Texas, 16 other states join energy companies in fighting Delaware climate change lawsuit

Texas, 16 other states join energy companies in fighting Delaware climate change lawsuit

Image: Regardless of whether or not climate change emanates from an anthropogenic cause, is a Delaware state court the right place to determine United States climate change policy?

The Golden Hammer Staff Reports

Austin (Texas) and Wilmington (Delaware), March 24 – The State of Texas and sixteen other states have joined with thirty-one (31) energy companies who are defending an attempt by the State of Delaware to determine American climate change policy in a Delaware state court. Texas Attorney General Ken Paxton filed the brief on behalf of the State of Texas in the lawsuit, which Delaware filed on September 8, 2020, against the energy companies claiming that they misrepresented fossil fuels to the American public and should fall within the jurisdiction of the courts of Delaware to determine how they may slow or prevent global climate change.

The energy companies include BP America, ExxonMobil, Chevron, and other major energy companies.

The energy companies removed the lawsuit to a United States District Court, because the case involves issues affecting interstate and foreign commerce, but the federal court declined to accept jurisdiction and tried to send the case back to the Delaware state court. The energy companies appealed to the United States Court of Appeals for the Third Circuit.

Paxton explained that Texas has “joined a multistate amicus brief in the United States Third Circuit Court of Appeals, in support of the defendant energy companies in Delaware v. BP America, Inc. Delaware’s common law public-nuisance claim, which alleges that energy companies knowingly promoted the use of fossil fuels that cause global warming, is in reality a disguised effort to regulate interstate pollution, which the Constitution reserves to federal common law, not state law.”

Paxton said, “The brief argues that the defendant energy companies should be permitted to remove the case to federal court and to have the claim decided under federal common law. To do otherwise would undermine federalism and democracy by ceding to Delaware courts the power to set climate-change policy for the entire country. In the context of current global challenges, moreover, it is of paramount importance that we preserve and promote U.S. energy production rather than cause our country to rely further on foreign imports.”

The Brief filed in the Court of Appeals yesterday argues,

“Delaware seeks judicial resolution of one of the most complicated and contentious issues confronting policymakers today—global climate change. Delaware demands abatement of injuries caused by global climate change, which Delaware alleges adversely affects the climate in the State by accelerating sea level rises, increasing extreme weather events, adding to ocean acidification, and elevating average air temperature…Yet this case takes aim at just a handful of companies who purportedly launched a decades-long disinformation campaign to mislead the public and consumers about climate change—in particular its likely impact and its nexus with fossil fuels…

“Delaware’s factual theory is that (1) Defendants’ misrepresentation of their fossil fuel products (2) caused increased consumption of fossil fuels around the world, which (3) led to deleterious environmental effects in Delaware. Its legal theories sound in 1) negligent failure to warn; 2) trespass; 3) violations of the Delaware Consumer Fraud Act; and 4) public nuisance…Crucially, federal law squarely vests defendants with a right to have Delaware’s expansive public-nuisance claim heard by a federal court. For more than 230 years, federal law has, in certain circumstances, ‘grant[ed] defendants a right to a federal forum…’ [Federal law]…entitles a defendant to remove a case filed in state court if the state-court ‘action could have been brought originally in federal court’—such as when the case ‘raises claims arising under federal law’ under the federal-question statute…Here the defendant energy producers were entitled to remove the case because Delaware’s common-law public-nuisance claim necessarily arises under federal law. The Supreme Court has long held that federal common law must govern common-law claims concerning interstate pollution…and Delaware’s Complaint makes unequivocally clear that, at its core, this action pertains not merely to interstate air pollution but to international air pollution and the corresponding ‘catastrophic’ ‘climate change impacts.’ …Although Delaware argues that this lawsuit does not ‘seek to limit the extraction of fossil fuels or otherwise regulate greenhouse gas emissions,” …its prayer for relief with respect to the public-nuisance claim plainly ‘seeks an order that . . . enjoins Fossil Fuel Defendants from creating future common-law nuisance.’ Thus, Delaware effectively asks courts to fashion rules of decision assigning liability for global climate change—an incredibly complex, value-laden question that affects every State and every citizen in the country.

“Accordingly, the claim necessarily arises under federal common law, and the State cannot evade federal-court jurisdiction by merely affixing a state-law label to what is in substance a federal-law claim. The district court’s contrary conclusion not only contravenes binding precedent, but also threatens to give Delaware state courts freewheeling power to set climate-change policy for the entire country. Such a result excludes other States from the climate-change policymaking process and threatens to undermine the cooperative federalism model our country has long used to address environmental problems.”

When she originally filed the lawsuit, Delaware Attorney General Kathy Jennings said at a press briefing the companies engaged in a decades long coordinated campaign to mislead the public out of greed.

The complaint filed by Jennings says the companies have known for more than 50 years that pollution caused by their products would adversely impact the Earth’s climate and sea level. It seeks compensation for current and future damages and penalties of $10,000 for each instance in which the defendants violated the Delaware Consumer Fraud Act since the mid-20th century.

“This is not about stopping climate change,” Jennings said. “This is about Delaware surviving it.”





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