PROVIDENCE, R.I. (Leal Newsline) - Chevron sold its last gas stations in Rhode Island in 1985 and doesn’t refine or store gasoline there, the oil company told the judge hearing the state’s climate lawsuit against it, raising the question of why it’s in the case at all.
Rhode Island also claims Chevron sold a “substantial portion” of its “total fossil fuel products” in the state. But by Chevron’s calculation, Rhode Island’s entire consumption of gasoline, from all companies, represents less than 1% of Chevron’s global gas sales.
“How do you get to a substantial portion, your honor?” Chevron attorney Gerald Petros asked Judge William Carnes at a Tuesday morning hearing. “Chevron has so few contacts in the state, it doesn’t belong in this case.”
The hearing was ostensibly over Chevron’s motion for sanctions against the state over claims it extracted and refined fossil fuels in Rhode Island, which it doesn’t do and calls evidence of a poorly researched lawsuit. But the real battle is over jurisdiction – whether the state has provided enough evidence to show Chevron targeted Rhode Island consumers with misleading statements that kept them uninformed about the risks of global warming.
“There's no question Chevron extracts fossil fuels,” Petros said. “But not here.”
Matt Edling, a private lawyer who represents the state Attorney General Peter Neronha's office on a contingency-fee basis, said “it takes some real chutzpah” for Chevron to complain about the wording of the climate suit more than six years after it was filed. He said Chevron’s own filings with the state say it engages in drilling, refining, transporting and selling fossil fuels, evidence enough to survive the company’s sanctions motion.
“Chevron, your honor, is quite literally wasting your time,” Edling said.
Judge Carnes said he’d rule soon on the sanctions motion. He went on to hear arguments about the scope of discovery into Chevron’s activities in the state, critical to keeping the company in the lawsuit.
Sher Edling’s theory, adopted by states and municipalities it represents across the country, is that Chevron and other oil companies researched the effects of burning hydrocarbons on the climate but hid the information from consumers. That led consumers to burn more fuel than they otherwise would have, heating the atmosphere and causing sea level rise and other adverse impacts on Rhode Island.
Judge Carnes allowed the case to proceed, despite a 2008 Rhode Island Supreme Court decision throwing out a similar public nuisance lawsuit against lead paint manufacturers. The claim Chevron misled consumers also is undermined by the widespread dissemination of scientific research, going back more than a century, about the effects of greenhouse gases on the climate.
Chevron argued it shouldn’t be required to defend itself against claims it misled gasoline consumers in Rhode Island since Sher Edling’s legal theory is the industry switched from researching climate change to actively misleading consumers around 1988. Chevron sold its gas stations in Rhode Island to Cumberland Farms in 1985.
The company also attacked the state’s demand for information about its natural gas sales, saying it sells to utilities and large industrial customers, neither of whom could be described as gullible consumers.
Judge Carnes ruled from the bench, limiting discovery into advertising to 1990 and later, although he said he would include national ads likely to have been seen by Rhode Island residents. He also commented on the complexity of the litigation, equal to the groundbreaking lead-paint case – also claiming failure to warn -- overseen by Judge Michael Silverstein in the late 1990s and early 2000s.
Judge Silverstein allowed that case to proceed to a jury verdict ordering a multibillion-dollar program to remove lead paint from buildings across the state. But the Rhode Island Supreme Court reversed in 2008, ruling public nuisance law didn’t allow for liability for selling a legal product. Judge Carnes said climate litigation my outlast his tenure on the bench.
“If the case survives, and that’s an if, maybe a jury has to make an ultimate determination,” the judge said. “It took Judge Silverstein 10 years just to get through the lead paint case. I don’t know if I have another 10 years.”
Chevron, in a statement, said “virtually identical lawsuits have been repeatedly dismissed by multiple federal and state courts across the country, including in Delaware, Maryland, New Jersey, New York and California.” Lawsuits over greenhouse gas emissions, regardless of whether they are drafted as consumer fraud complaints, are preempted by federal law, Chevron said.
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.
At issue is whether state court judges should have the power to essentially impact the international energy market. Twenty Republican state attorneys general argued Hawaii's 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, after the Hawaii Supreme Court had allowed the lawsuit to proceed past a motion to dismiss.