NYC climate change suit against Big Oil runs out of gas

This week, the U.S. Supreme Court heard a case out of Boulder, Colorado, that could effect dozens of climate accountability lawsuits.(CN) — An appeals court Thursday swatted down New York City’s latest attempt to hold major energy companies responsible for the costs of climate change, agreeing with a lower court that climate-aware customers of ExxonMobil, Shell and BP weren’t reasonably duped by the “greenwashing” of their fossil fuel products.As NYC says in its complaint, the primary driver of climate change is “the extraction, refinement and combustion of fossil fuels,” driving people to seek cleaner energy sources.The energy company defendants, the city claims, deceived consumers by misrepresenting the climate effects of its gasoline, advertising them as “cleaner” and “emissions-reducing,” while failing to disclose their harmful impact.For instance, ExxonMobil claimed that one of its fuels was “2X cleaner for better gas mileage,” while BP described itself as “working to make all forms of energy cleaner and better” and Shell claimed to be “a bigger player than you might expect in this budding movement to realize a cleaner and more efficient transportation future.”But a trial court, and now a state appellate court, found ExxonMobil, Shell and BP advertising and promotional statements didn’t violate the city’s consumer protection laws, and held the city took the ads out of context.The courts reasoned that if consumers are informed enough that they would prefer a lower-emission option, they aren’t likely to be duped by Big Oil’s eco-friendly claims.“After all, if the public did not know or care about the link between fossil fuels and climate change, highlighting the reduced-emissions feature of a gasoline product would not motivate consumers to buy it,” First Appellate Division Associate Justice David Friedman wrote in the 17-page ruling.The ads in question “make plain that the advertised products are gasolines” and claim only that they produce fewer carbon emissions than other gasoline products, the five-judge panel determined.“Not even the least sophisticated consumer could be led to believe that, by using the advertised gasoline products, he or she would be able to drive a vehicle without producing a significant amount of emissions,” Friedman said.The judges compared the claim to one rejected by the Second Circuit, that Diet Coke marketing, by using the word “diet,” could lead consumers to believe mistakenly that the drink would help them lose weight.In both cases, the panel found it was clear the defendant was making a “relative (rather than absolute)” representation about the benefit of the product, i.e., “that the ‘diet’ version of the drink is lower in calories than the ‘non-diet’ version of the drink.”The judges also found the marketing campaigns in question were outside the scope of city consumer protection law since they weren’t directly connected to the sale of goods or services.A spokesperson for New York City said the city is “evaluating the decision and next steps.”Neither ExxonMobil, Shell nor BP immediately returned requests for comment.The city filed the lawsuit in April 2021, three weeks after the Second Circuit affirmed the dismissal of its federal suit that similarly attempted to hold Big Oil accountable for the toll of climate change.“Global warming presents a uniquely international problem of national concern. It is therefore not well-suited to the application of state law,” U.S. Circuit Judge Richard Sullivan wrote in the opinion.The final word on climate accountability lawsuits, however, may be up to the U.S. Supreme Court, which on Monday heard the city and county of Boulder, Colorado’s case against ExxonMobil and Suncor Energy, on claims companies misled the public about the effects of climate change. The high court’s ruling could effect dozens of other suits filed by local officials across the country.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads