Joint Appendix — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.

No. 25-170

In the Supreme Court of the United States

SUNCOR ENERGY (U.S.A.) INC., ET AL., PETITIONERS

v.

COUNTY COMMISSIONERS OF BOULDER COUNTY, ET AL.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF COLORADO

JOINT APPENDIX

KANNON K. SHANMUGAM

KEVIN K. RUSSELL

DAVIS POLK & WARDWELL LLP RUSSELL & WOOFTER LLC

1050 17th Street, N.W.

1701 Pennsylvania Avenue,

Washington, DC 20036

N.W., Suite 200

(202) 962-7000

Washington, DC 20006

kshanmugam@davispolk.com

(202) 240-8433

kr@russellwoofter.com

Counsel of Record

for Petitioners

Counsel of Record

for Respondents

PETITION FOR A WRIT OF CERTIORARI FILED: AUGUST 8, 2025

CERTIORARI GRANTED: FEBRUARY 23, 2026

TABLE OF CONTENTS

Amended complaint and jury demand,

June 11, 2018 ............................................................................. 1

Order and rule to show cause,

July 29, 2024 .......................................................................... 141

DISTRICT COURT, COUNTY OF BOULDER

STATE OF COLORADO

No. 2018-cv-30349

BOARD OF COUNTY COMMISSIONERS OF BOULDER

COUNTY; BOARD OF COUNTY COMMISSIONERS OF SAN

MIGUEL COUNTY; CITY OF BOULDER

PLAINTIFFS,

v.

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

SALES, INC.; SUNCOR ENERGY, INC.;

EXXON MOBIL CORPORATION

DEFENDANTS.

Filed: June 11, 2018

AMENDED COMPLAINT AND JURY DEMAND

Plaintiffs Board of County Commissioners of Boulder

County, Board of County Commissioners of San Miguel

County and the City of Boulder, through counsel, allege

the following against Defendants Suncor Energy (U.S.A),

Inc., Suncor Energy Sales, Inc., Suncor Energy, Inc. and

Exxon Mobil Corporation.

(1)

2

INTRODUCTION[*]

1.

The Plaintiffs in this case are three local governmental entities in the State of Colorado that face substantial and rising costs to mitigate the impacts of Defendants’

alteration of the climate (“climate change”) on their property, and on the health, safety and welfare of their residents.

2.

Plaintiffs bring this lawsuit against Exxon Mobil

Corporation (“Exxon”) and Suncor Energy (U.S.A), Inc.,

Suncor Energy Sales, Inc., and Suncor Energy, Inc. (collectively, the “Suncor Defendants”) for the substantial

role that their production, promotion, refining, marketing

and sale of fossil fuels played and continues to play in

causing, contributing to and exacerbating alteration of the

climate, thus damaging Plaintiffs’ property, and the

health, safety and welfare of their residents.

3.

As recognized by both Colorado’s Governor and

General Assembly, climate change will bring more (and

more serious) heat waves, wildfires, droughts, and floods

to the State, as well as myriad other consequences caused

by rapidly rising temperatures.

4.

These impacts have already harmed Plaintiffs’

property and impacted the health, safety and welfare of

their residents. The damages will only multiply as climate

change worsens. Plaintiffs are taking reasonable and necessary measures to address and abate these impacts

within their respective jurisdictions. As the impacts of climate change grow more severe, they will do more harm to

Plaintiffs and cause greater expense.

[

Table of contents omitted.

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5.

Alone, Plaintiffs and their taxpayers cannot pay

the full costs of all that is needed to attempt to mitigate

the harm caused by climate change, nor should they. The

costs should be shared by Exxon and the Suncor Defendants because they knowingly caused and contributed to

the alteration of the climate by producing, promoting, refining, marketing and selling fossil fuels at levels that

have caused and continue to cause climate change, while

concealing and/or misrepresenting the dangers associated with fossil fuels’ intended use.

6.

Plaintiffs are not asking this Court to stop or regulate the production of fossil fuels in Colorado or elsewhere, and they are not asking this Court to stop or regulate emissions in Colorado or elsewhere; they ask only

that Defendants help remediate the harm caused by their

intentional, reckless and negligent conduct, specifically by

paying their share of the costs Plaintiffs have incurred

and will incur because of Defendants’ contribution to alteration of the climate.

7.

Changes to the climate were caused, and continue to be exacerbated, by unchecked fossil fuel activities. Since the 1960s, unchecked production, promotion,

refining, marketing and sale of fossil fuels—which in turn

led to unchecked fossil fuel use—has caused an unprecedented rapid rise in the concentration of greenhouse

gases (GHGs) in the atmosphere. Fossil fuel use has occurred at a rate that accounts for nearly 80 percent of all

GHG emissions between 1970 and 2010. As a result, more

heat has been, is being and will continue to be, trapped by

the atmosphere, triggering changes to the climate.

8.

The hazards created by climate change are

real, recognized by every level of the government in the

United States, and pose a clear and present threat to

property and public health in Colorado. Climate change

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impacts in Colorado are and will continue to be severe.

For example, in 2017, the federal government reported

that “[t]he frequency and intensity of extreme high temperature events are virtually certain to increase” and

“[t]he incidence of large forest fires in the western United

States [which has already increased on account of climate

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

9.

These and other changes “are particularly important for human safety, infrastructure, agriculture, water quality and quantity, and natural ecosystems.”

10. Plaintiffs have taken substantial steps to prevent climate change, but have been harmed, and will

continue to suffer harms regardless. Climate change

has already injured Plaintiffs, as well as people and property in their communities. Recognizing this, Plaintiffs

have taken substantial steps to reduce their own GHG

emissions. They have taxed their residents to fund emission reduction efforts, limited their own fossil fuel use

and/or tried to prohibit or reduce the environmental impacts of fossil fuel production within their borders.

11. In spite of these efforts, and in light of the hazards that are here and worsening, Plaintiffs are spending,

and must continue to spend, millions of dollars to protect

their property and their residents from the impacts of climate change.

12. Defendants cannot contest the reasonableness or necessity of Plaintiffs’ climate response. While

Defendants publicly fought against climate science—to

protect their profits from the impacts of regulation and

informed public choice—they privately relied on the same

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established science to protect their businesses from climate change impacts. Now that Plaintiffs are also forced

to grapple with and respond to climate change, Defendants cannot contest the necessity of a response or Plaintiffs’ reliance on climate science.

13. While Plaintiffs have acted reasonably, Defendants have acted recklessly. Decades ago, Defendants understood that their fossil fuel activities were occurring at such a level to contribute to a dramatic rise in the

concentration of GHGs in the atmosphere; that “significant temperature changes” were likely to result, which

would, in turn, “bring about climatic changes”; that “there

[was] no leeway” time for remedial action; and that “[w]e

can either adapt our civilization to a warmer planet or

avoid the problem by sharply curtailing the use of fossil

fuels.” They were specifically warned that inaction could

cause “dramatic climatic changes,” including a temperature rise of 9°F, complete snow loss “in the contiguous

states, except on higher mountains,” and “major shifts in

weather patterns in the northern hemisphere.”

14. Despite receiving the warning that “fossil fuel

use should not be encouraged,” Defendants spent decades

producing, promoting, refining, marketing and selling fossil fuels (hereinafter “fossil fuel activities”) at levels that

have caused and contributed to alteration of the climate

without disclosing the dangers that continued fossil fuel

overuse posed.

15. Defendants’ fossil fuel activities have caused,

contributed to and exacerbated the impacts of humancaused climate change, thereby contributing to Plaintiffs’ injuries. Defendants are responsible for billions of

tons of the excess greenhouse gas emissions in the atmosphere. Their fossil fuel activities produced a substantial

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percentage of all the fossil fuels whose intended and foreseeable use—i.e., combustion—caused, contributed to

and exacerbated the impacts of climate change.

16. Moreover, long after they became aware of the

dangers of climate change, Defendants continued their

fossil fuel activities in an unchecked manner. Defendants

chose to develop fuel sources that create substantially

more GHGs than traditional fossil fuels when produced

and burned, notably those developed from the Canadian

tar sands1 and refined in Colorado.

17. Defendants’ present and planned fossil fuel

activities will accelerate and exacerbate climate

change and its impacts. Defendants continue their fossil

fuel activities at levels which will significantly contribute

to climate change. While they may now acknowledge the

reality of climate change, Defendants plan to increase

their fossil fuel activities in the future. The harm to Plaintiffs, including Plaintiffs’ costs of adapting to climate

change, will only increase if this happens.

18. Defendants acted to prevent and forestall

changes in energy use and supply that they knew were

needed to limit climate change, exacerbating the

harms suffered by Plaintiffs and their residents. By

hiding the dangers and harm they knew were occurring

and would occur because of their levels of fossil fuel activities and affirmatively misrepresenting the dangers of unchecked fossil fuel use, Defendants protected fossil fuel

demand, worked to lull consumers into a false sense of security with regard to the impacts of fossil fuels on climate

change, and obstructed the changes needed to prevent or

at least minimize the impacts of climate change.

1

Tar sands are also known as oil sands.

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I. PARTIES

A. Plaintiffs

19. The Plaintiffs in this case are the Board of

County Commissioners of Boulder County (“Boulder

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

BOULDER COUNTY

20. Plaintiff Boulder County, a subdivision of the

State of Colorado, is a body corporate and politic in the

State of Colorado empowered to sue and be sued. It lies in

north central Colorado, on the eastern slopes of the Rocky

Mountains in the Front Range Urban Corridor, encompassing 753 square miles.

21. Land within the County contains sub-alpine and

alpine ecosystems and a shrinking glacier. The County’s

west contains forests, slopes, mountain communities and

canyons, which hold creeks that bring water to the cities,

high plains, grasslands and farmlands of the County’s

east.

22. The County is home to roughly 319,000 people,

and includes both unincorporated areas—the rural,

mountainous and plains communities—and incorporated

towns and cities, including Plaintiff City of Boulder.

23. Boulder County has long held a commitment to

stewardship of the land, environment and community.

The eastern plains are rich in agricultural farmland, lakes

2

References in the Complaint to “Boulder,” or the “Boulder area,”

refer to the geographic area of Boulder County, which includes both

the incorporated towns and cities, including the City of Boulder, in

addition to the unincorporated areas of the County.

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and rolling pastures filled with distinctly defined cities

and communities, while the foothills and mountains to the

west feature prominent rock formations, forests and highaltitude valleys and sweeping vistas. Preserving the

County’s future in a way that maintains its agricultural

landscape, character and unique way of life is a top priority for County residents.

24. As a governmental entity, Boulder County takes

its stewardship responsibilities to heart and works daily

to further the County’s long-term vision for well-planned

urban development, economic vitality and the preservation of its rural and mountain communities.

25. In its unincorporated areas, Boulder County

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

26. The County provides a wide range of services to

residents in unincorporated areas, including health and

human services, emergency services, wildfire mitigation

and other necessary governmental functions. It also provides services to residents living in the incorporated areas

of Boulder County, including housing and human health

programs, as well as emergency services.

27. Boulder County owns or holds conservation easements over a substantial amount of real and other property for its own benefit and for that of its residents. This

includes 65,316 acres of publicly owned “open space”, i.e.,

County-owned public land preserved for recreation, conservation, and agricultural purposes. The County has a

duty to preserve and maintain this open space for future

generations. The County also holds conservation easements over roughly 40,000 acres of privately owned land,

9

which protect agricultural land, wildlife habitat and scenic

open space from development.

28. The County leases 25,000 acres of its open space

to sixty-seven agricultural tenants, generating approximately $125,000 in annual net income. In addition, the

County also owns, leases, and maintains and/or operates

more than 45 public buildings, and the County housing authority owns more than 800 units of affordable or subsidized housing.

29. People, property (including County-owned property), and infrastructure within Boulder County have

been and will continue to be damaged on account of climate change caused and contributed to by Defendants’ actions. Boulder County has taken substantial steps to abate

these hazards, and will and must continue to do so.

SAN MIGUEL COUNTY

30. Plaintiff San Miguel County is a body corporate

and politic of the State of Colorado empowered to sue and

be sued. It lies in southwest Colorado, on the western

slopes of the Rocky Mountains, encompassing 1,289

square miles. The County encompasses the high mountain

communities of Telluride (the County seat) and Mountain

Village at the eastern end of the County and arid ranching

communities in the County’s western end. In 2017, San

Miguel County had an estimated population of 7,967. Telluride, the County’s largest town, had an estimated population of approximately 2,500.

31. San Miguel County has historically valued

preservation of natural resources and land stewardship,

starting with the land ethic of the early ranching pioneers

who established the Town of Norwood, and continuing

through its commitment to preserving wild lands for recreational opportunities and ecosystem services. The San

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Miguel River connects the communities of the County

from the high alpine headwater towns dependent on consistent snow pack, forested landscapes and a healthy river

system to the agricultural communities dependent on

healthy spring runoff and summer flows.

32. In 2001, voters approved a mill levy for open

space and historic preservation. In 2005, San Miguel

County partnered with local governments to establish a

regional sustainability program whose mission was to reduce GHG emissions through an inventory and education

program. The mission of the San Miguel County Board of

Commissioners is to “ensure our residents are healthy

and flourishing and that our communities are safe and vibrant by: providing essential community services, practicing responsible stewardship of our environment, prioritizing long-term fiscal stability, and partnering with others

to enhance the quality of life in San Miguel County and

the region.”

33. San Miguel County provides emergency response services in the event of wildfires, floods, road

washouts and other threats to public health and safety. In

addition, the County owns and/or maintains hundreds of

miles of roads, including paved and gravel roads; as well

as dozens of bridges, numerous culverts and public buildings.

34. People, property (including County-owned property) and infrastructure within San Miguel County have

been and will continue to be damaged on account of human-caused climate change caused and contributed to by

Defendants’ actions. San Miguel County has taken substantial steps to abate these hazards, and will and must

continue to do so.

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THE CITY OF BOULDER

35. The City of Boulder is a home rule municipality

in the State of Colorado empowered to sue and be sued. It

lies in Boulder Valley at the foothills of the Rocky Mountains, 25 miles northwest of Denver. The City’s 25.8

square miles is surrounded by over 70 square miles of preserved City public land and parks space. It is bordered on

one side by the iconic Flatirons rock formations and on

the other side by the Great Plains.

36. The City of Boulder sits 5,430 feet above sea level

and is surrounded by a greenbelt of City trails and open

spaces. It is known for its natural beauty, outdoor recreation, natural product retailers and restaurants, outstanding alternative transportation options, diverse businesses

and technological and academic resources.

37. The City is home to roughly 108,000 people. It

serves as both the seat and the most populous municipality in Boulder County and is home to approximately onethird of the County’s residents. The City is also home to

the main campus of the University of Colorado and boasts

a high concentration of employment in STEM fields. In

addition to the well-renowned researchers at the University of Colorado Boulder, the City hosts a number of science and environmental organizations, including research

facilities for the National Center for Atmospheric Research and the National Oceanic and Atmospheric Administration.

38. The City and its residents have a long history of

planning for the challenges of tomorrow and fostering

sustainability. For decades, the City has taken, and the

community has supported, some of the most progressive

sustainability activities in the country, including a 40-plus

year legacy of open space preservation and pioneering

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commitments to climate action goals. Stewardship and

sustainability are part of the Boulder community DNA.

The City not only protects the health, security and livelihoods of its residents, it is a steward that protects the fabric of the community, its ecosystems and way of life, including for future generations.

39. The City of Boulder owns and/or maintains hundreds of miles of paved roads, over 40 major bridges, fourteen reservoirs, two water treatment plants, sewage and

stormwater drainage systems and other critical infrastructure.

40. The City provides a myriad of services that are

essential to the health, safety and welfare of its residents,

including: emergency services; public utilities, such as water supply and treatment; transportation infrastructure;

fire protection; flood controls; and parks and public outdoor space.

41. The City also owns a substantial amount of real

and other property for its own benefit and for the benefit

of its residents. This includes over 45,000 acres of “open

space.” The City leases 15,000 acres of that open space to

26 agricultural tenants. In addition to its open space holdings, the City owns, leases, maintains, and/or operates

many buildings and other structures.

42. The City of Boulder also owns substantial and

senior water rights, which it uses to supply water to its

residents and businesses, as well as to others outside the

City limits, and from which it derives revenue.3

Over the course of a year, the majority of the water supplied by

the City goes towards indoor uses, i.e., drinking and sanitation, with

a smaller share going towards irrigation. The balance shifts based on

seasons and water availability: a greater portion of the water goes

towards irrigation in the warmer and drier summer months though

3

13

43. The City’s water supply comes from both the

East and West Slopes of the Continental Divide of the

Rocky Mountains. The City’s East Slope sources are diverted from North Boulder Creek and Middle Boulder

Creek through City infrastructure; its West Slope sources

are conveyed from the upper Colorado River and delivered to the City for treatment through Northern Colorado Water Conservancy District facilities.

44. The City stores its water in fourteen different

City-owned and -operated reservoirs. The City treats its

water at two City-owned and -maintained facilities, and

the City transports its water—including, ultimately to

residents—through City-owned and -operated infrastructure.

45. People, property (including City-owned property) and infrastructure within the City of Boulder have

been and will continue to be damaged on account of climate change caused and contributed to by Defendants’ actions. The City of Boulder has taken substantial steps to

abate the hazards facing its residents, public property and

infrastructure, and will and must continue to do so.

B. Defendants

46. The Defendants in this case are Suncor Energy,

Inc. (“Suncor Energy”), Suncor Energy (U.S.A.) Inc.

(“Suncor USA”), Suncor Energy Sales, Inc. (“Suncor Energy Sales”), and Exxon Mobil Corporation (“Exxon”).

water for irrigation purposes is curtailed when water is in shorter

supply. The City also leases some of the water for agricultural purposes, when supplies permit.

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THE SUNCOR DEFENDANTS

47. Defendant Suncor Energy is a Canadian corporation with its registered and head office located in Calgary, Alberta. Suncor Energy does business in Colorado

through its numerous subsidiaries.

48. Suncor Energy began as the Sun Company of

Canada, a subsidiary of Sun Oil, an American company.

Suncor Energy was later known as Suncor Inc., an entity

formed in 1979 by the amalgamation under the Canada

Business Corporations Act of Sun Oil Company Limited,

incorporated in 1923, and Great Canadian Oil Sands Limited, incorporated in 1953. In 1997, Suncor Energy

adopted its current name, Suncor Energy, Inc. In 2009,

Suncor Energy amalgamated with Petro-Canada to form

a single corporation continuing the same name, which to

date has operated as an independent company. Suncor

Energy benefited from, continues to benefit from and is

responsible for the actions of its predecessor entities.

49. Suncor Energy is the parent company of a multinational, integrated oil and gas enterprise that explores

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

consolidated regulatory filings that include its subsidiaries, claiming profit and responsibility for the production,

marketing, refining, transportation and fossil fuel sales of

its subsidiaries.

50. Suncor Energy controls and directs fossil fuel activities—including the fossil fuel activities associated with

the Canadian tar sands—across its corporate family,

15

which include many other subsidiaries and joint ventures,

and which act as its agents.

51. Suncor Energy refers to its subsidiaries as part

of, and Suncor acts as, a single enterprise:



In its 2017 Annual Report, Suncor Energy explains

that “[r]eferences to “we”, “our”, “Suncor”, or “the

company” mean Suncor Energy Inc., its subsidiaries, partnerships and joint arrangements, unless

the context requires otherwise.”



The 2017 Annual Report explains that “Suncor’s

R[efining] &M[arketing] segments consists of two

primary operations:

“Refining and Supply operations refine crude

oil and intermediate feedstock into a broad

range of petroleum and petrochemical products. Refining and Supply consists of:

“. . . .Western North America operations include refineries located in Edmonton, Alberta

and Commerce City, Colorado. . . .

“Marketing operations sell refined petroleum

products to retail, commercial and industrial

customers through a combination of companyowned, Petro-Canada branded dealers in Canada and a Sunoco branded-dealer and other retail stations in Colorado . . . .”

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

the planned maintenance of its refineries. “The Edmonton

refinery has a planned seven-week maintenance event,

which includes a one-month full refinery turnaround, and

the Commerce City refinery has a four-week turnaround

event, both of which are scheduled to begin late in the first

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quarter of 2018 and extend into the second quarter of 2018

. . . and the Commerce City refinery has a two-week

maintenance event scheduled to begin in the fourth quarter. The anticipated impact of these maintenance events

has been reflected in the company’s 2018 guidance.”

53. Suncor Energy prepares consolidated financial

statements that include its subsidiaries, such as Defendants Suncor USA and Suncor Energy Sales.

54. Suncor Energy’s control over Defendant Suncor

Energy USA is reflected in other locations of the 2017 Annual Report, which also states: “Refining and Marketing

includes the refining of crude oil products, and the distribution and marketing of these and other purchased products through retail stations located in Canada and the

United States (U.S.) . . . .”

55. The Annual Report also lists “Material subsidiaries, each of which is a wholly owned, either directly or

indirectly, by the company as at (sic) December 31, 2017.”

Defendant Suncor USA is included in the chart that follows, as well as Suncor Energy (U.S.A.) Marketing Inc.

This is not a complete listing of Suncor Energy subsidiaries.

56. Other statements by Suncor Energy reflect its

control over its subsidiaries:



Suncor Energy refers to the refinery, operated by

Suncor USA in Colorado, as “our Commerce City

refinery”;



Suncor’s CEO describes the Commerce City, Colorado refinery as “giv[ing] us increased control of

our product from production straight through to

the consumer”;

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

Suncor Energy publicly describes its “U.S. businesses” as a “vital link between the company’s

large scale oil sands resource base and the growing

U.S. energy market;”



Suncor Energy further notes that “[t]he various

parts of Suncor’s businesses are tightly connected”;



Suncor Energy “100% guarantee[s]” its crude oil

marketing and trading business under Suncor Energy Marketing Inc.; and



Suncor Energy describes its “Supply & Trading”

function in a consolidated unified way that is directed by Suncor Energy: “We are Suncor Energy

Inc.’s commercial centre of excellence for sales and

marketing of selected energy products and services. With offices in Calgary, Alta., Denver, Colo.,

and London, England . . . .”

57. Defendant Suncor USA, a subsidiary of Suncor

Energy, operates a refinery in Commerce City, Colorado

that produces 98,000 barrels per day of gasoline and diesel

fuel. The Commerce City refinery processes Canadian tar

sands crude from Suncor Energy’s mining operations in

Canada and products from fractured oil and gas production in Colorado.

58. Defendant Suncor Energy Sales, Inc., a subsidiary of Suncor Energy operates 47 retail gasoline and/or

diesel fuel stations in Colorado under the following trade

names: Coastal Mart (1 station); Exxon (4 stations); and

Phillips 66 (42 stations).

59. References to Suncor, unless otherwise specified, will be to the collective Suncor corporate enterprise,

including the Suncor Defendants.

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60. Suncor conducts its fossil fuel activities according to a common design across the corporate family, which

is set by Suncor Energy. On information and belief, the

other members of the Suncor corporate family—subsidiaries, affiliates and other agents—do not have the ability

to deviate from the common design and cannot refuse to

produce, promote, refine, sell and/or transport Suncor

fossil fuels.

61. Suncor claims it is “the fifth largest North American energy company and has a place on the global stage

as one of the largest independent energy companies in the

world.” In 2017, Suncor produced approximately 685,000

barrels of oil per day and refined approximately 441,000.

62. As a result of their fossil fuel activities at levels

sufficient to contribute to alteration of the climate, the

Suncor Defendants are responsible for billions of tons of

excess GHG emissions. Based on the GHG emissions that

can be traced solely to fossil fuels produced by Suncor and

its subsidiaries since 1988, the Suncor Defendants are responsible for the emission of approximately 2 billion tons

of extra CO2 into the atmosphere. Suncor is one of the

largest sources of historic and present-day GHG emissions.

63. A substantial amount of Suncor’s fossil fuel products is derived from its Canadian tar sands operations.

Approximately 20 percent of the products produced at the

Commerce City refinery are derived from Suncor’s Canadian tar sands operations. Suncor trumpets its plans to increase tar sands development over the coming decades.

64. Suncor Energy publicly states that it has around

8 billion barrels of recoverable oil, the majority of which

comes from the Canadian tar sands.

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65. With its focus on tar sands, Suncor’s fossil fuel

activities produce a proportionally greater amount of

GHG emissions than most fossil fuel companies do.

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

require a huge amount of energy, which itself releases

enormous amounts of GHGs.4 Barrels of converted bitumen also have a higher concentration of carbon, as compared to typical petroleum.

67. The chart below, which was produced by the Carnegie Institute as part of a report, “Know Your Oil: Creating a Global Oil-Climate Index,” shows the number of

downstream emissions—those created by combustion of

the fuels—for different companies’ oil products. Both

Suncor’s own products, and products developed by Syncrude—a venture whose owners include Exxon and Suncor—rank among the highest emissions per barrel.

4

In 2014, Suncor’s production and refining operations emitted

more than 20 million tons of GHGs, a number which they now expect

to increase to more than 25 million tons by 2019, as its tar sands operations continue to grow.

20

68. Additionally, the process of turning tar sands deposits into useable fuel produces huge amounts of petroleum coke (“petcoke”), a coal-like substance. When combusted, petcoke produces substantially greater GHG

emissions per unit of energy produced, as compared to

other fossil fuels (including coal). Suncor is one of the largest sources of petcoke and has sold millions of tons of it.5

69. Suncor is a very profitable fossil fuel company,

deriving profits—in the tens of billions of dollars since the

late 1980s—primarily from the production and sale of fossil fuels.

5

The GHGs resulting from tar sands products are no different

from GHGs produced from other sources; the tar sands products

simply produce more GHGs for the amount of energy they generate.

The fact that Suncor Energy has continued to invest heavily in these

products, despite its knowledge of climate change, only further

demonstrates its recklessness.

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70. From no later than the late 1960s, Suncor knew

that its fossil fuel products would, at the levels being used,

release CO2 and other GHGs into the atmosphere, and

contribute to changes in the planet’s climate, including in

Colorado, and cause the harms Plaintiffs allege herein.

71. On information and belief, through at least 2016,

Suncor was a member of, had access to information held

by, participated in, directed, benefited from, agreed with,

consented to and ratified and/or adopted positions and actions taken by the American Petroleum Institute (API)

together with other fossil fuel companies.6

EXXON

72. Defendant Exxon is a New Jersey corporation

headquartered in Texas. Exxon has done business in Colorado since at least the 1930s.

73. Exxon is a multinational, vertically integrated,

fossil fuel company. While Exxon has many predecessor

companies, its current incarnation was formed in 1999

with the merger of Exxon Corp. (originally the Standard

Oil Company of New Jersey) and Mobil Corp. (originally

the Standard Oil Company of New York). Exxon has benefited from, and is responsible for, the actions of its many

predecessor entities.

74. Exxon controls and profits from fossil fuel activities across its corporate family, which includes many subsidiaries and joint ventures.

75. On information and belief, the fossil fuel activities across Exxon’s entire corporate family are pursued

6

For example, in its 2016 “Sustainability Report” Defendant Suncor stated that it was “a participant in the development of policy positions and contributes to the outcomes of [API] meetings” and that

API’s and Suncor’s positions on climate change were “consistent.”

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according to a common design set and controlled by

Exxon. According to that common design, the members of

the corporate family—subsidiaries, affiliates and other

agents—do not have the ability to deviate from the common design and cannot refuse to produce, promote, refine

and sell and/or transport Exxon’s fossil fuels.

76. Exxon’s filings with the U.S. Securities and Exchange Commission and other public statements consolidate production, refining and fossil fuel sales figures

across the corporate family. (Further references to

“Exxon” will be references to the entire corporate enterprise, unless otherwise specified.)

77. Exxon directs its subsidiaries and agents as a

single enterprise. On its own website, Exxon declares that

“We operate facilities or market products all over the

world and explore for oil and natural gas on six continents.”

78.

Exxon also states that:



“We hold an industry-leading inventory of global

oil and gas resources.”



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



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



“Our total net oil and gas production available for

sale in 2016 averaged 4.1 million oil-equivalent barrels per day.”

79. Specifically, Exxon manages the entire operation, across the corporate family, with regard to climate

change. Specifically, Exxon states that:

23



“In order to ensure that our corporate communications accurately reflect our internal policy positions, we employ a corporate-wide global climate

change and greenhouse gas issue management

team. As issues related to climate change arise at

the local, state, national and regional levels, our

global team of experts evaluates and develops a

company position consistent with our principles.”



The Exxon “Board or individual/sub-set of the

Board or other committee appointed by the Board”

has “the highest level of direct responsibility for

climate change within [the] organization.”



It has a company-wide price on carbon, which it

uses “when evaluating the economics of ExxonMobil’s potential projects.”

80. On information and belief, Exxon has control

over the way that its fossil fuels are marketed by franchisees, distributors and other retail suppliers of Exxon

fuels. As noted by the Supreme Judicial Court of Massachusetts—the highest court in that State—Exxon’s operative franchise agreement gave Exxon “the authority to

review and approve, in its sole discretion, all forms of advertising and sales promotions . . . for the promotion and

sale of any product, merchandise or services” that “uses

or incorporates any Exxon trademark” or “relates to any

Business operated at [Branded Franchise Agreement]

Holder Branded Outlet.” Moreover, franchise dealers expressly “agree to such review and control by Exxon.”

81. Exxon has supplied a substantial portion of all

fossil fuels used worldwide. Since the 1960s, it has sold billions of barrels of oil, trillions of cubic feet of natural gas

24

and millions of tons of coal. Historically, Exxon supplied

nearly 10 percent of global oil demand.7

82. As a result of its fossil fuel activities at levels sufficient to contribute to alteration of the climate, Exxon is

responsible for billions of tons of GHG emissions. For example, based on the GHG emissions that can be traced

solely to fossil fuels produced by Exxon since 1988, it is

responsible for more than 16 billion tons of carbon dioxide

(CO2).8 Exxon is one of the largest sources of historic and

present-day GHG emissions.

83. Exxon now publicly purports to accept some of

the truth of climate change—i.e., that it is largely caused

by human activity, primarily fossil fuel use, and that increasing atmospheric temperatures will harm public

health and property. Nonetheless, Exxon’s business plans

include increased sales of fossil fuels and the development

of more carbon-intensive fossil fuels, such as shale oil and

tar sands. Its reported fossil fuel reserves exceed 20 billion barrels of oil equivalent (“BOE”).

84. Exxon is one of the world’s most profitable companies, deriving profits—in the hundreds of billions of dollars since the late 1980s—primarily from the production,

refining, promoting, marketing and sale of fossil fuels.

85. From no later than the late 1960s, Exxon knew

that its fossil fuel products would, when used as expected

at the levels they would be used, release CO2 and other

For example, in 2001, Exxon sold nearly 8 million barrels of oil

per day, more than 10 percent of the approximately 75-million-barrel

global demand.

7

8

Exxon is responsible for far more than 16 billion tons of CO2 because it sells far more than it produces, and because it sold billions

more barrels of fossil fuels before 1988. The precise amount will be

revealed during discovery and trial.

25

GHGs into the atmosphere, and contribute to changes in

the planet’s climate, including in the climate of Colorado,

and cause the harms Plaintiffs allege herein.

86. On information and belief, at all relevant times,

Exxon was a member of, had access to information held

by, participated in, directed, benefited from, agreed with,

consented to, and ratified and/or adopted positions and actions taken by the American Petroleum Institute.

II. JURISDICTION AND VENUE

87. Venue is proper in this Court pursuant to Colorado Revised Statutes § 16-13-307(2) and Colorado Rule

of Civil Procedure 98 because the nuisance and trespass

which Defendants caused and contributed to exist in Boulder County, because the subject matter of the action is located in Boulder County, and because Defendants have

committed a tort in Boulder County, including the carrying out of deceptive trade practices.

88. Each Defendant is subject to personal jurisdiction in Colorado pursuant to Colorado Revised Statutes

§ 13-1-124 because each transacts business, committed

and continues to commit tortious acts in Colorado and has

caused substantial injury to Plaintiffs in Colorado. Each

ton of CO2 that can be traced to Defendants’ fossil fuel operations in and contacts with Colorado caused and contributed to bringing about climate change, and exacerbates the impacts of climate change and Plaintiffs’ injuries.

SUNCOR ENERGY

89. Suncor Energy is a Canadian corporation with

its principal office at 150 6th Avenue S.W., Calgary, Alberta, Canada T2P 3E3. General personal jurisdiction is

proper over Suncor Energy because it has substantial

26

contacts and affiliations with Colorado, including through

its subsidiaries, which make it essentially at home in the

state. Specific personal jurisdiction is also proper over

Suncor Energy because it has substantial contacts with

Colorado by and through its fossil fuel activities in the

state and because Plaintiffs’ injuries arose out of, were

caused and/or exacerbated in part by and/or relate to

those activities.

90. Suncor Energy—through its own direct actions

and through the activities of its subsidiaries and agents

acting pursuant to a common design coordinated and directed by Suncor Energy—has substantial contacts with

Colorado relating to the claims in this case, including activities that give rise to the claims in this case. Suncor Energy’s affiliations with Colorado are more substantial

than with any other state in the United States.

91. With the knowledge that its fossil fuel activities

were and are occurring at levels that have and continue to

contribute to climate change in Colorado, and with

knowledge that its activities would result and were resulting in the harms of the types Plaintiffs allege herein, Suncor Energy has engaged in the following activities:



promoted and continues to promote fossil fuels in

Colorado with the intent that its fossil fuels be used

and combusted;



sold, sells and plans to continue selling fossil fuels

to customers in Colorado through a network of gas

stations and other suppliers—by its own admission, Suncor’s products account for “35% of Colorado’s gasoline and diesel fuel demand,” and a

third of the jet fuel supplies for Denver International Airport;

27



operated, and continues to operate, “Colorado’s

only petroleum refinery” in Commerce City, Colorado, which produces over 100,000 barrels per

day—approximately 20 percent of the products

produced at the Commerce City refinery are derived from Suncor’s Canadian tar sands operations; and



operates pipeline systems that transport crude oil

from Cheyenne, Wyoming, to Commerce City, Colorado.

92. Suncor has also directly emitted substantial

amounts of GHGs in Colorado from its fossil fuel activities, including refining and transportation activities. Suncor’s operations in Colorado emitted approximately one

million metric tons of GHGs in 2016 alone.

93. On its own, and/or through agents—including

API and the company’s affiliates—Suncor Energy has

conspired to, funded and participated in efforts to mislead

people and consumers in Colorado about, among other

things, climate change and the risks of fossil fuel use.

SUNCOR USA

94. Defendant Suncor USA, a subsidiary of Suncor

Energy, is a Delaware corporation and citizen of Colorado

with its principal place of business located at 717 17th

Street, Suite 2900, Denver, Colorado. Suncor USA registered with the Office of the Colorado Secretary of State to

transact business in the state beginning in June 2003 and

has done business in Colorado continuously since that

time. Suncor USA is subject to general jurisdiction in Colorado.

28

SUNCOR ENERGY SALES

95. Defendant Suncor Energy Sales, a subsidiary of

Suncor Energy, is a Colorado corporation and citizen,

with its principal office located at 717 17th Street, Suite

2900, Denver, Colorado. Suncor Energy Sales is subject

to general jurisdiction in Colorado.

ADDITIONAL SUNCOR SUBSIDIARIES

96. In addition to the Suncor Defendants, Suncor

also operates in Colorado through several other subsidiaries, including Petro-Canada Resources (USA), Suncor

Energy Services, Suncor Energy (U.S.A.) Marketing and

Suncor Energy (U.S.A.) Pipeline Co.

Petro-Canada Resources (USA)

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

principal office located in Denver, Colorado. Petro-Canada Resources (USA) Inc. registered with the Office of the

Colorado Secretary of State to transact business in the

state beginning in February 1980 and has done business

in Colorado continuously since that time.

98. Petro-Canada Resources (USA) Inc. produced

fossil fuels in Colorado, including in Boulder County.

Suncor Energy Services

99. Suncor Energy Services, Inc., a subsidiary of

Suncor Energy, is a Canadian corporation with its principal office located in Alberta, Canada. Suncor Energy Services registered with the Office of the Colorado Secretary

of State to transact business as a foreign entity pursuant

to C.R.S. § 7-90-301, et seq. and § 7-90-803 in September

2009 and has done business in Colorado continuously since

that time.

29

100. Suncor Energy Services extracts and upgrades

oil sands and markets refinery feedstock, diesel fuel and

natural gas.

Suncor Marketing

101. Suncor Energy (U.S.A.) Marketing, Inc. (“Suncor Marketing”), a subsidiary of Suncor Energy, is a Delaware corporation with its principal office located in Denver, Colorado. Suncor USA Marketing registered with the

Office of the Colorado Secretary of State to transact business as a foreign entity pursuant to C.R.S. § 7-90-803 in

September 2012 and has done business in Colorado continuously since that time.

102. Suncor Marketing offers marketing, transportation, and storage of crude oil and natural gas products. It

also produces and distributes sulfur and petroleum coke.

Suncor Pipeline

103. Suncor Energy (U.S.A.) Pipeline Co. (“Suncor

Pipeline”), a subsidiary of Suncor Energy, is a Colorado

corporation with its principal office located in Denver,

Colorado.

104. Suncor Pipeline operates pipeline systems that

carry crude oil from Cheyenne, Wyoming, to Commerce

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

EXXON

105. Defendant Exxon is a New Jersey corporation

with its principal place of business in Irving, Texas. Exxon

has a registered agent for service of process in Colorado

and has done business in Colorado since at least the

30

1930s.9 Exxon registered with the Office of the Colorado

Secretary of State to transact business as a foreign entity

in December 1972 and has done business in Colorado continuously pursuant to C.R.S. § 7-90-301, et seq. and § 7-90803 since that time.

106. Personal jurisdiction is proper over Exxon because it has substantial contacts with Colorado by and

through its fossil fuel activities in the state, because it

acted in concert with Colorado corporations, and because

Plaintiffs’ injuries arose out of, were caused and/or exacerbated in part by and/or relate to those activities.

107. Exxon has substantial contacts with Colorado relating to the claims in this case, including activities that

give rise to the claims in this case. With knowledge its fossil fuel activities were and are occurring at levels that have

and continue to contribute to climate change in Colorado,

and with knowledge that its activities would result and

were resulting in the harms of the types Plaintiffs allege

herein, on information and belief, Exxon has engaged in

the following activities:



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

Colorado;



sold, sells and plans to continue selling its fossil

fuels in Colorado through its own gas stations, and

through agreements with other retail distributors10—there are approximately 50 Exxonbranded gas stations in Colorado;

Its registered agent is Corporation Service Company, 1900 W.

Littleton Boulevard, Littleton, Colorado.

9

10

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

31



produced a substantial amount of natural gas directly in Colorado—tens of millions of cubic feet

between 1999 and 2011 alone—and through its

agent, XTO, which claims to produce more than

130 million cubic feet a day;



produced a substantial amount of crude oil directly

in Colorado—hundreds of thousands of barrels between 1999 and 2011 alone—and through its agent,

XTO, which produced hundreds of thousands of

barrels between 2007 and 2018.



produced coal in Colorado; and



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

108. Exxon states that it has been producing natural

gas in Colorado’s Piceance Basin “since the 1950s,” and

that it currently has an “interest in 300,000 acres in the

Piceance Basin” holding potentially 45 trillion cubic feet

of gas. Exxon states it is “committed to building long-term

partnerships in Rio Blanco County and northwest Colorado” through these Piceance operations.

109. Exxon has sought to develop and has continuing

plans to develop unconventional fossil fuels in Colorado,

such as oil shale (i.e., kerogen) and coal-to-liquid and coalto-gas synthetics.

110. Exxon has also directly emitted substantial

amounts of GHGs in Colorado from its production and

transportation activities. The company emitted more than

420,000 metric tons of GHGs in Colorado between 2011

and 2015 alone.

111. On its own, and/or through agents—including

API—Exxon has also conspired to, funded and partici-

32

pated in efforts to mislead people and consumers in Colorado about, among other things, the existence of climate

change and the risks of fossil fuel use.

112. Throughout the time period relevant to this litigation, Exxon has operated and done business in Colorado

on its own behalf and through several agents. These

agents include, but are not limited to:

Xto Energy Inc.

113. XTO Energy Inc., a wholly owned subsidiary of

Exxon, is a Delaware corporation with its principal office

located in Fort Worth, Texas. XTO Energy Inc. registered with the Office of the Colorado Secretary of State to

transact business as a foreign entity in December 2002

and has done business pursuant to C.R.S. § 7-90-301, et

seq. and § 7-90-803 continuously since that time.

114. XTO Energy Inc. has developed and continues to

develop fossil fuels in Colorado. XTO purports to be an

expert “in developing tight gas, shale gas, coal bed methane and unconventional oil resources,” and its western

division is headquartered in Denver, Colorado. XTO operates across 553,392 acres in Colorado, producing 130 million cubic feet of gas per day.

ExxonMobil Coal USA Inc.

115. ExxonMobil Coal USA Inc. was a wholly owned

subsidiary of Exxon and a Delaware corporation with its

principal office located in Houston, Texas. ExxonMobil

Coal USA Inc. registered with the Office of the Colorado

Secretary of State to transact business as a foreign entity

in December 1979 and did business continuously until

May 2002. The company’s purpose was to “acquire, mine,

and sell coal; maintain shale, water, oil and gas interests.

[And to] [d]evelop [the] capability to produce synthetic

33

liquids and gas, including research and development programs.”

Ellora Energy Inc.

116. Ellora Energy Inc. is a Delaware corporation

and a wholly owned subsidiary of Exxon. Between June

2002 and January 2011, Ellora Energy Inc. was registered

with the Colorado Secretary of State to transact business

as a foreign entity, and it had its principal place of business at 5665 Flatiron Parkway, Boulder, Colorado.

117. Ellora Energy Inc. produced and transported

fossil fuels in Colorado, as well as at other locations across

the United States.

118. Exxon acquired Ellora Energy Inc. in 2010, and,

on information and belief, Exxon also acquired Ellora Energy Inc.’s Colorado assets.

Exxonmobil Pipeline Company

119. ExxonMobil Pipeline Company is a wholly owned

subsidiary of Exxon and a New York corporation with its

principal office located in Irving, Texas. ExxonMobil

Pipeline Company registered with the Office of the Colorado Secretary of State to transact business as a foreign

entity in 1934 and has done business pursuant to C.R.S.

§ 7-90-301, et seq. and § 7-90-803 consistently since that

time.

DEFENDANTS’ SHARED CONTACTS

WITH COLORADO

120. Exxon and Suncor’s contacts with Colorado also

substantially overlap.

121. Exxon and Suncor jointly own Syncrude Canada

Ltd.—a large, if not the largest, tar sands developer in

Canada—which produces synthetic crude derived from

34

Canadian tar sands, and which, on information and belief,

it promotes, refines and sells in Colorado.

122. Suncor Energy Sales also has agreements with

Exxon, through which it markets and sells Exxon fuels at

wholesale and retail sites across Colorado.

III.

STATEMENT OF FACTS

A. Defendants’ actions have altered the climate in

Colorado.

123. Climate change is occurring and its cause is not

in doubt: the emission of GHGs into the atmosphere, primarily from the increasing combustion of fossil fuels—including, in significant part, Defendants’ fossil fuels—has

increased the concentration of those gases in the atmosphere, trapping heat in the climate system, and warming

the planet.11

124. As the U.S. Government reports, “there is no

convincing alternative explanation” for the observed

warming trends. As a result of this climate alteration—

and as evidence of the reality of the climate crisis—all five

of the warmest years on record have occurred since 2010.

1. The climate has been altered because of Defendants’ fossil fuel activities.

125. Earth has a natural “greenhouse” effect: solar

energy, primarily in the form of light, passes through the

atmosphere; the Earth reradiates some of that energy

back into space as thermal radiation—essentially, heat;

and GHGs in the atmosphere, like carbon dioxide, trap

some of that heat inside the Earth’s climate system,

thereby warming the atmosphere and oceans.

11

According to the U.S. Environmental Protection Agency, “almost

all of the increase is due to anthropogenic emissions.”

35

126. This greenhouse effect has been altered and intensified by human greenhouse gas emissions caused and

contributed to by the levels of Defendants’ fossil fuel activities. Abnormally high concentrations of atmospheric

GHGs—primarily CO2 but also methane and other trace

gases—which have accumulated at an unprecedented

rate, are trapping more heat, artificially intensifying the

greenhouse effect. The human driven alteration of the

greenhouse effect has been confirmed from satellite

measurements.

127. GHGs have rapidly accumulated in the atmosphere because of the increasing use and combustion of fossil fuels, which were provided in significant quantities by

Defendants. Fossil fuels produce GHGs, primarily CO2,

when they are combusted. In addition, as fossil fuel use

has grown—encouraged and constantly supplied by Defendants—GHG emissions have risen at an unparalleled

rate. The normal processes by which GHGs are reabsorbed by the Earth’s plants, land and oceans cannot keep

up with the rapid emission rate caused and contributed to

by the levels of Defendants’ fossil fuel activities, and the

concentration of GHGs in the atmosphere has therefore

increased, causing alteration of the climate, including in

Colorado.

128. Fossil fuel combustion is responsible for the majority of emissions that have caused GHG concentrations

to reach hazardous and unprecedented levels. For example, CO2 emissions—by far the most prevalent and problematic GHG because of its long-lived warming impact—

have increased roughly 90 percent since 1970, with fossil

fuel combustion and industrial processes contributing to

roughly 78 percent of total GHG emission increases from

1970 to 2011.

36

129. As a result of the emissions caused and contributed to by the levels of Defendants’ fossil fuel activities,

atmospheric CO2 now stands at 408 parts per million

(ppm), a level which is unprecedented in human history.

The last time atmospheric CO2 reached this level was approximately 3 million years ago, when average temperatures were considerably warmer (3.6 to 6.3°F, or 2 to

3.5°C) than today’s temperatures, and sea levels were at

least 30 feet higher.

130. Atmospheric CO2 levels continue to rise. Defendants’ fossil fuel activities caused and contributed to a rise

in energy-related carbon emissions of around 32 billion

tons in 2017, as emissions increased by 1.4 percent. Since

1980, Exxon has had the single largest contribution of any

American industrial producer of products that emit CO2

when combusted to the rise in CO2 levels and the third

largest contribution of any producer in the world.

131. The graph on the left depicts atmospheric CO2

concentrations over the last 800,000 years. The spike on

the far right side of the graphs shows the trend in the past

few centuries. The graph on the right has the same scale

of CO2 concentration, but focuses only on atmospheric

concentrations from 1750-2015.

37

132. The Intergovernmental Panel on Climate

Change (IPCC) is widely recognized (including by Defendants) as a leading scientific authority on climate

change. According to the IPCC, as a result of rising CO2

and other GHGs, “[w]arming of the climate system is unequivocal.” The IPCC also reports that “[t]he atmosphere

and oceans have warmed, the amounts of snow and ice

have diminished, and sea levels have risen.”

133. According to the best available science, annual

average temperatures over the contiguous United States

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

over the last 50 years alone.

134. Not only have the levels of Defendants’ fossil fuel

activities caused and contributed to this temperature increase, but Defendants’ actions have also contributed to

the increasing rate of warming. While global average temperatures rose at an average rate of 0.13°F (0.07°C) per

decade since 1880, they have risen at an average rate of

0.31°F (0.17°C) per decade since 1970.

135. Once CO2 enters the atmosphere, a significant

portion of it remains there, with a warming influence that

lasts for hundreds (if not thousands) of years. It also cannot be feasibly removed from the atmosphere with existing technology, “commit[ting] the world to some degree of

irreversible warming and associated climate change resulting from emissions to date.”

136. According to the most recent report from the

U.S. Government, “under all plausible future climate scenarios”—regardless of the trajectory of future fossil fuel

38

emission rates in the near-term12—annual average temperatures are expected to rise by at least an additional

2.5°F (1.4°C) by 2050. These projections13 apply to Colorado, where temperatures are expected to rise an additional 2.5° to 5°F by 2050.

137. While the floor for warming has been established, the ceiling—how bad it can get—will grow depending on future emissions. Under a lower-intermediate

emissions scenario,14 global temperatures are projected to

rise by approximately 5.0°F (2.8°C) over pre-industrial averages by the end of the century. Under a high-emissions

scenario, temperatures are projected to rise by 8.7°F

(4.8°C) by the end of the century. Defendants’ current

conduct and planned increases in production of fossil fuels

are consistent with at least the higher emission scenario,

and may well be outside of any projected scenario.

138. A 5.0°F (2.8°C) warming would have devastating

impacts on people, property, the economy and the environment. An 8.7°F (4.8°C) warming would be catastrophic,

12

For example, even if all emissions suddenly stopped, there would

still be another 0.5°F increase expected over the next few decades due

to time lags in the warming effects of the level of GHGs caused and

contributed to by Defendants.

“Projections” in this Complaint are based on and supported by

data generated by General Circulation Models, which are approved

by the IPCC, and which are the best available scientific representation of future climate scenarios, including their physical impacts.

13

14

Emissions scenarios are often categorized into four different

types—or Representative Concentration Pathways (RCP)—by the

IPCC: RCP2.6, RCP4.5, RCP6, and RCP8.5. The scenarios are used

to compute and predict different climate futures based on a possible

range of anthropogenic GHG emissions. RCP4.5 represents a lowerintermediate emissions scenario, while RCP8.5 represents a high

emissions scenario.

39

leading, according to the IPCC, to “substantial species extinction, global and regional food insecurity, consequential constraints on common human activities and limited

potential for adaptation in some cases.”

2. The impacts of a climate altered by Defendants’

conduct are being felt in Plaintiffs’ communities.

139. The seriousness of the impacts of climate change

is not in question. In a 2013 Executive Order, the President of the United States recognized that “[t]he impacts

of climate change—including an increase in prolonged periods of excessively high temperatures, more heavy downpours, an increase in wildfires, more severe droughts, permafrost thawing, ocean acidification, and sea-level rise—

are already affecting communities, natural resources, ecosystems, economies, and public health across the Nation.”

As the Governor of Colorado recently reaffirmed, “climate change presents a broad range of challenges” that

“will affect everyone” in the state.

140. Colorado is extremely vulnerable to and is experiencing the impacts of climate change, including increases in extreme hot summer days and increases in minimum nighttime temperatures, precipitation changes,

larger and more frequent wildfires, increased concentrations of ground-level ozone, higher transmission of viruses

and disease from insects, altered streamflows, bark beetle

outbreaks, ecosystem damage, forest die-off, reduced

snowpack, and drought.

141. The U.S. Environmental Protection Agency

(EPA) has noted “[t]hroughout the western United States

heat waves are becoming more common, snow is melting

earlier in spring, and less water flows through the Colorado River.”

40

142. The consequences of these changes are enormous. As the EPA found, “[r]ising temperatures and recent droughts in the region have killed many trees by drying out soils, increasing the risk of forest fires, or enabling

outbreaks of forest insects. In the coming decades, the

changing climate is likely to decrease water availability

and agriculture yields in Colorado, and further increase

the risk of wildfires.” These changes have already begun,

and they have injured and will continue to injure people,

property and the economy of Colorado, including in Plaintiffs’ jurisdictions.

143. Recent research has demonstrated that the observed trends in aridity in Colorado are attributable to human-driven climate change. Further, most climate model

projections underestimate the magnitude of the observed

trends and therefore also underestimate future drought

and decreases in soil moisture.

144. Colorado’s economy depends on snow, water and

cool weather. For example, the state’s $41 billion agriculture industry is imperiled by rising temperatures and

drought, while the $5 billion ski industry is in jeopardy as

a result of “low-snow” winters and shorter seasons.

Plaintiffs are experiencing rising temperatures and

extreme heat.

145. Defendants’ actions have already caused or contributed to rising temperatures in Colorado. Colorado has

seen average temperatures rise by 2.5°F over the last 50

years, with over a 2°F rise since 1983. Daily minimum

temperatures and nighttime lows have also risen, limiting

relief for humans and plant life subjected to heat waves,

especially in the summer months. The rapid warming is

clearly attributable to human-driven climate change, as it

is inconsistent with natural variability.

41

146. The rise in temperature is occurring across all

seasons Specifically, Colorado is experiencing some of the

fastest warming summers in the United States.

147. Temperatures in Colorado are projected to increase substantially by 2050 under all emission scenarios.

According to research by the University of Colorado and

others, under even an increasingly unlikely lower-intermediate emission scenario, annual temperatures are projected to rise an additional 2.5 to 5°F (above a 1971-2000

baseline) by mid-century; “the typical year by 2050” is

projected to be “warmer [than] the very warmest years of

the past century.”

148. Defendants’ levels of fossil fuel activities have

contributed to the increasing likelihood of a high emissions scenario, where annual temperatures in Colorado

are projected to warm another 3.5 to 6.5°F by 2050. A 6°F

temperature rise would turn future Denver into the temperature equivalent of today’s Albuquerque, New Mexico.

All Plaintiff communities will suffer comparable temperature rises.

149. In addition to increasing average temperatures,

there has already been a notable increase in the frequency

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

heat waves is projected by mid-century.

150. Under an intermediate emissions scenario, average August maximum temperatures are expected to increase in San Miguel County. The traditional cooling

buffer months of March and October are projected to see

increases in minimum temperatures, meaning that

nighttime lows will offer less relief from heat and less of

42

the cooler temperatures needed to preserve spring snowpack.

151. The remote western edge of San Miguel County

is predicted to see a significant increase in extreme heat

days. Climate change is projected to increase average

temperatures in southwest Colorado an additional 1.5 to

2.5°F by 2025 and 2.5 to 5.5°F by 2050. The desert climate

of the western portions of the County are projected to migrate up into its valleys.

152. The average temperature in the Boulder area is

anticipated to rise an additional 1.5 to 4° F by 2040, and

4.3 to 9.6° F by 2100 under intermediate-emissions models. The number of extreme heat days and daily minimum

temperatures—which has already increased in Boulder—

is projected to rise dramatically, particularly and dangerously in summer months. Specifically, while Boulder averaged 5 days per year with temperatures of 95°F or

above across the 20th century, it is expected to see at least

25 days a year above that mark by the mid-21st century,

and 49 days by the end of the 21st century, even under a

lower-intermediate emissions scenario.

153. Warming temperatures and heat waves caused

and contributed to by the levels of Defendants’ fossil fuel

activities are a threat to health, property and infrastructure. Medical studies have linked heat waves to increases

in premature deaths, and adverse economic impacts have

been documented on extreme heat days, with particularly

large effects on outdoor labor productivity in sections

such as construction, transportation and agriculture. The

levels of Defendants’ fossil fuel activities has thus already

contributed to substantial economic losses in the Plaintiffs’ communities.

43

154. Analysis by the U.S. Department of Agriculture

shows clearly that exposure to temperatures greater than

30°C (86°F) leads to large decreases in yields for major

crops including corn, wheat and soybeans. Hence, the increase in days with extreme heat has already harmed agricultural productivity and will continue to do so in the future.

Plaintiffs are experiencing shifts in precipitation

patterns and water availability.

155. Rising temperatures caused and contributed to

by Defendants’ actions also lead to changes in precipitation patterns, rainfall intensity and water availability.

These changes all have substantial implications for the

people, property and infrastructure within Plaintiffs’ jurisdictions.

156. Measurements already reveal large, unambiguous decreases in snow extent in the Northern Hemisphere

during spring, with a reduction of about 100,000 km2 in

snow-covered area during April since 1967. Long, reliable

records of both temperature and snow cover extent since

the late 1960s show that snow cover clearly depends on

Northern Hemisphere mid-latitude surface temperatures, with a decrease in April snow-covered area of

~4.5% per degree (C) of warming and roughly double that

rate of loss in June. Measurements show large losses in

April snowpack in Plaintiffs’ jurisdictions consistent with

these overall Northern Hemisphere trends. Climate

change caused and contributed to by Defendants’ fossil

fuel activities is clearly linked to this decline in snowpack.

Models project further declines in snowpack, and recent

analysis indicates that such projections are very likely underestimates.

44

157. Colorado has already started to see a greater

proportion of its precipitation falling as rain rather than

snow, a trend that will continue as temperatures rise further. This has caused a decline in snowpack, particularly

at lower elevations, and further decline is projected due to

warming.

158. Any snowpack loss has significant consequences

in Colorado, where snowpack is the largest reservoir of

water and the source of 70 percent of the state’s surface

water; many areas depend on mountain glaciers and

snowpack for their water supply, including for irrigation

purposes.

159. Earlier snowpack melt is also a serious concern;

as EPA has recognized, “with increased runoff in the winter and early spring,” there are “increase[d] flood concerns” and “substantially decreased summer flows.” This

risk is compounded by projected precipitation changes,

including the time of year for peak precipitation, and the

intensity with which that precipitation falls.15

160. San Miguel County faces increasing intensity of

rainfall events. Climate change is projected to increase

the rainfall intensity of 5-year storm events, with the

greatest intensity increases, in terms of inches of rainfall

per hour, predicted for 15-minute storm levels. This

means that the County is projected to see increases in the

intensity of short-duration rain events.

161. The Boulder area is expected to see an increase

in winter precipitation and a decrease in spring precipitation. An increase in heavy precipitation events is expected

15

A warmer atmosphere holds more moisture than a cooler one,

which can mean heavier precipitation during rainfall events, causing

more intense flooding.

45

during both seasons. Climate change is projected to increase the rainfall intensity of 5-year storm events and

100-year storm events. While storms under one-quarter

inch of rainfall per day are projected to stay the same or

decrease in frequency under future scenarios in Boulder,

storms of one-quarter to one-half inch and one-half to one

inch are projected to increase on average, under all future

emissions scenarios.

162. The greatest intensity increases in Boulder, in

terms of inches of rainfall per hour, are predicted for 15minute storms. This means that Boulder is projected to

see an increase in the intensity of short duration rain

events.

163. Increases in high-intensity, short-duration rainfall events in excess of current infrastructure capacity are

likely to have substantial impacts on drainage systems

and other infrastructure, and create an increased risk of

flooding, which threatens people, property and infrastructure in all Plaintiff communities.16

Plaintiffs are experiencing an increased risk of drought.

164. Rising temperatures and shifting precipitation

patterns caused and contributed to by the levels of Defendants’ fossil fuel activities exacerbate the risk of

drought.

165. Total summer rainfall is more likely to decrease

than increase in Colorado, with longer rainless periods

also expected. The higher temperatures will also lead to

more evaporation, intensifying droughts when they occur.

16

Built in the mouth of canyons, the City of Boulder already rates

as the number one flash flood risk community of Colorado’s Front

Range.

46

The frequency and severity of droughts are projected to

increase in many parts of Colorado.

166. Because of climate change, over the next three

decades, San Miguel County and the Boulder area are

projected to see a significant increase in the expected

number of months of drought and a shift away from mild

droughts towards more moderate, severe and extreme

droughts. Droughts that were once mild will become more

severe. Increasing drought months and drought severity,

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

167. Plaintiffs are already experiencing these trends.

Recent research has demonstrated that the observed

trends in aridity in Colorado are attributable to humandriven climate change, and furthermore that most climate

model projections underestimate the magnitude of the observed trends and also likely underestimate future

drought and decreases in soil moisture.

Plaintiffs are experiencing an increased risk of

wildfires.

168. More rain in winter, less snowpack, earlier snowmelt, drier spring soils and summers and increasing occurrence and intensity of drought are all increasing wildfire risk by setting the table for longer, more severe wildfire seasons and a general increase in wildfire vulnerability.

169. Increasing temperatures and drought caused

and contributed to by the levels of Defendants’ fossil fuel

activities have already led to increased wildfires in recent

decades. A recent study estimated that climate change

has doubled the area of forest burned in the western

United States since 1984.

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170. There has been a significant rise in the number

of large fires in Colorado. While there were only six fires

larger than 1,000 acres in the 1970s, there were 35 in the

2000s and 19 in just the three years between 2010 and

2012—a five-fold increase over 40 years. This trend is expected to continue, with projections of a substantial increase in wildfire occurrence, duration and acres burned,

as well as a longer fire season.

171. Increased wildfire risk and occurrence is perilous in a state where over 2 million homes exist in the

“Wildland-Urban Interface” (WUI)—where homes and

other structures exist in and adjacent to wildfire-prone

wildland.

172. In San Miguel County, where many communities

live in the WUI, the number of wildfire occurrences, as

well as the acres of area burned, is expected to increase

over the next three decades, and the wildfire threat will

extend to higher elevations where historically there was a

much lower wildfire risk and where mitigation has not

been as high a priority.

173. Almost 20 years ago, over 170,000 acres of San

Miguel County qualified as moderate to high hazard for

wildfire. Even under an intermediate-low emissions scenario, San Miguel County is projected to see more than

300 additional wildfires (over a historic average) between

2020 and 2049, with the burn area projected to increase by

over 40 percent.

174. In the Boulder area, wildfires over the last three

decades have destroyed over 260 structures and burned

over 16,000 acres, much of it on public lands that the

County and the City manage.

175. Indeed, the majority of Boulder County already

qualifies as a high-risk fire area, and is described as an

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“environment prone to extreme wildfire behavior.” Based

on some metrics, the Boulder area has the highest wildfire

risk in the state and has the tenth highest risk in the entire West.

176. In recent years, the Boulder area has seen trends

towards a decrease in shoulder seasons that traditionally

provided a buffer from the May-September fire season.

Now, major fires are occurring nearly every month of the

year.

177. Boulder’s wildfire risk is also projected to spread

to areas that previously experienced low incidence of wildfire, such as higher elevation areas of the County. Boulder

is already seeing trends towards these higher altitude

fires, which present a new threat to water reservoirs that

provide water to the City and runoff that travels into the

Boulder watershed.

178. Fires are already occurring dangerously close to

Boulder’s water supplies, and it is predicted that a wildfire

of a large scale could seriously impact higher-elevation

water supplies. For example, the Fourmile Fire of 2010

almost forced the closure of a water treatment plant for

the City of Boulder that provides a substantial portion of

the City’s drinking water.

179. The number of wildfire occurrences in the Boulder area, as well as acres of area burned, is expected to

increase over the next three decades. Under even the increasingly unlikely intermediate-low emissions scenario,

an additional 150 wildfires (over a historic average) on average are predicted between 2020 and 2049, with the burn

area projected to increase by nearly 40 percent on average in the Boulder area.

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Plaintiffs are experiencing increased risks to forest

health.

180. Beyond fire, increasing temperatures and

drought conditions caused and contributed to by the levels

of Defendants’ fossil fuel activities pose other risks to forest health.

181. Across the Southwest, trees are dying because of

increasing temperatures and drought as a result of climate change. This trend will continue.

182. Trees generally die faster when drought is accompanied by higher temperatures, so short droughts,

which occur more frequently than long droughts, trigger

mortality if temperatures are higher. Even without an increase in drought frequency, rising temperatures alone

lead to substantially greater tree mortality. This not only

affects forested land, but urban tree canopies that serve

to improve air quality, promote stormwater management,

decrease runoff into watersheds and reduce the effects of

rising temperatures.

183. These conditions also lead to more severe insect

outbreaks, such as the bark beetle epidemics seen across

Colorado. As the U.S. Forest Service reports, climate

change has already led to an increase in bark beetle-induced damage. In the last two decades, the mountain pine

beetle affected trees across 4 million acres of forested watersheds in Colorado. These recent outbreaks “have exceeded the frequencies, impacts, and ranges documented”

in the last century, and the most recent outbreak in Colorado’s Rocky Mountain National Park was the most severe ever seen.

183. These conditions also lead to more severe insect

outbreaks, such as the bark beetle epidemics seen across

Colorado. As the U.S. Forest Service reports, climate

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change has already led to an increase in bark beetle-induced damage. In the last two decades, the mountain pine

beetle affected trees across 4 million acres of forested watersheds in Colorado. These recent outbreaks “have exceeded the frequencies, impacts, and ranges documented”

in the last century, and the most recent outbreak in Colorado’s Rocky Mountain National Park was the most severe ever seen.

184. A growth in native beetle populations, and the resulting devastation, is directly linked to climate change

and an increase in both summer and winter temperatures.

Warmer temperatures result in higher survival rates and

faster development; beetles can now thrive where they

were previously constrained by cold temperatures. Under

temperature increases of 4 to 5°F, certain bark beetle species have doubled both their reproductive and tree consumption rates.

185. With rising temperatures, increased drought

predictions and heavily forested lands, climate conditions

in San Miguel County and in Boulder County will increasingly favor larger mountain pine and spruce beetle populations and outbreaks.

186. The Boulder Plaintiffs have already experienced

mountain pine beetle impacts in a recent epidemic linked

to a warmer and drier climate. Between 1996 and 2010,

122,455 acres of forest within Boulder County saw some

level of damage related to mountain pine beetle.

Plaintiffs are experiencing increased threats to public

health.

187. From an emergency management perspective,

climate change—caused and contributed to by the levels

of Defendants’ fossil fuel activities—threatens human life

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and health as a result of the projected increase in extreme

weather events, floods and wildfires.

188. The rising temperatures also jeopardize human

health in several other ways. For example, according to a

2015 report commissioned by the State of Colorado, there

are “[m]ajor public health areas of concern related to the

effect of current . . . and future clim[a]te change . . . ,” including heat-related illnesses, negative air quality effects,

and changes in the occurrence and incidence of infectious

and vector-borne diseases.

189. Higher temperatures are problematic in a highelevation, low-humidity state that is historically accustomed to cool nights which provide relief during heat

waves. Buildings throughout Colorado—including in San

Miguel County and Boulder County—which were built

based on historic climate patterns, often lack air-conditioning. As temperatures rise and extreme events increase, operating without air conditioning may no longer

be feasible, which would make necessary new cooling systems to protect vulnerable populations, or provide alternative sources of respite, such as central cooling centers

where people could go for relief.

190. Higher temperatures and the presence of sunlight are also associated with increased formation of

ozone, which at the ground level is a pollutant that can

cause respiratory damage. According to the Colorado Climate Plan, “climate change is likely to result in higher

ozone concentrations.”

191. Even short-term exposure to ozone is associated

with severe health consequences such as respiratory inflammation, pulmonary function decrements, increased

emergency department visits, and premature mortality.

These consequences are all the more severe for already-

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vulnerable populations, including children and the elderly.

192. Ground-level ozone is at its highest levels during

summer days that reach the upper 80s and mid-90s. More

warm summer days, plus warming spring and fall seasons,

will extend the ozone season.

193. Ground-level ozone concentrations are already a

serious problem in Boulder County and the City of Boulder. Climate change is making the problem worse. Boulder County (including the City) is already within a Clean

Air Act ozone nonattainment area. In addition, the ability

to come within the necessary federal ozone attainment

goals will become more difficult under new climate realities.

194. As stated in a report to the Colorado Energy Office, “[c]limate [also] plays a role in outbreaks of vectorborne and zoonotic infectious diseases and in the transmission of these diseases to humans.” For example,

warmer weather and drought conditions lead to animal

migrations, an increase in mosquito populations, mosquito-borne illnesses and the need for increased mosquito

control. In addition, multiple cases of the mosquito-borne

West Nile Virus have occurred in Boulder County, and

San Miguel County is also vulnerable to the virus.

195. The threat of an increase in such harmful diseases creates the need for additional monitoring and surveillance. For example, Boulder County public health

staff anticipate, in the County’s Climate Change Preparedness Plan, increases in plague and tularemia (spread by

ticks and deer flies) if winters become warmer and rainier,

as projected.

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196. Prevention, monitoring, and reporting costs associated with the spread of such illnesses will likely increase due to increased surveillance and treatment of

mosquito-infested and other areas where humans have

the likelihood of contact with infected animals.

B. Plaintiffs have acted to prevent climate change,

but are still being harmed by, and must act to

mitigate, its impacts on their property and residents.

1. Plaintiffs have made substantial efforts to

reduce their own GHG emissions.

197. Plaintiffs have been national leaders in environmental sustainability and mitigating GHG emissions. For

example, “[r]ecognizing that local governments are the

first responders in the fight against climate change, Boulder County has taken numerous steps to reduce its own

heat-trapping emissions and to assist its residents and

businesses to do the same.”

198. Boulder County, San Miguel County and the City

of Boulder are all members of Colorado Communities for

Climate Action, which advocates for state and federal actions to protect Colorado’s climate for current and future

generations. Sustainability is at the very core of Plaintiffs’

identities, each of which takes seriously its responsibility

for stewardship of the natural environment.

Boulder County has made efforts to reduce GHG emissions.

199. Boulder County’s guiding values include “sustainability” which includes a commitment to environmental sustainability. “Environmental protection and sustainability” is listed as one of the County’s priority areas. General environmental sustainability and management of

54

public lands and natural resources for the future are listed

as guiding principles of the County’s 2017 State Legislative Agenda; supporting climate change preparedness

and resiliency efforts, wildfire mitigation and protection

of public lands served as legislative priorities.

200. These are principles and ideals that Boulder

County aggressively puts into place financially and

through incentive programs.

201. In 2017 the County budgeted for funds such as

the Clean Energy Options Local Improvement District

Fund and the Qualified Energy Conservation Bonds

Fund, which were earmarked “for the creation of cost-effective programs aimed at reducing energy use and preventing climate change.” Conservation and sustainability

expenditures under the 2017 adopted budget amounted to

$38,787,781.

202. As part of a larger effort toward achieving Kyoto

Protocol targets, the Boulder County Sustainable Energy

Plan sets forth recommendations to achieve a reduction of

greenhouse gas emissions 40 percent below the County’s

2005 levels by the year 2020.

203. In order to meet this goal, Boulder County has

carried out numerous programs and initiatives. EnergySmart assists families and businesses in increasing

their energy efficiency, offering discounted energy efficiency evaluations to homeowners; over 15,000 homes and

over 4,000 businesses have participated. BuildSmart is

Boulder County’s residential green building code, which

promotes the building of energy efficient structures and

requires zero net energy for certain new homes. Benefits

Boulder County facilitates discounts on rooftop solar installations and electric vehicles.

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204. The Transportation Department works to help

Boulder County residents and visitors with alternative

modes of travel such as biking, walking and transit, and it

is a County objective to “[f]oster a transportation system

that reduces demand for and reliance upon petroleum.”

San Miguel County has made efforts to reduce GHG

emissions.

205. San Miguel County produced its first Sustainability Inventory in 2006, its first Greenhouse Gas Inventory in 2010, and issues an Annual County Energy Report

which tracks the County’s energy use and CO2 emissions.

206. In 2007, San Miguel County joined with its towns

and other groups to create The New Community Coalition

(TNCC), which developed a 2007 baseline of CO2 emissions for San Miguel County. Since 2007, San Miguel

County has spent approximately $560,000 on this effort.

207. In 2012, TNCC changed its name to EcoAction

Partners, which continues to be funded by San Miguel

County and its towns. It implements several programs to

reduce GHG emissions, including providing free energy

assessments to low- and middle-income households in order to prioritize and implement cost effective energy efficiency improvements; school programs that teach saving

energy and reducing waste by establishing sustainable

life habits; and the Greenlights LED lightbulb rebate program to encourage energy efficiency and save businesses

and residents money. EcoAction Partners also runs a

Green Business Certification program to help businesses

realize the financial benefits of energy efficiency.

208. In 2009, San Miguel County adopted Colorado’s

Climate Action Plan, setting CO2 emissions reduction targets of 20 percent below 2005 levels by 2020. Also in 2009,

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San Miguel County signed onto the Cool Counties Initiative, setting a goal to reduce county GHG emissions 80

percent below 2009 levels by 2050.

209. As part of the 2018 Board of County Commissioner goals, San Miguel County “will work towards becoming a carbon neutral organization.” In 2015, the Board

of Commissioners approved $10,000 to hire an independent contractor to establish test sites in San Miguel County

for a carbon sequestration project.

210. San Miguel County works with numerous partners to reduce private sector energy consumption and

CO2 emissions as well.

211. San Miguel County is initiating a Payments for

Ecosystem Services pilot program that provides incentives to landowners in exchange for managing their land

to provide an ecological service, including carbon sequestration to support cleaner air; it participated in the CPACE program, which provides low-cost financing for renewable energy and energy-efficient installations in commercial developments; and it has used County-owned land

for a solar power installation.

212. San Miguel County was a partner in the 2017 Upper San Miguel Basin Forest Health Landscape Assessment (which deals with, among other things, the effects of

climate change on forest health and wildfire risks) and is

a member of the West Region Wildfire Council, a consortium of local, county, state and federal agencies that addresses wildfire risks in six counties in southwestern Colorado.

57

The City of Boulder has made efforts to reduce GHG

emissions.

213. In addition to collaborating with Boulder County

on joint climate initiatives, the City of Boulder minimizes

its own contributions to global climate change.

214. The City established policies to reduce its GHG

emissions to align itself with the goals of Kyoto as early as

2002. The City was the first community in the United

States to tax itself to preserve open space, and the first to

establish a carbon tax. In 2006, Boulder residents voted to

authorize the City Council to level a tax to fund a climate

action plan with the goal of GHG reduction.

215. In 2016, the Boulder City Council adopted the

City’s Climate Commitment, which includes commitments to transition to 100 percent renewable energy by

2030 and reduce the City’s GHG emissions to 80 percent

below 2005 levels by 2050.

216. In order to meet its goal, the City is investing in

a number of ongoing energy and climate efforts, including

the 2017 Energy Conservation Code that guides the effort

to achieve net zero energy for the City’s residential and

commercial buildings, SmartRegs ordinances that require certain housing in Boulder to meet energy efficiency

standards by the year’s end and solar rebate and grant

programs that support businesses and individuals in financing solar installations.

217. The City’s transportation department focuses

extensive efforts on reducing single-occupancy vehicle

use and building miles of bikeways and pedestrianfriendly routes. These and other efforts kept over 50,000

metric tons of emissions out of the atmosphere by 2015.

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218. The City is also exploring its own locally owned

municipal electric utility in an effort to achieve its GHG

and clean energy goals.

219. Boulder County and the City of Boulder’s Open

Space Department have also begun to study the ability of

carbon sequestration on agricultural lands and in forests

to absorb extra carbon from the atmosphere. In the words

of a County Commissioner, “inaction is not an option.”

220. Nonetheless, “Boulder County and the City of

Boulder have also realized that despite their best efforts

to reduce GHG emissions, climate change impacts are inevitable and have the potential to exacerbate many of the

challenges faced by Boulder County and its municipalities.”

2. Plaintiffs and their residents have already

been injured because of climate change

caused and contributed to by Defendants’ actions. They are mitigating current climate

impacts and will be forced to continue mitigating and adapting to climate change for

the foreseeable future.

221. Plaintiffs and their communities have already

suffered the impacts of Defendants’ actions altering their

climate. Recent events have highlighted the costs to Plaintiffs of responding to extreme events, which will become

more frequent with climate change.

222. For example, in 2010, the Fourmile Canyon Fire

swept through parts of Boulder County near Boulder, destroying 162 homes within the first 12 hours, and 6,181

acres in total. Fighting the fire required 900 firefighters

and first responders. In spite of those efforts, the losses

totaled hundreds of millions of dollars, making it the most

expensive fire in Colorado’s history at the time. In 2013,

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Boulder received nearly a year’s worth of rain in 8 days,

which caused over $2 billion in property damage across

the Front Range, and in Boulder County alone destroyed

or damaged more than 150 miles of roads and 30 bridges

at a cost well in excess of $100 million. Municipal property

damage in the City of Boulder amounted to $27 million.

223. In response, the County administered a flooddamaged property buyout program amounting to $24.6

million to reduce the risk of future flood danger.

224. Boulder County’s 2017 State Legislative Agenda

summarizes the reality:

Data and forecasting reinforces recent experiences of

communities along Colorado’s Front Range—we will

continue to be burdened by the negative effects of climate change, from drought to wildfires to floods.

These ecosystem disruptions deeply affect residents

and communities, and demand swift action and response on the part of local governments. With local

emergency response agencies in place, county response is typically well-managed and triaged; however, the growing scale of disasters means that more

programs and staff are necessary to aid in responding.

225. Similarly, as the Mayor of the City of Boulder

has told the U.S. EPA climate change “will affect Boulder’s ability to deliver services including fire protection

and other emergency services, flood control and public

works projects, and health care and social services for vulnerable populations.”

226. As the 2012 Boulder County Climate Change

Preparedness Plan recognizes, a “sense of urgency” is

needed in the implementation of hazard mitigation pro-

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jects such as wildfire fuels treatments, stormwater infrastructure improvements and floodplain property acquisitions “to offset the potential impacts of climate change.”

227. All the Plaintiffs are expending considerable taxpayer dollars and undertaking adaptation measures to

plan for, understand and protect their land, infrastructure, and residents from current and future anticipated

climate impacts.

The costs of monitoring and assessment necessitated by

Defendants’ climate alteration.

228. Assessing and understanding the severity of current and projected impacts of Defendants’ climate alteration within the Plaintiff communities has been a substantial and expensive undertaking. All Plaintiffs have had to

spend staff time to better understand and respond to the

impacts of climate change, and this will only increase

along with climate change impacts. In addition to taxing

their internal resources, all Plaintiffs have also expended

money on outside experts to help understand existing and

projected vulnerabilities.

229. In 2012, Boulder County and the City of Boulder

jointly spent nearly $75,000 to hire a consultancy group to

conduct a climate change preparedness study.

230. Boulder County has also already spent thousands of additional dollars on additional studies and experts including, but not limited to:



$14,000 in 2017, to study to analyze the economic

impacts of climate change on, among other things,

County infrastructure;

61



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

and



a study of floodplain management and transportation system resiliency.

231. Similarly, the City of Boulder has also already

spent thousands of additional dollars on additional studies

and experts including, but not limited to:



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



approximately $15,000 to study the impacts of climate change on just two City-owned facilities;



thousands of dollars on several studies to analyze

the impact of climate change on water issues;



approximately $15,000 to study forest vulnerability

to disturbances and climate change; and



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

232. San Miguel County, which operates with a much

smaller annual budget, has likewise spent thousands of

dollars on additional studies and experts in order to understand its risks including, but not limited to:



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



approximately $32,500 for an analysis of debris

flow hazards to the County, which occur after

heavy rainfall due to the County's steep topography; and

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

a watershed study that considered, among other

things, the impact of climate trends on the San Miguel Watershed.

233. The monitoring and assessment costs incurred

by Plaintiffs as a result of climate change caused and contributed to by Defendants’ fossil fuel activities will continue to be necessary as the severity and timing of impacts

will change as projected future emissions become actual

emissions.

Plaintiffs face damage and added costs to protect

residents and drainage systems from flood and

precipitation.

234. All Plaintiffs are susceptible to flooding, and climate change will exacerbate the risk of such flooding due

to changes in rainfall intensity, storm frequency, the timing of snowpack melt and other extreme events.

235. Increased temperatures and more extreme

events associated with climate change also threaten ecosystems and vegetation that reduce runoff rates and flow

velocities.

236. San Miguel County is extremely susceptible to

riverine flooding given the steep mountainous terrain and

the multitude of creeks and streams that eventually flow

into the San Miguel River. The Town of Telluride and unincorporated community of Placerville are especially vulnerable to flooding and debris flows. San Miguel County

also experiences flash flooding due to intense cloudburst

storms over small and steep watersheds in the summer

monsoon season and early fall, and spring snow runoff can

also cause riverine flooding with the combination of

warmer spring temperatures and spring rain.

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237. In light of the increased precipitation projections

and enhanced flood risk discussed above, Boulder County

will need to upgrade its drainage and stormwater infrastructure or take other precautions to protect its residents from precipitation events.

238. Both Counties will have to spend additional sums

to assess the need and cost of future flood mitigation.

These assessments will reveal additional costs. Boulder

County has already hired a consultant to determine if additional property acquisitions need to be made due to increased flood risk.

239. The City of Boulder has made significant investments in flood conveyance facilities over the last several

decades and has identified approximately $170 million in

additional investments—needed to accommodate industry standard one percent probability storms—based on

historic data. Projected changes—in storm frequency and

intensity, changes in the timing of peak snowpack melt

and the occurrence of other extreme events—may impact

both the utility of prior investments and feasibility of

planned future mitigation. The City will have to spend additional sums to monitor and assess these impacts.

240. The 15 major drainageways that run through the

City of Boulder rely heavily on the presence of healthy

ecosystems and vegetation to mitigate impacts by encouraging infiltration that reduces peak runoff rates, reducing

flow velocities and providing channel stability that reduces erosion and sediment transport. Increased temperatures and more extreme events associated with climate

change increase the risk of degrading the health and stability of these systems, which in turn results in more frequent and severe impacts during major precipitation

events. For example, wildfire has the potential to increase

the damage associated with even small precipitation

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events, which would have historically had only small runoff.

241. The City updates the floodplain mapping and

mitigation studies on its 15 major drainageways on a periodic basis to reflect changes due to land development,

new study technologies and the impacts of major floods

that have occurred. Changes in the base hydrology used

for flood modeling, due to climate change, result in increased costs to maintain accurate mapping of hazards

and require reevaluation of associated mitigation plans.

242. Additionally, the City will likely need to take

more proactive steps to respond to the increased flood

risk. For example, the City budgeted $500,000 annually

for a program to reduce the dangers of flooding by purchasing and removing structures with the greatest life

safety risk. The program further prevents reconstruction

in high-risk areas after a flood event through the City’s

purchase of private properties with flood-damaged structures. To adequately mitigate the risks associated with increased flooding on account of climate change, the City

will need more money for this program.

Plaintiffs face damage and added costs to protect transportation infrastructure.

243. Transportation infrastructure is critical, and vulnerable to climate change. All Plaintiffs maintain hundreds of miles of roads, and in the face of climate change,

they will need to spend tens of millions of dollars more

than historically required to maintain and repair roads as

they are degraded by the effects of climate change.

244. Expected increases in temperature, rainfall intensity and flooding can all damage roads, increasing

maintenance costs.

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245. Increased temperatures, as well as altered precipitation patterns and freeze-thaw cycles, lead to more

potholes and other asphalt degradation such as rutting

and shoving—intensifying the need for road repairs—because road materials are generally designed for historic

climate conditions. According to a climate vulnerability

study commissioned by the Colorado Energy Office, road

buckling increases at sustained temperatures over 90°F,

which also shortens pavement life and causes bridge expansion; “[t]hese changes will necessitate increased

maintenance and construction resulting in higher associated costs.”

246. With conservative estimates projecting an average temperature rise in Boulder of 4°F by 2040, temperatures are projected to more frequently exceed pavement

mix design standards used for asphalt roads. These, as

well as cracking and erosion caused by altered precipitation patterns, are projected to cost the City of Boulder

and Boulder County tens of millions of dollars, and San

Miguel County millions of dollars.

247. Roads may also be damaged by flooding, especially because many roads in western Boulder County

tend to run adjacent to creeks, placing them at risk with

any increase in flooding potential. Flooding and major

storm events also place significant stress on bridges, necessitating more repairs and/or bridge upgrades to prevent bridge failure.

248. Boulder County and the City of Boulder have already spent over $100 million on repairs to roads and

other infrastructure damaged by the 2013 flood, which is

an example of the costs that it will increasingly bear in the

future as climate change impacts increase. Reasonable

adaptive adjustments that the Plaintiffs could currently

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undertake, in order to reduce future maintenance and repair costs to roads and bridges due to the impacts of climate change, are projected to cost in the millions of dollars. If Plaintiffs do not pay more for maintenance on an

ongoing basis, they face even more substantial expenditures for repairs in the future. Whether they spend money

on adaptation efforts now to upgrade and improve roads

and bridges, or wait to bear the increased maintenance

costs later, all Plaintiffs are projected to spend millions on

their roads and/or bridges due to climate change.

The City of Boulder faces damage and added costs to

protect its water supply.

249. The City of Boulder supplies water to thousands

of people, mostly in the City’s limits, and it owns substantial and valuable water rights. It has faced and will continue to face substantial additional costs to provide and to

continue to provide water—an essential need—to its residents and other users on account of climate change caused

and contributed to by Defendants’ fossil fuel activities.

250. Climate change impacts, including rising temperatures, earlier snowmelt runoff, precipitation changes,

droughts, and wildfires have affected and are projected to

continue to affect water supply and quality, as well as the

infrastructure that the City uses to supply water. The

City has spent and will be forced to spend substantial additional dollars to account for these impacts in added

maintenance, monitoring and proactive adaptation costs.

The costs to the City for not being able to provide water

for a single day are estimated to be as high as $6.2 million.

251. The City has spent, is spending and will continue

to spend substantial staff resources and dollars to study

the impacts of climate change on the adequacy and quality

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of its water supply. In 2008, the City commissioned a report, costing thousands of dollars, on how climate change

will affect its water supply. In 2017, the City commissioned a new report, again looking at how climate change

would affect its water supply and quality, costing

$210,000. Since 2016, the City has spent tens of thousands

of dollars to study how wildfires would affect the local watersheds.

252. While the City has been historically able to supply water to users, climate change will likely impact its

ability to do so in the future.17 The City will have to continue expending money and staff resources to monitor and

analyze whether the City will have to expand its water

supply and/or storage capacity.

253. The City also faces increased challenges and will

face additional costs associated with treating the water it

supplies.18 Warmer water is more expensive to treat and

While projections concerning overall precipitation diverge relative to the location of the City of Boulder’s water supply watersheds,

there is a strong possibility that precipitation may decline. Even if

overall precipitation remains constant, water supply may still be

threatened. As peak snowpack melt occurs earlier in the year and

summers become hotter and drier, water demand may increase, and

stored water may be insufficient and the specific months when Boulder’s most senior water rights are legally available may result in reduced water yield due to the change in runoff timing. Similarly, the

water the City receives from the West Slope may become scarcer as

a result of changes in flows, precipitation and demand in the regions

supplied by the Colorado River. The City’s water supply, watersheds

and infrastructure will also be subject to an increased threat of damage from events such as wildfire and floods that are projected to increase with climate change.

17

18

The City currently has the ability to manage seasonal variation

in source water quality and choose between different sources in order

to optimize treatment and reduce associated costs; in the future, climate change may reduce such flexibility.

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the City will be forced to bear those costs in the future.

The debris and ash created from wildfires also poses a

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

254. The City has already taken substantial steps to

proactively protect its ability to treat water, in light of climate change risks. Specifically, the City spent $40 million

to cover a canal that transports West Slope water, in order to preserve water quality. That decision was driven,

in part, by the need to ensure that water supply infrastructure would be more resistant to the impacts of climate change. Similarly, the City has expanded the emergency electrical generators at its critical water treatment

facilities, in part, because of increasing extreme events—

like floods, fires and storms—associated with climate

change.

255. The City will also likely face increased funding

challenges due to the rising costs of water treatment and

maintaining its water supply infrastructure on account of

climate change. The City’s water users pay for water

based on their use, and those funds go towards maintaining the water supply infrastructure. If, as appears likely,

the City must limit water supply—for example, on account of projected drought brought on by climate

change—it may have less revenue to offset the costs associated with the operation and maintenance of its critical

infrastructure.

19

Even minor precipitation events can flood the City’s reservoirs,

creeks, streams and canals with that ash and debris, leading to additional and sometimes insurmountable treatment costs, which the City

will be forced to bear in the future.

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Plaintiffs face damage and added costs to protect

residents and property from wildfires.

256. All Plaintiffs expect increased costs from increased wildfire risk due to climate change caused and

contributed to by the levels of Defendants’ fossil fuel activities. Plaintiffs’ response, prevention, mitigation and/or

recovery costs are increasing and will continue to increase.

257. The higher temperatures and extended periods

of droughts that San Miguel County will face as a result

of climate change will substantially increase its risk of

wildfire and its consequential damages. The number of

wildfires and the size of the area burned are expected to

increase over the next three decades, and the wildfire

threat will extend to higher elevations, where historically

there was a much lower wildfire risk, which could potentially include areas where mitigation has not been as high

a priority.

258. Since San Miguel County is the first responder

for wildfires that start on private or state land, and its anticipated response costs for such fires can reach hundreds

of thousands of dollars per day, the County faces enormous financial liabilities from increased wildfire risk.

259. San Miguel County is already seeing a trend of

larger, more frequent fires. In 2002, the Burn Canyon fire,

started by lightning, consumed a devastating 31,300 acres

of forest, costing $35.3 million to fight. In 2014, the Board

of County Commissioners recognized that a “warming climate has accentuated” wildfire occurrence from natural

patterns.

260. San Miguel County also faces the likelihood of increased premiums for wildfire insurance it carries for

County property as a result of this increased risk.

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261. Boulder County has responsibility for wildfire

mitigation planning in a County—where in just one of its

two wildfire management zones, over 8,700 households exist in wildfire-prone areas—in homes valued at over $3 billion. Much of the City’s invaluable water supply also

comes from high-elevation, forested watersheds and reservoirs.

262. The City of Boulder’s Fire-Rescue Department

is tasked with protecting life and property through fire

prevention, education and risk reduction activities, fire

suppression, emergency medical and rescue services, and

coordination with neighboring fire districts. The Department is responsible for “[p]rotecting more than $21 billion

dollars’ worth of property within Boulder.” As of 2007, the

value of fire-prone structures and estimated contents in

the City of Boulder’s wildland-urban interface alone was

$2.5 billion.

263. Both Boulder County and the City of Boulder

have already suffered substantial and additional costs related to the increasing wildfire risk, including general

suppression costs, prevention costs, and rehabilitation

costs (of roads, forests, watersheds). These costs are significant, and Plaintiffs face the risk of continuing and increasing costs in the future as wildfires are likely to increase.

264. With current trends and predicted increases in

drought and heat combined with earlier snowmelt, the

frequency of wildfires is increasing and will continue to do

so, further endangering a high-risk area filled with homes,

water reservoirs, ecological hotspots, and wildlife.

265. Plaintiffs have already had to, or will need to, increase their fire mitigation and firefighting response costs

due to the increased risk of wildfire caused by climate

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change. The Boulder County Sheriff’s Office has likewise

increased staff in recent years in part to respond to these

needs.

266. Boulder County is also facing costs to adapt to

and reduce wildfire risk, such as through its Wildfire

Partners Program, which was created in 2014 in acknowledgment of an increased risk of fire from climate change.

This Program assists County homeowners to protect their

homes against wildfire.

Plaintiffs face damage and added costs to protect and

preserve their forests.

267. Related to but distinct from their responsibility

for wildfire, Boulder County and the City of Boulder both

own and have responsibility for thousands of acres of forest. As discussed above, their forests have been damaged

and will continue to be threatened in numerous ways by

climate change trends, which have been caused and contributed to by the levels of Defendants’ fossil fuel activities. Boulder County and City have expended and will continue to expend substantial additional resources, including staff time, to preserve forest health and manage the

impacts of dead trees and insect outbreaks.

268. For example, between 1996 and 2010, 122,455

acres of forest in Boulder County saw some level of damage related to mountain pine beetle, which forced the

County to hire extra staff to manage their forests.

269. Because removal of beetle-killed trees reduces

risk of wildfire in areas, Boulder County set up, and will

continue to run at increasing cost, “sort yards” to provide

a location to dispose of wood in order to facilitate the removal of dead trees to protect homes and public infrastructure. Two main reasons that residents bring wood to

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the yards have been to mitigate wildfire risk and to remove trees killed by mountain pine beetle.

270. Boulder County will see even more severe beetle

outbreaks decimating its forests and in turn creating the

potential for increased watershed debris due to climate

change, necessitating additional forest maintenance and

management demands—specifically, removal of beetlekilled trees (which threaten public safety by increasing

wildfire risk, damaging utility lines, private property and

public infrastructure) and a potential increase in insecticide spraying. In the face of a significant beetle outbreak,

the County and the City will have to expend significant

costs to hire contractors to remove beetle-killed trees.

271. San Miguel County has partnered to fund a community-driven mapping effort to understand forest

change in response to climate warming and drought

trends, and to model potential climate change impacts on

forest conditions given the potential for climate change to

alter the landscape through beetle kill, disease and wildfire. The information will be used to inform forest health

and fire mitigation decisions. According to the Project,

“Douglas-fir in the upper San Miguel basin are experiencing mortality from an outbreak of the Douglas-fir beetle

and defoliation from spruce budworm, both climate

change-related disturbances.”

272. In addition to traditional forest space, the City of

Boulder’s Urban Forestry Division of the Parks and Recreation Department also directly manages approximately

51,000 public trees—out of an estimated total of 650,000

trees that form the City’s “urban tree canopy”—in City

parks and street rights-of-way.

273. Climate change has increased both the need for

and the costs of maintaining this tree canopy. The tree

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canopy helps to cope with increasing temperatures due to

climate change; trees help to combat the “urban heat island” effect and serve to slow and manage stormwater

runoff.

274. In the face of tree die-off from insect infestation,

the City has an overarching goal to maintain the tree canopy in the developed portions of the City that are shaded

by trees to moderate extreme temperatures, among other

benefits. Nevertheless, extreme weather and other events

exacerbated by climate change, including significant temperature swings, insect outbreaks, floods, drought and

late snowstorms, also harm the tree canopy and increase

the costs of maintaining it.

275. The costs of maintaining the urban forest are

enormous. For example, during springtime snowstorms

in 2016, City urban forestry staff had to hire contractors

at a cost of over $500,000 for pruning, hauling and chipping. Extreme temperature fluctuations in November

2014 caused the mortality of over 500 elm trees that the

City had to remove at the cost of $150,000.

Plaintiffs face damage and added costs to maintain

their open space.

276. All Plaintiffs maintain parks and open space areas which will be damaged by the effects of climate change

caused and contributed to by the levels of Defendants’ fossil fuel activities.

277. Boulder County Parks and Open Space (“Boulder County Open Space”) manages over 100 miles of trails

and 30,000 acres of forests—forests that act as carbon

sinks and provide a habitat for over ninety species of birds

and large mammals, including bears and mountain lions.

It also owns water rights valued at approximately $200

million, and an interest in more than 100,000 acres of land,

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the geological diversity of which spans alpine tundra,

sweeping plains and grasslands, and wooded mountains.

Boulder County Open Space is also responsible for weed

control on over 30,000 acres of land.

278. San Miguel County Parks and Open Space (“San

Miguel Open Space”) manages hundreds of acres of land,

miles of trails and fairgrounds that are used for rodeos.

The Open Space Program also encompasses the Land

Heritage Program, which uses County funds to place conservation easements on important lands for preservation

purposes.

279. The City of Boulder’s Open Space and Mountain

Parks Department (“City Open Space”) manages over

45,000 acres of protected and preserved land, which includes wildlife habitats, floodplains, farm and ranchland,

unique geologic features, cultural sites, greenways and

over 150 miles of trails. The City also owns water rights in

the four major creek drainages in the Boulder Valley, including many senior water rights that provide reliable

sources of irrigation in most years. Its open space water

portfolio is valued at $60-70 million.

280. These public lands and water resources exist for

the use and enjoyment of residents and visitors, and serve

as vital spots for ecosystem protection, agricultural production, tourism, citizen health and wellness and revenue.

Boulder County Open Space has set policy and strategic

goals of minimizing “impacts to open space resources . . .

from oil and gas . . . and other third-party impacts,” and

adapting to human-caused climate change. The San Miguel Open Space Commission’s mission is “to seek to protect and conserve open space for people, natural habitat

for flora and fauna, and agricultural lands for the farming

and ranching communities throughout San Miguel

County for this and future generations.”

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281. With temperature rise, increases in precipitation

intensity and increased duration and intensity of wildfires

due to climate change caused or contributed to by Defendants’ fossil fuel activities, all Plaintiffs are already taking

or will need to take substantial and expensive protective

and restorative measures on their public lands, including

increased staff time to mitigate, repair, remove hazards

and restore open space lands.

282. Addressing climate change hazards to Open

Space in Boulder means that Open Space has to adjust the

way it designs trails, treats its forests, protects its diverse

plant and animal species, manages invasive plans and supports its agricultural tenants. Past events illustrate how

significant these costs can be. All of the City Open Space

trails were damaged in the 2013 flood, with 64 percent of

the trails experiencing significant to severe damage. Facilities suffered from damage to fences, ditches, bridges,

and water irrigation delivery systems. The estimated cost

for all City Open Space infrastructure repair due to the

flood was over $7 million. In addition, 25 percent of Boulder County Open Space trails experienced damage,

amounting to a repair cost of over $2 million.

283. The City of Boulder is already spending large

amounts of staff time and money on consultants to understand the impacts of climate change to ecosystems and

currently has a climate change vulnerability study for

plants underway.

284. San Miguel Open Space is also initiating a Payments for Ecosystem Services program, which is a pilot to

help farmers and ranchers improve soil ability to retain

water and ease drought effects, and in 2017 committed

$20,000 to study the ability of carbon sequestration on agricultural lands.

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Boulder County and City face damage and costs to

maintain their agricultural property.

285. Both Boulder County and the City of Boulder

have significant agricultural property that is vulnerable to

climate change.

286. Boulder County Open Space owns 25,000 acres of

agricultural land, which it manages through its Agricultural Resources Division. That land is divided into 120

leases and 67 agriculture tenants, who grow sugar beets,

beans, alfalfa, grains and more, generating roughly

$125,000 in profits for the County every year.

287. City Open Space owns nearly 15,000 acres of

lands that it currently leases to 26 local farmers and

ranchers. The land is primarily used for hay and forage

production and livestock grazing. Annual crops grown on

300 to 600 acres of the land currently include wheat, corn

and barley.

288. Climate change caused and contributed to by Defendants’ fossil fuel activities will increase heat waves,

droughts, wildfires and shifts in spring runoff, all of which

negatively affect agricultural lands, including by reducing

water availability. Climate change is expected to decrease

the nutritional quality of grain crops, increase growth of

some weeds, decrease the efficacy of herbicides, decrease

the availability of irrigation water, decrease crop yields

and bring higher winter minimum temperatures that

could increase pest survival and the number of generations of insects that traditionally reproduce once per

growing season.

289. Not only is climate change jeopardizing the existing water supply, but it is also likely to increase future

agricultural water demand. Specifically, projected tem-

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perature increases, along with other changes in the climate, could increase water consumption by 2 to 26 percent, as soils and plants transpire more of their water.

Other climate-related changes to agriculture include that

earlier growing seasons could leave crops more susceptible to late frosts, weeds may become more common due to

rising CO2 levels and temperatures and crop yields may

otherwise decrease due to heat stress and increased

drought severity.

290. As early as 2012, in part due to climate change

predictions, consultants recommended that Boulder

County “continue to emphasize investments in water-efficiency improvements on irrigated agricultural land owned

by the county.” These improvements are and will continue

to be expensive; in 2016, for example, it cost the County

nearly $75,000 to build four center-pivot sprinkler systems, which are expected to cut water usage in half.

291. The City of Boulder has expended resources to

develop its Agricultural Resources Management Plan,

which recognizes the numerous risks posed by climate

change and the need to “[i]dentify agricultural management practices that help prepare for a more arid future”

and to “[r]esearch the potential for agricultural practices

to mitigate climate change.” This research will likely include costly crop substitution studies and other assessments.

292. Boulder County Open Space has already expended resources in the planting of more water-efficient

crops. City Open Space is also planning to increase the efficiency of water distribution, explore storm water retention strategies and increase use of more water-efficient

crops.

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Plaintiffs face damage and increased costs to provide

emergency management services.

293. The Plaintiff communities face increasing costs

to provide emergency management services as a result of

climate change, and the impacts discussed above, including increased wildfires, heavy rainfall, and other extreme

weather events, caused and contributed to by the levels of

Defendants’ fossil fuel activities.

294. The Boulder Office of Emergency Management

(OEM) is a joint office that provides emergency management for both the County and the City and exists to create

and coordinate a comprehensive emergency management

program that enables “effective preparation for, efficient

response to, and effective recovery from . . . disasters, in

order to save lives . . . protect resources and develop a

more resilient community.” OEM has recognized climate

change as a significant threat.

295. With increasing trends of extreme events such as

wildfires, drought and intense rainfall, more volatility

from a warming climate, and the impending threat of an

even greater frequency of extreme events in the future,

OEM has had to hire more paid staff, needs to hire still

more staff to handle future events and engages in supplemental community preparation efforts.

296. Additionally, climate change contributes to

OEM’s need to make significant upgrades to its existing

emergency management space, or build a new, fully builtout emergency operations center. The upgrades or new

center will cost in the millions to tens of millions of dollars.

297. The City of Boulder is currently spending money

to create sites and resilience centers in various parts of

the city for sheltering purposes during severe storms due

to an anticipated increase in extreme weather events.

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298. San Miguel County Emergency Management’s

mission is to “support [the] community’s disaster preparedness, response, recovery and mitigation needs.” During

the planning process for the newest version of its MultiHazard Mitigation Plan, encouragement of public involvement included educating the community on “potential mitigation and climate adaptation strategies.” Among the

other natural risks San Miguel County deals with, power

outages from severe weather is an ongoing concern.

299. San Miguel County Emergency Management

does not have the resources to respond to increasingly severe weather events brought on by climate change and is

already expending funds to increase its capacity. In recent

years, San Miguel County has added a new full-time staff

member, expanded its Emergency Management Operations Center, and expanded its outreach and training programs.

Plaintiffs face increased costs to abate public health hazards in their communities.

300. All Plaintiffs have faced and will continue to face

increased costs to abate climate change-related public

health hazards in their communities—such as increases in

rainfall intensity, heat, wildfires, smoke, ground-level

ozone, exposure to toxic materials, increase in vectorborne disease and housing displacement—that are caused

and contributed to by the levels of Defendants’ fossil fuel

activities.

301. Preparedness for outbreaks of disease and heat

or other extreme events is crucial, and the public costs of

mitigating and responding to these health hazards are extremely high.

302. Due to the expected continued heat rise in Boulder County, a place that historically rarely saw days above

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95 degrees, Boulder County and the City of Boulder are

expected to see increased public health heat risks, such as

heat stroke, and their associated costs.

303. Heat increase will affect everyone, but particularly vulnerable populations such as children, the elderly

and those with existing medical conditions. The number of

heat-related mortalities in the Boulder area is expected to

increase above the historic average.

304. Plaintiffs Boulder County and the City of Boulder will have increased costs connected with abating this

public health hazard. For example, both may need to take

steps to ensure that proper cooling systems are in place,

especially in areas with vulnerable populations, given that

Colorado has a high number of non-air-conditioned buildings due to its moderate temperature history.20

305. Cooling centers that are available during heat

waves, and/or assisting with home air-conditioning installation, could cost Boulder County and the City of Boulder

millions of dollars by mid-century.

306. Ground-level ozone—already a problem for the

Boulder area—is also expected to increase with rising

temperatures. The risk of increased ground-level ozone

from warm temperatures may push San Miguel County,

which is on the cusp of Clean Air Act non-attainment, into

non-compliance.

20

Cooling costs for buildings can be incredibly high, reaching into

the millions of dollars. For example, $37.7 million from a $575.5 million school construction bond for the Boulder Valley School District

is being used to provide air-conditioning and better ventilation. This

was done because of rising August temperatures and related health

concerns for students. The schools had been built for open air cooling,

in light of the area’s historic climate.

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307. Exposure to ozone is associated with respiratory

disease, cardiovascular disease, and even premature mortality; an increase likely will alter public health employee

workloads and the number of emissions reduction programs the Boulder area requires in order to meet federal

requirements for ozone attainment.

308. All Plaintiffs will also face increasing costs to

monitor and reduce ozone. According to the Climate

Change Preparedness Plan, Boulder County “will likely

need to expend more time and money in the future to

avoid the monetary and health-related costs of being outof-compliance with ozone attainment.”

309. Boulder County has already spent resources

studying ground-level ozone, including how it is affected

by climate change. Moreover, all Plaintiffs have enacted a

number of expensive GHG reduction programs, in part,

because of the need for cleaner air in a changed/changing

climate.

310. Boulder County is also responsible for providing

vaccination services and general disease control to residents, including mosquito control; the County needs to

prepare for increasing costs to provide these services in

light of climate change. The City of Boulder uses ecosystem services to regulate mosquitos—ecosystems that will

be damaged by human-caused climate change.

311. Because disease outbreaks are linked to increased temperature, Colorado may see a spread in infectious diseases in the future. For example, a trend towards

warmer weather could lead to an increase in mosquito and

other species and, thus, mosquito-borne illnesses or other

arthropod-borne (e.g., ticks-borne) illnesses, which would

in turn lead to the need for increased or adjusted vector

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control. With warmer weather, mosquito and tick populations have increased in San Miguel County.

312. Due to changing climate patterns such as

warmer seasons, and increased drought, there is also the

potential for animals to hibernate less, resulting in more

human-animal interactions, which can increase incidence

or risk of diseases, such as rabies.

313. The costs of responding to and monitoring these

health risks are substantial.

314. The spread of West Nile virus is instructive.

West Nile virus first appeared in Colorado in 2002. By

2003, Colorado had the highest number of West Nile virus

deaths and cases in the country. Prior to 2002, the City of

Boulder did not have a mosquito control program. Now,

the City’s mosquito management costs are increasing annually, amounting to a budget of roughly $250,000 for

2018. In 2017, the budget for mosquito control in Boulder

County was similarly high: $397,151.

315. Both Boulder County and the City of Boulder

have experienced increased monitoring and costs to educate the public about these public health hazards, as they

inspect areas where animals live and collect species (including mosquitos) to test for disease rates.21 County public health officials in San Miguel County have similarly

spent time and resources to educate the public about West

Nile virus, and work with local agencies to track and test

21

Although predictions for vector-borne illness spread are difficult

because they are also highly dependent on shifts in human behavior

and human levels of immunity, the consequences of increases in such

illnesses are dire enough that increases in monitoring and surveilling

of the situation may be warranted.

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

316. The City of Boulder recently hired a consultant

to study, among other things, alterations to ecosystems

and species migration patterns due to a shifting climate,

which will help the City understand public health risks.

Warmer weather and shorter hibernation seasons could

result in more human-animal exposure, including to species that typically carry rabies, such as skunks.

317. The City is also currently reviewing an adaptive

management approach to its mosquito control program to

address challenges from climate change, and has acknowledged that “[a] process needs to be developed in the event

that a new mosquito-borne disease occurs in Boulder that

could impact the community, particularly with the potential of new disease emergence with changing climate.”

***

318. The programs and adaptation measures that

Plaintiffs have undertaken—such as new irrigation systems and stormwater infrastructure, increased wildfire

defensive spaces, and more emergency management

staff—are only the beginning of an adequate response to

dealing with increased risks from climate change.

319. These costs are occurring now and being borne

by taxpayers in order to protect the safety, health and

lives of residents and the property and infrastructure of

Plaintiffs. The costs will continue to grow for decades to

come to adapt to new conditions.

320. As detailed below, each of these costs and risks

is a result of the Defendants’ actions in causing and contributing to the alteration of the climate.

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C. Defendants’ fossil fuel activities have caused

and will continue to cause Plaintiffs’ damages

and losses.

321. The Suncor Defendants and Exxon are responsible for causing, contributing to and increasing the impacts

of climate change, which are injuring Plaintiffs.

322. Defendants produced, promoted, refined, marketed and/or sold an enormous amount of fossil fuels—

and plan to continue doing so. Defendants’ fossil fuels

were used, are used and will continue to be used by their

consumers in the intended, foreseeable and natural way:

combustion.

323. Since the 1960s, moreover, Defendants engaged

in these fossil fuel activities at increasing levels knowing

that increasing levels of these activities would cause and

were causing significant alteration of the climate—leading to damages and losses of the types incurred by Plaintiffs—and that such alteration was substantially certain to

occur if unchecked fossil fuel use continued. They concealed this knowledge from their consumers and the public, including residents of Plaintiffs’ communities.

324. In addition, through the 1990s and 2000s—critical decades when fossil fuel use needed to be brought under control and alternatives needed to come into the market—Defendants affirmatively misrepresented what they

knew about the causes and consequences of climate

change.

325. Today, Defendants continue to conduct their fossil fuel activities at levels that contribute to alteration of

the climate, including in Colorado, and do not plan to stop

or substantially reduce those activities. Their plans include selling more fossil fuels, including fuels that have an

even more significant impact on climate. This is so even

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though Defendants, at least publicly, profess to

acknowledge the dangers of climate change.

326. Defendants’ fossil fuel activities caused and contributed to climate change, and continue to be a cause. Defendants also accelerated, aggravated and continue to accelerate and aggravate the impacts of climate change.

1. Defendants knew their fossil fuel activities

would result in dangerous changes in the climate.

327. Decades ago, the Suncor Defendants and Exxon

knew that climate change was occurring; that it was being

caused by and that it was accelerating primarily because

of the level of combustion of fossil fuels that was occurring; that climate alteration may be irreversible; and that

it posed a serious danger to people and property, including in Colorado.

328. Beginning in the 1960s, Defendants spent years

studying climate change. From the research conducted by

Defendants, either themselves or through API, Defendants could not reasonably conclude that fossil fuel use at

the levels it was occurring would have no impact on the

climate, that impacts were unlikely or that those impacts

would be insubstantial.

329. Instead, Defendants’ research demonstrated

that their continued actions would cause a significant alteration of the climate. Beginning in the 1960s, and

throughout the 1970s and 1980s, industry-funded scientists advised Defendants that, while modeling may be imperfect, there was a growing consensus that fossil fuel use

would result in likely catastrophic changes to the climate.

330. During this time period, the Suncor Defendants

and Exxon also knew what had to be done to prevent

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and/or lessen the impacts of anthropogenic climate

change: GHG emissions had to be reduced, the growth of

fossil fuel use needed to be curtailed and energy needed

to be supplied by fossil fuel alternatives. Defendants were

warned that these actions needed to be taken imminently

and that the transition would be too late if they delayed

until the warming effects were significant.

331. In later years, Defendants would emphasize

what they claimed was the “uncertainty” of climate

change, and its impacts. This was disingenuous.

332. During the 1970s and 1980s, Defendants were

told that one (if not the primary) cause for any “uncertainty” was the extent of future fossil fuel use and growth.

In other words, if fossil fuel use were greatly curtailed,

then the predicted climate impacts might not happen. But

such impacts were substantially certain if fossil fuel use

continued to grow—exactly the path that Defendants

took. Therefore, Defendants’ own plans and conduct were

to blame for the problem of “uncertainty” that they would

complain about.

333. Defendants also knew that “uncertainty” did not

mean human-caused climate change would necessarily be

less serious than projected; instead, just the opposite

might be true. As an Exxon scientist warned the company

in 1978, “there is no guarantee that better knowledge will

lessen rather than augment the severity of the predictions.”

Defendants knew their fossil fuel activities were causing

CO2 in the atmosphere to rise.

334. In 1958, the American Petroleum Institute began

research on “gaseous compounds in the atmosphere to determine the amount of carbon of fossil fuel origin.”

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335. On information and belief—at that time and all

other relevant times—Defendants or their predecessors

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

336. On information and belief, this research was provided to Defendants and remains in API’s files.

337. Defendants’ and API’s research continued

through the 1960s culminating in a 1968 report, commissioned from the Stanford Research Institute (SRI), titled

“Sources, Abundance, and Fate of Gaseous Atmospheric

Pollutants.” One of the report’s conclusions was that atmospheric CO2 was rising, and that fossil fuel combustion

was by far the most likely “source [ ] for the additional

CO2 now being observed in the atmosphere.” The authors

explained that the increase in the concentration of CO2 in

the atmosphere was because “[t]he natural scavenging

processes for removing CO2 from the atmosphere are not

sufficient to maintain a stable equilibrium in the atmosphere in the presence of this increase in emissions.”

338. This point was underscored in a 1969 supplement

that confirmed for API that “none of [the carbon sinks,

e.g., the oceans and biosphere] [are] capable of counterbalancing” the “extremely large” CO2 emissions resulting

from fossil fuel combustion.

339. From the early stages, this information—that atmospheric CO2 was rising fast, and that fossil fuels (including Defendants’ fossil fuel activities) were to blame—

was shared with and known by top company managers.

340. For example, Wilburn T. Askew—who became

the president of Sun Company of Canada, Suncor’s direct

predecessor, in 1956—served on API’s technical committees. Mr. Askew and other members of Suncor received

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and/or had access to API’s climate change research, including the 1968 and 1969 SRI reports, which were circulated by API in 1972, as part of “Environmental Research:

A Status Report”.

341. As another example, an internal Exxon memo

from 1977—reporting that “current scientific opinion

overwhelmingly favors attributing atmospheric carbon dioxide increase to fossil fuel combustion”—was circulated

to the “Corporate Management Committee,” which included Exxon’s highest-level managers.

342. As the years went on, Defendants’ managers

were continually reminded that the levels of their fossil

fuel activities were causing a rise in atmospheric CO2. A

1980 API report confirmed that there was “strong empirical evidence that . . . fossil fuel burning” was causing the

rise in atmospheric CO2 and that more than half of emitted

CO2 was remaining in the atmosphere. On information

and belief, this report was shared with API member companies, including Defendants.

343. The implications of the rise in atmospheric CO2

were obvious and Defendants were told what was needed

next: a reduction of CO2 emissions. The 1968 API Report

summarized this recommendation: “Past and present

studies of CO2 are detailed and seem to explain adequately

the present state of CO2 in the atmosphere. What is lacking, however, is an application of these atmospheric CO2

data to air pollution technology and work toward systems

in which CO2 emissions would be brought under control.”

Defendants knew that climate alteration caused by their

fossil fuel activities would likely cause adverse and hazardous impacts.

344. Defendants’ interest in the rise in atmospheric

CO2 was not academic. Defendants understood that rising

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CO2 would trap heat and energy in the atmosphere, increasing temperature,22 and bringing about changes in the

climate—i.e., drought, heatwaves, flooding, and sea level

rise, etc.—that would have a profound effect on human

lives, property and livelihoods, including in Colorado.

345. In the same 1968 API report, Defendants were

told that “there seems to be no doubt that the potential

damage to our environment could be severe” and that the

lack of attention on CO2 emissions was “ironic” because

they “may be the cause of serious world-wide environmental changes.” Based on “[t]he latest available data”, Defendants were warned that temperatures might increase

by at least 1.1°F if the concentration of atmospheric CO2

increased 25 percent, and that temperature increases

would “be three times this figure” if CO2 levels doubled.

The 1968 report concluded that—even if these projections

were somewhat imprecise—“[s]ignificant temperature

changes are almost certain to occur by the year 2000 and

these could bring about climatic changes.”

346. Defendants spent the next two decades enhancing their understanding of the likely effects of their continued fossil fuel activities. Defendants were consistently

told that unchecked fossil fuel use would result in significant alteration of the climate.

347. Throughout this time period Defendants recognized that—as one 1980 document notes—even if there is

some uncertainty, “[t]he physical facts agree on the probability of large effects 50 years away . . . .” Thirty-eight

22

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

of the earth.”

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years after that statement, Plaintiffs, and others, are experiencing those effects.

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

349. As was the case during API’s research efforts

during the 1960s and 1970s, both Suncor and Exxon (or

their predecessor companies) were members of the task

force, and participated in the creation of or had access to

the information produced by or available to the task force.

350. The task force circulated a commissioned report

in 1980, on “The CO2 Problem,” which added alarming

projections to those contained in the 1968 report. The

1980 report predicted a 4.5°F (2.5°C) temperature rise by

2038, which would have “major economic consequences.”

Indeed, the rise would effectively “halt” “world economic

growth” by 2025. By 2067, the report predicted a 9°F (5°C)

temperature rise—bringing “globally catastrophic effects.” The report also warned that uncertainty might

mean the impacts would happen even faster than initially

recognized: there was a “1 in 10 chance [of a 4.5°F temperature rise] by 2005,” not 2038.

351. The 1980 report recognized that the severity of

the climate problem would be measured, at least in part,

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

352. The API task force appeared, at least internally,

to take these warnings seriously. As reflected in task force

meeting minutes, additional research was suggested to

“investigate the market penetration requirements of introducing a new energy source into world wide use” and

one of the suggested “overall goal[s]” of the task force was

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to “develop ground rules for energy release of fuels and

the cleanup of fuels as they relate to CO2 creation.”

353. In 1982, API commissioned another report, this

time from Columbia University, on the matter of climate

modeling. The Columbia report noted that despite some

variation among climate models, the various models “all

predict some kind of increase in temperature within a

global mean range of 4C [7.2°F].” The report also recognized that “[s]uch a warming can have serious consequences for man’s comfort and survival since patterns of

aridity and rainfall can change, the height of the sea level

can increase considerably, and the world food supply can

be affected.”

354. In addition to its participation in API’s work,

Exxon conducted its own climate research (some of which

has been made public).23 Much of this confirmed the research conducted for API and its members, but it also

adds more detail.

355. Exxon scientists warned in 1982 that a “clear scientific consensus ha[d] emerged” that the “well-documented increase in CO2” would result in “global temperature rise” and there was “unanimous agreement in the

scientific community that [the projected] temperature increase [ ] would bring about significant changes in the

earth’s climate, including rainfall distribution and alterations in the biosphere.”

356. Two years earlier, Exxon was warned that those

changes would “have a dramatic impact on soil moisture,

and, in turn, on agriculture.” Specifically, the “American

23

Over the last few years, information about Exxon’s awareness of

and research into climate change has become public. Suncor may have

also undertaken independent research into climate and its impacts,

which will likely be revealed during the course of this litigation.

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Midwest” was projected to “become drier should there be

a temperature increase of the magnitude postulated for a

doubling of atmospheric CO2,” with “weeds and pests”

also projected “to thrive with increasing average global

temperature.”

357. Exxon was separately warned that climate

change could bring about “a northward migration of the

desert areas of the United States” with “corn and wheat

belts . . . migrat[ing] to Canada.”24

358. Privately, Exxon also clearly recognized that society would have to adapt to climate change, and that it

would cost billions of dollars. While an internal Exxon

memo describes the threat of climate change as less “significant . . . [than] a nuclear holocaust or world famine,”

the required adaptation would be measured in percentage

points “of the gross national product estimated in the middle of the next century.”

359. Two other revelations from the internal Exxon

statements from the 1970s and 1980s are particularly relevant in light of their later contrary and misleading statements. First, it was clear to Exxon that low range temperature change projections were not credible. For example,

in 1980, Exxon employees noted—with seeming agreement—that projections of a temperature increase “on the

order of 0.25C [.45°F] for a doubling of CO2” were “not

held in high regard by the scientific community.”

360. Second, Exxon employees noted that there might

be “time lags” which would mask “much more significant

24

Another Exxon document included projections that at CO2 levels

of 500 ppm “[t]he flow of the Colorado River would diminish” making

water shortages in the southwest “much more acute,” and “[t]here

would be less of a winter snow pack in the . . . Rockies, necessitating

a major increase in storage reservoirs.”

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effects” in the future. In other words, the temperature increases due to CO2 buildup might occur substantially later

than the emissions themselves, such that once they were

felt, it would be too late to stop or reverse the impacts.

361. In August 1981, an Exxon scientist gave comments on a planning department document that had indicated that the “observable effects [of rising CO2] in the

year 2030” would likely not be catastrophic (without defining that term). The reviewing scientist, concerned that

this language would lull company officers into a false

sense of confidence, suggested edits, warning that “it is

distinctly possible” that Exxon’s projections of fossil fuel

use “will later produce effects which will indeed be catastrophic (at least for a substantial fraction of the earth’s

population),” because of “time lags” and natural climate

variability, which might hide the effects of an enhanced

greenhouse effect.

362. In fact, the calculations dating back to the 1968

report were remarkably prescient. By 2000, CO2 levels

had increased about 25% over a century before, and global

average temperatures were also about 1°F higher; in

1998, the global average temperature was 1.13°F above

the 20th century average. Scientists have also confirmed

that it takes decades for the warming from CO2 in the atmosphere to be felt; temperatures continue to rise even if

CO2 levels do not. Indeed, temperatures have continued

to rise, such that for 2014-2017, global temperatures were

1.54°F (0.86°C) above the 20th century average.

Defendants knew fossil fuel use reduction was needed.

363. Exxon and the Suncor Defendants have known

for years that if fossil fuel use continued at the same rate

(or grew), the impacts of climate change would come

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faster and would be more damaging. Specifically, Defendants were told that the transition away from fossil fuels

had to begin, that substantial shares of recoverable fossil

fuels could not be exploited, and that more carbon-intensive fuels should not be promoted or sold, at least not if

the impacts of climate change were to be prevented or

kept manageable.

364. As early as 1968, API’s members, including

Exxon and the Suncor Defendants, were warned that a

substantial percentage of the known recoverable fossil

fuels could not be burned, because if they were, atmospheric CO2 concentrations would rise to 830 ppm—a catastrophic level. And, although this was obvious, API members were told that use rates would affect how fast climate

change happened, and how severe it might be.

365. Specifically, Defendants were told that if the

“use of fuel continues to expand at about the 5% rate experienced more recently” then CO2 concentrations would

be “30% higher than in 1950 by the year 2000” and that “a

25% increase in CO2 concentrations [was] realistic.”

366. Similarly, in 1980, API’s climate task force recognized “the probability of large [climate] effects 50 years

away,” but that the “immediate problem [would be] considerably eased” “[i]f fossil fuel rates are reduced.” This

they understood implicated “the 50-year future of fossil

fuel use” and the “roles” that “different categories of fossil or synthetic fuel play in future projections.”

367. The 1980 report made an additional and important point about the need for immediate action: because replacing fossil fuels with energy sources that did

not emit such high amounts of GHGs would take time,

“there [was] no leeway” in the “time for action.”

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368. Throughout the 1980s, Exxon (including top

company managers) continued to recognize and be told

that “[m]itigation of the ‘greenhouse effect’ would require

major reductions in fossil fuel combustion.”

369. Additionally, Exxon knew that waiting to act

would exacerbate the problem—and indeed that, by the

time the effects were felt, it would be too late. In 1980,

Exxon scientist Henry Shaw shared his edits to a national

working group paper with the company, which noted that

“there [would be] no likely technological ‘fixes’ (e.g., emission control devices or techniques) that will provide practical means of controlling CO2 emissions resulting from

combustion,” and if “policy actions to control the increased CO2 loading of the atmosphere are delayed until

climate changes resulting from such an increase are discernible, then it is likely that they will occur too late to be

effective.”

Additional research did not contradict Defendants’

early understanding about the causes and consequences

of climate change, in spite of the uncertainty they professed publicly.

370. While Defendants have often—at least for the

last 25 years or so—publicly claimed that the causes and

consequences of human-caused climate change are uncertain, they never abandoned or doubted what research had

uncovered and the significant impacts that have been

identified by their own experts throughout the 1960s,

1970s and 1980s.

371. An internal industry memo from 1995—drafted

by a former Mobil employee and shared with API—said

clearly that “[t]he scientific basis for the Greenhouse Effect and the potential impact of human emissions of greenhouse gases such as CO2 on climate is well established and

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cannot be denied.” Moreover, Defendants internally recognized that “contrarian theories” for global warming—

which they peddled to the public—were not considered

credible and did “not offer convincing arguments against

the conventional model of greenhouse gas emissions-induced climate change.”

372. Defendants’ own business operations also took

into account the very climate hazards that they told the

rest of the world not to worry about. In 1996, while building offshore exploration facilities in Canada, Mobil Oil

“made structural allowances for rising temperatures and

sea levels.” The engineering consultant hired for the project admitted he “used the engineering standards of the

day to incorporate potential impacts of Global warming on

sea-level rise.”

373. Defendants also used climate change as a means

of planning future fossil fuel development. Exxon and its

affiliates, for example, saw disappearing sea ice in the

Arctic as a boon for oil production because it would substantially reduce the costs of development.

374. Between 1986 and 1992, Exxon’s research team

was looking “at both the positive and negative effects that

a warming Arctic would have on oil operations.” Those

findings showed that warming would “only help lower exploration and development costs” in Arctic waters. The

basis for those findings was the same global climate

change models that Exxon publicly claimed were unreliable.

375. Defendants knew that the existence and likely

consequences of anthropogenic climate change were certain enough for Defendants to plan their business operations around them.

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2. Defendants contributed to, accelerated, and

exacerbated climate change by promoting

and selling huge amounts of fossil fuels.

376. In spite of their knowledge, Suncor and Exxon

produced, promoted, refined, marketed and sold massive

and increasing amounts of fossil fuels. In addition, despite

recognizing the severity and imminence of climate

change, Defendants developed and sold fossil fuels that

contribute even more significantly to climate change than

fuels refined from traditional crude oil. Through this

course of intentional conduct, Defendants caused billions

of tons of excess CO2 emissions and contributed to the

dangerous and inexorable rise in atmospheric CO2.

377. While Defendants likely knew about the consequences of their fossil fuel activities even before the 1960s,

the vast majority of CO2 emissions have taken place since

the 1960s, after they unquestionably knew about the dangers. Indeed, nearly 75 percent of all industrial emissions

were released since the 1960s, with more than half since

the late 1980s, causing atmospheric CO2 to rise. Moreover,

the growth rate of CO2 emissions and CO2 concentrations

in the atmosphere is still rising. While CO2 concentration

rose by 1 ppm per year between 1965 and 1975, it is now

increasing by more than 2 ppm per year.

378. Defendants’ actions that have caused and contributed to climate change and Plaintiffs’ injuries were

taken with full knowledge of, or reckless indifference to,

their effects.

379. Even now, Exxon and Suncor are continuing

their efforts and increasing their fossil fuel activities.

Both of their business plans—while playing lip service to

the reality of climate change—include providing more fossil fuels through the middle of the century, including from

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more carbon-intensive sources. Far from bringing emissions under control, and helping to mitigate the impacts

of climate change, this conduct will ensure and exacerbate

the severity of impacts.

Since the 1960s, Exxon has knowingly provided a substantial portion of the fossil fuels causing and aggravating climate change, and it plans to continue doing so—

causing continuing harm to Plaintiffs.

380. Since the 1960s, Exxon has sold trillions of cubic

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

tons of coal and petroleum coke.

381. On information and belief, Exxon’s share of the

fossil fuel market has been substantially the same or has

increased over time, which means that it has sold greater

absolute amounts of fossil fuels over time as overall consumption has increased.25

382. Exxon intended its consumers to burn these fossil fuels in massive and increasing amounts, which it knew

would, and in fact did, result in the release of billions of

tons of CO2 and other GHGs into the atmosphere. The

emissions traceable to Exxon’s products contributed to

the overall rise in atmospheric CO2, were a substantial factor in bringing about and aggravating the resulting climate change impacts and will continue to contribute to

warming and climate change impacts for the foreseeable

future.

383. Exxon is one of the largest sources of GHG emissions both globally and historically.

25

For example, in 2016, Exxon’s petroleum product sales were

around 5.5 million barrels of oil equivalent per day.

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384. Moreover, and despite its knowledge of the grave

threats fossil fuels pose to the climate as far back as the

1950s, Exxon increased the development of dirtier fuels

that contributed even more substantially to the concentration of atmospheric CO2. Since the 1970s, Exxon has

planned to develop and has been developing the Canadian

tar sands. Cana

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