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Delaware Judge Deals Blow to Activists’ Strategy Using State Courts to Advance Climate Policy

A Delaware judge has thrown a wrench into climate change advocates’ use of state courts to advance their agenda.

In 2020, Delaware Attorney General Kathy Jennings took the climate activist fight against oil companies to state court, claiming “Exxon, Chevron, and other mega-corporations” were hiding the truth about global warming. Turning to state courts was part of a strategy among plaintiffs’ attorneys and progressive groups that, they hoped, would result in expensive judgments against the fossil fuel industry.

“Delaware joins a growing wave of communities that rightly seek to hold the fossil fuel industry accountable for lying about the climate change disasters they knew their products would cause,” Richard Wiles, executive director of the green group Center for Climate Integrity, said at the time.

Jennings wanted companies like Chevron and ExxonMobil – 31 companies in total – held liable for the impacts of climate change on the state of Delaware. She also accused them of “greenwashing” — misleading the public about the hazards of fossil fuel use.

But on January 9, Delaware Superior Court Judge Mary Miller Johnston dealt that strategy a major setback.

Johnston’s ruling held that the Clean Air Act preempts – and therefore the court dismissed – Delaware’s core allegations for public nuisance, trespass, and failure to warn since it sought damages for activity resulting from out-of-state or global greenhouse gas emissions. Delaware can only proceed with claims proving alleged injuries were the cause of emissions from sources within the state. Prevailing with that claim simply isn’t possible in this case, the judge found since in-state Delaware emissions cannot have a material effect on the global nature of climate change.

Judge Johnston rejected Jennings’ argument that energy company press releases and public relations were an actionable attempt allegedly to trick people about climate change. “Claims alleging misrepresentations, including ‘greenwashing,’ must be dismissed, with leave to amend with particularity,” Johnston wrote. The ruling was because Delaware “failed to specifically identify alleged misrepresentations for each individual defendant.”

Among the other fundamental flaws, Johnston found, was that the Delaware Consumer Fraud Act does not apply to Delaware’s claims. “Defendants have provided evidence showing that the general public had knowledge of or had access to information about the disputes, regarding climate change and effects” for “decades,” which “information and evidence [was] unrefuted by the State,” Johnston ruled.

“We are pleased with the Delaware Superior Court’s decision holding that the ‘claims in this case seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution, are pre-empted by the’ Clean Air Act and ‘beyond the limits of Delaware common law,’” said Theodore J. Boutrous Jr., of Gibson, Dunn and Crutcher, counsel for Chevron. “The global challenge of climate change requires a coordinated international policy response, not a series of baseless state and local lawsuits,” Boutrous added.

The lack of specificity also hurt the “greenwashing” charge, said Donald Kochan, Professor of Law and Executive Director of the Law & Economics Center (LEC) at the Antonin Scalia Law School at George Mason University.

“The judge’s ruling preserves the integrity of the pleadings rule that one must plead with particularity. You can’t go to court and say, ‘An entire industry did X, and now we want you to hold these individuals liable.’”

Kochan told DVJournal that even if that issue could somehow be overcome, it doesn’t address the biggest obstacle to the Delaware case — the fact that federal law and regulation preempts local actions. A Delaware court can’t do Congress’s job.

“The most significant part of this ruling is the judge’s recognition that when Congress speaks, the states must listen,” Kochan said. “And states need to realize that when the federal government has acted — in this case, the existence of a comprehensive air quality regime including the Clean Air Act — the states can’t create their own rules because they’re frustrated that Congress didn’t do more.”

Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project, said Johnston made the right call.

“The Delaware state court clearly recognized that regulating out-of-state and global greenhouse gas emissions is ‘beyond the limits’ of Delaware law. This ruling underscores the fact that determining how best to address climate change and its impacts should be addressed by Congress and federal agencies, not by a patchwork of state judges,” Goldberg said in a statement.

What this ruling does not do, both sides agree, is end this legal strategy targeting international energy companies in state courthouses. Delaware was just one of a growing list of cities, counties, and states using lawsuits against the fossil fuel industry.

Delaware was the 22nd municipality or state to file a lawsuit against Big Oil since 2017. The city of San Juan, Puerto Rico, and the state of California recently filed similar lawsuits.

While the court’s ruling was somewhat mixed, Kochan and other legal experts say it left states like Delaware facing a steep legal challenge if they want to move forward. Using state law to address a global issue was always problematic, and now Johnston’s ruling has narrowed that path even more.

Delaware Department of Justice (DOJ) Communications Director Mat Marshall said the state was grateful that the court denied the oil company’s attempts to have the entire case thrown out.

“We’re reviewing Judge Johnston’s opinion and analyzing next steps and are undeterred in our pursuit of justice for Delawareans enduring the cost of climate change.”

POINT: Reaping the Whirlwind

For another point of view see: COUNTERPOINT: Wind Turbine Project Endangers Wildlife

This past weekend, my wife and I went down to Margate, New Jersey, for a friend’s birthday party.  Driving on the Atlantic City Expressway, we passed a huge billboard that screamed: STOP OFFSHORE WIND.  Below that, in somewhat smaller letters, it said: Never Experience the Jersey Shore the Same Way Again.  Pictured was an array of wind turbines stretching from one edge of the billboard to the other.

Together we marveled at the mentality that wants to preserve the scenic beauty of the seashore until the planet turns into a cosmic cinder and there’s no scenic beauty anywhere on the planet, or anyone to see it.

As we neared the coast and drove through a town called Northfield, we saw a campaign sign on someone’s lawn touting Republican Congressman Jeff Van Drew’s opposition to offshore wind farms in New Jersey.  It seemed odd to see a campaign sign in August 2023 with the next election—a party primary—the better part of a year away in the spring of 2024.

Then this morning I called up the Washington Post on my computer, and there was a lead article proclaiming: “The beach town that could decide the future of wind power on the East Coast.”  That community is Ocean City, New Jersey, often called “America’s Greatest Family Resort.”

It turns out that a Danish company has received federal permission to build a wind farm 15 miles off the Jersey coast, but an organization called Protect Our Coast, billing itself as “grassroots,” is fighting the project, hoping to throw up so many legal delays that the Danish company, Orsted, will finally decide it’s just too expensive to continue and kill the project.

This is what happened to a wind farm proposed off the Massachusetts coast after billionaire beachfront owners like the Kennedy Family and William Koch plowed millions of dollars into opposing the project.

New Jersey’s Protect Our Coast may well include a lot of locals, but also has the backing of the Caesar Rodney Institute that regularly opposes offshore wind projects and has ties to both fossil fuel interests and “dark money,” donors to which don’t have to be identified.

Admittedly, oceanfront communities like Ocean City depend almost exclusively on summer tourism to survive economically.  But the wind turbines are going to be built 15 miles offshore.  To an average person standing at sea level, the visible horizon is about 3 miles away.  Years ago, I worked on an oil tanker.  Our radar, mounted at the top of the mast of this massive ship, reached out to a radius of 12 miles.  Turbines 15 miles offshore might be visible because they’re pretty tall, but they’re not going to spoil the view.

Other arguments for opposing this project include claims that the turbines will kill whales.  Birds I kind of get; they fly around and maybe get whacked by a turbine blade.  But whales?  Seriously?  Opponents also claim that the project will ruin fishing and clamming, but it’s not like these turbines are going to take up a lot of space, leaving too little for the fish and clams.

Meanwhile, I wonder how the whales and fish and clams are going to hold up as the ocean temperature continues to rise.  Earlier this summer, the ocean temperature off Florida reached over 100 degrees Fahrenheit.  Oh, well, that’s Florida, right?  We’re a thousand miles farther north.  Our whales and fish and clams will be just fine, won’t they?

But the ocean isn’t just warming.  It’s also rising.  Very recently, there has been dire evidence of rising sea levels in the Gulf of Mexico that are threating New Orleans and the Gulf Coast with disasters much greater than Hurricane Katrina.  In Italy, Venice is flooded almost constantly now.  The ice caps are shrinking at both poles, and glaciers all over the world are receding at unprecedented rates.  Where do you imagine all that newly released water is going?

And as alarming as that is, sea levels in New Jersey are rising at a rate more than double the global average.  I wonder how the seashore tourist economy is going to do when storms that rip up the Jersey Shore like Hurricane Sandy did in 2012 start happening every other year.  I wonder how business will be at the boardwalk pizza shops and miniature golf courses and amusement parks when the boardwalk is washed away so many times that no one is willing to rebuild it, and insurance companies will no longer insure seafront properties, and the seashore is a mile or two inland from where it is now.

But that’s just Chicken Little hysteria, surely. So let’s not build any more offshore wind farms.  Not in New Jersey.  Not in Massachusetts.  Not in North Carolina or any other coastal region in the United States of America.  Let’s not support solar power.  Let’s not develop thermal.  Let’s not be willing to pay the cost of avoiding global disaster.  Let’s not risk jeopardizing the economy.  Let’s just keep burning fossil fuels and enjoying our thriving economy and our beautiful beach vistas and our fishing and our clamming until life on Planet Earth ceases to be viable.

Global warming, after all, is just a liberal hoax, isn’t it?  Fake news.  Thousand-year floods and five hundred-year forest fires twice a year are just the normal fluctuations of the planet.  Perfectly natural.  Like the Ice Ages.  Nothing to worry about.  Rich folks like the Kennedys and the Kochs can, after all, buy their way out of anything.  Maybe they’re all expecting to go to Mars with Elon Musk.

There is one small bright spot in all of this doom-and-gloom.  Forty-eight years ago, I was pulled over by cop in Maple Shade, New Jersey, who told me to get out of the state and not come back.  Seriously.  Ever since then, I’ve wanted to live long enough to witness New Jersey disappear beneath the waves of the Atlantic Ocean, but I never dreamed I’d actually get to see it happen.

Now I’m not so sure.

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Senate Environment Committee Okays ‘Carbon Sequestration’ Measure

Pennsylvania may soon begin capturing and sequestering carbon underground with the passage of a measure that one Republican senator calls a “pragmatic solution” to address climate change concerns without interfering with economic activity.

Senate Bill 831 seeks to “provide [e] for the injection of carbon dioxide into an underground reservoir for the purpose of carbon sequestration,” a novel approach to mitigating carbon emissions. It has gained traction among climate advocates in recent years.

The Senate Environmental Resources and Energy Committee approved the bill on Wednesday.

Peter Psarras, a research assistant professor at the University of Pennsylvania’s Department of Chemical and Biomolecular Engineering, told DVJournal the practice involves “storage of CO2 in a non-atmospheric system, and usually for meaningful time periods.

“There is a bit of back-and-forth over what constitutes meaningful in this sense,” Psarras said, “but we’re mostly concerned with ensuring that the CO2 does not revert back to the atmosphere any time soon.”

He said the maximum ideal storage time is more than 1,000 years.

State Sen. Gene Yaw, the bill’s prime sponsor, told DVJournal the bill “is a proactive step to secure Pennsylvania’s future as a hub for carbon capture and sequestration.”

“It’s a pragmatic solution to a problem that we all want to solve – reducing our carbon emissions without crippling the reliability of our existing power grid,” Yaw said. “Pennsylvania is uniquely qualified to develop a vast [carbon capture] network, thanks to our robust energy industry and extensive geological formations.”

“We should act now to establish a solid regulatory framework that will attract investment, development, and economic opportunity for decades to come.”

In carbon sequestration, CO2 is captured during industrial processes such as energy generation and heavy fabrication outfits. The gas is then compressed and stored in underground rock formations. In some cases, CO2 can also be used to produce materials such as graphene, which can be used in smartphone screens.

Carnegie Mellon Thomas Lord University Professor of Chemistry Neil Donahue said large-scale carbon sequestration is likely feasible–if it’s done right.

“Most oil and gas formations already have a lot of CO2 in them, which typically just vents from the wells,” he explained. “For the most part, those formations do not leak unless we poke a hole in them.”

Donahue said the formations “have held the gas and oil (and CO2) for millions of years. So shoving new CO2 into them probably would work.”

Hannah Wiseman, a Wilson Faculty Fellow in the College of Earth and Mineral Sciences at Penn State said studies have shown carbon sequestration is an “essential” component to mitigating the worst theoretical effects of climate change.

“Many criticize carbon sequestration as allowing continued production of fossil fuels while capturing the carbon,” Wiseman said.

“But the technique of direct air capture simply removes carbon from the atmosphere—a critical enterprise given that even if we were to reduce [greenhouse gas] emissions tomorrow, there would be massive quantities of GHGs still in the atmosphere and being released from the oceans, continuing to contribute to climate change.”

Yaw’s bill said carbon capture “will benefit [Pennsylvania] and the global environment by reducing greenhouse gas emissions and will help to ensure the viability of the energy and power industries of [the state].”

The state Department of Conservation & Natural Resources said it “has been engaged on the topic of carbon capture utilization and storage for nearly 20 years.”

The state “has geologic resources in the western and northern portions of the state that could be used for beneficial use or permanent storage of CO2,” the DCNR claims.