Environmental progressives encountered a Pennsylvania-sized setback this week after the Democrat candidate for attorney general said he wouldn’t support unilateral legal action against oil and gas companies.
“That is not a direction I am looking to go,” said Eugene DePasquale during a PA Chamber of Business and Industry candidate forum.
Anti-fossil-fuel activists have been filing lawsuits in state and local governments hoping to use nuisance ordinances and other local laws to punish global energy companies over global warming. The argument is that selling oil or natural gas in Belgium, Bangledesh or Belize results in damage in Bucks County, Pa.
And indeed, eight months ago, Bucks County commissioners authorized a lawsuit against the world’s largest oil producers over climate change.
“We’re already seeing the human and financial tolls of climate change beginning to mount, and if the oil companies’ own data is to be believed, the trend will continue,” Democrat Commission Chair Diane Ellis-Marseglia said at the time.
She portrayed the suit as a way to fund public works projects like retrofitting county-owned buildings to withstand powerful storms. “All of which will put us in the best possible position to weather what is certain to come,” asserted Ellis-Marseglia.
The lawsuit encountered issues almost immediately.
Barely a week after Bucks County announced the plan, Republican Commissioner Gene DiGirolamo said he was backing out. DiGirolamo gave no reason for the change of heart.
Oil companies fought back.
Court documents filed over the summer accused Bucks County commissioners of failing to advertise and vote at a public meeting on the suit. The county was also accused of attempting an end-around previous federal court rulings by filing suit in Pennsylvania court.
“[Bucks County] seeks to impose liability based on the theory that [oil companies] caused – through alleged deception and failure to warn consumers – emissions to enter the worldwide atmosphere at a level that [commissioners believe] to be injurious,” wrote Frederick Santarelli, the attorney for Chevron Corporation.
He added federal and state courts have said “state law cannot be used to obtain relief” for climate change. That included Delaware and Maryland courts that dismissed suits because they went beyond state law.
Chevron and other energy corporations have said the suits aren’t legal because they seek to redress grievances made by interstate and worldwide greenhouse gas emissions. They argue Bucks County wants to use Pennsylvania law against alleged violations in China and Africa – locations that are hundreds of thousands of miles away from the Keystone State. That can’t happen because federal jurisdiction trumps the states, specifically the Clean Air Act.
“[Bucks County wants the court] to impose liability and damages on a selected group of energy companies under Pennsylvania law because of their – and many others’ – global production, promotion, and distribution of those lawful products,” wrote Santarelli.
At the same time, Santarelli suggested the Bucks County government ignored the benefits of oil and gas. He pointed to the use of oil and gas in not only powering homes, but also vehicles so people can go to and from work. That’s not allowed by Pennsylvania or federal law.
Pennsylvania law may not allow so-called nuisance suits, where companies are targeted for the actions of third parties. The Commonwealth Court ruled in 2007 that the ‘nuisance’ term covers “the unreasonable use by one person” of personal or real property. Santarelli argued there’s a clear boundary between nuisance and product liability that “must be respected” to avoid a flood of liability suits.
Energy advocates argue Bucks County’s suit ignored the fact American carbon emissions have plummeted since 2005 largely due to the pivot to natural gas to fuel power plants. Carbon emissions are down 15 percent, according to the Center for Climate and Energy Solutions.
Kurt Knaus with the Pennsylvania Alliance for Energy told DVJournal there’s no evidence the lawsuits will do anything but line the pockets of out-of-state attorneys.
“Pennsylvanians want energy development that is safe and responsible, while preserving jobs and keeping prices affordable. The more our leaders embrace these facts and smart policy, the better off Pennsylvania residents and businesses will be,” he said.
Now, Democratic attorney general candidate DePasquale describes these anti-fossil-fuel efforts as a policy initiative, indicating it should be left to the Governor’s Office, the General Assembly, or Congress to decide.
More significantly, DePasquale endorsed an all-of-the-above strategy combining renewable and traditional energy sources to power the grid and fight climate change. “Simply punishing companies [for oil and gas] isn’t going to get us there,” he said.
