California’s ExxonMobil Suit Marks New Front in Plastics Fight

California’s decision to target the root of plastic pollution instead of downstream companies sets its ExxonMobil lawsuit apart from a swirl of other environmental cases, but several attorneys say the strategy could prove difficult to litigate.

The lawsuit, filed Sept. 23 in San Francisco County Superior Court, accused the energy giant of promoting all plastics as recyclable when few were. This caused consumers to buy more single-use plastic products than they would have otherwise, causing and worsening a plastic pollution crisis, the complaint said.

California’s case against ExxonMobil Corp. is the latest example of a growing push for extended producer responsibility, a policy framework that holds manufacturers accountable for their products’ end lives, said Daniel Esty, director of the Yale Center for Environmental Law and Policy.

Many states have propped up laws to make manufacturers collect, recycle, or otherwise safely dispose of their materials. But litigation like California’s extends that statutory structure into a liability concept, signaling a possible “opening shot of a new line of legal assault,” Esty said.

States have sued over plastics before, but those lawsuits were aimed at consumer brands. New York, for example, sued PepsiCo. Inc. last year over Buffalo River plastic pollution. That case is still tied up in the New York Supreme Court for Erie County.

California Attorney General Rob Bonta is seeking from ExxonMobil a multibillion-dollar abatement fund for recycling reeducation and other programs, disgorgement of profits, and other penalties, he told a Climate Week NYC crowd on Tuesday afternoon.

“We think we’ll win this one,” he said.

Litigating the Plastics Case

Bonta’s “landmark case” against ExxonMobil Corp. marks the first time a government official has taken legal action against an oil company for plastic pollution, said Pat Parenteau, senior climate policy fellow at the Environmental Law Center.

The lawsuit’s false advertising and unfair competition claims have the most “bite” due to their “reasonably strong factual foundation,” Esty said. But public nuisance claims, which have long been vehicles for environmental litigation, could be the hardest to push through in this case, he said.

Nuisance claims against a point source of plastic will require “indirect inference” to reach a conclusion about pollution liability, Esty said. That means Bonta’s case will be harder to prove than a case that goes after, for example, people who were caught on camera littering, he said.

California has some of the country’s strongest public nuisance laws—but that doesn’t mean they’ll sail through in the Exxon case, Parenteau said.

“It’s one of those counterfactual arguments, which is ‘What would the world have been like if you hadn’t lied?’” Parenteau said.

Exxon will likely argue that it didn’t lie—that it had always explained its practices in the fine print, or that its marketing was aspirational and not misrepresentation, Parenteau said. First amendment claims about political and commercial speech are also likely, he said.

In response to the lawsuit, which was accompanied the same day by a similar one from environmental groups, ExxonMobil said California is to blame for “ineffective recycling.”

“Instead of suing us, they could have worked with us to fix the problem,” the company wrote in a Sept. 23 statement.

Overall, the lawsuit reflects a broader trend of penalizing companies whose business model depends on “spilling harm onto others,” Esty said. The movement has targeted oil and gas, but also manufacturers of chemicals and other pollution sources.

“I always found it quite risky” that ExxonMobil claimed plastics were recyclable when recycling rates never hit double digits, said Judith Enck, president of nonprofit Beyond Plastics and a former EPA regional administrator. “I always wondered when someone was going to look at the numbers.”

It’s unclear if California’s lawsuit will be enough to show consumers that plastics aren’t recyclable, Enck said.

“The public is confused, and it’s because the plastics industry has purposely confused people,” she said.

Fueling Inspiration

Blue states like New York, Massachusetts, Connecticut, and Minnesota could soon follow with similar plastics lawsuits, Parenteau said. Chances of a larger state litigation trend are better if California can make it past the inevitable first round of motions to dismiss the case, he said.

“Some of these states may wait and see how the California case progresses before they jump in,” Parenteau said.

After his lawsuit announcement went live earlier this week, Bonta urged other states to file similar litigation against ExxonMobil.

“We hope we can fuel inspiration,” Bonta said of his state’s climate leader status at Climate Week NYC.

With the US Supreme Court rolling back federal regulations, states concerned with their environmental protections are increasingly going to the courts instead of relying on federal law, Parenteau said.

“It is disappointing that legal action has diverted time and resources away from our industry’s efforts to scale up a circular economy for plastics, where more plastics are reused and remade instead of discarded,” the American Chemistry Council, another party that Bonta is fighting in court over alleged plastic recycling deception, said in an emailed statement.

The case is People v. ExxonMobil Corp., Cal. Super. Ct., No. CGC24618323, filed 9/23/24.