VIEWPOINT: ‘Lawful energy’ needs to continue in Delaware

Sen. Brian Pettyjohn.

In the nationwide campaign by public officials and trial attorneys to carry out climate lawsuits against energy producers, a significant development has taken place here in Delaware.

On January 9, a Delaware state court judge issued a major setback to the state Attorney General’s misguided crusade to punish lawful commercial activity outside our state’s borders.  In a recent court order, Delaware Superior Court Judge Mary Johnston wrote “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 Clean Air Act. Thus, these claims are beyond the limits of Delaware common law.”

She further wrote “the State has failed to specifically identify alleged misrepresentations for each individual defendant. All claims alleging misrepresentations, including ‘greenwashing,’ must be dismissed.”

This order is significant because it is among the early rulings by a state court judge to dismiss major aspects of one of the climate lawsuits. It’s a pivotal moment and a turning point in these cases, with potentially larger implications for our economy.

Delaware’s lawsuit, which dates back to September 2020, is among several so-called “climate deception” cases filed nationwide. Delaware Attorney General Kathy Jennings’ case was filed against household names like ExxonMobil and Chevron, but also smaller companies like Speedway that operate gas stations and convenience stores throughout Delaware.  Delaware’s case is in partnership with a San Francisco-based trial bar firm, Sher Edling LLP, who has campaigned since 2017 to enlist states and municipalities to file these suits. They would make a 25 percent contingency fee from any potential settlement in over $100 million in each case – and they represent over twenty plaintiffs across the U.S. So clearly a motivating factor are dollar signs with each new lawsuit.

Let’s face the facts. Delaware’s Attorney General and a group of out of state trial attorneys have no authority to impose their agenda on legal activity. Our state is heavily dependent on lawful energy products to run our state’s economy, power our workplaces, heat our homes during this cold winter, and attract summer tourism to Delaware’s beaches. In short, our state would be unable to function without the natural gas and oil we depend on every day.

In fact, objective EIA data backs that up: “In 2022, natural gas fueled 87% of Delaware’s total in-state electricity generation, up from 51% in 2010.”  Delaware’s energy supply relies on natural gas, gasoline, and petroleum more than any other fuel sources.  How is it possible that we were somehow “deceived” when it’s clear our state needs access to these fuels?  No one has been misled about the crucial role they play in our daily lives.

Since 2017, government officials in states and municipalities across the nation have filed well over two dozen climate lawsuits against energy companies. The lawsuits seek damages from these firms for their alleged role in causing climate change and local severe weather-related impacts, and deceiving the public and government officials.  But Judge Johnston largely gutted this case, and rightly so.  Her order stated the state can only seek damages if its alleged injuries were caused by emissions from sources inside Delaware. This legal challenge is unrealistic since in-state emissions from Delaware – let’s be honest, the second smallest state in America – could only have a negligible effect on the global reality of climate change.

On January 19, Delaware’s Attorney General and her San Francisco-based plaintiffs’ firm filed a procedural appeal with the Delaware Superior Court. On February 14, that court denied the appeal application.

Delaware has worked hard to be more welcoming to businesses; CNBC’s Top States for Business survey 2023 ranks us #18, an improvement of 10 spots from 2022. Our reasonable tax structure, convenient location, and well-educated workforce has helped convince more than one million companies, including 63% of the Fortune 500, to incorporate here. But overreaching state government efforts seeking to punish productive employers could set us back.

The trend toward more state government controls on private sector business – such as the legislature’s recent polystyrene ban that limits consumer choice and disproportionally impacts small businesses – sends the wrong message. Companies – from agricultural producers to healthcare innovators – that see the state taking legal action against energy producers today might well think that their businesses could be next. Jobs, tax revenues, and the overall health of the Delaware economy are all put at risk when state government leaders start viewing private sector businesses as a problem instead of an asset.

There are better ways for the Attorney General’s office to spend their time. Crime is a real issue in Delaware; organized retail thefts almost doubled from 2020 to 2021 and recent FBI crime data ranks Delaware in the top 10 most dangerous states. I’m sure that most Delaware taxpayers would rather see the state’s top legal agency focus on holding criminals accountable and protecting citizens instead of being talked into doubling down on ineffective, legally discredited lawsuits targeting energy companies.

Brian Pettyjohn is Delaware’s Senate Minority Whip and State Senator for Delaware’s 19th District since 2012