State v. BP America Inc.

On July 28, 2025, the State of Delaware filed an amended complaint in its lawsuit seeking to impose liability on fossil fuel industry defendants for climate change-related harms in Delaware attributable to the defendants’ “successful climate deception campaign.” The amended complaint added allegations regarding the defendants’ contacts with the State as well as new allegations about the defendants’ knowledge of the climate change risks posed by their products and their alleged concealment of those harms from the public, including allegations of more recent greenwashing campaigns. The amended complaint also included additional allegations regarding harmful climate change impacts in Delaware. The complaint added new allegations to its existing causes of action for negligence, trespass, nuisance, and violation of the Delaware Consumer Fraud Act, as well as a new cause of action for civil conspiracy.

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The Delaware trial court hearing the State of Delaware’s climate change case against fossil fuel industry defendants denied the State’s application for interlocutory review by the Delaware Supreme Court of the trial court’s January 2024 decision narrowing the scope of the State’s claims. The trial court found that although its decision had determined “substantial issues of material importance,” the “likely benefits of interlocutory review do not outweigh the inefficiency, disruption, and probable costs.” The trial court said “[r]eliance on well-established federal precedent” and application of a recent Delaware Supreme Court decision (on nuisance) did not warrant interlocutory review as of right. The court also found that its opinion did not conflict with decisions of other Delaware trial courts and that interlocutory appeal “clearly will not terminate the litigation.”

The court denied five defendants’ motion for reargument or for clarification and/or limited reconsideration related to Delaware’s failure to warn claim. The court rejected arguments that the claim required Delaware to allege that each individual defendant had “specific” or “special” knowledge regarding the products’ alleged dangers or to plead specific marketing efforts to Delaware consumers.

On January 19, 2024, the State of Delaware filed an application for certification of interlocutory appeal to the Delaware Supreme Court from the Superior Court’s dismissal and narrowing of the State’s claims. The application identified five issues that the State argued would warrant interlocutory review: (1) whether the Clean Air Act preempts claims seeking relief for harms involving out-of-state emissions; (2) whether Delaware Supreme Court precedent limits the State’s public nuisance claim to harms to State-owned lands; (3) whether the statute of limitations bars claims under the Delaware Consumer Fraud Act; (4) whether the particularity requirement of Delaware’s civil procedure rules requires dismissal of the State’s claims alleging misrepresentations; and (5) whether claims against one of the defendants should be dismissed for insufficient service of process. The State also argued that interlocutory review was warranted because the Superior Court’s decision resolved “several important questions of first impression,” including the preemptive scope of the Clean Air Act, and that the decision regarding the particularity requirement conflicted with case law. In addition, the State argued that interlocutory review would “serve ‘considerations of justice’ and advance judicial economy.”

In the State of Delaware’s case alleging that fossil fuel industry defendants concealed the climate change risks of their products, leading to climate change harms to the State, the Delaware Superior Court granted in part and denied in part the 14 motions to dismiss filed by the defendants. The court first held that the Clean Air Act preempted Delaware’s state common law claims that sought “damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution” but not claims and damages originating from air pollution sources in Delaware. The court further found that Delaware stated claims for public nuisance and trespass only “for land the State owns directly, but not for land the State holds in public trust.” The court acknowledged that “damages caused by air pollution limited to State-owned property may be difficult to isolate and measure” but deferred that issue to a later stage of the case. The court also allowed the State to proceed with its claim that the defendants failed to warn of the climate change dangers of their products. The court found that the question of whether there was no duty to warn because the dangers were open and obvious was not appropriate for resolution at this stage. The court also concluded that the case did not present a nonjusticiable political question and found the State alleged sufficient connections to Delaware activities to demonstrate specific personal jurisdiction over individual defendants who contested personal jurisdiction. The court declined to resolve the issues of whether D.C. and California anti-SLAPP (Strategic Litigation Against Public Participation) laws applied only to D.C. and California speech and whether the First Amendment protected statements made by American Petroleum Institute. The court dismissed claims alleging greenwashing and other misrepresentations against certain individual defendants because the State did not “specifically identify alleged misrepresentations for each individual defendant” but granted Delaware leave to amend the misrepresentation claims with particularity. The court dismissed claims under the Delaware Consumer Fraud Act as barred by the statute of limitations, finding that the defendants provided unrefuted evidence that the public had knowledge of or access to information about the defendants’ alleged “campaign of deception” decades before the five-year statute of limitations period expired. The court also dismissed the French energy company TotalEnergies SE for failure to serve with process.

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American Petroleum Institute filed a motion to strike and/or dismiss the complaint under the District of Columbia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.

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Seven defendants that are not incorporated in Delaware filed a motion to dismiss for lack of personal jurisdiction.

The defendants jointly filed a motion to dismiss for failure to state a claim. In their joint brief, they first argued that state law could not constitutionally apply to a dispute involving global climate change, and that even if state law could apply, the Clean Air Act preempted Delaware’s claims. They also argued that Delaware’s claims were nonjusticiable under the political question doctrine; that the complaint failed to allege essential elements of Delaware’s claims; and that the allegations did not meet the heightened pleading standard for claims premised on alleged fraudulent statements. Individual defendants or groups of defendants filed supplemental briefs in support of their own motions for dismissal for failure to state a claim in which they argued that there were pleading deficiencies specific to them (e.g., failures to allege misrepresentations by a particular defendant about its products’ relationship to climate change).

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The Chevron defendants filed a special motion to dismiss the complaint under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.

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