HARRISBURG - As the oil industry urges a Pennsylvania judge to toss a climate change lawsuit that Bucks County hopes will provide money for updates, one Pennsylvania lawmaker wants to commission a study on the costs associated with global warming.
Cases blaming companies like Exxon, Chevron and BP are failing in states around Pennsylvania as judges refuse to use the power of state courts to essentially regulate the global energy market. Should a court actually rule against Big Oil, it would be forced to determine the amount of damages required to update infrastructure in places ranging from Rhode Island to Hawaii - and provide a jackpot for private lawyers who scored government, contingency-fee contracts.
Rep. Joe Webster, D-Montgomery County, earlier this year introduced H.R. 90 to study the costs of heavy precipitation, flooding and extreme temperatures. On Feb. 25, it was referred to the House Environmental & Natural Resource Protection Committee.
The bill would order the Joint State Government Commission to study adaptation and resilience measures in Pennsylvania.
"This study would also include analyses of the impact of climate change on the natural, built and social environments of Pennsylvania, and on the public health and well-being of Pennsylvanians," he wrote in a memo.
"Through the use of climate modeling tools and cooperation with stakeholders, this study will provide the General Assembly with the information needed to combat the climate crisis through to the end of the century."
The anti-climate litigation group Energy in Depth pointed out that a similar study was conducted in Boulder, Colo., and the figures were used when that city filed its climate change case years ago.
The Center for Climate Integrity was one of the groups organizing that study and pushing litigation. In July 2023, it published its own report on costs in Pennsylvania, claiming municipalities will spend more than $15 billion by 2040.
Should that happen, the money will need to come from somewhere. Litigation against Big Oil could provide it, but those cases don't seem promising.
In fact, defendants have sprinkled the Bucks County docket with decisions in other states rejecting them, in an effort to remind Judge Stephen Corr that other judges are hesitant to advance them past an opening motion to dismiss.
Corr is holding a hearing on the defendants' arguments on March 24. There, defendants will note that five judges have already thrown the cases out after a lengthy battle over whether they should be heard in federal or state courts.
The most recent came Feb. 5, when Mercer County Superior Court Judge Douglas Hurd threw out New Jersey's lawsuit.
Hurd joined two state judges in Maryland, one in Delaware and one in New York in dismissing this type of case. His is the third dismissal since the U.S. Supreme Court declined to take up the issue, which kept Honolulu's case going past the motion-to-dismiss stage.
The cases, dozens of which have been filed around the country, allege consumers would not have burned as many fossil fuels as they did had companies been more forthright about their effects.
Judge Videtta Brown of Baltimore said the litigation goes beyond the limits of Maryland law, or whatever states other cases are filed in. Most municipalities and states that have filed suit are near oceans.
Brown said the U.S. Constitution's structure does not allow state-law claims like those put forth by the City, which, like others, wants money for infrastructure projects to address climate change.
"The explanation by Baltimore that it only seeks 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," she wrote.
In the Bucks County case, defendants have noted one of the county's own commissioners has renounced the case. They also claim the county skipped the step of approving litigation in a public meeting.
While it is normal for county commissioners to discuss litigation matters in closed special sessions, the companies say, Pennsylvania law requires them to approve any “official action” by majority vote in an open meeting.
“The County’s public records demonstrate that Bucks County lacked capacity to file this action because the Commissioners never deliberated or voted to file suit at an open public meeting,” the oil companies argued in an Aug. 5 brief.
Bucks County is represented by DiCello Levitt, which represents Michigan in its PFAS litigation. The firm also tried to build a business around representing communities suing to collect taxes on streaming video services, but most of those cases have been dismissed.
Bucks County Commissioner Bob Harvie, in a March 25 news release, boasted his was the first county in Pennsylvania to take on “Big Oil” with a climate lawsuit. The county also sued 3M, Du Pont and other PFAS manufacturers in 2022, hiring Baron & Budd, Cossich Sumich Parsiola & Taylor, and Dilworth Paxson on a contingency-fee basis.
Bucks County commissioners voted on Jan. 17 to hire DiCello Levitt on a 25% contingency basis “to evaluate and litigate potential environmental claims.” The defendant companies say that notice in the meeting minutes wasn’t enough to comply with Pennsylvania’s Sunshine Act, which requires a public meeting to authorize the actual lawsuit.
When Gene DiGirolamo withdrew his support for the lawsuit at an April 3 public meeting, the companies said, he didn’t refer back to the Jan. 17 action but to the county’s announcement it had filed suit on March 25. There was no public meeting in which the commissioners debated the lawsuit before it was filed, the companies say.