On January 9, 2024, a Delaware state court judge issued his opinion on the various motions to dismiss filed in the case brought by the State of Delaware against the major fossil fuel companies. (This case is one of approximately three dozen lawsuits filed over the past several years alleging tort and consumer protection claims against major fossil fuel companies in connection with greenhouse gas emissions and climate change.) Although the court permitted a number of claims to proceed past the motion to dismiss stage (while dismissing certain claims and defendants), the reasoning the court adopted significantly limited any potential recovery by the State of Delaware from the fossil fuel companies.

Specifically, the Court held that “damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution . . . are beyond the limits of Delaware common law,” even though the Court permitted claims to proceed concerning “damages resulting from air pollution originating from sources in Delaware” since “[a]ir pollution prevention and control at the source is the primary responsibility of state and local governments.” In effect, the Delaware court vastly limited the scope of the claims in this case, since the State of Delaware may now only pursue tort claims for greenhouse gas emissions that originate from Delaware--which only concerns a minuscule portion of the global activities of the fossil fuel companies. Should this reasoning be adopted by the other similar lawsuits that were filed, it will likely discourage the proliferation of further lawsuits unless the local government entity at issue is large enough that the scale of greenhouse gas emissions in its territory would be significant (e.g., if the states of California or Texas filed such a lawsuit).

The significance of this ruling in substantially diminishing the claims at issue has been recognized in legal commentary and the press--and, indeed, by the State of Delaware, which on January 19, 2024 sought an interlocutory appeal of the court's ruling, stating that “it significantly limits the State's recoverable injuries under all of its tort claims.” The ultimate resolution of this issue will have a substantial impact on this and other lawsuits alleging damages based on greenhouse gas emissions and climate change.