feet of natural gas and millions of
tons of coal. Historically, Exxon supplied nearly 10 percent of global oil demand. 7
82.

As a result of its fossil fuel activities at levels sufficient to contribute to alteration

of the climate, Exxon is responsible for billions of tons of GHG emissions. For example, based
on the GHG emissions that can be traced solely to fossil fuels produced by Exxon since 1988, it
is responsible for more than 16 billion tons of carbon dioxide (CO2). 8 Exxon is one of the largest

7

For example, in 2001, Exxon sold nearly 8 million barrels of oil per day, more than 10 percent
of the approximately 75-million-barrel global demand.
8

Exxon is responsible for far more than 16 billion tons of CO2 because it sells far more than it

20

 sources of historic and present-day GHG emissions.
83.

Exxon now publicly purports to accept some of the truth of climate change – i.e.,

that it is largely caused by human activity, primarily fossil fuel use, and that increasing
atmospheric temperatures will harm public health and property. Nonetheless, Exxon’s business
plans include increased sales of fossil fuels and the development of more carbon-intensive fossil
fuels, such as shale oil and tar sands. Its reported fossil fuel reserves exceed 20 billion barrels of
oil equivalent (“BOE”).
84.

Exxon is one of the world’s most profitable companies, deriving profits – in the

hundreds of billions of dollars since the late 1980s – primarily from the production, refining,
promoting, marketing and sale of fossil fuels.
85.

From no later than the late 1960s, Exxon knew that its fossil fuel products would,

when used as expected at the levels they would be used, release CO2 and other GHGs into the
atmosphere, and contribute to changes in the planet’s climate, including in the climate of
Colorado, and cause the harms Plaintiffs allege herein.
86.

On information and belief, at all relevant times, Exxon was a member of, had

access to information held by, participated in, directed, benefited from, agreed with, consented
to, and ratified and/or adopted positions and actions taken by the American Petroleum Institute.
II.

JURISDICTION AND VENUE
87.

Venue is proper in this Court pursuant to Colorado Revised Statutes § 16-13-

307(2) and Colorado Rule of Civil Procedure 98 because the nuisance and trespass which

produces, and because it sold billions more barrels of fossil fuels before 1988. The precise
amount will be revealed during discovery and trial.
21

 Defendants caused and contributed to exist in Boulder County, because the subject matter of the
action is located in Boulder County, and because Defendants have committed a tort in Boulder
County, including the carrying out of deceptive trade practices.
88.

Each Defendant is subject to personal jurisdiction in Colorado pursuant to

Colorado Revised Statutes § 13-1-124 because each transacts business, committed and continues
to commit tortious acts in Colorado and has caused substantial injury to Plaintiffs in Colorado.
Each ton of CO2 that can be traced to Defendants’ fossil fuel operations in and contacts with
Colorado caused and contributed to bringing about climate change, and exacerbates the impacts
of climate change and Plaintiffs’ injuries.
SUNCOR ENERGY
89.

Suncor Energy is a Canadian corporation with its principal office at 150 6th

Avenue S.W., Calgary, Alberta, Canada T2P 3E3. General personal jurisdiction is proper over
Suncor Energy because it has substantial contacts and affiliations with Colorado, including
through its subsidiaries, which make it essentially at home in the state. Specific personal
jurisdiction is also proper over Suncor Energy because it has substantial contacts with Colorado
by and through its fossil fuel activities in the state and because Plaintiffs’ injuries arose out of,
were caused and/or exacerbated in part by and/or relate to those activities.
90.

Suncor Energy – through its own direct actions and through the activities of its

subsidiaries and agents acting pursuant to a common design coordinated and directed by Suncor
Energy – has substantial contacts with Colorado relating to the claims in this case, including
activities that give rise to the claims in this case. Suncor Energy’s affiliations with Colorado are
more substantial than with any other state in the United States.

22

 91.

With the knowledge that its fossil fuel activities were and are occurring at levels

that have and continue to contribute to climate change in Colorado, and with knowledge that its
actvities would result and were resulting in the harms of the types Plaintiffs allege herein, Suncor
Energy has engaged in the following activities:
•

promoted and continues to promote fossil fuels in Colorado with the intent that its
fossil fuels be used and combusted;

•

sold, sells and plans to continue selling fossil fuels to customers in Colorado
through a network of gas stations and other suppliers – by its own admission,
Suncor’s products account for “35% of Colorado’s gasoline and diesel fuel
demand,” and a third of the jet fuel supplies for Denver International Airport;

•

operated, and continues to operate, “Colorado’s only petroleum refinery” in
Commerce City, Colorado, which produces over 100,000 barrels per day –
approximately 20 percent of the products produced at the Commerce City refinery
are derived from Suncor’s Canadian tar sands operations; and

•

operates pipeline systems that transport crude oil from Cheyenne, Wyoming, to
Commerce City, Colorado.

92.

Suncor has also directly emitted substantial amounts of GHGs in Colorado from

its fossil fuel activities, including refining and transportation activities. Suncor’s operations in
Colorado emitted approximately one million metric tons of GHGs in 2016 alone.
93.

On its own, and/or through agents – including API and the company’s affiliates –

Suncor Energy has conspired to, funded and participated in efforts to mislead people and
consumers in Colorado about, among other things, climate change and the risks of fossil fuel use.

23

 SUNCOR USA
94.

Defendant Suncor USA, a subsidiary of Suncor Energy, is a Delaware corporation

and citizen of Colorado with its principal place of business located at 717 17th Street, Suite 2900,
Denver, Colorado. Suncor USA registered with the Office of the Colorado Secretary of State to
transact business in the state beginning in June 2003 and has done business in Colorado
continuously since that time. Suncor USA is subject to general jurisdiction in Colorado.
SUNCOR ENERGY SALES
95.

Defendant Suncor Energy Sales, a subsidiary of Suncor Energy, is a Colorado

corporation and citizen, with its principal office located at 717 17th Street, Suite 2900, Denver,
Colorado. Suncor Energy Sales is subject to general jurisdiction in Colorado.
ADDITIONAL SUNCOR SUBSIDIARIES
96.

In addition to the Suncor Defendants, Suncor also operates in Colorado through

several other subsidiaries, including Petro-Canada Resources (USA), Suncor Energy Services,
Suncor Energy (U.S.A.) Marketing and Suncor Energy (U.S.A.) Pipeline Co.
Petro-Canada Resources (USA)
97.

Petro-Canada Resources (USA) Inc., a subsidiary of Suncor Energy, is a Colorado

corporation with its principal office located in Denver, Colorado. Petro-Canada Resources
(USA) Inc. registered with the Office of the Colorado Secretary of State to transact business in
the state beginning in February 1980 and has done business in Colorado continuously since that
time.
98.

Petro-Canada Resources (USA) Inc. produced fossil fuels in Colorado, including

in Boulder County.

24

 Suncor Energy Services
99.

Suncor Energy Services, Inc., a subsidiary of Suncor Energy, is a Canadian

corporation with its principal office located in Alberta, Canada. Suncor Energy Services
registered with the Office of the Colorado Secretary of State to transact business as a foreign
entity pursuant to C.R.S. § 7-90-301, et seq. and § 7-90-803 in September 2009 and has done
business in Colorado continuously since that time.
100.

Suncor Energy Services extracts and upgrades oil sands and markets refinery

feedstock, diesel fuel and natural gas.
Suncor Marketing
101.

Suncor Energy (U.S.A.) Marketing, Inc. (“Suncor Marketing”), a subsidiary of

Suncor Energy, is a Delaware corporation with its principal office located in Denver, Colorado.
Suncor USA Marketing registered with the Office of the Colorado Secretary of State to transact
business as a foreign entity pursuant to C.R.S. § 7-90-803 in September 2012 and has done
business in Colorado continuously since that time.
102.

Suncor Marketing offers marketing, transportation, and storage of crude oil and

natural gas products. It also produces and distributes sulfur and petroleum coke.
Suncor Pipeline
103.

Suncor Energy (U.S.A.) Pipeline Co. (“Suncor Pipeline”), a subsidiary of Suncor

Energy, is a Colorado corporation with its principal office located in Denver, Colorado.
104.

Suncor Pipeline operates pipeline systems that carry crude oil from Cheyenne,

Wyoming, to Commerce City, Colorado. It supplies the Suncor USA refinery located in
Commerce City.

25

 EXXON
105.

Defendant Exxon is a New Jersey corporation with its principal place of business

in Irving, Texas. Exxon has a registered agent for service of process in Colorado and has done
business in Colorado since at least the 1930s. 9 Exxon registered with the Office of the Colorado
Secretary of State to transact business as a foreign entity in December 1972 and has done
business in Colorado continuously pursuant to C.R.S. § 7-90-301, et seq. and § 7-90-803 since
that time.
106.

Personal jurisdiction is proper over Exxon because it has substantial contacts with

Colorado by and through its fossil fuel activities in the state, because it acted in concert with
Colorado corporations, and because Plaintiffs’ injuries arose out of, were caused and/or
exacerbated in part by and/or relate to those activities.
107.

Exxon has substantial contacts with Colorado relating to the claims in this case,

including activities that give rise to the claims in this case. With knowledge its fossil fuel
activities were and are occurring at levels that have and continue to contribute to climate change
in Colorado, and with knowledge that its activities would result and were resulting in the harms
of the types Plaintiffs allege herein, on information and belief, Exxon has engaged in the
following activities:
•

promoted, promotes and plans to continue promoting fossil fuel use with the
public and customers in Colorado;

•

sold, sells and plans to continue selling its fossil fuels in Colorado through its own

9

Its registered agent is Corporation Service Company, 1900 W. Littleton Boulevard, Littleton,
Colorado.

26

 gas stations, and through agreements with other retail distributors 10 – there are
approximately 50 Exxon-branded gas stations in Colorado;
•

produced a substantial amount of natural gas directly in Colorado – tens of
millions of cubic feet between 1999 and 2011 alone – and through its agent, XTO,
which claims to produce more than 130 million cubic feet a day;

•

produced a substantial amount of crude oil directly in Colorado – hundreds of
thousands of barrels between 1999 and 2011 alone - and through its agent, XTO,
which produced hundreds of thousands of barrels between 2007 and 2018.

•

produced coal in Colorado; and

•

built a town in Garfield County, Colorado in connection with its Colony Oil Shale
Project.

108.

Exxon states that it has been producing natural gas in Colorado’s Piceance Basin

“since the 1950s,” and that it currently has an “interest in 300,000 acres in the Piceance Basin”
holding potentially 45 trillion cubic feet of gas. Exxon states it is “committed to building longterm partnerships in Rio Blanco County and northwest Colorado” through these Piceance
operations.
109.

Exxon has sought to develop and has continuing plans to develop unconventional

fossil fuels in Colorado, such as oil shale (i.e., kerogen) and coal-to-liquid and coal-to-gas
synthetics.
110.

Exxon has also directly emitted substantial amounts of GHGs in Colorado from

its production and transportation activities. The company emitted more than 420,000 metric tons
of GHGs in Colorado between 2011 and 2015 alone.
111.

On its own, and/or through agents – including API – Exxon has also conspired to,

10

The quantity of Exxon’s product which is sold in this state is information that is uniquely in
Exxon’s possession.

27

 funded and participated in efforts to mislead people and consumers in Colorado about, among
other things, the existence of climate change and the risks of fossil fuel use.
112.

Throughout the time period relevant to this litigation, Exxon has operated and

done business in Colorado on its own behalf and through several agents. These agents include,
but are not limited to:
XTO Energy Inc.
113.

XTO Energy Inc., a wholly owned subsidiary of Exxon, is a Delaware corporation

with its principal office located in Fort Worth, Texas. XTO Energy Inc. registered with the
Office of the Colorado Secretary of State to transact business as a foreign entity in December
2002 and has done business pursuant to C.R.S. § 7-90-301, et seq. and § 7-90-803 continuously
since that time.
114.

XTO Energy Inc. has developed and continues to develop fossil fuels in Colorado.

XTO purports to be an expert “in developing tight gas, shale gas, coal bed methane and
unconventional oil resources,” and its western division is headquartered in Denver, Colorado.
XTO operates across 553,392 acres in Colorado, producing 130 million cubic feet of gas per day.
ExxonMobil Coal USA Inc.
115.

ExxonMobil Coal USA Inc. was a wholly owned subsidiary of Exxon and a

Delaware corporation with its principal office located in Houston, Texas. ExxonMobil Coal
USA Inc. registered with the Office of the Colorado Secretary of State to transact business as a
foreign entity in December 1979 and did business continuously until May 2002. The company’s
purpose was to “acquire, mine, and sell coal; maintain shale, water, oil and gas interests. [And
to] [d]evelop [the] capability to produce synthetic liquids and gas, including research and

28

 development programs.”
Ellora Energy Inc.
116.

Ellora Energy Inc. is a Delaware corporation and a wholly owned subsidiary of

Exxon. Between June 2002 and January 2011, Ellora Energy Inc. was registered with the
Colorado Secretary of State to transact business as a foreign entity, and it had its principal place
of business at 5665 Flatiron Parkway, Boulder, Colorado.
117.

Ellora Energy Inc. produced and transported fossil fuels in Colorado, as well as at

other locations across the United States.
118.

Exxon acquired Ellora Energy Inc. in 2010, and, on information and belief, Exxon

also acquired Ellora Energy Inc.’s Colorado assets.
ExxonMobil Pipeline Company
119.

ExxonMobil Pipeline Company is a wholly owned subsidiary of Exxon and a

New York corporation with its principal office located in Irving, Texas. ExxonMobil Pipeline
Company registered with the Office of the Colorado Secretary of State to transact business as a
foreign entity in 1934 and has done business pursuant to C.R.S. § 7-90-301, et seq. and § 7-90803 consistently since that time.
DEFENDANTS’ SHARED CONTACTS WITH COLORADO
120.

Exxon and Suncor’s contacts with Colorado also substantially overlap.

121.

Exxon and Suncor jointly own Syncrude Canada Ltd. – a large, if not the largest,

tar sands developer in Canada – which produces synthetic crude derived from Canadian tar
sands, and which, on information and belief, it promotes, refines and sells in Colorado.
122.

Suncor Energy Sales also has agreements with Exxon, through which it markets

29

 and sells Exxon fuels at wholesale and retail sites across Colorado.
III.

STATEMENT OF FACTS
A. Defendants’ actions have altered the climate in Colorado.
123.

Climate change is occurring and its cause is not in doubt: the emission of GHGs

into the atmosphere, primarily from the increasing combustion of fossil fuels – including, in
significant part, Defendants’ fossil fuels – has increased the concentration of those gases in the
atmosphere, trapping heat in the climate system, and warming the planet. 11
124.

As the U.S. Government reports, “there is no convincing alternative explanation”

for the observed warming trends. As a result of this climate alteration – and as evidence of the
reality of the climate crisis – all five of the warmest years on record have occurred since 2010.
1. The climate has been altered because of Defendants’ fossil fuel activities.
125.

Earth has a natural “greenhouse” effect: solar energy, primarily in the form of

light, passes through the atmosphere; the Earth reradiates some of that energy back into space as
thermal radiation – essentially, heat; and GHGs in the atmosphere, like carbon dioxide, trap
some of that heat inside the Earth’s climate system, thereby warming the atmosphere and oceans.
126.

This greenhouse effect has been altered and intensified by human greenhouse gas

emissions caused and contributed to by the levels of Defendants’ fossil fuel activities.
Abnormally high concentrations of atmospheric GHGs – primarily CO2 but also methane and
other trace gases – which have accumulated at an unprecedented rate, are trapping more heat,
artificially intensifying the greenhouse effect. The human driven alteration of the greenhouse

11

According to the U.S. Environmental Protection Agency, “almost all of the increase is due to
anthropogenic emissions.”

30

 effect has been confirmed from satellite measurements.
127.

GHGs have rapidly accumulated in the atmosphere because of the increasing use

and combustion of fossil fuels, which were provided in significant quantities by Defendants.
Fossil fuels produce GHGs, primarily CO2, when they are combusted. In addition, as fossil fuel
use has grown – encouraged and constantly supplied by Defendants – GHG emissions have risen
at an unparalleled rate. The normal processes by which GHGs are reabsorbed by the Earth’s
plants, land and oceans cannot keep up with the rapid emission rate caused and contributed to by
the levels of Defendants’ fossil fuel activities, and the concentration of GHGs in the atmosphere
has therefore increased, causing alteration of the climate, including in Colorado.
128.

Fossil fuel combustion is responsible for the majority of emissions that have

caused GHG concentrations to reach hazardous and unprecedented levels. For example, CO2
emissions – by far the most prevalent and problematic GHG because of its long-lived warming
impact – have increased roughly 90 percent since 1970, with fossil fuel combustion and
industrial processes contributing to roughly 78 percent of total GHG emission increases from
1970 to 2011.
129.

As a result of the emissions caused and contributed to by the levels of

Defendants’ fossil fuel activities, atmospheric CO2 now stands at 408 parts per million (ppm), a
level which is unprecedented in human history. The last time atmospheric CO2 reached this level
was approximately 3 million years ago, when average temperatures were considerably warmer
(3.6 to 6.3°F, or 2 to 3.5°C) than today’s temperatures, and sea levels were at least 30 feet
higher.
130.

Atmospheric CO2 levels continue to rise. Defendants’ fossil fuel activities caused

31

 and contributed to a rise in energy-related carbon emissions of around 32 billion tons in 2017, as
emissions increased by 1.4 percent. Since 1980, Exxon has had the single largest contribution of
any American industrial producer of products that emit CO2 when combusted to the rise in CO2
levels and the third largest contribution of any producer in the world.
131.

The graph on the left depicts atmospheric CO2 concentrations over the last

800,000 years. The spike on the far right side of the graphs shows the trend in the past few
centuries. The graph on the right has the same scale of CO2 concentration, but focuses only on
atmospheric concentrations from 1750-2015.

132.

The Intergovernmental Panel on Climate Change (IPCC) is widely recognized

(including by Defendants) as a leading scientific authority on climate change. According to the
IPCC, as a result of rising CO2 and other GHGs, “[w]arming of the climate system is
unequivocal.” The IPCC also reports that “[t]he atmosphere and oceans have warmed, the
amounts of snow and ice have diminished, and sea levels have risen.”
133.

According to the best available science, annual average temperatures over the

contiguous United States have increased by 1.8°F (1.0°C) since 1895, with the majority of the
increase occurring since the 1980s. The western parts of the United States have been harder hit;
Colorado has seen average temperatures rise by 2.5°F (1.4°C) over the last 50 years alone.
134.

Not only have the levels of Defendants’ fossil fuel activities caused and
32

 contributed to this temperature increase, but Defendants’ actions have also contributed to the
increasing rate of warming. While global average temperatures rose at an average rate of 0.13°F
(0.07°C) per decade since 1880, they have risen at an average rate of 0.31°F (0.17°C) per decade
since 1970.
135.

Once CO2 enters the atmosphere, a significant portion of it remains there, with a

warming influence that lasts for hundreds (if not thousands) of years. It also cannot be feasibly
removed from the atmosphere with existing technology, “commit[ting] the world to some degree
of irreversible warming and associated climate change resulting from emissions to date.”
136.

According to the most recent report from the U.S. Government, “under all

plausible future climate scenarios” – regardless of the trajectory of future fossil fuel emission
rates in the near-term 12 – annual average temperatures are expected to rise by at least an
additional 2.5°F (1.4°C) by 2050. These projections 13 apply to Colorado, where temperatures
are expected to rise an additional 2.5° to 5°F by 2050.
137.

While the floor for warming has been established, the ceiling – how bad it can get

– will grow depending on future emissions. Under a lower-intermediate emissions scenario, 14

12

For example, even if all emissions suddenly stopped, there would still be another 0.5°F
increase expected over the next few decades due to time lags in the warming effects of the level
of GHGs caused and contributed to by Defendants.
13

“Projections” in this Complaint are based on and supported by data generated by General
Circulation Models, which are approved by the IPCC, and which are the best available scientific
representation of future climate scenarios, including their physical impacts.
14

Emissions scenarios are often categorized into four different types—or Representative
Concentration Pathways (RCP)—by the IPCC: RCP2.6, RCP4.5, RCP6, and RCP8.5. The
scenarios are used to compute and predict different climate futures based on a possible range of
anthropogenic GHG emissions. RCP4.5 represents a lower-intermediate emissions scenario,
while RCP8.5 represents a high emissions scenario.

33

 global temperatures are projected to rise by approximately 5.0°F (2.8°C) over pre-industrial
averages by the end of the century. Under a high-emissions scenario, temperatures are projected
to rise by 8.7°F (4.8°C) by the end of the century. Defendants’ current conduct and planned
increases in production of fossil fuels are consistent with at least the higher emission scenario,
and may well be outside of any projected scenario.
138.

A 5.0°F (2.8°C) warming would have devastating impacts on people, property,

the economy and the environment. An 8.7°F (4.8°C) warming would be catastrophic, leading,
according to the IPCC, to “substantial species extinction, global and regional food insecurity,
consequential constraints on common human activities and limited potential for adaptation in
some cases.”
2. The impacts of a climate altered by Defendants’ conduct are being felt in
Plaintiffs’ communities.
139.

The seriousness of the impacts of climate change is not in question. In a 2013

Executive Order, the President of the United States recognized that “[t]he impacts of climate
change – including an increase in prolonged periods of excessively high temperatures, more
heavy downpours, an increase in wildfires, more severe droughts, permafrost thawing, ocean
acidification, and sea-level rise – are already affecting communities, natural resources,
ecosystems, economies, and public health across the Nation.” As the Governor of Colorado
recently reaffirmed, “climate change presents a broad range of challenges” that “will affect
everyone” in the state.
140.

Colorado is extremely vulnerable to and is experiencing the impacts of climate

change, including increases in extreme hot summer days and increases in minimum nighttime
temperatures, precipitation changes, larger and more frequent wildfires, increased concentrations

34

 of ground-level ozone, higher transmission of viruses and disease from insects, altered
streamflows, bark beetle outbreaks, ecosystem damage, forest die-off, reduced snowpack, and
drought.
141.

The U.S. Environmental Protection Agency (EPA) has noted “[t]hroughout the

western United States heat waves are becoming more common, snow is melting earlier in spring,
and less water flows through the Colorado River.”
142.

The consequences of these changes are enormous. As the EPA found, “[r]ising

temperatures and recent droughts in the region have killed many trees by drying out soils,
increasing the risk of forest fires, or enabling outbreaks of forest insects. In the coming decades,
the changing climate is likely to decrease water availability and agriculture yields in Colorado,
and further increase the risk of wildfires.” These changes have already begun, and they have
injured and will continue to injure people, property and the economy of Colorado, including in
Plaintiffs’ jurisdictions.
143.

Recent research has demonstrated that the observed trends in aridity in Colorado

are attributable to human-driven climate change. Further, most climate model projections
underestimate the magnitude of the observed trends and therefore also underestimate future
drought and decreases in soil moisture.
144.

Colorado’s economy depends on snow, water and cool weather. For example, the

state’s $41 billion agriculture industry is imperiled by rising temperatures and drought, while the
$5 billion ski industry is in jeopardy as a result of “low-snow” winters and shorter seasons.
Plaintiffs are experiencing rising temperatures and extreme heat.
145.

Defendants’ actions have already caused or contributed to rising temperatures in

35

 Colorado. Colorado has seen average temperatures rise by 2.5°F over the last 50 years, with
over a 2°F rise since 1983. Daily minimum temperatures and nighttime lows have also risen,
limiting relief for humans and plant life subjected to heat waves, especially in the summer
months. The rapid warming is clearly attributable to human-driven climate change, as it is
inconsistent with natural variability.
146.

The rise in temperature is occurring across all seasons Specifically, Colorado is

experiencing some of the fastest warming summers in the United States.
147.

Temperatures in Colorado are projected to increase substantially by 2050 under

all emission scenarios. According to research by the University of Colorado and others, under
even an increasingly unlikely lower-intermediate emission scenario, annual temperatures are
projected to rise an additional 2.5 to 5°F (above a 1971-2000 baseline) by mid-century; “the
typical year by 2050” is projected to be “warmer [than] the very warmest years of the past
century.”
148.

Defendants’ levels of fossil fuel activities have contributed to the increasing

likelihood of a high emissions scenario, where annual temperatures in Colorado are projected to
warm another 3.5 to 6.5°F by 2050. A 6°F temperature rise would turn future Denver into the
temperature equivalent of today’s Albuquerque, New Mexico. All Plaintiff communities will
suffer comparable temperature rises.
149.

In addition to increasing average temperatures, there has already been a notable

increase in the frequency of heat waves across the U.S. These are projected to become more
frequent and more severe. Across the southwestern U.S., and Colorado, a five- to ten-fold
increase in heat waves is projected by mid-century.

36

 150.

Under an intermediate emissions scenario, average August maximum

temperatures are expected to increase in San Miguel County. The traditional cooling buffer
months of March and October are projected to see increases in minimum temperatures, meaning
that nighttime lows will offer less relief from heat and less of the cooler temperatures needed to
preserve spring snowpack.
151.

The remote western edge of San Miguel County is predicted to see a significant

increase in extreme heat days. Climate change is projected to increase average temperatures in
southwest Colorado an additional 1.5 to 2.5°F by 2025 and 2.5 to 5.5°F by 2050. The desert
climate of the western portions of the County are projected to migrate up into its valleys.
152.

The average temperature in the Boulder area is anticipated to rise an additional

1.5 to 4° F by 2040, and 4.3 to 9.6° F by 2100 under intermediate-emissions models. The
number of extreme heat days and daily minimum temperatures – which has already increased in
Boulder – is projected to rise dramatically, particularly and dangerously in summer months.
Specifically, while Boulder averaged 5 days per year with temperatures of 95°F or above across
the 20th century, it is expected to see at least 25 days a year above that mark by the mid-21st
century, and 49 days by the end of the 21st century, even under a lower-intermediate emissions
scenario.
153.

Warming temperatures and heat waves caused and contributed to by the levels of

Defendants’ fossil fuel activities are a threat to health, property and infrastructure. Medical
studies have linked heat waves to increases in premature deaths, and adverse economic impacts
have been documented on extreme heat days, with particularly large effects on outdoor labor
productivity in sections such as construction, transportation and agriculture. The levels of

37

 Defendants’ fossil fuel activities has thus already contributed to substantial economic losses in
the Plaintiffs’ communities.
154.

Analysis by the U.S. Department of Agriculture shows clearly that exposure to

temperatures greater than 30°C (86°F) leads to large decreases in yields for major crops
including corn, wheat and soybeans. Hence, the increase in days with extreme heat has already
harmed agricultural productivity and will continue to do so in the future.
Plaintiffs are experiencing shifts in precipitation patterns and water availability.
155.

Rising temperatures caused and contributed to by Defendants’ actions also lead to

changes in precipitation patterns, rainfall intensity and water availability. These changes all have
substantial implications for the people, property and infrastructure within Plaintiffs’ jurisdictions.
156.

Measurements already reveal large, unambiguous decreases in snow extent in the

Northern Hemisphere during spring, with a reduction of about 100,000 km2 in snow-covered
area during April since 1967. Long, reliable records of both temperature and snow cover extent
since the late 1960s show that snow cover clearly depends on Northern Hemisphere mid-latitude
surface temperatures, with a decrease in April snow-covered area of ~4.5% per degree (C) of
warming and roughly double that rate of loss in June. Measurements show large losses in April
snowpack in Plaintiffs’ jurisdictions consistent with these overall Northern Hemisphere trends.
Climate change caused and contributed to by Defendants’ fossil fuel activities is clearly linked to
this decline in snowpack. Models project further declines in snowpack, and recent analysis
indicates that such projections are very likely underestimates.
157.

Colorado has already started to see a greater proportion of its precipitation falling

as rain rather than snow, a trend that will continue as temperatures rise further. This has caused a

38

 decline in snowpack, particularly at lower elevations, and further decline is projected due to
warming.
158.

Any snowpack loss has significant consequences in Colorado, where snowpack is

the largest reservoir of water and the source of 70 percent of the state’s surface water; many
areas depend on mountain glaciers and snowpack for their water supply, including for irrigation
purposes.
159.

Earlier snowpack melt is also a serious concern; as EPA has recognized, “with

increased runoff in the winter and early spring,” there are “increase[d] flood concerns” and
“substantially decreased summer flows.” This risk is compounded by projected precipitation
changes, including the time of year for peak precipitation, and the intensity with which that
precipitation falls. 15
160.

San Miguel County faces increasing intensity of rainfall events. Climate change

is projected to increase the rainfall intensity of 5-year storm events, with the greatest intensity
increases, in terms of inches of rainfall per hour, predicted for 15-minute storm levels. This
means that the County is projected to see increases in the intensity of short-duration rain events.
161.

The Boulder area is expected to see an increase in winter precipitation and a

decrease in spring precipitation. An increase in heavy precipitation events is expected during
both seasons. Climate change is projected to increase the rainfall intensity of 5-year storm
events and 100-year storm events. While storms under one-quarter inch of rainfall per day are
projected to stay the same or decrease in frequency under future scenarios in Boulder, storms of

15

A warmer atmosphere holds more moisture than a cooler one, which can mean heavier
precipitation during rainfall events, causing more intense flooding.

39

 one-quarter to one-half inch and one-half to one inch are projected to increase on average, under
all future emissions scenarios.
162.

The greatest intensity increases in Boulder, in terms of inches of rainfall per hour,

are predicted for 15-minute storms. This means that Boulder is projected to see an increase in
the intensity of short duration rain events.
163.

Increases in high-intensity, short-duration rainfall events in excess of current

infrastructure capacity are likely to have substantial impacts on drainage systems and other
infrastructure, and create an increased risk of flooding, which threatens people, property and
infrastructure in all Plaintiff communities. 16
Plaintiffs are experiencing an increased risk of drought.
164.

Rising temperatures and shifting precipitation patterns caused and contributed to

by the levels of Defendants’ fossil fuel activities exacerbate the risk of drought.
165.

Total summer rainfall is more likely to decrease than increase in Colorado, with

longer rainless periods also expected. The higher temperatures will also lead to more
evaporation, intensifying droughts when they occur. The frequency and severity of droughts are
projected to increase in many parts of Colorado.
166.

Because of climate change, over the next three decades, San Miguel County and

the Boulder area are projected to see a significant increase in the expected number of months of
drought and a shift away from mild droughts towards more moderate, severe and extreme
droughts. Droughts that were once mild will become more severe. Increasing drought months

16

Built in the mouth of canyons, the City of Boulder already rates as the number one flash flood
risk community of Colorado’s Front Range.

40

 and drought severity, in turn, have substantial implications for agriculture, wildfires and water
availability.
167.

Plaintiffs are already experiencing these trends. Recent research has

demonstrated that the observed trends in aridity in Colorado are attributable to human-driven
climate change, and furthermore that most climate model projections underestimate the
magnitude of the observed trends and also likely underestimate future drought and decreases in
soil moisture.
Plaintiffs are experiencing an increased risk of wildfires.
168.

More rain in winter, less snowpack, earlier snowmelt, drier spring soils and

summers and increasing occurrence and intensity of drought are all increasing wildfire risk by
setting the table for longer, more severe wildfire seasons and a general increase in wildfire
vulnerability.
169.

Increasing temperatures and drought caused and contributed to by the levels of

Defendants’ fossil fuel activities have already led to increased wildfires in recent decades. A
recent study estimated that climate change has doubled the area of forest burned in the western
United States since 1984.
170.

There has been a significant rise in the number of large fires in Colorado. While

there were only six fires larger than 1,000 acres in the 1970s, there were 35 in the 2000s and 19
in just the three years between 2010 and 2012 – a five-fold increase over 40 years. This trend is
expected to continue, with projections of a substantial increase in wildfire occurrence, duration
and acres burned, as well as a longer fire season.
171.

Increased wildfire risk and occurrence is perilous in a state where over 2 million

41

 homes exist in the “Wildland-Urban Interface” (WUI) – where homes and other structures exist
in and adjacent to wildfire-prone wildland.
172.

In San Miguel County, where many communities live in the WUI, the number of

wildfire occurrences, as well as the acres of area burned, is expected to increase over the next
three decades, and the wildfire threat will extend to higher elevations where historically there
was a much lower wildfire risk and where mitigation has not been as high a priority.
173.

Almost 20 years ago, over 170,000 acres of San Miguel County qualified as

moderate to high hazard for wildfire. Even under an intermediate-low emissions scenario, San
Miguel County is projected to see more than 300 additional wildfires (over a historic average)
between 2020 and 2049, with the burn area projected to increase by over 40 percent.
174.

In the Boulder area, wildfires over the last three decades have destroyed over 260

structures and burned over 16,000 acres, much of it on public lands that the County and the City
manage.
175.

Indeed, the majority of Boulder County already qualifies as a high-risk fire area,

and is described as an “environment prone to extreme wildfire behavior.” Based on some
metrics, the Boulder area has the highest wildfire risk in the state and has the tenth highest risk in
the entire West.
176.

In recent years, the Boulder area has seen trends towards a decrease in shoulder

seasons that traditionally provided a buffer from the May-September fire season. Now, major
fires are occurring nearly every month of the year.
177.

Boulder’s wildfire risk is also projected to spread to areas that previously

experienced low incidence of wildfire, such as higher elevation areas of the County. Boulder is

42

 already seeing trends towards these higher altitude fires, which present a new threat to water
reservoirs that provide water to the City and runoff that travels into the Boulder watershed.
178.

Fires are already occurring dangerously close to Boulder’s water supplies, and it

is predicted that a wildfire of a large scale could seriously impact higher-elevation water
supplies. For example, the Fourmile Fire of 2010 almost forced the closure of a water treatment
plant for the City of Boulder that provides a substantial portion of the City’s drinking water.
179.

The number of wildfire occurrences in the Boulder area, as well as acres of area

burned, is expected to increase over the next three decades. Under even the increasingly unlikely
intermediate-low emissions scenario, an additional 150 wildfires (over a historic average) on
average are predicted between 2020 and 2049, with the burn area projected to increase by nearly
40 percent on average in the Boulder area.
Plaintiffs are experiencing increased risks to forest health.
180.

Beyond fire, increasing temperatures and drought conditions caused and

contributed to by the levels of Defendants’ fossil fuel activities pose other risks to forest health.
181.

Across the Southwest, trees are dying because of increasing temperatures and

drought as a result of climate change. This trend will continue.
182.

Trees generally die faster when drought is accompanied by higher temperatures,

so short droughts, which occur more frequently than long droughts, trigger mortality if
temperatures are higher. Even without an increase in drought frequency, rising temperatures
alone lead to substantially greater tree mortality. This not only affects forested land, but urban
tree canopies that serve to improve air quality, promote stormwater management, decrease runoff
into watersheds and reduce the effects of rising temperatures.

43

 183.

These conditions also lead to more severe insect outbreaks, such as the bark beetle

epidemics seen across Colorado. As the U.S. Forest Service reports, climate change has already
led to an increase in bark beetle-induced damage. In the last two decades, the mountain pine
beetle affected trees across 4 million acres of forested watersheds in Colorado. These recent
outbreaks “have exceeded the frequencies, impacts, and ranges documented” in the last century,
and the most recent outbreak in Colorado’s Rocky Mountain National Park was the most severe
ever seen.
184.

A growth in native beetle populations, and the resulting devastation, is directly

linked to climate change and an increase in both summer and winter temperatures. Warmer
temperatures result in higher survival rates and faster development; beetles can now thrive where
they were previously constrained by cold temperatures. Under temperature increases of 4 to 5°F,
certain bark beetle species have doubled both their reproductive and tree consumption rates.
185.

With rising temperatures, increased drought predictions and heavily forested

lands, climate conditions in San Miguel County and in Boulder County will increasingly favor
larger mountain pine and spruce beetle populations and outbreaks.
186.

The Boulder Plaintiffs have already experienced mountain pine beetle impacts in

a recent epidemic linked to a warmer and drier climate. Between 1996 and 2010, 122,455 acres
of forest within Boulder County saw some level of damage related to mountain pine beetle.
Plaintiffs are experiencing increased threats to public health.
187.

From an emergency management perspective, climate change – caused and

contributed to by the levels of Defendants’ fossil fuel activities – threatens human life and health
as a result of the projected increase in extreme weather events, floods and wildfires.

44

 188.

The rising temperatures also jeopardize human health in several other ways. For

example, according to a 2015 report commissioned by the State of Colorado, there are “[m]ajor
public health areas of concern related to the effect of current . . . and future clim[a]te
change . . . ,” including heat-related illnesses, negative air quality effects, and changes in the
occurrence and incidence of infectious and vector-borne diseases.
189.

Higher temperatures are problematic in a high-elevation, low-humidity state that

is historically accustomed to cool nights which provide relief during heat waves. Buildings
throughout Colorado – including in San Miguel County and Boulder County – which were built
based on historic climate patterns, often lack air-conditioning. As temperatures rise and extreme
events increase, operating without air conditioning may no longer be feasible, which would make
necessary new cooling systems to protect vulnerable populations, or provide alternative sources
of respite, such as central cooling centers where people could go for relief.
190.

Higher temperatures and the presence of sunlight are also associated with

increased formation of ozone, which at the ground level is a pollutant that can cause respiratory
damage. According to the Colorado Climate Plan, “climate change is likely to result in higher
ozone concentrations.”
191.

Even short-term exposure to ozone is associated with severe health consequences

such as respiratory inflammation, pulmonary function decrements, increased emergency
department visits, and premature mortality. These consequences are all the more severe for
already-vulnerable populations, including children and the elderly.
192.

Ground-level ozone is at its highest levels during summer days that reach the

upper 80s and mid-90s. More warm summer days, plus warming spring and fall seasons, will

45

 extend the ozone season.
193.

Ground-level ozone concentrations are already a serious problem in Boulder

County and the City of Boulder. Climate change is making the problem worse. Boulder County
(including the City) is already within a Clean Air Act ozone nonattainment area. In addition, the
ability to come within the necessary federal ozone attainment goals will become more difficult
under new climate realities.
194.

As stated in a report to the Colorado Energy Office, “[c]limate [also] plays a role

in outbreaks of vector-borne and zoonotic infectious diseases and in the transmission of these
diseases to humans.” For example, warmer weather and drought conditions lead to animal
migrations, an increase in mosquito populations, mosquito-borne illnesses and the need for
increased mosquito control. In addition, multiple cases of the mosquito-borne West Nile Virus
have occurred in Boulder County, and San Miguel County is also vulnerable to the virus.
195.

The threat of an increase in such harmful diseases creates the need for additional

monitoring and surveillance. For example, Boulder County public health staff anticipate, in the
County’s Climate Change Preparedness Plan, increases in plague and tularemia (spread by ticks
and deer flies) if winters become warmer and rainier, as projected.
196.

Prevention, monitoring, and reporting costs associated with the spread of such

illnesses will likely increase due to increased surveillance and treatment of mosquito-infested
and other areas where humans have the likelihood of contact with infected animals.
B. Plaintiffs have acted to prevent climate change, but are still being harmed by,
and must act to mitigate, its impacts on their property and residents.
1. Plaintiffs have made substantial efforts to reduce their own GHG emissions.
197.

Plaintiffs have been national leaders in environmental sustainability and

46

 mitigating GHG emissions. For example, “[r]ecognizing that local governments are the first
responders in the fight against climate change, Boulder County has taken numerous steps to
reduce its own heat-trapping emissions and to assist its residents and businesses to do the same.”
198.

Boulder County, San Miguel County and the City of Boulder are all members of

Colorado Communities for Climate Action, which advocates for state and federal actions to
protect Colorado’s climate for current and future generations. Sustainability is at the very core
of Plaintiffs’ identities, each of which takes seriously its responsibility for stewardship of the
natural environment.
Boulder County has made efforts to reduce GHG emissions.
199.

Boulder County’s guiding values include “sustainability” which includes a

commitment to environmental sustainability. “Environmental protection and sustainability” is
listed as one of the County’s priority areas. General environmental sustainability and
management of public lands and natural resources for the future are listed as guiding principles
of the County’s 2017 State Legislative Agenda; supporting climate change preparedness and
resiliency efforts, wildfire mitigation and protection of public lands served as legislative
priorities.
200.

These are principles and ideals that Boulder County aggressively puts into place

financially and through incentive programs.
201.

In 2017 the County budgeted for funds such as the Clean Energy Options Local

Improvement District Fund and the Qualified Energy Conservation Bonds Fund, which were
earmarked “for the creation of cost-effective programs aimed at reducing energy use and
preventing climate change.” Conservation and sustainability expenditures under the 2017

47

 adopted budget amounted to $38,787,781.
202.

As part of a larger effort toward achieving Kyoto Protocol targets, the Boulder

County Sustainable Energy Plan sets forth recommendations to achieve a reduction of
greenhouse gas emissions 40 percent below the County’s 2005 levels by the year 2020.
203.

In order to meet this goal, Boulder County has carried out numerous programs

and initiatives. EnergySmart assists families and businesses in increasing their energy
efficiency, offering discounted energy efficiency evaluations to homeowners; over 15,000 homes
and over 4,000 businesses have participated. BuildSmart is Boulder County’s residential green
building code, which promotes the building of energy efficient structures and requires zero net
energy for certain new homes. Benefits Boulder County facilitates discounts on rooftop solar
installations and electric vehicles.
204.

The Transportation Department works to help Boulder County residents and

visitors with alternative modes of travel such as biking, walking and transit, and it is a County
objective to “[f]oster a transportation system that reduces demand for and reliance upon
petroleum.”
San Miguel County has made efforts to reduce GHG emissions.
205.

San Miguel County produced its first Sustainability Inventory in 2006, its first

Greenhouse Gas Inventory in 2010, and issues an Annual County Energy Report which tracks
the County’s energy use and CO2 emissions.
206.

In 2007, San Miguel County joined with its towns and other groups to create The

New Community Coalition (TNCC), which developed a 2007 baseline of CO2 emissions for San
Miguel County. Since 2007, San Miguel County has spent approximately $560,000 on this

48

 effort.
207.

In 2012, TNCC changed its name to EcoAction Partners, which continues to be

funded by San Miguel County and its towns. It implements several programs to reduce GHG
emissions, including providing free energy assessments to low- and middle-income households
in order to prioritize and implement cost effective energy efficiency improvements; school
programs that teach saving energy and reducing waste by establishing sustainable life habits; and
the Greenlights LED lightbulb rebate program to encourage energy efficiency and save
businesses and residents money. EcoAction Partners also runs a Green Business Certification
program to help businesses realize the financial benefits of energy efficiency.
208.

In 2009, San Miguel County adopted Colorado’s Climate Action Plan, setting

CO2 emissions reduction targets of 20 percent below 2005 levels by 2020. Also in 2009, San
Miguel County signed onto the Cool Counties Initiative, setting a goal to reduce county GHG
emissions 80 percent below 2009 levels by 2050.
209.

As part of the 2018 Board of County Commissioner goals, San Miguel County

“will work towards becoming a carbon neutral organization.” In 2015, the Board of
Commissioners approved $10,000 to hire an independent contractor to establish test sites in San
Miguel County for a carbon sequestration project.
210.

San Miguel County works with numerous partners to reduce private sector energy

consumption and CO2 emissions as well.
211.

San Miguel County is initiating a Payments for Ecosystem Services pilot program

that provides incentives to landowners in exchange for managing their land to provide an
ecological service, including carbon sequestration to support cleaner air; it participated in the C-

49

 PACE program, which provides low-cost financing for renewable energy and energy-efficient
installations in commercial developments; and it has used County-owned land for a solar power
installation.
212.

San Miguel County was a partner in the 2017 Upper San Miguel Basin Forest

Health Landscape Assessment (which deals with, among other things, the effects of climate
change on forest health and wildfire risks) and is a member of the West Region Wildfire
Council, a consortium of local, county, state and federal agencies that addresses wildfire risks in
six counties in southwestern Colorado.
The City of Boulder has made efforts to reduce GHG emissions.
213.

In addition to collaborating with Boulder County on joint climate initiatives, the

City of Boulder minimizes its own contributions to global climate change.
214.

The City established policies to reduce its GHG emissions to align itself with the

goals of Kyoto as early as 2002. The City was the first community in the United States to tax
itself to preserve open space, and the first to establish a carbon tax. In 2006, Boulder residents
voted to authorize the City Council to level a tax to fund a climate action plan with the goal of
GHG reduction.
215.

In 2016, the Boulder City Council adopted the City’s Climate Commitment,

which includes commitments to transition to 100 percent renewable energy by 2030 and reduce
the City’s GHG emissions to 80 percent below 2005 levels by 2050.
216.

In order to meet its goal, the City is investing in a number of ongoing energy and

climate efforts, including the 2017 Energy Conservation Code that guides the effort to achieve
net zero energy for the City’s residential and commercial buildings, SmartRegs ordinances that

50

 require certain housing in Boulder to meet energy efficiency standards by the year’s end and
solar rebate and grant programs that support businesses and individuals in financing solar
installations.
217.

The City’s transportation department focuses extensive efforts on reducing single-

occupancy vehicle use and building miles of bikeways and pedestrian-friendly routes. These and
other efforts kept over 50,000 metric tons of emissions out of the atmosphere by 2015.
218.

The City is also exploring its own locally owned municipal electric utility in an

effort to achieve its GHG and clean energy goals.
219.

Boulder County and the City of Boulder’s Open Space Department have also

begun to study the ability of carbon sequestration on agricultural lands and in forests to absorb
extra carbon from the atmosphere. In the words of a County Commissioner, “inaction is not an
option.”
220.

Nonetheless, “Boulder County and the City of Boulder have also realized that

despite their best efforts to reduce GHG emissions, climate change impacts are inevitable and
have the potential to exacerbate many of the challenges faced by Boulder County and its
municipalities.”
2. Plaintiffs and their residents have already been injured because of climate
change caused and contributed to by Defendants’ actions. They are
mitigating current climate impacts and will be forced to continue mitigating
and adapting to climate change for the foreseeable future.
221.

Plaintiffs and their communities have already suffered the impacts of Defendants’

actions altering their climate. Recent events have highlighted the costs to Plaintiffs of
responding to extreme events, which will become more frequent with climate change.
222.

For example, in 2010, the Fourmile Canyon Fire swept through parts of Boulder

51

 County near Boulder, destroying 162 homes within the first 12 hours, and 6,181 acres in total.
Fighting the fire required 900 firefighters and first responders. In spite of those efforts, the
losses totaled hundreds of millions of dollars, making it the most expensive fire in Colorado’s
history at the time. In 2013, Boulder received nearly a year’s worth of rain in 8 days, which
caused over $2 billion in property damage across the Front Range, and in Boulder County alone
destroyed or damaged more than 150 miles of roads and 30 bridges at a cost well in excess of
$100 million. Municipal property damage in the City of Boulder amounted to $27 million.
223.

In response, the County administered a flood-damaged property buyout program

amounting to $24.6 million to reduce the risk of future flood danger.
224.

Boulder County’s 2017 State Legislative Agenda summarizes the reality:
Data and forecasting reinforces recent experiences of communities along
Colorado’s Front Range – we will continue to be burdened by the negative
effects of climate change, from drought to wildfires to floods. These
ecosystem disruptions deeply affect residents and communities, and
demand swift action and response on the part of local governments. With
local emergency response agencies in place, county response is typically
well-managed and triaged; however, the growing scale of disasters means
that more programs and staff are necessary to aid in responding.

225.

Similarly, as the Mayor of the City of Boulder has told the U.S. EPA climate

change “will affect Boulder’s ability to deliver services including fire protection and other
emergency services, flood control and public works projects, and health care and social services
for vulnerable populations.”
226.

As the 2012 Boulder County Climate Change Preparedness Plan recognizes, a

“sense of urgency” is needed in the implementation of hazard mitigation projects such as wildfire
fuels treatments, stormwater infrastructure improvements and floodplain property acquisitions
“to offset the potential impacts of climate change.”

52

 227.

All the Plaintiffs are expending considerable taxpayer dollars and undertaking

adaptation measures to plan for, understand and protect their land, infrastructure, and residents
from current and future anticipated climate impacts.
The costs of monitoring and assessment necessitated by Defendants’ climate alteration.
228.

Assessing and understanding the severity of current and projected impacts of

Defendants’ climate alteration within the Plaintiff communities has been a substantial and
expensive undertaking. All Plaintiffs have had to spend staff time to better understand and
respond to the impacts of climate change, and this will only increase along with climate change
impacts. In addition to taxing their internal resources, all Plaintiffs have also expended money
on outside experts to help understand existing and projected vulnerabilities.
229.

In 2012, Boulder County and the City of Boulder jointly spent nearly $75,000 to

hire a consultancy group to conduct a climate change preparedness study.
230.

Boulder County has also already spent thousands of additional dollars on

additional studies and experts including, but not limited to:
•

$14,000 in 2017, to study to analyze the economic impacts of climate change on,
among other things, County infrastructure;

•

a consultant to identify high-risk property acquisitions and develop prospective
approaches to reducing public and private risk to river-related hazards; and

•

a study of floodplain management and transportation system resiliency.

231.

Similarly, the City of Boulder has also already spent thousands of additional

dollars on additional studies and experts including, but not limited to:
•

$45,000 to analyze the impacts of extreme heat;

•

approximately $15,000 to study the impacts of climate change on just two Cityowned facilities;
53

 •

thousands of dollars on several studies to analyze the impact of climate change on
water issues;

•

approximately $15,000 to study forest vulnerability to disturbances and climate
change; and

•

approximately $20,000 to study drought adaptation and sensitivity of plant
species.

232.

San Miguel County, which operates with a much smaller annual budget, has

likewise spent thousands of dollars on additional studies and experts in order to understand its
risks including, but not limited to:
•

approximately $5,000 for a forest health assessment that involved climate change
projections;

•

approximately $32,500 for an analysis of debris flow hazards to the County,
which occur after heavy rainfall due to the County's steep topography; and

•

a watershed study that considered, among other things, the impact of climate
trends on the San Miguel Watershed.

233.

The monitoring and assessment costs incurred by Plaintiffs as a result of climate

change caused and contributed to by Defendants’ fossil fuel activities will continue to be
necessary as the severity and timing of impacts will change as projected future emissions become
actual emissions.
Plaintiffs face damage and added costs to protect residents and drainage systems from flood and
precipitation.
234.

All Plaintiffs are susceptible to flooding, and climate change will exacerbate the

risk of such flooding due to changes in rainfall intensity, storm frequency, the timing of
snowpack melt and other extreme events.
235.

Increased temperatures and more extreme events associated with climate change

54

 also threaten ecosystems and vegetation that reduce runoff rates and flow velocities.
236.

San Miguel County is extremely susceptible to riverine flooding given the steep

mountainous terrain and the multitude of creeks and streams that eventually flow into the San
Miguel River. The Town of Telluride and unincorporated community of Placerville are
especially vulnerable to flooding and debris flows. San Miguel County also experiences flash
flooding due to intense cloudburst storms over small and steep watersheds in the summer
monsoon season and early fall, and spring snow runoff can also cause riverine flooding with the
combination of warmer spring temperatures and spring rain.
237.

In light of the increased precipitation projections and enhanced flood risk

discussed above, Boulder County will need to upgrade its drainage and stormwater infrastructure
or take other precautions to protect its residents from precipitation events.
238.

Both Counties will have to spend additional sums to assess the need and cost of

future flood mitigation. These assessments will reveal additional costs. Boulder County has
already hired a consultant to determine if additional property acquisitions need to be made due to
increased flood risk.
239.

The City of Boulder has made significant investments in flood conveyance

facilities over the last several decades and has identified approximately $170 million in
additional investments – needed to accommodate industry standard one percent probability
storms – based on historic data. Projected changes – in storm frequency and intensity, changes
in the timing of peak snowpack melt and the occurrence of other extreme events – may impact
both the utility of prior investments and feasibility of planned future mitigation. The City will
have to spend additional sums to monitor and assess these impacts.

55

 240.

The 15 major drainageways that run through the City of Boulder rely heavily on

the presence of healthy ecosystems and vegetation to mitigate impacts by encouraging
infiltration that reduces peak runoff rates, reducing flow velocities and providing channel
stability that reduces erosion and sediment transport. Increased temperatures and more extreme
events associated with climate change increase the risk of degrading the health and stability of
these systems, which in turn results in more frequent and severe impacts during major
precipitation events. For example, wildfire has the potential to increase the damage associated
with even small precipitation events, which would have historically had only small runoff.
241.

The City updates the floodplain mapping and mitigation studies on its 15 major

drainageways on a periodic basis to reflect changes due to land development, new study
technologies and the impacts of major floods that have occurred. Changes in the base hydrology
used for flood modeling, due to climate change, result in increased costs to maintain accurate
mapping of hazards and require reevaluation of associated mitigation plans.
242.

Additionally, the City will likely need to take more proactive steps to respond to

the increased flood risk. For example, the City budgeted $500,000 annually for a program to
reduce the dangers of flooding by purchasing and removing structures with the greatest life
safety risk. The program further prevents reconstruction in high-risk areas after a flood event
through the City’s purchase of private properties with flood-damaged structures. To adequately
mitigate the risks associated with increased flooding on account of climate change, the City will
need more money for this program.
Plaintiffs face damage and added costs to protect transportation infrastructure.
243.

Transportation infrastructure is critical, and vulnerable to climate change. All

56

 Plaintiffs maintain hundreds of miles of roads, and in the face of climate change, they will need
to spend tens of millions of dollars more than historically required to maintain and repair roads
as they are degraded by the effects of climate change.
244.

Expected increases in temperature, rainfall intensity and flooding can all damage

roads, increasing maintenance costs.
245.

Increased temperatures, as well as altered precipitation patterns and freeze-thaw

cycles, lead to more potholes and other asphalt degradation such as rutting and shoving –
intensifying the need for road repairs – because road materials are generally designed for historic
climate conditions. According to a climate vulnerability study commissioned by the Colorado
Energy Office, road buckling increases at sustained temperatures over 90°F, which also shortens
pavement life and causes bridge expansion; “[t]hese changes will necessitate increased
maintenance and construction resulting in higher associated costs.”
246.

With conservative estimates projecting an average temperature rise in Boulder of

4°F by 2040, temperatures are projected to more frequently exceed pavement mix design
standards used for asphalt roads. These, as well as cracking and erosion caused by altered
precipitation patterns, are projected to cost the City of Boulder and Boulder County tens of
millions of dollars, and San Miguel County millions of dollars.
247.

Roads may also be damaged by flooding, especially because many roads in

western Boulder County tend to run adjacent to creeks, placing them at risk with any increase in
flooding potential. Flooding and major storm events also place significant stress on bridges,
necessitating more repairs and/or bridge upgrades to prevent bridge failure.
248.

Boulder County and the City of Boulder have already spent over $100 million on

57

 repairs to roads and other infrastructure damaged by the 2013 flood, which is an example of the
costs that it will increasingly bear in the future as climate change impacts increase. Reasonable
adaptive adjustments that the Plaintiffs could currently undertake, in order to reduce future
maintenance and repair costs to roads and bridges due to the impacts of climate change, are
projected to cost in the millions of dollars. If Plaintiffs do not pay more for maintenance on an
ongoing basis, they face even more substantial expenditures for repairs in the future. Whether
they spend money on adaptation efforts now to upgrade and improve roads and bridges, or wait
to bear the increased maintenance costs later, all Plaintiffs are projected to spend millions on
their roads and/or bridges due to climate change.
The City of Boulder faces damage and added costs to protect its water supply.
249.

The City of Boulder supplies water to thousands of people, mostly in the City’s

limits, and it owns substantial and valuable water rights. It has faced and will continue to face
substantial additional costs to provide and to continue to provide water – an essential need – to
its residents and other users on account of climate change caused and contributed to by
Defendants’ fossil fuel activities.
250.

Climate change impacts, including rising temperatures, earlier snowmelt runoff,

precipitation changes, droughts, and wildfires have affected and are projected to continue to
affect water supply and quality, as well as the infrastructure that the City uses to supply water.
The City has spent and will be forced to spend substantial additional dollars to account for these
impacts in added maintenance, monitoring and proactive adaptation costs. The costs to the City
for not being able to provide water for a single day are estimated to be as high as $6.2 million.
251.

The City has spent, is spending and will continue to spend substantial staff

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 resources and dollars to study the impacts of climate change on the adequacy and quality of its
water supply. In 2008, the City commissioned a report, costing thousands of dollars, on how
climate change will affect its water supply. In 2017, the City commissioned a new report, again
looking at how climate change would affect its water supply and quality, costing $210,000.
Since 2016, the City has spent tens of thousands of dollars to study how wildfires would affect
the local watersheds.
252.

While the City has been historically able to supply water to users, climate change

will likely impact its ability to do so in the future. 17 The City will have to continue expending
money and staff resources to monitor and analyze whether the City will have to expand its water
supply and/or storage capacity.
253.

The City also faces increased challenges and will face additional costs associated

with treating the water it supplies. 18 Warmer water is more expensive to treat and the City will
be forced to bear those costs in the future. The debris and ash created from wildfires also poses a

17

While projections concerning overall precipitation diverge relative to the location of the City
of Boulder’s water supply watersheds, there is a strong possibility that precipitation may decline.
Even if overall precipitation remains constant, water supply may still be threatened. As peak
snowpack melt occurs earlier in the year and summers become hotter and drier, water demand
may increase, and stored water may be insufficient and the specific months when Boulder’s most
senior water rights are legally available may result in reduced water yield due to the change in
runoff timing. Similarly, the water the City receives from the West Slope may become scarcer as
a result of changes in flows, precipitation and demand in the regions supplied by the Colorado
River. The City’s water supply, watersheds and infrastructure will also be subject to an
increased threat of damage from events such as wildfire and floods that are projected to increase
with climate change.
18

The City currently has the ability to manage seasonal variation in source water quality and
choose between different sources in order to optimize treatment and reduce associated costs; in
the future, climate change may reduce such flexibility.

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 substantial risk to the quality of the City’s water. 19
254.

The City has already taken substantial steps to proactively protect its ability to

treat water, in light of climate change risks. Specifically, the City spent $40 million to cover a
canal that transports West Slope water, in order to preserve water quality. That decision was
driven, in part, by the need to ensure that water supply infrastructure would be more resistant to
the impacts of climate change. Similarly, the City has expanded the emergency electrical
generators at its critical water treatment facilities, in part, because of increasing extreme events –
like floods, fires and storms – associated with climate change.
255.

The City will also likely face increased funding challenges due to the rising costs

of water treatment and maintaining its water supply infrastructure on account of climate change.
The City’s water users pay for water based on their use, and those funds go towards maintaining
the water supply infrastructure. If, as appears likely, the City must limit water supply – for
example, on account of projected drought brought on by climate change – it may have less
revenue to offset the costs associated with the operation and maintenance of its critical
infrastructure.
Plaintiffs face damage and added costs to protect residents and property from wildfires.
256.

All Plaintiffs expect increased costs from increased wildfire risk due to climate

change caused and contributed to by the levels of Defendants’ fossil fuel activities. Plaintiffs’
response, prevention, mitigation and/or recovery costs are increasing and will continue to

19

Even minor precipitation events can flood the City’s reservoirs, creeks, streams and canals
with that ash and debris, leading to additional and sometimes insurmountable treatment costs,
which the City will be forced to bear in the future.

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 increase.
257.

The higher temperatures and extended periods of droughts that San Miguel

County will face as a result of climate change will substantially increase its risk of wildfire and
its consequential damages. The number of wildfires and the size of the area burned are expected
to increase over the next three decades, and the wildfire threat will extend to higher elevations,
where historically there was a much lower wildfire risk, which could potentially include areas
where mitigation has not been as high a priority.
258.

Since San Miguel County is the first responder for wildfires that start on private

or state land, and its anticipated response costs for such fires can reach hundreds of thousands of
dollars per day, the County faces enormous financial liabilities from increased wildfire risk.
259.

San Miguel County is already seeing a trend of larger, more frequent fires. In

2002, the Burn Canyon fire, started by lightning, consumed a devastating 31,300 acres of forest,
costing $35.3 million to fight. In 2014, the Board of County Commissioners recognized that a
“warming climate has accentuated” wildfire occurrence from natural patterns.
260.

San Miguel County also faces the likelihood of increased premiums for wildfire

insurance it carries for County property as a result of this increased risk.
261.

Boulder County has responsibility for wildfire mitigation planning in a County -

where in just one of its two wildfire management zones, over 8,700 households exist in wildfireprone areas – in homes valued at over $3 billion. Much of the City’s invaluable water supply
also comes from high-elevation, forested watersheds and reservoirs.
262.

The City of Boulder’s Fire-Rescue Department is tasked with protecting life and

property through fire prevention, education and risk reduction activities, fire suppression,

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 emergency medical and rescue services, and coordination with neighboring fire districts. The
Department is responsible for “[p]rotecting more than $21 billion dollars’ worth of property
within Boulder.” As of 2007, the value of fire-prone structures and estimated contents in the
City of Boulder’s wildland-urban interface alone was $2.5 billion.
263.

Both Boulder County and the City of Boulder have already suffered substantial

and additional costs related to the increasing wildfire risk, including general suppression costs,
prevention costs, and rehabilitation costs (of roads, forests, watersheds). These costs are
significant, and Plaintiffs face the risk of continuing and increasing costs in the future as
wildfires are likely to increase.
264.

With current trends and predicted increases in drought and heat combined with

earlier snowmelt, the frequency of wildfires is increasing and will continue to do so, further
endangering a high-risk area filled with homes, water reservoirs, ecological hotspots, and
wildlife.
265.

Plaintiffs have already had to, or will need to, increase their fire mitigation and

firefighting response costs due to the increased risk of wildfire caused by climate change. The
Boulder County Sheriff’s Office has likewise increased staff in recent years in part to respond to
these needs.
266.

Boulder County is also facing costs to adapt to and reduce wildfire risk, such as

through its Wildfire Partners Program, which was created in 2014 in acknowledgment of an
increased risk of fire from climate change. This Program assists County homeowners to protect
their homes against wildfire.

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 Plaintiffs face damage and added costs to protect and preserve their forests.
267.

Related to but distinct from their responsibility for wildfire, Boulder County and

the City of Boulder both own and have responsibility for thousands of acres of forest. As
discussed above, their forests have been damaged and will continue to be threatened in numerous
ways by climate change trends, which have been caused and contributed to by the levels of
Defendants’ fossil fuel activities. Boulder County and City have expended and will continue to
expend substantial additional resources, including staff time, to preserve forest health and
manage the impacts of dead trees and insect outbreaks.
268.

For example, between 1996 and 2010, 122,455 acres of forest in Boulder County

saw some level of damage related to mountain pine beetle, which forced the County to hire extra
staff to manage their forests.
269.

Because removal of beetle-killed trees reduces risk of wildfire in areas, Boulder

County set up, and will continue to run at increasing cost, “sort yards” to provide a location to
dispose of wood in order to facilitate the removal of dead trees to protect homes and public
infrastructure. Two main reasons that residents bring wood to the yards have been to mitigate
wildfire risk and to remove trees killed by mountain pine beetle.
270.

Boulder County will see even more severe beetle outbreaks decimating its forests

and in turn creating the potential for increased watershed debris due to climate change,
necessitating additional forest maintenance and management demands – specifically, removal of
beetle-killed trees (which threaten public safety by increasing wildfire risk, damaging utility
lines, private property and public infrastructure) and a potential increase in insecticide spraying.
In the face of a significant beetle outbreak, the County and the City will have to expend

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 significant costs to hire contractors to remove beetle-killed trees.
271.

San Miguel County has partnered to fund a community-driven mapping effort to

understand forest change in response to climate warming and drought trends, and to model
potential climate change impacts on forest conditions given the potential for climate change to
alter the landscape through beetle kill, disease and wildfire. The information will be used to
inform forest health and fire mitigation decisions. According to the Project, “Douglas-fir in the
upper San Miguel basin are experiencing mortality from an outbreak of the Douglas-fir beetle
and defoliation from spruce budworm, both climate change-related disturbances.”
272.

In addition to traditional forest space, the City of Boulder’s Urban Forestry

Division of the Parks and Recreation Department also directly manages approximately 51,000
public trees – out of an estimated total of 650,000 trees that form the City’s “urban tree canopy”
– in City parks and street rights-of-way.
273.

Climate change has increased both the need for and the costs of maintaining this

tree canopy. The tree canopy helps to cope with increasing temperatures due to climate change;
trees help to combat the “urban heat island” effect and serve to slow and manage stormwater
runoff.
274.

In the face of tree die-off from insect infestation, the City has an overarching goal

to maintain the tree canopy in the developed portions of the City that are shaded by trees to
moderate extreme temperatures, among other benefits. Nevertheless, extreme weather and other
events exacerbated by climate change, including significant temperature swings, insect
outbreaks, floods, drought and late snowstorms, also harm the tree canopy and increase the costs
of maintaining it.

64

 275.

The costs of maintaining the urban forest are enormous. For example, during

springtime snowstorms in 2016, City urban forestry staff had to hire contractors at a cost of over
$500,000 for pruning, hauling and chipping. Extreme temperature fluctuations in November
2014 caused the mortality of over 500 elm trees that the City had to remove at the cost of
$150,000.
Plaintiffs face damage and added costs to maintain their open space.
276.

All Plaintiffs maintain parks and open space areas which will be damaged by the

effects of climate change caused and contributed to by the levels of Defendants’ fossil fuel
activities.
277.

Boulder County Parks and Open Space (“Boulder County Open Space”) manages

over 100 miles of trails and 30,000 acres of forests – forests that act as carbon sinks and provide
a habitat for over ninety species of birds and large mammals, including bears and mountain lions.
It also owns water rights valued at approximately $200 million, and an interest in more than
100,000 acres of land, the geological diversity of which spans alpine tundra, sweeping plains and
grasslands, and wooded mountains. Boulder County Open Space is also responsible for weed
control on over 30,000 acres of land.
278.

San Miguel County Parks and Open Space (“San Miguel Open Space”) manages

hundreds of acres of land, miles of trails and fairgrounds that are used for rodeos. The Open
Space Program also encompasses the Land Heritage Program, which uses County funds to place
conservation easements on important lands for preservation purposes.
279.

The City of Boulder’s Open Space and Mountain Parks Department (“City Open

Space”) manages over 45,000 acres of protected and preserved land, which includes wildlife

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 habitats, floodplains, farm and ranchland, unique geologic features, cultural sites, greenways and
over 150 miles of trails. The City also owns water rights in the four major creek drainages in the
Boulder Valley, including many senior water rights that provide reliable sources of irrigation in
most years. Its open space water portfolio is valued at $60-70 million.
280.

These public lands and water resources exist for the use and enjoyment of

residents and visitors, and serve as vital spots for ecosystem protection, agricultural production,
tourism, citizen health and wellness and revenue. Boulder County Open Space has set policy
and strategic goals of minimizing “impacts to open space resources . . . from oil and gas . . . and
other third-party impacts,” and adapting to human-caused climate change. The San Miguel Open
Space Commission’s mission is “to seek to protect and conserve open space for people, natural
habitat for flora and fauna, and agricultural lands for the farming and ranching communities
throughout San Miguel County for this and future generations.”
281.

With temperature rise, increases in precipitation intensity and increased duration

and intensity of wildfires due to climate change caused or contributed to by Defendants’ fossil
fuel activities, all Plaintiffs are already taking or will need to take substantial and expensive
protective and restorative measures on their public lands, including increased staff time to
mitigate, repair, remove hazards and restore open space lands.
282.

Addressing climate change hazards to Open Space in Boulder means that Open

Space has to adjust the way it designs trails, treats its forests, protects its diverse plant and
animal species, manages invasive plans and supports its agricultural tenants. Past events
illustrate how significant these costs can be. All of the City Open Space trails were damaged in
the 2013 flood, with 64 percent of the trails experiencing significant to severe damage. Facilities

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 suffered from damage to fences, ditches, bridges, and water irrigation delivery systems. The
estimated cost for all City Open Space infrastructure repair due to the flood was over $7 million.
In addition, 25 percent of Boulder County Open Space trails experienced damage, amounting to
a repair cost of over $2 million.
283.

The City of Boulder is already spending large amounts of staff time and money on

consultants to understand the impacts of climate change to ecosystems and currently has a
climate change vulnerability study for plants underway.
284.

San Miguel Open Space is also initiating a Payments for Ecosystem Services

program, which is a pilot to help farmers and ranchers improve soil ability to retain water and
ease drought effects, and in 2017 committed $20,000 to study the ability of carbon sequestration
on agricultural lands.
Boulder County and City face damage and costs to maintain their agricultural property.
285.

Both Boulder County and the City of Boulder have significant agricultural

property that is vulnerable to climate change.
286.

Boulder County Open Space owns 25,000 acres of agricultural land, which it

manages through its Agricultural Resources Division. That land is divided into 120 leases and
67 agriculture tenants, who grow sugar beets, beans, alfalfa, grains and more, generating roughly
$125,000 in profits for the County every year.
287.

City Open Space owns nearly 15,000 acres of lands that it currently leases to 26

local farmers and ranchers. The land is primarily used for hay and forage production and
livestock grazing. Annual crops grown on 300 to 600 acres of the land currently include wheat,
corn and barley.

67

 288.

Climate change caused and contributed to by Defendants’ fossil fuel activities

will increase heat waves, droughts, wildfires and shifts in spring runoff, all of which negatively
affect agricultural lands, including by reducing water availability. Climate change is expected to
decrease the nutritional quality of grain crops, increase growth of some weeds, decrease the
efficacy of herbicides, decrease the availability of irrigation water, decrease crop yields and
bring higher winter minimum temperatures that could increase pest survival and the number of
generations of insects that traditionally reproduce once per growing season.
289.

Not only is climate change jeopardizing the existing water supply, but it is also

likely to increase future agricultural water demand. Specifically, projected temperature
increases, along with other changes in the climate, could increase water consumption by 2 to 26
percent, as soils and plants transpire more of their water. Other climate-related changes to
agriculture include that earlier growing seasons could leave crops more susceptible to late frosts,
weeds may become more common due to rising CO2 levels and temperatures and crop yields
may otherwise decrease due to heat stress and increased drought severity.
290.

As early as 2012, in part due to climate change predictions, consultants

recommended that Boulder County “continue to emphasize investments in water-efficiency
improvements on irrigated agricultural land owned by the county.” These improvements are and
will continue to be expensive; in 2016, for example, it cost the County nearly $75,000 to build
four center-pivot sprinkler systems, which are expected to cut water usage in half.
291.

The City of Boulder has expended resources to develop its Agricultural Resources

Management Plan, which recognizes the numerous risks posed by climate change and the need to
“[i]dentify agricultural management practices that help prepare for a more arid future” and to

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 “[r]esearch the potential for agricultural practices to mitigate climate change.” This research will
likely include costly crop substitution studies and other assessments.
292.

Boulder County Open Space has already expended resources in the planting of

more water-efficient crops. City Open Space is also planning to increase the efficiency of water
distribution, explore storm water retention strategies and increase use of more water-efficient
crops.
Plaintiffs face damage and increased costs to provide emergency management services.
293.

The Plaintiff communities face increasing costs to provide emergency

management services as a result of climate change, and the impacts discussed above, including
increased wildfires, heavy rainfall, and other extreme weather events, caused and contributed to
by the levels of Defendants’ fossil fuel activities.
294.

The Boulder Office of Emergency Management (OEM) is a joint office that

provides emergency management for both the County and the City and exists to create and
coordinate a comprehensive emergency management program that enables “effective preparation
for, efficient response to, and effective recovery from . . . disasters, in order to save lives . . .
protect resources and develop a more resilient community.” OEM has recognized climate
change as a significant threat.
295.

With increasing trends of extreme events such as wildfires, drought and intense

rainfall, more volatility from a warming climate, and the impending threat of an even greater
frequency of extreme events in the future, OEM has had to hire more paid staff, needs to hire still
more staff to handle future events and engages in supplemental community preparation efforts.
296.

Additionally, climate change contributes to OEM’s need to make significant

69

 upgrades to its existing emergency management space, or build a new, fully built-out emergency
operations center. The upgrades or new center will cost in the millions to tens of millions of
dollars.
297.

The City of Boulder is currently spending money to create sites and resilience

centers in various parts of the city for sheltering purposes during severe storms due to an
anticipated increase in extreme weather events.
298.

San Miguel County Emergency Management’s mission is to “support [the]

community’s disaster preparedness, response, recovery and mitigation needs.” During the
planning process for the newest version of its Multi-Hazard Mitigation Plan, encouragement of
public involvement included educating the community on “potential mitigation and climate
adaptation strategies.” Among the other natural risks San Miguel County deals with, power
outages from severe weather is an ongoing concern.
299.

San Miguel County Emergency Management does not have the resources to

respond to increasingly severe weather events brought on by climate change and is already
expending funds to increase its capacity. In recent years, San Miguel County has added a new
full-time staff member, expanded its Emergency Management Operations Center, and expanded
its outreach and training programs.
Plaintiffs face increased costs to abate public health hazards in their communities.
300.

All Plaintiffs have faced and will continue to face increased costs to abate climate

change-related public health hazards in their communities – such as increases in rainfall
intensity, heat, wildfires, smoke, ground-level ozone, exposure to toxic materials, increase in
vector-borne disease and housing displacement – that are caused and contributed to by the levels

70

 of Defendants’ fossil fuel activities.
301.

Preparedness for outbreaks of disease and heat or other extreme events is crucial,

and the public costs of mitigating and responding to these health hazards are extremely high.
302.

Due to the expected continued heat rise in Boulder County, a place that

historically rarely saw days above 95 degrees, Boulder County and the City of Boulder are
expected to see increased public health heat risks, such as heat stroke, and their associated costs.
303.

Heat increase will affect everyone, but particularly vulnerable populations such as

children, the elderly and those with existing medical conditions. The number of heat-related
mortalities in the Boulder area is expected to increase above the historic average.
304.

Plaintiffs Boulder County and the City of Boulder will have increased costs

connected with abating this public health hazard. For example, both may need to take steps to
ensure that proper cooling systems are in place, especially in areas with vulnerable populations,
given that Colorado has a high number of non-air-conditioned buildings due to its moderate
temperature history. 20
305.

Cooling centers that are available during heat waves, and/or assisting with home

air-conditioning installation, could cost Boulder County and the City of Boulder millions of
dollars by mid-century.
306.

Ground-level ozone – already a problem for the Boulder area – is also expected to

20

Cooling costs for buildings can be incredibly high, reaching into the millions of dollars. For
example, $37.7 million from a $575.5 million school construction bond for the Boulder Valley
School District is being used to provide air-conditioning and better ventilation. This was done
because of rising August temperatures and related health concerns for students. The schools had
been built for open air cooling, in light of the area’s historic climate.

71

 increase with rising temperatures. The risk of increased ground-level ozone from warm
temperatures may push San Miguel County, which is on the cusp of Clean Air Act nonattainment, into non-compliance.
307.

Exposure to ozone is associated with respiratory disease, cardiovascular disease,

and even premature mortality; an increase likely will alter public health employee workloads and
the number of emissions reduction programs the Boulder area requires in order to meet federal
requirements for ozone attainment.
308.

All Plaintiffs will also face increasing costs to monitor and reduce ozone.

According to the Climate Change Preparedness Plan, Boulder County “will likely need to expend
more time and money in the future to avoid the monetary and health-related costs of being outof-compliance with ozone attainment.”
309.

Boulder County has already spent resources studying ground-level ozone,

including how it is affected by climate change. Moreover, all Plaintiffs have enacted a number
of expensive GHG reduction programs, in part, because of the need for cleaner air in a
changed/changing climate.
310.

Boulder County is also responsible for providing vaccination services and general

disease control to residents, including mosquito control; the County needs to prepare for
increasing costs to provide these services in light of climate change. The City of Boulder uses
ecosystem services to regulate mosquitos – ecosystems that will be damaged by human-caused
climate change.
311.

Because disease outbreaks are linked to increased temperature, Colorado may see

a spread in infectious diseases in the future. For example, a trend towards warmer weather could

72

 lead to an increase in mosquito and other species and, thus, mosquito-borne illnesses or other
arthropod-borne (e.g., ticks-borne) illnesses, which would in turn lead to the need for increased
or adjusted vector control. With warmer weather, mosquito and tick populations have increased
in San Miguel County.
312.

Due to changing climate patterns such as warmer seasons, and increased drought,

there is also the potential for animals to hibernate less, resulting in more human-animal
interactions, which can increase incidence or risk of diseases, such as rabies.
313.

The costs of responding to and monitoring these health risks are substantial.

314.

The spread of West Nile virus is instructive. West Nile virus first appeared in

Colorado in 2002. By 2003, Colorado had the highest number of West Nile virus deaths and
cases in the country. Prior to 2002, the City of Boulder did not have a mosquito control
program. Now, the City’s mosquito management costs are increasing annually, amounting to a
budget of roughly $250,000 for 2018. In 2017, the budget for mosquito control in Boulder
County was similarly high: $397,151.
315.

Both Boulder County and the City of Boulder have experienced increased

monitoring and costs to educate the public about these public health hazards, as they inspect
areas where animals live and collect species (including mosquitos) to test for disease rates. 21
County public health officials in San Miguel County have similarly spent time and resources to
educate the public about West Nile virus, and work with local agencies to track and test

21

Although predictions for vector-borne illness spread are difficult because they are also highly
dependent on shifts in human behavior and human levels of immunity, the consequences of
increases in such illnesses are dire enough that increases in monitoring and surveilling of the
situation may be warranted.

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 mosquito populations. Last year, San Miguel County engaged in Zika outreach and education.
316.

The City of Boulder recently hired a consultant to study, among other things,

alterations to ecosystems and species migration patterns due to a shifting climate, which will
help the City understand public health risks. Warmer weather and shorter hibernation seasons
could result in more human-animal exposure, including to species that typically carry rabies,
such as skunks.
317.

The City is also currently reviewing an adaptive management approach to its

mosquito control program to address challenges from climate change, and has acknowledged that
“[a] process needs to be developed in the event that a new mosquito-borne disease occurs in
Boulder that could impact the community, particularly with the potential of new disease
emergence with changing climate.”
*
318.

*

*

The programs and adaptation measures that Plaintiffs have undertaken – such as

new irrigation systems and stormwater infrastructure, increased wildfire defensive spaces, and
more emergency management staff – are only the beginning of an adequate response to dealing
with increased risks from climate change.
319.

These costs are occurring now and being borne by taxpayers in order to protect

the safety, health and lives of residents and the property and infrastructure of Plaintiffs. The
costs will continue to grow for decades to come to adapt to new conditions.
320.

As detailed below, each of these costs and risks is a result of the Defendants’

actions in causing and contributing to the alteration of the climate.

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 C. Defendants’ fossil fuel activities have caused and will continue to cause
Plaintiffs’ damages and losses.
321.

The Suncor Defendants and Exxon are responsible for causing, contributing to

and increasing the impacts of climate change, which are injuring Plaintiffs.
322.

Defendants produced, promoted, refined, marketed and/or sold an enormous

amount of fossil fuels – and plan to continue doing so. Defendants’ fossil fuels were used, are
used and will continue to be used by their consumers in the intended, foreseeable and natural
way: combustion.
323.

Since the 1960s, moreover, Defendants engaged in these fossil fuel activities at

increasing levels knowing that increasing levels of these activities would cause and were causing
significant alteration of the climate – leading to damages and losses of the types incurred by
Plaintiffs – and that such alteration was substantially certain to occur if unchecked fossil fuel use
continued. They concealed this knowledge from their consumers and the public, including
residents of Plaintiffs’ communities.
324.

In addition, through the 1990s and 2000s – critical decades when fossil fuel use

needed to be brought under control and alternatives needed to come into the market – Defendants
affirmatively misrepresented what they knew about the causes and consequences of climate
change.
325.

Today, Defendants continue to conduct their fossil fuel activities at levels that

contribute to alteration of the climate, including in Colorado, and do not plan to stop or
substantially reduce those activities. Their plans include selling more fossil fuels, including fuels
that have an even more significant impact on climate. This is so even though Defendants, at
least publicly, profess to acknowledge the dangers of climate change.
75

 326.

Defendants’ fossil fuel activities caused and contributed to climate change, and

continue to be a cause. Defendants also accelerated, aggravated and continue to accelerate and
aggravate the impacts of climate change.
1. Defendants knew their fossil fuel activities would result in dangerous
changes in the climate.
327.

Decades ago, the Suncor Defendants and Exxon knew that climate change was

occurring; that it was being caused by and that it was accelerating primarily because of the level
of combustion of fossil fuels that was occurring; that climate alteration may be irreversible; and
that it posed a serious danger to people and property, including in Colorado.
328.

Beginning in the 1960s, Defendants spent years studying climate change. From

the research conducted by Defendants, either themselves or through API, Defendants could not
reasonably conclude that fossil fuel use at the levels it was occurring would have no impact on
the climate, that impacts were unlikely or that those impacts would be insubstantial.
329.

Instead, Defendants’ research demonstrated that their continued actions would

cause a significant alteration of the climate. Beginning in the 1960s, and throughout the 1970s
and 1980s, industry-funded scientists advised Defendants that, while modeling may be imperfect,
there was a growing consensus that fossil fuel use would result in likely catastrophic changes to
the climate.
330.

During this time period, the Suncor Defendants and Exxon also knew what had to

be done to prevent and/or lessen the impacts of anthropogenic climate change: GHG emissions
had to be reduced, the growth of fossil fuel use needed to be curtailed and energy needed to be
supplied by fossil fuel alternatives. Defendants were warned that these actions needed to be
taken imminently and that the transition would be too late if they delayed until the warming
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 effects were significant.
331.

In later years, Defendants would emphasize what they claimed was the

“uncertainty” of climate change, and its impacts. This was disingenuous.
332.

During the 1970s and 1980s, Defendants were told that one (if not the primary)

cause for any “uncertainty” was the extent of future fossil fuel use and growth. In other words, if
fossil fuel use were greatly curtailed, then the predicted climate impacts might not happen. But
such impacts were substantially certain if fossil fuel use continued to grow – exactly the path that
Defendants took. Therefore, Defendants’ own plans and conduct were to blame for the problem
of “uncertainty” that they would complain about.
333.

Defendants also knew that “uncertainty” did not mean human-caused climate

change would necessarily be less serious than projected; instead, just the opposite might be true.
As an Exxon scientist warned the company in 1978, “there is no guarantee that better knowledge
will lessen rather than augment the severity of the predictions.”
Defendants knew their fossil fuel activities were causing CO2 in the atmosphere to rise.
334.

In 1958, the American Petroleum Institute began research on “gaseous

compounds in the atmosphere to determine the amount of carbon of fossil fuel origin.”
335.

On information and belief – at that time and all other relevant times – Defendants

or their predecessors were members of API and commissioned, funded, participated in or, at a
minimum, were aware of this and subsequent API research.
336.

On information and belief, this research was provided to Defendants and remains

in API’s files.
337.

Defendants’ and API’s research continued through the 1960s culminating in a

77

 1968 report, commissioned from the Stanford Research Institute (SRI), titled “Sources,
Abundance, and Fate of Gaseous Atmospheric Pollutants.” One of the report’s conclusions was
that atmospheric CO2 was rising, and that fossil fuel combustion was by far the most likely
“source [ ] for the additional CO2 now being observed in the atmosphere.” The authors explained
that the increase in the concentration of CO2 in the atmosphere was because “[t]he natural
scavenging processes for removing CO2 from the atmosphere are not sufficient to maintain a
stable equilibrium in the atmosphere in the presence of this increase in emissions.”
338.

This point was underscored in a 1969 supplement that confirmed for API that

“none of [the carbon sinks, e.g., the oceans and biosphere] [are] capable of counter-balancing”
the “extremely large” CO2 emissions resulting from fossil fuel combustion.
339.

From the early stages, this information – that atmospheric CO2 was rising fast, and

that fossil fuels (including Defendants’ fossil fuel activities) were to blame – was shared with
and known by top company managers.
340.

For example, Wilburn T. Askew – who became the president of Sun Company of

Canada, Suncor’s direct predecessor, in 1956 – served on API’s technical committees.
Mr. Askew and other members of Suncor received and/or had access to API’s climate change
research, including the 1968 and 1969 SRI reports, which were circulated by API in 1972, as part
of “Environmental Research: A Status Report”.
341.

As another example, an internal Exxon memo from 1977 – reporting that “current

scientific opinion overwhelmingly favors attributing atmospheric carbon dioxide increase to
fossil fuel combustion” – was circulated to the “Corporate Management Committee,” which
included Exxon’s highest-level managers.

78

 342.

As the years went on, Defendants’ managers were continually reminded that the

levels of their fossil fuel activities were causing a rise in atmospheric CO2. A 1980 API report
confirmed that there was “strong empirical evidence that . . . fossil fuel burning” was causing the
rise in atmospheric CO2 and that more than half of emitted CO2 was remaining in the atmosphere.
On information and belief, this report was shared with API member companies, including
Defendants.
343.

The implications of the rise in atmospheric CO2 were obvious and Defendants

were told what was needed next: a reduction of CO2 emissions. The 1968 API Report
summarized this recommendation: “Past and present studies of CO2 are detailed and seem to
explain adequately the present state of CO2 in the atmosphere. What is lacking, however, is an
application of these atmospheric CO2 data to air pollution technology and work toward systems
in which CO2 emissions would be brought under control.”
Defendants knew that climate alteration caused by their fossil fuel activities would likely cause
adverse and hazardous impacts.
344.

Defendants’ interest in the rise in atmospheric CO2 was not academic. Defendants

understood that rising CO2 would trap heat and energy in the atmosphere, increasing
temperature, 22 and bringing about changes in the climate – i.e., drought, heatwaves, flooding,
and sea level rise, etc. – that would have a profound effect on human lives, property and
livelihoods, including in Colorado.
345.

In the same 1968 API report, Defendants were told that “there seems to be no

22

For example, SRI’s 1968 paper for API reported that the “concern[ ] with the possible changes
in atmospheric CO2 content [is] because CO2 plays a significant role in establishing the thermal
balance of the earth.”

79

 doubt that the potential damage to our environment could be severe” and that the lack of
attention on CO2 emissions was “ironic” because they “may be the cause of serious world-wide
environmental changes.” Based on “[t]he latest available data”, Defendants were warned that
temperatures might increase by at least 1.1°F if the concentration of atmospheric CO2 increased
25 percent, and that temperature increases would “be three times this figure” if CO2 levels
doubled. The 1968 report concluded that – even if these projections were somewhat imprecise –
“[s]ignificant temperature changes are almost certain to occur by the year 2000 and these could
bring about climatic changes.”
346.

Defendants spent the next two decades enhancing their understanding of the likely

effects of their continued fossil fuel activities. Defendants were consistently told that unchecked
fossil fuel use would result in significant alteration of the climate.
347.

Throughout this time period Defendants recognized that – as one 1980 document

notes – even if there is some uncertainty, “[t]he physical facts agree on the probability of large
effects 50 years away . . . .” Thirty-eight years after that statement, Plaintiffs, and others, are
experiencing those effects.
348.

In 1979, API formed a task force to analyze climate impacts.

349.

As was the case during API’s research efforts during the 1960s and 1970s, both

Suncor and Exxon (or their predecessor companies) were members of the task force, and
participated in the creation of or had access to the information produced by or available to the
task force.
350.

The task force circulated a commissioned report in 1980, on “The CO2 Problem,”

which added alarming projections to those contained in the 1968 report. The 1980 report

80

 predicted a 4.5°F (2.5°C) temperature rise by 2038, which would have “major economic
consequences.” Indeed, the rise would effectively “halt” “world economic growth” by 2025. By
2067, the report predicted a 9°F (5°C) temperature rise – bringing “globally catastrophic effects.”
The report also warned that uncertainty might mean the impacts would happen even faster than
initially recognized: there was a “1 in 10 chance [of a 4.5°F temperature rise] by 2005,” not
2038.
351.

The 1980 report recognized that the severity of the climate problem would be

measured, at least in part, on the ability of society to withstand and adapt to the impacts, what the
API task force dubbed “building in resilience.” The costs of adaptation were thus a foreseen
response to human-caused climate change.
352.

The API task force appeared, at least internally, to take these warnings seriously.

As reflected in task force meeting minutes, additional research was suggested to “investigate the
market penetration requirements of introducing a new energy source into world wide use” and
one of the suggested “overall goal[s]” of the task force was to “develop ground rules for energy
release of fuels and the cleanup of fuels as they relate to CO2 creation.”
353.

In 1982, API commissioned another report, this time from Columbia University,

on the matter of climate modeling. The Columbia report noted that despite some variation
among climate models, the various models “all predict some kind of increase in temperature
within a global mean range of 4C [7.2°F].” The report also recognized that “[s]uch a warming
can have serious consequences for man’s comfort and survival since patterns of aridity and
rainfall can change, the height of the sea level can increase considerably, and the world food
supply can be affected.”

81

 354.

In addition to its participation in API’s work, Exxon conducted its own climate

research (some of which has been made public). 23 Much of this confirmed the research
conducted for API and its members, but it also adds more detail.
355.

Exxon scientists warned in 1982 that a “clear scientific consensus ha[d] emerged”

that the “well-documented increase in CO2” would result in “global temperature rise” and there
was “unanimous agreement in the scientific community that [the projected] temperature increase
[ ] would bring about significant changes in the earth’s climate, including rainfall distribution
and alterations in the biosphere.”
356.

Two years earlier, Exxon was warned that those changes would “have a dramatic

impact on soil moisture, and, in turn, on agriculture.” Specifically, the “American Midwest” was
projected to “become drier should there be a temperature increase of the magnitude postulated
for a doubling of atmospheric CO2,” with “weeds and pests” also projected “to thrive with
increasing average global temperature.”
357.

Exxon was separately warned that climate change could bring about “a northward

migration of the desert areas of the United States” with “corn and wheat belts . . . migrat[ing] to
Canada.” 24
358.

Privately, Exxon also clearly recognized that society would have to adapt to

23

Over the last few years, information about Exxon’s awareness of and research into climate
change has become public. Suncor may have also undertaken independent research into climate
and its impacts, which will likely be revealed during the course of this litigation.
24

Another Exxon document included projections that at CO2 levels of 500 ppm “[t]he flow of the
Colorado River would diminish” making water shortages in the southwest “much more acute,”
and “[t]here would be less of a winter snow pack in the . . . Rockies, necessitating a major
increase in storage reservoirs.”

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 climate change, and that it would cost billions of dollars. While an internal Exxon memo
describes the threat of climate change as less “significant . . . [than] a nuclear holocaust or world
famine,” the required adaptation would be measured in percentage points “of the gross national
product estimated in the middle of the next century.”
359.

Two other revelations from the internal Exxon statements from the 1970s and

1980s are particularly relevant in light of their later contrary and misleading statements. First, it
was clear to Exxon that low range temperature change projections were not credible. For
example, in 1980, Exxon employees noted – with seeming agreement – that projections of a
temperature increase “on the order of 0.25C [.45°F] for a doubling of CO2” were “not held in
high regard by the scientific community.”
360.

Second, Exxon employees noted that there might be “time lags” which would

mask “much more significant effects” in the future. In other words, the temperature increases
due to CO2 buildup might occur substantially later than the emissions themselves, such that once
they were felt, it would be too late to stop or reverse the impacts.
361.

In August 1981, an Exxon scientist gave comments on a planning department

document that had indicated that the “observable effects [of rising CO2] in the year 2030” would
likely not be catastrophic (without defining that term). The reviewing scientist, concerned that
this language would lull company officers into a false sense of confidence, suggested edits,
warning that “it is distinctly possible” that Exxon’s projections of fossil fuel use “will later
produce effects which will indeed be catastrophic (at least for a substantial fraction of the earth’s
population),” because of “time lags” and natural climate variability, which might hide the effects
of an enhanced greenhouse effect.

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 362.

In fact, the calculations dating back to the 1968 report were remarkably prescient.

By 2000, CO2 levels had increased about 25% over a century before, and global average
temperatures were also about 1°F higher; in 1998, the global average temperature was 1.13°F
above the 20th century average. Scientists have also confirmed that it takes decades for the
warming from CO2 in the atmosphere to be felt; temperatures continue to rise even if CO2 levels
do not. Indeed, temperatures have continued to rise, such that for 2014-2017, global
temperatures were 1.54°F (0.86°C) above the 20th century average.
Defendants knew fossil fuel use reduction was needed.
363.

Exxon and the Suncor Defendants have known for years that if fossil fuel use

continued at the same rate (or grew), the impacts of climate change would come faster and would
be more damaging. Specifically, Defendants were told that the transition away from fossil fuels
had to begin, that substantial shares of recoverable fossil fuels could not be exploited, and that
more carbon-intensive fuels should not be promoted or sold, at least not if the impacts of climate
change were to be prevented or kept manageable.
364.

As early as 1968, API’s members, including Exxon and the Suncor Defendants,

were warned that a substantial percentage of the known recoverable fossil fuels could not be
burned, because if they were, atmospheric CO2 concentrations would rise to 830 ppm – a
catastrophic level. And, although this was obvious, API members were told that use rates would
affect how fast climate change happened, and how severe it might be.
365.

Specifically, Defendants were told that if the “use of fuel continues to expand at

about the 5% rate experienced more recently” then CO2 concentrations would be “30% higher
than in 1950 by the year 2000” and that “a 25% increase in CO2 concentrations [was] realistic.”

84

 366.

Similarly, in 1980, API’s climate task force recognized “the probability of large

[climate] effects 50 years away,” but that the “immediate problem [would be] considerably
eased” “[i]f fossil fuel rates are reduced.” This they understood implicated “the 50-year future of
fossil fuel use” and the “roles” that “different categories of fossil or synthetic fuel play in future
projections.”
367.

The 1980 report made an additional and important point about the need for

immediate action: because replacing fossil fuels with energy sources that did not emit such high
amounts of GHGs would take time, “there [was] no leeway” in the “time for action.”
368.

Throughout the 1980s, Exxon (including top company managers) continued to

recognize and be told that “[m]itigation of the ‘greenhouse effect’ would require major
reductions in fossil fuel combustion.”
369.

Additionally, Exxon knew that waiting to act would exacerbate the problem – and

indeed that, by the time the effects were felt, it would be too late. In 1980, Exxon scientist
Henry Shaw shared his edits to a national working group paper with the company, which noted
that “there [would be] no likely technological ‘fixes’ (e.g., emission control devices or
techniques) that will provide practical means of controlling CO2 emissions resulting from
combustion,” and if “policy actions to control the increased CO2 loading of the atmosphere are
delayed until climate changes resulting from such an increase are discernible, then it is likely that
they will occur too late to be effective.”
Additional research did not contradict Defendants’ early understanding about the causes and
consequences of climate change, in spite of the uncertainty they professed publicly.
370.

While Defendants have often – at least for the last 25 years or so – publicly

claimed that the causes and consequences of human-caused climate change are uncertain, they
85

 never abandoned or doubted what research had uncovered and the significant impacts that have
been identified by their own experts throughout the 1960s, 1970s and 1980s.
371.

An internal industry memo from 1995 – drafted by a former Mobil employee and

shared with API – said clearly that “[t]he scientific basis for the Greenhouse Effect and the
potential impact of human emissions of greenhouse gases such as CO2 on climate is well
established and cannot be denied.” Moreover, Defendants internally recognized that “contrarian
theories” for global warming – which they peddled to the public – were not considered credible
and did “not offer convincing arguments against the conventional model of greenhouse gas
emissions-induced climate change.”
372.

Defendants’ own business operations also took into account the very climate

hazards that they told the rest of the world not to worry about. In 1996, while building offshore
exploration facilities in Canada, Mobil Oil “made structural allowances for rising temperatures
and sea levels.” The engineering consultant hired for the project admitted he “used the
engineering standards of the day to incorporate potential impacts of Global warming on sea-level
rise.”
373.

Defendants also used climate change as a means of planning future fossil fuel

development. Exxon and its affiliates, for example, saw disappearing sea ice in the Arctic as a
boon for oil production because it would substantially reduce the costs of development.
374.

Between 1986 and 1992, Exxon’s research team was looking “at both the positive

and negative effects that a warming Arctic would have on oil operations.” Those findings
showed that warming would “only help lower exploration and development costs” in Arctic
waters. The basis for those findings was the same global climate change models that Exxon

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 publicly claimed were unreliable.
375.

Defendants knew that the existence and likely consequences of anthropogenic

climate change were certain enough for Defendants to plan their business operations around
them.
2. Defendants contributed to, accelerated, and exacerbated climate change by
promoting and selling huge amounts of fossil fuels.
376.

In spite of their knowledge, Suncor and Exxon produced, promoted, refined,

marketed and sold massive and increasing amounts of fossil fuels. In addition, despite
recognizing the severity and imminence of climate change, Defendants developed and sold fossil
fuels that contribute even more significantly to climate change than fuels refined from traditional
crude oil. Through this course of intentional conduct, Defendants caused billions of tons of
excess CO2 emissions and contributed to the dangerous and inexorable rise in atmospheric CO2.
377.

While Defendants likely knew about the consequences of their fossil fuel

activities even before the 1960s, the vast majority of CO2 emissions have taken place since the
1960s, after they unquestionably knew about the dangers. Indeed, nearly 75 percent of all
industrial emissions were released since the 1960s, with more than half since the late 1980s,
causing atmospheric CO2 to rise. Moreover, the growth rate of CO2 emissions and CO2
concentrations in the atmosphere is still rising. While CO2 concentration rose by 1 ppm per year
between 1965 and 1975, it is now increasing by more than 2 ppm per year.
378.

Defendants’ actions that have caused and contributed to climate change and

Plaintiffs’ injuries were taken with full knowledge of, or reckless indifference to, their effects.
379.

Even now, Exxon and Suncor are continuing their efforts and increasing their

fossil fuel activities. Both of their business plans – while playing lip service to the reality of
87

 climate change – include providing more fossil fuels through the middle of the century, including
from more carbon-intensive sources. Far from bringing emissions under control, and helping to
mitigate the impacts of climate change, this conduct will ensure and exacerbate the severity of
impacts.
Since the 1960s, Exxon has knowingly provided a substantial portion of the fossil fuels causing
and aggravating climate change, and it plans to continue doing so – causing continuing harm to
Plaintiffs.
380.

Since the 1960s, Exxon has sold trillions of cubic feet of natural gas, billions of

barrels of oil and millions of tons of coal and petroleum coke.
381.

On information and belief, Exxon’s share of the fossil fuel market has been

substantially the same or has increased over time, which means that it has sold greater absolute
amounts of fossil fuels over time as overall consumption has increased. 25
382.

Exxon intended its consumers to burn these fossil fuels in massive and increasing

amounts, which it knew would, and in fact did, result in the release of billions of tons of CO2 and
other GHGs into the atmosphere. The emissions traceable to Exxon’s productscontributed to the
overall rise in atmospheric CO2, were a substantial factor in bringing about and aggravating the
resulting climate change impacts and will continue to contribute to warming and climate change
impacts for the foreseeable future.
383.

Exxon is one of the largest sources of GHG emissions both globally and

historically.
384.

Moreover, and despite its knowledge of the grave threats fossil fuels pose to the

25

For example, in 2016, Exxon’s petroleum product sales were around 5.5 million barrels of oil
equivalent per day.

88

 climate as far back as the 1950s, Exxon increased the development of dirtier fuels that
contributed even more substantially to the concentration of atmospheric CO2. Since the 1970s,
Exxon has planned to develop and has been developing the Canadian tar sands. Canada’s tar
sands do not contain traditional crude oil. Instead, they are made up of bitumen.
385.

Bitumen is extracted, typically by mining, before it can be refined into useable

fuel products. The process of turning bitumen into useable fuel creates enormous CO2 emissions
– around 3.2 to 4.5 times the emissions generated from conventional oil produced in North
America.
386.

Moreover, the bitumen itself contains substantially more carbon than a

comparable and conventional oil.
387.

Much of that carbon is found in petroleum coke, a byproduct of the refining

process, around 80 percent of which is sold for fuel. When it is burned, petroleum coke produces
even more CO2 than coal – 5-10 percent more CO2 than coal relative to the energy provided –
and is one of the dirtiest fuels around in terms of air quality. By 1999, Exxon was one of the
world’s largest petroleum coke producers, making thousands of tons a day.
388.

Since the 1970s, Exxon’s tar sands reserves have ballooned from under 1 billion

barrels to 5.14 billion in 2015. In the last decade, tar sands as a percentage of Exxon’s liquid
holdings have increased from 17 percent to 35 percent.
389.

Beginning in the late 1960s Exxon also moved to acquire coal assets, and by the

mid-1970s, it started coal mining in Latin America. By the early 1990s, Exxon was producing
around 37 million metric tons of coal a year. Exxon maintained operational coal mines in the
United States until 2009, and it continues to report profits from “coal and power” operations in

89

 its filings to the U.S. Securities and Exchange Commission.
390.

Exxon has also helped breathe new life into coal-fired power generation. Because

petroleum coke is often cheaper than conventional coal and can be burned in coal-fired power
plants, Exxon’s petroleum coke production has helped to make coal-fired power generation
dirtier and cheaper globally.
391.

Exxon has also been a leader in efforts to produce commercially viable liquid

fuels from coal since the 1960s, and it has continued this effort despite its recognition, in internal
documents, that “liquid fuels from coal produce substantially more CO2 than gasoline from
petroleum.”
392.

Exxon plans to continue its reckless and tortious conduct. Exxon predicts that oil

and gas will account for an even larger share of the world’s energy supply in 2040, a figure it has
a direct role in determining. Even under its rosy projections, which assume substantial emissions
reductions through “efficiency,” Exxon projects rising emissions through 2040 (see chart below).

393.

Exxon is planning accordingly, hoping to supply a quarter of the Americas’ oil by

then.

90

 394.

Exxon confidently states in its most recent company-wide review that five of its

major start-ups will contribute to an additional 250,000 BOE per day of working interest
production, and that “several long-cycle project start-ups are anticipated in 2018 in Angola,
Canada, Qatar, Russia and the United Arab Emirates, contributing about 340 thousand oilequivalent barrels per day of working interest.”
395.

Exxon also plans to continue increasing production of even dirtier fuels. Exxon

states on its website that “oil sands production offers a unique opportunity to increase North
American oil supplies,” and is currently expanding its tar sands operations there, aiming to
access around 4.6 billion barrels of tar sands oil for more than 40 years with the expansion of its
Kearl project. Exxon’s related petroleum coke business will likewise continue apace.
Since the 1960s, the Suncor Defendants have knowingly provided a substantial portion of the
fossil fuels causing and aggravating climate change; and Suncor plans to continue doing so,
causing harm to Plaintiffs.
396.

Since the 1960s, the Suncor Defendants have produced, refined, marketed and

sold trillions of cubic feet of natural gas, more than a billion barrels of oil, and millions of tons of
petroleum coke.
397.

In 2016, Suncor was one of the world’s largest oil producers, supplying more than

600,000 barrels of oil every day, almost entirely from the Canadian tar sands.
398.

On information and belief, Suncor’s share of the fossil fuel market has increased

since the 1960s. For example, between 2004 and 2016, Suncor’s tar sands production increased
120 percent.
399.

Suncor intended its consumers to burn these fossil fuels in massive and increasing

amounts, which it knew would, and in fact did, result in the release of billions of tons of CO2 into

91

 the atmosphere. The emissions traceable to Suncor’s products contributed to the overall rise in
atmospheric CO2, were a substantial factor in bringing about and aggravating the resulting
climate change impacts and will continue to contribute to those impacts for the foreseeable
future. Suncor is one of the largest sources of GHG emissions both globally and historically.
400.

Moreover, and despite its knowledge of the grave threats fossil fuels pose to the

climate as far back as the 1950s, Suncor produced and promoted dirtier fuels that contributed
even more substantially to the rise in the concentration of atmospheric CO2.
401.

Indeed, according to an oil index recently established by the Carnegie Institute,

Suncor’s oil produces the highest GHG emissions in the world, whether one looks at the fuel’s
entire production lifecycle, or at combustion emissions alone.
402.

Suncor was substantially responsible for the development of the Canadian tar

sands. Despite the enormous costs and climatic risk, Suncor confidently states on its website,
“skeptics said Canada’s oil sands could never be developed commercially . . . [but] Suncor
Energy proved them wrong.”
403.

Suncor began developing tar sands in 1967. At the latest, Suncor was told a year

later about the dangers of unchecked fossil fuel use but plunged forward to this day regardless.
404.

Like Exxon, Suncor has taken advantage of its business’ dirty by-product –

petroleum coke. Indeed, by 2008, Suncor was shipping “a half-million tons a year through
Prince Rupert Ridley [Island] to Asian and Mexican ports.” By 2016, “[a]pproximately half of
all coke produced [from the Canadian tar sands] . . . came from Suncor’s operations.”
405.

Suncor plans to continue producing and promoting more fossil fuels. As its CEO,

Steve Williams, recently said, “In 100 years time, the oilsands will still be being developed and

92

 still operating.”
406.

Suncor is continuing to grow its production, promotion and sale of this fuel

source, which results in fuels that have a greater GHG emissions. Suncor plans to increase tar
sands production in 2018 to more than 600,000 barrels a day, up from 505,000 barrels in 2016.
And it plans to keep going in the near future: a tar sands project at Fort Hills, Alberta, Canada,
will yield an additional 194,000 barrels a day, and 10 smaller projects, set for 2022, would add
another 360,000 barrels a day to the company’s production.
3. Defendants concealed and misrepresented to the public what they knew
about climate change and the dangers of continued and increasing fossil
fuel use.
407.

Defendants conducted their fossil fuel activities without disclosing (and in spite

of) the climate-altering dangers that they knew – and have long known – were associated with
the use of fossil fuels.
408.

In addition to concealing the known risks of the levels of their fossil fuel

activities, Exxon and the Suncor Defendants – separately, jointly and in coordination with others,
such as API – directed, participated in and benefited from efforts to misleadingly cast doubt
about the causes and consequences of climate change, including: (1) making affirmative and
misleading statements suggesting that continued and unabated fossil fuel use was safe (in spite of
internal knowledge to the contrary); and (2) attacking climate science and scientists who tried to
report truthfully about the dangers of climate change.
409.

For example, in 1996, when opposing efforts to cut fossil fuel use, Exxon CEO

Lee Raymond wrote that “scientific evidence remains inconclusive as to whether human
activities affect global climate.”

93

 410.

The Defendants undertook this course of conduct to mislead the public and

consumers about the risks of alterations to the climate from fossil fuel use, in order to maintain
fossil fuel demand and their fossil fuel business. Defendants succeeded. Through the 1990s, at a
critical point when the fossil fuel usage needed to be brought under control, public concern about
the risks and causes of climate change waned. 26
411.

Defendants’ concealment and misrepresentation substantially contributed to the

unchecked growth in fossil fuel use, GHG emissions, and the atmospheric concentration of
GHGs at levels that they knew would cause alterations in the climate.
Defendants acted in groups that concealed and misrepresented the dangers of fossil fuel use.
412.

Defendants acted together with, and through, groups and industry associations,

such as API, in a concerted and coordinated effort to mislead the public and consumers of harm
to the climate caused by the levels of their fossil fuel activities.
413.

Defendants set up, and have funded, directed and participated in efforts by such

groups to mislead the public and fossil fuel consumers about the connection between unchecked
fossil fuel use and dangerous climate alteration.
414.

Defendants used such groups to spread information that they knew to be false, and

to give the impression that there was “independent” science that doubted the causes and
consequences of climate change.
Defendants promoted fossil fuels as necessary and responsible, while concealing their danger.
415.

Defendants have promoted fossil fuels as safe, environmentally friendly and

26

In 1992, 88 percent of American believed that global warming was a serious problem, but by
1997 that number had fallen to 42 percent (with only 28 percent of Americans thinking
immediate action was needed).

94

 necessary. They have made these representations in their own commercial advertisements and
marketing materials, and through third-party advertisements and marketing materials designed to
encourage fossil fuel use more generally. At no point did Defendants or their associations
disclose that continued reliance on and the increased unchecked use of fossil fuels were
threatening the climate.
416.

For years, API has also blanketed the airwaves and print media, including in

Boulder County, San Miguel County and elsewhere in Colorado, with misleading statements
about the safety of, need for and benefits of fossil fuel use. API did not disclose that continued
reliance on and unchecked use of fossil fuels was threatening the climate.
Defendants affirmatively misrepresented the causes and consequences of climate change.
417.

By the late 1980s, the reality of climate change was increasingly identified in

public settings – as was the role of fossil fuels in bringing it about. In June 1988, James Hansen
– then Director of the Goddard Institute of Space Studies at NASA – testified at a congressional
hearing that “the greenhouse effect has been detected, and it is changing our climate now.”
418.

In spite of their recognition that climate change posed a serious threat decades

earlier, Defendants saw public awareness of climate change and its causes as a threat to their
business. Defendants acted to thwart public awareness and understanding through misleading
advertising and other communications that cast doubt on the existence, causes and dangers
associated with alterations to the climate, in order to preserve and promote fossil fuel use which
maintained and increased their profits but which were at levels Defendants knew to be
contributing to climate alteration.
419.

Exxon and its predecessors ran multiple advertisements downplaying the risks of

95

 climate change and emphasizing uncertainty, contrary to its own internal documents. For
example, in 1997 Mobil ran advertisements in the New York Times claiming, “Scientists cannot
predict with certainty if temperatures will increase, by how much and where changes will occur.
We still don’t know what role man-made greenhouse gases might play in warming the planet.”
420.

Exxon continued these advertisements after its merger with Mobil.

421.

One 2000 Exxon advertisement claimed that climate science was “unsettled.” A

2001 Exxon advertisement criticized “the unrealistic and economically damaging Kyoto
process.” A 2004 Exxon advertisement again emphasized “[s]cientific uncertainties” that “limit
our ability to make objective, quantitative determinations regarding the human role in recent
climate change, or the degree and consequence of future change.”
422.

Defendants also communicated through API, and groups that were created,

organized or controlled by API.
423.

For example, the Global Climate Coalition (GCC) – formed in the late 1980s as

the self-described “voice of U.S. businesses and industries that have a stake in the outcome of the
global climate change debate” – was largely run and directed by API.
424.

The GCC spent millions of dollars on advertising that tried to discredit climate

science, and cast doubt on the dangerous consequences of climate change. In 1992, when 130
nations came together to sign the U.N. Framework Convention on Climate Change at the Rio de
Janeiro “Earth Summit,” GCC spent millions in misleading marketing to discredit the science.
They distributed videos claiming that climate change would not be a problem, and that more
atmospheric carbon dioxide would actually be beneficial for the world. Similarly, throughout the
1990s and early 2000s, GCC and its members spent millions more and distributed similarly

96

 deceptive materials designed to undermine support for the Kyoto Protocol, the followup to the
Framework Convention.
425.

These GCC advertisements were intentionally misleading because its members

knew that climate change was ongoing, and that its impacts were increasingly posing serious
risks to the public – including communities such as Plaintiffs. In a 1995 memo (also discussed
above), a Mobil (now Exxon) representative told the GCC that “[t]he scientific basis for the
Greenhouse Effect and the potential impact of human emissions of greenhouse gases such as
CO2 on climate is well established and cannot be denied,” and that “contrarian theories” to
explain global warming were not credible.
426.

Another front group organized by API was the Global Climate Science

Communications Team (GCSCT), through which Defendants acted to mislead the public about
climate change.
427.

The GCSCT was organized in the late 1990s, largely in response to the signing of

the Kyoto Protocol, including by the United States. Its stated goal was to get “[a] majority of the
American public” to “recognize[ ] that significant uncertainties exist in climate science” and to
make climate change “a non-issue, meaning that the Kyoto Protocol is defeated and there are no
further initiatives to thwart the threat of climate change.”
428.

Defendants, through GCSCT, sought to achieve this by spreading misinformation

about human-caused climate change and the credibility of climate science – in the media, to their
consumers, and in classrooms across the United States. While Defendants, per the GCSCT’s
“action plan”, suggested that there was uncertainty about “whether (a) climate change actually is
occurring, or (b) if it is, whether humans really have any influence on it,” they clearly knew

97

 otherwise.
429.

Defendants also acted through a cadre of claimed climate scientists, who they

paid, directly or indirectly, to cast doubt on climate science.
430.

In the early 1990s, both API and Exxon funded and promoted the work of Fred

Seitz, Fred Singer, and Singer’s Science and Environmental Policy Project (SEPP). Neither
Seitz nor Singer was trained in climate science, but both had previously been hired by industry,
including tobacco companies, to create doubt in the public mind (where there should have been
none).
431.

Seitz, Singer and SEPP were used to attack climate science, and specifically the

IPCC conclusions and process. At first, Seitz and Singer claimed there was no climate warming
or alteration. When the evidence of warming of the climate became too hard to deny, they
claimed the warming was simply natural variation.
432.

As just one example of their tactics, in 1998, Seitz helped to organize and

distribute a sham petition “refuting” global warming. The petition was formatted to look like it
was sanctioned by the National Academy of Scientists and sent to thousands of American
scientists. Supposedly signed by 17,000 “scientists,” the petition claimed to find “no convincing
scientific evidence that human release of greenhouse gases is causing or will, in the foreseeable
future, cause catastrophic heating of the Earth’s atmosphere and disruption of the Earth’s
climate.” The list of signatories was filled not with 17,000 actual scientists, but fictitious names,
deceased persons, and celebrities.
433.

The industry later turned to Wei-Hock (Willie) Soon, an aerospace engineer at

the Harvard-Smithsonian Center for Astrophysics, who received over $1.2 million from Exxon,

98

 API and other fossil fuel interests from 2001-2012. Soon wrote numerous papers suggesting
non-fossil fuel causes of climate change and is best known for promoting the widely discredited
idea that solar variability is responsible for climate change. Soon’s papers were rejected in the
scientific community, for good reason.
434.

In 2015, it came to light that Soon was being funded by fossil fuel companies – a

fact he had not disclosed – and that those funders were given the right to review his work before
it was published. Soon described his supposedly “academic” work for the Smithsonian as
“deliverable” to his funders, i.e. produced in exchange for their funding.
435.

Defendants, and their agents, such as API, routinely referenced the work of

Singer, Seitz and Soon when casting doubt on and/or trying to undermine public recognition of
the scientific consensus around climate change caused and contributed to by their fossil fuel
activities, in order to continue and increase those fossil fuel activities unabated.
Doubt won Defendants years of inaction.
436.

Despite the scientific consensus around the existence and causes of climate

change, uncertainty in the minds of the American public and Defendants’ consumers grew
throughout the 1990s and 2000s as a result of Defendants’ efforts.
437.

A poll reported in Time magazine in 2006 found that only 56 percent of

Americans thought that average global temperatures had risen – despite scientific documentation
that it had, including the IPCC’s unequivocal statement, in its 2001 report, that average
temperatures had risen.
438.

An ABC poll the same year found that while more than 80 percent of Americans

believed that global warming was “probably happening,” 64 percent did not believe the science

99

 was settled, perceiving “a lot of disagreement among scientists.” Defendants concealed the
knowledge that would have demonstrated that the science of climate change had been settled
since at least the 1960s.
439.

The Pew Research Center in 2006 found that only 41 percent of Americans

believed human activity such as burning fossil fuels was causing global warming –
approximately equal to the number of people who said either that it was caused by natural
patterns (21 percent) or that there was no solid evidence of warming (20 percent).
440.

By 2009, Pew Research Center found the number of Americans who said there

was solid evidence that global temperatures are rising had declined to 57 percent, down from 71
percent in 2008. Only 35 percent of people thought the issue was very serious.
441.

There was a similar decline in the number of Americans who said temperatures

are rising – down from 47 percent in 2008 to just 36 percent in 2009.
442.

In 2012, in response to the survey question: Do scientists believe that earth is

getting warmer because of human activity? 43 percent replied no, 12 percent did not know and
only 45 percent of the U.S. public accurately reported the scientific community’s overwhelming
consensus.
443.

Defendants’ ongoing concealment of their knowledge of the causes and impacts

of climate change in turn contributed to their ability to thwart attempts to prevent and mitigate
the climate change harms caused and contributed to by their fossil fuel activities, further
exacerbating and accelerating those harms.

100

 IV.

PLAINTIFFS’ CLAIMS
FIRST CAUSE OF ACTION
(Public Nuisance)
444.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as if fully stated herein.
445.

Defendants’ fossil fuel activities – i.e., knowingly producing, promoting,

refinining, marketing and selling a substantial amount of fossil fuels used at levels sufficient to
alter the climate, and misrepresenting the dangers associated, with their use – has caused,
created, contributed to and/or exacerbated dangerous alterations in the climate.
446.

The alterations in the climate substantially caused and contributed to by

Defendants constitute a present and continuing public nuisance in Plaintiffs’ communities.
Plaintiffs have to mitigate the impacts and severity of the public nuisances caused and
contributed to by the levels of Defendants’ fossil fuel activities within their respective
jurisdictions.
447.

Plaintiffs are specially injured by the public nuisance brought about by

Defendants’ actions altering the climate because of their special responsibility to respond to and
abate its hazards, and because they and their property and assets are especially vulnerable to the
impacts of climate change, including, specifically, but not exlusively, their:
•

transportation infrastructure, including roads, bridges, and culverts;

•

flood, stormwater and water supply infrastructure;

•

agricultural and open space lands; and

•

high elevation properties, including reservoirs and park lands.

448.

The impacts of climate change caused by Defendants’ actions have interfered
101

 with and will continue to threaten and interfere with public rights in the Plaintiff communities,
including the right to use and enjoy public property, spaces, parks, ecosystems and the
environment; the right to public health, safety, emergency management, comfort and well-being;
and the right to safe and unobstructed travel, transportation, commerce and exchange.
449.

The interference with and threat to public rights caused by Defendants’ actions is

substantial and includes, but is not limited to:
•

increasing, longer duration, wider burning and more intense wildfires, including
in areas where wildfire risk had previously been low or non-existent;

•

increasing extreme precipitation events;

•

rising temperatures and an increasing number of extreme temperature events;

•

prolonged and more severe drought conditions; and

•

the spread of pests, disease, and increasing threats to public health by, among
other things, increasing allergens and ozone, as well as diminishing air quality.

450.

The harms caused by Defendants are and will continue to be borne by Plaintiffs

and residents of the Plaintiff communities in the form of damage to property (valued in the
billions of dollars); impairment of public health; obstructed movement within their communities;
the loss of use and enjoyment of public property, the environment and local eco-systems and
infrastructure; as well as added costs to protect, repair and remediate the harms caused by
Defendants’ alteration of the climate.
451.

Defendants have contributed to and continue to contribute to the creation and

exacerbation of the public nuisance, in that the intended and foreseeable combustion of
Defendants’ fossil fuels at the levels at which they were being used has produced and will
continue to produce a substantial amount of GHG emissions, measured in billions of excess tons

102

 of CO2 and other GHGs. Those excess tons have caused, contributed to, and/or exacerbated the
impacts of climate change, including in Plaintiffs’ communities. Additionally, Defendants’
fossil fuel activities and concealment and/or misrepresentation of the risk, known to Defendants,
of the intended use of fossil fuels has also resulted in a substantial amount of excess GHG
emissions, which caused, contributed to, and/or exacerbated the impacts of climate change.
452.

Defendants intentionally, negligently and/or recklessly created the interference

incurred by Plaintiffs and the Plaintiff communities caused by climate change. From decades
ago, Defendants knew or should have known that climate change impacts – including those
affecting the Plaintiff communities – were substantially certain to result when they produced,
promoted, refined, marketed and sold fossil fuels intending that they would be combusted at
significant rates. Defendants knew or should have known that climate change impacts –
including those affecting the Plaintiff communities – were substantially certain to result when
they concealed and affirmatively misrepresented the truth about climate change and the negative
impacts of fossil fuel use to the public and their consumers.
453.

The inteference with public rights is unreasonable. For decades, Defendants have

internalized the benefits of fossil fuel use, i.e., their profits, and externalized its costs, i.e., the
impacts of climate change, onto communities such as Plaintiffs. Defendants knew or should
have known the costs to Plaintiffs and their communities of their fossil fuel activities and have
not compensated Plaintiffs for those foreseen harms. Defendants continue to produce, promote,
refine, market and sell fossil fuels at levels that cause and contribute to alteration of the climate,
continue to profit from rising sales and continue to not compensate Plaintiffs or their
communities for the continued and added impacts that they suffer and will continue to suffer

103

 from as a direct and proximate result of Defendants’ nuisance.
454.

Plaintiffs and their residents have been damaged, including in their exercise of

public and common rights, as a direct and proximate result of the public nuisance created by
Defendants. Plaintiffs have spent and will have to spend substantial sums to mitigate this
interference. Plaintiffs’ damages and losses include, but are not limited to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to, or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

•

costs of responding to, managing and repairing damage from bark beetle and
other pest infestations;

•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with additional medical treatment and hospital visits necessitated
by extreme heat vents, increased allergen exposure and exposure to vector-borne
disease, mitigation measures and public education programs to reduce the
occurrence of such health impacts;

•

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
to increases in streamflow rates;

•

costs of repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
implement such alternative design and construction;

•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable;

104

 •

costs of public education programs concerning responses to climate alteration;
and

•

costs of reduced employee productivity.

455.

These damages and losses are the direct and proximate result of the public

nuisance – climate alteration – that Defendants caused and contributed to.
456.

Wherefore, Plaintiffs pray for an award of damages, restitution for their costs of

abating the nuisance and remediation by Defendants as set forth below.
SECOND CAUSE OF ACTION
(Private Nuisance)
457.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as if fully stated herein.
458.

Plaintiffs own, lease, occupy, manage, control and/or are otherwise in lawful

possession of extensive real property within their jurisdictions.
459.

As a direct and proximate result of Defendants’ conduct, as set forth above,

Plaintiffs’ property rights and interests, including their rights to the free and unthreatened use
and enjoyment of that property, have been and will be unreasonably interfered with.
460.

Defendants, and each of them, by causing and/or contributing to climate change

through their acts and omissions described above, have created conditions on and/or set in
motion forces that cause interference with Plaintiffs’ real property, and permitted those
conditions and forces to persist, which constitute a nuisance.
461.

Plaintiffs’ property has been and/or will be substantially harmed by the effects of

climate change. The conditions and forces Defendants created substantially and unreasonably
interfere with, and will substantially interfere with, Plaintiffs’ use and quiet enjoyment of rights

105

 to and interests in their real property, including by increasing the frequency and intensity of
flooding, storms, the spread of invasive species and wildfire.
462.

The harms to and interference with Plaintiffs’ property have become and/or will

continue to be regular and severe.
463.

Plaintiffs have not consented to Defendants’ conduct in creating the condition that

has interfered with Plaintiffs’ property.
464.

All of their harms will actually be borne by Plaintiffs as loss of use and enjoyment

of public property and infrastructure. The burden on Plaintiffs to mitigate, repair, remediate and
prevent further grave interferences with their property is significant and severe.
465.

Defendants’ conduct was and is negligent, reckless and intentional because

Defendants knew or should have known their actions were substantially certain to interfere with
Plaintiffs’ property rights and interests. Defendants have known for decades, or reasonably
should have known, that their conduct was substantially certain to alter or contribute to
alterations in the climate and is exacerbating climate change.
466.

Defendants’ conduct was and is unreasonable because they have created and are

creating the interference with Plaintiffs’ property rights without compensating Plaintiffs for the
harm they knowingly, recklessly or negligently created or will create.
467.

Defendants’ conduct is continuing and has produced and will produce ongoing

468.

Defendants’ actions are a direct and proximate cause of Plaintiffs’ damages and

469.

Plaintiffs’ real property has been damaged and their use and enjoyment of that

effects.

losses.

106

 property has been threatened by the nuisance created by Defendants; Plaintiffs have spent and
will have to spend substantial dollars to mitigate this interference. Plaintiffs’ damages and losses
include, but are not limited to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

•

costs of responding to, managing and repairing damage from pine beetle and other
pest infestations;

•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
to increases in streamflow rates;

•

costs of repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
implement such alternative design and construction; and

•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable.

470.

These damages and losses are the direct and proximate result of climate alteration

by Defendants in excess of historical trends in climate variation.
471.

Wherefore, Plaintiffs pray for an award of damages, restitution of their costs to

abate the nuisance, and remediation of the nuisance by Defendants as set forth below.

107

 THIRD CAUSE OF ACTION
(Trespass)
472.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as if fully stated herein.
473.

Plaintiffs are the owners, in lawful possession, of real property.

474.

Defendants have each intentionally engaged in conduct that hascaused and

contributed to climate change, which, in the usual course of events, has caused and will cause
flood waters, fire, hail, rain, snow, wind and invasive species to enter Plaintiffs’ property.
475.

Defendants knew, with substantial certainty, that their fossil fuel activities would

cause and contribute to climate change and thus cause these invasions of Plaintiffs’ property.
476.

This trespass is recurring, and will continue.

477.

Plaintiffs did not give Defendants permission for these invasions of their property.

478.

Defendants’ trespasses are the direct and proximate cause of damages and losses

to the Plaintiffs.
479.

Defendants’ actions are and have been a cause of the injuries and damages to

Plaintiffs’ property.
480.

Plaintiffs’ real property has been and will be damaged by Defendants’ trespasses

and Plaintiffs have spent and will spend substantial dollars to mitigate the damage caused by the
trespasses. Such damages and losses include, but are not limited to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

•

costs of responding to, managing and repairing damage from pine beetle and other

108

 pest infestations;
•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
to increases in stream flow rates;

•

costs of repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
implement such alternative design and construction; and

•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable;

481.

These damages and losses are the direct and proximate result of climate alteration

by Defendants in excess of historical trends in climate variation.
482.

Wherefore, Plaintiffs pray for damages and other relief as set forth below.
FOURTH CAUSE OF ACTION
(Unjust Enrichment)

483.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as if fully stated herein.
484.

Defendants profited from the manufacture, distribution and/or sales of fossil fuel

products at levels sufficient to alter the climate, including in Colorado, and continued to do so
long after they were aware of the harms that have resulted and would result from Defendants’
actions in causing and contributing to alteration of the climate.
485.

Further, Defendants have profited from and continue to profit from the

109

 manufacture, distribution and/or sale of fossil fuels with that knowledge and have benefited from
not incurring the costs necessary to reduce the impacts of Defendants’ contributions to climate
change on Plaintiffs, Plaintiffs’ properties and Plaintiffs’ communities.
486.

Plaintiffs have conferred a benefit upon Defendants by bearing the costs of the

impacts of climate change while Defendants have not borne those costs, increasing the profits to
Defendants. Defendants received benefits from their actions and it would be unconscionable and
contrary to equity for Defendants to retain those benefits obtained at the expense of Plaintiffs.
487.

Defendants have profited at the expense of Plaintiffs and the Plaintiff

communities who have been damaged and must abate the hazards created by Defendants’ fossil
fuel products.
488.

Defendants have received a benefit at the expense of Plaintiffs and the Plaintiff

communities and it would be unconscionable and contrary to equity for Defendants to retain that
benefit. The Court therefore should award as a remedy the profits obtained by Defendants at the
expense of Plaintiffs.
FIFTH CAUSE OF ACTION
(Violation of the Colorado Consumer Protection Act,
Colo. Rev. Stat. § 6-1-105(1), et seq.)
489.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as if fully stated herein.
490.

Defendants engaged in and caused others to engage in deceptive trade practices in

Colorado, including in Plaintiffs’ communities.
491.

Defendants’ deceptive trade practices included, but were not limited to:

•

knowingly making false representations as to the characteristics, ingredients, uses,
or benefits of their fossil fuel activities; and
110

 •

failing to disclose material information concerning their goods and services,
which information was known at the time of an advertisement or sale, including:
the true cost and harms from the use of their products; the damage to the climate
that the use of their goods and services would cause; and the impacts of the use of
their fossil fuels and fossil fuel-derived products and services on Plaintiffs’
property, social services and infrastructure.

492.

Defendants’ failure to disclose such information was intended to induce the public

and consumers at large to enter into transactions for the continued and expanding use of fossil
fuels and fossil fuel products.
493.

Defendants’ misrepresentations, false representations, concealment and omissions

concerning their goods and services were materially false statements that induced the persons to
whom they were made to act or to refrain from acting and had the capacity to deceive the
recipient.
494.

The material information Defendants failed to disclose was information

Defendants knew at the time of their advertisement or sale of their fossil fuels and fossil fuel
derived products.
495.

Defendants’ deceptive trade practices occurred in the course of Defendants’

business.
496.

Defendants’ deceptive trade practices significantly impacted Plaintiffs, their

communities and the public. A large number of consumers in Colorado, including in Plaintiffs’
communities, were and continue to be directly affected by Defendants’ deceptive trade practices.
The consumers directly affected by the deceptive trade practices had minimal, if any, bargaining
power. The deceptive practices have previously impacted Colorado consumers. Defendants’
deceptive trade practices have a significant potential to impact other consumers in the future.

111

 497.

Defendants engaged in bad faith conduct in their deceptive trade practices

meaning they acted fraudulently, willfully, knowingly and/or intentionally, causing damages and
losses to Plaintiffs.
498.

Colorado residents, including residents in Plaintiffs’ communities, that were the

targets of these deceptive trade practices were, and are, actual and potential consumers of
Defendants’ goods or services.
499.

Plaintiffs and their residents were injured in the course of their business as a result

of such deceptive trade practices. Defendants’ deceptive trade practices directly and proximately
caused actual damages and losses to Plaintiffs and their residents. Such damages and losses
include, but are not limited to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

•

costs of responding to, managing and repairing damage from pine beetle and other
pest infestations;

•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with additional medical treatment and hospital visits necessitated
by extreme heat events, increased allergen exposure and exposure to vector-borne
disease, as well as mitigation measures and public education programs to reduce
the occurrence of such health impacts;

•

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
112

 to increases in stream flow rates;
•

costs of repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
implement such alternative design and construction;

•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable;

•

the cost of public education programs concerning responses to climate alteration;
and

•

the cost of reduced employee productivity.

500.

These damages and losses are the direct and proximate result of Defendants’

deceptive trade practices.
SIXTH CAUSE OF ACTION
(Civil Conspiracy)
Against the Suncor Defendants
501.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as if fully stated herein.
502.

The Suncor Defendants together, through their acts and omissions described

above, and through the acts of other Suncor subsidiaries, joint ventures and affiliates not named
as Defendants (“Suncor co-conspirators”), conspired to perform and did perform conduct which
caused and/or contributed to alteration of the climate and resulting damages and losses to
Plaintiffs.
503.

The Suncor Defendants and their Suncor co-conspirators jointly targeted their

fossil fuel activities at the State of Colorado, including through the co-conspirators based in,
doing business in and/or incorporated in Colorado.

113

 504.

The Suncor Defendants and their Suncor co-conspirators had concerted goals to

maintain and/or to increase fossil fuel usage at levels they knew were sufficient to alter the
climate, and to fail to disclose material information concerning their fossil fuel activities –
specifically including, the damage to the climate that the use of their goods and services would
cause – so as to maintain and increase their profits from the sale of their fossil fuel products and
services in spite of the increasing alteration of the climate.
505.

The Suncor Defendants and their Suncor co-conspirators had a meeting of the

minds to accomplish their goals to maintain and/or to increase fossil fuel usage at levels they
knew were sufficient to alter the climate, and to withhold material information concerning the
continuing and increasing harm caused by their fossil fuel activities, specifically concerning the
damage to the climate that the use of their goods and services would cause and the impacts of the
use of their fossil fuels and fossil fuel-derived products and services on Plaintiffs’ property,
social services and infrastructure.
506.

The Suncor Defendants and their Suncor co-conspirators acted to accomplish their

goal to maintain and/or to increase fossil fuel usage through unlawful means, namely through
misrepresentations, false representations, concealment and omissions concerning their goods and
services which were materially false statements that induced the persons to purchase their goods
and services. The material information Defendants failed to disclose was information
Defendants knew at the time of their advertisement, promotion and sale of their fossil fuels and
fossil fuel-derived products.
507.

The Suncor Defendants’ conduct, as well as that of the other Suncor co-

conspirators, was and is negligent, reckless and unlawful because they knew or should have

114

 known their actions were substantially certain to interfere with Plaintiffs’ property rights and
interests. Defendants have known for decades, or reasonably should have known, that their
conduct was substantially certain to alter or contribute to alterations in the climate and is
exacerbating climate change.
508.

The Suncor Defendants’ and Suncor co-conspirators’ concerted unlawful actions

performed to accomplish their goal were and are a direct and proximate cause of damages and
losses to Plaintiffs. Plaintiffs’ damages and losses include, but are not limited to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

•

costs of responding to, managing, and repairing damage from pine beetle and
other pest infestations;

•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
to increases in streamflow rates;

•

costs of repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
implement such alternative design and construction; and

•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable.

509.

Pursuant to C.R.S. § 13-21-111.5(4), the Suncor Defendants and Suncor co115

 conspirators consciously conspired and deliberately pursued a common plan to commit tortious
acts and therefore are jointly and severally liable to Plaintiffs.
510.

Wherefore, Plaintiffs pray for an award of damages against Defendants as set

forth below.
Against Exxon
511.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as is fully stated herein.
512.

Exxon, through its acts and omissions described above, and through the acts of

other Exxon subsidiaries, joint ventures and affiliates not named as Defendants (“Exxon coconspirators”), conspired to perform and did perform conduct which caused and/or contributed to
alteration of the climate and resulting damages and losses to Plaintiffs.
513.

Exxon and the Exxon co-conspirators jointly targeted their fossil fuel activities at

the State of Colorado, including through the co-conspirators based in, doing business in and/or
incorporated in Colorado.
514.

Exxon and the Exxon co-conspirators had concerted goals to maintain and/or to

increase fossil fuel usage at levels they knew were sufficient to alter the climate, and to fail to
disclose material information concerning their fossil fuel activities – specifically including the
damage to the climate that the use of their goods and services would cause – so as to maintain
and increase their profits from the sale of their fossil fuel products and services in spite of the
increasing alteration of the climate.
515.

Exxon and the Exxon co-conspirators had a meeting of the minds to accomplish

their goals to maintain and/or to increase fossil fuel usage at levels they knew were sufficient to

116

 alter the climate, and to withhold material information concerning the continuing and increasing
harm caused by their fossil fuel activities, specifically concerning the damage to the climate that
the use of their goods and services would cause, and the impacts of the use of their fossil fuels
and fossil fuel-derived products and services on Plaintiffs’ property, social services and
infrastructure.
516.

Exxon and the Exxon co-conspirators acted to accomplish their goal to maintain

and/or to increase fossil fuel usage through unlawful means, namely through misrepresentations,
false representations, concealment and omissions concerning their goods and services which
were materially false statements that induced the persons to purchase their goods and services.
The material information Exxon failed to disclose was information it knew at the time of its
advertisement, promotion and sale of its fossil fuels and fossil fuel-derived products.
517.

Exxon’s conduct, as well as that of the other Exxon co-conspirators, was and is

negligent, reckless and unlawful because they knew or should have known their actions were
substantially certain to interfere with Plaintiffs’ property rights and interests. Defendants have
known for decades, or reasonably should have known, that their conduct was substantially
certain to alter or contribute to alterations in the climate and is exacerbating climate change.
518.

Exxon’s and the Exxon co-conspirators’ concerted unlawful actions performed to

accomplish their goal were and are a direct and proximate cause of damages and losses to
Plaintiffs. Plaintiffs’ damages and losses include, but are not limited to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

117

 •

costs of responding to, managing and repairing damage from pine beetle and other
pest infestations;

•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
to increases in streamflow rates;

•

costs of repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
implement such alternative design and construction; and

•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable.

519.

Pursuant to C.R.S. § 13-21-111.5(4), Exxon and the Exxon co-conspirators

consciously conspired and deliberately pursued a common plan to commit tortious acts and
therefore are jointly and severally liable to Plaintiffs.
520.

Wherefore, Plaintiffs pray for an award of damages against Defendants as set

forth below.
Against all Defendants
521.

Plaintiffs reallege and reaffirm each and every allegation set forth in all the

preceding paragraphs as is fully stated herein.
522.

Exxon – through its acts and omissions described above, and through the acts of

the other Exxon co-conspirators – and the Suncor Defendants – through the acts and omissions
described above, and through the acts of other Suncor co-conspirators – jointly conspired to
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 perform and did perform conduct which caused and/or contributed to alteration of the climate
and resulting damages and losses to Plaintiffs.
523.

Specifically, the Suncor Defendants, Suncor co-conspirators, Exxon, and the

Exxon co-conspirators, among other joint activities, jointly targeted substantial fossil fuel
activities at the State of Colorado, including through co-conspirators who are Colorado entities.
524.

The co-conspirators had concerted goals that included maintaining and/or

increasing fossil fuel usage at levels they knew were sufficient to alter the climate, and failing to
disclose material information concerning their fossil fuel activities – specifically including the
damage to the climate that the use of their goods and services would cause – to the public and
consumers, including in Colorado, so as to maintain and increase their profits from the sale of
their fossil fuel products and services in spite of the increasing alteration of the climate.
525.

The co-conspirators had a meeting of the minds to accomplish their goals to

maintain and/or to increase fossil fuel usage at levels they knew were sufficient to alter the
climate, and to withhold material information concerning the continuing and increasing harm
caused by their fossil fuel activities from Colorado consumers, specifically concerning the
damage to the climate that the use of their goods and services would cause and the impacts of the
use of their fossil fuels and fossil fuel derived products and services on Plaintiffs’ property,
social services, and infrastructure.
526.

The co-conspirators acted to accomplish their goal to maintain and/or to increase

fossil fuel usage in Colorado through unlawful means, namely through misrepresentations, false
representations, concealment and omissions concerning their goods and services which were
materially false statements that induced the persons to purchase their goods and services. The

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 material information the co-conspirators failed to disclose was information they knew at the time
of their advertisement, promotion and sale of their fossil fuels and fossil fuel-derived products.
527.

The co-conspirators’ conduct was and is negligent, reckless and unlawful because

they knew or should have known their actions were substantially certain to interfere with
Plaintiffs’ property rights and interests. Defendants have known for decades, or reasonably
should have known, that their conduct was substantially certain to alter or contribute to
alterations in the climate and is exacerbating climate change.
528.

The co-conspirators’ concerted unlawful actions performed to accomplish their

goal were and are a direct and proximate cause of damages and losses to Plaintiffs. Plaintiffs’
damages and losses include, but are not limited to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

•

costs of responding to, managing and repairing damage from pine beetle and other
pest infestations;

•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
to increases in streamflow rates;

•

costs of repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
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 implement such alternative design and construction; and
•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable.

529.

Pursuant to C.R.S. § 13-21-111.5(4), the co-conspirators consciously conspired

and deliberately pursued a common plan to commit tortious acts and therefore are jointly and
severally liable to Plaintiffs for the fossil fuel activities directed at Colorado.
530.

Wherefore, Plaintiffs pray for an award of damages against Defendants as set

forth below.
V.

RELIEF REQUESTED
531.

Plaintiffs are entitled to the following relief:

532.

Monetary relief to compensate Plaintiffs for their past and future damages and

costs to mitigate the impact of climate change, such as the costs to analyze, evaluate, mitigate,
abate, and/or remediate the impacts of climate change. These costs include, but are not limited
to:
•

costs to analyze and evaluate the future impacts of climate alteration, the response
to such impacts and the costs of mitigating, adapting to or remediating those
impacts;

•

costs associated with wildfire response, management and mitigation;

•

costs of responding to, managing and repairing damage from pine beetle and other
pest infestations;

•

costs associated with increased drought conditions including alternate planting
and increased landscape maintenance costs;

•

costs associated with additional medical treatment and hospital visits necessitated
by extreme heat events, increased allergen exposure and exposure to vector-borne
disease, as well as mitigation measures and public education programs to reduce
the occurrence of such health impacts;

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 •

costs associated with repairing and replacing existing flood control and drainage
measures and repairing flood damage;

•

costs of repair, maintenance, mitigation and rebuilding and replacement of road
systems to respond to the impacts of climate alteration;

•

costs associated with alteration and repair of bridge structures to retain safety due
to increases in streamflow rates;

•

repair of physical damage to buildings owned by Plaintiffs;

•

costs of analysis of alternative building design and construction and costs to
implement such alternative design and construction;

•

loss of income from property owned by Plaintiffs due to reduced agricultural
productivity or lease or rental income while property is unusable;

•

the cost of public education programs concerning responses to climate alteration;
and

•

the cost of reduced employee productivity.

533.

Damages to compensate Plaintiffs for past and reasonably certain future damages,

including, but not limited to, decreased value in water rights; decreased value in agricultural
holdings and real property; increased administrative and staffing costs; monitoring costs; costs of
past mitigation efforts; and all other costs and harms previously described in this Complaint.
534.

Plaintiffs seek remediation and/or abatement of the hazards discussed above by

Defendants by any other practical means.
535.

Pursuant to C.R.S.§ 6-1-113(2), Plaintiffs seek three times the amount of actual

damages sustained, plus the costs of the action together with reasonable attorneys’ fees as
determined by the Court.
536.

Pursuant to C.R.S. § 13-21-111.5(4), Plaintiffs seek a determination that

Defendants consciously conspired and deliberately pursued a common plan to commit tortious

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 acts and therefore are jointly liable to Plaintiffs.
537.

Plaintiffs seek costs and disbursements of this action as permitted by law.

538.

Plaintiffs seek attorneys’ fees as permitted by law.

539.

Plaintiffs seek prejudgment and postjudgment interest as permitted by law.

540.

Additionally, Plaintiffs seek any other applicable remedies and any other relief as

this Court deems just and proper.
541.

Plaintiffs seek to impose liability on Defendants in connection with

misrepresentations about the known dangers of their products, in connection with their marketing
of those products and in connection with the sale of those products. Plaintiffs do not seek to
impose liability, restrain or interfere with Defendants’ ability to participate in public debates
about climate change, or otherwise interfere with Defendants’ speech.
542.

Plaintiffs do not seek to enjoin any oil and gas operations or sales in the State of

Colorado, or elsewhere, or to enforce emissions controls of any kind. Plaintiffs do not seek
damages or abatement relief for injuries to or occurring on federal lands. Plaintiffs do not seek
damages or any relief based on any activity by Defendants that could be considered lobbying or
petitioning of federal, state or local governments.
543.

None of the relief requested is inconsistent with any obligation of the U.S. under

the United Nations Framework Convention on Climate Change, the Paris Agreement or any
other U.S. international commitment.

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 VI.

JURY TRIAL DEMANDED
544.

Plaintiffs demand a trial by jury for all issues triable by a jury.

Dated: June 11, 2018

Respectfully submitted,
/s/ Kevin S. Hannon
Kevin S. Hannon, #16015
DULY AUTHORIZED SIGNATURE OF
KEVIN S. HANNON ON FILE AT THE
HANNON LAW FIRM, LLC
Marco Simons, Pro Hac Vice
D.C. Bar No. 492713
Alison Borochoff-Porte, Pro Hac Vice
NY Bar No. 5482468
Michelle C. Harrison, Pro Hac Vice
D.C. Bar No. 1026582
EarthRights International
1612 K Street NW, #401
Washington, DC 20006
(202) 466-5188
marco@earthrights.org
alison@earthrights.org
michelle@earthrights.org
David Bookbinder, Pro Hac Vice
D.C. Bar No. 455525
Niskanen Center
820 First Street, NE, Suite 675
Washington, DC 20002
dbookbinder@niskanencenter.org

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