IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ex rel. )
KATHLEEN JENNINGS, Attorney )
General of the State of Delaware )
)
Plaintiff, )C.A. No. N20C-09-097 MMJ CCLD
)
BP AMERICA., 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 )
ENERY CORPORATION, APACHE )
CORPORATION, CNX RESOURCES )
CORPORATION, CONSOL ENERGY )
INC., OVINTIV, INC., and AMERICAN )
PETROLEUM INSTITUTE, )
)
Defendants. )
1
Submitted: February 12, 2024
Decided: February 14, 2024
Upon The State of Delaware’s Application for
Certification of Interlocutory Appeal
DENIED
Upon Defendants’ Conditional Cross-Application for
Certification of Interlocutory Appeal
DENIED
ORDER
(1) The State of Delaware has moved for an order certifying an interlocutory
appeal to the Delaware Supreme Court. The determination of whether to certify an
interlocutory appeal lies within the discretion of the Court and is analyzed under the
criteria set forth in Supreme Court Rule 42(b). Rule 42(b)(i) states: “No
interlocutory appeal will be certified by the trial court or accepted by this Court
unless the order of the trial court decides a substantial issue of material importance
that merits appellate review before final judgment.” Rule 42(b)(ii) admonishes:
“Interlocutory appeals should be exceptional, not routine, because they disrupt the
normal procession of litigation, cause delay, and can threaten to exhaust scarce party
and judicial resources. Therefore, parties should only ask for the right to seek
interlocutory review if they believe in good faith that there are substantial benefits
that will outweigh the certain costs that accompany an interlocutory appeal.”
2
(2) Assuming that the gating requirement of Rule 42(b)(i) has been satisfied,
an application also must meet one or more of the eight factors set forth in Rule
42(b)(iii). Rule 42(b)(iii) counsels: “After considering these factors and its own
assessment of the most efficient and just schedule to resolve the case, the trial court
should identify whether and why the likely benefits of interlocutory review outweigh
the probable costs, such that interlocutory review is in the interests of justice. If the
balance is uncertain, the trial court should refuse to certify the interlocutory appeal.”
(3) In this action, the State seeks to hold major fossil fuel companies and a
trade association liable for deceiving consumers and the public about climate change
impacts resulting from the use of fossil fuels. The State alleges: negligent failure to
warn, trespass, common law nuisance, and violations of the Delaware Consumer
Fraud Act.
(4) By Opinion dated January 9, 2024 (“Opinion”), this Court made the
following findings.
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 common law.
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
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source is the primary responsibility of state and local
governments.
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.
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 amend with particularity, pursuant
to Rule 9(b).
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
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whether the danger was open and obvious is not
appropriate for resolution at the dismissal stage.
This Court finds that the DCFA claims are barred by
the five-year statute of limitations. Tolling does not apply.
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.1
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. 2
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.
1
Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021).
2
See City and County of Honolulu v. Sunoco LP, 2023 WL 7151875, at *16 (Haw.).
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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 hereby GRANTED IN PART
AND DENIED IN PART.
CITGO Petroleum Corporation and Murphy USA
Inc.’s Joint 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.
CNX Resources Corporation’s Motion to Dismiss
for Failure to State a Claim Based Upon Misrepresentation
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is hereby GRANTED IN PART WITH LEAVE TO
AMEND WITH PARTICULARITY, DENIED AS TO
DUTY TO WARN.
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 DENIED.3
(5) Certain Defendants moved for reargument. The Court issued an Order
dated February 12, 2024, denying the motions. Application for interlocutory appeal
was not ripe for consideration before resolution of the motions for reargument.
(6) The State argues that interlocutory appeal pursuant to Supreme Court Rule
42(b) is justified because the Opinion: decided a substantial issue of material
importance; involves important questions of first impression; and conflicts with
decisions rendered by other trial courts in Delaware. Further, the State contends that
interlocutory review would serve considerations of justice and would advance
judicial economy.
3
State ex rel. Jennings v. BP America Inc., et al., 2024 WL 98888, at *24-25 (Del. Super.).
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(7) Specifically, the State asserts that five substantial issues of material
importance warrant interlocutory review:
1. Whether the federal Clean Air Act (“CAA”)
preempts the State’s claims insofar as they seek relief for
harms involving out-of-state emissions;
2. Whether State ex rel. Jennings v. Monsanto Co.,
299 A.3d 372 (Del. 2023), limits the State’s public
nuisance claim to harms to State-owned lands;
3. Whether the statute of limitations bars the State’s
claims for violations of the DCFA;
4. Whether Superior Court Civil Rule 9(b) requires
dismissal of all claims alleging misrepresentations by
Defendants; and
5. Whether the claims against TotalEnergies SE
should be dismissed for insufficient service of process.
(8) The State also argues that the Opinion decided important questions of first
impression regarding the preemptive scope of the CAA. The Opinion purportedly
is in conflict with a recent decision of the Supreme Court of Hawai’i.
(9) The State contends that the Opinion conflicts with other Delaware case
law by applying the Rule 9(b) particularity requirement to all misrepresentation
claims, including the Delaware Consumer Fraud Act claims.
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(10) Finally, the State asserts that unless the Opinion is reversed on
interlocutory appeal, the parties will need to ultimately re-do all stages of litigation,
including discovery, motion practice, expert opinions and trial.
(11) Defendants oppose certification of the interlocutory appeal. With regard
to the CAA, Defendants argue that although the Opinion is the first time a Delaware
court has ruled on the issue, the Court relied on established federal precedent
supporting preemption. With regard to application of the recent Delaware Supreme
Court Monsanto decision, interlocutory review is not warranted simply because a
trial court applies a Supreme Court ruling for the first time. As to Rule 9(b),
Defendants point out that it is well-settled that allegations of fraud must be pled with
particularity. In any event, the misrepresentation claims were dismissed without
prejudice, subject to rejuvenation through amendment. Finally, the parties fully
briefed the dismissal based on failure of service and the implicit good cause issue.
(12) Defendants alternatively move that should the Court certify the CAA
issue for interlocutory review, Defendants’ conditional cross-appeal should be
granted. The specific question would be whether the State’s claims seeking relief
for harms allegedly arising from interstate and international emissions are precluded
and preempted by federal law. The purpose would be to present all potentially case-
dispositive CAA issues.
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(13) The Court finds that the Opinion determines a substantial issues of
material importance.4 However, the likely benefits of interlocutory review do not
outweigh the inefficiency, disruption, and probable costs. Thus, interlocutory
review will not serve the interests of justice.
(14) Reliance on well-established federal precedent, or application of a recent
Delaware Supreme Court decision, are not the type of questions of law resolved for
the first time in Delaware that warrant interlocutory appeal as a matter of right. The
Court finds that the Opinion does not conflict with the decisions of other Delaware
trial courts. Interlocutory appeal clearly will not terminate the litigation.
THEREFORE, the State has failed to demonstrate that any of the eight
criteria set forth in Delaware Supreme Court Rule 42(b)(iii) require that the Court
exercise its discretion to certify interlocutory appeal. The State of Delaware’s
Application for Certification of Interlocutory Appeal is hereby DENIED.
Defendants’ Conditional Cross-Application for Certification of Interlocutory Appeal
is hereby DENIED.
IT IS SO ORDERED.
/s/ Mary M. Johnston
The Honorable Mary M. Johnston
4
Supr. Ct. R. 42(b).
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