(Article from Climate Change Alert, February 2025)
The following cases have been decided in fossil fuel companies’ favor at the motion to dismiss stage, including on the preemption grounds.
City of New York v. BP p.l.c., No. 18-2188 (2d Cir.)
On January 9, 2018, New York City commenced one of the earliest suits in the present climate change line of cases. Filed in the Southern District of New York, the suit sound climate-change related damages from five of the largest fossil fuel companies. New York City alleged that Defendants were responsible for over 11% of all carbon and methane pollution from industrial sources since the Industrial Revolution. The City asserted state law causes of action for public and private nuisance as well as illegal trespass on City property. Critically, the City did not seek to hold the Defendants liable for the effects of emissions released in New York and sought damages, instead, for the cumulative impact of conduct occurring simultaneously across just about every jurisdiction on the planet.
On July 19, 2018, the Court granted Defendants’ motion to dismiss the Complaint, explaining that federal common law governed the City’s claims because the claims were “ultimately based on the ‘transboundary’ emission of greenhouse gas emissions” and required a uniform standard of decision. The Court rejected the City’s argument as to the fact that the City’s claims were not governed by federal common law because the City based liability on Defendants’ production and sale of fossil fuels, not Defendants’ direct emissions of greenhouse gases. The Court emphasized that regardless as to the manner in which the City framed its claims, it was clear that the City sought damages for global-warming related injuries resulting from greenhouse gas emissions—which is explicitly governed by federal common law. Further, the Court explained that to the extent the City brings nuisance and trespass claims against Defendants for domestic greenhouse gas emissions, the Clean Air Act displaces any federal common law claims because Congress has expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emissions. As such, the Court rejected the City’s argument that if the Clean Air Act displaced the federal common law claims, state law claims should become available, noting that such an argument is “illogical.” In short, in dismissing the suit, the Court held that litigating an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon matters “within the purview of the political branches.” The Court reiterated the Supreme Court’s holding in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1399 (2018) which noted that when an action may have significant and foreign implications, “recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”
On April 2, 20212021, the United States Court of Appeals for the Second Circuit affirmed the New York District Court’s dismissal in City of NY v. Chevron Corp., 993 F. 3d 81 (2d. Cir. 2021). The appellate court agreed with all three grounds of decision articulated by the district court, echoing the “need for judicial caution in the face of delicate foreign policy considerations.”
Mayor & City of Baltimore v. BP p.l.c., No. 24-C-18-004219 (Md. Cir. Ct.)
On July 20, 2018, the Mayor and City Council of Baltimore filed suit in the Circuit Court for Baltimore City against fossil fuel entities, alleging that Defendants have known for years that unrestricted production of fossil fuel products creates greenhouse gas pollution that warms the planet and changes the climate. The City sought to recover under state law theories of public and private nuisance, products liability, trespass, and violations of a state consumer protection statute.
As in the New York City suit, Defendants moved to dismiss the City’s Complaint, arguing that the City’s claims are preempted by federal common law and the City’s state law claims are preempted by the Clean Air Act because they raise non-justiciable political questions.
On July 10, 2024, the Court granted Defendants’ Motions to Dismiss, finding that the City’s claims involving deceptive promotion and marketing were simply “artful pleading.” Notably, the Court explained that Plaintiffs’ claims against the fossil fuel companies were largely preempted, emphasizing that “Baltimore’s complaint is entirely about addressing the injuries of global climate change and seeking damages for such alleged injuries.” As such, the Court explained that since the City sought damages for alleged harms involving interstate and international emissions, those claims cannot be governed by state law because global pollution-based complaints were never intended by Congress to be handled by individual states, noting that federal law governs disputes involving air and water in their ambient state. As to the Clean Air Act and preemption, the Court explained that the Clean Air Act speaks directly to the domestic emissions at issue in the case, which displace the City’s state and federal common law claims. In dismissing the City’s Complaint, the Court explained “that [the City’s effort] to address and hold Defendants accountable for a deceptive misinformation campaign is simply a way to get in the back door what they cannot get in the front door.” The Court dismissed the City’s Complaint in its entirety, including both state and federal causes of action.
Thereafter, on August 8, 2024, the City of Baltimore filed a Notice of Appeal to the Appellate Court of Maryland. The appeal is currently underway.
Delaware v. BP America Inc., No. N20C-09-097 (Del. Super. Ct.)
On September 10, 2020, the State of Delaware and the Delaware Attorney General filed a lawsuit against a number of fossil fuel entities. Delaware sought relief under theories of products liability, nuisance, trespass, and Delaware-specific consumer protection statutes.
On May 18, 2023, Defendants moved to dismiss. On January 9, 2024, the Court granted in part and denied in part, holding that the state common law claims that sought damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution were preempted by the Clean Air Act. In the Court’s view abatement of greenhouse gas emissions are “uniquely federal interests” such that state law is preempted and replaced.” The Court found that the Clean Air Act did not preempt all the claims at issue, however, and distinguished claims related to air pollution originating from sources within Delaware as not preempted. Nonetheless, the Court dismissed even Delaware-specific allegations upon concluding that Delaware “failed to specifically identify [] misrepresentations for each individual defendant” and dismissed all claims regarding the alleged misrepresentations. Additionally, the Court found that Delaware sufficiently set forth a claim for failure to warn but declined to resolve the anti-SLAPP issues at the Motion to Dismiss stage based on such a limited record.
Delaware now seeks an order of partial judgment to permit it to take an immediate appeal on the preemption question. The Motion for Partial Judgment was fully briefed as of December 9, 2024, which is currently under the Court’s consideration.