Last year, Bucks County sued fossil fuel companies for warming the planet and waging a “disinformation campaign” to deny they did harm. While the case awaits resolution, neighboring states and localities lately made the same legal move — and failed.

A month ago, a judge tossed an almost identical lawsuit filed by Maryland’s capital Annapolis and the surrounding county of Anne Arundel. Earlier this month, New Jersey Superior Court Judge Douglas Hurd rejected comparable litigation brought by that state’s government.

The dismissals have been bipartisan. Hurd is a Republican, albeit one appointed by Democratic former Governor Jon Corzine. Maryland Judge Steven Platt, before becoming a jurist, worked in Democratic Party politics, most notably on Robert F. Kennedy Sr.’s 1968 presidential campaign.

“Climate fraud” lawsuits have also cratered in other deep-blue areas nearby. New York Supreme Court Justice Anar Patel, who was appointed by Democratic Governor Kathy Hochul, scrapped a similar complaint from New York City. Delaware Judge Mary Johnston, nominated by Democratic former Governor Jack Markell, limited the scope of another such lawsuit. Not all climate-related litigation has foundered, however: Judges in Hawaii, Minnesota, Vermont, and Massachusetts have let it proceed.

Legal counsel for Chevron Corporation, one of numerous defendants, now wants Common Pleas Judge Stephen Corr — a Republican elected in 2021 — to dump Bucks’s suit for the same reason the Maryland and New Jersey courts did: federalism.

“The Annapolis/Anne Arundel court’s decision joins the growing and nearly unanimous consensus among both federal and state courts across the country that have concluded that ‘federal law precludes and preempts the application of state law’ to these types of claims, and clear U.S. Supreme Court precedent compel[s] dismissal,” wrote Frederick Santarelli, president of the Blue Bell-based Elliott Greenleaf firm, in a court filing. 

In an ironic twist, Maryland’s Judge Platt relied on a blockbuster environmental law and a lion of left-wing jurisprudence to rule against Annapolis in favor of oil and gas purveyors. Quoting a 2011 decision by the late U.S. Supreme Court Justice Ruth Bader Ginsburg, he found that the 1963 federal Clean Air Act (CAA) bestows the power to regulate greenhouse-gas output on the U.S. Environmental Protection Agency “in combination with state regulators.” State courts, Ginsburg reasoned, can’t take a “parallel track” to control the carbon emissions that intensify global warming. 

New Jersey’s Judge Hurd also cited the CAA to find New Jersey overreached by asking its courts to address global climate concerns. Energy producers have tried to convince the U.S. Supreme Court to block the litigation by liberal lawmakers and prosecutors, but to no avail so far.

Chevron’s co-defendants include BP, ConocoPhillips, Exxon Mobil, Shell Oil Products Company,  and the American Petroleum Institute, the nation’s largest fossil-fuel trade association. Last March, Democratic Bucks County Commissioners Diane Ellis-Marseglia and Bob Harvie spearheaded the lawsuit accusing the entities of well-funded “efforts to deceive the public and consumers — in and outside of Bucks County — about the role of fossil-fuel products in causing the global climate crisis.” 

The complaint argued a warming planet dangerously elevates sea levels and worsens other natural disasters. The petition requests damages to chasten the corporations and to fund stormwater-management improvements and other infrastructure the commissioners say will counteract global warming’s effects.

Ellis-Marseglia and Harvie’s Republican colleague Gene DiGirolamo initially backed the suit, saying oil and gas companies “lied to all of us,” but withdrew his support days later at a Board of Commissioners meeting. He said he “considered this for the past seven or eight days” but he didn’t elaborate. 

The D.C.-based nonprofit Center for Climate Integrity (CCI) has fomented much of the anti-fossil-fuel litigation in Bucks and elsewhere. As this site reported last June, CCI has been urging Chester and Delaware counties — both with majority-Democrat governing boards — to launch equivalent lawsuits. 

If Bucks receives a monetary judgment or settlement, the lawyers representing it will get an epic payday. Last month, Broad + Liberty obtained their contingency-fee schedule. It would give plaintiff’s counsel 25 percent of damage awards under $100 million, 20 percent of recovery between $100 million and $150 million, and 15 percent of damages above $150 million. 

DiCello Levitt, a national law firm, handles the case on Bucks’s behalf. Neither legal counsel for either side, nor county solicitor Amy Fitzpatrick, nor the commissioners replied to emails requesting comment.

While courts skewer the plaintiff’s legal arguments, some experts furthermore doubt their scientific claims. Bucks’s lawyers complain that the county “has suffered, is suffering, and will continue to suffer injuries from defendants’ wrongful conduct.” For example, they wrote, Bucks County endures more massive floods now than it did in past decades.

But Bucks’s population has grown dramatically at the same time fossil-fuel use skyrocketed in the latter half of the 20th century. The U.S. Census Bureau recorded a Bucks population of 144,234 in 1950 and a 646,173-person count five years ago. That boom led suburban development to expand, covering what were once natural, permeable surfaces.

According to former Delaware state climatologist David Legates, it is that vast expansion of the  suburbs, not warming, that has increased flooding in Bucks County and similar regions near large cities.

“It has everything to do with human activity and nothing whatsoever to do with climate change,” Legates explained. “You’ve got a lot more development, you’ve got a lot more houses, asphalt, concrete, parking lots, buildings. The water that hits goes into the Delaware River, goes into the Schuylkill River, goes into those rivers much faster than it would have 50, 60, 70, 80 years ago.”

The Bucks petition also contends climate change has caused the county to experience tornadoes more often — only eleven between 1970 and 1999 versus nine in the last three years. That dovetails with tornadoes getting more frequent nationwide. Yet Legates, a retired professor at the University of Delaware and a research fellow at the nonprofit Independent Institute, says higher apparent tornadic activity owes to better detection. 

U.S. tornado frequency shot up around 1990, the same time the National Weather Service started using its WSR-88D radar system instead of the less advanced WSR-74. Since that time, milder tornadoes have reportedly become more frequent while more damaging storms have hit less often.

“We can see tornadoes a whole lot better, [we’re] more advanced, and we have the ability to detect them and see that there’s rotation when, before, it might’ve just been high winds,” Legates said.

Bradley Vasoli is a politics and government correspondent at Broad + Liberty.