State court delivers major setback to Delaware in climate change lawsuit against Big Oil

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A top state court in Delaware partially dismissed a lawsuit the state's government filed against several of the world's largest fossil fuel companies over their greenhouse gas emissions and impact on global warming.

Judge Mary Johnston, of the Delaware Superior Court, ruled that the state's claims seeking damages from Big Oil defendants for alleged injuries stemming from out-of-state or global greenhouse gas emissions and interstate pollution are preempted by the federal Clean Air Act and are, therefore, beyond the limits of state statute. While other claims can be pursued, the ruling Tuesday significantly diminishes the case's weight.

"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,'" Theodore Boutrous, Jr., a lawyer for Chevron, one of the defendants, said in a statement to Fox News Digital.

"The global challenge of climate change requires a coordinated international policy response, not a series of baseless state and local lawsuits," he added.

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Stacks of steel pipes used for drilling oil wells are pictured at a drilling site in Andrews, Texas, on June 2, 2022. (Jordan Vonderhaar/Bloomberg via Getty Images)

In addition to the court's findings that out-of-state emissions were beyond its scope, it further dismissed the state's claims that oil industry defendants — which include Chevron, ExxonMobil, Shell, BP, ConocoPhillips, the American Petroleum Institute and dozens of other energy companies — have misrepresented the dangers of their fossil fuel products, including through tactics such as "greenwashing."

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Delaware argued in its original complaint that Big Oil has spearheaded a coordinated "campaign of disinformation and deception" regarding the impact oil and gas production has on climate change. The state further alleged that the companies have engaged in "greenwashing" by publicly touting their investments in renewable energy projects, like solar arrays and wind farms, while ramping up fossil fuel production.

"This Court finds that the State has failed to specifically identify alleged misrepresentations for each individual defendant," Johnston wrote in her decision Tuesday. "All claims alleging misrepresentations, including ‘greenwashing,’ must be dismissed."

Delaware Attorney General Kathy Jennings speaks during an interview on May 22, 2022. (DETV/YouTube)

And the ruling found that the state's claims that defendants violated the Delaware Consumer Fraud Act by misleading on the impacts of fossil fuel use were barred by the five-year statute of limitations, and additionally cast doubt on the ability for plaintiffs to isolate and measure alleged damages caused by air pollution limited to state-owned property.

Delaware's lawsuit dates back to September 2020 and is among several "climate deception" cases filed nationwide.

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"Delawareans are already paying for the malfeasance of the world’s biggest fossil fuel companies," Democratic Delaware Attorney General Kathy Jennings said at the time. "Exxon, Chevron, and other mega-corporations knew exactly what kind of sacrifices the world would make to support their profits, and they deceived the public for decades."

"Now we are staring down a crisis at our shores, and taxpayers are once again footing the bill for damage to our roads, our beaches, our environment, and our economy. We are seeking accountability from some of the world’s most powerful businesses to pay for the mess they’ve made," she added.

Vic Sher, a partner at law firm Sher Edling, speaks about the climate litigation he is involved in during a virtual panel in December 2021. Sher Edling represents Delaware and other states in climate cases. (American Museum of Tort Law/YouTube)

Delaware is being represented in court by California law firm Sher Edling which was founded in 2016 to specifically take on such novel cases. The firm has pursued similar litigation on behalf of Minnesota, Rhode Island, New Jersey, New York City, Washington, D.C., San Francisco, Baltimore, Honolulu and several local governments across the country. 

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The latest such "climate deception" lawsuit was filed by California in September. Though it is unclear whether Sher Edling is involved in the case, California's arguments largely mirror those made by the firm in its litigation.

Sher Edling didn't respond to a request for comment.