/>iIn recent years, environmental nongovernmental organizations (NGOs) and local governments have increasingly sued gas, oil, and energy companies, challenging their historic messaging on climate change, plastic recycling, and fossil fuels effects.
We have previously written about civil litigation brought by consumers, environmental NGOs, and government entities aiming to drive environmental policy changes outside the standard regulatory process. These lawsuits often involve allegations of greenwashing and target product attributes such as recyclability or biodegradability. A common thread among these cases is the focus on products alleged to have false or misleading claims related to its environmental friendliness. The more recent “climate deception” and “corporate greenwashing” types of lawsuits, however, are not always tied to a specific product. Regardless of where the cases are brought and who the individual defendants are, plaintiffs’ allegations appear to follow a similar playbook.
Case Developments
California:In September 2024, four nonprofit groups sued Exxon Mobil Corporation alleging that Exxon “created a single use plastics pollution crisis across California.” The nonprofits further alleged that Exxon falsely characterized single-use plastics as capable of being safely disposed of into landfills, recycling, or incineration even though single-use plastics do not biodegrade and have various harmful additives and chemicals so that they cannot be safely landfilled, recycled, or burned. More recently, Exxon moved to dismiss the nonprofits’ complaint, in large part, because Exxon does not actually manufacture or advertise single-use plastics and that many groups, including plaintiffs and local governments, have promoted recycling as a way to dispose of single-use plastics over the years. Oral argument on the motion is currently set for June 5.
- A related case by the State of California with similar allegations against Exxon was remanded to state court. Exxon has appealed the federal’s decision to remand, and the appeal is pending.
New York:In 2021, the City of New York sued several oil and gas companies and a trade association, alleging that the defendants violated New York state consumer fraud and deceptive trade practices statutes. The city claimed the defendants had engaged in a deceptive advertising campaign that (1) misrepresents the impact of oil and gas on the climate and (2) engaged in “corporate greenwashing” by portraying themselves as being “climate-friendly.” In January, the court dismissed the city’s claims, stating that the city could not simultaneously claim that consumers were being misled when the role of fossil fuels in climate change is publicly known, and the city had not satisfied statutory pleading requirements that required the plaintiff to show that the alleged “corporate greenwashing” was done “in connection with the sale” of a consumer good.
- The city had filed a similar case in 2018, seeking damages caused by global warming under nuisance and trespass theories. The district court dismissed that case with prejudice, citing federal law preemption, and the Second Circuit affirmed the decision. In dismissing the subsequent case brought by the city, the New York State Supreme Court noted that the city filed the state case three weeks after the federal case had been dismissed “effectively re-purposing many of [the City’s] allegations in the dismissed action to assert a claim under the [Consumer Protection Law].” The city’s state court case had also been removed and ultimately remanded back to state court.
Illinois: In February 2024, the City of Chicago sued oil and gas companies and a trade association, alleging a campaign to downplay fossil fuels’ role in climate change and portray themselves as leaders in fighting climate change. The court heard oral argument on the city’s motion to remand on February 5, and the decision is pending.
Takeaways
No matter what happens at the federal government level, governments (state and local) and NGOs will continue to engage on climate. (For more, see here.) Across the country, dozens of other local and state governments and environmental NGOs have sued oil and gas companies with similar allegations related to the alleged “deception campaign” and “corporate greenwashing.”
In many cases, however, the focus of the litigation has been on whether these types of claims are properly brought under state or federal law. Courts in some states have cited the lack of comprehensive regulation of greenhouses gases at the federal level as a basis to permit various state-law theories related to client to proceed. As of January, the US Supreme Court denied writs of certiorari in two cases that sought to have the Court clarify whether claims regarding oil and gas companies’ alleged deceptive marketing campaigns are preempted by federal environmental law. The issue of federal preemption will likely come to a head sooner rather than later, however, as the US Department of Justice recently sued several states to enjoin the states from bringing lawsuits against gas, oil, and energy companies under their local laws.
