Rhode Island’s seven-year legal battle against fossil fuel companies has amassed thousands of pages of documents across multiple courts.
But what lawyers will argue in a Tuesday morning hearing in Newport County Superior Court focuses on a single phrase: “and/or.”
Lawyers for Chevron Corp., one of the 21 oil and gas companies named in the 2018 state complaint, want the case tossed on the grounds that the state failed to investigate a key claim in its climate change lawsuit. The challenge filed by then-Attorney General Peter Kilmartin seeks damages from fossil fuel companies on the assertion that for each company, “a substantial portion of fossil fuel products are or have been extracted, refined, transported, traded, distributed, marketed, promoted, manufactured, sold, and/or consumed in Rhode Island.”
“The State does not present a scintilla of evidence concerning what it knew or whether it conducted any investigation into these facts in 2018 when it filed its Complaint,” Gerald Petros, partner with Providence firm Hinckley Allen & Snyder LLP who is representing Chevron Corp. wrote in a Feb. 7 filing in Newport County Superior Court. Los Angeles-based Gibson Dunn & Crutcher LLP is also representing the company in court proceedings.
And, according to Petros, there is no evidence of any oil production or refinement in Rhode Island, as confirmed by the state’s own Office of Energy Resources website as well as the U.S. Department of Energy.
The state offers a different interpretation.
“The phrase “and/or” makes paragraph 21(g)’s meaning plain: The State alleges that a substantial portion of Chevron’s fossil-fuel products are involved in some combination of the in-state activities listed in the sentence — not necessarily all of those activities,” Matthew Edling, a partner with San Francisco-based Sher Edling LLP that joined with the AG’s office on the complaint, wrote in a March 21 response. “The State did not allege that each of the listed activities individually and independently accounted for a substantial portion of Chevron’s fossil fuel business in Rhode Island. That is why the State used the phrase ‘and/or,’ rather than the word ‘and’ by itself.”
The dispute over word choice marks the latest twist in a long and winding saga of the landmark climate action lawsuit. Rhode Island was the first state in the country to sue fossil fuel companies, setting off a wave of similar attempts by other states, cities and counties to use the courts to force oil and gas companies to take responsibility for their part in climate change. The initial 2019 ruling by Providence Superior Court Judge William E. Smith triggered a series of jurisdictional appeals by the fossil fuel companies that weren’t resolved until April 2023, when the U.S. Supreme Court declined to take up the companies’ petition to have the case heard in federal court.
After the case returned to state court, Chevron took issue with the wording of the state’s initial complaint. Both sides verbally agreed in June 204 that they needed more information about the nature of fossil fuel companies’ activities and business in Rhode Island, according to Edling’s response in court. Chevron led negotiations for all the named fossil fuel companies, proposing a voluntary agreement around information sharing on Oct. 3, 2024, Edling wrote.
The state accepted the offer and returned a signed copy to Chevron the next month, only for Chevron to request new conditions to the agreement. The state pushed back and Chevron pulled out of the agreement.
By Dec. 13, 2024, Chevron sent the state a letter challenging the paragraph about local impacts of oil production and refinement and demanding the state produce evidence to show Chevron’s local activities. A formal motion to toss the entire lawsuit was filed in Newport County Superior Court in February.
‘Shotgun allegations’
The language spat around “and/or” lays the framework for a more significant allegation regarding the state’s own court rules. Under Chapter 11 of the Superior Court Rules of Civil Procedure, any papers or documents submitted by attorneys in any case must have a factual basis — meaning existing evidence or the likelihood of evidence once an investigation is conducted. Chevron’s lawyers allege that the state never attempted to investigate or prove its claims regarding the existence of oil production or refinement in Rhode Island at all, rendering its claims “baseless,” “frivolous,” and in violation of court procedural rules.
That the lawsuit relies on the exact same wording for all companies named further suggests lack of research, according to the Feb. 7 filing.
“These shotgun allegations beg credulity: did fourteen separate companies all engage in identical activities in Rhode Island?” the motion states.
The state, in turn, points to the six-year span between when its lawsuit was filed, and when the oil and gas company raised questions about procedural violations.
“Chevron has wasted months of the State’s time and resources, and now it wastes the Court’s,” Edling wrote in the March 21 response on behalf of the state.
These shotgun allegations beg credulity: did fourteen separate companies all engage in identical activities in Rhode Island?
The state also listed examples of Chevron’s historic and ongoing activities in Rhode Island as proof of the factual basis for its case. From the early 20th century until the 1980s, Chevron owned and operated a fuel terminal off Veterans Memorial Parkway in East Providence. Chevron has filed annual reports for its business in Rhode Island with the Rhode Island Department of State through 2024, while selling gas from its Philadelphia refinery into Cumberland Farms gas stations, among others, according to evidence submitted by the state.
Three days later, on March 24, the state filed another motion seeking to force Chevron and the other companies named as plaintiffs to hand over evidence detailing sales at local gas stations, natural gas business activities and advertising in Rhode Island.
The hearing Tuesday morning before Rhode Island Associate Justice William E. Carnes includes oral arguments over Chevron’s push to toss the case, and the state’s motion to compel companies to provide more evidence on business activity and sales in Rhode Island. An additional hearing is scheduled before Carnes on May 8, according to the public docket.
Judges in four other states, including New Jersey, Maryland, Delaware and New York have tossed similar state, county or city-level challenges against fossil fuel companies. But dozens more remain under consideration in state-level courts across the country, including in Massachusetts.
And in March, the U.S. Supreme Court declined to take up the bid led by Republican state attorneys general that would have blocked these lawsuits from proceeding.
Theodore Boutrous, an attorney with Gibson, Dunn, and Crutcher LLP representing Chevron, pointed to the dismissals of similar lawsuits in other state courts when asked for comment.
“These claims are based on interstate and international emissions and, therefore, are precluded and preempted by federal law under clear U.S. Supreme Court precedent,” Boutros said in an emailed statement Monday. “As the New Jersey Superior Court held in dismissing New Jersey’s similar state lawsuit, ‘the leading and most persuasive case supporting dismissal is the Second Circuit decision in City of New York. There, the federal appeals court rejected the availability of state tort law in the climate change context.’”
Rhode Island Attorney General Peter Neronha maintained the state was on “the right side of the law.”
“It’s rich, pun intended, that Big Oil would suggest that our case isn’t well-grounded in fact, considering that the harsh realities of climate change are presenting themselves all around us while these companies turn a blind eye in order to protect their profits,” Neronha said in a statement Monday. “Look, semantics aside, oil and gas companies must be held responsible for lying and causing great damage to the people of Rhode Island, Americans generally, and the environment. We believe we are on the right side of the law here, and we will make that clear tomorrow in court.”
Legislative parallel
Meanwhile, lawmakers in 10 states, including Rhode Island, are considering legislation that would force fossil fuel companies to pay recovery costs for climate-related disasters.
Rhode Island’s proposed “Climate Superfund” bill would allow the Rhode Island Department of Environmental Management to bill companies that “engaged in the trade or business of extracting or refining fossil fuels,” based on what the state or municipalities spent on climate mitigation since 2009. Any company responsible for emitting or producing at least 1 billion tons of greenhouse gas emissions between 1990 and 2024 would be subject to review and potential repayment to state and local entities, according to the bills cosponsored by Democratic Rep. Jennifer Boylan of Barrington, and Sen. Linda Ujifusa of Portsmouth.
Similar policies were adopted by lawmakers in Vermont and New York last year.
Boylan described the proposal as a parallel way to recoup damages from big polluters, rather than an alternative to the state’s ongoing climate action lawsuit.
“Both are important,” Boylan said in an interview on Monday.
It’s rich, pun intended, that Big Oil would suggest that our case isn’t well-grounded in fact, considering that the harsh realities of climate change are presenting themselves all around us while these companies turn a blind eye in order to protect their profits.
Rhode Island is staring down a projected $250 million budget deficit for its upcoming fiscal year, alongside potentially disastrous cuts to federal funding. That makes additional revenue sources especially important to pay for projects that protect against sea level rise, flooding and other climate change-induced disasters, Boylan said.
“Every day that we wait, the amount we’re spending on climate mitigation is getting bigger and bigger,” Boylan said. “It’s not just about having oil rigs or being near the coast. It’s really catastrophic, unprecedented weather, and you combine that with sea level rise, it’s a real problem.”
Boylan’s and Ujifusa’s bills remain under consideration by committees in their chambers, following initial hearings in February and March, respectively.
This story was originally by the Rhode Island Current.
