Commercial Speech

Judge Limits Scope of Sweeping Climate Change Lawsuit Against Oil Companies

Fayette Power Project, a coal power plant near La Grange Texas, outside of Austin, in the winter of 2019.
Fayette Power Project, a coal power plant near La Grange, Texas, in the winter of 2019. Photo by Sam LaRussa via Unsplash

By The Associated Press

DOVER, Del. (AP) — A judge has rejected several claims lodged by Delaware’s attorney general in a lawsuit alleging that the fossil fuel industry has downplayed the risks of climate change. Tuesday’s ruling significantly narrows the scope of the suit seeking to hold the industry liable for the effects of air pollution in the state.

Democratic Attorney General Kathleen Jennings filed the lawsuit in 2020, joining forces with a California law firm that has sued the oil industry on behalf of other state and local governments.

While refusing to dismiss come claims, Superior Court Judge Mary Johnston ruled, for example, that the federal Clean Air Act preempts the state’s claims seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution.

However, Johnston noted that the Clean Air Act doesn’t preempt alleged claims and damages resulting from air pollution originating from sources within Delaware.

“Air pollution prevention and control at the source is the primary responsibility of state and local governments,” she wrote.

Theodore Boutrous Jr., an attorney representing Chevron Corp., said he was pleased that Johnston recognized that claims regarding out-of-state or global greenhouse emissions and interstate pollution are preempted by the Clean Air Act.

“The global challenge of climate change requires a coordinated international policy response, not a series of baseless state and local lawsuits,” Boutros said in a prepared statement.

The judge also said the state could pursue a general claim for environmental-based public nuisance and trespass for land that the state owns directly, but not for land the state holds “in public trust.”

That ruling cited a Delaware Supreme Court ruling last year in a lawsuit filed by Jennings against agricultural giant Monsanto over environmental damage from now-banned toxic chemicals known as PCBs.

“Unlike contamination of land and water in Monsanto, damages caused by air pollution limited to state-owned property may be difficult to isolate and measure,” the judge wrote. “Nevertheless, that is an issue to be addressed at a later stage of the case.”

Johnston also ruled that claims of “greenwashing” and misrepresentations by the defendants about fossil fuels’ effects on the climate must be dismissed, because the state failed to specifically identify alleged misrepresentations for each individual defendant. In dismissing the claims, the judge said she would give attorneys for the state a chance to amend the complaint to include particular allegations.

Johnston also ruled that claims made by Jennings’ office under the Delaware Consumer Fraud Act are barred by the passage of time because the five-year statute of limitations has expired.

“Defendants have provided evidence showing that the general public had knowledge of or had access to information about the disputes, regarding the existence of climate change and effects, decades prior to the expiration of the five-year limitations period,” Johnston wrote. “This information and evidence is unrefuted by the state.”

Johnston deferred a ruling regarding the American Petroleum Institute’s argument that statements it has made relating to fossil fuels are protected by the First Amendment.

The state argues that API used deceptive campaigns to mislead the general public about hazards of fossil fuel consumption, and that the trade group’s statements constitute commercial speech that is not protected by the First Amendment.

API contends that because it does not produce or sell any fossil fuel, its purpose was to comment on matters of public significance.

“The issue of commercial speech, as opposed to misleading statements, involves a fact-intensive analysis,” Johnston wrote. “It is inappropriate for resolution on this motion to dismiss.”

Ryan Meyers, API senior vice president and general counsel, said the organization was encouraged that the judge identified “significant deficiencies in the state’s stale and baseless allegations.”

“This ongoing, coordinated campaign to wage politicized lawsuits against a foundational American industry and its workers is nothing more than a distraction from important national conversations and an enormous waste of taxpayer resources,” Meyers said in a prepared statement. “Climate policy is for Congress to debate and decide, not a patchwork of courts.”

Mat Marshall, a spokesperson for Jennings, said her office was reviewing the ruling and analyzing next steps.

“We’re grateful that the court denied several Big Oil defendants’ efforts to evade accountability,” he said.