By Karen Savage
The fossil fuel companies being sued by Delaware for climate deception say the lawsuit belongs in federal court.
In a motion filed Monday in U.S. District court, Exxon, Chevron, BP, Shell, the American Petroleum Institute and several other companies said the suit, which was filed last month in state court, involves federal issues.
“Though plaintiff purports to assert its claims under state law, the face of the complaint reveals that the substance of those claims turns on long-established federal policy, statutory, regulatory, and constitutional standards, issues, and frameworks,” attorneys for Chevron, who represented all of the companies, wrote in the motion.
The removal of Delaware’s suit is the latest in an ongoing battle over whether nearly two dozen climate change-related cases filed against the companies by municipalities across the country belong in state court, where nearly all were filed, or federal court, where the companies think they have a better chance of shaking them. Thus far, multiple federal courts have determined that the cases belong in state court and those decisions have been upheld by several appellate courts.
The U.S. Supreme Court agreed earlier this month to review a technicality related to whether the Fourth Circuit court properly reviewed a lower court ruling that Baltimore’s case belongs in state court. The high court will not weigh in on the merits of the case, but the outcome could determine where this case, as well as all the others, will be heard.
Delaware Attorney General Kathy Jennings filed suit against Exxon, Chevron, BP, Shell, the American Petroleum Institute and several other fossil fuel companies in September, alleging the companies knew for decades that their products cause climate change, but deliberately deceived the public about that risk.
In the complaint, Jennings asserts several state law claims, including negligent failure to warn, trespass, and public nuisance.
In addition, Jennings charged some of the defendants—including the API, BP, Chevron, Exxon, Hess, Shell Citgo, Marathon, and CNX Resources— with multiple willful violations of Delaware’s Consumer Fraud Act (CFA). The AG alleges those defendants knew that fossil fuel products were causing harm, but concealed that information from consumers to protect their own profits.
In their motion, the companies pushed back on Jennings’ contention that they violated the CFA. They said those allegations, which are clearly rooted in state law, are a “baseless and strained attempt to evade the jurisdiction of federal courts.” The companies further argued that “no actions by the defendants could have possibly ‘concealed’ this information.”
“The reality is that the world has known for decades that the combustion of fossil fuels release greenhouse gases into the atmosphere, which may contribute to global warming and climate change. In fact, scientists have reported these effects since the nineteenth century,” the companies wrote, adding that state and federal governments are “well aware of the potential effects [the production of their products] may have on global climate change.”
The defendants did not address their membership in the Global Climate Coalition, which worked for decades to delay action on climate change and to cast doubt on established climate science. Nor did they mention the various other avenues, including government lobbying and advertising campaigns, designed to thwart climate action.
The results of those efforts remain evident, as demonstrated by the testimony of newly appointed Supreme Court Justice Amy Coney Barrett during her nomination hearings. Barrett—who acknowledged that smoking causes cancer and Covid-19 is infectious—repeatedly declined to acknowledge the scientific certainty of climate change. Instead, Barrett stated that she doesn’t think she is “competent to opine on what causes global warming.”
“I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge,” Barrett said.
Delaware will have a chance to respond to the companies’ motion and oral arguments will likely be heard later this year. If the case is returned to state court, the fossil fuel companies are expected to appeal to the Third Circuit, which will likely not rule until the Supreme Court has weighed in on Baltimore’s case.