There are lots of places that require action to address climate change. Power plants, highways, and cattle farms come to mind. But one place that isn’t often thought of as a venue for climate action is the one in which all these fights will eventually play out: courts.
With the U.S. Supreme Court readying to dismantle the regulatory state, first with OSHA and Covid mandates, next in February with a hearing on a defunct case to set up a judgement overturning decades of precedent giving the Executive branch the authority to … execute the laws Congress passes (more on that some other time), now’s a great time to stop and look at how climate litigation has fared in the U.S. and around the world.
The Climate Social Science Network recently published a report on greenwashing litigation, a landscape analysis of how climate disinformation is being challenged in courts, based on a database of climate laws, and another of climate litigation.
First, they lay out what’s meant by greenwashing and its more specific climate-washing variant, referring to how companies use rhetoric to conceal their pollution in climate-friendly terms. Greenwashing, per the report and the many studies it cites, consists of “unsubstantiated or misleading claims regarding an actor’s environmental performance,” including “selective disclosure” of good news but not bad, while climate-washing “may encompass issues that go beyond the natural environment.”
Climate-washing litigation, then, are cases that hold corporate (or government) actors “legally accountable for their actions or products that misleadingly claim to address climate change.”
Overall, they found courts in the U.S., Australia, France, and the Netherlands have seen at least 20 climate-washing cases, with another 27 similar complaints made to “non-judicial oversight bodies in the UK, Australia, Italy, New Zealand, Denmark, the U.S., and South Korea since 2008.”
The types of cases fall into three buckets of misleading content, as false claims tend to either be about (1) promises they’ll never keep, (2) their products’ specific characteristics, or (3) their “climate investments, financial risks and harm caused by companies.”
The report then details examples of these sorts of cases, and the laws in the various countries that underpin the suits, but we’ll summarize:
If a government has pledged to meet the Paris agreement but remains committed to fossil fuels, that’s a climate-washing commitment (bucket #1). If a company says their coal or gas is clean or climate-friendly, that’s misleading on product characteristics (bucket #2), and if they run a $100 million ad campaign to tout algae-based oil alternatives they’ve only invested $1 million in, that’s misleading about their investments (bucket #3). (Saying climate change won’t cause supply chain issues or failing to disclose the risk that an unlivable climate-wrecked planet might pose to their bottom line also falls in that camp.)
Then, helpfully, the report offers some recommendations. Companies should be sure “to not over-claim climate actions,” and make sure their advertisements are scientifically sound and therefore legally on safe footing. Policymakers should make sure they’re fully aware of the various “legal mechanisms” that they could use “to enhance transparency and compliance of companies to existing climate commitments.” Lawyers should warn companies about the potential for misleading ads to invite legal scrutiny, and consider bringing cases against those failing to meet their commitments or lying about their products. Law enforcement and other regulatory entities can consider this a menu of options “to deter and combat instances of climate washing,” for example by slapping warning labels on ads for oil products, “in a similar way to the tobacco industry.”
As for NGOs and the public, they’re advised to “serve as climate-washing watchdogs,” which we’re happy to keep doing!
