Court watchers predict new types of lawsuits and administrative complaints as advocates get creative in challenging questionable climate commitments made by companies and government officials.
Promises to reduce emissions and buzzwords like “carbon neutrality” are opening up new avenues for litigation and non-judicial complaints through agencies like the Federal Trade Commission against a variety of sectors and products using climate-focused language in their advertising and business practices.
“The more companies focus on these goals and start pushing them out there, the more possibilities there are for unfair and deceptive practices,” Earthjustice senior attorney Hana Vizcarra said.
Deceptive climate marketing is usually lumped into “greenwashing.” But Grantham Research Institute on Climate Change and the Environment research fellow Joana Setzer said climate misinformation has become a distinct “world of its own,” more accurately characterized as “climate-washing.”
Advertising blitzes that tout natural gas as clean energy, promote “green” diesel, or put the burden of reducing harm on individuals all have come under fire for promoting misinformation about who is truly responsible for the climate crisis, advocates say.
Almost 50 claims are pending worldwide in courts and before oversight bodies such as advertising standards boards, according to a policy paper that Setzer co-authored.
‘Blah, Blah, Blah’
This litigation is “just going to increase and become more frequent,” especially as more statements emerge from U.N. climate conferences, according to Setzer.
Climate-washing used to be a predominately corporate problem, but what’s new about this wave is that governments are following suit, she noted.
Setzer sees a lot of potential for success in these cases, because deceptive marketing is an intuitive type of claim—it’s easy for people to realize when they’re victims of false advertising.
“There is that question, is this real? Are they promising something? Or is it, using Greta’s term, ‘blah, blah, blah,’” she said, referring to youth climate activist Greta Thunberg.
These types of cases are being tested globally on a range of industry defendants. Meat and energy companies in Europe are battling complaints over their “climate friendly” product advertising. U.S. states and municipalities like Baltimore and Minnesota are waging lengthy legal challenges against fossil fuel companies over their climate statements to consumers.
Part of the problem is that governments and industries are putting forth “very loose or no plans” on how to actually achieve their carbon goals they use to bolster their brands, according to Lisa Benjamin, a Lewis & Clark Law School professor and Setzer’s co-author.
“This phenomena of net-zero targets and commitments that are being made will then lead us to the next step of actual litigation and potential liability,” she said.
Without comprehensive regulatory guidance, advertising products as climate-friendly will be under a microscope for potential litigants.
The Federal Trade Commission is grappling with the climate-washing question through a false advertising complaint levied against Chevron’s claims of renewable energy investments by Greenpeace and other groups in March 2021.
The complaint is based on alleged violations of FTC’s “Green Guides,” which provides guidance for manufacturers on how best to represent their products’ environmental impact. The guides haven’t been updated since 2012.
But long-term climate promises are less clear cut than specific rules on what products can be considered recyclable or not, which is the type of guidance included in the Guides.
Regulatory certainty in this area could alleviate some of the “growing pains” that could arise when thinking about advertising accountability, Vizcarra said.
There’s also a chance that advertisers and public relations firms could be targeted in international venues for the work they create for businesses around clean energy and net-zero commitments.
Those challenges would likely surface in international courts, Benjamin said, since it would be difficult to implicate advertising companies in marketing they were hired to do in U.S. courts.
Legal challenges over industry climate deception that have the most potential for impact in the U.S. have been largely overshadowed by long jurisdictional fights over which courts should handle the cases.
But cases brought by states, counties, and cities still carry a lot of momentum, according to Loyola University New Orleans law professor Karen Sokol.
Once the cases get to the discovery process in state trials, courts could learn more about how firms and even platforms like Google and Facebook contributed to misinformation spread, Sokol said.
“What comes out in discovery, particularly about their current ongoing practices, could be quite important for thinking about potentially new defendants in subsequent cases,” she said.