A Pennsylvania judge’s decision to toss Bucks County’s climate lawsuit against Big Oil may help unravel a national legal strategy backed by Democratic-led states and environmentalists.
Environmentalists have convinced eight states and more than two dozen cities and counties to use local laws to punish global energy producers. They’re charging companies like Chevron, Shell, BP, ConocoPhillips, and ExxonMobil with violations of local anti-nuisance ordinances and laws against misleading marketing.
The groups and Democratic-led governments hope for large settlements from Big Oil, much like the landmark settlement reached with Big Tobacco in the 1990s, which forced the industry to pay billions over misleading health claims.
But Court of Common Pleas Judge Stephen Corr ruled in May the county’s legal argument failed because it violated a basic tenet of American law, the supremacy clause. Under the U.S. Constitution, federal law takes precedence over state laws and constitutions when there is a conflict.
“We agree with the Defendants that Bucks County fails to state a claim upon which relief can be granted because Pennsylvania cannot apply its own laws to claims dealing with air in its ambient or interstate aspects, and, therefore, we are compelled to dismiss this lawsuit for lack of subject matter jurisdiction,” Corr wrote.
He added Bucks County’s argument was almost laughable because its attorneys admitted during arguments that “the advertising, production, transport, and sale of Defendants’ fossil fuel products in Bucks County did not cause any harm to the County.”
The county is appealing Corr’s ruling.
Weeks before Corr’s decision, President Donald Trump declared a national emergency in his “Protecting American Energy From State Overreach” executive order.
“States have sued energy companies for supposed ‘climate change’ harm under nuisance or other tort regimes that could result in crippling damages,” Trump wrote. “These State laws and policies weaken our national security and devastate Americans by driving up energy costs for families.”
Even before the executive order, those state and local governments had a mixed record at best, even in some of the nation’s most liberal legal venues. Cases have been dismissed in San Francisco, Oakland, New York, Delaware, Baltimore, Annapolis, Anne Arundel County in Maryland, New Jersey, and Bucks County in Pennsylvania.
Attorneys for the major energy companies mentioned both situations in legal briefs filed in South Carolina.
The city of Charleston sued Big Oil in 2020 under then-mayor John Tecklenburg, alleging energy companies misled the public about climate risks. By not warning residents of the link between fossil fuels and global warming, the lawsuit argues, the energy companies committed fraud against the flood-prone city.
Judge Roger Young Sr. referenced the president’s executive order during the hearing.
“I’m not saying [Trump’s] right or he’s wrong,” said Judge Roger Young Sr. “But this appears to be some evidence that it is, in fact, a national priority here.”
He also appeared to question whether Charleston even had a case, similar to Corr’s reasoning with Bucks County.
Young repeatedly asked Charleston’s attorney to explain how energy companies allegedly deceived customers. And when city attorneys decided to read from court documents, Young said, “I don’t see how that answers my question. You said they had false, misleading marketing.”
Attorneys representing the city suggested they had proof that energy companies had internal documents forecasting their products would cause weather changes.
Young didn’t seem to buy the explanation. “I get up (at) five or six o’clock in the morning and I watch the local news to see what’s the weather going to be today. Sometimes they’re right, sometimes they’re wrong. It’s the weather,” he said.
The judicial skepticism isn’t surprising – or new – when it comes to the climate change lawsuits. It’s also not what environmentalists were hoping for when the suits were filed.
While judges in Hawaii, Minnesota, and Washington, D.C., have held up the cases, other judges found federal law superseded state and local laws. More specifically, the Clean Air Act passed in 1963.
The U.S. Second Circuit Court of Appeals tossed New York City’s climate change lawsuit in 2021 because the case was “beyond the limits of state law.”
New Jersey Superior Court Judge Douglas Hurd ruled in February that federal law was the only way to govern the “interstate and international emissions claims” due to the Constitution.
The previous rulings were invoked by the energy companies’ attorneys in the Charleston case. They also cited the 2011 American Electric Power v. Connecticut Supreme Court decision, in which justices unanimously found that the Clean Air Act preempts state laws.
More importantly, to Chevron attorney Theodore Boutrous Jr. of Gibson, Dunn and Crutcher LLP, was the fact that the city of Charleston was on an island of its own.
“Bringing a claim like they’re bringing here requires the approval of the (South Carolina) Attorney General. The Attorney General thinks the case should be dismissed,” he told Young.
