When Bucks County filed a lawsuit in March attempting to blame international energy companies for the alleged impacts of climate change on local communities, it was pursuing a controversial legal strategy that is likely to be challenged before the U.S. Supreme Court.
But now lawyers for these energy companies are asking the Common Pleas Court to throw out the Democrat-backed effort for failing to meet local standards, such as compliance with the Sunshine Act.
Across the nation, at least eight states and more than two dozen local governments– all governed by Democrats– have filed similar lawsuits. (In Bucks County, Republican minority Commissioner Gene DiGirolamo originally backed the lawsuit, but later reversed his position and no longer supports it.)
In the most prominent case, the City of Honolulu is suing many of the same large energy firms, including Exxon and Chevron, on a similar basis. The Supreme Court has indicated it is interested in taking up the issue.
But lawyers for those energy companies aren’t waiting to find out. They claim that in Bucks County, commissioners needed to advertise and vote at a public meeting on suing the oil companies “as mandated by the second-class county code.” Because they failed to do so, the attorneys argue, the case should be dismissed “with prejudice,” meaning the county could not file it again.
“The authority to enact such resolutions or ordinances is held only by a majority vote of a quorum of the commissioners at a properly noticed meeting compliant with the open meeting requirements of the County Code [and the Sunshine Act],” the brief said.
The brief, filed Aug. 5, also cited other reasons Judge Robert J. Mellon should dismiss the case, including the fact that the federal Clean Air Act would preempt the county’s authority.
The county filed its action in Common Pleas Court, not federal court, an action taken by other local jurisdictions. Critics claim it’s a strategy to avoid federal rulings that would have a national impact on the lawsuits and instead force the energy companies to spend time and money fighting in state and local courts.
“Addressing climate change requires a coordinated international policy response, not meritless local litigation over lawful and essential energy production,” said Theodore J. Boutrous, Jr. of Gibson, Dunn and Crutcher, counsel for Chevron Corporation. “This lawsuit is baseless, just like the identical claims dismissed by the Second Circuit in New York City and state court judges in Delaware and Maryland.”
“A Baltimore city judge recently held that ‘global pollution-based complaints were never intended by Congress to be handled by individual states.’ In addition, there is no record of Bucks County’s lawsuit being publicly approved, and consequently, the case cannot move forward,” he added.
Also, the brief notes the county is “seeking damages under Pennsylvania law for increased emissions resulting from alleged failures to warn in, say, Texas, China, and Zimbabwe, even if there was no duty to warn in those jurisdictions. This, [Bucks County] cannot do. The global causal mechanism on which plaintiff’s claims depend triggers the exclusive and preemptive effect of federal law.”
In its lawsuit against BP, Chevron, Conoco Phillips, Exxon Mobil, Shell, and the American Petroleum Institute, Bucks County claims the companies knew their product was causing climate change and failed to warn the public. Bucks County argues those companies should be held liable for the local impacts of warmer temperatures.
Previously, a Delaware judge dismissed most portions of a similar lawsuit, finding that in-state Delaware emissions cannot have a material effect on the global nature of climate change.
Similarly, the oil companies’ brief argues that “every federal court to consider this question has held that state law cannot be used to obtain relief for the alleged consequences of global climate change.”
Also, “fossil fuels support the safety, health, security, and wellbeing of our nation–and that of billions of people worldwide. The plaintiff is asking the court to ignore the central importance of fossil fuels in the world economy and, instead, to impose liability and damages on a select group of energy companies under Pennsylvania law because of their [and] many other’s global production, promotion, and distribution of those lawful products and their end-use emissions. Neither federal nor Pennsylvania law support such a suit,” the brief said.
James T. O’Malley, a spokesman for Bucks County, said county officials would not comment since “this is pending litigation.”
A Jan. 9 hearing is scheduled.
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