Around the world, companies face claims that they have misled or deceived the public regarding the climate impacts of their products. While these cases might all be characterized as “climate deception” cases, there are meaningful distinctions in the plaintiffs’ allegations and claims. This post draws on recent and upcoming developments to highlight some of the distinctions, including in a case brought by the Board of County Commissioners of Boulder County and the City of Boulder (Boulder) in which the U.S. Supreme Court will soon decide whether to consider the fossil fuel company defendants’ argument that federal law preempts Boulder’s state-law claims. These distinctions could have implications for the impact of the Supreme Court’ decision on the companies’ certiorari petition.
Just in the past two weeks, the Judicial Court of Paris ruled in a case brought by nongovernmental organizations (NGOs) that TotalEnergies SE and an affiliate (TotalEnergies) misled consumers with claims regarding its goals to achieve net zero emissions by 2050 and to be a leader in the energy transition. The New York Attorney General also reached a settlement resolving claims that U.S. subsidiaries of the Brazilian beef producer JBS (JBS USA) violated New York State consumer protection laws with a misleading “Net Zero by 2040” claim. On October 28, the NGO Mighty Earth announced its own lawsuit (filed at the end of September) alleging that JBS USA’s representations regarding its Net Zero by 2040 commitment violated the District of Columbia’s consumer protection law. And a U.S. district court recently dismissed claims that a Zbar energy snack bar was deceptively labeled as “climate neutral certified.”
These cases are grounded in consumer protection theories and are concerned with harms caused by greenwashing and climate washing practices. The relief obtained in the Paris court’s decision and the New York Attorney General’s settlement are consumer-facing and mostly forward-looking. The Paris court ordered TotalEnergies to take down statements from its website regarding its carbon neutrality goal and the company’s commitment to sustainable development; the court also awarded non-pecuniary damages of €8,000 to each of the three NGO plaintiffs. The New York settlement with JBS USA requires the defendants to remove or revise consumer-facing statements regarding the company’s “Net Zero by 2040” goal and to ensure that any future statements regarding the goal are consistent with guidance from the Attorney General. In addition, JBS USA agreed to make a $1.1 million payment to Cornell University’s College of Agriculture and Life Sciences’ New York Soil Health and Resiliency Program for the purpose of promoting climate-smart agriculture at New York farms.
Next week, Boulder will offer its rationale for why the U.S. Supreme Court should not get involved in its case against fossil fuel companies. Boulder will file a response to fossil fuel companies’ petition for writ of certiorari seeking the U.S. Supreme Court’s review of a Colorado Supreme Court decision that held that federal law did not preempt Boulder’s common law tort claims for damages caused by the companies’ alleged role in exacerbating climate change and causing harm to Boulder and its residents.
In addition to arguing that the Colorado Supreme Court’s decision was wrong, the companies’ certiorari petition seeks to bolster the case for Supreme Court review by aggregating all of more than 30 climate cases brought by state, Tribal, territorial, and local governments against fossil fuel industry defendants, characterizing them as presenting a monolith of claims that the Supreme Court can resolve by hearing the Boulder case. The fossil fuel companies’ petition argues that Boulder’s case presents an opportunity “definitively to address whether the state-law claims asserted by dozens of States and municipalities can even proceed.” The companies argue that the Colorado Supreme Court’s decision “deepens a clear conflict” on the question of federal preemption of state-law claims seeking relief for harms caused by climate change. As proof of this conflict, they point to a 2021 Second Circuit decision that found that federal law preempted New York City’s state-law tort claims and a 2023 Hawai‘i Supreme Court decision which allowed state-law claims to proceed. The companies contend that the Supreme Court’s review “is badly needed to resolve the conflict and to prevent dozens of climate change cases from improperly barreling ahead in state court.”
But there are notable differences in the claims the various subnational governmental plaintiffs are pursuing in their climate change cases. Some of these cases are climate deception or climate washing/greenwashing cases purely grounded in consumer protection law, and so, for the most part, is the relief they seek: civil penalties, injunctive relief targeting the defendants’ disclosures and representations, and disgorgement of revenues obtained through unlawful conduct. They are more akin to the cases discussed at the outset of this blog post. The cases in this vein include New York City’s lawsuit under its local consumer protection law (dismissed by the trial court but now on appeal), as well as the Connecticut, District of Columbia, and Vermont lawsuits, all of which are still pending before state and D.C. courts. Massachusetts’s pending action against Exxon Mobil Corporation includes both consumer and investor protection claims.
Other cases brought by subnational governments in the U.S. rely on theories that the fossil fuel industry defendants are liable for the harmful effects of climate change because their alleged concealment of the links between their products and climate change delayed or prevented action to transition from carbon-emitting energy sources, leading to sea level rise, extreme weather, and other climate change harms in the plaintiffs’ communities. These case seek damages or other compensation for these harms. Cases that rely primarily on this theory include City & County of Honolulu v. Sunoco LP—in which the Supreme Court declined to weigh in on preemption issues only 10 months ago. In that case, the Court denied fossil fuel companies’ certiorari petitions seeking review of the 2023 Hawai‘i Supreme Court decision allowing Honolulu to proceed with its state-law claims against the defendants. The Hawai‘i Supreme Court described Honolulu’s lawsuit as “a traditional tort case alleging
Defendants misled consumers and should have warned them about the dangers of using their products.” Other cases that assert similar theories of liability include the cases brought by Annapolis, Anne Arundel County (Md.), Baltimore, Bucks County (Pa.), the State of California and California local governments, Charleston (S.C.), Chicago, Delaware, Hoboken (N.J.), Maine, Makah Indian Tribe, Minnesota, New Jersey, Puerto Rico, and Shoalwater Bay Indian Tribe.
A handful of the subnational cases against fossil fuel industry defendants include not only climate deception-based claims but also claims that the defendants’ upstream production is sufficient, in and of itself, to impose liability for the harmful effects of climate change. New York City’s state-law tort action (in which the 2021 Second Circuit decision affirmed dismissal) was such a case. Boulder’s case also is one of these, as are, arguably, the cases brought by Multnomah County and by Puerto Rico municipalities.
Most of these cases are still running their course through state trial and appellate courts (though Puerto Rico has withdrawn its suit, and the City of Charleston, South Carolina elected not to appeal the dismissal of its case). The action the Supreme Court takes on the certiorari petition in Boulder’s case is likely to have repercussions in all of the cases, but given the differences in the cases, the Court’s decision is unlikely to be the final word on climate deception claims.
Great Job Margaret Barry & the Team @ Climate Law Blog Source link for sharing this story.
