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.”

Bucks County, Pennsylvania filed a lawsuit in the Pennsylvania Court of Common Pleas against fossil fuel companies and American Petroleum Institute alleging that the defendants had engaged in a “disinformation campaign to discredit the scientific consensus on climate” despite having known since at least the 1950s that fossil fuels’ production of greenhouse gas emissions could have “catastrophic consequences for the planet and its people.” The County alleged that while undertaking this campaign, the defendants took actions to protect their own investments from climate change impacts. The County further alleged that the defendants’ promotion of fossil fuel use and concealment of fossil fuels’ connection to climate change—which the County described as “straight out of the advertising playbook of Big Tobacco”— “delay[ed] meaningful development of alternative energy sources and exacerbate[ed] the costs of adapting to and mitigating the adverse impacts of the climate crisis, including the climate crisis in Bucks County.” The County alleged that the adverse impacts included more frequent and intense storms, flooding, storm surge, rising waters in the tidal Delaware and Schuylkill Rivers, saltwater intrusion, droughts, and extreme heat events. The County said it had incurred and would continue to incur substantial costs for actions to adapt to climate change, including for new and upgraded infrastructure to withstand the impacts, increased maintenance and emergency operations, and provision of services such as cooling centers. The County asserted causes of action for strict products liability—failure to warn, negligent products liability—failure to warn, negligence, public nuisance, private nuisance, trespass, and civil conspiracy. The relief sought by the County included compensatory and punitive damages, equitable relief, disgorgement of profits, costs including attorney fees, and pre-judgment interest.