“The potential that this fight has in the courts is massive,” Rep. Alexandria Ocasio-Cortez, a Democratic congresswoman from New York, said on Wednesday evening. She was one of several speakers during a climate-focused webcast who highlighted the promise and the importance of holding corporate climate polluters accountable through litigation. The online event - “Climate Change: Where Do We Go from Here?” - hosted by Vermont Sen. Bernie Sanders, discussed the planetary emergency that’s unfolding in real time and how to have a fighting chance of mitigating the crisis driven primarily by the products and the pernicious deception of the fossil fuel industry. As investigative reporters and researchers have exposed in recent years, companies like ExxonMobil had early and accurate knowledge about the climate consequences of unrestrained fossil fuel use, and yet they spent decades disseminating climate denial that has now morphed into predatory delay. “They knew since the 1970s with startling accuracy the exact temperatures that we would be experiencing in the 90s, in the 2000s, etc. They knew exactly what was going on, they knew their role, they knew their responsibility…but they very quickly decided the cheaper and easier thing to do would be to launch a muti-decade misinformation campaign in the United States and around the world,” said Ocasio-Cortez. That deceit and accompanying obstruction of effective policy responses leaves little recourse, save for the third branch of government – the judicial branch, which serves an important role in holding bad actors accountable. “Just like Big Tobacco which was held liable for the same exact thing…I think a very similar case can be brought to Big Oil and the fossil fuel companies in court,” Ocasio-Cortez added. Senator Sheldon Whitehouse of Rhode Island also invoked the tobacco comparison; he specifically called for the U.S. Department of Justice to consider prosecuting Big Oil for fraud in the same way it did with Big Tobacco. “I would love to see the Department of Justice bring exactly the kind of litigation that it won against the tobacco industry for lying about the dangers associated with its product,” he said. “When they had to stop lying, everything changed about tobacco. If the Biden DOJ would give an honest look at that kind of litigation against the lies of the fossil fuel industry, that could be a real turnaround.” Whitehouse, a former prosecutor and Rhode Island attorney general, noted that “good things have happened in honest courtrooms recently,” pointing to the Dominion case against Fox News and E. Jean Carroll’s court win against Donald Trump. He said fossil fuel companies should also have to face legal consequences.
“I think you’ve got to get them into a court of law,” Whitehouse said. This is already starting to happen, with states and municipalities filing climate liability lawsuits against major fossil fuel entities. Whitehouse noted that Rhode Island has an active case underway. Vermont, currently under a federal disaster declaration from the worst flooding it has seen in nearly a century, is also suing Big Oil. And as climate activist and author Bill McKibben said during the webcast, “Multnomah County where Portland, Oregon’s located just filed a $52 billion lawsuit in connection with the heat dome that settled over that part of the world in 2021.” Yet there is no legal action happening at the federal level to try to hold the fossil fuel industry accountable for its big climate lies. Sen. Sanders asked Whitehouse about the possibility of initiating a federal lawsuit. “These guys have been lying for decades. They’ve been causing far more damage than the tobacco industry which has only killed many millions of people. Their product now is destroying large parts of the planet. Do you got a case as Attorney General of the United States to make?” Whitehouse responded yes, “you absolutely do.” “The first thing you want to do is look at discovery,” he explained. “You want to get their facts and their material out…if you really get into the fossil fuel documents, if you get into their exchanges with their lawyers, if you get through the crime-fraud exception into that, if you can get into the documents with their public relations companies, you can put a case before the American public that will just send them fleeing.” Whitehouse said that discovery played a big part in the federal case against Big Tobacco, because it was brought under the racketeering statute RICO, which “allows for enormous discovery.” “There are very powerful tools for the Biden administration to pursue this if they wanted to give it an honest look,” he added. In response, Sanders posed an idea to take action. “Well, sounds to me like we should maybe pay the Attorney General a visit. What do you think?” “Well you have to be careful about it,” Whitehouse answered. But Sanders seemed convinced that this would be an appropriate next step. “I think it’s exactly what we should do. You indicated, we have a case to make, the world is at stake, politically I think it’s the right thing to do.” McKibben agreed that the stakes now are even higher than they were in the fight against the tobacco industry. “The tobacco industry killed us one smoker at a time. The oil industry’s taking us out one planet at a time.” And as Ocasio-Cortez said, courts have a critical role to play in this fight for a livable planet. “These fossil fuel companies bear responsibility for what they have done. And it will be and should be the power of a court to compel them to do so.”
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Story originally published in DeSmog
Companies are increasingly facing legal action over their false or misleading climate communications, according to a new report examining trends in global climate litigation. That report, released late last week, highlighted a surge in litigation around climate-related greenwashing — what researchers have termed “climate-washing” — over the past few years. Out of 81 climate-washing cases filed against companies since 2015, nearly two-thirds were brought in 2021 and 2022. By contrast, fewer than 10 such cases were filed both in 2020 and 2019. Climate-washing litigation confronts various types of deceptive or misleading claims, typically put forth by carbon-intensive corporations, that try to portray their plans, products, or operations as more climate-friendly than they actually are. By engaging in climate-washing, corporations are trying “to shift public perception regarding their business activities to be viewed as part of the solution to, rather than the primary cause of, climate change,” explains a January 2022 policy briefing examining this type of litigation. According to that briefing, legal actions around climate-washing “are likely to increase.” The new report from the London-based Grantham Research Institute on Climate Change and the Environment, titled “Global trends in climate change litigation: 2023 snapshot,” confirms that this is already happening. “Cases concerned with mis- and disinformation on climate change are far from new, but the last few years have seen an explosion of ‘climate-washing’ cases filed before both courts and administrative bodies such as consumer protection agencies,” report authors Joana Setzer and Catherine Higham said. While climate-washing might incorporate disinformation or misinformation as part of its tactics, it is “a broader term that encompasses the deceptive practices employed specifically to create a positive image on climate-related issues,” Setzer explained. She said several factors could explain the recent rise in climate-washing litigation. These include growing climate awareness leading to greater public scrutiny of claims and actions related to climate change, increasing calls for corporate accountability, more attention from regulators to misleading climate-related claims, and the relative ease of bringing these types of cases compared to other climate lawsuits. “Climate-washing cases are generally easier and cheaper to bring and win, as most countries will have an established legal basis to protect consumers from false advertising and deceptive practices,” Setzer told DeSmog. One type of climate-washing concerns overstated investments in or support for climate action, such as statements or advertising suggesting a company is spending more on renewable energy than it actually is. Recent years have seen a number of complaints filed with oversight bodies targeting this corporate strategy. In December 2019, ClientEarth filed a complaint with the UK authority under the Organisation for Economic Co-operation and Development (OECD) challenging BP’s “Keep Advancing” and “Possibilities Everywhere” ad campaigns that overemphasized the oil major’s low-carbon activities. BP withdrew the ads shortly thereafter. More recently, the campaign group AdFree Cities filed a complaint against Shell with the UK’s Advertising Standards Authority, arguing the oil major’s ad campaign promoting its renewable energy and EV charging initiatives were misleading. The advertising authority issued a ruling several weeks ago banning the ads, finding they did, in fact, misrepresent Shell’s renewable energy initiatives relative to its traditional oil and gas business. In the United States, Shell is also facing charges that it is misleading investors with its stated spending on “renewables and energy solutions.” In a complaint filed with the U.S. Securities and Exchange Commission in February, Global Witness points out that this business category includes fossil gas and gas-related activities, like hydrogen, and therefore overstates what Shell actually invests in carbon-free renewables, like wind and solar. Furthermore, from France to Italy to the United States, climate campaigners and local and state governments are taking oil and gas majors to court for their deceptive climate claims and communications. Many of the U.S. climate lawsuits brought against Big Oil include consumer fraud claims, alleging companies like ExxonMobil, Chevron, and Shell deliberately misled the public about the climate risks of their products and their business, arguing the deception continues to this day. Multnomah County, Oregon, just lodged the latest of these cases and notably named a new defendant — consulting goliath McKinsey & Company, which has worked for at least 43 of the top corporate carbon polluters. PR and Ad Agencies Face “Real Risks” Other firms that service and enable fossil fuel clients could soon find themselves roped into these lawsuits, climate campaigners and experts say. “This growing wave of lawsuits poses real risks to PR and advertising agencies who are working with fossil fuel companies to mislead the public. We’ve already seen consulting firms like McKinsey pulled into climate lawsuits, it’s only a matter of time before firms like Edelman could find themselves in the same position,” Jamie Henn, director of Fossil Free Media, which houses the Clean Creatives campaign, told DeSmog. Clean Creatives is an initiative working to pressure PR firms and ad agencies to drop fossil fuel clients. Henn charged that these firms are misleading the public about the fossil fuel industry’s climate commitments in order to reduce political and regulatory pressure on their clients. “Saying Shell is ‘committed to a low carbon future’ when Shell is actually doubling down on oil and gas development is the definition of false advertising. It’s unethical, it’s immoral, and it may turn out to be illegal,” he said. Yet some ad and PR agencies at the highest level continue to dismiss any claims of misdeeds or potential legal risks, according to communications professional Christine Arena, a former Edelman executive and founder of social impact production company Generous Films. “The CEOs of some of the most offending agencies and PR firms do not seem remotely willing or prepared to acknowledge the legal, social or environmental risks of the greenwash that they are helping to produce and amplify,” she said. “Several have dismissed related criticism and categorically denied all wrongdoing – even as they continue to churn out misleading content and questionable tactics on behalf of oil and gas companies, fossil fuel trade associations and petrostates.” Even worse, she said, some executives “have lauded their sustainability and trust credentials in the face of mounting public scrutiny. This hypocrisy reveals a stunning lack of integrity and ethical leadership, which in turn undermines the reputation of the communications industry as a whole.” Challenging Corporate Climate Commitments In addition to overstated support for climate action or misleading climate-related advertising, another form of climate-washing that is increasingly being challenged centers around companies’ climate pledges or commitments. “One of the most significant groups of climate-washing cases to emerge in recent years have been cases challenging the truthfulness of corporate climate commitments, particularly where these are not backed up by adequate plans and policies,” Grantham Research Institute’s Setzer and Higham said in a press release accompanying the new report. In 2021, for example, an Australian shareholder advocacy group brought what it said was Australia’s first greenwashing case against the oil and gas industry, challenging the credibility of gas giant Santos’ promise to reach net zero emissions by 2040. The lawsuit argues the company’s strategy relies heavily on questionable technologies, like carbon capture and storage (CCS), and fuels like hydrogen paired with CCS. While the oil and gas industry touts its initiatives around CCS, hydrogen, biofuels, carbon offsets, and other purported climate “solutions,” studies have revealed the astounding gap between the sector’s climate-friendly rhetoric and its business-as-usual actions. According to a new analysis released on June 29 by the World Benchmarking Alliance and CDP, there has been a “dangerous lack of progress” across the oil and gas sector in efforts to achieve global climate goals. No company has any plans to phase out oil and gas production, and some are still expanding production. “These companies are not planning for a low-carbon future and are failing to take responsibility in the immediate and long term,” Vicky Sins, World Benchmarking Alliance’s Decarbonisation and Energy Transformation Lead, said in a statement. “Our findings are a warning for the need for all stakeholders — investors, policymakers and the public — to hold the oil and gas sector accountable.” Litigation is a key tool for doing so, says Ben Franta, senior research fellow and head of the Climate Litigation Lab at Oxford University. “As fossil fuel producers continue with business as usual and climate damages mount, we will likely see more climate lawsuits, and the stakes will be high,” he told DeSmog. Henn said the creative agencies that enable the sector’s climate-washing also may be held accountable. “Reports like this make it harder for PR and advertising agencies to claim that they genuinely thought they were helping a fossil fuel client decarbonize,” he told DeSmog, referring to the new World Benchmarking Alliance/CDP analysis. “I don’t think they ever were truly that naive, but now there’s really no excuse. If you’re marketing a Big Oil company as green, you’re lying, and you’re likely to be held accountable. It’s that black and white.” |
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