California Lawsuit Launches Massive Climate Change Lawsuit Against Major Oil Producers and Their Trade Association

On September 15, California Attorney General Rob Bonta announced the filing of a 135-page complaint against major oil producers and their main trade association. The suit alleges generally that the defendants knew about the dangers of climate change as early as the 1950s but failed to disclose the danger while continuing to promote fossil fuel sales and sponsor opposition research and PR.

Although many will style this as a "climate change" case, in reality, it is a false advertising case brought mainly under the state's Unfair and Deceptive Trade Practice (UDAP) laws. This is summed up by one allegation, which accuses the defendants of using "advertisements containing false or misleading statements, misrepresentations, and/or material omissions designed to hide the connection between the production and use of ... fossil fuel products and climate change, and/or misrepresenting [the defendant] as environmentally friendly."

Although there is a wide variety of potential discussion topics around this case, I offer the following observations:

1. One defendant, the American Petroleum Institute (API), has been a mainstay presence in Washington for over 100 years. It has engaged in all of the advocacy that trade associations typically do over that time. However, these plaintiffs, like many others before, seek to portray these activities as nefarious and place API at the "hub" of an alleged conspiracy. These litigation-inspired characterizations, inflammatory as they are, are typical of this kind of lawsuit. If API is as careful and well-represented as I imagine it to be, the plaintiffs will have tough sledding. If nothing else, government advocacy is immune under Noerr-Pennington.  

2. Many forward-thinking consumers are concerned about climate change and yet have also contributed to it through their everyday actions in myriad ways. The complaint envisions some sort of alternative universe in which "bad" oil companies duped consumers from making choices that otherwise would have saved the earth. I am not so sanguine. The fact of the matter is that fossil fuels emerged as a primary energy source for a huge variety of human activity, much of which extended human health and happiness. The concept that people would have made other choices if they had been presented with different information in the 1950s and 1960s is, at best uncertain.

3. The case adds to a growing list of climate lawsuits against energy companies. That explorers, extractors, refiners and distributors have been sued in this round should not provide to others in the fossil fuel value chain. The next tier down might include prime users of these fossil fuel resources, such as the auto and energy industries.

4. The complaint does pose a massive conundrum for the defendants' advertising strategies going forward. Every use of green imagery or emphasis on renewable energy investments by the defendants might be portrayed by the plaintiffs as further evidence of wrongdoing. Should the defendants therefore engage in greenhushing? I harbor doubts whether this would be beneficial for the defendants or the environment.

While lawsuits can bring about rapid change for the better, this one misses the mark for me. A great deal of resources will be spent on fighting, which could have immediate, negative effects on the defendants' communications strategies — all of which could delay or set back the goals the Attorney General professes to want to achieve.