DOYLESTOWN, Pa. (Legal Newsline) - Picturesque Bucks County, Pa., decided to do something about climate change itself earlier this year when it hired private lawyers on a contingency-fee basis to sue 14 of the world’s largest oil companies.
The county skipped the important step of approving the action in a public meeting, however, BP, Chevron and other defendant companies say in a motion to dismiss filed Aug. 5 in the county's court of common pleas. While it is normal for county commissioners to discuss litigation matters in closed special sessions, the companies say, Pennsylvania law requires them to approve any “official action” by majority vote in an open meeting.
“The County’s public records demonstrate that Bucks County lacked capacity to file this action because the Commissioners never deliberated or voted to file suit at an open public meeting,” the oil companies argue in their brief dated Aug. 5 filed with the Bucks County Court of Common Pleas.
Bucks County announced the lawsuit on March 25 but Commissioner Gene DiGirolamo quickly renounced it, saying at a commission meeting “I would like to withdraw my support for this lawsuit.”
Bucks County is represented by DiCello Levitt, which represents Michigan in its PFAS litigation. The firm also tried to build a business around representing communities suing to collect taxes on streaming video services, but most of those cases have been dismissed.
Bucks County Commissioner Bob Harvie, in a March 25 news release, boasted his was the first county in Pennsylvania to take on “Big Oil” with a climate lawsuit. The county also sued 3M, Du Pont and other PFAS manufacturers in 2022, hiring Baron & Budd, Cossich Sumich Parsiola & Taylo, and Dilworth Paxson on a contingency-fee basis.
Baron & Budd represents government entities across the country in opioid and other lawsuits. It earned a 33% fee for negotiating New Mexico’s opioid settlement, triple the national average for such litigation. The state Ethics Commission later said the fees should have been subject to a state law requiring contracts worth more than $60,000 to be issued under a sealed-bid, competitive process.
Bucks County commissioners voted on Jan. 17 to hire DiCello Levitt on a 25% contingency basis “to evaluate and litigate potential environmental claims.” The defendant companies say that notice in the meeting minutes wasn’t enough to comply with Pennsylvania’s Sunshine Act, which requires a public meeting to authorize the actual lawsuit.
When DiGirolamo withdrew his support for the lawsuit at an April 3 public meeting, the companies said, he didn’t refer back to the Jan. 17 action but to the county’s announcement it had filed suit on March 25. There was no public meeting in which the commissioners debated the lawsuit before it was filed, the companies say.
The oil companies also repeat the legal arguments they have made in similar lawsuits across the nation - that state law doesn’t govern interstate and global carbon emissions. The private lawyers driving this litigation believe they have crafted a way around this argument by claiming they are suing over an alleged campaign of deception that led consumers – including the very governments suing the industry – to burn more fossil fuels than they would have had they known the truth about global warming.
Public Citizen says seven states, 35 municipalities and the District of Columbia are crafting significant legislation or have filed suit.
Down I-95 from Bucks County to Baltimore, a state court judge there threw out climate change litigation on July 10. Judge Videtta Brown became the third trial court judge to reject plaintiffs' claims, though the first two were federal court judges whose rulings were disregarded when the U.S. Supreme Court decided these cases should be heard in state courts.
"The Constitution's federal structure does not allow the application of state law claims like those presented by Baltimore," Brown wrote. "Baltimore's complaint is entirely about addressing the injuries of global climate change and seeking damages from such alleged injuries.
"The explanation by Baltimore that it only seeks to address and hold Defendants accountable for a deceptive misinformation campaign is simply a way to get in the back door what they cannot get in the front door."
That's where plaintiffs want them, as they stand a better chance of success. Hawaii's state supreme court denied defendants' motion to dismiss there, leading the industry to ask the U.S. Supreme Court to take up the case.
A group of 20 state attorneys general have backed the energy industry's plea to the U.S. Supreme Court. They say the lawsuits involve questions of interstate and international law that can only be decided by Congress or federal courts.