PROVIDENCE, R.I. (Legal Newsline) - Rhode Island’s sloppily drafted complaint in a climate lawsuit against several major oil companies falsely claims they drilled for oil and refined it in the state, Chevron said in a filing seeking to throw out the suit as frivolous.
Private attorneys at Sher Edling used identical language in numerous climate suits including those filed by Delaware, Honolulu and Charleston, S.C., in each case stating “a substantial portion of Chevron’s fossil fuel products” have been “extracted,” “refined,” and “manufactured” in the suing jurisdictions.
Sher Edling has recruited states and municipalities nationwide as clients for climate suits on a contingency-fee basis, under which it stands to collect billions in fees if the cases are settled or won in court. But so far, five state court judges have tossed the claims on motions to dismiss.
Chevron will argue at a hearing in Rhode Island Superior Court next week that the state’s complaint is fatally flawed since the oil company doesn’t produce or refine products there.
“Any Rhode Island resident would know that the State’s assertion that the Chevron Defendants or anyone extracted, refined, or manufactured a substantial portion of their fossil fuel products in Rhode Island is incorrect,” Chevron said in a brief seeking to dismiss the state’s case failing to investigate the claims in it. “The State’s own website confirms the falsity of these alleged jurisdictional contacts.”
Chevron is deliberately misreading the complaint, responded Sher Edling. The challenged phrase goes on to say the company’s products were “traded, distributed, marketed, promoted, manufactured, sold, and/or consumed in Rhode Island.”
“There is no question—and Chevron does not dispute—that Chevron’s fossil fuel products have been transported, traded, distributed, marketed, promoted, and sold in Rhode Island,” Sher Edling said.
Rhode Island filed its lawsuit seeking damages from the oil industry for climate change, despite a 2008 Rhode Island Supreme Court decision throwing out a similar public nuisance lawsuit against lead paint manufacturers. Defendants then accused Judge William Carnes of bias, citing news articles stating that “Small countries in other parts of world…presented that oil companies have benefitted billions in corporate profits at the expense of their climate-related disasters that have caused severe destruction.” The judge rejected their complaints.
In the latest confrontation, Chevron challenges Rhode Island’s allegations about energy activities in the state in some of the claims in the lawsuit and is seeking sanctions for filing a frivolous complaint. The insertion of “and/or” at the end of the sentence suggesting it drilled for oil and refined gasoline in Rhode Island doesn’t change the fact the complaint makes false statements in violation of Rule 11 prohibiting frivolous lawsuits, Chevron said.
“Crediting the Attorney General and Sher Edling’s position, the State could allege that an energy company caused the COVID-19 pandemic, engaged in election interference, and/or sold gasoline in the United States without violating Rule 11’s requirements,” Chevron said.
The oil company also criticized Sher Edling for submitting a declaration by Chase Whiting, a recent hire, explaining how the firm investigated the complaint back in 2018.
“Mr. Whiting did not sign or participate in drafting the complaint,” Chevron said. “He plainly did not conduct the required pre-filing inquiry.”
Rhode Island Attorney General Peter Neronha is supposed to maintain “primary control” over his state’s lawsuit but “that did not happen here,” Chevron said, with no lawyers from the AG’s office submitting affidavits about how the complaint was drafted.
Sher Edling said Chevron should have complained about the wording when the complaint was filed in 2018 and called it a “frivolous motion” after fruitless negotiations with the state’s lawyers over whether to accept jurisdiction.
Sher Edling has used nearly identical language in its other lawsuits, each accusing oil companies of knowing the global-warming effects of burning fossil fuels but failing to warn consumers. After losing pivotal cases in federal court, the law firm switched its strategy to making state-law claims and judges in Hawaii have allowed those cases to proceed, despite the fact the effects of greenhouse gases have been widely known and discussed in government and the public sphere for more than a century.
The litigation started with a battle over where the cases should be heard. Defendants wanted them in federal court to bolster their defense, and that strategy resulted in federal judges in California and New York granting motions to dismiss. The Second Circuit affirmed the New York dismissal.
But the Supreme Court ultimately ruled the lawsuits belonged in various state courts because plaintiff lawyers had crafted their cases to make state law claims under consumer protection statutes and for public nuisance.
At issue is whether state court judges should have the power to essentially impact the international energy market. Twenty Republican state attorneys general argued the Hawaii case involves questions of interstate and international law that can only be decided by Congress or in federal courts. But the U.S. Supreme Court did not take up their cause.
Judge Videtta Brown, in Baltimore's case, said the litigation goes beyond the limits of Maryland law, or whatever states other cases are filed in. Most municipalities and states that have filed suit are near oceans, though Boulder, Colo., has also sued.
A colleague in Maryland, plus judges in New York, Delaware and New Jersey have also dismissed lawsuits there.