Bucks County v. BP p.l.c.

The Pennsylvania Court of Common Pleas ruled that the Clean Air Act preempted Bucks County’s climate change tort claims against fossil fuel companies and dismissed the County’s lawsuit with prejudice. As a threshold matter, the court rejected the companies’ argument that the County did not have capacity to sue because the County Commissioners violated Pennsylvania’s Sunshine Act by not approving the filing of the lawsuit in an open meeting. The court found that the Commissioner’s use of a “consent agenda” item to authorize the lawsuit complied with the letter of the law, though the court said it believed the Commissioners violated the “spirit” of the Sunshine Act by “burying the resolution to retain current counsel and pursue this lawsuit” within the consent agenda, particularly because the Commissioners’ subsequent characterization of the lawsuit as “historic” and “momentous” was at odds with the use of the consent agenda for “routine or non-controversial” items not expected to require more discussion. Also as a threshold matter, the court found that it had personal jurisdiction over all defendants, even those not registered to do business in Pennsylvania. The court concluded, however, that it did not have subject matter over the case because the County “is truly seeking redress for harm caused by climate change, a global phenomenon caused by the emission of greenhouse gases in every nation in the world,” even though the County argued that its claims sought damages from the defendants’ alleged “deceptive marking campaign.” The court concluded that the U.S. Supreme Court’s decision in American Electric Power Co. v. Connecticut that the Clean Air Act displaced any federal common law right to seek abatement of greenhouse gas emissions from power plants also applied in this case to displace “any Pennsylvania common law right to seek abatement of greenhouse gas emissions from fossil fuel production companies.”

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