Environmentalists can sue Suncor for its Commerce City pollution if they can prove it, US Appeals Court rules

Citizens can sue Suncor for its Commerce City pollution if they can prove Colorado is not tough enough on the refinery, the 10th U.S. Circuit Court of Appeals ruled Monday, overturning a U.S. district judge who said environmental groups didn’t have standing to interfere. 

The reversal means an environmental coalition’s suit over repeated and ongoing violations can go to trial, despite Suncor’s objections that the state has already enforced settlements and consent decrees with the refinery. 

“For decades Suncor has delivered extraordinary levels of toxic pollution to North Denver and been fined pennies,” said Margaret Kran-Annexstein, director of Colorado Sierra Club, in a release accompanying news of the reversal. “The court of appeals recognized the right of community members to challenge violations to federal air regulations. When decision makers fail to enforce the law, we must be able to fight back.”

Earthjustice, Colorado GreenLatinos, Sierra Club and others argued in March at  the 10th U.S. Circuit Court of Appeals that the district court should not have dismissed their 2024 suit, because Colorado is ignoring severe contamination in low-income neighborhoods and highly profitable Suncor considers any fines “the cost of doing business.”

The U.S. District Court in Denver had previously dismissed the environmental groups’ case, agreeing with Suncor that Colorado has been enforcing pollution laws all along and that citizen groups had no right to jump in. The groups then appealed, asking the appellate court to reinstate the lawsuit. 

Citizens should be allowed to act because years of consent decrees followed by continuing Suncor violations show Colorado is not meeting the bar of doggedly prosecuting pollution, Earthjustice attorneys told the appeals court panel of three judges during oral arguments. 

State actions — multimillion-dollar fines against Suncor’s billions in profits — have amounted to “useless slaps on the wrist,” the environmental coalition has said in arguing the suit. 

Suncor attorneys responded during the appeals court arguments that “this court should defer to the discretion of the agencies and how they’re tackling this problem.” 

“You have to look at what the agency has done to enforce the consent decree,” said Suncor’s private attorney, Hugh Gottschalk. “There are five or six years of agency actions referring back to consent decrees, and that is the due diligence.”

The trial court should now look more carefully at what the state has actually done against Suncor, and weigh whether the citizen groups are calling for something different, the appeals court ruling said. 

“The district court appeared to lump together and weigh equally all the administrative actions taken by EPA and Colorado, even the ones that imposed no consequences on Suncor and took their existence alone to be sufficient evidence of diligence. But that casual approach is not the proper inquiry,” the appellate judges ruled. 

“This decision is deeply personal,” said Ean Tafoya, vice president of state programs with GreenLatinos. “My family lives in North Denver, and like so many of our neighbors and GreenLatinos members, we’ve lived with the impacts of industrial pollution for decades. Today’s ruling is an important step toward ensuring our communities have the opportunity to hold polluters accountable when the government fails to hold them accountable themselves.”

Suncor officials did not immediately respond to a request for comment on the appellate court ruling.