HARRISBURG, Pa. (Legal Newsline) - The Democrat hoping to replace Michelle Henry as Pennsylvania Attorney General doesn't seem to be willing to push climate change lawsuits against the oil industry, like some local officials have.
The cases are controversial and represent an alliance between government officials and contingency-fee lawyers looking for a massive payout. States, counties and municipalities from Hawaii to Rhode Island have filed cases in state courts against companies like Exxon, Chevron and BP.
After a battle over where cases should be heard, they ended up in various state courts, and the U.S. Supreme Court has the chance to either let them move forward on a "public nuisance" theory or dismiss them, as defendants argue state court lawsuits aren't appropriate avenues to change nationwide emissions standards.
In Pennsylvania, Bucks County has filed a case of its own. And though some states have initiated litigation, Attorney General candidate Eugene DePasquale might not be willing to go that far.
He was interviewed recently before the Pennsylvania Chamber of Business & Industry and asked if he would support climate change litigation.
"Look, if I see any company, whether they be Pennsylvania energy or not, specifically polluting our water, polluting our air. You know that’s something that I will crack down on. But, I’m not just gonna… that is a policy initiative, that’s something for the Governor, the legislature, and obviously the Congress if they want to do something like that," he responded.
He spoke of a need for more nuclear energy and the threat of climate change, but added "Simply punishing companies isn't going to get us there."
DePasquale is a former lawmaker and auditor general facing Republican Dave Sunday in the general election. DePasquale has received about $1.6 million from the Democratic Attorneys General Association and another $100,000 from the Philadelphia Trial Lawyers Association.
Sunday is the district attorney of York County running on a tough-on-crime platform. Much of his campaign has been funded by Commonwealth Children's Choice Fund, an education group.
The issue of climate change lawsuits is not likely to sway many voters, with things like abortion and opioids more on their minds. But the lawsuits, which seek to force the oil industry to pay for infrastructure changes to combat the effects of climate change, could have far-reaching consequences the defendants claim need to be determined by policy, not litigation.
In the Bucks County case, defendants have noted one of the county's own commissioners has renounced the case. They also claim the county skipped the step of approving litigation in a public meeting.
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 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 & Taylor, 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 Gene 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.
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.