State of Delaware v. BP America Inc. ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ex rel. )
KATHLEEN JENNINGS, Attorney )
General of the State of Delaware, )
)
Plaintiff, )
)
v. ) C.A. No. N20C-09-097 MMJ CCLD
)
BP AMERICA INC., BP P.L.C., )
CHEVRON CORPORATION, )
CHEVRON U.S.A. INC., )
CONOCOPHILLIPS, )
CONOCOPHILLIPS COMPANY, )
PHILLIPS 66, PHILLIPS 66 COMPANY, )
EXXON MOBIL CORPORATION, )
EXXONMOBIL OIL CORPORATION, )
XTO ENERGY INC., HESS )
CORPORATION, MARATHON OIL )
CORPORATION, MARATHON OIL )
COMPANY, MARATHON )
PETROLEUM CORPORATION, )
MARATHON PETROLEUM )
COMPANY LP, SPEEDWAY LLC, )
MURPHY OIL CORPORATION, )
MURPHY USA INC., ROYAL DUTCH )
SHELL PLC, SHELL OIL COMPANY, )
CITGO PETROLEUM CORPORATION, )
TOTAL S.A., TOTAL SPECIALITIES )
USA INC., OCCIDENTAL )
PETROLEUM CORPORATION, )
DEVON ENERGY CORPORATION, )
APACHE CORPORATION, CNX )
RESOURCES CORPORATION, )
CONSOL ENERGY INC., OVINTIV, )
INC., and AMERICAN PETROLEUM )
INSTITUTE, )
)
Defendants. )
1
Submitted: December 7, 2023/January 4, 2024
Decided: January 9, 2024
OPINION
Christian Douglas Wright, Esq., Jameson A.L. Tweedie, Esq., Ralph K. Durstein
III, Esq., Sawyer M. Traver, Esq., Deputy Attorneys General, Wilmington, DE,
Victor M. Sher, Esq. (Argued), Matthew K. Edling, Esq. (Argued), Stephanie D.
Biehl, Esq. (Argued), Sher Edling LLP, San Francisco, CA, Attorneys for Plaintiff
State of Delaware
David E. Wilks, Esq., Wilks Law, LLC, Wilmington, DE, Theodore J. Boutrous,
Jr., Esq. (Argued), William E. Thomson, Esq., Gibson, Dunn & Crutcher LLP, Los
Angeles, CA, Andrea E. Neuman, Esq., Dunn & Crutcher LLP, New York, NY,
Thomas G. Hungar, Esq., Dunn & Crutcher LLP, Washington, DC, Joshua D.
Dick, Esq., Dunn & Crutcher LLP, San Francisco, CA, Attorneys for Defendants
Chevron Corporation and Chevron U.S.A. Inc.
Kenneth J. Nachbar, Esq., Alexandra M. Cumings, Esq., Morris Nichols Arsht &
Tunnell, Wilmington, DE, Nathan P. Eimer, Esq., Pamela R. Hanebutt, Esq., Lisa
S. Meyer, Esq., Eimer Stahl LLP, Chicago, IL, Robert E. Dunn, Esq. (Argued),
Eimer Stahl LLP, San Jose, CA, Attorneys for Defendants CITGO Petroleum
Corporation
Colleen D. Shields, Esq., Patrick M. Brannigan, Esq., Eckert Seamans Cherin &
Mellott, LLC, Wilmington, DE, Tristan L. Duncan, Esq., Daniel B. Rogers, Esq.,
William F. Northrip, Esq., Shook, Hady & Bacon L.L.P., Kansas City, MO,
Attorneys for Defendant Murphy USA Inc.
Kevin J. Mangan, Esq., Womble Bond Dickinson (US) LLP, Wilmington, DE,
Jeremiah J. Anderson, Esq. (Argued), McGuireWoods LLP, Houston, TX, Kathryn
M. Barber, Esq., McGuireWoods LLP, Richmond, VA, Attorneys for American
Petroleum Institute
Mackenzie M. Wrobel, Esq., Coleen W. Hill, Esq., Duane Morris LLP,
Wilmington, DE, Michael F. Healy, Esq., Shook Hardy & Bacon LLP, San
Francisco, CA, Michael L. Fox, Esq., Duane Morris LLP, San Francisco, CA,
Attorneys for Defendant OVINTIV INC.
2
Daniel J. Brown, Esq., Alexandra M. Joyce, Esq., McCarter & English LLP,
Wilmington, DE, Steven M. Bauer, Esq., Margaret A. Tough, Esq., Latham &
Watkins LLP, San Francisco, CA, Jameson R. Jones, Esq., Daniel R. Brody, Esq.,
Bartlit Beck LLP, Denver, CO, Attorneys for Defendants ConocoPhillips and
ConocoPhillips Company
Daniel J. Brown, Esq., Alexandra M. Joyce, Esq., McCarter & English LLP,
Wilmington, DE, Steven M. Bauer, Esq., Margaret A. Tough, Esq., Latham &
Watkins LLP, San Francisco, CA, Attorneys for Defendants Phillip 66 and Phillips
66 Company
Michael A. Barlow, Esq., Abrams & Bayliss LLP, Wilmington, DE, Robert P.
Reznick, Esq. (Argued), Orrick, Herrington & Sutcliffe LLP, Washington, DC,
James Stengel, Esq., Marc R. Shapiro, Esq., Orrick, Herrington & Sutcliffe LLP,
New York, NY, Catherine Y. Lui, Esq., Orrick, Herrington & Sutcliffe LLP, San
Francisco, CA, Attorneys for Defendant Marathon Oil Corporation
Robert W. Whetzel, Esq., Blake Rohrbacher, Esq., Alexandra M. Ewing, Esq.,
Richards, Layton & Finger, P.A., Wilmington, DE, Anna Rotman, Esq. (Argued),
Kirkland & Ellis LLP, Houston, TX, Attorneys for Defendant TotalEnergies, SE
Steven L. Caponi, Esq., Matthew B. Goeller, Esq., Megan E. O’Connor, Esq.,
K&L Gates LLP, Wilmington, DE, David C. Frederick, Esq., James M. Webster,
III, Esq., Daniel S. Severson, Esq., Kellogg, Hansen, Todd, Figel & Frederick,
P.L.L.C., Washington, D.C., Counsel for Shell plc (f/k/a Royal Dutch Shell plc)
and Shell USA, Inc. (f/k/a Shell Oil Company)
Catherine A. Gaul, Esq., Ashby & Geddes, Wilmington, DE, Nancy G. Milburn,
Esq., Diana E. Reiter, Esq. (Argued), Arnold & Porter Kaye Scholer LLP, New
York, NY, Jonathan W. Hughes, Esq., Arnold & Porter Kaye Scholer LLP, San
Francisco, CA, John D. Lombardo, Esq., Arnold & Porter Kaye Scholer LLP, Los
Angeles, CA, Attorneys for Defendants BP America Inc. and BP p.l.c.
Jeffrey L. Moyer, Esq., Christine D. Haynes, Esq., Richards, Layton & Finger,
P.A., Wilmington, DE, Kevin Orsini, Esq., Vanessa A. Lavely, Esq., Cravath,
Swaine & Moore LLP, New York, NY, Attorneys for Defendant Occidental
Petroleum Corporation
Antoinette D. Hubbard, Esq., Stephanie A. Fox, Esq., Maron Marvel Bradley
Anderson & Tardy LLC, Wilmington, DE, Shannon S. Broome, Esq., Ann Marie
Mortimer, Esq., Hunton Andrews Kurth LLP, San Francisco, CA, Shawn Patrick
Regan, Esq. (Argued), Hunton Andrews Kurth LLP, New York, NY, Attorneys for
3
Defendants Marathon Petroleum Corporation, Marathon Petroleum Company LP,
and Speedway LLC
Christian J. Singewald, Esq., White and Williams LLP, Wilmington, DE, Joy C.
Fuhr, Esq., Brian D. Schmalzbach, Esq., W. Cole Geddy, Esq., McGuireWoods
LLP, Richmond, VA, Attorneys for Defendant Devon Energy Corporation
Paul D. Brown, Esq., Chipman Brown Cicero & Cole, LLP, Wilmington, DE,
Tracy A. Roman, Esq. (Argued), Crowell & Moring LLP, Washington, DC, Honor
R. Costello, Esq., Crowell & Moring LLP, New York, NY, Attorneys for
Defendant CONSOL Energy Inc.
Beth Moskow Schnoll, Esq., Ballard Spahr LLP, Wilmington, DE, Noel J.
Francisco, Esq., David M. Morrell, Esq. (Argued), Jones Day, Washington, DC,
David C. Kiernan, Esq., Jones Day, San Francisco, CA, Attorneys or Defendant
CNX Resources Corp.
Daniel A. Mason, Esq., Matthew D. Stachel, Esq., Paul, Weiss, Rifkind, Wharton
& Garrison LLP, Wilmington, DE, Theodore V. Wells, Jr., Esq., Daniel J. Toal,
Esq., Yahonnes Cleary, Esq., Caitlin E. Grusauskas, Esq., Paul, Weiss, Rifkind,
Wharton & Garrison LLP, New York, NY, Attorneys for Defendants Exxon Mobil
Corporation, ExxonMobil Oil Corporation, and XTO Energy Inc.
Robert W. Whetzel, Esq., Richards Layton & Finger, P.A., Wilmington, DE,
Patrick W. Mizell, Esq., Matthew R. Stamme, Esq., Stephanie L. Noble, Esq.,
Brooke A. Noble, Esq. (Argued), Vinson & Elkins L.L.P., Houston, TX, Mortimer
H. Hartwell, Vinson & Elkins L.L.P., San Francisco, CA, Attorneys for Apache
Corporation
Joseph J. Bellew, Esq., Gordon Rees Scully Mansukhani, Wilmington, DE, J. Scott
Janoe, Esq. (Argued), Baker Botts L.L.P., Houston, TX, Megan Berge, Esq.,
Sterling Marchand, Esq., Baker Botts L.L.P., Washington, DC, Attorneys for
Defendant Hess Corporation and Defendant Murphy Oil Corporation
JOHNSTON, J.
PROCEDURAL AND FACTUAL CONTEXT
A. ALLEGATIONS IN THE COMPLAINT
4
The State of Delaware (“The State”) brought this action against major
corporate members of the fossil fuel industry (“Defendants”) for (1) negligent
failure to warn, (2) trespass, (3) common law nuisance, and (4) violations of the
Delaware Consumer Fraud Act.1
The State alleges that Defendants knew or should have known that the
unrestricted production and use of fossil fuel products creates greenhouse gas
pollution that causes damage to the planet, the State of Delaware, and its residents.2
The State asserts that Defendants concealed and misrepresented their products’
known dangers while promoting their use, which drove consumption leading to
creating more greenhouse gas pollution and causing the climate crisis.3
Defendants are extractors, producers, refiners, manufacturers, distributors,
promoters, marketers, and/or sellers of fossil fuel products.4 The State claims that
Defendants have deceived the public and consumers about the role of their
products.5 In support of its argument, the State claims that scientific research has
shown that pollution created by Defendants’ products played a direct and
substantial role in the rise in emissions of greenhouse gas pollution and increased
1
Compl. at ¶ 13.
2
Id. at ¶ 1.
3
Id. at ¶ 12.
4
Id at ¶ 4.
5
Id.
5
atmospheric CO2 concentrations, which has caused and will continue to cause
dangerous consequences.6
The State alleges that Defendants had a duty to warn their consumers and the
public of the consequences known for more than fifty years.7 Instead, Defendants
concealed the dangers, promoted false and misleading information, sought to
undermine public support for greenhouse gas regulation, and engaged in massive
campaigns to promote the use of their products at greater volumes.8 Additionally,
the State claims Defendants are responsible for causing and accelerating climate
change on Earth.9
The Complaint contains the following allegations. Defendants’ products are
emitting greenhouse gases, which are byproducts of humans combusting fossil
fuels to produce energy and using fossil fuels to create petrochemical products.10
Both the annual rate and total volume of CO2 emissions have increased enormously
following the major uses of oil, gas, and coal; thus, the recent acceleration of fossil
fuel emissions has led to an exponential increase in atmospheric concentration of
CO2.11 The effects of greenhouse gases accumulating in the Earth’s atmosphere
include, but are not limited to: (a) warming of the Earth’s average surface
6
Id.
7
Id. at ¶¶ 7–8.
8
Id. at ¶ 8.
9
Id. at ¶ 47.
10
Id. at ¶ 49.
11
Id. at ¶¶ 50, 52.
6
temperature; (b) sea level rise; (c) flooding and inundation of land and
infrastructure, increased erosion, higher wave run-up and tides, increased
frequency and severity of severity of storm surges, saltwater intrusion, and other
impacts of higher sea levels; (d) changes to the global climate, and generally
toward longer periods of drought interspersed with fewer and more severe periods
of precipitation, and associated impacts on the quality of water resources available
to both human and ecological systems; (e) ocean acidification; (f) increased
frequency and intensity of extreme weather events; (g) changes to terrestrial and
marine ecosystems, and consequent impacts on the range of flora and fauna; and
(h) adverse impacts on human health associated with extreme weather, extreme
heat, decreased air quality, and vector-borne illnesses.12 As such, Defendants’
conduct exacerbated the climate crisis and has impacted Delaware, its
communities, and its resources, and its effects will continue to increase in severity
in Delaware.13
Defendants went to great lengths to understand and either knew or should
have known about the dangers associated with the fossil fuel products.14 The fossil
fuel industry has known about the potential warming effects of greenhouse gas
emissions since the 1950s through scientific reports and statements that were made
publicly at organized events held by API from highly regarded people within the
12
Id. at ¶ 55.
13
Id. at ¶ 56.
14
Id. at ¶ 62.
7
field of climate change.15 In 1965, President Lyndon B. Johnson’s Science
Advisory Committee’s Environmental Pollution Panel reported that a 25% increase
in carbon dioxide concentrations could occur by the year 2000, causing significant
global warming, the melting of the Antarctic ice cap, and rapid sea level rise.16 The
Panel claimed fossil fuels were the clearest source of the pollution.17 In 1968, API
received a report from the Stanford Research Institute endorsing President
Johnson’s Scientific Advisory Council’s findings.18 The State alleges that
Defendants were members of API at the time, and by virtue of their membership
and participation in API, either received or should have received the Stanford
Research Institute reports and were on notice of those conclusions.19
In 1979, API and its members, including Defendants, created a Task Force,
which would soon be called the Climate and Energy Task Force, to monitor and
share cutting-edge climate research throughout the oil industry.20 The Task Force
discussed the requirements for a worldwide energy source changeover away from
fossil fuels. Many experts relayed to the Task Force that the buildup of carbon
dioxide in the Earth’s atmosphere is caused by the use of fossil fuels.21 In 1981,
Exxon’s Contract Research Office prepared and distributed a “Scoping Study on
15
Id. at ¶¶ 62–72.
16
Id. at ¶ 66.
17
Id.
18
Id. at ¶ 69.
19
Id. at ¶ 71.
20
Id. at ¶ 78.
21
Id. at ¶¶ 80–82.
8
CO2” to the leadership of Exxon Research and Engineering Company.22 The study
recommended that Exxon centralize its activities in monitoring and keeping the
company apprised of outside research developments dealing with climate modeling
and CO2-induced effects.23 The study discussed other options for reducing CO2
build-up in the atmosphere and noted that capturing CO2 from flue gases was
possible but costly.24
Research done at the time warned that a large carbon dioxide build-up in the
atmosphere could create catastrophic effects to land on coastal regions,
temperature, biological systems, agriculture, and human health.25 Despite the
information about the threats to people and the planet posed by continued unabated
use of their fossil fuel products, Defendants did not disclose the known harms
associated with the extraction, promotion, and consumption of their fossil fuel
products.26 Defendants failed to mitigate or avoid the adverse impacts caused by
their fossil fuel products.27 Instead, Defendants affirmatively acted to obscure those
harms and engaged in a campaign to deceptively protect and expand the use of
their fossil fuel products.28
22
Id. at ¶ 83.
23
Id.
24
Id.
25
Id. at ¶ 88.
26
Id. at ¶¶ 103–104.
27
Id. at ¶ 103.
28
Id. at ¶ 104.
9
The State identifies several key events during the years of 1988–1992 that
allegedly prompted Defendants to change their tactics from general research and
internal discussion on climate change to a public campaign aimed at deceiving
consumers and the public.
(a) In 1988, National Aeronautics and Space Administration (NASA)
scientists confirmed that human activities were actually contributing to
global warming. On June 23rd of that year, NASA scientist James
Hansen’s presentation of this information to Congress engendered
significant news coverage and publicity for the announcement, including
coverage on the front page of the New York Times.
(b) On July 28, 1988, Senator Robert Stafford and four bipartisan co-
sponsors introduced S. 2666, “The Global Environmental Protection
Act,” to regulate CO2 and other greenhouse gases. Four more bipartisan
bills to significantly reduce CO2 pollution were introduced over the
following ten weeks, and in August, U.S. Presidential candidate George
H.W. Bush pledged that his presidency would combat the greenhouse
effect with “the White House effect.” Political will in the United States to
reduce anthropogenic greenhouse gas emissions and mitigate the harms
associated with Defendants’ fossil fuel products was gaining momentum.
(c) In December 1988, the United Nations formed the Intergovernmental
Panel on Climate Change (IPCC), a scientific panel dedicated to
10
providing the world’s governments with an objective, scientific analysis
of climate change and its environmental, political, and economic impacts.
(d) In 1990, the IPCC published its First Assessment Report on
anthropogenic climate change, in which it concluded that (1) there is a
natural greenhouse effect which already keeps the Earth warmer than it
would otherwise be and (2) that emissions resulting from human
activities are substantially increasing the atmospheric concentrations of
the greenhouse gases carbon dioxide, methane, chlorofluorocarbons
(CFCs) and nitrous oxide. These increases will enhance the greenhouse
effect, resulting on average in an additional warming of the Earth’s
surface. The main greenhouse gas, water vapor, will increase in response
to global warming and further enhance it. The IPCC reconfirmed those
conclusions in a 1992 supplement to the First Assessment report.
(e) The United Nations began preparing for the 1992 Earth Summit in Rio de
Janeiro, Brazil, a major, newsworthy gathering of 172 world
governments, of which 116 sent their heads of state. The Summit resulted
in the United Nations Framework Convention on Climate Change
(UNFCCC), an international environmental treaty providing protocols for
future negotiations aimed at stabilizing greenhouse gas concentrations in
11
the atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system.29
In order to prevent their profits from plummeting, the State contends that
Defendants strategized and marketed with the goal of continued dependence on
their products, while undermining national and international efforts to control
greenhouse gas emissions.30
These strategies included:
a. Influencing the tenor of the climate change debate as a means to establish
that greenhouse gas reduction policies;
b. Maintaining strong working relationships between government regulators
and communications-oriented organizations carrying Defendants’
message minimizing the hazards of the unabated use of their fossil fuel
products and opposing regulation thereof;
c. Building the case for (and falsely dichotomizing) Defendants’ positive
contributions to a long-term approach (ostensibly for regulation of their
products) as a reason for society to reject short term fossil fuel emissions
regulations, and engaging in climate change science uncertainty research;
and
29
Id. at ¶ 106.
30
Id. at ¶ 108.
12
d. Presenting Defendants’ positions on climate change in domestic and
international forums.31
Defendants purportedly made misleading statements about climate change,
the relationship between climate change and their fossil fuel products, and the
urgency of the problem. These statements were in public forums through
advertisements in newspapers and other media with substantial circulation in
Delaware.32
In contrast to their public statements, Defendants’ internal actions
demonstrated their awareness of and intent to profit from the unabated use of fossil
fuel products.33 The State alleges that Defendants made multi-billion-dollar
infrastructure investments for their operations that acknowledge the reality of
coming anthropogenic climate-related change. These included raising offshore oil
platforms to protect against sea level rise; reinforcing offshore oil platforms to
withstand increased wave strength and storm severity; and developing and
patenting designs for equipment intended to extract crude oil and/or natural gas in
areas previously unreachable because of the presence of polar ice sheets.34
31
Id. at ¶ 125.
32
Id. at ¶ 126.
33
Id. at ¶ 142.
34
Id.
13
Defendants’ actions allegedly have exacerbated the costs of adapting to and
mitigating the adverse impacts of the climate crisis.35 Over the years greenhouse
gas pollution has been accumulating in the atmosphere and does not dissipate for
thousands of years.36 Greenhouse gas pollution will continue to increase in
magnitude and frequency causing an increase in magnitude and frequency of
physical, environmental, economic, and social injuries.37 Defendants have delayed
efforts to prevent any more greenhouse gas emissions which has increased
environmental harms and increased the magnitude and cost to address the harms
that have already occurred or are locked in by previous emissions.38 Defendants’
campaign obscured the science of climate change to protect and expand the use of
fossil fuels, and greatly increased and continues to increase the harm and rate of
harm suffered by Delaware and its residents.39
Even if Defendants did not adopt technological or energy source alternatives
that would have reduced use of fossil fuel products, reduced global greenhouse gas
pollution, and/or mitigated the harms associated with the use and consumption of
such products, Defendants could have taken other practical, cost-effective steps to
reduce the use of their fossil fuel products, reduced global greenhouse gas
35
Id. at ¶ 148.
36
Id.
37
Id.
38
Id. at ¶ 149.
39
Id. at ¶ 150.
14
pollution, and mitigate the harms associated with the use and consumption of their
fossil fuel products.40 Those alternative methods include:
a. Acknowledging and sharing the validity of scientific evidence on
anthropogenic climate change and the damages it will cause people,
communities, the State, and the environment. Acceptance of that
evidence along with associated warnings and actions would have altered
the debate from whether to combat climate change and sea level rise to
how to combat it, and avoided much of the public confusion that has
ensued over more than 30 years;
b. Forthrightly communicating with Defendants’ stockholders, banks,
insurers, consumers, the public regulators, and the State and warning
them about the global warming hazards of Defendants’ fossil fuel
products that were known to Defendants, which would have enabled
those groups to make material, informed decisions about whether and
how to address climate change and sea level rise vis-à-vis Defendants’
products;
c. Refraining from affirmative efforts, whether directly, through coalitions,
or through front groups, to distort public debate, and to cause many
40
Id. at ¶ 159.
15
consumers and business and political leaders to think the relevant science
was far less certain that it actually was;
d. Sharing their internal scientific research with consumers and the public,
and with other scientists and business leaders, so as to increase public
understanding of the scientific underpinnings of climate change and its
relation to Defendants’ fossil fuel products;
e. Supporting and encouraging policies to avoid dangerous climate change,
and demonstrating corporate leadership in addressing the challenges of
transitioning to a low-carbon economy;
f. Prioritizing alternative sources of energy through sustained investment
and research on renewable energy sources to replace dependence on
Defendants’ hazardous fossil fuel products; and
g. Adopting their stockholders’ concerns about Fossil Fuel Defendants’
need to protect their businesses from the inevitable consequences of
profiting from their fossil fuel products.41
The State asserts that Defendants continue to mislead the public about the
impact of fossil fuel products on climate change, through greenwashing campaigns
and other misleading advertisements in Delaware and elsewhere.42 Defendants
41
Id.
42
Id. at ¶ 161.
16
have falsely claimed through their advertising campaigns that their businesses are
substantially invested in lower carbon technologies and renewable energy
sources.43 In actuality, Defendants minimally invested in renewable energy while
continuing to expand fossil fuel production. Defendants claim that their fossil fuel
products are “green” or “clean” and that using these products will sufficiently
reduce or reverse the dangers of climate change.44 None of Defendants’ fossil fuel
products are “green” or “clean” because they all continue producing greenhouse
gas emissions into the atmosphere, warming the planet.45 Defendants continue to
fail to inform or warn their consumers about the foreseeable effects of their fossil
fuel products in causing and accelerating the climate crisis, purposefully omitting
this information to the present.46
Defendants misleadingly represent to their consumers that the use of certain
fossil fuel products actually helps reduce emissions and gain increased fuel
economy creating a “green” or “greener” benefit.47 Contrary to Defendants’
“green” claims, the development, production, refining, and consumer use of their
fossil fuel products increase greenhouse gas emissions to the detriment of public
health and consumer welfare.48 If consumers understood the full degree to which
43
Id.
44
Id.
45
Id.
46
Id. at ¶ 162–163.
47
Id. at ¶ 204.
48
Id.
17
Defendants’ products contributed to climate change and that Defendants had not
materially invested in alternative energy sources, consumers would not have
purchased Defendants’ products or would have purchased fewer products.49
Defendants’ omissions of the truth and misleading claims were part of their goal of
influencing consumer demand for their fossil fuel products.50
The State alleges that Defendants’ deceit only recently became discoverable,
and their misconduct is ongoing due to these reasons: (1) Defendants’ campaign of
deception; (2) Defendants’ efforts to discredit climate change science and create
the appearance such science is uncertain; (3) Defendants’ concealment and
misrepresentations regarding the fact that their products, including natural gas,
cause catastrophic harms; and (4) Defendants used front groups such as API, the
Global Climate Coalition, and the National Mining Association to obscure their
involvement in these actions.51
Consequently, the State argues that it has suffered, is suffering, and will
continue to suffer injuries from Defendants’ wrongful conduct.52 The State alleges
that Defendants’ individual and collective conduct of failing to warn of the threats
their fossil fuel products posed to the world’s climate; promoting their fossil fuel
products; concealing known hazards associated with the use of those products; and
49
Id. at ¶ 205.
50
Id. at ¶ 206.
51
Id. at ¶ 219.
52
Id. at ¶ 226.
18
designing campaigns to obscure the connection between their products and global
warming and its environmental, physical, social and economic consequences—are
all a direct and proximate cause that brought about or helped bring about global
warming; consequent sea level rise accompanied by flooding, erosion, and loss of
wetlands and beaches in Delaware; increased frequency and intensity of extreme
weather events in Delaware, including coastal storms, flooding, drought, extreme
heat, extreme precipitation events, and others; ocean warming and acidification;
and the cascading social, economic, and other consequences of these
environmental changes.53 The State alleges that these adverse impacts will
continue to increase in frequency and severity in Delaware.54 The State further
alleges that but for Defendants’ conduct, the State would have suffered no, or far
less, serious injuries and harms that it has endured. Such injuries foreseeably will
continue, due to the climate crisis and its physical, environmental, social, and
economic consequences.55
B. PROCEDURAL CONTEXT
This Superior Court case was filed on September 20, 2020. On October 23,
2020, Defendants removed the action to the United States District Court for the
District of Delaware. Defendants asserted numerous grounds for removal: “(1)
53
Id.
54
Id.
55
Id. at ¶ 232.
19
federal common law, (2) Grable jurisdiction, (3) complete preemption by the
Clean Air Act (“CAA”), (4) federal enclave jurisdiction, (5) the federal officer
removal statute, 28 U.S.C. § 1442, (6) jurisdiction under the Outer Continental
Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331, et seq., and (7) the Class Action
Fairness Act (“CAFA”), 28 U.S.C. § 1453.”56
The District Court held that “Defendants have failed to meet their burden to
show that this Court may exercise jurisdiction over this case.”57 The District Court
remanded the case to the Superior Court.58 The District Court reasoned: (i)
“Plaintiff’s claims are not completely preempted by federal common law.” The
Complaint “only asserts state-law causes of action”;59 (ii) “Defendants have failed
to demonstrate that a federal issue is ‘necessarily raised’ by Plaintiff’s claims”;
thus the District Court may not exercise Grable jurisdiction;60 (iii) Defendants
failed to show that their Outer Continental Shelf lessees are “performing a task that
the federal government would otherwise be required to undertake itself;”61 and (iv)
even if Defendants could satisfy the “operation” prong of the two-part test to
determine OCSLA jurisdiction, Defendants cannot satisfy the “but for” connection
between the cause of action and the OCS operation because Defendants did not
56
Delaware v. BP America Inc., 578 F. Supp. 3d 618, 626–627 (D. Del. 2022).
57
Id. at 627.
58
Id.59
Id. at 628.
60
Id. at 634.
61
Id. at 638.
20
argue that Plaintiff would not have been injured “but for” Defendants’ operation on
the OCS.62
On appeal, this case was consolidated with a similar action presiding in the
United States District Court for the District of New Jersey. The United States
Court of Appeals for the Third Circuit affirmed the District Court of Delaware’s
decision, stating that there are no federal claims to be heard and there is no
complete preemption.63
The United States Supreme Court denied Defendants’ petition for writ of
certiorari.64
Similar cases have been filed in many courts throughout the United States.
Other courts have addressed issues including lack of personal jurisdiction, failure
to state a claim, and anti-SLAPP laws.
In City of New York v. Chevron Corporation, the United States Court of
Appeals for the Second Circuit held that municipalities may not utilize state tort
law to hold multinational oil companies liable for the damages caused by global
greenhouse gas emissions.65 The Second Circuit also held that the City’s state-law
tort claims are displaced by federal common law, and the Clean Air Act (“CAA”)
62
Id. at 639–641.
63
City of Hoboken v. Chevron Corp., 45 F.4th 699, 713 (3d Cir. 2022).
64
Chevron Corp. v. City of Hoboken, New Jersey, 143 S. Ct. 2483 (2023).
65
993 F.3d 81, 85 (2d Cir. 2021).
21
displaces the City’s federal common law damages claims where domestic
emissions are involved.66 The Court reasoned that regulating activities outside the
State’s borders is beyond the limits of state law.67 The Court also found that,
“federal judges may [not] set limits on greenhouse gas emissions in [the] face of a
law empowering [the] EPA to [do] the same.”68 The CAA and authorized EPA
actions displace any federal common law right to seek abatement of greenhouse
gas emissions.69
In City and County of Honolulu v. Sunoco LP, the Court denied the
defendants’ motion to apply California’s Anti-SLAPP Law. The Court reasoned,
after applying a balancing test, that the factors favor applying Hawai’i law, as
opposed to California’s anti-SLAPP law, in Hawai’i.70
In Commonwealth v. Exxon Mobil Corporation, the Massachusetts Superior
Court denied defendant’s motion to dismiss for lack of personal jurisdiction and
for failure to state a claim.71 The Court reasoned that its exercise of jurisdiction
over Exxon satisfied both the Massachusetts long-arm statute and the due process
clause of the Fourteenth Amendment.72 The Court also reasoned that the
66
Id. at 89–96.
67
Id. at 92.
68
Id. at 95.
69
Id. (citing AEP v. Connecticut, 564 U.S. 410, 424–429 (2011)).
70
No. 1CCV-XX-XXXXXXX, at *2–5 (Haw. Cir. Ct. Aug. 27, 2021).
71
2021 WL 3493456, at *1 (Mass. Super.).
72
Id. at 8.
22
Commonwealth sufficiently alleged that Exxon engaged in deceptive practices
with respect to their “greenwashing” claim.73
In the present action, Defendants have filed 14 motions to dismiss. The
individual motions variously assert failure to state a claim, lack of personal
jurisdiction, statute of limitations, insufficient service of process, and anti-SLAPP
immunity.
STANDARD OF REVIEW
MOTION TO DISMISS UNDER RULE 12(b)(6)
A party may move to dismiss under this Court’s Civil Rule 12(b)(6) for failure
to state a claim upon which relief can be granted.74 In deciding a Rule 12(b)(6)
motion, the Court (1) accepts as true all well-pleaded factual allegations in the
complaint; (2) credits vague allegations if they give the opposing party notice of the
claim; (3) draws all reasonable factual inferences in favor of the non-movant; and
(4) denies dismissal if recovery on the claim is reasonably conceivable.75
The Court, however, need not “accept conclusory allegations unsupported by
specific facts or . . . draw unreasonable inferences in favor of the non-moving
73
Id. at 13.
74
Del. Super. Ct. Civ. R. 12(b)(6).
75
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011).
23
party.”76 The Court also may reject “every strained interpretation of the allegations
proposed by the plaintiff.”77
Delaware’s pleading standard is “minimal.”78 Dismissal is inappropriate
unless “under no reasonable interpretation of the facts alleged could the complaint
state a claim for which relief might be granted.”79 A claim’s reasonable
conceivability generally cannot be determined through “matters outside the
pleadings.”80 But the Court “may consider matters outside the pleadings when the
document is integral to a plaintiff’s claim and incorporated into the complaint.”81
MOTION TO DISMISS UNDER RULE 12(b)(2)
A non-resident defendant may move to dismiss for lack of personal
jurisdiction under this Court’s Civil Rule 12(b)(2).82 “Generally, a plaintiff does
not have the burden to plead in its complaint facts establishing a court’s personal
76
Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011), overruled on other
grounds by Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1277 (Del. 2018).
77
Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001).
78
Cent. Mortg., 27 A.3d at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 895 (Del. 2002)).
79
Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 2021 WL 1016442, at *3 (Del. Super.
Ct. Mar. 17, 2021) (internal quotation marks omitted); see Cent. Mortg., 27 A.3d at 537 n.13 (“Our
governing ‘conceivability’ standard is more akin to ‘possibility. . . .’”).
80
In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 68 (Del. 1995).
81
Windsor I, LLC v. CWCap. Asset Mgmt. LLC, 238 A.3d 863, 873 (Del. 2020) (internal quotation
marks omitted); see also Malpiede, 780 A.2d at 1083 (“[A] claim may be dismissed if allegations
in the complaint or in the exhibits incorporated into the complaint effectively negate the claim as
a matter of law.”).
82
Del. Super. Ct. Civ. R. 12(b)(2).
24
jurisdiction over [a non-resident] defendant.”83 But, when Rule 12(b)(2) is
invoked, the plaintiff does shoulder such a burden.84 When no meaningful
discovery has been conducted, the plaintiff must make a prima facie showing that
personal jurisdiction exists.85 In assessing the plaintiff’s showing, the Court “is not
limited to the pleadings and can consider affidavits, briefs of the parties, and the
record as a whole.”86 “Still, unless contradicted by affidavit, the Court must (1)
accept as true all well-pleaded allegations in the complaint; and (2) construe the
record in the light most favorable to the plaintiff.”87
ANALYSIS
State Law Claims and Constitutionality – Interstate Pollution
Defendants argue that the State’s claims are barred because damages caused
by interstate emissions and global warming cannot be governed by State law.
Defendants contend that the injuries claimed by the State were caused by
emissions outside of the State. The federal Constitution prohibits the State from
using its own laws to resolve claims seeking redress for injuries allegedly caused
83
Green Am. Recycling, LLC v. Clean Earth, Inc., 2021 WL 2211696, at *3 (Del. Super. Ct. June
1, 2021) (alteration in original) (quoting Focus Fin. Partners, LLC v. Holsopple, 241 A.3d 784,
800 (Del. Ch. 2020)).
84
AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 437–38 (Del. 2005).
85
E.g., Green Am. Recycling, 2021 WL 2211696, at *3.
86
Id. (internal quotation marks omitted).
87
Id. (internal quotation marks and citations omitted); see also Mabey v. Crystalite Bohemia,
S.R.O., 2018 WL 775402, at *3 (Del. Super. Ct. Feb. 6, 2018) (Though entitled to favorable
inferences on Rule 12(b)(2) review, “the plaintiff must plead specific facts and cannot rely on mere
conclusory assertions.” (internal quotation marks omitted)).
25
by out-of-state emissions. Defendants further assert that areas involving “uniquely
federal interests” pre-empt state law resolution.
The United States Supreme Court has explained in Boyle v. United
Technologies Corp. that:
[W]e have held that a few areas, involving “uniquely federal
interests” are so committed by the Constitution and laws of the
United States to federal control that state law is pre-empted and
replaced, where necessary, by federal law of a content
prescribed (absent explicit statutory directive) by the courts—
so-called “federal common law.”88
The Supreme Court ruled in American Elec. Power Co. v. Connecticut:
There is no federal general common law, Erie R. Co. v.
Tompkins, famously recognized. In the wake of Erie, however,
a keener understanding developed. . . Erie “le[ft] to the states
what ought be left to them,” and thus required “federal courts
[to] follow state decisions on matters of substantive law
appropriately cognizable by the states.” Erie also sparked “the
emergence of a federal decisional law in areas of national
concern.” The “new” federal common law addresses “subjects
within national legislative power where Congress has so
directed” or where the basic scheme of the Constitution so
demands. Environmental protection is undoubtedly an area
“within national legislative power,” one in which federal courts
may fill in “statutory interstices,” and, if necessary, even
“fashion federal law.” As the Court stated in Milwaukee I:
“When we deal with air and water in their ambient or interstate
aspects, there is a federal common law.”89
88
487 U.S. 500, 504 (1988); see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341,
347 (2001) (noting that the pre-emption of state law is allowed by federal common law where the
interests at stake are “uniquely federal” in nature).
89
564 U.S. 410, 420–421 (2011).
26
The CAA displaced federal common law remedies for nuisance claims
seeking abatement of greenhouse gas emissions.90
In International Paper Company v. Ouellette, the Supreme Court noted:
Although courts should not lightly infer pre-emption, it may be
presumed when the federal legislation is “sufficiently
comprehensive to make reasonable the inference that Congress
‘left no room’ for supplementary state regulation” . . . .
After examining the CWA [Clean Water Act] as a whole, its
purposes and its history, we are convinced that if affected States
were allowed to impose separate discharge standards on a
single point source, the inevitable result would be a serious
interference with the achievement of the “full purposes and
objectives of Congress.” Because we do not believe Congress
intended to undermine this carefully drawn statute through a
general saving clause, we conclude that the CWA precludes a
court from applying the law of an affected State against an out-
of-state source . . . .
Nothing in the Act gives each affected State this power to
regulate discharges. The CWA carefully defines the role of both
the source and affected States, and specifically provides for a
process whereby their interests will be considered and balanced
by the source State and the EPA. This delineation of authority
represents Congress’ considered judgment as to the best method
of serving the public interest and reconciling the often
competing concerns of those affected by the pollution. It would
be extraordinary for Congress, after devising an elaborate
permit system that sets clear standards, to tolerate common-law
suits that have the potential to undermine this regulatory
structure.91
90
Id.91
479 U.S. 481, 491–494 (1987).
27
The Clean Water Act (“CWA”) is analogous to the CAA. Following the
analysis used in Ouellette, the source of the pollution is dispositive. These Acts
establish standards implemented by Congress for balancing and regulating the
interests of states invaded by pollution.
In State ex rel. Jennings v. Monsanto Company, polychlorinated biphenyls
or “PCBs” were released into the environment. PCBs were alleged to have caused
lasting damage to “public health and the State’s lands and waters.”92 The State
brought suit against Monsanto for public nuisance, trespass, and unjust
enrichment.93 The State alleged that Monsanto knew about the dangers of PCBs.
Nevertheless, Monsanto continued to produce PCBs and misled the public about
the dangers of PCBs. The Delaware Supreme Court held that the State sufficiently
pled that, even though Monsanto did not control PCBs after its sale to third parties,
Monsanto substantially participated in “creating the public nuisance and causing
the trespass by actively misleading the public and continuing to supply PCBs to
industry and consumers knowing that PCBs were hazardous, would escape into the
environment after sale to third parties, and would lead to widespread and lasting
contamination of Delaware’s lands and waters.”94 At the motion to dismiss stage of
92
299 A.3d 372, 375 (Del. 2023).
93
Id.94
Id. at 376.
28
the proceedings, the Court found that allegations of foreseeability of the dangers of
PCBs were sufficient to prevent dismissal.95
The United States Court of Appeals for the Second Circuit states in City of
New York v. Chevron Corporation:
[F]ederal common law exists in only the “few and restricted”
enclaves where a federal court is “compelled to consider federal
questions [that] cannot be answered from federal statutes
alone.”96
The Chevron court recognized that “there also must be a conflict between the
federal interest and the operation of state law.”97 The defendants in that case were
alleged to have failed to warn and to have used deceptive marketing claims and
campaigns to discredit mainstream scientific evidence. Claims requesting damages
for the cumulative impact of conduct occurring simultaneously across multiple
jurisdictions, such as global greenhouse gas emissions, were found to be “beyond
the limits of state law.”98
This Court finds that claims in this case seeking damages for injuries
resulting from out-of-state or global greenhouse emissions and interstate pollution,
95
Id. at 383 (“Instead, the crux of the issue is: can a product manufacturer be held liable after a
product it manufactures is sold to third parties whose activities release the product into the
environment and cause a public nuisance?”).
96
993 F.3d 81, 89 (2d Cir. 2021).
97
Id. at 90.
98
Id. at 92.
29
are pre-empted by the CAA. Thus, these claims are beyond the limits of Delaware
common law.
Clean Air Act – Delaware Source Pollution
The United States Supreme Court has established the general rule of federal
pre-emption.
[S]tate law is pre-empted under the Supremacy Clause, U.S.
Const., Art. VI, cl. 2, in three circumstances. First, Congress
can define explicitly the extent to which its enactments pre-
empt state law. Pre-emption fundamentally is a question of
congressional intent, and when Congress has made its intent
known through explicit statutory language, the courts’ task is an
easy one.
Second, in the absence of explicit statutory language, state law
is pre-empted where it regulates conduct in a field that
Congress intended the Federal Government to occupy
exclusively. Such an intent may be inferred from a “scheme of
federal regulation . . . so pervasive as to make reasonable the
inference that Congress left no room for the States to
supplement it,” or where an Act of Congress “touch[es] a field
in which the federal interest is so dominant that the federal
system will be assumed to preclude enforcement of state laws
on the same subject.” Although this Court has not hesitated to
draw an inference of field pre-emption where it is supported by
the federal statutory and regulatory schemes it has emphasized:
“Where . . . the field which Congress is said to have pre-
empted” includes areas that have “been traditionally occupied
by the States,” congressional intent to supersede state laws must
be “‘clear and manifest.’”
Finally, state law is pre-empted to the extent that it actually
conflicts with federal law. Thus, the Court has found pre-
emption where it is impossible for a private party to comply
with both state and federal requirements, or where state law
30
“stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.”99
The CWA cases apply by analogy to the CAA cases. In International Paper
Co. v. Ouellette, the Supreme Court found that the CWA precludes a court from
applying the law of an affected State against an out-of-state source.100
Similar to the CWA, the EPA has established regulations and emissions
standards for the CAA. The Clean Air Act Renewable Fuel Standard Program
regulates the consumption and use of fossil fuel products.
Using same analysis and reasoning that the Supreme Court used for the
CWA in Ouellette, the CAA preempts state law to the extent a state attempts to
regulate air pollution originating in other states.101
However, the CAA does not displace Delaware common law claims where
the harm is caused by foreign global emissions. Nevertheless, there is a need for
judicial caution in the face of “delicate foreign policy considerations.”102
In American Electric Power Company, Inc. v. Connecticut, the United States
Supreme Court held that “the Clean Air Act and the EPA actions it authorizes
99
Eng. v. Gen. Elec. Co., 496 U.S. 72, 78–79 (1990).
100
479 U.S. 481, 493–494 (1987).
101
See Bell v. Cheswick Generating Station, 734 F.3d 188, 194 (3d Cir. 2013) (“We see nothing
in the Clean Air Act to indicate that Congress intended to preempt source state common law tort
claims. If Congress intended to eliminate such private causes of action, ‘its failure even to hint
at’ this result would be ‘spectacularly odd.’”) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470,
491 (1996)).
102
City of New York v. Chevron Corp., 993 F.3d 81, 103 (2d Cir. 2021).
31
displace any federal common-law right to seek abatement of carbon-dioxide
emissions from fossil-fuel fired powerplants.”103 Thus, state law is not pre-empted
by federal statutes (CWA and CAA) where injuries and damages result from in-
state sources.104
Section 7401(a)(3) of title 42 of the United States Code provides:
The Congress finds -- that air pollution prevention (that is, the
reduction or elimination, through any measures, of the amount
of pollutants produced or created at the source) and air pollution
control at its source is the primary responsibility of States and
local governments.105
Section 7416(e) states:
[N]othing in this chapter shall preclude or deny the right of any
State or political subdivision thereof to adopt or enforce (1) any
standard or limitation respecting emissions of air pollutants or
(2) any requirement respecting control or abatement of air
pollution; except that if an emission standard or limitation is in
effect under an applicable implementation plan or under section
7411 or section 7412 of this title, such State or political
subdivision may not adopt or enforce any emission standard or
limitation which is less stringent than the standard or limitation
under such plan or section.106
103
564 U.S. 410, 424 (2011).
104
Id. at 429.
105
42 U.S.C. § 7401.
106
42 U.S.C. § 7416.
32
There is no “field pre-emption” for source State litigation. Suits asking for
State damages constitute state regulation.107
This Court finds that the CAA does not pre-empt state law regulation of
alleged claims and damages resulting from air pollution originating from sources in
Delaware. Air pollution prevention and control at the source is the primary
responsibility of state and local governments.
Political Questions
Defendants argue that the State is requesting the Court to resolve
nonjusticiable political questions.
The U.S. Supreme Court lays out the factors to determine whether there is a
political question.
It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may
describe a political question, although each has one or more
elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held
to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s
undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political
107
Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008) (“And while the common-law remedy is
limited to damages, a liability award ‘can be, indeed is designed to be, a potent method of
governing conduct and controlling policy.’”).
33
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
one question. Unless one of these formulations is inextricable
from the case at bar, there should be no dismissal for non-
justiciability on the ground of a political question’s presence.108
The Delaware Supreme Court has held that the Baker factors to be the
standard used when addressing “political questions.”109
In Native Village of Kivalina v. ExxonMobil Corp., the City of Kivalina
brought suit against multiple oil, energy, and utility companies (“Energy
Producers”). Kivalina alleged that the existence of its land was threatened due to
the effects of global warming, attributable to the large quantities of greenhouse
gases emitted by Energy Producers.110 Energy Producers moved to dismiss the
action for lack of subject-matter jurisdiction because Kivalina’s allegations raised
“inherently nonjusticiable political questions because to adjudicate its claims, the
court would have to determine the point at which greenhouse gas emissions
become excessive without guidance from the political branches.”111 The Ninth
Circuit affirmed the ruling made by the United States District Court for the
Northern District of California that Kivalina lacked standing on the basis of the
108
Baker v. Carr, 369 U.S. 186, 217 (1962).
109
State, ex rel. Oberly v. Troise, 526 A.2d 898, 904 (Del. 1987); see also Guy v. City of
Wilmington, 2020 WL 2511122, at *2 (Del. Super.).
110
696 F.3d 849, 853–854 (9th Cir. 2012).
111
Id. at 854.
34
political question. Kivalina could not establish causation under Article III, deeming
the issue appropriate at the discretion of the executive or legislative branch.112
In People of State of California v. General Motors Corp., the State of
California brought suit against various automakers for creating and contributing to
global warming.113 Defendants argued that the nuisance claims presented non-
justiciable political questions.114 Defendants alleged that global warming was an
issue of public and foreign policy that should be addressed and resolved by the
other political branches of the federal government and not by the courts.115 The
Court acknowledged that just because claims touch on “public policy, foreign
policy, and political issues, it is ‘tempting to jump to the conclusion that such
claims are barred by the political question doctrine.’”116 The Court stated, however,
that “it is error to suppose that every case or controversy which touches foreign
relations lies beyond judicial cognizance,” and that the “justiciability inquiry is
limited to ‘political questions,’ not . . . ‘political cases,’ and should be made on a
‘case-by-case’ basis.”117 The Court ruled that “dismissal on the basis of the
112
Id.113
2007 WL 2726871, at *1 (N.D. Cal.).
114
Id. at 5.
115
Id.; see also Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849, 864 (S.D. Miss. 2012)
(reasonableness of greenhouse gas emissions is determined by the EPA, not by the courts);
Sagoonick v. State, 503 P.3d 777, 795 (Alaska 2022) (“The political question doctrine maintains
the separation of powers by ‘exclud[ing] from judicial review those controversies which revolve
around policy choices and value determinations constitutionally committed for resolution to’ the
political branches of government.”).
116
Id. at 6.
117
Id.35
political question doctrine is appropriate only if one of the [Baker] formulations is
‘inextricable’ from the case.”118 The Court also noted that the Baker tests are
“more discrete in theory than in practice, with the analyses often collapsing into
one another.”119
This Court finds that the political question doctrine rarely, if ever, is applied
to justify judicial abstention in Delaware. The Court finds that there is no reason to
apply the doctrine in this case. Delaware courts have considered similar cases in
the environmental context, or involving public nuisance product claims, without
the necessity of deferring on the basis of a nonjusticiable political question.120
Public Nuisance and Trespass
The Delaware Supreme Court recently addressed public nuisance and
trespass in State ex rel. Jennings v. Monsanto Co.121 Monsanto dealt with PCBs
(polychlorinated biphenyls), chemicals that, when released into the environment,
persist indefinitely.122 The federal government discovered that exposure to PCBs
causes serious health effects, which led to the banning of PCB production.123 The
118
Id.119
Id.120
See State ex rel. Jennings v. Monsanto Co., 2022 WL 2663220 (Del. Super.) (dealing with
PCBs); see also Sills v. Smith & Wesson Corp., 2000 WL 33113806 (Del. Super.) (dealing with
firearms); see also State ex rel. Jennings v. Purdue Pharma L.P., 2019 WL 446382 (Del. Super.)
(dealing with opioids).
121
299 A.3d 372 (Del. 2023).
122
Id. at 375.
123
Id.36
State of Delaware asserted claims for public nuisance, trespass, and unjust
enrichment against Monsanto.
In this case, the State’s Complaint alleges five reasons Defendants created a
public nuisance:
a. Controlling every step of the fossil fuel product supply chain,
including the extraction of raw fossil fuel products, including
crude oil, coal, and natural gas from the Earth; the refining and
marketing of those fossil fuel products, and the placement of
those fossil fuel products into the stream of commerce;
b. Affirmatively and knowingly promoting the sale and use of
fossil fuel products that Fossil Fuel Defendants knew to be
hazardous and knew would cause or exacerbate global warming
and related consequences, including, but not limited to, sea
level rise, drought, extreme precipitation events, and extreme
heat events;
c. Affirmatively and knowingly concealing the hazards the
Fossil Fuel Defendants knew would result from the normal use
of their fossil fuel products by misrepresenting and casting
doubt on the integrity of scientific information related to
climate change;
d. Disseminating and funding the dissemination of information
intended to mislead customers, consumers, and regulators
regarding known and foreseeable risk of climate change and its
consequences, which follow from the normal, intended use of
Fossil Fuel Defendants’ fossil fuel products; and
e. Affirmatively and knowingly campaigning against the
regulation of their fossil fuel products, despite knowing the
hazards associated with the normal use of those products, in
order to continue profiting from use of those products by
externalizing those known costs onto people, the environment,
and communities, including residents of Delaware; and failing
37
to warn the public about the hazards associated with the use of
fossil fuel products.124
The State argues that a defendant “can be held liable when it substantially
contributed to a public nuisance by misleading the public and selling a product it
knew would eventually cause a safety hazard and end up contaminating the
environment for generations when used by industry and consumers.”125 Thus,
Defendants contributed to a public nuisance because they misled the public and
sold their fossil fuel products, knowing that the products would continue to cause
harm to the environment through the emission of greenhouse gases into the
atmosphere.
In Monsanto, the State alleged that the defendants supplied toxic substances,
i.e., PCBs, and knew that the PCBs would be released into the environment, which
would cause pollution. Defendants purportedly misled the public and the
government about the safety of PCBs and substantially participated in carrying on
public nuisance, resulting in damages.
The Delaware Supreme Court held that the State failed to state a claim for
unjust enrichment and for trespass to lands that the State holds in public trust.
However, the State successfully stated a claim for public nuisance and for trespass
124
Compl. at ¶ 257.
125
Pl.’s Answering Brief in Opposition to Defs. Joint Motion to Dismiss for Failure to State a
Claim at 26 (quoting Monsanto, 2023 WL 4139127, at *8).
38
to lands that the State owns directly.126 The Court reasoned that even if Monsanto
did not control the PCBs after its sale to third parties, Monsanto was still part of
the process of releasing PCBs into the environment, creating a claim for public
nuisance and trespass.127
This Court finds that Monsanto controls. At this stage in the proceedings, the
State has stated a general claim for environmental-based public nuisance and
trespass for land the State owns directly, but not for land the State holds in public
trust. Control of the product at the time of alleged nuisance or trespass is not an
element of a nuisance claim.128
However, unlike contamination of land and water in Monsanto, damages
caused by air pollution limited to State-owned property may be difficult to isolate
and measure. Nevertheless, that is an issue to be addressed at a later stage of the
case. This should not be a reason to grant dismissal of nuisance and trespass claims
at this time.
Rule 9(b) Particularity
The Superior Court Rules of Civil Procedure Rule 9(b) provides:
In all averments of fraud, negligence or mistake, the
circumstances constituting fraud, negligence or mistake shall be
126
State ex rel. Jennings v. Monsanto Co., 299 A.3d 372, 392 (Del. 2023).
127
Id. at 376.
128
Id. at 383.
39
stated with particularity. Malice, intent, knowledge and other
condition of mind of a person may be averred generally.
Rule 9(b) applies to claims averring fraud.
Although the language of Rule 9(b) confines its requirements to
claims of mistake and fraud, the requirements of the rule apply
to all cases where the gravamen of the claim is fraud even
though the theory supporting the claim is not technically termed
fraud. Rule 9(b)’s requirements have been found to apply to
claims for misrepresentation, conspiracy to commit fraud, and
negligent misrepresentation.129
Rule 9(b) applies to tort claims based on fraud or intentional misrepresentations.
BP’s Argument
BP America Inc. (“BP”) makes three arguments. First, the State
affirmatively pled in their Complaint that BP publicly acknowledged the risk of
climate change—and its link to fossil fuels—decades ago.130 BP allegedly never
denied the dangers of their fossil fuel products. The State did not identify any
“climate-denial” misrepresentations BP made to consumers and the public.131
Second, the State’s “greenwashing” theory fails to state a claim against BP
because the statements made by BP are “classic examples of non-actionable
puffery and/or statements of opinion.”132 Additionally, BP alleges that the
129
Toner v. Allstate Ins. Co., 821 F. Supp. 276, 283 (D. Del. 1993).
130
Def. BP P.L.C. and BP America Inc.’s Motion to Dismiss for Failure to State a Claim at 5–6.
131
Id.132
Id. at 7.
40
statements at issue do not address “merchandise,” as the Delaware Consumer
Fraud Act (“DCFA”) requires in 6 Del. C. § 2513.133 As defined in 6 Del. C. §
2511: “Merchandise” means any objects, wares, goods, commodities, intangibles,
real estate or services.134 BP sells “merchandise,” as described in the statute, such
as retail gasoline and lubricant products throughout Delaware. However, none of
the purported “greenwashing” statements in the Complaint refer to BP gasoline or
lubricants.135
Third, the State has misrepresented the statements about Invigorate gasoline
and BP Diesel.136 BP provided their complete statements about Invigorate gasoline
and BP Diesel and compared them with the State’s allegations.137 BP argues that
the statements about Invigorate gasoline and BP Diesel say nothing about the
environment or climate change.138 Instead, BP argues the statements focus on
eliminating dirt in the engine and using low-sulfur fuels, not on the reduction of
greenhouse gas emissions that benefit the environment.139
133
Id. at 9.
134
Del. Code Ann. Tit. 6, § 2511(6).
135
Def. BP P.L.C. and BP America Inc.’s Motion to Dismiss for Failure to State a Claim at 9–10.
136
Id. at 10.
137
Id. at 10–11.
138
Id. at 11.
139
Id. at 11–12.
41
CITGO’s Argument
CITGO Petroleum Corporation (“CITGO”) argues that the State made vague
allegations that fail to specify what facts CITGO supposedly misrepresented, when
it did so, or where, as required by Rule 9(b).140 CITGO asserts that the State fails to
identify a specific statement made by CITGO and cannot simply rely on a group
pleading to state a claim.141 CITGO contends that any attempt to hold CITGO or
Murphy USA, members of API, liable for API’s speech fails for two reasons.142
First, the Complaint does not allege any actionable misrepresentations by API,
much less with particularity, in Delaware or elsewhere.143 Second, the Complaint
does not allege any facts suggesting a basis for holding CITGO or Murphy USA
liable for the protected statements made by API or its members.144
CITGO provides three circumstances in which a defendant can be liable for
harm resulting to a third person from the tortious conduct of another: the defendant
(a) does a tortious action in concert with the other or pursuant
to a common design with him, or (b) knows that the other’s
conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct himself,
or (c) gives substantial assistance to the other in accomplishing
a tortious result and his own conduct, separately considered,
constitutes a breach of duty to the third person.145
140
Def. CITGO Petroleum Corp.’s and Murphy USA Inc.’s Motion to Dismiss for Failure to
State a Claim at 11.
141
Id. at 10.
142
Id. at 12.
143
Id.
144
Id.
145
Id. at 12–13 (citing Restatement (Second) of Torts §876 (1979)).
42
CITGO argues that the State fails the first category because although CITGO
and Murphy USA were members of API, mere membership in a trade association
is not sufficient to give rise to an inference of conspiracy, absent proof of
“knowing participation” in the wrongful conduct.146 CITGO argues that the State
never alleged that CITGO or Murphy USA knowingly participated in any alleged
misconduct.147
CITGO contends that the State fails the second category because CITGO
and Murphy USA are not alleged to have been encouraged or aware of any
advocacy messaging that API or any other Defendants communicated.148 CITGO
argues that the Complaint fails to allege that CITGO or Murphy USA supported or
knew about any “greenwashing” statements, or that they were members of API
when those statements were made.149
CITGO asserts that the State fails the third category because the Complaint
does not allege that CITGO or Murphy USA made any misrepresentation that
could be considered breach of duty; nor does the Complaint allege that CITGO or
Murphy USA provided any assistance to API or any other Defendant in
accomplishing a tortious result.150 CITGO argues that the mere fact of membership
146
Id. at 13 (citing In re Asbestos Litig., 509 A.2d 1116, 1120 (Del. Super. 1986).
147
Id. at 13.
148
Id. at 15.
149
Id.
150
Id. at 16.
43
in an association is not a sufficient basis for the tort liability of individual members
for the wrongful acts or omissions of an association.151
CNX’s Argument
CNX Resources Corporation (“CNX”) argues that only two paragraphs in
the Complaint mention CNX. Neither paragraph identifies a specific misstatement
made by CNX.152 CNX asserts that because the Complaint never alleged that CNX
made “any statements about its products’ connection to global climate change—
much less any misrepresentations that could have deceived consumers—the
Complaint falls well short of Rule 9(b)’s requirement to specify the time, place,
and contents of the alleged misrepresentations.”153 CNX argues that “only the
speaker who makes a false representation is accountable for it.”154 The State’s only
allegation is membership. However, none of the Defendants’ alleged misstatements
are attributable to CNX.155
Marathon Petroleum Corporation’s Argument
Marathon Petroleum Corporation (“MPC”) argues that the State’s Complaint
failed to allege facts that would suffice to establish reasonable reliance or to show
151
Id. (citing 62 A.L.R. 3d 1165 §4).
152
Def. CNX Resources Corp.’s Motion to Dismiss for Failure to State a Claim at 8.
153
Id. at 9.
154
Id. at 10 (quoting In re Swervepay Acquisition, LLC, 2022 WL 3701723, at *9 (Del. Ch.
2022).
155
Id.44
injury caused by MPC, MPCLP, or Speedway.156 MPC also argues that the
Complaint failed to identify anyone who relied on or acted upon its advertisements
or statements.157
MPC argues that the Complaint identifies only one specific statement made
by MPC, MPCLP, or Speedway in 2018 from its Climate Perspectives report to
shareholders—that the company had “invested billions of dollars to make our
operations more energy efficient [and] reduce our emissions.”158 MPC argues that
the Complaint does not provide facts showing how the 2018 statement was a
“misrepresentation,” “fraud,” or “deception” upon consumers.159 Further, the
Complaint does not allege that the statement would lead “consumers to believe that
purchasing and using oil and gasoline from MPC affiliates for consumer needs
would lead to consumers generating fewer emissions from their own use than they
would have expected had they not seen such a statement.”160
Apache’s Argument
Apache Corporation (“Apache”) argues that all of the State’s allegations that
could relate to Apache are non-specific and directed in a generalized fashion
156
Def. Marathon Petroleum Corp.’s, Marathon Petroleum Comp. LP’s, and Speedway LLC’s
Motion to Dismiss for Failure to State a Claim at 9.
157
Id.158
Id. at 8.
159
Id.160
Id.45
towards all Defendants.161 Apache contends that the State relies exclusively on
group pleading for its claims against Apache.162 The State’s allegations span over
seventy years, and the Complaint did not put Apache on notice since the Complaint
did not specify which conduct or statements made was by Apache during that time
period.163
Apache further argues that even if Apache were a member of API, API’s
alleged conduct cannot be imputed to Apache.164 The Restatement (Second) of
Torts limits the circumstances in which a defendant can be held liable for harm
resulting to a third person from the tortious conduct of another.165 The State has not
pled facts to support any of those circumstances.166
Apache relies on unique facts. The State alleges that “Apache Corporation is
a publicly traded Delaware corporation with its principal place of business in
Houston, Texas.”167 The State does not state any other Delaware contact. The State
alleged that Apache made statements in and outside of Delaware regarding their
campaign of deception and thus failed to warn consumers about global warming
161
Def. Apache Corp.’s Motion to Dismiss for Failure to State a Claim at 8–9.
162
Id. at 11.
163
Id.164
Id. at 13.
165
Id.166
Id. at 14.
167
Compl. at ¶ 33.
46
hazards when marketing, advertising, and selling their product.168 However, there
was no specific description of Apache’s promotional activities.
CONSOL’s Argument
CONSOL Energy Inc. (“CONSOL”) is the only coal company defendant.169
CONSOL argues that the Complaint contains boilerplate conclusory statements
that are asserted against all Defendants, which fail to identify a single decision or
communication CONSOL made regarding misrepresentation, fraud, or deception
of climate change, greenhouse gas emissions, and fossil fuel products.170 CONSOL
asserts that the State alleged no misrepresentations made by CONSOL.171
Hess’s Argument
Hess Corporation (“Hess”) makes four arguments: (1) Count IV of the
State’s Complaint is devoid of any specific allegations regarding Hess; (2) the
State cannot allege such conduct because by the relevant time, Hess had ceased all
oil and gas product-related commercial activity directed towards consumers in
Delaware, including any advertising and/or marketing; (3) any conduct by Hess
outside the State of Delaware within the five-year statute of limitations period
cannot form the basis of a Delaware Consumer Fraud Act (DCFA) claim; and (4)
168
Id.169
Def. CONSOL Energy Inc.’s Motion to Dismiss for Failure to State a Claim at 3.
170
Id.171
Id. at 8.
47
any discussion of tolling or concealment of the statute of limitations by the State is
unavailing.172
Hess argues that it divested all of its retail marketing assets in Delaware by
September 30, 2014.173 Since that time, Hess has not advertised or marketed oil
and gas products to Delaware consumers, nor has not sold any oil and gas products
to Delaware consumers.174 Thus, the State has no claim against Hess because the
State fails to allege any actions by Hess in violation of the DCFA within the five-
year statute of limitations.175
Marathon Oil Corp.’s Argument
Marathon Oil Corporation (“Marathon”) argues that not one of the
allegations made by the State identifies Marathon specifically, much less identifies
any particularized misstatement or omission that allegedly would support
liability.176 The State failed to put Marathon on notice of its alleged misconduct.177
Marathon argues that the State tries to “cover-up” this deficiency by claiming
“greenwashing.”178 Marathon argues that the Complaint makes clear that it relates
172
Def. Hess’s Supplemental Motion to Partially Dismiss for Failure to State a Claim on Statute
of Limitations Grounds at 8.
173
Id. at 11.
174
Id.175
Id. at 11–12.
176
Def. Marathon Oil Corp.’s Motion to Dismiss at 9.
177
Id. at 11.
178
Id.48
to Marathon Petroleum Corporation, which is not affiliated with Marathon Oil
Corporation (they are two different and separate entities).179
* * *
This Court finds that the State has failed to specifically identify alleged
misrepresentations for each individual defendant. All claims alleging
misrepresentations, including “greenwashing”, must be dismissed, with leave to
amend with particularity, pursuant to Rule 9(b).
Failure to Warn
The State argues that Defendants failed to warn by making
misrepresentations about climate change and attempting to indirectly induce
Delaware consumers to buy their fossil fuel products.180 Defendants “had a duty to
warn both consumers and bystanders that would foreseeably be harmed by the
intended use of their products, and because [Defendants] made sure the dangers of
their products were neither open nor obvious through their pervasive climate-
disinformation campaigns.”181
Under Section 388 of the Restatement (Second) of Torts and Delaware law,
a manufacturer has a duty to warn users of the dangerous nature of its products.
179
Id.180
Pl.’s Answering Brief in Opposition to Defs. Joint Motion to Dismiss for Failure to State a
Claim at 53.
181
Id. at 39.
49
One who supplies directly or through a third person a chattel for
another to use is subject to liability to those whom the supplier
should expect to use the chattel with the consent of the other or
to be endangered by its probable use, for physical harm caused
by the use of the chattel in the manner for which and by a
person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to
be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel
is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its
dangerous condition or of the facts which make it likely to
be dangerous.
This duty extends not only to those for whose use the chattel is
supplied but also to third parsons whom the supplier should
expect to be endangered by its use, which may include persons
who have no connection with the ownership or use of the
chattel itself. The manufacturer’s duty is dependent on whether
it had knowledge of the hazards associated with its product. The
standard for determining the duty of a manufacturer to warn is
that which a reasonable (or reasonably prudent) person engaged
in that activity would have done, taking into consideration the
pertinent circumstances at that time. And even where that
knowledge exists, liability is imposed only where the
manufacturer had no reason to think that the users of its
products would recognize the danger, and it fails to exercise
reasonable care in warning users of the product’s dangerous
nature.182
The State argues that Defendants had a duty to warn because they knew or
had reason to know that their fossil fuel products were causing harm to their
consumers and to the State.183 The State also argues that it is an injured bystander.
182
Ramsey v. Georgia S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1278–1279 (Del. 2018)
(citing Restatement § 388) (quotes omitted).
183
Pl.’s Answering Brief in Opposition to Defs. Joint Motion to Dismiss for Failure to State a
Claim at 42.
50
Foreseeable bystanders need to be protected as well.184 Courts have recognized that
“bystanders should be entitled to greater protection than the consumer or user
where injury to bystanders from the defect is reasonably foreseeable.”185
In response, Defendants argue that there is “no duty to warn of or protect
invitees from an open and obvious danger.”186 Defendants allege that the State’s
own allegations in the Complaint admit that the potential dangers of fossil fuel use
on the climate have been “open and obvious” for decades.187 Thus, Defendants had
no duty to warn about these dangers, and the negligent failure to warn claims fail
as a matter of law.188
The Court finds that the State has stated a claim for failure to warn. The
State has alleged that Defendants knew that their products were endangering the
environment, and harming their consumers and the State of Delaware (a valid
bystander). However, the question of whether the danger was open and obvious is
not appropriate for resolution at the dismissal stage.
Delaware Consumer Fraud Act
Section 2513(a) of title 6 of the Delaware Code provides:
184
Id. at 40.
185
Elmore v. Am. Motors Corp., 70 Cal. 2d 578, 586 (1969); see also Prosser & Keeton on Torts
§ 100, pp. 703–704 (5th ed. 1984).
186
Defs. Joint Opening Brief in Support of Motion to Dismiss for Failure to State a Claim at 56
(quoting Jones v. Clyde Spinelli, LLC, 2016 WL 3752409, at *2 (Del. Super.)).
187
Id. at 57.
188
Id. at 57–58.
51
The act, use, or employment by any person of any deception,
fraud, false pretense, false promise, misrepresentation, unfair
practice, or the concealment, suppression, or omission of any
material fact with intent that others rely upon such concealment,
suppression, or omission, in connection with the sale, lease,
receipt, or advertisement of any merchandise, whether or not
any person has in fact been misled, deceived, or damaged
thereby, is an unlawful practice.
The Delaware Supreme Court has held:
[T]o bring a private cause of action for damages under the
Delaware Act, a plaintiff must allege three elements: (1) a
defendant engaged in conduct which violated the statute; (2) the
plaintiff was a “victim” of the unlawful conduct; and (3) a
causal relationship exists between the defendant’s unlawful
conduct and the plaintiff’s ascertainable loss.189
The State alleges that Defendants’ deceptive statements about climate
change are actionable because a jury could reasonably conclude that Defendants
sought to indirectly induce consumers to purchase their fossil fuel products.190 The
State asserts that the CFA claim is timely because Defendants’ fraudulent
concealment of their unlawful conduct tolled the statute of limitations until the
State could reasonably have discovered their conduct.191
Section 2506 of title 6 of the Delaware Code provides:
Notwithstanding any other statute to the contrary, no action at
law by the Attorney General brought under this chapter shall be
189
Teamsters Loc. 237 Welfare fund v. AstraZeneca Pharms. LP, 136 A.3d 688, 693 (Del. 2016).
190
Pl.’s Answering Brief in Opposition to Def’s. Joint Motion to Dismiss for Failure to State a
Claim at 48.
191
Id.52
initiated after the expiration of 5 years from the time the cause
of action accrued.192
The Delaware Supreme Court has held that a “cause of action ‘accrues’ . . .
at the time of the wrongful act, even if the plaintiff is ignorant of the cause of
action.”193
The State contends that Defendants’ deception began in 1988.194 The State
alleges that there was no inquiry or actual notice to investigate the Defendants’
campaign of deception because Defendants were so effective at concealing their
lies from the public.195 Defendants assert that the State did have inquiry or actual
notice. There were reports and stories in The Washington Post and The New York
Times that warned the public about global warming and the deception used by oil
and coal industries.196 The highly-publicized Kivalina lawsuit, which was filed in
2008, included many of the same allegations that the State of Delaware makes.197
Defendants have provided evidence showing that the general public had
knowledge of or had access to information about the disputes, regarding the
existence of climate change and effects, decades prior to the expiration of the five-
year limitations period. This information and evidence is unrefuted by the State.
192
6 Del. C. § 2506.
193
Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004).
194
Compl. at ¶ 106.
195
Id. at ¶ 276.
196
Defs. Motion to Dismiss for Lack of Personal Jurisdiction at 61–62.
197
Id. at 62.
53
This Court finds that the DCFA claims are barred by the five-year statute of
limitations. Tolling does not apply.
Personal Jurisdiction
There are two types of personal jurisdiction—general jurisdiction and
specific jurisdiction.
A court may assert general personal jurisdiction over an individual where the
individual is domiciled and over a corporation where the corporation is regarded
“at home.”198 An incorporated business entity is “at home” in its state of
incorporation and the place of its principal place of business. Where a
corporation’s affiliations with the State are continuous and systematic, the entity
essentially is at home in the forum State.199
Specific jurisdiction is “triggered when the plaintiff’s claims arise out of acts
or omissions, by the defendant, that take place in Delaware.”200 In other words,
personal jurisdiction is based on “whether a cause of action arises from [a
defendant’s] contacts with the forum.”201
Six Defendants—BP P.L.C., Chevron U.S.A. Inc., Exxon Mobil Corporation
and ExxonMobil Oil Corporation, Shell PLC (f/k/a Royal Dutch Shell PLC),
198
Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct.
1773, 1780 (2017).
199
Daimler AG v. Bauman, 571 U.S. 117, 139 (2014).
200
Ross v. Earth Movers, LLC, 288 A.3d 284, 294 (Del. Super. 2023).
201
Otto Candies, LLC v. KPMG LLP, 2017 WL 3175619, at *4 (Del. Super.).
54
TotalEnergies SE and TotalEnergies Marketing USA, Inc., and American
petroleum Institute (“API”)—argue that they are not subject to either general or
specific jurisdiction in Delaware. The State conceded that none of these
Defendants are incorporated or headquartered in Delaware.202 These Defendants
assert that they are not subject to specific jurisdiction in Delaware because the
State’s claims do not arise out of or relate to Defendants’ alleged contacts with
Delaware; Defendants were not on “clear notice” that personal jurisdiction would
exist in Delaware for suits based on global climate change; and exercising personal
jurisdiction over Defendants would be unreasonable and conflict with federalism
principles.
The State alleges that Chevron Corporation is incorporated in Delaware, but
that Chevron U.S.A. Inc. is incorporated in Pennsylvania with its principal place of
business located in San Ramon, California.203 Chevron U.S.A. Inc. is a wholly-
owned subsidiary of Chevron Corporation and purportedly acts on Chevron
Corporation’s behalf and subject to Chevron Corporation’s control.204 The State
further alleges that Chevron advertises in Delaware, does business in Delaware,
and has owned and operated a refinery in Delaware.205
202
Def’s. Motion to Dismiss for Lack of Personal Jurisdiction at 12.
203
Id. at 17.
204
Id.205
Id. at 18–19.
55
The State alleges that Royal Dutch Shell PLC is incorporated in England and
Wales with its headquarters and principal place of business in The Hague,
Netherlands. Shell Oil Company is a wholly-owned subsidiary of Royal Dutch
Shell PLC incorporated in Delaware that purportedly acts on Royal Dutch Shell
PLC’s behalf.206 The State further alleges that Shell advertises in Delaware, does
business in Delaware, has owned and operated a refinery in Delaware, and
conducts and controls fossil fuel sales at gas stations throughout Delaware.207
In Commonwealth v. Exxon Mobil Corporation, the Superior Court of
Massachusetts found that Exxon sold gasoline in Massachusetts, put up signs at its
fuel stations in Massachusetts without disclosing the dangers of climate change,
and alleged false and misleading statements in Massachusetts through
“greenwashing.”208 The Court found personal jurisdiction proper under the
Massachusetts long-arm statute and due process clause. The Court reasoned that
Exxon’s deception arose from Exxon’s contacts with Massachusetts because
“Massachusetts investors would not have purchased or retained Exxon’s stocks but
for its misrepresentations and omissions concerning the risk of climate change to
its business.”209 That consumer deception arose from Exxon’s advertisements
through its Massachusetts franchisees. Massachusetts consumers were injured by
206
Id. at 37,39.
207
Id. at 40–42.
208
2021 WL 3493456 (Mass. Super.).
209
Id. at 6.
56
their purchase in Massachusetts of “dangerous” fossil fuel products. The injuries
“would not have occurred ‘but for’ Exxon’s failure to disclose additional and
allegedly relevant information about those products at its franchise stations.”210
The Court found that the exercise of personal jurisdiction over Exxon comported
with the requirements of due process because: (1) Exxon purposefully availed itself
of the privilege of conducting business activities in Massachusetts; (2) the claims
arose out of Exxon’s contacts with Massachusetts; and (3) the exercise of personal
jurisdiction over Exxon did not offend “traditional notions of fair play and
substantial justice.”211
In this case, Defendants advertised in Delaware. The State alleges that these
advertisements contained misstatements regarding climate change. However, the
Complaint fails to identify specific alleged misrepresentations made in Delaware.
The U.S. Supreme Court noted in Goodyear Dunlop Tires Operations, S.A.
v. Brown:
When a defendant’s act outside the forum causes injury in the
forum, by contrast, a plaintiff’s residence in the forum may
strengthen the case for the exercise of specific jurisdiction.212
Goodyear involved a wrongful death action. A defective tire manufactured
in Turkey, at the plant of a foreign subsidiary of The Goodyear Tire and Rubber
210
Id. at 7.
211
Id. at 7–8.
212
564 U.S. 915, 929 n.5 (2011).
57
Company, was involved in the accident.213 An action was commenced in North
Carolina against Goodyear, and three of its subsidiaries organized and operated in
Turkey, France, and Luxembourg.214 Goodyear had plants in North Carolina that
regularly engaged in commercial activity.215 Goodyear did not contest the North
Carolina court’s jurisdiction. However, Goodyear’s foreign subsidiaries did.216 The
U.S. Supreme Court ruled that jurisdiction over claims unrelated to the sales were
not sufficient.
The U.S. Supreme Court held in Ford Motor Co. v. Montana Eighth Jud.
Dist. Ct.:
[C]ausation-only approach finds no support in this Court’s
requirement of a “connection” between a plaintiff’s suit and a
defendant’s activities . . . we have never framed the specific
jurisdiction inquiry as always requiring proof of causation—
i.e., proof that the plaintiff’s claim came about because of the
defendant’s in-state conduct.217
The Court finds that there must be a connection between Delaware-specific
conduct and the alleged harm. There is no need to prove geo-located causation.218
However, there must be a relationship between Delaware activities and the cause
of action and alleged damages. Advertising, selling products, operating gas
213
Id. at 918.
214
Id.215
Id.216
Id.217
141 S. Ct. 1017, 1026 (2021).
218
Id.58
stations, and/or operating a refinery in Delaware are connections sufficient to
survive dismissal. The State has alleged relationships for the six moving
Defendants, sufficient to demonstrate specific personal jurisdiction.219
Anti-SLAPP
The State alleges that Chevron and American Petroleum Institute have
known for more than sixty years that fossil fuels create greenhouse gas pollution,
causing detrimental effects to the planet and people.220 Despite knowing these
facts, Defendants have deceived consumers through strategic wordings in
advertisements that concealed, discredited, and/or misrepresented information
concerning the dangers of fossil fuel consumption.221 The State contends that
Defendants used this deception to influence consumers to continue using fossil fuel
products to increase sales and protect their profits.222 The deception continues to
the present. Defendants have significantly increased greenhouse gas pollution and
have substantially contributed to climate change and its adverse effects in
Delaware.223
219
See City and County of Honolulu v. Sunoco LP, 2023 WL 7151875, at *16 (Haw.).
220
Pl.’s Answering Br. in Opp. to Chevron Corporation and Chevron U.S.A. Inc’s Anti-SLAPP
Special Mot. to Dismiss at 2–3; Pl.’s Answering Br. in Opp. to American Petroleum Institute’s
Mot. to Dismiss under the District of Columbia’s Anti-SLAPP Statute at 2–3.
221
Id. at 3.
222
Id.223
Id. at 3–4.
59
The First Circuit Court of the State of Hawai’i denied Chevron Defendants’
Special Motion to Strike and/or Dismiss the Complaint Pursuant to California’s
Anti-SLAPP Law. The denial was based on a balancing test.224 The Court found
that many of the factors weigh in favor of applying Hawai’i law over California’s
anti-SLAPP law in Hawai’i.225 California’s anti-SLAPP law may not protect the
defendant if a similar suit were brought in California by a California
municipality.226 The Court reasoned that California Civil Codes § 425.16(d) and §
731 “indicate that city public nuisance actions are not protected by the anti-SLAPP
law.”227 Although the language can be parsed and distinguished, public
enforcement actions should not be overly constrained by the anti-SLAPP
provisions.228
The Court reasoned that anti-SLAPP law is not intended to deal with judicial
abuses in other jurisdictions. The Court noted that “different states’ laws can apply
to different issues in the same case.”229 Nevertheless, “It does not dictate any
particular choice of law result,” since a court must weigh and balance multiple
factors.230
224
City & Cnty. Of Honolulu v. Sunoco LP, No. 1CCV-XX-XXXXXXX, at *2 (Haw. First Cir. Ct.
Aug. 27, 2021).
225
Id.
226
Id. at 3.
227
Id.
228
Id.
229
Id. at 5.
230
Id.
60
The Court finds that it is unclear whether anti-SLAPP laws apply only to
District of Columbia and California speech depending on the facts of the case. The
Court declines to resolve this issue at this time based on a limited record. Thus,
there is no basis for awarding attorneys’ fees to API.
API – Delaware Consumer Fraud Act
API argues that the First Amendment protects API’s speech and the State’s
Delaware Consumer Fraud Act claim does not apply. API contends that their
speech is protected noncommercial speech.231 API argues that the State cannot
demonstrate any compelling state interest. API’s noncommercial speech does not
contain content-based discrimination.
The State alleges that three statements show a connection between API’s
speech and a commercial interest:
(1) API’s “Power Past Impossible” campaign told Americans
that the petroleum industry could help them live better lives—a
public statement about community well-being;
(2) API’s internet messaging described “5 Ways We’re Helping
to Cut Emissions” and “4 Ways We’re Protecting Wildlife—a
public commentary on health or safety and the environment;
and
(3) API made statements on Facebook that the oil and gas
industry has reduced emissions and can tackle climate change
and meet the world’s energy needs by embracing new
231
Def. American petroleum Institute’s Motion to Strike and/or Dismiss the Complaint Under
the District of Columbia’s Anti-SLAPP Statute at 10.
61
innovations together—a public expression about environmental
and societal issues.232
API argues that their statements do not constitute commercial speech. API
only made those statements, exercising its rights of advocacy on issues of public
interest.233 Because API does not produce or sell any fossil fuel, API’s purpose was
to comment on matters of public significance.234
The U.S. Supreme court has ruled:
We have made clear that advertising which “links a product to a
current public debate” is not thereby entitled to the
constitutional protection afforded noncommercial speech . . .
Advertisers should not be permitted to immunize false or
misleading product information from government regulation
simply by including references to public issues.235
The State argues that API used deceptive campaigns by means of
“greenwashing” to mislead the general public about hazards of fossil fuel
consumption and purposefully spreading deceptive information about the dangers
of fossil fuel.236 The claim does not violate the First Amendment because API’s
speech constitutes commercial speech. API’s advertisements are false and
misleading messages with the goal to increase the sale of fossil fuel products,
232
Id. at 6–7.
233
Id. at 7.
234
Id.
235
Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60, 68 (1983).
236
Pl. Answering Brief in Opposition to Def. American Petroleum Institute’s Motion to Strike
and/or Dismiss the Complaint Under the District of Columbia’s Anti-SLAPP Statute at 21.
62
which would not be entitled to constitutional protection afforded to noncommercial
speech.237
This Court finds that there is a difference between misrepresentation and
puffery. However, the determination of whether “statements are actionable
misrepresentations or inactionable puffery is not appropriate at a motion to dismiss
stage.”238 The issue of commercial speech, as opposed to misleading statements,
involves a fact-intensive analysis. It is inappropriate for resolution on this motion
to dismiss.
TotalEnergies – Motion to Dismiss
TotalEnergies SE (“TotalEnergies”) argues that TotalEnergies should be
dismissed from the suit for three reasons:
First, Plaintiff fails to allege sufficient facts upon which this
Court may exercise personal jurisdiction over TotalEnergies.
Nor can it because TotalEnergies does not engage in any
persistent course of conduct in Delaware, either on its own,
through its indirect Delaware subsidiary, TotalEnergies
Marketing USA, Inc. (“TEMUSA”), or through any alleged co-
conspirators. Second, the exercise of personal jurisdiction over
TotalEnergies, a foreign corporation based in France, would
offend constitutional due process. Lastly, Plaintiff failed to
make effective service on TotalEnergies, which is a threshold
jurisdictional requirement.239
237
Id. at 24 – 25 (quoting Bolger, 463 U.S. at 68 (1983)).
238
See Commonwealth v. Exxon Mobil Corp., 2021 WL 3493456, at *13 (Mass. Super. 2021);
see also NPS, LLC v. Ambac Assur. Corp., 706 F. Supp. 2d 162, 172 (D. Mass. 2010) (“Courts
vary in their conclusion of just where the line between misrepresentation and puffery lies, and
often the determination is highly fact-specific.”).
239
Def. TotalEnergies SE’s Motion to Dismiss at 1.
63
TotalEnergies alleges that it has no Delaware contacts. TotalEnergies is a
French energy conglomerate, with its headquarters in Courbevoie, France.240
TotalEnergies maintains no offices in Delaware, owns no property in Delaware,
and makes no purposeful attempts to solicit or do business in Delaware.241
TotalEnergies alleges that the State cannot show that Delaware has
jurisdiction over TotalEnergies under its long-arm statute.242 The State has not pled
any facts that demonstrate TotalEnergies had continuous or substantial contacts
with Delaware. 243
Section 3104(e) of title X of the Delaware Code provides:
Proof of service outside this State may be made by affidavit of
the individual who made the service or in the manner provided
or prescribed by the law of this State, the order pursuant to
which the service is made, or the law of the place in which the
service is made for proof of service in an action in any of its
courts of general jurisdiction. When service is made by mail,
proof of service shall include a receipt signed by the addressee
or other evidence of personal delivery to the addressee
satisfactory to the court.244
TotalEnergies also argues that the State failed to meet the jurisdictional
requirement for proper service of process.245 Totalenergies argues that the State’s
240
Id. at 6.
241
Id.
242
Id. at 5.
243
Id.
244
Del. Code Ann. Tit. 10, § 3104(e).
245
Id. at 17.
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proof of service did not include a receipt signed by TotalEnergies, and there is no
evidence of personal delivery to any addressee.246
This Court finds that TotalEnergies must be dismissed for failure to be
served with process.
CONCLUSION
This Court finds that claims in this case seeking damages for injuries
resulting from out-of-state or global greenhouse emissions and interstate pollution,
are pre-empted by the CAA. Thus, these claims are beyond the limits of Delaware
common law.
This Court finds that the CAA does not pre-empt state law regulation of
alleged claims and damages resulting from air pollution originating from sources in
Delaware. Air pollution prevention and control at the source is the primary
responsibility of state and local governments.
This Court finds that the political question doctrine rarely, if ever, is applied
to justify judicial abstention in Delaware. The Court finds that there is no reason to
apply the doctrine in this case. Delaware courts have considered similar cases in the
environmental context, or involving public nuisance product claims, without
deferring on the basis of a nonjusticiable political question.
246
Def. TotalEnergies SE’s Motion to Dismiss at 18.
65
This Court finds that Monsanto controls. At this stage in the proceedings, the
State has stated a general claim for environmental-based public nuisance and
trespass for land the State owns directly, but not for land the State holds in public
trust. Control of the product at the time of alleged nuisance or trespass is not an
element of a nuisance claim. The State is alleging environmental harms causing
damage to the public. However, unlike contamination of land and water in
Monsanto, damages caused by air pollution limited to State-owned property may be
difficult to isolate and measure. Nevertheless, that is an issue to be addressed at a
later stage of the case. This should not be a reason to grant dismissal of nuisance and
trespass claims at this time.
This Court finds that the State has failed to specifically identify alleged
misrepresentations for each individual defendant. All claims alleging
misrepresentations, including “greenwashing”, must be dismissed, with leave to
amend with particularity, pursuant to Rule 9(b).
The Court finds that the State has stated a claim for failure to warn. The State
has alleged that Defendants knew that their products were endangering the
environment, and harming their consumers and the State of Delaware (a valid
bystander). However, the question of whether the danger was open and obvious is
not appropriate for resolution at the dismissal stage.
This Court finds that the DCFA claims are barred by the five-year statute of
limitations. Tolling does not apply.
66
The Court finds that there must be a connection between Delaware-specific
conduct and the alleged harm. There is no need to prove geo-located causation.247
However, there must be a relationship between Delaware activities and the cause
of action and alleged damages. Advertising, selling products, operating gas
stations, and/or operating a refinery in Delaware are connections sufficient to
survive dismissal. The State has alleged relationships for the six moving
Defendants, sufficient to demonstrate specific personal jurisdiction. 248
This Court declines to resolve the Anti-SLAPP issue at this time based on a
limited record. Thus, there is no basis for awarding attorneys’ fees to API.
This Court finds that there is a difference between misrepresentation and
puffery. The issue of commercial speech, as opposed to misleading statements,
involves a fact-intensive analysis. It is inappropriate for resolution on this motion to
dismiss.
This Court finds that TotalEnergies must be dismissed for failure to be served
with process.
THEREFORE, Defendants’ Joint Motion to Dismiss Plaintiff’s Complaint
for Failure to State a Claim is hereby GRANTED IN PART AND DENIED IN
PART.
247
Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021).
248
See City and County of Honolulu v. Sunoco LP, 2023 WL 7151875, at *16 (Haw.).
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Certain Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction is
hereby DENIED.
BP Defendants’ Motion to Dismiss the Complaint for Failure to State a
Claim Based Upon Misrepresentation is hereby GRANTED, WITH LEAVE TO
AMEND WITH PARTICULARITY.
Marathon Defendants’ Motion to Dismiss for Failure to State a Claim
Sounding in Fraud is hereby GRANTED, WITH LEAVE TO AMEND WITH
PARTICULARITY.
American Petroleum Institute’s Individual Merits Motion to Dismiss is
hereby GRANTED IN PART AND DENIED IN PART.
Hess Corporation’s Supplemental Motion to Partially Dismiss for Failure to
State a Claim on Statute of Limitations Ground (DCFA) is hereby GRANTED.
TotalEnergies SE’s Motion to Dismiss for Lack of Personal Jurisdiction and
Insufficient Service of Process is hereby GRANTED ON THE BASIS OF
INSUFFICIENT SERVICE OF PROCESS.
Apache Corporation’s Motion to Dismiss for Failure to State a Claim is
hereby GRANTED IN PART AND DENIED IN PART.
CITGO Petroleum Corporation and Murphy USA Inc.’s Joint Motion to
Dismiss for Failure to State a Claim is hereby GRANTED IN PART WITH
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LEAVE TO AMEND WITH PARTICULARITY, DENIED AS TO DUTY TO
WARN.
CNX Resources Corporation’s Motion to Dismiss for Failure to State a
Claim Based Upon Misrepresentation is hereby GRANTED IN PART WITH
LEAVE TO AMEND WITH PARTICULARITY, DENIED AS TO DUTY TO
WARN.
Marathon Oil Corporation’s Motion to Dismiss is hereby GRANTED IN
PART AND DENIED IN PART.
CONSOL Energy Inc.’s Motion to Dismiss for Failure to State a Claim is
hereby GRANTED IN PART WITH LEAVE TO AMEND WITH
PARTICULARITY, DENIED AS TO DUTY TO WARN.
Chevron Defendants’ Anti-SLAPP Special Motion to Dismiss is hereby
DENIED.
American Petroleum Institute’s Motion to Strike and/or Dismiss the
Complaint Under the District of Columbia’s Anti-SLAPP Statute is hereby
DENIED.
IT IS SO ORDERED.
/s/ Mary M. Johnston
The Honorable Mary M. Johnston
69