This article explores subnational climate litigation by analyzing Bucks County v. Exxon Mobil Corp. et al., filed in the Court of Common Pleas of Bucks County, Pennsylvania, last year. This case is part of a wave of similar litigation in state courts against some of the world’s largest oil and gas companies seeking redress for climate change harms allegedly caused by their operations. This article highlights two familiar issues that the Bucks County litigation will likely face, suggests the way forward based on prior litigation outcomes, and notes an emerging cause of action founded on state constitutional grounds that can complement tort litigation for subnational climate litigation.
In the complaint[SS1] [AG2] , Bucks County claims that each defendant funded, staffed, organized, and otherwise supported efforts to deceive the public and consumers––in and outside Bucks County––about the role of fossil fuel in causing the global climate crisis. Bucks further claims that while the defendants have promoted and profited from their deceptive conduct, the county and its residents have spent, and will continue to spend, substantial sums to recover from the effects of climate change all felt throughout the county. Bucks brought this action to hold corporations accountable under the common law claims of strict product liability, negligent product liability, negligence, public nuisance, private nuisance, trespass, and civil conspiracy.
While the Bucks County litigation may be the first in Pennsylvania, it is only part of a wave of similar subnational litigation in the United States against oil companies hinged on deceptive conduct. Several municipal governments in California, Colorado, Hawaii, Illinois, Maryland, New Jersey, New York, Oregon, South Carolina, Puerto Rico, and eight states and Washington, D.C., have filed suit in recent years against oil and gas companies over their role in climate change, according to the Center for Climate Integrity. The origin of this “deceptive conduct” strategy can be most recently traced to United States v. Philip Morris, 449 F. Supp. 2d 1 (D.D.C. 2006), which Bucks County expressly referenced in the complaint. Municipal governments are also suing the plastic industry for deception regarding the recyclability of plastics. In what is also considered a first of its kind, a gas utility company has also been sued by Multnomah County for deceptive conduct about its product’s role in the climate crisis.
The defendants will likely present two arguments to stop the case from being determined on the merits. The first argument is that the court lacks general personal jurisdiction over those defendants whose principal places of business are not in Pennsylvania; the second is the argument that a case of this nature belongs in the federal court. Both issues can end the Bucks County case prematurely in the present court. However, both hurdles have been raised and surmounted in previous litigation, so there are lessons to be learned from them.
On the first issue, a state court has jurisdiction if a defendant has minimum contact with the state such that a suit does not offend traditional notions of fair play and substantial justice, as established in International Shoe Company v. Washington 326 U.S 310, 316 (1945). According to the Pennsylvania Statute, 42 Pa. C.S. section 5301, carrying on a continuous and systematic part of its general business within Pennsylvania by a corporation constitutes a sufficient basis of jurisdiction. In Mallory v. Norfolk Southern Railway Co., the U.S Supreme Court, in a 2023 narrow 5-4 decision, rejected a challenge to the constitutionality of the Pennsylvania law that allows any company doing business in the state to be sued there––even if the corporation is not headquartered in Pennsylvania, and where the conduct at the center of the lawsuit occurred somewhere else. Bucks County must simply establish that the defendants have conducted a continuous and systematic part of their general business in Pennsylvania to overcome this argument. More importantly, history is not on the defendants’ side regarding personal jurisdiction arguments in state courts, as judges have routinely shut them down at every level of the justice system. Bucks County gets a green light on this prong.
The next issue is the proper venue for the suit—federal or state court? Gleaning through prior cases, Bucks County seems to be in great company. Oil companies have long sought to move such cases to federal court, believing national regulations such as the Clean Air Act could supersede local governments’ claims against them. However, a string of circuit court and U.S. Supreme Court decisions have ruled that cases alleging violations of state laws belong in state court, finally clearing the way for jury trials. In the past year, the Supreme Court has issued denials covering eight cases, rejecting oil companies’ attempts to move them to federal court. The decisions, which upheld lower court rulings, will finally allow cases to proceed in state court after years of delays over the “venue” question. Two of those lawsuits, filed by the state of Massachusetts and the city of Honolulu, have moved past oil companies’ motions for dismissal and reached the pretrial discovery phase, during which both sides exchange information about the evidence they could present in court. Bucks County also gets a green light on this prong because it only needs to allege that its claims violate state laws, which it has clearly done in the complaint.
For the future of subnational climate litigation generally, the recent decision in Held v. Montana No. CDV-2020-307 (Mont. Dist. Ct. Aug. 14, 2023) shows that constitutional environmental claims are a very viable complement to litigation raising tort-based claims in the fight for climate accountability, at least in states where a constitutional right to a safe or clean environment exists. The court in Held has shown that state constitutional environmental claims (i.e., claims founded on provisions in state constitutions regarding the environment) can address global issues like climate change—a groundbreaking expansion of the powers of state and local actions. More Held-style actions are expected to emerge at the subnational level to complement the tort actions based on deceptive practices moving forward.
