WILMINGTON, Del. (Legal Newsline) - Delaware has presented enough evidence to proceed with its lawsuit accusing BP, ExxonMobil and several other oil companies of misleading consumers about the dangers of global warming, although it can’t sue over damages stemming from out-of-state emissions, a state court judge ruled.
Superior Court Judge Mary M. Johnston also dismissed claims based on Delaware’s consumer-protection law, saying the facts oil companies supposedly hid were widely known well before the five-year statute of limitations expired. And the judge limited damages to state-owned land, not the state as a whole.
Delaware, like many other government plaintiffs, is represented by private lawyers at Sher Edling working under contingency-fee contracts that could potentially reward them with billions of dollars in fees. Those lawyers devised a strategy of suing under state consumer protection laws in order to keep their cases in more advantageous state courts after federal appeals courts in New York and California halted similar litigation. Delaware succeeded in having its case remanded to state court in 2022.
In her ruling, Judge Johnston noted difficulties for Delaware ahead in trying to prove that misrepresentations by the oil companies caused damage to property the state owns, given the global spread and impact of greenhouse gases.
She refused to dismiss claims against the American Petroleum Institute, which argued its statements about greenhouse gas policy were protected by the First Amendment, saying it was too soon in the litigation to decide whether those statements were misinformation or unactionable “puffery.”
“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 Chevron attorney Ted Boutrous of Gibson Dunn & Crutcher.
“The global challenge of climate change requires a coordinated international policy response, not a series of baseless state and local lawsuits.”
In its lawsuit, Delaware accuses the oil companies of “influencing the tenor of the climate change debate,” “maintaining strong working relationships between government regulators” and organizations “carrying defendants’ message,” and pushing for long-term solutions to climate change instead of immediate regulations on carbon emissions.
The state says those alleged deceptions caused consumers – presumably including the state itself, which operates thousands of vehicles and owns buildings heated with fossil fuels – to consume more oil and gasoline products than they otherwise would, increasing global warming and damage to state property.
The oil companies’ “deceit only recently became discoverable,” Delaware claims, although the basic theories behind carbon-driven global warming have been known for more than a century and were the subject of news coverage and repeated Congressional hearings since at least the 1960s.