DOYLESTOWN, Pa. - A Pennsylvania County "violated the spirit" of state transparency laws when suing 14 energy companies over climate change, a judge has written while becoming the sixth to toss such a case at an early stage.
Judge Stephen Corr of the Bucks County Court of Common Pleas on May 16 granted the preliminary objections of companies like Exxon and Chevron, who have been sued by dozens of city, county and state officials who hired private lawyers hoping for a blockbuster payday.
Cases in Hawaii and Boulder, Colo., have been permitted to proceed past the companies' initial arguments, but judges in New York, Maryland, New Jersey and Delaware have dismissed the cases as improper attempts to have them impact federally controlled emissions standards.
"Today we join a growing chorus of state and federal courts across the United States, singing from the same hymnal, in concluding that the claims raised by Bucks County are not judiciable by any court in Pennsylvania," Corr wrote
The cases allege consumers would not have burned as many fossil fuels as they did had companies been more forthright about their effects. Lawyers crafted them to keep them out of federal courts, where defendants would have been afforded even stronger arguments against.
To keep them in state courts, they made claims under consumer protection and public nuisance laws. Baltimore judge Videtta Brown called that "a way to get in the back door what they cannot get in the front door."
Corr agreed, noting Bucks County's complaint uses the word "emissions" more than 100 times, while "deceptive" and "deception" were used 39 times combined.
"While not conclusive, the disparity informs the Court that the focus of the complaint is more on emissions than on deception," he wrote.
"The reason Bucks County avoids the issue of emissions is obvious, there is no question that emissions are the sole province of the federal government through the (Clean Air Act) and (Environmental Protection Agency) regulations that flow from it."
The Bucks County case differed from others in that the defendants raised the issue of how it was brought. One county commissioner renounced the case, as the entire commission was accused of skipping the step of approving litigation in a public meeting.
In January 2024, the commission published an agenda for a public meeting that included the issue of hiring DiCello Levitt on a 25% contingency fee to "evaluate and litigation potential environmental claims on behalf of the county."
No documents regarding this item were attached for the public. Commissioners voted 3-0 at the meeting to approve all items on the agenda in a single motion, and there was no discussion of the climate case, which was filed two months later.
The commission violated the Sunshine Act by failing to approve the filing of the lawsuit, defendants argued. Corr noted the matter was on the agenda for a public meeting, so the commission did not commit a direct violation of the Sunshine Act.
"However... we are concerned about the manner in which the Commissioners went about hiring counsel and filing this lawsuit," he added. "We believe the conduct of the Commissioners violated the spirit of the Sunshine Act."
The use of a "consent agenda" chilled public discourse, he said. The climate case was "buried among 17 other items, some with multiple sub-items."
"The cryptic summary of the 'Purpose' of the Agenda item... provides the public with such little information that the average citizen attending the meeting would be hard-pressed to formulate an intelligent question to ask," Corr wrote.
"Indeed, at the meeting... no member of the public commented on any item within the 'Consent Agenda.' In fact, not one of the three commissioners, nor the county solicitor, mentioned the item at the meeting, and there was no indication that they intended to file a lawsuit within the next few weeks."
After a press conference hailed the case as "historic" and "momentous," three members of the public spoke out against it, and Commissioner Gene DiGirolamo withdrew his support for it.
Ultimately, though, the commission did not commit a direct violation of the Sunshine Act and the defendants' argument that it did was brought too late, Corr ruled. Ted Boutrous, a lawyer at Gibson, Dunn and Crutcher, said Corr "got it right" in writing the commission violated the spirit of Pennsylvania's open government law.
Corr's ruling came the same week the Colorado Supreme Court allowed Boulder's case to proceed, though a dissenting justice wrote "Boulder is not its own republic."
At issue is whether state court judges should have the power to essentially impact the international energy market. Twenty Republican state attorneys general argued to the U.S. Supreme Court that Honolulu's case involves questions of interstate and international law that can only be decided by Congress or in federal courts.
But other AGs disagree, and when President Donald Trump realized Michigan's and Hawaii's were planning to join the list of plaintiffs, he issued an executive order forbidding it.
Then he went to federal court looking for injunctions to stop them.
"Congress delegated to EPA the authority to determine whether and how to regulate greenhouse gas emissions, thereby displacing federal common law claims and occupying the field of interstate air pollution regulation," the suits say.
A group of 14 attorneys general has filed a lawsuit of their own against the executive order in Seattle federal court.
“This is just the latest in a long line of examples of President Trump illegally using his executive orders and administration to cater to his Big Oil campaign donors at the expense of our Great Lakes, our environment, and the people of Michigan," Michigan AG Dana Nessel said.