Delaware fights to keep climate change suit in state court | Delaware First Media
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Delaware fights to keep climate change suit in state court

Feb 18, 2021

The State of Delaware is fighting to keep its suit against fossil fuel companies over climate change in state court. 

  

Delaware’s suit filed in state Superior Court in September claims the companies’ products caused or accelerated climate change, endangering thousands of Delaware residents, threatening the state’s agriculture sector and jeopardizing over a billion dollars in property value. The suit also claims the companies knew or should have known the dangers of their products, and have misled the public for decades.

Last year the fossil fuel companies moved the case from state to federal court—where they want to see it tossed out.

But Delaware justice officials brought charges against the companies under the state Consumer Fraud Act. They’re pushing to have the case returned to state court. 

University of Delaware sociology professor and former attorney Monica Sanders says the state is more likely to actually see money damages if it pursues the case in state court. 

“You might have a better chance of getting a judgement and having that judgement actually be paid, as opposed to being appealed ad nauseum,” Sanders said. 

Sanders says she disagrees with the state that none of the claims in the lawsuit could be heard in federal court—but says Delaware’s standing under state law is clear.

Delaware will likely succeed in getting the case remanded to state court, says Pat Parenteau, a professor at Vermont Law School involved with its Environmental Advocacy Clinic. 

“The defendant oil companies are arguing multiple potential grounds for federal involvement, none of which have been accepted by any of the courts that have so far looked at the question,” Parenteau said. “I don’t expect there to be any change in the Delaware case.”

The state filed a brief in support of its motion to remand the case last month. The brief attempts to refute seven grounds for removal that the defendants have argued. 

Parenteau says the only argument by the defendants that may hold water is a claim that the federal Clean Air Act preempts any state claims for damages based on climate change. 

“All the others are frivolous—the involvement of a federal officer, the fact that some of this activity was leased under the Outer Continental Shelf Lands Act—it's a laundry list of seven different things,” Parenteau said. “It’s throwing spaghetti at a wall and hoping something sticks. And I don’t think any of the seven sticks, with the one expectation of the federal pre-emption question. And that is going to have to be decided.”

Delaware’s January brief argues the preemption point provides no basis for moving the case to federal court. 

“The Clean Air Act does not create an exclusive federal cause of action that wholly displaces state law, much less one that would allow the State to vindicate the rights and interests at issue in this litigation,” the brief states. “Nor can Defendants premise removal on the foreign affairs doctrine, as that ordinary preemption defense is wholly distinct from the jurisdictional doctrine of complete preemption.”

Delaware’s suit is one of many similar suits filed by states and municipalities across the country. The US Supreme Court recently heard arguments related to the state-versus-federal question in Baltimore’s case—but has not yet issued a decision. 

Several of the other suits have been remanded to state court.