September 22, 2020
On September 9th, the City of Charleston filed a complaint against a number of oil companies in state court alleging nuisance, trespass, and unfair trade practices related to the companies’ marketing of petroleum products. The city asserts the companies’ actions contributed to worsening climate change, which has had direct impacts on the city. The state of Connecticut filed a more limited complaint in state court on September 14th against Exxon Mobil Corporation alleging the oil company engaged in deceptive and unfair trade practices in marketing its products to the public with the knowledge that use of those products would contribute to climate change. The new filings join a litany of similar suits being filed around the country alleging climate change damages, including suits in Colorado, Massachusetts, Baltimore, New York City, and claims by multiple municipalities in California. Many of these suits have bounced from state court to federal court and back again. The Fourth, Ninth, and Tenth Circuits have all ruled in one or more cases that oil companies could not satisfy the requirements to remove these claims to federal court.
One of the more common allegations running throughout these climate lawsuits is that oil companies have engaged or are currently engaging in “greenwashing” campaigns. As defined in the Connecticut Complaint, “[g]reenwashing is a practice in which a company uses imagery and language in advertising and promotional materials to suggest to consumers the company is environmentally responsible and consumers should buy its products.” The plaintiffs all similarly allege oil companies were aware of the impacts widespread use of their product would have on greenhouse emissions and engaged in efforts to conceal those facts, and the likely consequence of increased greenhouse gas emissions, from the public.
Oil companies and industry observers have described these suits as being driven by special interest and achieving nothing to address a serious issue. The South Carolina Chamber of Commerce, commenting on the Charleston suit put it bluntly: “[we believe] the fight against climate change requires all of us to work together to achieve real solutions, not file frivolous lawsuits.”
Thus far, decisions reaching the merits of the climate suits’ allegations are limited. It remains unclear what results are likely to be achieved through the actions, and what, if anything, will be done with any damages that might ultimately be awarded to address climate related harms. What is relatively certain, given the torturous battles over the proper court to hear these cases, is that litigation will drag out for the foreseeable future, and the number of cases will only increase.