Did Bucks County Democrats try to sneak their nuisance lawsuit targeting major oil companies past county voters?
That’s the allegation made, not by the lawyers, but by Bucks County Judge Stephen A. Corr during a hearing on the case Monday.
Across the country, Democrat-run states and cities have been filing complaints in local courts targeting global energy companies, claiming they violating local ordinances when selling gasoline or marketing their products. The Bucks County lawsuit was filed with great fanfare in March 2024. Commissioners Diane Ellis-Marseglia and Bob Harvie, who make up the Democrat majority, held a press conference, along with Republican Gene DiGirolamo, touting their legal action.
The lawsuit accuses major oil companies like BP, Chevron, Conoco Phillips, Exxon Mobil, Shell — along with the American Petroleum Institute — of violating the county’s nuisance laws, as well as failing to warn Bucks County consumers of the dangers of climate change. The county is pursuing a massive payout,
“This suit is our tool to recoup costs and fund public works projects like bolstering or replacing bridges, retrofitting county-owned buildings and commencing stormwater management projects, all of which will put us in the best possible position to weather what is certain to come,” Ellis-Marseglia said.
Frederick P. Santarelli, a lawyer for Chevron, asked Corr to dismiss the suit, saying the Bucks County commissioners had violated the state Sunshine Act by the method they used to approve their decision to file it. He said that instead of letting the public know their intentions to file a lawsuit against big oil companies, they buried an item authorizing unspecified “environmental litigation” in a consent agenda in January 2024, hiding it from voters.
That sleight-of-hand was “undemocratic,” Santarelli said.
Corr asked Santarelli about the 30-day rule to file a lawsuit under the Sunshine Act. Santarelli said since the case was not filed until March, they had no notice within 30 days that they were defendants.
“It’s absolutely absurd,” he said. He noted that Harvie had exchanged emails with the Center for Climate Integrity, a nonprofit promoting the national litigation effort, before the suit was filed.
Corr also noted DiGirolamo withdrew his support for the lawsuit soon after it was filed.
Bucks Deputy Solicitor Jaclyn Grieser argued the county had followed the Sunshine Act requirements.
“You’ve got to be kidding me,” Corr responded. “Why don’t you want the public to see what you’re doing?”
Corr said he used to be on a school board and knows how the Sunshine Act should be employed. With the county commissioners approving the lawsuit by an obscure item in a consent agenda, “How can the public ask an intelligent question? You go out there and tout transparency…Why are you hiding this?”
“It’s a sneaky way of doing it,” Corr said, asking Grieser if there was any way a member of the public could have known in January what the commissioners were doing without filing a right-to-know request.
Rather than deny the allegation, Grieser attempted to argue that the commissioners did nothing wrong.
“It’s not required by law,” he said.
In rebuttal, Santarelli said county officials were doing “mental gymnastics” and “catch me if you can.”
Ted Boutrous, of Gibson, Dunn and Crutcher LLP, counsel for Chevron Corporation, told DVJournal after the hearing that the lawsuit should never have been filed.
“Virtually identical lawsuits have been dismissed by multiple federal and state courts across the country, including in Delaware, Maryland, New Jersey, New York, and California. The claims are based on interstate and international emissions and, therefore, are precluded and preempted by federal law under clear U.S. Supreme Court precedent.
“As the New Jersey Superior Court held in dismissing New Jersey’s similar lawsuit, ‘the leading and most persuasive case supporting dismissal is the Second Circuit decision in City of New York. There, the federal appeals court rejected the availability of state tort law in the climate change context.’”
In court, Boutrous pointed out that while the lawsuit is allegedly about product liability, the county itself knowingly uses the products — namely oil and gas. And, he added, if the climate change issue was well-known by 2019, why did county officials wait until 2024 to bring suit?
Boutrous also argued Common Pleas Court is the wrong venue since air and water are issues governed by federal courts.
“It’s bigger than this little old judge in Bucks County?” Corr joked.
Boutrous responded, “It’s not that.”
“It’s a jurisdictional issue,” Corr replied.
Boutrous said there are “a number of jurisdictional issues here. It doesn’t hang together, and courts have rejected it for that reason.”
Dan Flynn, a lawyer for the county, said the defendants misconstrued the county’s “straightforward” case.
Flynn said the oil companies knew for years that their product was harming the climate. Instead of letting people know so they could come up with alternatives, they engaged in a “disinformation campaign” and “totally manipulated the market.”
“The defendants knew they were losing the battle,” said Flynn. “Then they made it seem like they were part of the solution.”
He said Bucks County is not suing to stop climate change but for the funds needed to deal with increased floods and other adverse weather events it causes. “If you decide for the defendants, Bucks County is left footing the bill.”
Corr said there are 1,700 oil and gas companies and asked why they are the defendants. Flynn responded, “Because they knew.”
“In the 1980s, fossil fuel knew there was a fork in the road. We could have done something about it. It was the defendants that steered the market (with advertising),” he said.
“What about me?” asked Corr. “I drive a car that burns gas.”
“The court was not telling everybody to go burn gas,” said Flynn. “The defendants were.”
Corr said, “We’re talking about emissions from all over the world.”
And while many courts dismissed similar cases, Flynn said those in Honolulu, Boulder, Colo. and Minnesota have allowed cases against the oil companies to proceed.
Corr took the matter under advisement and will issue a written ruling.
