WILMINGTON, Del. (Legal Newsline) – A Delaware federal judge has stayed important climate change litigation in that state while federal appeals courts around the country try to figure out where these cases should be heard.
Plaintiffs – government officials like Delaware Attorney General Kathleen Jennings who have hired private lawyers on contingency fees – want the cases in state courts, while defendants like BP, Chevron and Exxon face a better chance of success in federal.
Federal district courts, though, have been inclined to remand the cases to state courts to address state law claims of public nuisance, even though the oil industry has argued the issues are so vast that the lawsuits must be heard in federal court.
Judge Leonard Stark remanded Jennings’ case on Jan. 5 but on Feb. 8 stayed execution of that order pending the defendants’ appeal to the U.S. Court of Appeals for the Third Circuit in Philadelphia.
“The interests of judicial economy and the conservation of public resources strongly favor a stay,” he wrote. “The public interest would be best served by avoiding the possibility of unnecessary or duplicative litigation and concentrating resources on litigating Plaintiff’s claims in the proper forum after the Third Circuit determines the jurisdictional issues presented in this case.”
Delaware is represented by Sher Edling, one of several private law firms that have refined their strategies to try to keep climate litigation in state court despite arguments by the oil companies they sue that say the claims necessarily involve federal questions of energy policy and foreign relations.
Stark agreed with the plaintiff lawyers, saying they had adequately avoided federal claims by suing over an alleged “disinformation campaign” that caused consumers to purchase and burn more fossil fuels than they otherwise would have done.
Oil companies won a partial victory at the U.S. Supreme Court last year when the high court ruled that appeals courts must consider all arguments for keeping climate lawsuits in federal court, not just the ones a lower court based its remand decision upon. But Judge Stark said that decision didn’t matter to him, since he rejected all of the defendants’ arguments, including that Delaware’s attempt to punish them for their marketing activities infringed their First Amendment free speech rights.
Delaware is suing under its own consumer protection statute and other state laws, the judge said, and seeks “neither to address cross-border pollution nor to regulate international fossil fuel production and sales.”
“Neither the Supreme Court nor the Third Circuit has held that a complaint expressly asserting state-law claims that happen to implicate federal common law can create an additional exception to the well-pleaded complaint rule,” he wrote.
Other cases the defense cited reflect earlier strategies, including pleading federal common law, or in the case of New York’s lawsuit that was thrown out by a federal appeals court last year, filed in federal court from the beginning.
The oil companies said the lawsuit was “inviting a Delaware state court to assert control over an entire industry and its interstate (indeed, international) commercial activities.”
The judge rejected that argument, saying “federal jurisdiction is not created by predictions about extra-judicial realities that may (or may not) result from a state court resolving a claim that raises solely matters of state law.”