Petition for Writ of Certiorari — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.

APPENDIX

TABLE OF CONTENTS

Appendix A:

Appendix B:

Appendix C:

Colorado Supreme Court opinion,

May 12, 2025 .................................................... 1a

Colorado District Court opinion,

May 19, 2022 .................................................. 48a

Colorado Supreme Court order

staying the mandate, May 27, 2025 .......... 140a

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APPENDIX A

THE SUPREME COURT

OF THE STATE OF COLORADO

No. 2025 CO 21

IN RE:

PLAINTIFFS: COUNTY COMMISSIONERS OF BOULDER

COUNTY AND CITY OF BOULDER,

v.

DEFENDANTS: SUNCOR ENERGY USA, INC.; SUNCOR

ENERGY SALES, INC.; SUNCOR ENERGY INC.;

AND EXXON MOBIL CORPORATION

Filed: May 12, 2025

OPINION OF THE COURT

JUSTICE GABRIEL delivered the opinion of the Court.

¶1 Although this case presents substantial issues of

global import, the question before us is narrow: whether

the district court erred in concluding that the common law

tort claims brought by plaintiffs, the County Commissioners of Boulder County and the City of Boulder (collectively, “Boulder”), against defendants, Exxon Mobil Corporation, Suncor Energy USA, Inc., Suncor Energy

Sales, Inc., and Suncor Energy Inc., may proceed under

state law. Specifically, Boulder asserts claims for public

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and private nuisance, trespass, unjust enrichment, and

civil conspiracy, and it seeks damages for the role that defendants’ production, promotion, refining, marketing, and

sale of fossil fuels has allegedly played in exacerbating climate change, which, in turn, has purportedly caused harm

to Boulder’s property and residents. Defendants contend

that these claims are preempted by federal law.

¶2 We now conclude that Boulder’s claims are not

preempted by federal law and, therefore, the district

court did not err in declining to dismiss those claims. Accordingly, we discharge the order to show cause and remand this case to the district court for further proceedings consistent with this opinion. In doing so, we express

no opinion on the ultimate viability of the merits of Boulder’s claims.

I. Facts and Procedural History

¶3 Boulder brought the present action against defendants seeking damages 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.” Specifically, in its

amended complaint, Boulder alleges that it has incurred

and will continue to incur millions of dollars in costs to

protect its property and residents from the impacts of climate change. Boulder contends that these costs should be

shared by defendants “because they knowingly caused

and contributed to 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.” Boulder

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further alleges that defendants have engaged and continue to engage in these activities despite knowing that

the burning of their fossil fuels would exacerbate climate

change and its impacts. And Boulder alleges that, through

their advertising, defendants have for decades intentionally misled the public about the impacts of climate change

and the role that defendants’ fossil fuel products have

played in exacerbating those impacts.

¶4 Based on these factual allegations, Boulder asserts, as pertinent here, causes of action for public nuisance, private nuisance, trespass, unjust enrichment, and

civil conspiracy. Because the precise nature of Boulder’s

allegations is important to our analysis, we discuss those

allegations in some detail.

¶5 In its public nuisance claim, Boulder alleges that

defendants’ fossil fuel activities have contributed to climate change and have interfered with and will continue to

threaten and interfere with public rights in Boulder’s

communities. These rights include the right to use and enjoy public property, spaces, parks, and ecosystems; the

right to public health, safety, emergency management,

comfort, and well-being; and the right to safe and unobstructed travel, transportation, commerce, and exchange.

¶6 In its private nuisance claim, Boulder alleges

that defendants’ actions have substantially and unreasonably interfered with, and will continue to substantially interfere with, Boulder’s use and quiet enjoyment of its

rights to and interests in its real property.

¶7 In its trespass claim, Boulder alleges that defendants’ actions have caused invasions of its property in

the form of floodwaters, fires, hail, rain, snow, wind, and

invasive species, all of which have caused substantial damage to Boulder’s real property.

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¶8 In its unjust enrichment claim, Boulder alleges

that defendants have “profited from the manufacture, distribution and/or sales of fossil fuel products at levels sufficient to alter the climate, including in Colorado,” even

after defendants were aware of the harms resulting from

such actions. Boulder further contends that it has conferred a benefit on defendants by bearing the costs of the

impacts of such climate change.

¶9 Finally, in its civil conspiracy claim, Boulder alleges that defendants and other, unnamed co-conspirators

acted in concert to maintain or increase fossil fuel usage

at levels they knew were sufficient to alter the climate,

while misrepresenting and failing to disclose material information concerning these activities.

¶10 In connection with these causes of action, Boulder seeks monetary damages to compensate it for its past

and future costs to mitigate the impacts of climate change,

including the costs to analyze, evaluate, mitigate, abate,

and otherwise remediate such impacts. These costs include, without limitation, costs associated with wildfire response, management, and mitigation; costs to repair and

replace existing flood control and drainage measures and

to repair flood damage; costs of managing and responding

to increased drought conditions; and costs to repair physical damage to Boulder’s buildings. Boulder does not,

however, seek to enjoin any oil and gas operations or sales

in Colorado or elsewhere. Nor does it seek to enforce

emissions controls of any kind.

¶11 Boulder commenced its action in the Boulder

County District Court. Shortly thereafter, however, defendants removed the case to federal district court, although, on Boulder’s motion, the federal district court ordered the case remanded back to state court. Defendants

appealed the federal court’s remand order, and while their

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appeal was pending, they moved to dismiss the state court

action for lack of personal jurisdiction and failure to state

a claim. The Boulder County District Court, however,

stayed the proceedings before it pending the resolution of

the federal appeal.

¶12 After substantial litigation in the Tenth Circuit

and two certiorari petitions in the United States Supreme

Court, the Tenth Circuit ultimately affirmed the federal

district court’s remand order, and this case resumed in

the Boulder County District Court. See Bd. of Cnty.

Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.)

Inc., 25 F.4th 1238, 1246 (10th Cir. 2022).

¶13 The Boulder County District Court then considered defendants’ pending motions to dismiss. As pertinent

here, in their motion to dismiss for failure to state a claim,

defendants argued that Boulder’s claims were “displaced”

or otherwise preempted by federal law.

¶14 Specifically, defendants contended that Boulder’s claims were governed by the federal common law of

interstate pollution. Because federal legislation had displaced any federal common law right to impose liability

based on fossil fuel emissions and production, however,

defendants asserted that Boulder could not circumvent

such federal legislation, and, thus, Boulder’s federal common law claims were preempted.

¶15 Next, defendants argued that the Clean Air Act

(“CAA”), among other federal enactments, preempted

Boulder’s claims. On this point, defendants argued both

field preemption (contending that Congress had occupied

the field of emissions regulation) and conflict preemption

(contending that Boulder’s claims presented an obstacle

to the enforcement of federal law because those claims

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would interfere with the careful balance struck by Congress between promoting fossil fuel production, on the

one hand, and environmental protection, on the other).

¶16 Finally, defendants contended that the federal

foreign affairs power, which gives the federal government

exclusive authority over foreign affairs, preempted Boulder’s claims because, in defendants’ view, those claims

would impair the federal government’s effective exercise

of foreign policy.

¶17 The district court ultimately rejected each of

these contentions and denied defendants’ motion to dismiss.

¶18 With respect to defendants’ federal common law

preemption argument, the district court disagreed with

defendants’ position for five reasons. First, in the district

court’s view, the CAA displaced the federal common law

of nuisance governing transboundary pollution actions

and, thus, federal common law in this area no longer exists. Second, even if the federal common law persisted,

that law, which governed transboundary pollution actions,

is distinct from Boulder’s claims in the present case.

Third, even if the CAA did not displace federal common

law, the district court perceived no basis to recognize new

federal common law covering Boulder’s state law damages claims. Fourth, defendants had not shown a uniquely

federal interest justifying the invocation of federal common law. And lastly, defendants had not shown a significant conflict between federal interests and Colorado law.

¶19 As to defendants’ contention that the CAA

preempted Boulder’s claims, the district court again was

unpersuaded. In so ruling, the court observed that the

CAA contains no language expressly preempting state

common law tort claims. Nor, the court observed, does the

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CAA completely occupy the field of greenhouse gas

(“GHG”) emissions, a necessary predicate to a claim of

field preemption. And the court was unpersuaded that

Boulder’s claims would impede the CAA’s goals, thus undermining any claim of conflict preemption. On this point,

the court observed that Boulder’s claims, which seek damages and not an injunction, did not pose an obstacle to the

CAA’s regulation of air pollution emissions. Moreover, the

court deemed “notable” that the CAA does not provide a

remedy to Boulder for the claims asserted here.

¶20 Finally, the court rejected defendants’ assertion

that the foreign affairs power preempted Boulder’s claims

because the court found no precedent supporting preemption of claims like those at issue here and defendants had

not shown how Boulder’s claims would compromise the

federal government’s ability to conduct foreign policy.

¶21 Defendants then petitioned this court for an order to show cause under C.A.R. 21, and we issued an order

to show cause.

II. Analysis

¶22 We begin by addressing our jurisdiction under

C.A.R. 21 and setting forth the applicable standard of review. We then turn to the question of whether Boulder’s

claims are preempted by federal law.

A. Jurisdiction and Standard of Review

¶23 The exercise of our original jurisdiction under

C.A.R. 21 lies within our sole discretion. People v. Tafoya,

2019 CO 13, ¶ 13, 434 P.3d 1193, 1195. An original proceeding under C.A.R. 21 is an extraordinary remedy that is

limited in its purpose and availability. Id. As pertinent

here, we have exercised our discretion under C.A.R. 21 to

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hear matters that present issues of significant public importance that we have not previously considered. Id.

¶24 To date, we have not addressed the preemptive

effect of federal law on state common law tort claims for

harms related to climate change. Whether these claims

may proceed against defendants has important implications for Colorado and its citizens. Moreover, other courts

that have addressed similar questions have reached differing conclusions. Compare City & Cnty. of Honolulu v.

Sunoco LP, 537 P.3d 1173, 1181 (Haw. 2023) (concluding

that claims like those at issue in this case were not

preempted), with City of New York v. Chevron Corp., 993

F.3d 81, 85-86 (2d Cir. 2021) (concluding that claims like

those at issue in this case were preempted). Thus, we believe that resolution of this issue warrants the exercise of

our original jurisdiction under C.A.R. 21.

¶25 We review a district court’s ruling on a motion to

dismiss de novo, and in doing so, we apply the same standards as the district court. Sch. Dist. No. 1 in City & Cnty.

of Denver v. Masters, 2018 CO 18, ¶ 13, 413 P.3d 723, 728.

In conducting this review, we accept all allegations of material fact in the complaint as true, and we view the complaint’s allegations in the light most favorable to the plaintiff. Id. To survive a motion to dismiss, a complaint must

state a plausible claim for relief. Warne v. Hall, 2016 CO

50, ¶ 2, 373 P.3d 588, 590.

B. Preemption

¶26 Although the parties’ briefs, in significant part,

seem to talk past one another, the ultimate question before us is whether Boulder’s claims are preempted by federal law. We conclude that they are not.

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1. Federal Common Law

¶27 It is axiomatic that “[t]here is no federal general

common law.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938). The Supreme Court has, however, recognized narrower, more specialized areas of federal common law addressing matters within national legislative power, as directed by Congress and when the basic constitutional

scheme so demands. Am. Elec. Power Co. v. Connecticut,

564 U.S. 410, 421 (2011) (“AEP”). Such matters include

disputes concerning the rights and obligations of the

United States, interstate and international disputes implicating the conflicting rights of states or the United

States’s relations with foreign nations, and admiralty

cases. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451

U.S. 630, 641 (1981).

¶28 One specific area of previously recognized federal common law that is pertinent to the matter now before us concerned “suits brought by one State to abate

pollution emanating from another State.” AEP, 564 U.S.

at 421. In Illinois v. City of Milwaukee, 406 U.S. 91, 103

(1972) (“Milwaukee I”), the Supreme Court explained,

“When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” Milwaukee I thus articulated a federal common law of “nuisance

by water pollution” involving interstate or navigable waters. Id. at 99, 107. The Court noted, however, “It may

happen that new federal laws and new federal regulations

may in time pre-empt the field of federal common law of

nuisance.” Id. at 107.

¶29 Shortly after Milwaukee I was decided, Congress enacted the Federal Water Pollution Control Act

Amendments of 1972, which “established a new system of

regulation under which it is illegal for anyone to discharge

pollutants into the Nation’s waters except pursuant to a

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permit.” City of Milwaukee v. Illinois, 451 U.S. 304, 31011 (1981) (“Milwaukee II”). In light of this legislation, in

Milwaukee II, the Supreme Court concluded that Congress had displaced the federal common law in this area.

Id. at 317-19. In so concluding, the Court explained that

“when Congress addresses a question previously governed by a decision rested on federal common law the

need for such an unusual exercise of lawmaking by federal

courts disappears.” Id. at 314. The Court thus held that no

federal common law remedy was available to respondents

in the case before it. Id. at 332.

¶30 The question remained, however, whether any

federal common law concerning air pollution still existed.

The Supreme Court addressed this issue in AEP, 564 U.S.

at 415. There, the plaintiffs sued several electric power

companies, asserting federal common law public nuisance

claims and seeking to abate defendants’ carbon dioxide

emissions. Id. The Court rejected such claims, holding

that “the Clean Air Act and the EPA actions it authorizes

displace[d] any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired

powerplants.” Id. at 424. The Court went on to explain,

“In light of our holding that the Clean Air Act displaces

federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the

[CAA].” Id. at 429. Because none of the parties had

briefed that issue, however, the Court declined to address

it. Id.

¶31 Since AEP was decided, courts have consistently

reaffirmed its holding that the CAA displaced the federal

common law of nuisance. See, e.g., Rhode Island v. Shell

Oil Prods. Co., 35 F.4th 44, 55 (1st Cir. 2022); Mayor &

City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 206

(4th Cir. 2022); Bd. of Cnty. Comm’rs of Boulder Cnty., 25

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F.4th at 1260-61; Native Vill. of Kivalina v. ExxonMobil

Corp., 696 F.3d 849, 857 (9th Cir. 2012); Honolulu, 537

P.3d at 1181.

¶32 In line with this settled precedent, we, too, conclude that the CAA displaced the federal common law in

this area, and, therefore, federal common law does not

preempt Boulder’s claims here. Instead, we must look to

whether the CAA preempts Boulder’s claims. See Honolulu, 537 P.3d at 1199 (“Simply put, displaced federal common law plays no part in this court’s preemption analysis.

Once federal common law is displaced, the federal courts’

task is to ‘interpret and apply statutory law.’”) (quoting

Nw. Airlines, Inc. v. Transp. Workers Union of Am., 451

U.S. 77, 95 n.34 (1981)); accord Bd. of Cnty. Comm’rs of

Boulder Cnty., 25 F.4th at 1261. We turn to that issue

next.

2. The CAA

¶33 The Supremacy Clause of the United States Constitution provides that federal law “shall be the supreme

Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.” U.S. Const.

art. VI, cl. 2. Accordingly, it has long been settled that

Congress has the power to preempt state law. FuentesEspinoza v. People, 2017 CO 98, ¶ 21, 408 P.3d 445, 448.

¶34 In determining whether a state law is

preempted, our analysis is guided by two tenets: (1) Congress’s intent to preempt controls; and (2) courts will not

presume that federal law supersedes the states’ historic

police powers unless the law reveals Congress’s clear and

manifest purpose to do so. Id. at ¶ 22, 408 P.3d at 448. This

presumption against preemption applies with particular

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force when, as here, the law alleged to be preempted concerns a field that states have traditionally occupied. See

Wyeth v. Levine, 555 U.S. 555, 565 & n.3 (2009); see also

Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 510 (5th

Cir. 1999) (noting that courts interpreting federal statutes

pertaining to subjects traditionally governed by state law

are reluctant to find preemption and that “state common

law traditionally governs nuisances”). Case law has also

suggested that “[t]he presence of a savings clause counsels against a finding that Congress intended to sweep

aside all state claims in a particular area.” Pinney v.

Nokia, Inc., 402 F.3d 430, 450 (4th Cir. 2005).

¶35 Against this backdrop, our case law has observed

that federal preemption can take three forms: express

preemption, field preemption, and conflict preemption.

Fuentes-Espinoza, ¶ 23, 408 P.3d at 448.

¶36 A state law is expressly preempted when a federal statute contains an express preemption provision. Id.

¶37 A state law is preempted under principles of field

preemption when Congress intended the federal government to occupy a field of law exclusively. English v. Gen.

Elec. Co., 496 U.S. 72, 79 (1990). Such an intent may be

inferred when (1) Congress has adopted a framework of

regulation that is so pervasive that Congress has left no

room for states to supplement it or (2) a federal interest is

so dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject.

Fuentes-Espinoza, ¶ 25, 408 P.3d at 448.

¶38 Finally, a state law is preempted under conflict

preemption principles when a state law actually conflicts

with federal law. English, 496 U.S. at 79. We have recognized two types of conflict preemption: impossibility

preemption and obstacle preemption. Fuentes-Espinoza,

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¶ 26, 408 P.3d at 449. Impossibility preemption applies

when (1) compliance with both federal and state law is

physically impossible, id.; (2) state law penalizes what federal law requires, see Geier v. Am. Honda Motor Co., 529

U.S. 861, 873 (2000); or (3) state law directly conflicts with

federal law, see Am. Tel. & Tel. Co. v. Cent. Off. Tel., Inc.,

524 U.S. 214, 227-28 (1998). Obstacle preemption, in turn,

applies when the state law at issue stands as an obstacle

to the accomplishment and execution of Congress’s purposes and objectives. Fuentes-Espinoza, ¶ 26, 408 P.3d at

449. Notably, the Supreme Court has found obstacle

preemption to apply in only a small number of cases,

namely, when (1) the federal legislation at issue involves a

uniquely federal area of regulation (e.g., foreign affairs,

sanctioning fraud on federal agencies, and regulating

maritime vessels) or (2) Congress has deliberately chosen

to preclude state regulation because a federal law struck

a particular balance of interests that would be disturbed

or impeded by state regulation (e.g., when federal safety

regulations sought a gradual phase-in of airbags but a

state law required the immediate installation of such airbags). In re Volkswagen “Clean Diesel” Mktg., Sales

Pracs., & Prods. Liab. Litig., 959 F.3d 1201, 1212-13 (9th

Cir. 2020).

¶39 None of these forms of preemption support a determination that the CAA preempts Boulder’s claims in

this case.

¶40 Express preemption is not implicated because

the CAA contains no provision expressly preempting

state common law tort claims. Honolulu, 537 P.3d at 1203.

¶41 Similarly, field preemption is not implicated because, even if Boulder’s claims could be construed as seeking to regulate emissions, which, as we explain below, they

do not, Congress has not completely occupied the field of

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emissions regulation. Id. at 1204. To the contrary, under

the CAA, states retain regulatory authority to implement,

maintain, and enforce CAA emissions standards through

state implementation plans. 42 U.S.C. § 7410; Honolulu,

537 P.3d at 1204. Moreover, “[t]he CAA contains two savings clauses that preserve state and local governments’ legal right to impose standards and limitations on air pollution that are stricter than national requirements.” Baltimore, 31 F.4th at 216 (citing 42 U.S.C. §§ 7416, 7604(e)).

Section 7416 preserves “the right of any State or political

subdivision thereof to adopt or enforce (1) any standard

or limitation respecting emissions of air pollutants or (2)

any requirement respecting control or abatement of air

pollution,” as long as the standards are no less stringent

than the CAA. Section 7604(e), in turn, preserves “any

right which any person (or class of persons) may have under any statute or common law to seek enforcement of any

emission standard or limitation or to seek any other relief.” Thus, the CAA does not completely occupy the field

of emissions regulation, and Boulder’s claims are not

barred under field preemption principles.

¶42 Lastly, Boulder’s claims are not barred under

conflict preemption principles. Impossibility preemption

is inapplicable because defendants have not cited, nor

have we seen, any facts to indicate that it is impossible to

comply with both the CAA and state tort law, that state

tort law penalizes what the CAA requires, or that state

tort law directly conflicts with the CAA. Honolulu, 537

P.3d at 1207 (concluding that impossibility preemption did

not apply to claims similar to those presented here).

¶43 Obstacle preemption is likewise inapplicable. Defendants have not identified any way in which state tort

liability would frustrate the CAA’s purposes, and we perceive none. The CAA itself makes clear that “air pollution

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prevention . . . and air pollution control at its source is [sic]

the primary responsibility of States and local governments.” 42 U.S.C. § 7401(a)(3). Moreover, the CAA’s legislative declaration provides that one of the CAA’s principal purposes is to protect and enhance the quality of this

country’s air resources in order to promote the public

health and welfare, as well as the productive capacity of

our population. 42 U.S.C. § 7401(b). The CAA primarily

achieves these goals by “regulat[ing] pollution-generating

emissions from both stationary sources, such as factories

and powerplants, and moving sources, such as cars,

trucks, and aircraft.” Util. Air Regul. Grp. v. EPA, 573

U.S. 302, 308 (2014). Nothing in Boulder’s damages claims

would interfere with these purposes.

¶44 Nor do Boulder’s claims involve uniquely federal

areas of regulation. To the contrary, nuisance abatement

issues and the other torts that Boulder has alleged in this

case have been deemed traditional state law matters implicating important state interests. See, e.g., Lambeth v.

Miller, 363 F. App’x 565, 568 (10th Cir. 2010) (unpublished

opinion) (addressing nuisance abatement issues); Rushing, 185 F.3d at 510 (addressing nuisance actions); Freeman v. Grain Processing Corp., 848 N.W.2d 58, 76 (Iowa

2014) (addressing nuisance, negligence, and trespass

claims). And litigating Boulder’s claims would not upset

any balance set by Congress because Boulder’s claims do

not seek to impose liability for activities that the CAA regulates. See Baltimore, 31 F.4th at 216 (concluding that

tort claims similar to those presented here did not involve

the regulation of emissions); accord Honolulu, 537 P.3d at

1205.

¶45 On each of these points, the Hawai’i Supreme

Court’s decision in Honolulu, 537 P.3d at 1195-1207, is

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substantially on point. There, the City and County of Honolulu brought damages claims for public nuisance, private

nuisance, strict liability failure to warn, negligent failure

to warn, and trespass against a number of oil and gas producers. Id. at 1180. The defendants there made many of

the same preemption arguments that defendants make

here. Id. at 1181. The court rejected each of these arguments, however, concluding, first, that the CAA displaced

federal common law governing interstate pollution damages suits and, thereafter, federal common law did not

preempt state law. Id. at 1181, 1195-1202. The court then

proceeded to address whether the CAA preempted the

plaintiffs’ claims and concluded, along the same lines discussed above, that it did not. Id. at 1181-82, 1202-07.

¶46 The Fourth Circuit reached the same conclusions

on these preemption questions, albeit in a different procedural context, in Baltimore, 31 F.4th at 204-07, 215-17.

¶47 The analyses in these cases mirror our own, and

we find the cases persuasive and thus follow them here.

¶48 Accordingly, we conclude that Boulder’s claims

are not preempted by either federal common law or the

CAA. In so concluding, we are not persuaded by defendants’ myriad arguments to the contrary. We end by addressing those arguments.

3. Defendants’ Contentions

¶49 Defendants principally appear to contend that

Boulder’s state law claims assert what were formerly federal common law claims involving interstate pollution and

although federal legislation has since displaced the federal common law in this area, federal common law or federalism concerns arising from the United States Constitution continue to operate to bar Boulder’s claims. We disagree.

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¶50 As an initial matter, it is unclear whether the essential premise of defendants’ argument is correct. Specifically, although defendants assert that the federal common law would have governed Boulder’s claims, that does

not appear to be accurate. As discussed above, the federal

common law applied to “suits brought by one State to

abate pollution emanating from another State,” and such

actions involved claims against the pollution emitters

themselves, thus implicating the regulation of interstate

pollution. AEP, 564 U.S. at 418, 421 (emphasis added); see

also Milwaukee I, 406 U.S. at 93, 104 (discussing “[t]he

application of federal common law to abate a public nuisance in interstate or navigable waters”). Boulder, however, has not brought an action against a pollution emitter

to abate pollution. Rather, it seeks damages from upstream producers for harms stemming from the production and sale of fossil fuels. Defendants cite no Supreme

Court case in which the Court applied the federal common

law in this setting. Accordingly, even if the federal common law in this area still existed, it would not appear to

apply here. See Honolulu, 537 P.3d at 1201.

¶51 Even accepting defendants’ premise that the

prior federal common law would have governed Boulder’s

claims, however, defendants cite no applicable authority

supporting the proposition that once federal common law

exists, the structure of the Constitution precludes the application of state law even when that common law no

longer exists. The cases on which defendants rely for this

theory do not support it. For example, defendants assert

that Franchise Tax Board v. Hyatt, 587 U.S. 230, 246

(2019), where the Court said that the Constitution implicitly forbids states from applying their own laws in matters

involving interstate controversies, supports their position.

But in that case, the issue presented was “whether the

Constitution permits a State to be sued by a private party

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without its consent in the courts of a different State.” Id.

at 233. No such issue of state sovereignty is presented in

this case. Nor does this case involve a state’s applying its

own law in an interstate controversy that is necessarily

controlled by federal law.

¶52 At root, defendants appear to be arguing that a

vague federal interest over interstate pollution, climate

change, and energy policy must preempt Boulder’s

claims. As the Supreme Court explained in Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019) (plurality

opinion), however, “Invoking some brooding federal interest or appealing to a judicial policy preference should

never be enough to win preemption of a state law; a litigant must point specifically to ‘a constitutional text or a

federal statute’ that does the displacing or conflicts with

state law.” (Quoting Puerto Rico Dep’t of Consumer Affs.

v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988)). Here,

defendants point to no federal statute or constitutional

text that preempts Boulder’s state law claims, and

“[t]here is no federal pre-emption in vacuo, without a constitutional text or a federal statute to assert it.” Puerto

Rico Dep’t of Consumer Affs., 485 U.S. at 503.

¶53 Nor are we persuaded by defendants’ argument

that state law claims previously preempted by federal

common law may proceed only to the extent authorized by

federal statute. For the reasons discussed above, we are

not convinced that federal common law would have barred

Boulder’s claims here. Even accepting, for purposes of argument, the contrary premise, however, we are still unconvinced. In support of their position, defendants principally rely on International Paper Co. v. Ouellette, 479

U.S. 481, 492 (1987), City of New York, 993 F.3d at 99, and

People of State of Illinois v. City of Milwaukee, 731 F.2d

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403, 411 (7th Cir. 1984) (“Milwaukee III”). These cases

are either inapposite or unconvincing.

¶54 The question presented in Ouellette, 479 U.S. at

491, was whether the Clean Water Act preempted Vermont common law to the extent that that law might impose liability on a New York point source. In addressing

this question, the Court began by noting the pervasive

program of water pollution regulation set forth in the

Clean Water Act and then turned to the preemption question presented. Id. at 492. It is in that context that the

Court observed that “the only state suits that remain

available are those specifically preserved by the Act,” and

the Court made this statement by way of introducing the

very type of preemption analysis that we have conducted

above. Id. at 492-97. Accordingly, when read in context,

the Court’s statement, on which defendants heavily rely,

merely posed the question of whether the state nuisance

action at issue was preempted by the Clean Water Act.

The Court did not, as defendants suggest, require express

authorization of a state common law action in the Act itself. Had it done so, it would have had no need to conduct

the extensive preemption analysis that followed its statement.

¶55 In City of New York, 993 F.3d at 99, the Second

Circuit opined that state common law tort claims similar

to those at issue here were preempted because they would

have been governed by the federal common law and “‘resort[ing] to state law’ on a question previously governed

by federal common law is permissible only to the extent

‘authorize[d]’ by federal statute.” (Alterations in original)

(quoting Milwaukee III, 731 F.2d at 411.) As the Hawai’i

Supreme Court stated in Honolulu, 537 P.3d at 1199, however, the Second Circuit’s preemption analysis “engages

in backwards reasoning.”

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¶56 The Second Circuit first analyzed whether federal common law would have preempted New York’s state

law claims, and the court concluded that it would have

done so. City of New York, 993 F.3d at 90-95. The court

then turned to the question of whether the CAA

preempted the federal common law, and after concluding

that it did, the court opined that the CAA’s displacement

of the federal common law did not resuscitate New York’s

state law claims. Id. at 95-99. Accordingly, in the Second

Circuit’s view, federal common law barred New York’s

state law claims, and although the CAA displaced that federal common law, the common law retained its preemptive

force.

¶57 Unlike the Second Circuit, for the reasons set

forth above, we believe that the proper analysis is for a

court first to determine whether any federal common law

exists at all because “displaced federal common law plays

no part in this court’s preemption analysis.” Honolulu,

537 P.3d at 1199. If the court finds that federal legislation

has displaced federal common law, then the court looks to

whether the legislation preempted state law claims. Thus,

contrary to the Second Circuit’s conclusions, which mirrored those of the Seventh Circuit in Milwaukee III, 731

F.2d at 411, the Supreme Court explained in AEP, 564

U.S. at 429, that after displacement of federal common law

by statute, “the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal

Act.” At no point did the Supreme Court suggest that the

federal statute must specifically authorize claims under

state law. Id. Thus, defendants’ reliance on City of New

York and Milwaukee III is likewise misplaced.

¶58 For similar reasons, we reject defendants’ contention that Boulder’s action is, in essence, an attempt to

regulate GHG emissions and is therefore preempted. As

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a factual matter, Boulder’s claims do not seek to regulate

GHG emissions (the claims do not seek compensation for

any GHG emissions by defendants themselves but rather

focus on defendants’ upstream production activities). Rather, they seek compensation for allegedly tortious conduct that the CAA does not address. See Baltimore, 31

F.4th at 216 (concluding, in circumstances similar to those

present here, that the plaintiffs’ state law claims did not

involve the regulation of emissions); Honolulu, 537 P.3d

at 1205 (concluding that because the plaintiffs’ state law

claims did not seek to regulate emissions, those claims did

not conflict with the CAA).

¶59 On this point, we are not persuaded by defendants’ reliance on Kurns v. Railroad Friction Products

Corp., 565 U.S. 625, 637 (2012). In Kurns, the Supreme

Court observed that “‘regulation can be . . . effectively exerted through an award of damages,’ and ‘[t]he obligation

to pay compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling policy.’” Id. (omission and alteration in original) (quoting San

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247

(1959)). The Kurns Court made this statement, however,

in the context of rejecting the plaintiffs’ assertion that although the Locomotive Inspection Act occupied the entire

field of locomotive equipment regulation, that Act’s

preemptive scope did not extend to state common law

claims, as opposed to state legislation or regulation. Id.

The case before us presents no similar question as to

whether Boulder may assert common law claims in an

area in which Congress has chosen to occupy the field.

Moreover, accepting defendants’ argument that a large

damages award is equivalent to regulation and thus must

be preempted could lead to the preemption of many traditional state law tort claims simply because they might

lead to a large damages award. See Honolulu, 537 P.3d at

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1202. But a lawsuit does not amount to regulation merely

because it might have an impact on how actors in a given

field behave. See id.

¶60 Finally, we are unpersuaded by defendants’ argument that the federal foreign affairs power bars Boulder’s claims.

¶61 The Supreme Court has interpreted the United

States Constitution to vest power over foreign affairs exclusively with the federal government. United States v.

Pink, 315 U.S. 203, 233 (1942); Hines v. Davidowitz, 312

U.S. 52, 63 (1941). The foreign affairs power may thus

preempt state laws that intrude on the federal government’s exclusive power over foreign affairs. Zschernig v.

Miller, 389 U.S. 429, 440-41 (1968).

¶62 In this context, the Supreme Court has observed

that the foreign affairs power may preempt state laws via

either conflict preemption or field preemption. Am. Ins.

Ass’n v. Garamendi, 539 U.S. 396, 419-20, 419 n.11 (2003);

see also Movsesian v. Victoria Versicherung AG, 670 F.3d

1067, 1071 (9th Cir. 2012) (relying on Garamendi). But

neither applies here.

¶63 Boulder’s claims are not barred by principles of

conflict preemption because defendants do not identify

any express foreign policy of the federal government that

conflicts with state tort law, and we are not aware of any.

Nor do defendants indicate how Boulder’s claims pose an

obstacle to our federal government’s dealings with any

foreign nation. See Baltimore, 31 F.4th at 213-14 (concluding that Baltimore’s state law claims, which are similar to

Boulder’s claims in the present case, were not barred by

foreign affairs conflict preemption because the defendants had not identified any express foreign policy that

conflicted with Baltimore’s state law claims, nor had the

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defendants shown that Baltimore’s claims posed an obstacle to the federal government’s dealings with foreign nations).

¶64 As to field preemption, in the context of foreign

affairs, courts have concluded that state laws may be

barred if they “intrude[] on the field of foreign affairs

without addressing a traditional state responsibility.”

Movsesian, 670 F.3d at 1072. Although the doctrine of foreign affairs field preemption is “rarely invoked,” id. at

1075, the Supreme Court has observed that it applies in

instances when a state effectively attempts to establish its

own foreign policy or when a state law has more than some

incidental effect on foreign affairs, see Zschernig, 389 U.S.

at 434, 441.

¶65 In Movsesian, 670 F.3d at 1071-77, the Ninth

Circuit applied a two-step analysis that it had articulated

in its prior case law to determine whether the foreign affairs power preempted a state statute. Under this analysis, a court must first ask whether the state law “concerned an area of traditional state responsibility,” which

required the court to inquire into the statute’s “real purpose.” Id. at 1074. If the statute at issue did not address

an area of traditional state responsibility, then the court

must consider whether the statute “intruded on a power

expressly or impliedly reserved by the Constitution to the

federal government.” Id. In the case before it, the court

concluded that the state statute at issue did not concern

an area of traditional state responsibility and that the

statute intruded on the federal government’s exclusive

powers by having more than an incidental or indirect effect on foreign affairs. Id. at 1075-76. Accordingly, the

statute was preempted. Id. at 1077.

¶66 Applying these principles here, we conclude that

Boulder’s claims are not barred by foreign affairs field

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preemption. As discussed above, the torts alleged in this

case involve areas of traditional state responsibility.

Moreover, we perceive no manner in which, through its

tort claims, Boulder is seeking to implement foreign policy. Nor have defendants demonstrated how Boulder’s

claims intrude on any power over foreign policy expressly

or implicitly reserved to the federal government.

¶67 In so concluding, we are not persuaded by defendants’ assertion that allowing this action to proceed

would impair the effective exercise of this country’s foreign policy by regulating global GHG emissions. As discussed above, Boulder’s claims do not seek to regulate

GHG emissions. See Baltimore, 31 F.4th at 214 (concluding that Baltimore’s state law claims, which are similar to

Boulder’s claims in this case, were not field preempted by

the foreign affairs power because those claims did not involve any allegations that developed foreign policies with

other countries and did not undermine the federal government in the international arena but, at best, involved an

intersection between state law and private, international

companies).

¶68 In sum, defendants’ arguments do not convince

us that federal law preempts Boulder’s state law claims in

this case.

III. Conclusion

¶69 For these reasons, we conclude that the district

court correctly concluded that federal law did not

preempt Boulder’s claims and that those claims could

therefore proceed under state law.

¶70 Accordingly, we discharge the order to show

cause and remand this case to the district court for further

proceedings consistent with this opinion. In so ruling, we

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express no opinion on the ultimate viability of the merits

of Boulder’s claims.

JUSTICE SAMOUR, joined by JUSTICE BOATRIGHT,

dissenting.

¶71 The Pledge of Allegiance states that the United

States of America is “one Nation under God, indivisible.”

4 U.S.C. § 4. This language was particularly meaningful

when it was initially conceived in 1892 because, prior to

the Civil War, the question of whether a state could withdraw from the Union had been hotly debated and remained unresolved. See Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 6 n.1 (2004). Of course, in 2025, there

is no dispute about our status: We are but one indivisible

nation. Yet, the majority in this case gives Boulder, Colorado, the green light to act as its own republic.1 More specifically, the majority concludes that Boulder may prosecute state-law claims that will both effectively regulate interstate air pollution and have more than an incidental effect on foreign affairs. And, alarmingly, the majority’s decision isn’t cabined to Boulder—all other Colorado municipalities may bring such claims. Indeed, at least one already has. See Comm’rs of San Miguel Cnty. v. Suncor

Energy, No. 21CV150 (Dist. Ct., City & Cnty. of Denver).

¶72 Boulder’s damages claims against Exxon Mobil

Corporation and three Suncor Energy companies (collectively, “the energy companies”) are based on harms the

State of Colorado has allegedly suffered as a result of

global climate change. According to Boulder, by producing, promoting, refining, marketing, and selling fossil

1

I use “Boulder” to collectively refer to the plaintiffs, the City of

Boulder and the County Commissioners of Boulder County.

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fuels in the United States and globally, the energy companies have played and continue to play a substantial role

in increasing the concentration of greenhouse gases

(“GHGs”) in the atmosphere, thereby inducing changes to

the climate worldwide. The majority decides that, since

any federal common law in this area was displaced by the

Clean Air Act (“CAA”), the appropriate test to determine

whether Boulder’s state-law claims may proceed is one of

ordinary statutory preemption. Maj. op. ¶ 32. After analyzing the claims under that ill- suited framework, the majority holds that the CAA does not preempt them. Id. at

¶ 2; see also City & Cnty. of Honolulu v. Sunoco LP, 537

P.3d 1173, 1199-1203 (Haw. 2023).

¶73 But ordinary preemption in this case fits like a

shoe three sizes too small. State law has historically been

incompetent to address claims seeking redress for interstate and international air pollution—for good reason:

Such claims implicate “uniquely federal interests,” Boyle

v. United Techs. Corp., 487 U.S. 500, 504 (1988) (quoting

Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630,

640 (1981)), necessitating a “uniform rule of decision,” Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972)

(“Milwaukee I”). Had Boulder’s state-law claims been

raised prior to the CAA’s enactment, they would have

been precluded under federal common law.

¶74 And simply because federal common law relating

to GHG emissions has been displaced by statute doesn’t

mean that the conditions that made state law inappropriate to govern these claims in the past have vanished into

thin air. In other words, Congress’s decision to displace

federal common law and to take control of this area did

not suddenly render state law competent to regulate interstate and international air pollution. Nothing in the

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CAA reflects that Congress intended the result the majority reaches here.

¶75 Because state law remains incompetent to regulate interstate and international air pollution, I disagree

that Boulder can prosecute its claims. Unlike the Blue

Fairy that brought Pinocchio to life, the CAA did not magically breathe life into state-law tort claims that had been

as lifeless as a wooden puppet.

¶76 Notably, an ordinary preemption analysis includes a presumption against preemption because it applies in cases in which state law has traditionally occupied

the field. In such cases, I can understand why a presumption against preemption makes sense. In a case like this

one, however, where state law has not traditionally occupied the field, the presumption is counterintuitive.

¶77 In the end, the majority arrives at the wrong result because it applies the wrong test. And, in doing so,

the majority disregards the principles underlying federal

common law that made state law incompetent to govern in

this area in the first place. See Maj. op. ¶ 32. Indeed, the

majority deems federal common law completely irrelevant to the analysis and thus treats it as though it never

existed. Id. Unlike the majority, I don’t read our Supreme

Court’s relevant jurisprudence as supporting that approach.

¶78 In my view, the appropriate inquiry with respect

to the interstate aspect of Boulder’s claims is whether the

CAA affirmatively authorizes them. See City of New York

v. Chevron Corp., 993 F.3d 81, 99 (2d Cir. 2021) (holding,

in a similar case, that the CAA doesn’t “authorize” statelaw claims). I would conclude that it does not. And, as it

relates to the international aspect of Boulder’s claims, I

would conclude that the federal government’s primacy in

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foreign affairs precludes them. I would thus dismiss all of

Boulder’s claims.

¶79 I am concerned that permitting Boulder to proceed with its claims will interfere with both our federal

government’s regulation of interstate air pollution and

our federal government’s foreign policies regarding air

pollution. Because there are numerous other local governments within the United States doing just what Boulder

has done (and yet others that will undoubtedly follow suit

in the future), and because multiple out-of-state courts

have now reached the conclusion my colleagues in the majority do in this case, I am worried that we are headed for

regulatory chaos. Considering that ours is “one [indivisible] Nation,” I don’t believe that this free-for-all approach

is what our Supreme Court intended in the cases cited by

the majority.

¶80 I would make the order to show cause absolute

and nip Boulder’s state-law claims in the bud. Therefore,

I respectfully dissent.

I. Federal Common Law Historically Governing Interstate Air Pollution Disputes Is Not Distinguishable

¶81 My jumping-off place is a discussion of federal

common law because it remains relevant after its displacement by the CAA. There are compelling reasons why interstate air pollution has not historically been a state-law

field, and those reasons remain true after the enactment

of the CAA. The majority skips over this important step

in the analysis because it mistakenly reviews the question

before us under ordinary preemption. However, since interstate air pollution is a field the states have not tradi-

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tionally occupied, ordinary preemption is a fish out of water. And, as I show in this section, the majority’s attempt

to otherwise distinguish federal common law is futile.

¶82 “There is no federal general common law.” Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). However,

federal courts have developed common law in limited, specialized areas involving “‘uniquely federal interests’” that

“are so committed by the Constitution and laws of the

United States to federal control that state law is preempted and replaced, where necessary, by federal law of

a content prescribed (absent explicit statutory directive)

by the courts.” Boyle, 487 U.S. at 504 (quoting Tex. Indus., Inc., 451 U.S. at 640).

¶83 Where there is federal common law, the application of state law is precluded. See City of Milwaukee v.

Illinois, 451 U.S. 304, 313 n.7 (1981) (“Milwaukee II”).

Disputes in these narrow categories cannot “be resolved

under state law, either because the authority and duties

of the United States as sovereign are intimately involved

or because the interstate or international nature of the

controversy makes it inappropriate for state law to control.” Tex. Indus., Inc., 451 U.S. at 641. Accordingly, there

“must be a conflict between [a] federal interest and . . .

state law” to justify the development of federal common

law. City of New York, 993 F.3d at 90. But that conflict

need not be “as sharp as that which must exist for ordinary pre-emption when Congress legislates ‘in a field

which the [s]tates have traditionally occupied.’” Boyle,

487 U.S. at 507 (emphasis added) (quoting Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

¶84 The control of “ambient or interstate” air and water pollution was, historically, one of those inherently federal categories that was governed by federal common law

and where state law could not apply. Milwaukee I, 406

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U.S. at 103; see also Int’l Paper Co. v. Ouellette, 479 U.S.

481, 492 (1987) (“[T]he control of interstate pollution is

primarily a matter of federal law.”). In fact, the Supreme

Court has recognized that “[e]nvironmental protection,”

in general, “is undoubtedly an area ‘within national legislative power,’ one in which federal courts may fill in ‘statutory interstices,’ and, if necessary, even ‘fashion federal

law.’” Am. Elec. Power Co. v. Connecticut, 564 U.S. 410,

421 (2011) (“AEP”) (quoting Henry J. Friendly, In Praise

of Erie—And of the New Federal Common Law, 39

N.Y.U. L. Rev. 383, 421-22 (1964)). Fashioning federal

common law was certainly necessary to address transboundary pollution. See Milwaukee I, 406 U.S. at 105 n.6.

¶85 Prior to the enactment of the CAA and the Clean

Water Act (“CWA”), federal courts employed federal

common law to resolve numerous suits brought by one

state to abate pollution originating from another state.

See, e.g., id. at 107-08 (remitting to the district court, with

instructions to apply federal common law, a public nuisance suit brought by Illinois to abate pollution discharges

into Lake Michigan); Georgia v. Tenn. Copper Co., 240

U.S. 650, 650-51 (1916) (ordering a private copper company in Tennessee to limit sulfur emissions that caused

harm in Georgia); Missouri v. Illinois, 180 U.S. 208, 24143 (1901) (allowing Missouri to sue to enjoin Chicago from

discharging sewage into interstate waters); see also City

of New York, 993 F.3d at 91 (listing “a mostly unbroken

string of cases [that] applied federal law to disputes involving interstate air or water pollution”). They did so

based on “an overriding federal interest in the need for a

uniform rule of decision” or because the controversy in

question “touche[d] basic interests of federalism.” Milwaukee I, 406 U.S. at 105 n.6.

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¶86 The interstate nature of the alleged pollution in

the above-referenced cases constituted an overriding federal interest necessitating “a uniform rule of decision.”

See id. (explaining that “the pollution of a body of water

such as Lake Michigan bounded, as it is, by four States”

presents “demands for applying federal law”); Tex. Indus., Inc., 451 U.S. at 641 (noting that “the interstate or

international nature of [a] controversy [can] make[] it inappropriate for state law to control”). Air pollution and

water pollution both can move across state boundaries

without difficulty and are not always easy to track, making their governance by different local standards difficult,

if not downright impossible.

¶87 Before the CAA saw the light of day, federal common law conflicted with, and precluded, state-law claims

to redress interstate air pollution. For that reason, Boulder could not have brought its claims under federal common law.

¶88 But Boulder whistles past the federal-commonlaw graveyard, maintaining that its claims are distinguishable from those which federal common law historically dealt with in the interstate pollution arena. I disagree.

¶89 True, the historical interstate air pollution case

law developed by federal courts did not focus on GHG

emissions specifically. But GHG emissions certainly possess the “ambient” and “interstate” character that would

have necessitated, and still does necessitate, “a uniform

rule of decision.” Milwaukee I, 406 U.S. at 103, 105 n.6. In

fact, GHG emissions may be the most “interstate” type of

air pollution there is, given the emissions’ ubiquitous nature, sources, and harms. See California v. BP P.L.C.,

Nos. C 17-06011-WHA & C 17-06012-WHA, 2018 WL

32a

1064293, at *3 (N.D. Cal. Feb. 27, 2018) (“If ever a problem cried out for a uniform and comprehensive solution, it

is the geophysical problem [of climate change], a problem

centuries in the making . . . .”), vacated and remanded,

City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020).

¶90 Like the district court, however, my colleagues in

the majority try to sideline federal common law by concluding that Boulder is not seeking to “abate” or regulate

out-of-state GHG emissions. Maj. op. ¶ 50. I beg to differ.

The majority’s attempt to differentiate between what it

perceives as the scope of historical federal common law—

abatement suits that regulate interstate air pollution—

and Boulder’s suit—which the majority perceives as a

modest tort action for monetary remediation—falls short.

See id. The thrust of this contention is that a tort suit for

damages does not implicate the distinctive federal interests that a suit more explicitly regulating out-of-state air

pollution does. And therefore, the argument goes, there is

no need for a “uniform rule of decision” in this area. Milwaukee I, 406 U.S. at 105 n.6.

¶91 While Boulder’s state-law claims masquerade as

tort claims for damages, a closer look at the substance of

those claims’ allegations reveals that Boulder seeks to effectively abate or regulate interstate emissions. See City

of Boulder v. Pub. Serv. Co. of Colo., 2018 CO 59, ¶ 20, 420

P.3d 289, 294 (“[W]e must look to the substance, not the

form, of [the] complaint.”). To start, Boulder’s allegations

undoubtably concern interstate GHG emissions. I recognize that Boulder emphasizes in its amended complaint

that it “do[es] not seek to . . . enforce emissions controls of

any kind.” But in the next breath, Boulder acknowledges,

as it must, that its alleged damages stem directly from

such emissions. Boulder has sued the energy companies

for the role their fossil fuel production and sales allegedly

33a

“played and continue[] to play in causing . . . alteration of

the climate.” (Emphasis added.) The causal link between

the energy companies’ actions and Boulder’s alleged damages is global GHG emissions. As the Second Circuit observed, “Artful pleading cannot transform the . . . complaint into anything other than a suit over global [GHG]

emissions. It is precisely because fossil fuels emit

[GHGs]—which collectively ‘exacerbate global warming’—that the City is seeking damages.” City of New

York, 993 F.3d at 91. This applies with equal force to Boulder’s suit here.

¶92 In yet another attempt to treat federal common

law as chopped liver, the majority, Maj. op. ¶ 50, and Boulder characterize the claims as not being against emitters,

to which federal common law has applied in the past, but

rather against companies higher in the chain of production. However, that distinction is neither here nor there—

the bottom line is that this suit is about the alleged GHG

emissions from the energy companies, even if the energy

companies are actually a few steps removed from the

physical release of the pollutants.

¶93 Further stripping away the amended complaint’s

clever language confirms that this case is about abating

and regulating global emissions. The amended complaint

explicitly states that the energy companies “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.”

(Emphases added.) It then requests, among other things,

“remediation and/or abatement of the hazards discussed

above by [the energy companies] by any other practical

means.” (Emphasis added.)

¶94 Boulder’s requested relief will inevitably impose

a limitation on GHG emissions. An award of damages, just

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like abatement, can “effectively exert[]” regulation, no

matter how the relief is framed or viewed. Kurns v. R.R.

Friction Prods. Corp., 565 U.S. 625, 637 (2012) (quoting

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236,

247 (1959)). The “obligation to pay compensation can be,

indeed is designed to be, a potent method of governing

conduct and controlling policy.” Id. (quoting Garmon, 359

U.S. at 247); see also Ouellette, 479 U.S. at 498 n.19 (declining “to draw a line” between different types of relief in

evaluating the preemptive scope of the CWA because, as

a result of the assessed damages, a party “might be compelled to adopt different or additional means of pollution

control from those required by the [CWA], regardless of

whether the purpose of the relief was compensatory or

regulatory”). Make no mistake: Boulder looks to curb the

energy companies’ conduct by hitting them where it

hurts—their wallets.

¶95 In short, Boulder’s claims target GHG emissions

from the energy companies with a goal that’s beyond compensatory. Therefore, I disagree with the majority that

“Boulder . . . has not brought an action . . . to abate pollution” and that this case is not similar, in relevant ways, to

cases historically governed by federal common law. Maj.

op. ¶ 50. Try as it might, the majority cannot distance this

case from federal common law.2 And, as I explain next,

federal common law remains relevant to the analysis after

the enactment of the CAA. The majority’s failure to apprehend this is what ultimately leads it astray: It forces a

square peg in a round hole by applying an ordinary

preemption analysis.

2

This suit cannot be construed to be regulating only in-state conduct, which has not been historically covered by federal common law.

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II. The Appropriate Analysis Is Whether the CAA Authorizes Boulder’s Claims Relating to Interstate

GHG Emissions

¶96 I agree with my colleagues in the majority that

federal common law in this area has been displaced by the

CAA. See Maj. op. ¶¶ 31-32; AEP, 564 U.S. at 424-25; Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849,

857-58 (9th Cir. 2012). But I part ways with them on their

view that the relevance of federal common law to matters

covered by the CAA has taken its last breath. See Maj. op.

¶32. Following Congress’s passage of the CAA, the logic

that sparked federal common law continues to be alive and

kicking.

¶97 That rationale was not abruptly rendered irrelevant when Congress passed the CAA, and the majority

points to no binding authority that dictates otherwise. After all, where “federal common law exists, it is because

state law cannot be used,” Milwaukee II, 451 U.S. at 313

n.7, and displacement of federal common law by a statute

does “nothing to undermine that result,” Illinois v. City

of Milwaukee, 731 F.2d 403, 410 (7th Cir. 1984) (“Milwaukee III”). In the words of the Second Circuit, “state law

does not suddenly become presumptively competent to

address issues that demand a unified federal standard

simply because Congress saw fit to displace a federal

court-made standard with a legislative one . . . .” City of

New York, 993 F.3d at 98.

¶98 Consequently, the question before us now is not

whether federal law preempts state law, as the majority

concludes, but rather whether federal law “authorizes resort to state law.” Milwaukee III, 731 F.2d at 411 (emphasis added).

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¶99 Critically, our Supreme Court has explained that

when courts deal with an area traditionally governed by

federal law, “there is no beginning assumption that concurrent regulation by the [s]tate is a valid exercise of its

police powers”; instead, “we must ask whether the local

laws in question are consistent with the federal statutory

structure.” United States v. Locke, 529 U.S. 89, 108 (2000)

(emphasis added). This alteration of the typical ordinary

preemption analysis (from preemption of state law to authorization of state law) makes sense because the presumption that a state-law cause of action is not preempted

is only warranted in “a field which the [s]tates have traditionally occupied.” Buckman Co. v. Plaintiffs’ Legal

Comm., 531 U.S. 341, 347 (2001) (quoting Rice, 331 U.S.

at 230).

¶100 In arguing that the correct analysis is one of ordinary statutory preemption, the majority points to a sentence from AEP: “In light of our holding that the [CAA]

displaces federal common law, the availability vel non of a

state lawsuit depends, inter alia, on the preemptive effect

of the [CAA].” Maj. op. ¶ 30 (alterations in original) (quoting AEP, 564 U.S. at 429). However, not only did the Supreme Court never actually conduct such an analysis in

AEP (because the parties had not briefed the issue), id.,

it seemed to use the term “preemptive effect” in a more

general sense than the majority perceives, i.e., merely to

make the unremarkable observation that the CAA, not

federal common law, would determine the availability of

state-law claims.

¶101 The Supreme Court in Ouellette used the idea of

preemption in a similarly general sense. In fairness, the

majority, Maj. op. ¶ 54, correctly notes that the Ouellette

Court framed the question presented as “whether the

[CWA] pre-empts a common-law nuisance suit filed in a

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Vermont court under Vermont law, when the source of the

alleged injury is located in New York.” Ouellette, 479 U.S.

at 483 (emphasis added). Significantly, however, when it

actually analyzed the effect of the CWA, the Supreme

Court concluded that, “[i]n light of [the] pervasive regulation [of the CWA] and the fact that the control of interstate

pollution is primarily a matter of federal law, it is clear

that the only state suits that remain available are those

specifically preserved by the Act.” Id. at 492 (emphases

added) (citing Milwaukee I, 406 U.S. at 107).

¶102 In other words, while reviewing the CWA’s

“regulation of water pollution,” which is similar in comprehensiveness to the CAA’s regulation of air pollution,

the Supreme Court considered federal law’s preeminent

role in controlling interstate pollution. Id. at 500; see also

Bell v. Cheswick Generating Station, 734 F.3d 188, 196-97

(3d Cir. 2013) (describing the similarities between the

CWA and CAA and applying Ouellette’s holding in the

CAA context). And the Court ultimately considered

whether the CWA expressly “allow[ed] [s]tates” to impose effluent standards on their own point sources after

the CWA displaced federal common law. Ouellette, 479

U.S. at 497 (answering the question in the affirmative).

Thus, regardless of the label placed on Ouellette’s analysis, in practice it read more like an authorization analysis

than one of ordinary preemption. If it looks like an authorization analysis, swims like an authorization analysis, and

quacks like an authorization analysis, then it probably is

an authorization analysis.

¶103 I’m not alone in this reading of Ouellette. I have

good company: The Second Circuit came to the same conclusion when the City of New York brought state-law tort

claims similar to those raised by Boulder here. City of

New York, 993 F.3d at 99. After determining that the

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claims “would regulate cross-border emissions” and that

federal common law had been displaced by the CAA, the

court looked to whether the CAA “authorize[d] the type

of state-law claims the City [sought] to prosecute.” Id. at

93, 95, 99 (emphasis added); see also Mayor & City of Baltimore v. BP P.L.C., No. 24-C-18-004219 (Cir. Ct. for Baltimore City, Md. July 10, 2024) (unpublished order) (following the reasoning of City of New York). The Second

Circuit was spot-on.

¶104 Still, as additional support for their position, the

majority, Maj. op. ¶¶ 31, 46, and Boulder cite several federal appellate cases that have conducted a complete

preemption inquiry and held that “state-law claim[s] for

public nuisance do[] not arise under federal law” for purposes of federal-question jurisdiction. City of Oakland,

969 F.3d at 901, 907-08; see, e.g., Rhode Island v. Shell Oil

Prods. Co., 35 F.4th 44, 57-58 (1st Cir. 2022); Mayor &

City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 206

(4th Cir. 2022). But these cases are inapposite: The question before those courts was whether they had federalquestion jurisdiction in the removal context given the

well-pleaded complaint rule. They did not conduct an ordinary preemption analysis, much less determine whether

or how ordinary preemption applies in the non-removal

context. See, e.g., City of Oakland, 969 F.3d at 907 n.6

(“We do not address whether [federal] interests may give

rise to an affirmative federal defense because such a defense is not grounds for federal jurisdiction.”).

¶105 Accordingly, federal case law does not support

the majority’s application of an ordinary preemption analysis that treats historical federal common law as though it

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never existed.3 In my view, the majority errs in asking

whether the CAA preempts Boulder’s state-law claims instead of whether the CAA affirmatively authorizes those

claims.

III. The CAA Does Not Affirmatively Authorize Boulder’s Claims Pertaining to Interstate Emissions

¶106 Like the district court, the majority fails to identify a single provision within the CAA that affirmatively

authorizes state-law claims. None exists.

¶107 The CAA is a complex, comprehensive statutory

scheme with a “cooperative federalis[t]” framework: The

Environmental Protection Agency (“EPA”) has primary

regulatory responsibility, but states have substantial implementation and enforcement roles. Connecticut v.

EPA, 696 F.2d 147, 151 (2d Cir. 1982); see also City of New

York, 993 F.3d at 99. So, while states have important parts

to play in the statutory scheme, injecting themselves into

the regulatory work Congress has exclusively assigned to

the EPA isn’t one of them.

The majority, Maj. op. ¶ 52, quotes Virginia Uranium, Inc. v.

Warren, 587 U.S. 761, 767 (2019), for the proposition that “[i]nvoking

some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law” because “a litigant must point specifically to ‘a constitutional text or a

federal statute’ that does the displacing or conflicts with state law.”

(Quoting Puerto Rico Dep’t of Consumer Affs. v. Isla Petrol. Corp.,

485 U.S. 495, 503 (1988)). But Virginia Uranium was a plurality opinion. Of course, a “plurality opinion . . . [does] not represent the views

of a majority of the Court.” CTS Corp. v. Dynamics Corp. of Am., 481

U.S. 69, 81 (1987). As such, it is not binding precedent. Id. At most, it

is a “point of reference for further discussion.” Texas v. Brown, 460

U.S. 730, 737 (1983) (plurality opinion). Besides, as mentioned, the ordinary preemption analysis employed by the Court in Virginia Uranium is not the appropriate test here.

3

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¶108 The majority nevertheless posits that states retain regulatory authority through state implementation

plans (“SIPs”). Maj. op. ¶ 41. But that’s a stretch. Any role

the states have vis-à-vis SIPs is clearly delineated, supervised, and overseen by the EPA. As part of its responsibility over the public’s health and welfare, Congress has

designated the EPA—and only the EPA—to promulgate

national ambient air quality standards for the EPA’s selected pollutants. 42 U.S.C. §§ 7408(a), 7409. The EPA has

several other roles under the CAA, including promulgating standards related to motor vehicle emissions. 42

U.S.C. § 7521.

¶109 Nowhere does the CAA give states national regulatory authority. Indeed, under the CAA, states have

zero responsibility for the promulgation of national environmental standards. Instead, each state is required to

submit SIPs “provid[ing] for implementation, maintenance, and enforcement” of the EPA’s federal standards

within that state. 42 U.S.C. § 7410(a)(1).4

¶110 The CAA’s two savings clauses offer no safe harbor to Boulder’s state-law claims. The first savings clause

(the CAA’s citizen-suit provision), 42 U.S.C. § 7604(e),

provides that “[n]othing in this section shall restrict any

right which any person (or class of persons) may have under any statute or common law to seek enforcement of any

4

SIPs must include, among other things, “enforceable emission

limitations and other control measures,” as well as provisions prohibiting any emissions that significantly contribute to the air pollution

problems of a downwind state. 42 U.S.C. § 7410(a)(2)(A), (D). If a

given SIP submission or proposed revision “meets all of the applicable requirements” of the CAA, the EPA must approve it. 42 U.S.C.

§ 7410(k)(3). But if a state fails to submit or implement an adequate

SIP, the EPA must create a Federal Implementation Plan. 42 U.S.C.

§ 7410(c).

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emission standard or limitation or to seek any other relief.” The second savings clause states that, “[e]xcept as

otherwise provided, . . . nothing in this chapter shall preclude or deny the right of any [s]tate or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.” 42 U.S.C. § 7416. There is a caveat accompanying

the latter clause: A state or subdivision “may not adopt or

enforce any emission standard or limitation which is less

stringent than the [federal] standard or limitation.” Id.

¶111 Nearly identical provisions in the CWA have

been narrowly interpreted to only allow aggrieved individuals to bring “a nuisance claim pursuant to the law of

the source [s]tate,” thereby barring a nuisance claim “under an affected [s]tate’s law.” Ouellette, 479 U.S. at 495,

497. The Supreme Court in Ouellette reasoned that interpreting the savings clauses in this way “would not frustrate the goals of the CWA” because (1) it would not “disturb the [CWA’s] balance among federal, source-state,

and affected-state interests,” and (2) it would “prevent[] a

source from being subject to an indeterminate number of

potential regulations.” Id. at 498-99. Because this suit is

an attempt to apply Colorado law to activities in other

states allegedly creating pollution, Ouellette’s reasoning

is applicable.5 See Bell, 734 F.3d at 196-97 (finding “no

5

I would not rule out the possibility that Boulder could bring suit

under Colorado law to recover damages allegedly caused by emissions resulting from the energy companies’ activities in Colorado. See

Milwaukee II, 451 U.S. at 328 (contemplating that states may be able

to adopt more stringent limitations than the CWA “through state nuisance law” and “apply them to in-state discharges”). But that’s a far,

far cry from what Boulder is seeking to do here—with the majority’s

blessing, no less.

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meaningful difference between the [CWA] and the [CAA]

for the purposes of [a] preemption analysis”). Thus, the

savings clauses cannot confer the requisite authority on

Boulder to proceed with this litigation. See City of New

York, 993 F.3d at 99-100 (similarly concluding that the

CAA savings clauses did not authorize the state-law

claims at issue there).

¶112 Lastly, I am aware of the provision in the CAA

stating “that air pollution prevention . . . and air pollution

control at its source is the primary responsibility of

[s]tates and local governments.” 42 U.S.C. § 7401(a)(3).

But this is simply part of the congressional findings and

purpose, which cannot bestow binding, affirmative authorization on Boulder to pursue its claims. Moreover, this

provision is nothing more than an acknowledgment of a

state’s traditional responsibility to control sources of pollution in its own jurisdiction. Cf. Ouellette, 479 U.S. at 497.

The structure of the statutory scheme supports this interpretation. See Charnes v. Boom, 766 P.2d 665, 667 (Colo.

1988) (“[W]e must read and consider the statutory scheme

as a whole to give consistent, harmonious and sensible effect to all its parts.” (emphasis added)). While states have

significant implementation and enforcement roles as to instate sources of pollution, nowhere does the CAA authorize them to independently regulate or otherwise control

out-of-state sources of pollution.

¶113 In short, Boulder has not identified any adequate source of authority in the CAA to permit the claims

as they relate to interstate pollution. My colleagues in the

majority have not either. That’s because there is none.

Thus, these claims should not be allowed to proceed.

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IV. State Law Is Similarly Incompetent to Address

Claims Pertaining to International Emissions

¶114 Boulder’s broad claims extend to conduct outside of the United States. But state law is no more competent to address this aspect of the claims. State law is

preempted by federal law when it comes to international

emissions under both foreign affairs field preemption and

conflict preemption. I discuss each in turn.6

¶115 Due to “the supremacy of the national power in

the general field of foreign affairs, . . . [o]ur system of government . . . imperatively requires that federal power in

the field affecting foreign relations be left entirely free

from local interference.” Hines v. Davidowitz, 312 U.S.

52, 62-63 (1941) (emphasis added). Therefore, “[state] regulations must give way if they impair the effective exercise of the Nation’s foreign policy,” “disturb foreign relations,” or “establish [a state’s] own foreign policy.”

Zschernig v. Miller, 389 U.S. 429, 440-41 (1968). It follows

that, under foreign affairs field preemption, “state action

with more than [an] incidental effect on foreign affairs is

preempted, even absent any affirmative federal activity in

the subject area of the state law”—i.e., “without any showing of conflict.” Am. Ins. Ass’n v. Garamendi, 539 U.S.

6

To the extent that Boulder’s claims pertain to international emissions, they require review under a different methodology than interstate emissions. First, of course, preemption related to international

matters and ordinary preemption implicate different analytical

frameworks. Second, the CAA did not displace federal common law in

the international arena. Apart from one minor provision allowing reciprocal arrangements with foreign countries, see 42 U.S.C. § 7415,

the CAA is virtually silent about its extraterritorial reach, and “unless

a contrary intent appears, [a statute] is meant to apply only within

the territorial jurisdiction of the United States.” City of New York,

993 F.3d at 100 (quoting Morrison v. Nat’l Austl. Bank Ltd., 561 U.S.

247, 255 (2010)).

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396, 398 (2003) (relying on Zschernig, 389 U.S. at 432).

This is true notwithstanding “the absence of any treaty,

federal statute, or executive order.” Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1072 (9th Cir. 2012)

(relying on Zschernig, 389 U.S. at 440-41).

¶116 State claims seeking to impose damages on parties for their emissions outside of the United States necessarily “disturb foreign relations,” Zschernig, 389 U.S.

at 441, or, at minimum, impact foreign affairs in more than

an incidental way, Garamendi, 539 U.S. at 398, because

they effectively regulate extraterritorial activities, potentially upset the United States government’s current or future “carefully balanced scheme of international cooperation on a topic of global concern,” and “risk jeopard[y] [to]

our nation’s foreign policy goals,” City of New York, 993

F.3d at 103. Thus, “even absent any [current] affirmative

federal activity” related to climate change, Boulder’s

claims will impermissibly result in “more than [an] incidental effect on foreign affairs.” Garamendi, 539 U.S. at

398.

¶117 The majority suggests that preemption of a

state law under the foreign affairs field preemption doctrine may only occur when the state is not “addressing a

traditional state responsibility.” Maj. op. ¶ 64 (quoting

Movsesian, 670 F.3d at 1072). Be that as it may, this case

does not involve an area of traditional state responsibility.

Movsesian, 670 F.3d at 1072; Maj. op. ¶¶ 65-66. As discussed above, redress of interstate and international air

pollution has traditionally been governed by federal common law.

¶118 Regardless, conflict preemption also applies because this is not an area of foreign affairs where there has

been a complete absence of federal activity. As mentioned,

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the CAA itself touches on the issue of international pollution with one minor provision allowing the EPA to prevent

pollution emanating from the United States from endangering the public health and welfare of a foreign country

if that country provides reciprocal rights to the United

States. 42 U.S.C. § 7415. This provision evinces our federal government’s consideration of international air pollution, as well as its concomitant judgment as to how much

extraterritorial regulation was advisable in light of the

complex economic, environmental, and political tradeoffs

involved. Further evidence of that judgment can be found

in international agreements pertaining to climate change

that our federal government has, at various points in time,

either joined or refrained from joining. See, e.g., Exec. Order No. 14,008, 86 Fed. Reg. 7619 (Jan. 27, 2021) (rejoining the Paris Agreement under the United Nations

Framework Convention on Climate Change); Exec. Order

No. 14,162, 90 Fed. Reg. 8455 (Jan. 20, 2025) (ordering

withdrawal from the Paris Agreement).

¶119 In sum, because our federal government has

clearly balanced many different interests in formulating

its foreign policy on air pollution, it makes little sense to

allow international regulation through the types of state

claims Boulder has brought. By giving Boulder the nod to

proceed with its claims, the majority risks impeding our

federal government’s judgment as to how to approach air

pollution in the international sphere.

V. Allowing These and Similar Claims to Proceed

Will Create a Chaotic Patchwork of Local Standards

¶120 A patchwork of standards formulated by local

governments throughout the country to regulate GHG

emissions is not capable of effectively addressing interstate air pollution. Such local regulation will invite chaos.

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Fossil fuel companies will potentially face many suits

based on numerous standards, which will cause “vagueness” and “uncertainty,” Ouellette, 479 U.S. at 496, and

make it “virtually impossible to predict the standard” for

a lawful interstate emission, Milwaukee III, 731 F.2d at

414. Think of how difficult it will be to administer such a

system: How will courts isolate each company’s contribution to each alleged climate harm? The federal government’s interest in avoiding regulatory chaos through a

uniform standard is why federal common law existed in

the first place, and that interest is even more prominent

today. The legislature, in crafting the CAA, certainly

didn’t intend to downplay it.

VI. Conclusion

¶121 Boulder is not its own republic; it is part of Colorado and, by extension, of the United States of America.

Consequently, while it has every right to be environmentally conscious, it has absolutely no right to file claims that

will both effectively regulate interstate air pollution and

have more than an incidental effect on foreign affairs. And

because Boulder has brought just such claims in this case,

I cannot join the majority. I would instead dismiss Boulder’s claims.

¶122 Given the number of local municipalities

throughout the country that have already brought claims

like those advanced by Boulder, given that more and more

municipalities are joining this trend, and given further

that a number of courts have now ruled that such claims

may be prosecuted, I respectfully urge the Supreme

Court to take up this issue—whether in this case or another one. My colleagues in the majority, like other

courts, interpret Supreme Court precedent as permitting

Boulder’s claims. Respectfully, I believe that they misread those cases.

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¶123 I’m concerned that this decision will contribute

to a patchwork of inconsistent local standards that will beget regulatory chaos. To borrow from Fleetwood Mac’s

old hit song, the message our court conveys to Boulder

and other Colorado municipalities today is that “you can

go your own way” to regulate interstate and international

air pollution. Fleetwood Mac, Go Your Own Way, on Rumours (Warner Bros. Records Inc. 1977). In our indivisible nation, that just can’t be right. I respectfully dissent.

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APPENDIX B

DISTRICT COURT, BOULDER COUNTY,

STATE OF COLORADO

No. 2018CV30349

BOARD OF COUNTY COMMISSIONERS OF BOULDER

COUNTY; CITY OF BOULDER,

PLAINTIFFS

v.

SUNCOR ENERGY (U.S.A.), INC.; SUNCOR

ENERGY SALES INC.; SUNCOR ENERGY, INC.;

EXXONMOBIL CORPORATION,

DEFENDANTS

Filed: June 21, 2024

ORDER RE DEFENDANTS’ MOTIONS

TO DISMISS

Through this litigation, Plaintiffs seek compensation

from Defendants for climate change related impacts

within Plaintiffs’ jurisdictions. Plaintiffs maintain that

they have experienced substantial and rising costs to mitigate the impacts of Defendants’ alteration of the climate.

According to the Amended Complaint, Plaintiffs have

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spent and will continue to spend millions of dollars to mitigate these impacts.

Defendants have filed several Motions to Dismiss.

Based on the Court’s review of the Amended Complaint,

extensive core briefing and supplemental briefing on the

Motions to Dismiss, the file herein, the arguments advanced by counsel at the oral arguments, and the pertinent legal authorities, the Court issues the following ruling:

I. PARTIES & RELIEF SOUGHT

Plaintiffs are two1 local governments—the City of

Boulder (“City”), a home rule municipality, and Boulder

County, a subdivision of the State of Colorado (“County”).

Plaintiffs will collectively be referred to as the “Local Governments.”

Defendant ExxonMobil Corporation is a New Jersey

corporation, with its principal place of business in Texas

(“ExxonMobil”). The Amended Complaint has named

three Suncor entities. Defendant Suncor Energy, Inc. is a

Canadian corporation, with its principal place of business

in Calgary, Alberta (“Suncor Canada”). Amended Complaint, ¶¶ 47, 89. Suncor Energy (U.S.A.), Inc. (“Suncor

Energy”) is a subsidiary of Suncor Canada, and operates

the oil and gas refinery in Commerce City, Colorado.

Amended Complaint, ¶ 57. Suncor Energy Sales, Inc.

(“Suncor Sales”) is a subsidiary of Suncor Canada, and op-

1

At the outset of the litigation, the list of Plaintiffs also included

the Board of County Commissioners of San Miguel County. By Order

dated January 25, 2021, the Court granted the Suncor Defendants’

Motion to Dismiss or Transfer Venue. San Miguel County’s claims

are currently pending in Denver County District Court, Case No.

21CV150.

50a

erates 47 retail gasoline and/or diesel fuel stations in Colorado. Amended Complaint, ¶ 58. Defendants will collectively be referred to as the “Energy Companies.”

Through the Amended Complaint, the Local Governments have brought six causes of action against the Energy Companies:

First Cause of Action: Public Nuisance

Second Cause of Action: Private Nuisance

Third Cause of Action: Trespass

Fourth Cause of Action: Unjust Enrichment

Fifth Cause of Action: Violation of the Colorado Consumer Protection Act

Sixth Cause of Action: Civil Conspiracy

As relief, the Local Governments primarily seek

money damages to compensate the Local Governments

for their past and future damages and costs to mitigate

the impact of climate change. They also seek remediation

and/or abatement of the hazards by any other practical

means. In accordance with C.R.S. § 6-1-113(2) (Colorado

Consumer Protection Act), the Local Governments seek

treble damages, and recovery of reasonable attorney fees.

The Local Governments also request the Energy Companies to be held jointly liable under C.R.S. § 13-21-111.5(4)

based on the conspiracy claim.

II. PROCEDURAL HISTORY

This long-running litigation has journeyed through

the state and federal court system, including two brief layovers at the U.S. Supreme Court. The Local Governments

commenced this action in April 2018. In June 2018, the

Energy Companies filed a Notice of Removal in the U.S.

District Court of Colorado, asserting seven grounds for

51a

removal to federal court. The Local Governments responded by filing a Motion to Remand. Rejecting all seven

asserted grounds for removal, the U.S. District Court remanded the action back to this Court. The Energy Companies appealed the remand order on six grounds.

On plenary review, the Tenth Circuit Court of Appeals

held that its jurisdiction was limited to one of the grounds,

federal officer removal, and affirmed the remand order

without considering the other grounds for removal. The

Energy Companies sought review in the U.S. Supreme

Court. While that petition was pending, in a similar proceeding, the U.S. Supreme Court clarified that the entire

order of remand was reviewable on appeal. The Supreme

Court therefore vacated the Tenth Circuit’s opinion and

remanded for reconsideration. On remand, the Tenth Circuit held that none of the six grounds relied upon by the

Energy Companies supported federal removal jurisdiction, and affirmed the remand order. Board of County

Commissioners of Boulder County v. Suncor, 25 F.4th

1238, 1246, 1249 (10th Cir. 2022).

The Energy Companies then filed a petition for certiorari with the U.S. Supreme Court. On April 24, 2023, the

Court denied the petition. Thereafter, the litigation

landed back in this Court, to issue rulings on the pending

Motions to Dismiss filed by the Energy Companies. In

particular, the following Motions to Dismiss were pending

before this action moved to the federal court system:

(1) ExxonMobil’s Motion to Dismiss for Lack of

Subject Matter Jurisdiction, under C.R.C.P.

12(b)(2).

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(2) Suncor Canada’s Motion to Dismiss for Lack of

Subject Matter Jurisdiction, under C.R.C.P.

12(b)(2).

(3) The Energy Companies’ Motion to Dismiss the

Amended Complaint for Failure to State a

Claim, under C.R.C.P. 12(b)(5).

Given the passage of time and significant developments in the law, the parties submitted supplemental

briefing from June 2023 to December 2023, along with a

copy of the transcript of the oral argument conducted before the Honorable Judge LaBuda on June 1, 2020. Due

to the extensive relevant legal developments that occurred after June 2020, the Court conducted a supplemental oral argument on February 1, 2024, and took the

matter under advisement. The parties have since filed

several notices of supplemental authority.

III. AMENDED COMPLAINT ALLEGATIONS

As set forth below, for purposes of evaluating the Motions to Dismiss for failure to state a claim under C.R.C.P.

12(b)(5), the Court must accept the factual allegations of

the Amended Complaint as true, and draw all inferences

in favor of the Local Governments, as the non-moving parties. The lengthy Amended Complaint (“AC”), filed June

11, 2018, contains extensive factual allegations, including

the following:

The Local Governments allege that Colorado’s climate

has been altered. In particular, they assert that the combustion of fossil fuels has increased the atmospheric concentration of greenhouse gases (“GHGs”), mostly carbon

dioxide, to levels unseen in human history. AC, ¶¶ 127-31.

Temperatures in Colorado have risen 2 degrees Fahrenheit since 1983 and are projected to rise an additional 2.5

to 5 degrees Fahrenheit by 2050, with a “five-to ten-fold

53a

increase in heat waves.” Id., ¶¶ 145-49. The altered climate is affecting communities, ecosystems, and public

health, including prolonged periods of excessively high

temperatures, more heavy downpours, increase in wildfires, and more severe droughts; resulting in loss of snowpack, precipitation changes, worsened air quality, and insect and disease outbreaks. Id., ¶¶ 155-67, 183-96.

The Amended Complaint next alleges that the Energy

Companies knew their fossil fuel activities were altering

the climate and profited from unchecked fossil fuel sales.

The Local Governments assert that as early as the 1960s,

the Energy Companies knew fossil fuel use was increasing GHGs in the atmosphere, which would alter the climate. Id., ¶¶ 337-61. By 1968, the American Petroleum Institute (“API”) warned that “significant temperature

changes are almost certain to occur by the year 2000,” and

API reports from the 1980s forecast a 4.5-degree Fahrenheit rise by 2038, bringing “major economic consequences,” a 9-degree Fahrenheit rise by 2067 with “catastrophic effects,” and “serious consequences for man’s

comfort and survival since patterns of aridity and rainfall

can change.” Id., ¶¶ 345, 350, 353. The Amended Complaint further alleges that the Energy Companies knew

adapting to these changes would be costly. Id., ¶ 358. Additionally, the Local Governments allege that despite this

knowledge, the Energy Companies sold “trillions of cubic

feet of natural gas, billions of barrels of oil and millions of

tons of coal and petroleum coke,” and that when burned

by consumers, the fossil fuels emitted billions of tons of

GHGs. Id., ¶¶ 61-62, 380-83, 396-99. ExxonMobil earned

hundreds of billions of dollars and the Suncor entities

earned tens of billions of dollars in profits from fossil fuel

sales. Id., ¶¶ 69, 84.

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The Local Governments also allege that despite knowing the dangers of unchecked fossil fuel use, the Energy

Companies concealed and misrepresented the truth to

their consumers in Colorado and elsewhere. According to

the Amended Complaint, the Energy Companies knew in

the 1980s that mitigation of global climate change would

require major reductions in fossil fuel combustion, and

that “there was no leeway for a transition away from fossil

fuels because it would take time for other energy sources

to penetrate the market.” Id., ¶¶ 367-68. The Energy

Companies were warned that if action to reduce carbon

dioxide emissions was delayed until impacts “are discernible, then it is likely that [it] will occur too late to be effective.” Id., ¶ 369. Despite this knowledge, the Amended

Complaint alleges that the Energy Companies spent decades concealing and misrepresenting the dangers of unchecked fossil fuel use from the public and consumers. Id.,

¶¶ 415-16. While recognizing that “contrarian theories”

were not credible, the Local Governments assert that the

Energy Companies set out to get “a majority of the American public” to recognize that “uncertainties exist in climate science.” Id., ¶¶ 425-27.

Based on these and similar factual allegations and the

six claims for relief, the Local Governments seek monetary relief from the Energy Companies to cover their

damages and the cost of mitigating the hazards of an altered climate. The Local Governments assert that their

communities have suffered from discrete and local injuries, and that their property has been damaged by fires,

floods, extreme precipitation, drought, pest infestations,

and other climate impacts. Id., ¶¶ 222-23. Plaintiffs allege

they currently face enormous expenses to lessen the hazards posed by climate change. Id., ¶¶ 243-48, 250-92, 30017. The Local Governments have brought claims for relief

under Colorado’s common law (public nuisance, private

55a

nuisance, trespass, unjust enrichment, and conspiracy)

and the Colorado Consumer Protection Act, seeking monetary relief to compensate for their damages and abatement efforts.

IV. STANDARD OF REVIEW

A court may address a C.R.C.P. 12(b)(2) motion either

solely upon documentary evidence, or it may require the

parties to appear for a contested evidentiary hearing.

Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1192

(Colo. 2005). The plaintiff’s burden of proof on the question of personal jurisdiction depends on the method the

court employs to decide the motion. Id. If the court decides the motion based solely on documentary evidence,

only a prima facie showing is required by the plaintiff to

defeat the motion. Id. A prima facie showing exists where

the plaintiff raises a reasonable inference that the court

has jurisdiction over the defendant. Id. Documentary evidence includes allegations in the complaint, as well as affidavits and any other evidence submitted by the parties.

Id.; Martinez v. Farmington Motors, Inc., 931 P.2d 546,

547 (Colo. App. 1996).

Similar to a court’s role in addressing a motion for

summary judgment, a court addressing a Rule 12(b)(2)

motion based on documentary evidence acts as a “data collector” and not a factfinder. Archangel, 123 P.3d at 1192

(citing Leidy’s Inc. v. H20 Engineering, Inc. 811 P.2d 38,

40 (Colo. 1991)). Therefore, the allegations in the complaint must be accepted as true to the extent they are not

contradicted by the defendant’s competent evidence, and

where the parties’ competent evidence presents conflicting facts, these discrepancies must be resolved in the

plaintiff’s favor. Id. The light prima facie burden of proof

is intended to screen out cases in which personal jurisdiction is obviously lacking. Id.

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C.R.C.P. 12(b)(5) provides for dismissal of a complaint

for failure to state a claim upon which relief can be

granted. The purpose of a motion under Rule 12(b)(5) is

to test the formal sufficiency of the complaint. Dorman v.

Petrol Aspen, Inc., 914 909, 911 (Colo. 1996). When reviewing a motion to dismiss, the Court must accept the

material allegations of the complaint as true and draw all

inferences in favor of the plaintiff. Medina v. State, 35

P.3d 443, 452 (Colo. 2001). To survive a C.R.C.P. 12(b)(5)

motion to dismiss, the complaint must state a plausible

claim for relief by alleging facts sufficient “to raise the

right to relief above the speculative level.” Warne v. Hall,

373 P.3d 588, 591 (Colo. 2016). The plaintiff has the burden

to frame a complaint with “sufficient factual matter, accepted as true” to suggest that the plaintiff is entitled to

relief. Id. Motions to dismiss for failure to state a claim

under C.R.C.P. 12(b)(5) are viewed with disfavor. Bly v.

Story, 241 P.3d 529, 533 (Colo. 2010).

V. ANALYSIS

A. ExxonMobil’s Motion to Dismiss for Lack of Personal Jurisdiction

To invoke a Colorado court’s jurisdiction over a nonresident defendant, plaintiffs must comply with Colorado’s long-arm statute (C.R.S. § 13-1-124) and constitutional due process. Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270-72 (Colo. 2002). Because

Colorado’s long-arm statute “extends the jurisdiction of

Colorado courts to the maximum limit permitted by the

due process clauses of the United States and Colorado

Constitutions,” the jurisdictional analysis under federal

and state law is the same. Goettman v. North Fork Valley

Restaurant, 176 P.3d 60, 66 (Colo. 2007). Colorado state

courts may therefore look to federal precedent for guidance. Archangel, 123 P.3d at 1194.

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The Due Process Clause (U.S. Constitution, 14th

Amendment) “sets the outer boundaries of a state tribunal’s authority to proceed against a defendant.” Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,

923 (2011). These outer boundaries have generated two

categories of personal jurisdiction: “general jurisdiction”

and “specific jurisdiction.” Ford Motor Company v. Montana Eighth Judicial District Court, 592 U.S. 351, 358

(2021).

General personal jurisdiction, often referred to as “allpurpose” jurisdiction, allows a court to exercise jurisdiction over a defendant for any claim or cause of action arising from any of a defendant’s activities, even if they did

not occur in the forum state. Id.; Magill v. Ford Motor

Company, 379 P.3d 1033, 1037 (Colo. 2016). However,

“only a limited set of affiliations with a forum will render

a defendant amenable to all-purpose jurisdiction” in a particular forum. Daimler AG v. Bauman, 571 U.S. 117, 137

(2014). In contrast, specific jurisdiction permits adjudication of only those claims arising out of the defendant’s instate activities, and thus requires a substantial connection

between the forum and the specific claims asserted.

Magill, 379 P.3d at 1039.

1. General Jurisdiction

Due process permits courts to exercise general jurisdiction over a defendant only when it is “at home” in the

forum state. Magill, 379 P.3d at 1037. A corporate defendant is “at home” in the forum state if it: (1) is incorporated

in the forum; (2) has its principal place of business in the

forum; or (3) in the “exceptional case,” has operations that

are “so substantial and of such a nature as to render the

corporation at home.” Daimler, 571 U.S. at 137, 139, n.19;

Clean Energy Collective, LLC v. Borrego Solar Systems,

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Inc., 394 P.3d 1114, 1117 (Colo. 2017). In Magill, the Colorado Supreme Court observed:

[d]etermining that a corporation is at home simply because it does business in Colorado would be unacceptably grasping. General jurisdiction instead calls for an

appraisal of a corporation’s activities in their entirety,

nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in

all of them.

Magill, 379 P.3d at 1039.

Based on this standard, a nonresident defendant’s

contacts with a state will rarely justify exercising general

jurisdiction. Id. at 1037.

The Local Governments contend that this Court has

both general and specific jurisdiction over ExxonMobil.

Plaintiffs base the general jurisdiction argument on the

theory of consent by registration (section A(1)(a) below),

and have not argued that the Court has general jurisdiction over ExxonMobil by virtue of it being “at home” in

Colorado.

Nor could they plausibly do so. ExxonMobil is incorporated in New Jersey, and has its principal place of business in Texas. AC, ¶ 105. Thus, the first two bases for general jurisdiction are plainly not satisfied. Likewise, the jurisdictional allegations in the Amended Complaint do not

meet the rigorous requirements for the third potential basis (operations are so substantial and of such a nature as

to render the corporation at home) to be satisfied. The Local Governments allege that ExxonMobil is a “multinational, vertically integrated, fossil fuel company.” Id., ¶ 73.

There are no allegations that ExxonMobil’s contacts with

Colorado are more substantial than its contacts with other

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states or nations. In the absence of any allegations or evidence that ExxonMobil’s contacts with Colorado are significantly more substantial than its contacts and operations elsewhere, the Local Governments have not and cannot establish that the Court has general jurisdiction over

ExxonMobil under the traditional three-part test for general jurisdiction. See Magill, 379 P.3d at 1035 (trial court

erred in exercising general jurisdiction over Ford Motor

Company, because although Ford conducts business

throughout the country, there was no evidence that

Ford’s contacts with Colorado were different or more substantial than its contacts with other states where it sells

cars).

a. General Jurisdiction by Consent

In support of their argument that the Court has general jurisdiction over ExxonMobil, the Local Governments posit that ExxonMobil consented to general jurisdiction in this forum by registering as a foreign corporation with the Colorado Secretary of State. The prime

mover for this argument is Mallory v. Norfolk Southern

Railway Co., 600 U.S. 122 (2023). In Mallory, the U.S. Supreme Court held that Pennsylvania’s consent statute requiring an out-of-state corporation to consent to personal

jurisdiction as a condition of registering to do business

within the state did not violate the Due Process Clause of

the Fourteenth Amendment. Id. at 146.2 The Court further explained that personal jurisdiction can arise from

“express or implied consent” and consent may be manifested in various ways by word or deed. Id. at 138.

2

Pennsylvania law is explicit that “qualification as a foreign corporation” shall permit state courts to “exercise general personal jurisdiction” over a registered foreign corporation[.]”) 42 Pa. Cons. Stat.

§ 5301(a)(2)(i).

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The Supreme Court clarified that Pennsylvania Fire

Insurance Co. of Philadelphia v. Gold Issue Mining &

Milling Co., 243 U.S. 93 (1917) and International Shoe

Co. v. Washington, 326 U.S. 310 (1945), with its progeny,

“sit comfortably side by side.” Mallory, 600 U.S. at 137.

As explained by the Mallory plurality:

Pennsylvania Fire held that an out-of-state corporation that has consented to in- state suits in order to do

business in the forum is susceptible to suit there. International Shoe held that an out-of-state corporation

that has not consented to in-state suits may also be

susceptible to claims in the forum State based on “the

quality and nature of [its] activity” in the forum. Consistent with all this, our precedents applying International Shoe have long spoken of the decision as asking

whether a state court may exercise jurisdiction over a

corporate defendant “‘that has not consented to suit in

the forum.’” Our precedents have recognized, too, that

“express or implied consent” can continue to ground

personal jurisdiction—and consent may be manifested

in various ways by word or deed.

Id. at 138 (emphasis in original and citations omitted).

In other words, Mallory recognizes that the jurisdictional due process “minimum contacts” or “at home” analysis is not applicable where a party consents to a state’s

jurisdiction. Id. The Mallory Court therefore concluded

that the Pennsylvania statute which required foreign entities to register to do business in the state and, simultaneously, provided that such registration amounted to the

entity’s consent to personal jurisdiction in the state, did

not violate the Due Process Clause. Id. at 145-46.

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As applied here, the question is whether ExxonMobil,

by registering to do business in and designating a registered agent in Colorado, consented to the personal jurisdiction of Colorado courts for all purposes. The Local Governments argue that in accordance with Mallory, ExxonMobil consented to general personal jurisdiction in Colorado state courts when the corporation appointed an instate registered agent. They assert that Packaging Store,

Inc. v. Kwan Leung, 917 P.2d 361, 363 (Colo. App. 1996),

is “the most on-point and only Colorado precedent on consent” and argue Colorado law is clear that “one of the

most solidly established ways of giving such consent is to

designate an agent for service of process within the state.”

Response to ExxonMobil’s Lumen Supplemental Authority Notice, p. 1 (October 3, 2023). The Local Governments

additionally point to Budde v. Kentron Hawaii, Limited,

565 F.2d 1145, 1149 (10th Cir. 1977), to assert that compliance with Colorado business-registration statutes results

in consent to personal jurisdiction. Supplemental Brief, p.

3 (August 23, 2023).

ExxonMobil counters that the Court should follow the

reasoning of Lumen Technologies Service Group, LLC v.

CEC Group, LLC, 2023 WL 5822503 (D. Colo. Sept. 8,

2023), and conclude that complying with the Colorado

business-registration statutes does not equate to consent

for general personal jurisdiction. In particular, ExxonMobil argues that this case is distinguishable from Mallory.

Supplemental Reply Brief, p. 4 (October 24, 2023). ExxonMobil maintains that none of Colorado’s business-registration statutes purport to have jurisdictional consequences, either explicitly or implicitly. Id. at 3. Because

Colorado business-registration statutes do not evince any

indication of general personal jurisdiction consent, Mallory is inapplicable. Id.

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Here, the U.S. District Court’s analysis in Lumen is

compelling. In Lumen, a third-party plaintiff brought a

diversity action against a defendant, asserting claims for

breach of contract, breach of warranty, and breach of express indemnity, in connection with a business dispute.

2023 WL 5822503, at *1. The third-party defendant moved

to dismiss the lawsuit due to lack of personal jurisdiction.

Id. The defendant’s principal place of business was in Ohio

and the alleged injury occurred in Florida. Id. The thirdparty plaintiff argued that the defendant, by registering

in Colorado and designating an in-state agent, consented

to general jurisdiction. Id. at *3. The Lumen Court ultimately declined to find general jurisdiction over a defendant registered to do business in Colorado because “unlike

Mallory, Colorado law is not explicit that qualification as

a foreign corporation shall permit state courts to exercise

general personal jurisdiction over a registered foreign

corporation, just as they can over domestic corporations.”

Id. at *6 (citation and internal quotation marks omitted).

In reaching its conclusion, the Lumen Court conducted a

lengthy analysis explaining whether Colorado’s businessregistration statutes supported express or implied consent to general jurisdiction.

First, Lumen determined that Colorado’s businessregistration statutes do not explicitly permit state courts

to exercise general personal jurisdiction over a registered

foreign corporation. Id. at *6. In reaching the conclusion,

the Court compared the business-registration statute at

issue in Mallory, (42 Pa. Cons. Stat. § 5301(a)(2)(i)), to

Colorado’s statutes (C.R.S. §§ 7-90-801 & 7- 90-805). Unlike the Pennsylvania statute, neither C.R.S. § 7-90-801

nor § 7-90-805 expressly informs foreign entities that by

registering to do business in Colorado, or by designating

a Colorado registered agent, they are consenting to the

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personal jurisdiction of Colorado courts. Id. In the absence of explicit consent to general personal jurisdiction,

the Court next determined whether Colorado law supports implied consent to general personal jurisdiction. Id.

at *7.

Lumen examined the third-party plaintiff’s argument

that Packaging Store provides that a foreign corporation

consents to general personal jurisdiction when designating an agent for service of process within the state. Id. In

Packaging Store, the parties entered into a contract in

which the defendant agreed to appoint a registered agent

in Colorado for service of process and agreed all disputes

arising under the contract would be resolved in Colorado.

Id. Specifically, Packaging Store holds that parties can

contractually agree to consent to general personal jurisdiction, but no state laws imply such consent. Id.

Lumen next examined Budde v. Kentron Hawaii,

Limited, 565 F.2d 1145 (10th Cir. 1977), determining that

Budde likewise does not support implied general personal

consent. Id. at *8-10. First, the business-registration statutes at issue in Budde were repealed with no corresponding statutory citation currently in effect and applicable.

Id. at *8. Second, Budde did not constitute a “local construction” of state law. Id. at * 10. Therefore, Lumen concluded there are no Colorado laws to support the conclusion that Colorado business-registration statutes provide

for implied consent to general personal jurisdiction. Id. at

*11.

Based in large part on the Lumen analysis, this Court

concludes that Colorado business- registration statutes do

not explicitly grant state courts with general personal jurisdiction over all foreign entities that comply with the

statutes. The registration statute specifies that before a

foreign corporation can conduct business in Colorado, it

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must file a “statement of foreign entity authority” with

the secretary of state. C.R.S. § 7-90-801(1). Furthermore,

the corporation must designate an agent in Colorado for

service of process. C.R.S. § 7-90-701. Once the corporation

is authorized to conduct business in Colorado, it enjoys

“the same rights and privileges as, but no greater rights

or privileges than, and . . . is subject to the same duties,

restrictions, penalties, and liabilities imposed upon, a

functionally equivalent domestic entity.” C.R.S. § 7-90805(2).

By their plain terms, these statutes do not explicitly

require foreign entities to consent to personal jurisdiction

as a condition of registering to do business here. Indeed,

the statutes do not mention general jurisdiction and, instead, only require a corporation to file a statement of foreign authority and maintain a state registered agent.

C.R.S. § 7-90-801(1). Thus, unlike in Mallory, neither

C.R.S. § 7-90-801 nor § 7-90-805 expressly informs foreign

entities that by registering to do business in Colorado, or

by designating a Colorado registered agent, they are consenting to the personal jurisdiction of Colorado courts.

Furthermore, neither statute could have alerted ExxonMobil that its compliance could be construed as consent

to general personal jurisdiction to Colorado courts. See

Pennsylvania Fire, 243 U.S. at 95.

Second, as set forth in Lumen, the Local Governments’ reliance on Packaging Store and Budde for implied

consent to general personal jurisdiction is unavailing.

Packaging Store does not support implied consent to

general personal jurisdiction by merely having a registered agent in the state of Colorado. In Packaging Store,

the parties entered into a contract in which the defendant

contractually agreed to appoint an agent for service of

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process in Colorado and to litigate claims in Colorado arising under the parties’ contract. 917 P.2d at 363. The Court

held “a nonresident’s contractual consent to the jurisdiction of Colorado courts will be enforced if the terms of the

consent are clear, and such consent can confer jurisdiction

even if the minimal contacts test is not met.” Id. (citations

omitted).

The Local Governments assert that Packaging Store

relied upon precedents where consent was predicated on

registration statutes. Response to Supplemental Authority Notice, p. 1 (October 3, 2023). However, the precedent

relied upon is unpersuasive for several reasons. First,

some of the cases cited by Packaging Store held that the

business-registration statutes at issue created implied

consent based on legislative intent. See generally Sondergard v. Miles, Inc., 985 F.2d 1389, 1393 (8th Cir.1993),

cert. denied, 510 U.S. 814 (1993); Werner v. Wal-Mart

Stores, Inc., 861 P.2d 270, 273 (N.M. App. 1993). Second,

other cases relied on in Packaging Store held state courts

can obtain personal jurisdiction over nonresident defendants when they consent to it. See generally Holloway v.

Wright & Morrissey, Inc., 739 F.2d 695, 697 (1st

Cir.1984); Rykoff-Sexton v. American Appraisal, 469

N.W.2d 88, 90 (Minn.1991); Green Mountain College v.

Levine, 139 A.2d 822, 825 (Vt. 1958). Accordingly, many of

the cases relied on in Packaging Store follow the Mallory

analysis. Lastly, none of the cases relied upon in Packaging Store are based on Colorado law, nor decided in the

Tenth Circuit.

In short, absent a contractual agreement, Packaging

Store does not support the Local Governments’ implied

consent to general personal jurisdiction argument.

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The Local Governments’ reliance on Budde is also unavailing. In Budde, the Tenth Circuit held that under Colorado law, a foreign corporation’s registration to do business in Colorado constituted consent to general personal

jurisdiction. However, as noted in Lumen, C.R.S. § 7-9119 was repealed. As set forth above, Colorado’s current

business-registration statutes do not provide that a foreign business entity consents to personal jurisdiction by

registering to do business in the state and appointing an

agent.

In conclusion, the Court concludes that ExxonMobil

did not consent to general jurisdiction in Colorado courts

by registering as a foreign corporation.

2. Specific Jurisdiction

Due process permits courts to exercise specific jurisdiction over non-resident defendants when there is a substantial connection between the forum and the specific

claims asserted. Magill, 379 P.3d at 1039. To exercise jurisdiction over a non-resident defendant, a plaintiff must

also show that jurisdiction is appropriate under the state’s

long-arm statute. Colorado’s long-arm statute is set forth

at C.R.S. § 13-1-124.3

a. Long-Arm Statute

As set forth above, the Colorado Supreme Court has

held on numerous occasions that C.R.S. § 13-1-124 “extends the jurisdiction of Colorado courts to the maximum

3

C.R.S. § 13-1-124 provides in relevant part that “[e]ngaging in any

act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits

such person . . . to the jurisdiction of the courts of this state concerning any cause of action arising from: (a) the transaction of any business within this state; (b) the commission of a tortious act within this

state; . . .”

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limit permitted by the due process clauses of the United

States and Colorado Constitutions,” and that the jurisdictional analysis under federal and state law is the same.

Goettman v. North Fork Valley Restaurant, 176 P.3d 60,

66 (Colo. 2007). When it filed its C.R.C.P. 12(b)(2) Motion

to Dismiss on December 9, 2019, ExxonMobil acknowledged that satisfying due process requirements would

also satisfy the requirements of Colorado’s long-arm statute. Motion to Dismiss, p. 5, (December 19, 2019).

After the U.S. Supreme Court announced its decision

in Ford Motor Company v. Montana Eighth Judicial

District Court, 592 U.S. 351 (2021), however, ExxonMobil

contended that the limitations imposed by Colorado’s

long-arm statute may be more stringent than those imposed by the Due Process Clause, at least as the Clause

was recently interpreted by the U.S. Supreme Court. In

particular, ExxonMobil asserts that the long-arm statute

confers jurisdiction over any cause of action “arising

from” the transaction of any business within the state or

the commission of a tortious act within the state, and

therefore independently requires a causal connection for

specific jurisdiction. ExxonMobil’s Supplemental Briefing, pp. 6-7 (May 3, 2021); see Brighton v. Rodriguez, 318

P.3d 496, 502 (Colo. 2014) (the term “arising out of” calls

for examination of the causal connection or nexus between

the conditions and obligations of employment and the employee’s injury).

The Local Governments disagree, maintaining that

the Colorado Supreme Court has repeatedly held that the

jurisdictional analysis is the same for both the long-arm

statute and constitutional due process. Local Governments’ Supplemental Briefing, pp. 6-7 (May 17, 2021).

Moreover, even if the long-arm statute imposes a distinct

requirement, the inquiry looks at the “totality of conduct”

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by the defendant. Parocha v. Parocha, 418 P.3d 523, 527

(Colo. 2018). The legislative purpose of the long-arm statute “was the expansion of our court’s jurisdiction within

constitutional limitations in order to provide a local forum

for Colorado residents who suffer damages in Colorado as

a result of tortious acts of non-residents.” Vandermee v.

District Court, 433 P.2d 335, 337 (Colo. 1967). Even if the

long-arm statute imposes heightened requirements, the

Local Governments maintain that the requirements of the

long-arm statute have been satisfied.

Critically, the Colorado Supreme Court has held, on

multiple occasions, that Colorado’s long-arm statute “extends the jurisdiction of Colorado courts to the maximum

limit permitted by the due process clauses of the United

States and Colorado Constitutions,” and therefore, the jurisdictional analysis under federal and state law is the

same. Goettman, 176 P.3d at 66; Foundation for

Knowledge in Development v. Interactive Design Consultants, LLC, 234 P.3d 673, 677-78 (Colo. 2010); Magill,

379 P.3d at 1037; Keefe, 40 P.3d at 1270; Cf. Parocha, 418

P.3d at 527 (because compliance with the long-arm statute

“is a threshold matter that is not necessarily subsumed in

a due process analysis, we consider each in turn.”). Therefore, based on this precedent, it is unnecessary for the

Court to separately assess whether it has jurisdiction over

ExxonMobil under the long-arm statute. If exercising jurisdiction comports with the Due Process Clause, the requirements of the long-arm statute will necessarily have

been satisfied in accordance with Colorado law.

Moreover, even if the jurisdictional limitations imposed by the long-arm statute and the Due Process

Clause are no longer coterminous, the Local Governments

have made a sufficient showing that the long-arm statute’s requirements have been satisfied (see analysis in

69a

section A(2)(b), below). ExxonMobil has been transacting

business in Colorado for decades, including by placing its

products within the stream of commerce. The Amended

Complaint has alleged that the company’s intentional

torts outside Colorado have had harmful effects in Colorado. Additionally, the Local Governments have alleged

that ExxonMobil’s misrepresentations were received by

consumers in Colorado. The Local Governments have

therefore met their burden to show that the claims arise

from ExxonMobil’s transaction of business within the

state and/or the commission of alleged tortious acts within

the state, sufficient to satisfy the requirements of the

long-arm statute.

b. Due Process Clause—Specific Jurisdiction

The Fourteenth Amendment’s Due Process Clause

limits a state court’s power to exercise jurisdiction over a

defendant. International Shoe Co., 326 U.S. at 316. In the

seminal International Shoe opinion, the U.S. Supreme

Court held that a trial court’s authority depends on the

defendant having such contacts with the forum state such

that maintenance of the suit is reasonable and does not

offend traditional notions of fair play and substantial justice. Id. at 316-17.

Specific personal jurisdiction exists where a defendant

has sufficient “minimum contacts” with the forum state,

looking first to whether the defendant purposefully

availed itself of the forum through activities in or affecting

the forum and second whether there is sufficient nexus

such that the plaintiff’s claims “arise out of or relate to the

defendant’s contacts.” Burger King Corp. v. Rudzewicz,

471 U.S. 462, 472, 475 (1985); Keefe, 40 P.3d at 1271. The

contacts must show that the defendant deliberately

“reached out beyond” its home, by for example, exploiting

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a market in the forum state or entering a contractual relationship centered there. Walden v. Fiore, 571 U.S. 277,

285 (2014). Additionally, defendants must have “fair warning” or “knowledge that a particular activity may subject

[it] to the jurisdiction of a foreign sovereign.” Ford Motor

Company, 592 U.S. at 360 (citations omitted).

i. Purposeful Availment

In its Rule 12(b)(2) Motion to Dismiss, filed in December 2019, ExxonMobil acknowledged that the first part of

the minimum contacts test—purposeful availment, was

satisfied. Based on the allegations in the Amended Complaint, it is undisputed that the purposeful availment requirement has been satisfied.

ii. Substantial Nexus

In support of its Rule 12(b)(2) Motion, ExxonMobil argued that the second requirement for specific jurisdiction—sufficient nexus—requires a showing of “but for”

causation, which it contended, was not met here. In 2021,

however, the U.S. Supreme Court explicitly rejected this

causation standard. Ford Motor Company, 592 U.S. at

361. The “but for” requirement had been viewed as arising

from Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255, 262 (2017). Ford Motor put that notion to rest, concluding that strict causation is not required so long as there is a meaningful relationship between the alleged forum contacts and the plaintiff’s

claims. 592 U.S. at 361-62.4

In its initial briefing, ExxonMobil relied heavily on several decisions that had applied the “but- for” causation test to claims brought

against fossil fuel companies in climate change litigation, including

City of Oakland v. BP P.L.C, 2018 WL 3609055, at *3 (N.D. CA 2018).

This U.S. District Court decision was vacated by the Ninth Circuit in

City of Oakland v. BP, P.L.C., 969 F.3d 895 (9th Cir. 2020), and the

4

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Eschewing the but-for causation test espoused by

ExxonMobil in its core briefing, the U.S. Supreme Court

held that a sufficient nexus exists where there are either

related activities or an occurrence in the forum. Id. at 360.

The Ford Motor Court emphasized the importance of a

global company’s extensive forum contacts in showing

nexus and reasonableness. In particular, the Court noted

that Ford had advertised its cars and engaged with franchises to sell cars, parts, and maintenance services in

Montana. Id. at 355-56, 365. Even though Ford did not sell

the particular vehicle that injured plaintiffs in Montana, a

unanimous Supreme Court held that Ford’s extensive

contacts with the forum state satisfied the nexus and reasonableness prong for specific jurisdiction. Id. at 364-65.

Here, if anything, ExxonMobil’s contacts with Colorado are more extensive than Ford’s contacts with Montana. ExxonMobil has advertised its products in Colorado.

AC, ¶¶ 107, 412-29. The company has engaged with Colorado franchises to sell its products in Colorado. AC, ¶¶ 7480, 112-19. Further, ExxonMobil has produced, sold, and

transported fossil fuels in Colorado. AC, ¶¶ 107-08, 110,

121-22. These actions amply demonstrate that ExxonMobil has “reached out beyond its home” and has had extensive contacts with Colorado.

Ford Motor also foreclosed ExxonMobil’s argument

that it conducts so much business globally that it cannot

be sued in a local jurisdiction that does not have general

jurisdiction over the company. The U.S. Supreme Court

noted that Ford was a global company that markets, sells,

and services its products across the United States and

overseas, and to enhance its brand and increase its sales,

determination that plaintiffs failed to adequately plead “but for” causation conflicts with Ford Motor.

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the company engages in wide-ranging promotional activities, including television, print, online, and direct-mail advertisements. Id. at 355. “No matter where you live,

you’ve seen them.” Id. Despite this global presence, Ford

could be haled into court in Montana for contacts that related to plaintiffs’ harm. The same can be said for ExxonMobil here. AC, ¶¶ 74-80, 107-22, 412-29. ExxonMobil’s

“too big to be sued in Colorado” argument therefore fails.

Ford Motor also establishes that ExxonMobil’s extensive forum contacts relate to the harms alleged in the

Amended Complaint, as ExxonMobil’s sales and marketing contacts are of the same type recognized as sufficient

in Ford Motor. 592 U.S. at 355-56, 365. The Amended

Complaint alleges that “activities” such as the company’s

sales and advertisements have contributed to “occurrences” such as fires, droughts, and beetle infestations.

AC, ¶¶ 222-23, 415-16. According to the Amended Complaint, ExxonMobil’s extensive activities therefore have a

relationship or connection with the harms facing the Local

Governments’ communities. Ford Motor, 592 U.S. at 376

(Gorsuch, J., concurring). See also Archangel, 123 P.3d at

1194 (for specific jurisdiction, the actions of the defendant

giving rise to the litigation created a substantial connection with the forum state); Etchieson v. Central Purchasing, LLC, 232 P.3d 301, 308 (Colo. App. 2010) (finding specific jurisdiction reasonable when company had extensive

forum contacts).

To be sure, Ford Motor clarified that there are “real

limits” to specific jurisdiction. 592 U.S. at 362. For instance, where there is no connection between the forum

and the plaintiff, or where the defendant’s forum contacts

are “isolated and sporadic,” jurisdiction over the defendant is unreasonable. Id. at 366, n.4. Here, however, the Local Governments are Colorado communities, and as set

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forth above, according to the Amended Complaint, ExxonMobil’s contacts are far more than isolated or sporadic—they are extensive.

iii. Reasonableness and Fair Notice

In its briefing, ExxonMobil contends that it could not

anticipate that in producing and selling fossil fuels it could

be sued for harms in Colorado. Supplemental Briefing, p.

4 (October 24, 2023). In Ford Motor, the U.S. Supreme

Court rejected a similar argument advanced by Ford.

Ford argued that it was surprised at being brought into

court in the forum where the injuries occurred because

some of the conduct also occurred outside Montana. 592

U.S. at 366-67. The U.S. Supreme Court held that only an

activity or an occurrence in the forum state is required,

and because Ford was regularly marketing its products in

the forum, it had “clear notice” that it would be subject to

jurisdiction. Id. at 368.

Here, ExxonMobil has “done business in Colorado

since at least the 1930s.” AC, ¶ 105. There is no dispute

that the company purposefully availed itself of the Colorado market. Further, according to the Amended Complaint, ExxonMobil knew that the production and sale of

fossil fuels was altering the climate and causing damages

like those allegedly suffered by the Local Governments.

Id. at ¶¶ 344-45, 353, 356-62. Ford Motor clarified that the

fact that a multi- national company sold a product in other

states does not impair the plaintiffs’ ability to sue in the

forum where they were injured. 592 U.S. at 360. The federalism concerns animating the Due Process Clause do

not require the Colorado Local Governments to pursue

ExxonMobil in New Jersey or Texas state courts. Rather,

Ford Motor and due process jurisprudence establishes

that the Local Governments may bring their claims in the

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forum in which they reside and in which harm has occurred. Colorado has an interest in providing a convenient

forum and remedying local harms relating to alleged misconduct.

iv. City and County of Honolulu

City and County of Honolulu v. Sunoco LP, 537 P.3d

1173 (Haw. 2023), cert. petition docketed, No. 23-947 (U.S.

Mar. 1, 2024), bolsters the conclusion that ExxonMobil is

subject to specific jurisdiction in Colorado for the claims

alleged in the Amended Complaint. Similar to this case, in

City and County of Honolulu, the local governments

brought suit against a number of oil and gas producers alleging several tort claims under state law: public nuisance, private nuisance, strict liability failure to warn,

negligent failure to warn, and trespass. In affirming the

denial of the motions to dismiss, the Hawaii Supreme

Court held that the defendants were subject to specific jurisdiction in Hawaii state court. Id. at 1189.

The Hawaii Supreme Court observed that specific jurisdiction over the defendant oil and gas companies was

more apparent than Montana’s exercise of specific jurisdiction over Ford. Id. at 1191. In particular, the Court

held that the defendants, which had sold and marketed

fossil fuel products in Hawaii, had availed themselves of

Hawaii’s markets and laws and were therefore subject to

specific jurisdiction for both in-state and out-of-state tortious acts that arose out of or related to those contacts. Id.

Citing Ford Motor, the Hawaii Supreme Court determined that the plaintiffs did not need to allege that their

injuries were caused by defendants’ fossil fuels being

burned in the forum state; rather, specific jurisdiction for

climate change injuries attached for both in-state and outof-state tortious conduct when those claims arise out of,

or relate, to “Defendants sale and promotion of oil and

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gas” in the forum state. Id. Additionally, when the three

prongs of the minimum contacts test are met, the defendant has fair warning it could be subject to specific jurisdiction, and the exercise of specific jurisdiction comports

with due process. Id. at 1193. Lastly, the Court concluded

that it was reasonable for Hawaii trial courts to exercise

specific jurisdiction over the defendants, and that the exercise of jurisdiction did not conflict with interstate federalism principles because Hawaii had a “significant interest in providing its residents with a convenient forum for

redressing injuries inflicted by out-of-state actors.” Id. at

1194 (internal quotation marks omitted).

While not binding on this court, the Hawaii Supreme

Court’s analysis of specific jurisdiction in a similar action

is persuasive authority.

For the foregoing reasons, the Court concludes that

the Local Governments have met their burden to show

that specific jurisdiction over ExxonMobil is present here.

The Local Governments have established a strong relationship between ExxonMobil, this forum, and the litigation. See City and County of Honolulu, 537 P.3d at 1194.

Indeed, this relationship and ExxonMobil’s contacts with

Colorado are more extensive and stronger than Ford’s

contacts with Montana in Ford Motor.

B. Suncor Canada’s Motion to Dismiss for Lack of

Personal Jurisdiction

Suncor Canada has moved to dismiss the claims

against it for lack of personal jurisdiction under C.R.C.P.

12(b)(2). This entity does not own the oil and gas refinery

in Commerce City. The Court indisputably has personal

jurisdiction over Suncor Energy, which owns and operates the Commerce City refinery (AC, ¶ 57) and Suncor

Sales, which operates 47 retail gas stations in Colorado

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(AC, ¶ 58). Suncor Canada is the parent entity, and maintains that it has no substantial connection to Colorado to

support the exercise of personal jurisdiction. The Local

Governments counter that the Court has general jurisdiction over Suncor Canada and specific jurisdiction by virtue of Suncor Canada’s activities and through its subsidiaries’ contacts with and activities in Colorado.

Courts may decide a Rule 12(b)(2) motion either by

holding a hearing or based solely on documentary evidence and the allegations in the complaint. Foundation

for Knowledge, 234 P.3d at 677. In the absence of a hearing,5 the Local Governments have the burden to establish

a prima facie case of personal jurisdiction. Archangel, 123

P.3d at 1192. The Local Governments may make a prima

facie showing by raising “a reasonable inference that the

court has jurisdiction over the defendant.” Foundation

for Knowledge, 234 P.3d at 677. This “light burden” is intended to “screen out cases in which personal jurisdiction

is obviously lacking.” Id. Unlike a motion to dismiss under

C.R.C.P. 12(b)(5), the allegations in the complaint must be

accepted as true only to the extent they are not contradicted by the defendant’s competent evidence. Id.; Archangel, 123 P.3d at 1192. When plaintiffs submit competent

5

Neither party requested an evidentiary hearing. Plaintiffs’ Response, p. 6 (filed March 19, 2020); June 2, 2023 Minute Order (Plaintiffs’ Motion for Conditional Discovery, filed December 30, 2019, is

moot because the Court did not hold an evidentiary hearing. In support of its Rule 12(b)(2) Motion to Dismiss, Suncor produced the Affidavit of Greg Freidin as Exhibit A. In Response, the Local Governments attached the Declaration of Naomi Glassman-Majara and 26

exhibits (Exhibits A-Z). In Reply, the Energy Companies attached

the Declaration of Nancy Thonen, with Exhibits 1-18, and the Declaration of Patricia O’Reilly, with Exhibits 1-2.

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rebuttal evidence, the parties’ competent evidence presents conflicting facts, and discrepancies are to be resolved in plaintiff’s favor. Id.

1. General Jurisdiction

Suncor Canada is a Canadian corporation with its

principal place of business and corporate headquarters in

Calgary, Alberta. AC, ¶¶ 47, 89. Unlike ExxonMobil, this

entity is not registered to do business in Colorado. Suncor

Canada has no offices in Colorado, has no operations in

Colorado, has not produced or refined any fossil fuels in

Colorado, and has not marketed or sold any fossil fuels to

customers in Colorado. Motion to Dismiss for Lack of Personal Jurisdiction, Exhibit A, ¶¶ 5-6, 8, 11, 15-16 (December 19, 2019).

The Local Governments’ conclusory allegation that

Suncor Canada is “at home” in Colorado and therefore

subject to general jurisdiction is not supported by specific

factual allegations or any evidence in the record. Because

Suncor Canada’s place of incorporation and principal

place of business are both located in Canada, under federal and Colorado case law, Suncor Canada is not “at

home” in Colorado for jurisdictional purposes. Daimler,

571 U.S. at 137; Magill, 379 P.3d at 1037. Because general

jurisdiction subjects the entity to all lawsuits in the jurisdiction of every nature, “only a limited set of affiliations

with a forum will render a defendant amenable to all-purpose jurisdiction there.” Magill, 379 P.3d at 1037 (quoting

Daimler, 571 U.S. at 137). As the place of incorporation

and principal place of business are easily ascertainable, “a

corporation may reasonably anticipate being haled into

court in either place.” Magill, 379 P.3d at 1037; Daimler,

571 U.S. at 137.

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General jurisdiction may be exercised over a corporation outside its principal place of business or its place of

incorporation only in an “exceptional case.” Magill, 379

P.3d at 1039, Daimler, 571 U.S. at 139, n.19. More specifically, an entity that conducts continuous and systematic

activities of a general business nature in the forum may

be subject to general jurisdiction in the forum. Giduck v.

Niblett, 408 P.3d 856, 863 (Colo. App. 2014). These activities must be extensive and deep to meet the high bar set

for exceptional circumstances. See Daimler, 571 U.S. at

123 (having a regional office and other facilities, being the

largest supplier of luxury vehicles, and having 2.4% of

worldwide sales attributable to California does not constitute continuous and systematic activities); Magill, 379

P.3d at 1038 (Ford’s contacts with Colorado did not meet

the continuous and systematic test where Ford had a registered agent in Colorado, Ford conducted aggressive

marketing, Ford sold cars through 30 franchised Colorado dealerships, Ford maintained several offices and

businesses in the state, Ford trained and certified mechanics to work with Colorado consumers, and Ford had

actively litigated cases in Colorado). Here, the Local Governments have not alleged any set of exceptional facts

supporting general jurisdiction in Colorado, and the record does not contain any. See Motion to Dismiss for Lack

of Personal Jurisdiction, Exhibit A, ¶¶ 7-16 (December 19,

2019) (Suncor Canada does not have any direct contacts

with Colorado).

In Response, the Local Governments seek to distinguish Daimler and Magill and argue that unlike the defendants in those cases, Suncor Canada’s U.S.-based contacts are primarily with Colorado. AC, ¶ 90. The Local

Governments therefore reason that there is only one U.S.

state where Suncor Canada could be considered essentially at home and subject to suit—Colorado. Response,

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pp. 22-23 (March 19, 2020). However, the alleged fact that

Suncor Canada has more connection to Colorado than any

other U.S. state is not relevant in determining whether

Suncor Canada is essentially at home in Colorado. The

Local Governments have not cited to legal authority establishing that a foreign business entity must have general jurisdiction with the U.S. state for which it has the

most connection.

The Court therefore concludes that Suncor Canada is

not “at home” in Colorado, and therefore, general jurisdiction over this foreign corporation does not exist.

2. Specific Jurisdiction

The legal standards for assessing specific personal jurisdiction set forth above in section (A)(2) apply here.

First, for specific jurisdiction to apply, the defendant

must purposefully avail itself of the privilege of conducting business in the forum state. Keefe, 40 P.3d at 1271;

Burger King, 471 U.S. at 472; Archangel, 123 P.3d at

1198-1200. In Archangel, the Colorado Supreme Court

held that a Russian company that was not authorized to

do business in Colorado, had no registered agent in Colorado, had no property interests in Colorado, had no financial transactions in Colorado, and had no assets in Colorado did not purposefully avail itself of the privilege of doing business in Colorado. Id. at 1196-98. The 70 communications with plaintiff, a Colorado resident, were deemed

fortuitous and insufficient to trigger purposeful availment. Id. at 1197.

Here, like in Archangel, Suncor Canada is a corporation organized under a foreign nation’s laws with its principal place of business located outside the United States.

Motion, Exhibit A, ¶¶ 5-6 (December 19, 2019). Suncor

Canada is not authorized to do business in Colorado, has

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no registered agent in Colorado, and has no facilities in

Colorado. Id. at ¶¶ 8, 10-11, 13, 15. Its operations, including its employees and sales, are outside Colorado. Id. at

¶¶ 12, 14-16. The Court therefore concludes that the Local

Governments have not established a prima facie case that

Suncor Canada has availed itself of the privilege of doing

business in Colorado.

Second, there is not a substantial nexus between the

Local Governments’ claims and Suncor Canada’s activities in Colorado. As set forth above, in Ford Motor, the

U.S. Supreme Court held that a sufficient nexus exists

where there is a meaningful relationship between the alleged forum contacts and a plaintiff’s claims. 592 U.S. at

359. This prong of the specific jurisdiction test requires

that “the actions of the defendant giving rise to the litigation must have created a ‘substantial connection’ with the

forum state.” Archangel, 123 P.3d at 1194.

Here, the Local Governments have not pled facts alleging a substantial connection between their claims and

Suncor Canada’s Colorado-related contacts. The allegations specific to Suncor Canada relate to its history and

general background. AC, ¶¶ 47-51. The Amended Complaint does not allege that Suncor Canada itself took any

actions in Colorado to purposefully direct harm at Colorado residents. Indeed, as set forth above in section (B)(1),

there are no allegations or competent evidence in the record that Suncor Canada conducts any operations or business in Colorado.

In support of specific jurisdiction, the Local Governments contend that Suncor Canada’s actions in contributing to global climate change satisfy the requirements of

specific jurisdiction in Colorado. AC, ¶¶ 7-9, 15-17, 123-38.

Unlike the allegations against ExxonMobil and Suncor

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Energy and Suncor Sales, however, the Amended Complaint does not identify any Colorado business activity

conducted by Suncor Canada itself. In short, there is no

alleged substantial connection between Suncor Canada

and Colorado sufficient for specific personal jurisdiction

to attach to Suncor Canada.

In Response, the Local Governments place extensive

reliance on Calder v. Jones, 465 U.S. 783 (1984) for the

proposition that Suncor Canada is subject to jurisdiction

for the in-state effects of its tortious out-of-state acts. Response, pp. 9-10 (March 19, 2020). In Calder, the U.S. Supreme Court held that California had specific jurisdiction

over two out-of-state defendants where the writing and

editing of an allegedly libelous article was expressly

aimed at California. Id. at 786-87. Based on the facts of the

case, the Court concluded that California was the focal

point for both the story and the harm suffered. Id. at 78991. Here, for Calder to apply, the conduct at issue must

have been expressly aimed at Colorado in particular. Instead, while harm is alleged to Colorado, there are no allegations that Suncor Canada expressly aimed the harm

at Colorado. See AC, ¶¶ 134, 137.

Likewise, the fact that the Local Governments are located in Colorado and suffer injuries from global climate

change (AC, ¶ 89) is in and of itself insufficient to confer

specific jurisdiction over Suncor Canada. See Walden v.

Fiore, 571 U.S. 277, 291 (2014) (the mere fact that defendant’s conduct affected plaintiffs with connections with the

forum state, in and of itself, does not authorize specific jurisdiction). This injury-based theory of personal jurisdiction would conceivably confer jurisdiction on every court

to exercise limitless jurisdiction over every entity and individual generating emissions in the world.

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In their Response, the Local Governments also rely on

a stream of commerce argument, contending that Suncor

Canada delivers its products into the stream of commerce

with the expectation that they will be purchased by consumers in Colorado, and is therefore subject to specific jurisdiction for the fossil fuels that were sold and burned in

Colorado. Response, p. 9 (March 19, 2019). The stream of

commerce theory of jurisdiction arose in the products liability context, Avocent Huntsville Corp. v. Aten International Co., Ltd., 552 F.3d 1324, 1331 (Fed. Cir. 2008), and

courts have been “reluctant to extend the stream of commerce principle outside the context of products liability

cases.” Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465,

472 (5th Cir. 2006). Critically, Colorado courts have not

applied this theory outside the products liability context.

In the absence of precedential authority applying the theory outside the products liability context, the Court declines the invitation to apply it here.

The Local Governments also contend that Suncor

Canada participated in a conspiracy, and the forum-related acts of the co-conspirators may be imputed to Suncor Canada for jurisdictional purposes. Response, p. 14

(March 19, 2020). As acknowledged by the Local Governments, however, Colorado has not recognized a conspiracy theory of personal jurisdiction. See First Horizon

Merchant Services v. Wellspring Capital Management,

LLC, 166 P.3d 166, 178 (Colo. App. 2007) (some courts outside of Colorado have recognized this theory).

The Court therefore concludes that the Local Governments have not made a prima facie showing that Court has

specific personal jurisdiction over Suncor Canada, itself.

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3. Jurisdiction Through Subsidiary Companies as

Agents

In support of their personal jurisdiction argument, the

Local Governments primarily contend that the Court has

personal jurisdiction over Suncor Canada based on the

Colorado contacts of six subsidiary companies.6 Plaintiffs

allege that these subsidiaries are agents of Suncor Canada and that Suncor Canada is a “single enterprise.” AC,

¶¶ 50-51. Further, the Local Governments allege that

Suncor Canada “directs the operations of its subsidiaries

through a common design.” Id. at ¶¶ 52, 90. In particular,

the Local Governments allege that through its subsidiaries, Suncor Canada promotes fossil fuel use in Colorado,

sells fossil fuels in Colorado, operates a petroleum refinery in Colorado, and operates pipeline systems that

transport crude oil to a refinery in Colorado. Id. at ¶ 91.

They also allege that through the subsidiaries, Suncor

Canada emitted GHGs through transportation, production, and refinery activities. Id. at ¶ 92. While this argument holds superficial appeal, as set forth below, Colorado

law does not support this personal jurisdiction through

subsidiary theory.

In 2016, the Colorado Supreme Court issued a pair of

decisions addressing whether a court may impute the contacts of subsidiary companies to a parent entity. Griffith

v. SSC Pueblo Belmont Operating Co., 381 P.3d 308, 310

(Colo. 2016); Meeks v. SSC Colorado Springs Colonial

Columns Operating Co., 380 P.3d 126, 128 (Colo. 2016).

6

The six subsidiary companies are Defendant Suncor Energy

(U.S.A.) Inc., Defendant Suncor Energy Sales, Inc., Suncor Energy

(U.S.A.) Pipeline Company, Suncor Energy (U.S.A.) Marketing, Inc.,

Petro-Canada Resources (U.S.A.), Inc., and Suncor Energy Services,

Inc. AC, ¶¶ 94-104.

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Under the Griffith test, to impute the contacts to the parent to establish jurisdiction, the corporate veil of the subsidiary must be pierced. Under the veil piercing test, a

plaintiff must show (1) the entity is merely the alter ego

of the member, (2) the corporate form is used to perpetuate a wrong, and (3) disregarding the legal entity would

achieve an equitable result. 381 P.3d at 313. Unless the

corporate veil is pierced, the trial court is to “treat each

entity separately and analyze only the contacts that each

parent company has with the state when performing the

personal jurisdiction analysis.” Id. at 311. Parental control of subsidiary entities or even operating as a single enterprise is insufficient to justify the imputation of a subsidiary’s forum contacts to the parent.

In Griffith, the trial court found that the parent entities and their in-state affiliates operated as one business,

that the non-resident affiliates “collectively controlled the

operations, planning management, and budget” of the instate resident affiliate, and the non-resident entities financially benefited from the resident company. Id. at 314.

The Colorado Supreme Court held that these findings

were inadequate to impute the in-state subsidiary’s contacts to the parent. Id. In Meeks, the Court clarified that

trial courts must apply the Griffith veil piercing test “to

determine whether nonresident parent companies may be

haled into court in Colorado based on the actions of their

resident subsidiaries.” 380 P.3d at 128.

The authorities relied on by the Local Governments in

support of the agency through subsidiary argument predated Griffith and Meeks. See, e.g., Goettman v. North

Fork Valley Restaurant, 176 P.3d 60, 67 (Colo. 2007); SGI

Air Holdings II, LLC v. Novartis International AG, 239

F.Supp.2d 1161, 1166 (D. Colo. 2003); Horizon Merchant

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Services v. Wellspring Capital Management, LLC, 166

P.3d 166, 177-78 (Colo. App. 2007).

Here, the Amended Complaint does not allege that the

corporate veil of the Suncor entities should be pierced, nor

does it contain factual allegations supporting veil piercing.

Instead, the Local Governments generally allege that the

subsidiaries are agents within a single enterprise, such as

Suncor Canada exercising control of its corporate family.

AC, ¶¶ 50-51. More detailed allegations include an allegation that a 2017 Suncor Canada annual report used the

words “we” and “Suncor” to refer to Suncor Canada and

its affiliates, that Suncor Canada announced plans for

maintenance of two refineries run by affiliates, that Suncor Canada controls and directs fossil fuel activities across

its corporate family, that Suncor Canada prepares consolidated financial statements that include its subsidiaries,

that the 2017 annual report referred to the Commerce

City refinery as “our” refinery, that Suncor Canada backs

the business of its subsidiaries, and that members of the

corporate family cannot refuse to participate in fossil-fuel

commerce. Id., ¶¶ 50-53, 56, 60; see also Response, Exhibits A-Z (webpages and articles referencing “Suncor Energy”). These agency-based allegations and information

are irrelevant to the veil piercing test pronounced by Griffith and Meeks. At the very least, they are insufficient to

meet the high bar imposed by the alter ego test.

Additionally, the Amended Complaint does not contain factual allegations to meet the 3-part veil piercing

test. First, the Amended Complaint does not contain allegations or facts that could establish that Suncor Canada

and its subsidiaries are alter egos. See In re Phillips, 139

P.3d 639, 644 (Colo. 2006) (courts should examine 11 alterego factors to pierce the corporate veil of a parent company). Second, the Amended Complaint does not allege

86a

that the subsidiary entities’ corporate structure is merely

a fiction used to perpetuate a fraud or defeat a rightful

claim. Third, the Amended Complaint does not contain allegations that disregarding the corporate structure would

achieve an equitable result.

The Court therefore concludes that the Local Governments have not made a prima facie showing that the Court

has specific jurisdiction over Suncor Canada by virtue of

the actions of its subsidiaries and affiliate companies.

4. Fair Play and Substantial Justice

Lastly, to establish personal jurisdiction over Suncor

Canada, assuming that Suncor Canada has any minimum

contacts with Colorado, the Court would also need to consider whether exercising personal jurisdiction would offend traditional notions of fair play and substantial justice.7 Archangel, 123 P.3d at 1194-95. Factors to consider

are the burden on the defendant, the forum state’s interest in resolving the controversy, and the plaintiff’s interest in attaining effective and convenient relief. Id. at 1195.

Where, as here, a defendant’s minimum contacts with Colorado are weak, the less a defendant needs to show unreasonableness. Id.

First, in assessing burden, courts are to consider the

unique burdens on business entities defending against litigation in a foreign country. Asahi Metal Industries Co.

v. Superior Court of California, 480 U.S. 102, 114-15

(1987); Benton v. Cameco Corp., 375 F.3d 1070, 1078-79

(10th Cir. 2004). That said, the Court notes that Suncor

7

Based on the analysis above, it is unnecessary to address this

prong, but the Court does so for the sake of completeness for review

purposes.

87a

Canada has extensive resources and has been ably represented in this litigation by experienced local counsel. Second, this ruling does not affect the claims against Defendants Suncor Energy or Suncor Sales. Given the presence

of these Defendants and their Colorado assets, Colorado

appears to have minimal interest in adding a third Suncor

entity, particularly one that has no operations, property,

or personnel in Colorado. Third, subject to a ruling on the

C.R.C.P. 12(b)(5) Motion, the Local Governments may

pursue their claims in this litigation against Suncor Energy and Suncor Sales.

The Court therefore concludes that, on balance, exercising specific personal jurisdiction over Suncor Canada

would offend traditional notions of fair play and substantial justice.

Suncor Canada’s Motion to Dismiss under C.R.C.P.

12(b)(2) is therefore granted. There are no issues of disputed jurisdictional fact, and the Local Governments have

not made a prima facie case that the Court has either general or specific personal jurisdiction over Suncor Canada.

Based on the Amended Complaint’s allegations and evidence attached to the Response, there is no reasonable inference that the Court has personal jurisdiction over Suncor Canada.

C. The Energy Companies’ Motions to Dismiss for

Failure To State a Claim Under C.R.C.P. 12(b)(5)

The Energy Companies initially contend that the Local Governments’ claims are preempted by federal law.

First, they maintain that the claims are governed by federal common law, and not state common law, and should

therefore be dismissed. Second, the Energy Companies

assert that if not displaced by federal common law, the

claims are preempted by the federal Clean Air Act and

88a

other federal statutes. Third, the Motion to Dismiss contends that the claims are precluded based on five other

federal law theories.

Next, if the claims are not preempted by federal law,

the Energy Companies maintain that they are not viable

claims under state law, because (1) the Local Governments lack standing; (2) the claims are barred by the applicable statutes of limitations, and (3) the Local Governments cannot plausibly allege causation. Then, if the

claims survive, the Energy Companies argue that each

claim should be dismissed for failure to state a claim under Colorado law.

Each of these arguments is addressed in turn.

1. Federal Preemption—Framing the Issues in

this Litigation

As a threshold matter, before delving into the federal

preemption claims, the Court must determine and clarify

the claims made by, and the relief sought, by the Local

Governments. The Energy Companies frame the issue as

the Local Governments’ “attempt to use this state’s tort

law to control the worldwide activity of companies that

play a crucial role in virtually every sector of the global

economy.” Motion to Dismiss for Failure to State a Claim,

p. 1 (December 19, 2019). They further posit that the

claims “raise federal statutory, regulatory, and constitutional concerns; threaten to upset bedrock federal-state

divisions of responsibility; and have profound implications

for the global economy, international relations, and America’s national security.” Id. The Energy Companies characterize the Local Governments’ claims as asking the

court “to disregard well- established boundaries of tort

law, hold select Defendants liable for the actions of billions

of third parties, and adjudicate whether Plaintiffs’ alleged

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harms outweigh the massive and undeniable social utility

of fossil fuels—not just in Colorado, but around the

world.” Motion to Dismiss for Failure to State a Claim, pp.

2-3 (December 19, 2019).

Conversely, the Local Governments frame the issue as

seeking compensation for harms caused in their jurisdictions. They represent that they are not asking the Court

to weigh the costs and benefits of fossil fuels nor revisit

federal government decisions. Response, p. 1 (February

6, 2020). Rather, the Local Governments allege that the

Energy Companies have altered the climate by producing, selling, and promoting fossil fuels at levels they knew

would bring catastrophic harm to Colorado. They further

allege that the Energy Companies accelerated the pace

and exacerbated the harm by concealing and misrepresenting the dangers of unchecked fossil fuel consumption

to increase their sales. The consequences of these actions

have led to an altered climate with concomitant costs in

the Local Governments’ jurisdictions. AC, ¶¶ 222-23, 24348, 250-92, 300-17. Therefore, at issue in the motion to dismiss for failure to state a claim is whether, under established Colorado law, a jury can consider whether the Energy Companies bear any liability for the Local Governments’ damages.

Resolution of this framing issue is important as it significantly impacts the federal preemption analysis, and to

a lesser extent, the analysis pertaining to the viability of

the state law claims.

Critically, the U.S. District Court of Colorado and the

Tenth Circuit have both weighed in on this issue—in this

very case. As the Local Governments aptly put it in their

Response, the Energy Companies are arguing against a

case the Local Governments did not plead. Through this

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action, the Local Governments are not attempting to litigate a policy solution to global climate change, limit fossil

fuel use or production, or control greenhouse gas emissions. See Board of County Commissioners v. Suncor Energy (U.S.A.), Inc., 405 F.Supp.3d 947, 955 (D. Colo. 2019)

(the Local Governments “do not ask the Court to stop or

regulate Defendants’ emissions of fossil fuels”). The Local

Governments are not asking this Court to weigh the costs

and benefits of fossil fuels nor revisit policy decisions

made by the federal government for purposes of controlling or regulating emissions.

In remanding this action back to state court, the U.S.

District Court of Colorado observed that the Local Governments “do not allege that any federal regulation or decision is unlawful,” nor do they ask “the Court to consider

whether the government’s decisions to permit fossil fuel

use and sale are appropriate,” nor do they “challenge or

seek to impose federal emissions regulations, and do not

seek to impose liability on emitters.” Id. at 969-71. The

U.S. District Court therefore concluded that the Energy

Companies did not present “an accurate characterization

of the Plaintiffs’ claims.” Id. at 971.

On remand from the United States Supreme Court,

the Tenth Circuit held that none of the six grounds asserted by the Energy Companies supported federal removal jurisdiction, and affirmed the district court’s order

remanding this action to state court. Board of County

Commissioners of Boulder County v. Suncor Energy

(USA), Inc., 25 F.4th 1238, 1275 (10th Cir. 2022). Like the

U.S. District Court, the Tenth Circuit characterized this

lawsuit as “about damages related to climate change.” Id.

at 1247. According to the Tenth Circuit, the Local Governments “do not ask the court ‘to stop or regulate’ fossil-fuel

production or emissions ‘in Colorado or elsewhere.’” Id. at

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1248. They instead request that the Energy Companies

“help remediate the harm caused by their intentional,

reckless and negligent conduct, specifically by paying

their share of the costs [the Local Governments] have incurred and will incur because of [the Energy Companies’]

contribution to alteration of the climate.” Id. (internal citations omitted).

In addressing similar climate-change related litigation, courts from other jurisdictions have likewise concluded that the litigation is not aimed at controlling fossil

fuel emissions or amending federal energy policy, but rather the claims concern defendants’ “fossil fuel products

and extravagant misinformation campaign that contributed to its injuries.” Mayor & City Council of Baltimore

v. BP P.L.C., 31 F.4th 178, 217 (4th Cir. 2022); see also City

and County of Honolulu, 537 P.3d at 1187 (plaintiffs are

not seeking to set regulatory standards for how, whether,

or how much fossil fuels defendants produce or sell). In

City & County of Honolulu, the Hawaii Supreme Court

framed the plaintiffs’ complaint as seeking to “challenge

the promotion and sale of fossil-fuel productions without

warning and abetted by a sophisticated disinformation

campaign.” Id. at 1187 (citing Baltimore, 31 F.4th at 233).

In short, the Hawaii Supreme Court determined the complaint concerned torts committed in Hawaii that caused

alleged injuries in Hawaii. Id.

The Court notes that at least one other decision, City

of New York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir.

2021), rejected the conclusion that the lawsuit was about

production, sales, and misleading marketing; instead

characterizing the complaint as “artful pleading,” and determining that the claims were really about regulating

emissions. As the Local Governments point out, this fram-

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ing appears to be at odds with U.S. Supreme Court precedent. In Virginia Uranium v. Warren, 587 U.S. 761, 77273 (2019) (Gorsuch, J.), in a 3-Justice plurality opinion, the

Court rejected the parallel argument that Virginia’s mining ban was really a means of regulating radiation, regardless of whether the regulation had the purpose of addressing nuclear hazards.

Here, as in City and County of Honolulu, a major focus of the lit

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