Delaware judge limits scope of sweeping climate change lawsuit against fossil fuel companies

DOVER, Del. — A judge has rejected several claims lodged by Delaware’s attorney general in a lawsuit alleging that the fossil fuel industry has downplayed the risks of climate change. Tuesday’s ruling significantly narrows the scope of the suit seeking to hold the industry liable for the effects of air pollution in the state.

Democratic Attorney General Kathleen Jennings filed the lawsuit in 2020, joining forces with a California law firm that has sued the oil industry on behalf of other state and local governments.

While refusing to dismiss come claims, Superior Court Judge Mary Johnston ruled, for example, that the federal Clean Air Act preempts the state’s claims seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution.

However, Johnston noted that the Clean Air Act doesn’t preempt alleged claims and damages resulting from air pollution originating from sources within Delaware.

“Air pollution prevention and control at the source is the primary responsibility of state and local governments,” she wrote.

Theodore Boutrous Jr., an attorney representing Chevron Corp., said he was pleased that Johnston recognized that claims regarding out-of-state or global greenhouse emissions and interstate pollution are preempted by the Clean Air Act.

“The global challenge of climate change requires a coordinated international policy response, not a series of baseless state and local lawsuits,” Boutros said in a prepared statement.

The judge also said the state could pursue a general claim for environmental-based public nuisance and trespass for land that the state owns directly, but not for land the state holds “in public trust.”

That ruling cited a Delaware Supreme Court ruling last year in a lawsuit filed by Jennings against agricultural giant Monsanto over environmental damage from now-banned toxic chemicals known as PCBs.

“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,” the judge wrote. “Nevertheless, that is an issue to be addressed at a later stage of the case.”

Johnston also ruled that claims of “greenwashing” and misrepresentations by the defendants about fossil fuels’ effects on the climate must be dismissed, because the state failed to specifically identify alleged misrepresentations for each individual defendant. In dismissing the claims, the judge said she would give…