State of Delaware v. BP America Inc.

• Court: Superior Court of Delaware
• Decided: January 9, 2024
• Docket: N20C-09-097 MMJ CCLD
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ex rel. ) KATHLEEN JENNINGS, Attorney ) General of the State of Delaware, ) ) Plaintiff, ) ) v. ) C.A. No. N20C-09-097 MMJ CCLD ) BP AMERICA INC., BP P.L.C., ) CHEVRON CORPORATION, ) CHEVRON U.S.A. INC., ) CONOCOPHILLIPS, ) CONOCOPHILLIPS COMPANY, ) PHILLIPS 66, PHILLIPS 66 COMPANY, ) EXXON MOBIL CORPORATION, ) EXXONMOBIL OIL CORPORATION, ) XTO ENERGY INC., HESS ) CORPORATION, MARATHON OIL ) CORPORATION, MARATHON OIL ) COMPANY, MARATHON ) PETROLEUM CORPORATION, ) MARATHON PETROLEUM ) COMPANY LP, SPEEDWAY LLC, ) MURPHY OIL CORPORATION, ) MURPHY USA INC., ROYAL DUTCH ) SHELL PLC, SHELL OIL COMPANY, ) CITGO PETROLEUM CORPORATION, ) TOTAL S.A., TOTAL SPECIALITIES ) USA INC., OCCIDENTAL ) PETROLEUM CORPORATION, ) DEVON ENERGY CORPORATION, ) APACHE CORPORATION, CNX ) RESOURCES CORPORATION, ) CONSOL ENERGY INC., OVINTIV, ) INC., and AMERICAN PETROLEUM ) INSTITUTE, ) ) Defendants. )

1 Submitted: December 7, 2023/January 4, 2024 Decided: January 9, 2024

OPINION Christian Douglas Wright, Esq., Jameson A.L. Tweedie, Esq., Ralph K. Durstein III, Esq., Sawyer M. Traver, Esq., Deputy Attorneys General, Wilmington, DE, Victor M. Sher, Esq. (Argued), Matthew K. Edling, Esq. (Argued), Stephanie D. Biehl, Esq. (Argued), Sher Edling LLP, San Francisco, CA, Attorneys for Plaintiff State of Delaware David E. Wilks, Esq., Wilks Law, LLC, Wilmington, DE, Theodore J. Boutrous, Jr., Esq. (Argued), William E. Thomson, Esq., Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Andrea E. Neuman, Esq., Dunn & Crutcher LLP, New York, NY, Thomas G. Hungar, Esq., Dunn & Crutcher LLP, Washington, DC, Joshua D. Dick, Esq., Dunn & Crutcher LLP, San Francisco, CA, Attorneys for Defendants Chevron Corporation and Chevron U.S.A. Inc. Kenneth J. Nachbar, Esq., Alexandra M. Cumings, Esq., Morris Nichols Arsht & Tunnell, Wilmington, DE, Nathan P. Eimer, Esq., Pamela R. Hanebutt, Esq., Lisa S. Meyer, Esq., Eimer Stahl LLP, Chicago, IL, Robert E. Dunn, Esq. (Argued), Eimer Stahl LLP, San Jose, CA, Attorneys for Defendants CITGO Petroleum Corporation Colleen D. Shields, Esq., Patrick M. Brannigan, Esq., Eckert Seamans Cherin & Mellott, LLC, Wilmington, DE, Tristan L. Duncan, Esq., Daniel B. Rogers, Esq., William F. Northrip, Esq., Shook, Hady & Bacon L.L.P., Kansas City, MO, Attorneys for Defendant Murphy USA Inc. Kevin J. Mangan, Esq., Womble Bond Dickinson (US) LLP, Wilmington, DE, Jeremiah J. Anderson, Esq. (Argued), McGuireWoods LLP, Houston, TX, Kathryn M. Barber, Esq., McGuireWoods LLP, Richmond, VA, Attorneys for American Petroleum Institute Mackenzie M. Wrobel, Esq., Coleen W. Hill, Esq., Duane Morris LLP, Wilmington, DE, Michael F. Healy, Esq., Shook Hardy & Bacon LLP, San Francisco, CA, Michael L. Fox, Esq., Duane Morris LLP, San Francisco, CA, Attorneys for Defendant OVINTIV INC.

2 Daniel J. Brown, Esq., Alexandra M. Joyce, Esq., McCarter & English LLP, Wilmington, DE, Steven M. Bauer, Esq., Margaret A. Tough, Esq., Latham & Watkins LLP, San Francisco, CA, Jameson R. Jones, Esq., Daniel R. Brody, Esq., Bartlit Beck LLP, Denver, CO, Attorneys for Defendants ConocoPhillips and ConocoPhillips Company Daniel J. Brown, Esq., Alexandra M. Joyce, Esq., McCarter & English LLP, Wilmington, DE, Steven M. Bauer, Esq., Margaret A. Tough, Esq., Latham & Watkins LLP, San Francisco, CA, Attorneys for Defendants Phillip 66 and Phillips 66 Company Michael A. Barlow, Esq., Abrams & Bayliss LLP, Wilmington, DE, Robert P. Reznick, Esq. (Argued), Orrick, Herrington & Sutcliffe LLP, Washington, DC, James Stengel, Esq., Marc R. Shapiro, Esq., Orrick, Herrington & Sutcliffe LLP, New York, NY, Catherine Y. Lui, Esq., Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, Attorneys for Defendant Marathon Oil Corporation Robert W. Whetzel, Esq., Blake Rohrbacher, Esq., Alexandra M. Ewing, Esq., Richards, Layton & Finger, P.A., Wilmington, DE, Anna Rotman, Esq. (Argued), Kirkland & Ellis LLP, Houston, TX, Attorneys for Defendant TotalEnergies, SE Steven L. Caponi, Esq., Matthew B. Goeller, Esq., Megan E. O’Connor, Esq., K&L Gates LLP, Wilmington, DE, David C. Frederick, Esq., James M. Webster, III, Esq., Daniel S. Severson, Esq., Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C., Counsel for Shell plc (f/k/a Royal Dutch Shell plc) and Shell USA, Inc. (f/k/a Shell Oil Company) Catherine A. Gaul, Esq., Ashby & Geddes, Wilmington, DE, Nancy G. Milburn, Esq., Diana E. Reiter, Esq. (Argued), Arnold & Porter Kaye Scholer LLP, New York, NY, Jonathan W. Hughes, Esq., Arnold & Porter Kaye Scholer LLP, San Francisco, CA, John D. Lombardo, Esq., Arnold & Porter Kaye Scholer LLP, Los Angeles, CA, Attorneys for Defendants BP America Inc. and BP p.l.c. Jeffrey L. Moyer, Esq., Christine D. Haynes, Esq., Richards, Layton & Finger, P.A., Wilmington, DE, Kevin Orsini, Esq., Vanessa A. Lavely, Esq., Cravath, Swaine & Moore LLP, New York, NY, Attorneys for Defendant Occidental Petroleum Corporation Antoinette D. Hubbard, Esq., Stephanie A. Fox, Esq., Maron Marvel Bradley Anderson & Tardy LLC, Wilmington, DE, Shannon S. Broome, Esq., Ann Marie Mortimer, Esq., Hunton Andrews Kurth LLP, San Francisco, CA, Shawn Patrick Regan, Esq. (Argued), Hunton Andrews Kurth LLP, New York, NY, Attorneys for

3 Defendants Marathon Petroleum Corporation, Marathon Petroleum Company LP, and Speedway LLC Christian J. Singewald, Esq., White and Williams LLP, Wilmington, DE, Joy C. Fuhr, Esq., Brian D. Schmalzbach, Esq., W. Cole Geddy, Esq., McGuireWoods LLP, Richmond, VA, Attorneys for Defendant Devon Energy Corporation Paul D. Brown, Esq., Chipman Brown Cicero & Cole, LLP, Wilmington, DE, Tracy A. Roman, Esq. (Argued), Crowell & Moring LLP, Washington, DC, Honor R. Costello, Esq., Crowell & Moring LLP, New York, NY, Attorneys for Defendant CONSOL Energy Inc. Beth Moskow Schnoll, Esq., Ballard Spahr LLP, Wilmington, DE, Noel J. Francisco, Esq., David M. Morrell, Esq. (Argued), Jones Day, Washington, DC, David C. Kiernan, Esq., Jones Day, San Francisco, CA, Attorneys or Defendant CNX Resources Corp. Daniel A. Mason, Esq., Matthew D. Stachel, Esq., Paul, Weiss, Rifkind, Wharton & Garrison LLP, Wilmington, DE, Theodore V. Wells, Jr., Esq., Daniel J. Toal, Esq., Yahonnes Cleary, Esq., Caitlin E. Grusauskas, Esq., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Attorneys for Defendants Exxon Mobil Corporation, ExxonMobil Oil Corporation, and XTO Energy Inc. Robert W. Whetzel, Esq., Richards Layton & Finger, P.A., Wilmington, DE, Patrick W. Mizell, Esq., Matthew R. Stamme, Esq., Stephanie L. Noble, Esq., Brooke A. Noble, Esq. (Argued), Vinson & Elkins L.L.P., Houston, TX, Mortimer H. Hartwell, Vinson & Elkins L.L.P., San Francisco, CA, Attorneys for Apache Corporation Joseph J. Bellew, Esq., Gordon Rees Scully Mansukhani, Wilmington, DE, J. Scott Janoe, Esq. (Argued), Baker Botts L.L.P., Houston, TX, Megan Berge, Esq., Sterling Marchand, Esq., Baker Botts L.L.P., Washington, DC, Attorneys for Defendant Hess Corporation and Defendant Murphy Oil Corporation JOHNSTON, J.

PROCEDURAL AND FACTUAL CONTEXT

A. ALLEGATIONS IN THE COMPLAINT

4 The State of Delaware (“The State”) brought this action against major

corporate members of the fossil fuel industry (“Defendants”) for (1) negligent

failure to warn, (2) trespass, (3) common law nuisance, and (4) violations of the

Delaware Consumer Fraud Act.1

The State alleges that Defendants knew or should have known that the

unrestricted production and use of fossil fuel products creates greenhouse gas

pollution that causes damage to the planet, the State of Delaware, and its residents.2

The State asserts that Defendants concealed and misrepresented their products’

known dangers while promoting their use, which drove consumption leading to

creating more greenhouse gas pollution and causing the climate crisis.3

Defendants are extractors, producers, refiners, manufacturers, distributors,

promoters, marketers, and/or sellers of fossil fuel products.4 The State claims that

Defendants have deceived the public and consumers about the role of their

products.5 In support of its argument, the State claims that scientific research has

shown that pollution created by Defendants’ products played a direct and

substantial role in the rise in emissions of greenhouse gas pollution and increased

1 Compl. at ¶ 13. 2 Id. at ¶ 1. 3 Id. at ¶ 12. 4 Id at ¶ 4. 5 Id.

5 atmospheric CO2 concentrations, which has caused and will continue to cause

dangerous consequences.6

The State alleges that Defendants had a duty to warn their consumers and the

public of the consequences known for more than fifty years.7 Instead, Defendants

concealed the dangers, promoted false and misleading information, sought to

undermine public support for greenhouse gas regulation, and engaged in massive

campaigns to promote the use of their products at greater volumes.8 Additionally,

the State claims Defendants are responsible for causing and accelerating climate

change on Earth.9

The Complaint contains the following allegations. Defendants’ products are

emitting greenhouse gases, which are byproducts of humans combusting fossil

fuels to produce energy and using fossil fuels to create petrochemical products.10

Both the annual rate and total volume of CO2 emissions have increased enormously

following the major uses of oil, gas, and coal; thus, the recent acceleration of fossil

fuel emissions has led to an exponential increase in atmospheric concentration of

CO2.11 The effects of greenhouse gases accumulating in the Earth’s atmosphere

include, but are not limited to: (a) warming of the Earth’s average surface

6 Id. 7 Id. at ¶¶ 7–8. 8 Id. at ¶ 8. 9 Id. at ¶ 47. 10 Id. at ¶ 49. 11 Id. at ¶¶ 50, 52.

6 temperature; (b) sea level rise; (c) flooding and inundation of land and

infrastructure, increased erosion, higher wave run-up and tides, increased

frequency and severity of severity of storm surges, saltwater intrusion, and other

impacts of higher sea levels; (d) changes to the global climate, and generally

toward longer periods of drought interspersed with fewer and more severe periods

of precipitation, and associated impacts on the quality of water resources available

to both human and ecological systems; (e) ocean acidification; (f) increased

frequency and intensity of extreme weather events; (g) changes to terrestrial and

marine ecosystems, and consequent impacts on the range of flora and fauna; and

(h) adverse impacts on human health associated with extreme weather, extreme

heat, decreased air quality, and vector-borne illnesses.12 As such, Defendants’

conduct exacerbated the climate crisis and has impacted Delaware, its

communities, and its resources, and its effects will continue to increase in severity

in Delaware.13

Defendants went to great lengths to understand and either knew or should

have known about the dangers associated with the fossil fuel products.14 The fossil

fuel industry has known about the potential warming effects of greenhouse gas

emissions since the 1950s through scientific reports and statements that were made

publicly at organized events held by API from highly regarded people within the

12 Id. at ¶ 55. 13 Id. at ¶ 56. 14 Id. at ¶ 62.

7 field of climate change.15 In 1965, President Lyndon B. Johnson’s Science

Advisory Committee’s Environmental Pollution Panel reported that a 25% increase

in carbon dioxide concentrations could occur by the year 2000, causing significant

global warming, the melting of the Antarctic ice cap, and rapid sea level rise.16 The

Panel claimed fossil fuels were the clearest source of the pollution.17 In 1968, API

received a report from the Stanford Research Institute endorsing President

Johnson’s Scientific Advisory Council’s findings.18 The State alleges that

Defendants were members of API at the time, and by virtue of their membership

and participation in API, either received or should have received the Stanford

Research Institute reports and were on notice of those conclusions.19

In 1979, API and its members, including Defendants, created a Task Force,

which would soon be called the Climate and Energy Task Force, to monitor and

share cutting-edge climate research throughout the oil industry.20 The Task Force

discussed the requirements for a worldwide energy source changeover away from

fossil fuels. Many experts relayed to the Task Force that the buildup of carbon

dioxide in the Earth’s atmosphere is caused by the use of fossil fuels.21 In 1981,

Exxon’s Contract Research Office prepared and distributed a “Scoping Study on

15 Id. at ¶¶ 62–72. 16 Id. at ¶ 66. 17 Id. 18 Id. at ¶ 69. 19 Id. at ¶ 71. 20 Id. at ¶ 78. 21 Id. at ¶¶ 80–82.

8 CO2” to the leadership of Exxon Research and Engineering Company.22 The study

recommended that Exxon centralize its activities in monitoring and keeping the

company apprised of outside research developments dealing with climate modeling

and CO2-induced effects.23 The study discussed other options for reducing CO2

build-up in the atmosphere and noted that capturing CO2 from flue gases was

possible but costly.24

Research done at the time warned that a large carbon dioxide build-up in the

atmosphere could create catastrophic effects to land on coastal regions,

temperature, biological systems, agriculture, and human health.25 Despite the

information about the threats to people and the planet posed by continued unabated

use of their fossil fuel products, Defendants did not disclose the known harms

associated with the extraction, promotion, and consumption of their fossil fuel

products.26 Defendants failed to mitigate or avoid the adverse impacts caused by

their fossil fuel products.27 Instead, Defendants affirmatively acted to obscure those

harms and engaged in a campaign to deceptively protect and expand the use of

their fossil fuel products.28

22 Id. at ¶ 83. 23 Id. 24 Id. 25 Id. at ¶ 88. 26 Id. at ¶¶ 103–104. 27 Id. at ¶ 103. 28 Id. at ¶ 104.

9 The State identifies several key events during the years of 1988–1992 that

allegedly prompted Defendants to change their tactics from general research and

internal discussion on climate change to a public campaign aimed at deceiving

consumers and the public.

(a) In 1988, National Aeronautics and Space Administration (NASA)

scientists confirmed that human activities were actually contributing to

global warming. On June 23rd of that year, NASA scientist James

Hansen’s presentation of this information to Congress engendered

significant news coverage and publicity for the announcement, including

coverage on the front page of the New York Times.

(b) On July 28, 1988, Senator Robert Stafford and four bipartisan co-

sponsors introduced S. 2666, “The Global Environmental Protection

Act,” to regulate CO2 and other greenhouse gases. Four more bipartisan

bills to significantly reduce CO2 pollution were introduced over the

following ten weeks, and in August, U.S. Presidential candidate George

H.W. Bush pledged that his presidency would combat the greenhouse

effect with “the White House effect.” Political will in the United States to

reduce anthropogenic greenhouse gas emissions and mitigate the harms

associated with Defendants’ fossil fuel products was gaining momentum.

(c) In December 1988, the United Nations formed the Intergovernmental

Panel on Climate Change (IPCC), a scientific panel dedicated to

10 providing the world’s governments with an objective, scientific analysis

of climate change and its environmental, political, and economic impacts.

(d) In 1990, the IPCC published its First Assessment Report on

anthropogenic climate change, in which it concluded that (1) there is a

natural greenhouse effect which already keeps the Earth warmer than it

would otherwise be and (2) that emissions resulting from human

activities are substantially increasing the atmospheric concentrations of

the greenhouse gases carbon dioxide, methane, chlorofluorocarbons

(CFCs) and nitrous oxide. These increases will enhance the greenhouse

effect, resulting on average in an additional warming of the Earth’s

surface. The main greenhouse gas, water vapor, will increase in response

to global warming and further enhance it. The IPCC reconfirmed those

conclusions in a 1992 supplement to the First Assessment report.

(e) The United Nations began preparing for the 1992 Earth Summit in Rio de

Janeiro, Brazil, a major, newsworthy gathering of 172 world

governments, of which 116 sent their heads of state. The Summit resulted

in the United Nations Framework Convention on Climate Change

(UNFCCC), an international environmental treaty providing protocols for

future negotiations aimed at stabilizing greenhouse gas concentrations in

11 the atmosphere at a level that would prevent dangerous anthropogenic

interference with the climate system.29

In order to prevent their profits from plummeting, the State contends that

Defendants strategized and marketed with the goal of continued dependence on

their products, while undermining national and international efforts to control

greenhouse gas emissions.30

These strategies included:

a. Influencing the tenor of the climate change debate as a means to establish

that greenhouse gas reduction policies;

b. Maintaining strong working relationships between government regulators

and communications-oriented organizations carrying Defendants’

message minimizing the hazards of the unabated use of their fossil fuel

products and opposing regulation thereof;

c. Building the case for (and falsely dichotomizing) Defendants’ positive

contributions to a long-term approach (ostensibly for regulation of their

products) as a reason for society to reject short term fossil fuel emissions

regulations, and engaging in climate change science uncertainty research;

and

29 Id. at ¶ 106. 30 Id. at ¶ 108.

12 d. Presenting Defendants’ positions on climate change in domestic and

international forums.31

Defendants purportedly made misleading statements about climate change,

the relationship between climate change and their fossil fuel products, and the

urgency of the problem. These statements were in public forums through

advertisements in newspapers and other media with substantial circulation in

Delaware.32

In contrast to their public statements, Defendants’ internal actions

demonstrated their awareness of and intent to profit from the unabated use of fossil

fuel products.33 The State alleges that Defendants made multi-billion-dollar

infrastructure investments for their operations that acknowledge the reality of

coming anthropogenic climate-related change. These included raising offshore oil

platforms to protect against sea level rise; reinforcing offshore oil platforms to

withstand increased wave strength and storm severity; and developing and

patenting designs for equipment intended to extract crude oil and/or natural gas in

areas previously unreachable because of the presence of polar ice sheets.34

31 Id. at ¶ 125. 32 Id. at ¶ 126. 33 Id. at ¶ 142. 34 Id.

13 Defendants’ actions allegedly have exacerbated the costs of adapting to and

mitigating the adverse impacts of the climate crisis.35 Over the years greenhouse

gas pollution has been accumulating in the atmosphere and does not dissipate for

thousands of years.36 Greenhouse gas pollution will continue to increase in

magnitude and frequency causing an increase in magnitude and frequency of

physical, environmental, economic, and social injuries.37 Defendants have delayed

efforts to prevent any more greenhouse gas emissions which has increased

environmental harms and increased the magnitude and cost to address the harms

that have already occurred or are locked in by previous emissions.38 Defendants’

campaign obscured the science of climate change to protect and expand the use of

fossil fuels, and greatly increased and continues to increase the harm and rate of

harm suffered by Delaware and its residents.39

Even if Defendants did not adopt technological or energy source alternatives

that would have reduced use of fossil fuel products, reduced global greenhouse gas

pollution, and/or mitigated the harms associated with the use and consumption of

such products, Defendants could have taken other practical, cost-effective steps to

reduce the use of their fossil fuel products, reduced global greenhouse gas

35 Id. at ¶ 148. 36 Id. 37 Id. 38 Id. at ¶ 149. 39 Id. at ¶ 150.

14 pollution, and mitigate the harms associated with the use and consumption of their

fossil fuel products.40 Those alternative methods include:

a. Acknowledging and sharing the validity of scientific evidence on

anthropogenic climate change and the damages it will cause people,

communities, the State, and the environment. Acceptance of that

evidence along with associated warnings and actions would have altered

the debate from whether to combat climate change and sea level rise to

how to combat it, and avoided much of the public confusion that has

ensued over more than 30 years;

b. Forthrightly communicating with Defendants’ stockholders, banks,

insurers, consumers, the public regulators, and the State and warning

them about the global warming hazards of Defendants’ fossil fuel

products that were known to Defendants, which would have enabled

those groups to make material, informed decisions about whether and

how to address climate change and sea level rise vis-à-vis Defendants’

products;

c. Refraining from affirmative efforts, whether directly, through coalitions,

or through front groups, to distort public debate, and to cause many

40 Id. at ¶ 159.

15 consumers and business and political leaders to think the relevant science

was far less certain that it actually was;

d. Sharing their internal scientific research with consumers and the public,

and with other scientists and business leaders, so as to increase public

understanding of the scientific underpinnings of climate change and its

relation to Defendants’ fossil fuel products;

e. Supporting and encouraging policies to avoid dangerous climate change,

and demonstrating corporate leadership in addressing the challenges of

transitioning to a low-carbon economy;

f. Prioritizing alternative sources of energy through sustained investment

and research on renewable energy sources to replace dependence on

Defendants’ hazardous fossil fuel products; and

g. Adopting their stockholders’ concerns about Fossil Fuel Defendants’

need to protect their businesses from the inevitable consequences of

profiting from their fossil fuel products.41

The State asserts that Defendants continue to mislead the public about the

impact of fossil fuel products on climate change, through greenwashing campaigns

and other misleading advertisements in Delaware and elsewhere.42 Defendants

41 Id. 42 Id. at ¶ 161.

16 have falsely claimed through their advertising campaigns that their businesses are

substantially invested in lower carbon technologies and renewable energy

sources.43 In actuality, Defendants minimally invested in renewable energy while

continuing to expand fossil fuel production. Defendants claim that their fossil fuel

products are “green” or “clean” and that using these products will sufficiently

reduce or reverse the dangers of climate change.44 None of Defendants’ fossil fuel

products are “green” or “clean” because they all continue producing greenhouse

gas emissions into the atmosphere, warming the planet.45 Defendants continue to

fail to inform or warn their consumers about the foreseeable effects of their fossil

fuel products in causing and accelerating the climate crisis, purposefully omitting

this information to the present.46

Defendants misleadingly represent to their consumers that the use of certain

fossil fuel products actually helps reduce emissions and gain increased fuel

economy creating a “green” or “greener” benefit.47 Contrary to Defendants’

“green” claims, the development, production, refining, and consumer use of their

fossil fuel products increase greenhouse gas emissions to the detriment of public

health and consumer welfare.48 If consumers understood the full degree to which

43 Id. 44 Id. 45 Id. 46 Id. at ¶ 162–163. 47 Id. at ¶ 204. 48 Id.

17 Defendants’ products contributed to climate change and that Defendants had not

materially invested in alternative energy sources, consumers would not have

purchased Defendants’ products or would have purchased fewer products.49

Defendants’ omissions of the truth and misleading claims were part of their goal of

influencing consumer demand for their fossil fuel products.50

The State alleges that Defendants’ deceit only recently became discoverable,

and their misconduct is ongoing due to these reasons: (1) Defendants’ campaign of

deception; (2) Defendants’ efforts to discredit climate change science and create

the appearance such science is uncertain; (3) Defendants’ concealment and

misrepresentations regarding the fact that their products, including natural gas,

cause catastrophic harms; and (4) Defendants used front groups such as API, the

Global Climate Coalition, and the National Mining Association to obscure their

involvement in these actions.51

Consequently, the State argues that it has suffered, is suffering, and will

continue to suffer injuries from Defendants’ wrongful conduct.52 The State alleges

that Defendants’ individual and collective conduct of failing to warn of the threats

their fossil fuel products posed to the world’s climate; promoting their fossil fuel

products; concealing known hazards associated with the use of those products; and

49 Id. at ¶ 205. 50 Id. at ¶ 206. 51 Id. at ¶ 219. 52 Id. at ¶ 226.

18 designing campaigns to obscure the connection between their products and global

warming and its environmental, physical, social and economic consequences—are

all a direct and proximate cause that brought about or helped bring about global

warming; consequent sea level rise accompanied by flooding, erosion, and loss of

wetlands and beaches in Delaware; increased frequency and intensity of extreme

weather events in Delaware, including coastal storms, flooding, drought, extreme

heat, extreme precipitation events, and others; ocean warming and acidification;

and the cascading social, economic, and other consequences of these

environmental changes.53 The State alleges that these adverse impacts will

continue to increase in frequency and severity in Delaware.54 The State further

alleges that but for Defendants’ conduct, the State would have suffered no, or far

less, serious injuries and harms that it has endured. Such injuries foreseeably will

continue, due to the climate crisis and its physical, environmental, social, and

economic consequences.55

B. PROCEDURAL CONTEXT

This Superior Court case was filed on September 20, 2020. On October 23,

2020, Defendants removed the action to the United States District Court for the

District of Delaware. Defendants asserted numerous grounds for removal: “(1)

53 Id. 54 Id. 55 Id. at ¶ 232.

19 federal common law, (2) Grable jurisdiction, (3) complete preemption by the

Clean Air Act (“CAA”), (4) federal enclave jurisdiction, (5) the federal officer

removal statute, 28 U.S.C. § 1442, (6) jurisdiction under the Outer Continental

Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331, et seq., and (7) the Class Action

Fairness Act (“CAFA”), 28 U.S.C. § 1453.”56

The District Court held that “Defendants have failed to meet their burden to

show that this Court may exercise jurisdiction over this case.”57 The District Court

remanded the case to the Superior Court.58 The District Court reasoned: (i)

“Plaintiff’s claims are not completely preempted by federal common law.” The

Complaint “only asserts state-law causes of action”;59 (ii) “Defendants have failed

to demonstrate that a federal issue is ‘necessarily raised’ by Plaintiff’s claims”;

thus the District Court may not exercise Grable jurisdiction;60 (iii) Defendants

failed to show that their Outer Continental Shelf lessees are “performing a task that

the federal government would otherwise be required to undertake itself;”61 and (iv)

even if Defendants could satisfy the “operation” prong of the two-part test to

determine OCSLA jurisdiction, Defendants cannot satisfy the “but for” connection

between the cause of action and the OCS operation because Defendants did not

56 Delaware v. BP America Inc., 578 F. Supp. 3d 618, 626–627 (D. Del. 2022). 57 Id. at 627. 58 Id. 59 Id. at 628. 60 Id. at 634. 61 Id. at 638.

20 argue that Plaintiff would not have been injured “but for” Defendants’ operation on

the OCS.62

On appeal, this case was consolidated with a similar action presiding in the

United States District Court for the District of New Jersey. The United States

Court of Appeals for the Third Circuit affirmed the District Court of Delaware’s

decision, stating that there are no federal claims to be heard and there is no

complete preemption.63

The United States Supreme Court denied Defendants’ petition for writ of

certiorari.64

Similar cases have been filed in many courts throughout the United States.

Other courts have addressed issues including lack of personal jurisdiction, failure

to state a claim, and anti-SLAPP laws.

In City of New York v. Chevron Corporation, the United States Court of

Appeals for the Second Circuit held that municipalities may not utilize state tort

law to hold multinational oil companies liable for the damages caused by global

greenhouse gas emissions.65 The Second Circuit also held that the City’s state-law

tort claims are displaced by federal common law, and the Clean Air Act (“CAA”)

62 Id. at 639–641. 63 City of Hoboken v. Chevron Corp., 45 F.4th 699, 713 (3d Cir. 2022). 64 Chevron Corp. v. City of Hoboken, New Jersey, 143 S. Ct. 2483 (2023). 65 993 F.3d 81, 85 (2d Cir. 2021).

21 displaces the City’s federal common law damages claims where domestic

emissions are involved.66 The Court reasoned that regulating activities outside the

State’s borders is beyond the limits of state law.67 The Court also found that,

“federal judges may [not] set limits on greenhouse gas emissions in [the] face of a

law empowering [the] EPA to [do] the same.”68 The CAA and authorized EPA

actions displace any federal common law right to seek abatement of greenhouse

gas emissions.69

In City and County of Honolulu v. Sunoco LP, the Court denied the

defendants’ motion to apply California’s Anti-SLAPP Law. The Court reasoned,

after applying a balancing test, that the factors favor applying Hawai’i law, as

opposed to California’s anti-SLAPP law, in Hawai’i.70

In Commonwealth v. Exxon Mobil Corporation, the Massachusetts Superior

Court denied defendant’s motion to dismiss for lack of personal jurisdiction and

for failure to state a claim.71 The Court reasoned that its exercise of jurisdiction

over Exxon satisfied both the Massachusetts long-arm statute and the due process

clause of the Fourteenth Amendment.72 The Court also reasoned that the

66 Id. at 89–96. 67 Id. at 92. 68 Id. at 95. 69 Id. (citing AEP v. Connecticut, 564 U.S. 410, 424–429 (2011)). 70 No. 1CCV-XX-XXXXXXX, at *2–5 (Haw. Cir. Ct. Aug. 27, 2021). 71 2021 WL 3493456, at *1 (Mass. Super.). 72 Id. at 8.

22 Commonwealth sufficiently alleged that Exxon engaged in deceptive practices

with respect to their “greenwashing” claim.73

In the present action, Defendants have filed 14 motions to dismiss. The

individual motions variously assert failure to state a claim, lack of personal

jurisdiction, statute of limitations, insufficient service of process, and anti-SLAPP

immunity.

STANDARD OF REVIEW

MOTION TO DISMISS UNDER RULE 12(b)(6)

A party may move to dismiss under this Court’s Civil Rule 12(b)(6) for failure

to state a claim upon which relief can be granted.74 In deciding a Rule 12(b)(6)

motion, the Court (1) accepts as true all well-pleaded factual allegations in the

complaint; (2) credits vague allegations if they give the opposing party notice of the

claim; (3) draws all reasonable factual inferences in favor of the non-movant; and

(4) denies dismissal if recovery on the claim is reasonably conceivable.75

The Court, however, need not “accept conclusory allegations unsupported by

specific facts or . . . draw unreasonable inferences in favor of the non-moving

73 Id. at 13. 74 Del. Super. Ct. Civ. R. 12(b)(6). 75 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011).

23 party.”76 The Court also may reject “every strained interpretation of the allegations

proposed by the plaintiff.”77

Delaware’s pleading standard is “minimal.”78 Dismissal is inappropriate

unless “under no reasonable interpretation of the facts alleged could the complaint

state a claim for which relief might be granted.”79 A claim’s reasonable

conceivability generally cannot be determined through “matters outside the

pleadings.”80 But the Court “may consider matters outside the pleadings when the

document is integral to a plaintiff’s claim and incorporated into the complaint.”81

MOTION TO DISMISS UNDER RULE 12(b)(2)

A non-resident defendant may move to dismiss for lack of personal

jurisdiction under this Court’s Civil Rule 12(b)(2).82 “Generally, a plaintiff does

not have the burden to plead in its complaint facts establishing a court’s personal

76 Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011), overruled on other grounds by Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1277 (Del. 2018). 77 Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001). 78 Cent. Mortg., 27 A.3d at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 895 (Del. 2002)). 79 Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 2021 WL 1016442, at *3 (Del. Super. Ct. Mar. 17, 2021) (internal quotation marks omitted); see Cent. Mortg., 27 A.3d at 537 n.13 (“Our governing ‘conceivability’ standard is more akin to ‘possibility. . . .’”). 80 In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 68 (Del. 1995). 81 Windsor I, LLC v. CWCap. Asset Mgmt. LLC, 238 A.3d 863, 873 (Del. 2020) (internal quotation marks omitted); see also Malpiede, 780 A.2d at 1083 (“[A] claim may be dismissed if allegations in the complaint or in the exhibits incorporated into the complaint effectively negate the claim as a matter of law.”). 82 Del. Super. Ct. Civ. R. 12(b)(2).

24 jurisdiction over [a non-resident] defendant.”83 But, when Rule 12(b)(2) is

invoked, the plaintiff does shoulder such a burden.84 When no meaningful

discovery has been conducted, the plaintiff must make a prima facie showing that

personal jurisdiction exists.85 In assessing the plaintiff’s showing, the Court “is not

limited to the pleadings and can consider affidavits, briefs of the parties, and the

record as a whole.”86 “Still, unless contradicted by affidavit, the Court must (1)

accept as true all well-pleaded allegations in the complaint; and (2) construe the

record in the light most favorable to the plaintiff.”87

ANALYSIS

State Law Claims and Constitutionality – Interstate Pollution

Defendants argue that the State’s claims are barred because damages caused

by interstate emissions and global warming cannot be governed by State law.

Defendants contend that the injuries claimed by the State were caused by

emissions outside of the State. The federal Constitution prohibits the State from

using its own laws to resolve claims seeking redress for injuries allegedly caused

83 Green Am. Recycling, LLC v. Clean Earth, Inc., 2021 WL 2211696, at *3 (Del. Super. Ct. June 1, 2021) (alteration in original) (quoting Focus Fin. Partners, LLC v. Holsopple, 241 A.3d 784, 800 (Del. Ch. 2020)). 84 AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 437–38 (Del. 2005). 85 E.g., Green Am. Recycling, 2021 WL 2211696, at *3. 86 Id. (internal quotation marks omitted). 87 Id. (internal quotation marks and citations omitted); see also Mabey v. Crystalite Bohemia, S.R.O., 2018 WL 775402, at *3 (Del. Super. Ct. Feb. 6, 2018) (Though entitled to favorable inferences on Rule 12(b)(2) review, “the plaintiff must plead specific facts and cannot rely on mere conclusory assertions.” (internal quotation marks omitted)).

25 by out-of-state emissions. Defendants further assert that areas involving “uniquely

federal interests” pre-empt state law resolution.

The United States Supreme Court has explained in Boyle v. United

Technologies Corp. that:

[W]e have held that a few areas, involving “uniquely federal interests” are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts— so-called “federal common law.”88

The Supreme Court ruled in American Elec. Power Co. v. Connecticut:

There is no federal general common law, Erie R. Co. v. Tompkins, famously recognized. In the wake of Erie, however, a keener understanding developed. . . Erie “le[ft] to the states what ought be left to them,” and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states.” Erie also sparked “the emergence of a federal decisional law in areas of national concern.” The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” As the Court stated in Milwaukee I: “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.”89

88 487 U.S. 500, 504 (1988); see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001) (noting that the pre-emption of state law is allowed by federal common law where the interests at stake are “uniquely federal” in nature). 89 564 U.S. 410, 420–421 (2011).

26 The CAA displaced federal common law remedies for nuisance claims

seeking abatement of greenhouse gas emissions.90

In International Paper Company v. Ouellette, the Supreme Court noted:

Although courts should not lightly infer pre-emption, it may be presumed when the federal legislation is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation” . . . . After examining the CWA [Clean Water Act] as a whole, its purposes and its history, we are convinced that if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the “full purposes and objectives of Congress.” Because we do not believe Congress intended to undermine this carefully drawn statute through a general saving clause, we conclude that the CWA precludes a court from applying the law of an affected State against an out- of-state source . . . . Nothing in the Act gives each affected State this power to regulate discharges. The CWA carefully defines the role of both the source and affected States, and specifically provides for a process whereby their interests will be considered and balanced by the source State and the EPA. This delineation of authority represents Congress’ considered judgment as to the best method of serving the public interest and reconciling the often competing concerns of those affected by the pollution. It would be extraordinary for Congress, after devising an elaborate permit system that sets clear standards, to tolerate common-law suits that have the potential to undermine this regulatory structure.91

90 Id. 91 479 U.S. 481, 491–494 (1987).

27 The Clean Water Act (“CWA”) is analogous to the CAA. Following the

analysis used in Ouellette, the source of the pollution is dispositive. These Acts

establish standards implemented by Congress for balancing and regulating the

interests of states invaded by pollution.

In State ex rel. Jennings v. Monsanto Company, polychlorinated biphenyls

or “PCBs” were released into the environment. PCBs were alleged to have caused

lasting damage to “public health and the State’s lands and waters.”92 The State

brought suit against Monsanto for public nuisance, trespass, and unjust

enrichment.93 The State alleged that Monsanto knew about the dangers of PCBs.

Nevertheless, Monsanto continued to produce PCBs and misled the public about

the dangers of PCBs. The Delaware Supreme Court held that the State sufficiently

pled that, even though Monsanto did not control PCBs after its sale to third parties,

Monsanto substantially participated in “creating the public nuisance and causing

the trespass by actively misleading the public and continuing to supply PCBs to

industry and consumers knowing that PCBs were hazardous, would escape into the

environment after sale to third parties, and would lead to widespread and lasting

contamination of Delaware’s lands and waters.”94 At the motion to dismiss stage of

92 299 A.3d 372, 375 (Del. 2023). 93 Id. 94 Id. at 376.

28 the proceedings, the Court found that allegations of foreseeability of the dangers of

PCBs were sufficient to prevent dismissal.95

The United States Court of Appeals for the Second Circuit states in City of

New York v. Chevron Corporation:

[F]ederal common law exists in only the “few and restricted” enclaves where a federal court is “compelled to consider federal questions [that] cannot be answered from federal statutes alone.”96

The Chevron court recognized that “there also must be a conflict between the

federal interest and the operation of state law.”97 The defendants in that case were

alleged to have failed to warn and to have used deceptive marketing claims and

campaigns to discredit mainstream scientific evidence. Claims requesting damages

for the cumulative impact of conduct occurring simultaneously across multiple

jurisdictions, such as global greenhouse gas emissions, were found to be “beyond

the limits of state law.”98

This Court finds that claims in this case seeking damages for injuries

resulting from out-of-state or global greenhouse emissions and interstate pollution,

95 Id. at 383 (“Instead, the crux of the issue is: can a product manufacturer be held liable after a product it manufactures is sold to third parties whose activities release the product into the environment and cause a public nuisance?”). 96 993 F.3d 81, 89 (2d Cir. 2021). 97 Id. at 90. 98 Id. at 92.

29 are pre-empted by the CAA. Thus, these claims are beyond the limits of Delaware

common law.

Clean Air Act – Delaware Source Pollution

The United States Supreme Court has established the general rule of federal

pre-emption.

[S]tate law is pre-empted under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, in three circumstances. First, Congress can define explicitly the extent to which its enactments pre- empt state law. Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one. Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a “scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where an Act of Congress “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Although this Court has not hesitated to draw an inference of field pre-emption where it is supported by the federal statutory and regulatory schemes it has emphasized: “Where . . . the field which Congress is said to have pre- empted” includes areas that have “been traditionally occupied by the States,” congressional intent to supersede state laws must be “‘clear and manifest.’” Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre- emption where it is impossible for a private party to comply with both state and federal requirements, or where state law

30 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”99

The CWA cases apply by analogy to the CAA cases. In International Paper

Co. v. Ouellette, the Supreme Court found that the CWA precludes a court from

applying the law of an affected State against an out-of-state source.100

Similar to the CWA, the EPA has established regulations and emissions

standards for the CAA. The Clean Air Act Renewable Fuel Standard Program

regulates the consumption and use of fossil fuel products.

Using same analysis and reasoning that the Supreme Court used for the

CWA in Ouellette, the CAA preempts state law to the extent a state attempts to

regulate air pollution originating in other states.101

However, the CAA does not displace Delaware common law claims where

the harm is caused by foreign global emissions. Nevertheless, there is a need for

judicial caution in the face of “delicate foreign policy considerations.”102

In American Electric Power Company, Inc. v. Connecticut, the United States

Supreme Court held that “the Clean Air Act and the EPA actions it authorizes

99 Eng. v. Gen. Elec. Co., 496 U.S. 72, 78–79 (1990). 100 479 U.S. 481, 493–494 (1987). 101 See Bell v. Cheswick Generating Station, 734 F.3d 188, 194 (3d Cir. 2013) (“We see nothing in the Clean Air Act to indicate that Congress intended to preempt source state common law tort claims. If Congress intended to eliminate such private causes of action, ‘its failure even to hint at’ this result would be ‘spectacularly odd.’”) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 491 (1996)). 102 City of New York v. Chevron Corp., 993 F.3d 81, 103 (2d Cir. 2021).

31 displace any federal common-law right to seek abatement of carbon-dioxide

emissions from fossil-fuel fired powerplants.”103 Thus, state law is not pre-empted

by federal statutes (CWA and CAA) where injuries and damages result from in-

state sources.104

Section 7401(a)(3) of title 42 of the United States Code provides:

The Congress finds -- that air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments.105

Section 7416(e) states:

[N]othing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 7411 or section 7412 of this title, such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.106

103 564 U.S. 410, 424 (2011). 104 Id. at 429. 105 42 U.S.C. § 7401. 106 42 U.S.C. § 7416.

32 There is no “field pre-emption” for source State litigation. Suits asking for

State damages constitute state regulation.107

This Court finds that the CAA does not pre-empt state law regulation of

alleged claims and damages resulting from air pollution originating from sources in

Delaware. Air pollution prevention and control at the source is the primary

responsibility of state and local governments.

Political Questions

Defendants argue that the State is requesting the Court to resolve

nonjusticiable political questions.

The U.S. Supreme Court lays out the factors to determine whether there is a

political question.

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political 107 Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008) (“And while the common-law remedy is limited to damages, a liability award ‘can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’”).

33 decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non- justiciability on the ground of a political question’s presence.108

The Delaware Supreme Court has held that the Baker factors to be the

standard used when addressing “political questions.”109

In Native Village of Kivalina v. ExxonMobil Corp., the City of Kivalina

brought suit against multiple oil, energy, and utility companies (“Energy

Producers”). Kivalina alleged that the existence of its land was threatened due to

the effects of global warming, attributable to the large quantities of greenhouse

gases emitted by Energy Producers.110 Energy Producers moved to dismiss the

action for lack of subject-matter jurisdiction because Kivalina’s allegations raised

“inherently nonjusticiable political questions because to adjudicate its claims, the

court would have to determine the point at which greenhouse gas emissions

become excessive without guidance from the political branches.”111 The Ninth

Circuit affirmed the ruling made by the United States District Court for the

Northern District of California that Kivalina lacked standing on the basis of the

108 Baker v. Carr, 369 U.S. 186, 217 (1962). 109 State, ex rel. Oberly v. Troise, 526 A.2d 898, 904 (Del. 1987); see also Guy v. City of Wilmington, 2020 WL 2511122, at *2 (Del. Super.). 110 696 F.3d 849, 853–854 (9th Cir. 2012). 111 Id. at 854.

34 political question. Kivalina could not establish causation under Article III, deeming

the issue appropriate at the discretion of the executive or legislative branch.112

In People of State of California v. General Motors Corp., the State of

California brought suit against various automakers for creating and contributing to

global warming.113 Defendants argued that the nuisance claims presented non-

justiciable political questions.114 Defendants alleged that global warming was an

issue of public and foreign policy that should be addressed and resolved by the

other political branches of the federal government and not by the courts.115 The

Court acknowledged that just because claims touch on “public policy, foreign

policy, and political issues, it is ‘tempting to jump to the conclusion that such

claims are barred by the political question doctrine.’”116 The Court stated, however,

that “it is error to suppose that every case or controversy which touches foreign

relations lies beyond judicial cognizance,” and that the “justiciability inquiry is

limited to ‘political questions,’ not . . . ‘political cases,’ and should be made on a

‘case-by-case’ basis.”117 The Court ruled that “dismissal on the basis of the

112 Id. 113 2007 WL 2726871, at *1 (N.D. Cal.). 114 Id. at 5. 115 Id.; see also Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849, 864 (S.D. Miss. 2012) (reasonableness of greenhouse gas emissions is determined by the EPA, not by the courts); Sagoonick v. State, 503 P.3d 777, 795 (Alaska 2022) (“The political question doctrine maintains the separation of powers by ‘exclud[ing] from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to’ the political branches of government.”). 116 Id. at 6. 117 Id.

35 political question doctrine is appropriate only if one of the [Baker] formulations is

‘inextricable’ from the case.”118 The Court also noted that the Baker tests are

“more discrete in theory than in practice, with the analyses often collapsing into

one another.”119

This Court finds that the political question doctrine rarely, if ever, is applied

to justify judicial abstention in Delaware. The Court finds that there is no reason to

apply the doctrine in this case. Delaware courts have considered similar cases in

the environmental context, or involving public nuisance product claims, without

the necessity of deferring on the basis of a nonjusticiable political question.120

Public Nuisance and Trespass

The Delaware Supreme Court recently addressed public nuisance and

trespass in State ex rel. Jennings v. Monsanto Co.121 Monsanto dealt with PCBs

(polychlorinated biphenyls), chemicals that, when released into the environment,

persist indefinitely.122 The federal government discovered that exposure to PCBs

causes serious health effects, which led to the banning of PCB production.123 The

118 Id. 119 Id. 120 See State ex rel. Jennings v. Monsanto Co., 2022 WL 2663220 (Del. Super.) (dealing with PCBs); see also Sills v. Smith & Wesson Corp., 2000 WL 33113806 (Del. Super.) (dealing with firearms); see also State ex rel. Jennings v. Purdue Pharma L.P., 2019 WL 446382 (Del. Super.) (dealing with opioids). 121 299 A.3d 372 (Del. 2023). 122 Id. at 375. 123 Id.

36 State of Delaware asserted claims for public nuisance, trespass, and unjust

enrichment against Monsanto.

In this case, the State’s Complaint alleges five reasons Defendants created a

public nuisance:

a. Controlling every step of the fossil fuel product supply chain, including the extraction of raw fossil fuel products, including crude oil, coal, and natural gas from the Earth; the refining and marketing of those fossil fuel products, and the placement of those fossil fuel products into the stream of commerce; b. Affirmatively and knowingly promoting the sale and use of fossil fuel products that Fossil Fuel Defendants knew to be hazardous and knew would cause or exacerbate global warming and related consequences, including, but not limited to, sea level rise, drought, extreme precipitation events, and extreme heat events; c. Affirmatively and knowingly concealing the hazards the Fossil Fuel Defendants knew would result from the normal use of their fossil fuel products by misrepresenting and casting doubt on the integrity of scientific information related to climate change; d. Disseminating and funding the dissemination of information intended to mislead customers, consumers, and regulators regarding known and foreseeable risk of climate change and its consequences, which follow from the normal, intended use of Fossil Fuel Defendants’ fossil fuel products; and e. Affirmatively and knowingly campaigning against the regulation of their fossil fuel products, despite knowing the hazards associated with the normal use of those products, in order to continue profiting from use of those products by externalizing those known costs onto people, the environment, and communities, including residents of Delaware; and failing

37 to warn the public about the hazards associated with the use of fossil fuel products.124

The State argues that a defendant “can be held liable when it substantially

contributed to a public nuisance by misleading the public and selling a product it

knew would eventually cause a safety hazard and end up contaminating the

environment for generations when used by industry and consumers.”125 Thus,

Defendants contributed to a public nuisance because they misled the public and

sold their fossil fuel products, knowing that the products would continue to cause

harm to the environment through the emission of greenhouse gases into the

atmosphere.

In Monsanto, the State alleged that the defendants supplied toxic substances,

i.e., PCBs, and knew that the PCBs would be released into the environment, which

would cause pollution. Defendants purportedly misled the public and the

government about the safety of PCBs and substantially participated in carrying on

public nuisance, resulting in damages.

The Delaware Supreme Court held that the State failed to state a claim for

unjust enrichment and for trespass to lands that the State holds in public trust.

However, the State successfully stated a claim for public nuisance and for trespass

124 Compl. at ¶ 257. 125 Pl.’s Answering Brief in Opposition to Defs. Joint Motion to Dismiss for Failure to State a Claim at 26 (quoting Monsanto, 2023 WL 4139127, at *8).

38 to lands that the State owns directly.126 The Court reasoned that even if Monsanto

did not control the PCBs after its sale to third parties, Monsanto was still part of

the process of releasing PCBs into the environment, creating a claim for public

nuisance and trespass.127

This Court finds that Monsanto controls. At this stage in the proceedings, the

State has stated a general claim for environmental-based public nuisance and

trespass for land the State owns directly, but not for land the State holds in public

trust. Control of the product at the time of alleged nuisance or trespass is not an

element of a nuisance claim.128

However, unlike contamination of land and water in Monsanto, damages

caused by air pollution limited to State-owned property may be difficult to isolate

and measure. Nevertheless, that is an issue to be addressed at a later stage of the

case. This should not be a reason to grant dismissal of nuisance and trespass claims

at this time.

Rule 9(b) Particularity

The Superior Court Rules of Civil Procedure Rule 9(b) provides:

In all averments of fraud, negligence or mistake, the circumstances constituting fraud, negligence or mistake shall be

126 State ex rel. Jennings v. Monsanto Co., 299 A.3d 372, 392 (Del. 2023). 127 Id. at 376. 128 Id. at 383.

39 stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally.

Rule 9(b) applies to claims averring fraud.

Although the language of Rule 9(b) confines its requirements to claims of mistake and fraud, the requirements of the rule apply to all cases where the gravamen of the claim is fraud even though the theory supporting the claim is not technically termed fraud. Rule 9(b)’s requirements have been found to apply to claims for misrepresentation, conspiracy to commit fraud, and negligent misrepresentation.129

Rule 9(b) applies to tort claims based on fraud or intentional misrepresentations.

BP’s Argument

BP America Inc. (“BP”) makes three arguments. First, the State

affirmatively pled in their Complaint that BP publicly acknowledged the risk of

climate change—and its link to fossil fuels—decades ago.130 BP allegedly never

denied the dangers of their fossil fuel products. The State did not identify any

“climate-denial” misrepresentations BP made to consumers and the public.131

Second, the State’s “greenwashing” theory fails to state a claim against BP

because the statements made by BP are “classic examples of non-actionable

puffery and/or statements of opinion.”132 Additionally, BP alleges that the

129 Toner v. Allstate Ins. Co., 821 F. Supp. 276, 283 (D. Del. 1993). 130 Def. BP P.L.C. and BP America Inc.’s Motion to Dismiss for Failure to State a Claim at 5–6. 131 Id. 132 Id. at 7.

40 statements at issue do not address “merchandise,” as the Delaware Consumer

Fraud Act (“DCFA”) requires in 6 Del. C. § 2513.133 As defined in 6 Del. C. §

2511: “Merchandise” means any objects, wares, goods, commodities, intangibles,

real estate or services.134 BP sells “merchandise,” as described in the statute, such

as retail gasoline and lubricant products throughout Delaware. However, none of

the purported “greenwashing” statements in the Complaint refer to BP gasoline or

lubricants.135

Third, the State has misrepresented the statements about Invigorate gasoline

and BP Diesel.136 BP provided their complete statements about Invigorate gasoline

and BP Diesel and compared them with the State’s allegations.137 BP argues that

the statements about Invigorate gasoline and BP Diesel say nothing about the

environment or climate change.138 Instead, BP argues the statements focus on

eliminating dirt in the engine and using low-sulfur fuels, not on the reduction of

greenhouse gas emissions that benefit the environment.139

133 Id. at 9. 134 Del. Code Ann. Tit. 6, § 2511(6). 135 Def. BP P.L.C. and BP America Inc.’s Motion to Dismiss for Failure to State a Claim at 9–10. 136 Id. at 10. 137 Id. at 10–11. 138 Id. at 11. 139 Id. at 11–12.

41 CITGO’s Argument

CITGO Petroleum Corporation (“CITGO”) argues that the State made vague

allegations that fail to specify what facts CITGO supposedly misrepresented, when

it did so, or where, as required by Rule 9(b).140 CITGO asserts that the State fails to

identify a specific statement made by CITGO and cannot simply rely on a group

pleading to state a claim.141 CITGO contends that any attempt to hold CITGO or

Murphy USA, members of API, liable for API’s speech fails for two reasons.142

First, the Complaint does not allege any actionable misrepresentations by API,

much less with particularity, in Delaware or elsewhere.143 Second, the Complaint

does not allege any facts suggesting a basis for holding CITGO or Murphy USA

liable for the protected statements made by API or its members.144

CITGO provides three circumstances in which a defendant can be liable for

harm resulting to a third person from the tortious conduct of another: the defendant

(a) does a tortious action in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.145

140 Def. CITGO Petroleum Corp.’s and Murphy USA Inc.’s Motion to Dismiss for Failure to State a Claim at 11. 141 Id. at 10. 142 Id. at 12. 143 Id. 144 Id. 145 Id. at 12–13 (citing Restatement (Second) of Torts §876 (1979)).

42 CITGO argues that the State fails the first category because although CITGO

and Murphy USA were members of API, mere membership in a trade association

is not sufficient to give rise to an inference of conspiracy, absent proof of

“knowing participation” in the wrongful conduct.146 CITGO argues that the State

never alleged that CITGO or Murphy USA knowingly participated in any alleged

misconduct.147

CITGO contends that the State fails the second category because CITGO

and Murphy USA are not alleged to have been encouraged or aware of any

advocacy messaging that API or any other Defendants communicated.148 CITGO

argues that the Complaint fails to allege that CITGO or Murphy USA supported or

knew about any “greenwashing” statements, or that they were members of API

when those statements were made.149

CITGO asserts that the State fails the third category because the Complaint

does not allege that CITGO or Murphy USA made any misrepresentation that

could be considered breach of duty; nor does the Complaint allege that CITGO or

Murphy USA provided any assistance to API or any other Defendant in

accomplishing a tortious result.150 CITGO argues that the mere fact of membership

146 Id. at 13 (citing In re Asbestos Litig., 509 A.2d 1116, 1120 (Del. Super. 1986). 147 Id. at 13. 148 Id. at 15. 149 Id. 150 Id. at 16.

43 in an association is not a sufficient basis for the tort liability of individual members

for the wrongful acts or omissions of an association.151

CNX’s Argument

CNX Resources Corporation (“CNX”) argues that only two paragraphs in

the Complaint mention CNX. Neither paragraph identifies a specific misstatement

made by CNX.152 CNX asserts that because the Complaint never alleged that CNX

made “any statements about its products’ connection to global climate change—

much less any misrepresentations that could have deceived consumers—the

Complaint falls well short of Rule 9(b)’s requirement to specify the time, place,

and contents of the alleged misrepresentations.”153 CNX argues that “only the

speaker who makes a false representation is accountable for it.”154 The State’s only

allegation is membership. However, none of the Defendants’ alleged misstatements

are attributable to CNX.155

Marathon Petroleum Corporation’s Argument

Marathon Petroleum Corporation (“MPC”) argues that the State’s Complaint

failed to allege facts that would suffice to establish reasonable reliance or to show

151 Id. (citing 62 A.L.R. 3d 1165 §4). 152 Def. CNX Resources Corp.’s Motion to Dismiss for Failure to State a Claim at 8. 153 Id. at 9. 154 Id. at 10 (quoting In re Swervepay Acquisition, LLC, 2022 WL 3701723, at *9 (Del. Ch. 2022). 155 Id.

44 injury caused by MPC, MPCLP, or Speedway.156 MPC also argues that the

Complaint failed to identify anyone who relied on or acted upon its advertisements

or statements.157

MPC argues that the Complaint identifies only one specific statement made

by MPC, MPCLP, or Speedway in 2018 from its Climate Perspectives report to

shareholders—that the company had “invested billions of dollars to make our

operations more energy efficient [and] reduce our emissions.”158 MPC argues that

the Complaint does not provide facts showing how the 2018 statement was a

“misrepresentation,” “fraud,” or “deception” upon consumers.159 Further, the

Complaint does not allege that the statement would lead “consumers to believe that

purchasing and using oil and gasoline from MPC affiliates for consumer needs

would lead to consumers generating fewer emissions from their own use than they

would have expected had they not seen such a statement.”160

Apache’s Argument

Apache Corporation (“Apache”) argues that all of the State’s allegations that

could relate to Apache are non-specific and directed in a generalized fashion

156 Def. Marathon Petroleum Corp.’s, Marathon Petroleum Comp. LP’s, and Speedway LLC’s Motion to Dismiss for Failure to State a Claim at 9. 157 Id. 158 Id. at 8. 159 Id. 160 Id.

45 towards all Defendants.161 Apache contends that the State relies exclusively on

group pleading for its claims against Apache.162 The State’s allegations span over

seventy years, and the Complaint did not put Apache on notice since the Complaint

did not specify which conduct or statements made was by Apache during that time

period.163

Apache further argues that even if Apache were a member of API, API’s

alleged conduct cannot be imputed to Apache.164 The Restatement (Second) of

Torts limits the circumstances in which a defendant can be held liable for harm

resulting to a third person from the tortious conduct of another.165 The State has not

pled facts to support any of those circumstances.166

Apache relies on unique facts. The State alleges that “Apache Corporation is

a publicly traded Delaware corporation with its principal place of business in

Houston, Texas.”167 The State does not state any other Delaware contact. The State

alleged that Apache made statements in and outside of Delaware regarding their

campaign of deception and thus failed to warn consumers about global warming

161 Def. Apache Corp.’s Motion to Dismiss for Failure to State a Claim at 8–9. 162 Id. at 11. 163 Id. 164 Id. at 13. 165 Id. 166 Id. at 14. 167 Compl. at ¶ 33.

46 hazards when marketing, advertising, and selling their product.168 However, there

was no specific description of Apache’s promotional activities.

CONSOL’s Argument

CONSOL Energy Inc. (“CONSOL”) is the only coal company defendant.169

CONSOL argues that the Complaint contains boilerplate conclusory statements

that are asserted against all Defendants, which fail to identify a single decision or

communication CONSOL made regarding misrepresentation, fraud, or deception

of climate change, greenhouse gas emissions, and fossil fuel products.170 CONSOL

asserts that the State alleged no misrepresentations made by CONSOL.171

Hess’s Argument

Hess Corporation (“Hess”) makes four arguments: (1) Count IV of the

State’s Complaint is devoid of any specific allegations regarding Hess; (2) the

State cannot allege such conduct because by the relevant time, Hess had ceased all

oil and gas product-related commercial activity directed towards consumers in

Delaware, including any advertising and/or marketing; (3) any conduct by Hess

outside the State of Delaware within the five-year statute of limitations period

cannot form the basis of a Delaware Consumer Fraud Act (DCFA) claim; and (4)

168 Id. 169 Def. CONSOL Energy Inc.’s Motion to Dismiss for Failure to State a Claim at 3. 170 Id. 171 Id. at 8.

47 any discussion of tolling or concealment of the statute of limitations by the State is

unavailing.172

Hess argues that it divested all of its retail marketing assets in Delaware by

September 30, 2014.173 Since that time, Hess has not advertised or marketed oil

and gas products to Delaware consumers, nor has not sold any oil and gas products

to Delaware consumers.174 Thus, the State has no claim against Hess because the

State fails to allege any actions by Hess in violation of the DCFA within the five-

year statute of limitations.175

Marathon Oil Corp.’s Argument

Marathon Oil Corporation (“Marathon”) argues that not one of the

allegations made by the State identifies Marathon specifically, much less identifies

any particularized misstatement or omission that allegedly would support

liability.176 The State failed to put Marathon on notice of its alleged misconduct.177

Marathon argues that the State tries to “cover-up” this deficiency by claiming

“greenwashing.”178 Marathon argues that the Complaint makes clear that it relates

172 Def. Hess’s Supplemental Motion to Partially Dismiss for Failure to State a Claim on Statute of Limitations Grounds at 8. 173 Id. at 11. 174 Id. 175 Id. at 11–12. 176 Def. Marathon Oil Corp.’s Motion to Dismiss at 9. 177 Id. at 11. 178 Id.

48 to Marathon Petroleum Corporation, which is not affiliated with Marathon Oil

Corporation (they are two different and separate entities).179

* * *

This Court finds that the State has failed to specifically identify alleged

misrepresentations for each individual defendant. All claims alleging

misrepresentations, including “greenwashing”, must be dismissed, with leave to

amend with particularity, pursuant to Rule 9(b).

Failure to Warn

The State argues that Defendants failed to warn by making

misrepresentations about climate change and attempting to indirectly induce

Delaware consumers to buy their fossil fuel products.180 Defendants “had a duty to

warn both consumers and bystanders that would foreseeably be harmed by the

intended use of their products, and because [Defendants] made sure the dangers of

their products were neither open nor obvious through their pervasive climate-

disinformation campaigns.”181

Under Section 388 of the Restatement (Second) of Torts and Delaware law,

a manufacturer has a duty to warn users of the dangerous nature of its products.

179 Id. 180 Pl.’s Answering Brief in Opposition to Defs. Joint Motion to Dismiss for Failure to State a Claim at 53. 181 Id. at 39.

49 One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. This duty extends not only to those for whose use the chattel is supplied but also to third parsons whom the supplier should expect to be endangered by its use, which may include persons who have no connection with the ownership or use of the chattel itself. The manufacturer’s duty is dependent on whether it had knowledge of the hazards associated with its product. The standard for determining the duty of a manufacturer to warn is that which a reasonable (or reasonably prudent) person engaged in that activity would have done, taking into consideration the pertinent circumstances at that time. And even where that knowledge exists, liability is imposed only where the manufacturer had no reason to think that the users of its products would recognize the danger, and it fails to exercise reasonable care in warning users of the product’s dangerous nature.182

The State argues that Defendants had a duty to warn because they knew or

had reason to know that their fossil fuel products were causing harm to their

consumers and to the State.183 The State also argues that it is an injured bystander.

182 Ramsey v. Georgia S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1278–1279 (Del. 2018) (citing Restatement § 388) (quotes omitted). 183 Pl.’s Answering Brief in Opposition to Defs. Joint Motion to Dismiss for Failure to State a Claim at 42.

50 Foreseeable bystanders need to be protected as well.184 Courts have recognized that

“bystanders should be entitled to greater protection than the consumer or user

where injury to bystanders from the defect is reasonably foreseeable.”185

In response, Defendants argue that there is “no duty to warn of or protect

invitees from an open and obvious danger.”186 Defendants allege that the State’s

own allegations in the Complaint admit that the potential dangers of fossil fuel use

on the climate have been “open and obvious” for decades.187 Thus, Defendants had

no duty to warn about these dangers, and the negligent failure to warn claims fail

as a matter of law.188

The Court finds that the State has stated a claim for failure to warn. The

State has alleged that Defendants knew that their products were endangering the

environment, and harming their consumers and the State of Delaware (a valid

bystander). However, the question of whether the danger was open and obvious is

not appropriate for resolution at the dismissal stage.

Delaware Consumer Fraud Act

Section 2513(a) of title 6 of the Delaware Code provides:

184 Id. at 40. 185 Elmore v. Am. Motors Corp., 70 Cal. 2d 578, 586 (1969); see also Prosser & Keeton on Torts § 100, pp. 703–704 (5th ed. 1984). 186 Defs. Joint Opening Brief in Support of Motion to Dismiss for Failure to State a Claim at 56 (quoting Jones v. Clyde Spinelli, LLC, 2016 WL 3752409, at *2 (Del. Super.)). 187 Id. at 57. 188 Id. at 57–58.

51 The act, use, or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression, or omission, in connection with the sale, lease, receipt, or advertisement of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is an unlawful practice.

The Delaware Supreme Court has held:

[T]o bring a private cause of action for damages under the Delaware Act, a plaintiff must allege three elements: (1) a defendant engaged in conduct which violated the statute; (2) the plaintiff was a “victim” of the unlawful conduct; and (3) a causal relationship exists between the defendant’s unlawful conduct and the plaintiff’s ascertainable loss.189

The State alleges that Defendants’ deceptive statements about climate

change are actionable because a jury could reasonably conclude that Defendants

sought to indirectly induce consumers to purchase their fossil fuel products.190 The

State asserts that the CFA claim is timely because Defendants’ fraudulent

concealment of their unlawful conduct tolled the statute of limitations until the

State could reasonably have discovered their conduct.191

Section 2506 of title 6 of the Delaware Code provides:

Notwithstanding any other statute to the contrary, no action at law by the Attorney General brought under this chapter shall be 189 Teamsters Loc. 237 Welfare fund v. AstraZeneca Pharms. LP, 136 A.3d 688, 693 (Del. 2016). 190 Pl.’s Answering Brief in Opposition to Def’s. Joint Motion to Dismiss for Failure to State a Claim at 48. 191 Id.

52 initiated after the expiration of 5 years from the time the cause of action accrued.192

The Delaware Supreme Court has held that a “cause of action ‘accrues’ . . .

at the time of the wrongful act, even if the plaintiff is ignorant of the cause of

action.”193

The State contends that Defendants’ deception began in 1988.194 The State

alleges that there was no inquiry or actual notice to investigate the Defendants’

campaign of deception because Defendants were so effective at concealing their

lies from the public.195 Defendants assert that the State did have inquiry or actual

notice. There were reports and stories in The Washington Post and The New York

Times that warned the public about global warming and the deception used by oil

and coal industries.196 The highly-publicized Kivalina lawsuit, which was filed in

2008, included many of the same allegations that the State of Delaware makes.197

Defendants have provided evidence showing that the general public had

knowledge of or had access to information about the disputes, regarding the

existence of climate change and effects, decades prior to the expiration of the five-

year limitations period. This information and evidence is unrefuted by the State.

192 6 Del. C. § 2506. 193 Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004). 194 Compl. at ¶ 106. 195 Id. at ¶ 276. 196 Defs. Motion to Dismiss for Lack of Personal Jurisdiction at 61–62. 197 Id. at 62.

53 This Court finds that the DCFA claims are barred by the five-year statute of

limitations. Tolling does not apply.

Personal Jurisdiction

There are two types of personal jurisdiction—general jurisdiction and

specific jurisdiction.

A court may assert general personal jurisdiction over an individual where the

individual is domiciled and over a corporation where the corporation is regarded

“at home.”198 An incorporated business entity is “at home” in its state of

incorporation and the place of its principal place of business. Where a

corporation’s affiliations with the State are continuous and systematic, the entity

essentially is at home in the forum State.199

Specific jurisdiction is “triggered when the plaintiff’s claims arise out of acts

or omissions, by the defendant, that take place in Delaware.”200 In other words,

personal jurisdiction is based on “whether a cause of action arises from [a

defendant’s] contacts with the forum.”201

Six Defendants—BP P.L.C., Chevron U.S.A. Inc., Exxon Mobil Corporation

and ExxonMobil Oil Corporation, Shell PLC (f/k/a Royal Dutch Shell PLC),

198 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, 1780 (2017). 199 Daimler AG v. Bauman, 571 U.S. 117, 139 (2014). 200 Ross v. Earth Movers, LLC, 288 A.3d 284, 294 (Del. Super. 2023). 201 Otto Candies, LLC v. KPMG LLP, 2017 WL 3175619, at *4 (Del. Super.).

54 TotalEnergies SE and TotalEnergies Marketing USA, Inc., and American

petroleum Institute (“API”)—argue that they are not subject to either general or

specific jurisdiction in Delaware. The State conceded that none of these

Defendants are incorporated or headquartered in Delaware.202 These Defendants

assert that they are not subject to specific jurisdiction in Delaware because the

State’s claims do not arise out of or relate to Defendants’ alleged contacts with

Delaware; Defendants were not on “clear notice” that personal jurisdiction would

exist in Delaware for suits based on global climate change; and exercising personal

jurisdiction over Defendants would be unreasonable and conflict with federalism

principles.

The State alleges that Chevron Corporation is incorporated in Delaware, but

that Chevron U.S.A. Inc. is incorporated in Pennsylvania with its principal place of

business located in San Ramon, California.203 Chevron U.S.A. Inc. is a wholly-

owned subsidiary of Chevron Corporation and purportedly acts on Chevron

Corporation’s behalf and subject to Chevron Corporation’s control.204 The State

further alleges that Chevron advertises in Delaware, does business in Delaware,

and has owned and operated a refinery in Delaware.205

202 Def’s. Motion to Dismiss for Lack of Personal Jurisdiction at 12. 203 Id. at 17. 204 Id. 205 Id. at 18–19.

55 The State alleges that Royal Dutch Shell PLC is incorporated in England and

Wales with its headquarters and principal place of business in The Hague,

Netherlands. Shell Oil Company is a wholly-owned subsidiary of Royal Dutch

Shell PLC incorporated in Delaware that purportedly acts on Royal Dutch Shell

PLC’s behalf.206 The State further alleges that Shell advertises in Delaware, does

business in Delaware, has owned and operated a refinery in Delaware, and

conducts and controls fossil fuel sales at gas stations throughout Delaware.207

In Commonwealth v. Exxon Mobil Corporation, the Superior Court of

Massachusetts found that Exxon sold gasoline in Massachusetts, put up signs at its

fuel stations in Massachusetts without disclosing the dangers of climate change,

and alleged false and misleading statements in Massachusetts through

“greenwashing.”208 The Court found personal jurisdiction proper under the

Massachusetts long-arm statute and due process clause. The Court reasoned that

Exxon’s deception arose from Exxon’s contacts with Massachusetts because

“Massachusetts investors would not have purchased or retained Exxon’s stocks but

for its misrepresentations and omissions concerning the risk of climate change to

its business.”209 That consumer deception arose from Exxon’s advertisements

through its Massachusetts franchisees. Massachusetts consumers were injured by

206 Id. at 37,39. 207 Id. at 40–42. 208 2021 WL 3493456 (Mass. Super.). 209 Id. at 6.

56 their purchase in Massachusetts of “dangerous” fossil fuel products. The injuries

“would not have occurred ‘but for’ Exxon’s failure to disclose additional and

allegedly relevant information about those products at its franchise stations.”210

The Court found that the exercise of personal jurisdiction over Exxon comported

with the requirements of due process because: (1) Exxon purposefully availed itself

of the privilege of conducting business activities in Massachusetts; (2) the claims

arose out of Exxon’s contacts with Massachusetts; and (3) the exercise of personal

jurisdiction over Exxon did not offend “traditional notions of fair play and

substantial justice.”211

In this case, Defendants advertised in Delaware. The State alleges that these

advertisements contained misstatements regarding climate change. However, the

Complaint fails to identify specific alleged misrepresentations made in Delaware.

The U.S. Supreme Court noted in Goodyear Dunlop Tires Operations, S.A.

v. Brown:

When a defendant’s act outside the forum causes injury in the forum, by contrast, a plaintiff’s residence in the forum may strengthen the case for the exercise of specific jurisdiction.212

Goodyear involved a wrongful death action. A defective tire manufactured

in Turkey, at the plant of a foreign subsidiary of The Goodyear Tire and Rubber

210 Id. at 7. 211 Id. at 7–8. 212 564 U.S. 915, 929 n.5 (2011).

57 Company, was involved in the accident.213 An action was commenced in North

Carolina against Goodyear, and three of its subsidiaries organized and operated in

Turkey, France, and Luxembourg.214 Goodyear had plants in North Carolina that

regularly engaged in commercial activity.215 Goodyear did not contest the North

Carolina court’s jurisdiction. However, Goodyear’s foreign subsidiaries did.216 The

U.S. Supreme Court ruled that jurisdiction over claims unrelated to the sales were

not sufficient.

The U.S. Supreme Court held in Ford Motor Co. v. Montana Eighth Jud.

Dist. Ct.:

[C]ausation-only approach finds no support in this Court’s requirement of a “connection” between a plaintiff’s suit and a defendant’s activities . . . we have never framed the specific jurisdiction inquiry as always requiring proof of causation— i.e., proof that the plaintiff’s claim came about because of the defendant’s in-state conduct.217

The Court finds that there must be a connection between Delaware-specific

conduct and the alleged harm. There is no need to prove geo-located causation.218

However, there must be a relationship between Delaware activities and the cause

of action and alleged damages. Advertising, selling products, operating gas

213 Id. at 918. 214 Id. 215 Id. 216 Id. 217 141 S. Ct. 1017, 1026 (2021). 218 Id.

58 stations, and/or operating a refinery in Delaware are connections sufficient to

survive dismissal. The State has alleged relationships for the six moving

Defendants, sufficient to demonstrate specific personal jurisdiction.219

Anti-SLAPP

The State alleges that Chevron and American Petroleum Institute have

known for more than sixty years that fossil fuels create greenhouse gas pollution,

causing detrimental effects to the planet and people.220 Despite knowing these

facts, Defendants have deceived consumers through strategic wordings in

advertisements that concealed, discredited, and/or misrepresented information

concerning the dangers of fossil fuel consumption.221 The State contends that

Defendants used this deception to influence consumers to continue using fossil fuel

products to increase sales and protect their profits.222 The deception continues to

the present. Defendants have significantly increased greenhouse gas pollution and

have substantially contributed to climate change and its adverse effects in

Delaware.223

219 See City and County of Honolulu v. Sunoco LP, 2023 WL 7151875, at *16 (Haw.). 220 Pl.’s Answering Br. in Opp. to Chevron Corporation and Chevron U.S.A. Inc’s Anti-SLAPP Special Mot. to Dismiss at 2–3; Pl.’s Answering Br. in Opp. to American Petroleum Institute’s Mot. to Dismiss under the District of Columbia’s Anti-SLAPP Statute at 2–3. 221 Id. at 3. 222 Id. 223 Id. at 3–4.

59 The First Circuit Court of the State of Hawai’i denied Chevron Defendants’

Special Motion to Strike and/or Dismiss the Complaint Pursuant to California’s

Anti-SLAPP Law. The denial was based on a balancing test.224 The Court found

that many of the factors weigh in favor of applying Hawai’i law over California’s

anti-SLAPP law in Hawai’i.225 California’s anti-SLAPP law may not protect the

defendant if a similar suit were brought in California by a California

municipality.226 The Court reasoned that California Civil Codes § 425.16(d) and §

731 “indicate that city public nuisance actions are not protected by the anti-SLAPP

law.”227 Although the language can be parsed and distinguished, public

enforcement actions should not be overly constrained by the anti-SLAPP

provisions.228

The Court reasoned that anti-SLAPP law is not intended to deal with judicial

abuses in other jurisdictions. The Court noted that “different states’ laws can apply

to different issues in the same case.”229 Nevertheless, “It does not dictate any

particular choice of law result,” since a court must weigh and balance multiple

factors.230

224 City & Cnty. Of Honolulu v. Sunoco LP, No. 1CCV-XX-XXXXXXX, at *2 (Haw. First Cir. Ct. Aug. 27, 2021). 225 Id. 226 Id. at 3. 227 Id. 228 Id. 229 Id. at 5. 230 Id.

60 The Court finds that it is unclear whether anti-SLAPP laws apply only to

District of Columbia and California speech depending on the facts of the case. The

Court declines to resolve this issue at this time based on a limited record. Thus,

there is no basis for awarding attorneys’ fees to API.

API – Delaware Consumer Fraud Act

API argues that the First Amendment protects API’s speech and the State’s

Delaware Consumer Fraud Act claim does not apply. API contends that their

speech is protected noncommercial speech.231 API argues that the State cannot

demonstrate any compelling state interest. API’s noncommercial speech does not

contain content-based discrimination.

The State alleges that three statements show a connection between API’s

speech and a commercial interest:

(1) API’s “Power Past Impossible” campaign told Americans that the petroleum industry could help them live better lives—a public statement about community well-being; (2) API’s internet messaging described “5 Ways We’re Helping to Cut Emissions” and “4 Ways We’re Protecting Wildlife—a public commentary on health or safety and the environment; and (3) API made statements on Facebook that the oil and gas industry has reduced emissions and can tackle climate change and meet the world’s energy needs by embracing new

231 Def. American petroleum Institute’s Motion to Strike and/or Dismiss the Complaint Under the District of Columbia’s Anti-SLAPP Statute at 10.

61 innovations together—a public expression about environmental and societal issues.232

API argues that their statements do not constitute commercial speech. API

only made those statements, exercising its rights of advocacy on issues of public

interest.233 Because API does not produce or sell any fossil fuel, API’s purpose was

to comment on matters of public significance.234

The U.S. Supreme court has ruled:

We have made clear that advertising which “links a product to a current public debate” is not thereby entitled to the constitutional protection afforded noncommercial speech . . . Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.235

The State argues that API used deceptive campaigns by means of

“greenwashing” to mislead the general public about hazards of fossil fuel

consumption and purposefully spreading deceptive information about the dangers

of fossil fuel.236 The claim does not violate the First Amendment because API’s

speech constitutes commercial speech. API’s advertisements are false and

misleading messages with the goal to increase the sale of fossil fuel products,

232 Id. at 6–7. 233 Id. at 7. 234 Id. 235 Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60, 68 (1983). 236 Pl. Answering Brief in Opposition to Def. American Petroleum Institute’s Motion to Strike and/or Dismiss the Complaint Under the District of Columbia’s Anti-SLAPP Statute at 21.

62 which would not be entitled to constitutional protection afforded to noncommercial

speech.237

This Court finds that there is a difference between misrepresentation and

puffery. However, the determination of whether “statements are actionable

misrepresentations or inactionable puffery is not appropriate at a motion to dismiss

stage.”238 The issue of commercial speech, as opposed to misleading statements,

involves a fact-intensive analysis. It is inappropriate for resolution on this motion

to dismiss.

TotalEnergies – Motion to Dismiss

TotalEnergies SE (“TotalEnergies”) argues that TotalEnergies should be

dismissed from the suit for three reasons:

First, Plaintiff fails to allege sufficient facts upon which this Court may exercise personal jurisdiction over TotalEnergies. Nor can it because TotalEnergies does not engage in any persistent course of conduct in Delaware, either on its own, through its indirect Delaware subsidiary, TotalEnergies Marketing USA, Inc. (“TEMUSA”), or through any alleged co- conspirators. Second, the exercise of personal jurisdiction over TotalEnergies, a foreign corporation based in France, would offend constitutional due process. Lastly, Plaintiff failed to make effective service on TotalEnergies, which is a threshold jurisdictional requirement.239

237 Id. at 24 – 25 (quoting Bolger, 463 U.S. at 68 (1983)). 238 See Commonwealth v. Exxon Mobil Corp., 2021 WL 3493456, at *13 (Mass. Super. 2021); see also NPS, LLC v. Ambac Assur. Corp., 706 F. Supp. 2d 162, 172 (D. Mass. 2010) (“Courts vary in their conclusion of just where the line between misrepresentation and puffery lies, and often the determination is highly fact-specific.”). 239 Def. TotalEnergies SE’s Motion to Dismiss at 1.

63 TotalEnergies alleges that it has no Delaware contacts. TotalEnergies is a

French energy conglomerate, with its headquarters in Courbevoie, France.240

TotalEnergies maintains no offices in Delaware, owns no property in Delaware,

and makes no purposeful attempts to solicit or do business in Delaware.241

TotalEnergies alleges that the State cannot show that Delaware has

jurisdiction over TotalEnergies under its long-arm statute.242 The State has not pled

any facts that demonstrate TotalEnergies had continuous or substantial contacts

with Delaware. 243

Section 3104(e) of title X of the Delaware Code provides:

Proof of service outside this State may be made by affidavit of the individual who made the service or in the manner provided or prescribed by the law of this State, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court.244

TotalEnergies also argues that the State failed to meet the jurisdictional

requirement for proper service of process.245 Totalenergies argues that the State’s

240 Id. at 6. 241 Id. 242 Id. at 5. 243 Id. 244 Del. Code Ann. Tit. 10, § 3104(e). 245 Id. at 17.

64 proof of service did not include a receipt signed by TotalEnergies, and there is no

evidence of personal delivery to any addressee.246

This Court finds that TotalEnergies must be dismissed for failure to be

served with process.

CONCLUSION

This Court finds that claims in this case seeking damages for injuries

resulting from out-of-state or global greenhouse emissions and interstate pollution,

are pre-empted by the CAA. Thus, these claims are beyond the limits of Delaware

This Court finds that the CAA does not pre-empt state law regulation of

alleged claims and damages resulting from air pollution originating from sources in

Delaware. Air pollution prevention and control at the source is the primary

This Court finds that the political question doctrine rarely, if ever, is applied

to justify judicial abstention in Delaware. The Court finds that there is no reason to

apply the doctrine in this case. Delaware courts have considered similar cases in the

environmental context, or involving public nuisance product claims, without

deferring on the basis of a nonjusticiable political question.

246 Def. TotalEnergies SE’s Motion to Dismiss at 18.

65 This Court finds that Monsanto controls. At this stage in the proceedings, the

State has stated a general claim for environmental-based public nuisance and

trespass for land the State owns directly, but not for land the State holds in public

trust. Control of the product at the time of alleged nuisance or trespass is not an

element of a nuisance claim. The State is alleging environmental harms causing

damage to the public. However, unlike contamination of land and water in

Monsanto, damages caused by air pollution limited to State-owned property may be

difficult to isolate and measure. Nevertheless, that is an issue to be addressed at a

later stage of the case. This should not be a reason to grant dismissal of nuisance and

trespass claims at this time.

This Court finds that the State has failed to specifically identify alleged

misrepresentations for each individual defendant. All claims alleging

misrepresentations, including “greenwashing”, must be dismissed, with leave to

The Court finds that the State has stated a claim for failure to warn. The State

has alleged that Defendants knew that their products were endangering the

environment, and harming their consumers and the State of Delaware (a valid

bystander). However, the question of whether the danger was open and obvious is

This Court finds that the DCFA claims are barred by the five-year statute of

66 The Court finds that there must be a connection between Delaware-specific

conduct and the alleged harm. There is no need to prove geo-located causation.247

However, there must be a relationship between Delaware activities and the cause

of action and alleged damages. Advertising, selling products, operating gas

stations, and/or operating a refinery in Delaware are connections sufficient to

survive dismissal. The State has alleged relationships for the six moving

Defendants, sufficient to demonstrate specific personal jurisdiction. 248

This Court declines to resolve the Anti-SLAPP issue at this time based on a

limited record. Thus, there is no basis for awarding attorneys’ fees to API.

This Court finds that there is a difference between misrepresentation and

puffery. The issue of commercial speech, as opposed to misleading statements,

involves a fact-intensive analysis. It is inappropriate for resolution on this motion to

dismiss.

This Court finds that TotalEnergies must be dismissed for failure to be served

with process.

THEREFORE, Defendants’ Joint Motion to Dismiss Plaintiff’s Complaint

for Failure to State a Claim is hereby GRANTED IN PART AND DENIED IN

PART.

247 Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021). 248 See City and County of Honolulu v. Sunoco LP, 2023 WL 7151875, at *16 (Haw.).

67 Certain Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction is

hereby DENIED.

BP Defendants’ Motion to Dismiss the Complaint for Failure to State a

Claim Based Upon Misrepresentation is hereby GRANTED, WITH LEAVE TO

AMEND WITH PARTICULARITY.

Marathon Defendants’ Motion to Dismiss for Failure to State a Claim

Sounding in Fraud is hereby GRANTED, WITH LEAVE TO AMEND WITH

PARTICULARITY.

American Petroleum Institute’s Individual Merits Motion to Dismiss is

hereby GRANTED IN PART AND DENIED IN PART.

Hess Corporation’s Supplemental Motion to Partially Dismiss for Failure to

State a Claim on Statute of Limitations Ground (DCFA) is hereby GRANTED.

TotalEnergies SE’s Motion to Dismiss for Lack of Personal Jurisdiction and

Insufficient Service of Process is hereby GRANTED ON THE BASIS OF

INSUFFICIENT SERVICE OF PROCESS.

Apache Corporation’s Motion to Dismiss for Failure to State a Claim is

CITGO Petroleum Corporation and Murphy USA Inc.’s Joint Motion to

Dismiss for Failure to State a Claim is hereby GRANTED IN PART WITH

68 LEAVE TO AMEND WITH PARTICULARITY, DENIED AS TO DUTY TO

WARN.

CNX Resources Corporation’s Motion to Dismiss for Failure to State a

Claim Based Upon Misrepresentation is hereby GRANTED IN PART WITH

LEAVE TO AMEND WITH PARTICULARITY, DENIED AS TO DUTY TO

Marathon Oil Corporation’s Motion to Dismiss is hereby GRANTED IN

PART AND DENIED IN PART.

CONSOL Energy Inc.’s Motion to Dismiss for Failure to State a Claim is

hereby GRANTED IN PART WITH LEAVE TO AMEND WITH

PARTICULARITY, DENIED AS TO DUTY TO WARN.

Chevron Defendants’ Anti-SLAPP Special Motion to Dismiss is hereby

DENIED.

American Petroleum Institute’s Motion to Strike and/or Dismiss the

Complaint Under the District of Columbia’s Anti-SLAPP Statute is hereby

IT IS SO ORDERED.

/s/ Mary M. Johnston The Honorable Mary M. Johnston