Courts are increasingly taking a close look at the validity of climate change lawsuits against oil producers. And for good reason: These cases severely test the boundaries of court jurisdiction, the breadth of tort law, the protections of due process and even the sanctity of free speech.
As one example of this scrutiny, last Oct. 3, the U.S. Supreme Court signaled a serious interest in the proper forum and scope for climate change litigation.
In Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County,
the Supreme Court invited
the solicitor general of the United States to weigh in, even though the United States is not a party to the litigation. The federal government is invited to file a brief with an official legal opinion of the federal government about the questions presented regarding the role of federal and state courts and the scope of federal and state common law for evaluating lawsuits alleging climate change injuries from fossil fuel production and consumption. These invitations are rare.
All of the cases similar to Suncor percolating across the country are focused on suing companies for the effects of climate change. Yet, each of these lawsuits also tack on “consumer deception” and related “greenwashing” claims. Both categories get a lot of attention, but the latter deserves special inspection.
These so-called deception claims sometimes allege that the companies downplayed the impacts of climate change despite that there is no affirmative duty to share everything you know, especially when consumers in the market have access to the same information.
Other times the greenwashing claims allege that the companies should not have been allowed to advertise about efforts they are making toward developing cleaner energy because these efforts were not as robust as the plaintiffs would have liked. Indeed, in several cases, the plaintiffs have essentially stated that these companies should not have been allowed to speak about their environmental successes because the only clean fossil fuel is no fossil fuel.
These consumer deception lawsuits are direct attacks on rights to speak and the corollary rights to not be compelled to speak. But there should be no climate change exception to free speech.
In 2019, Justice Samuel Alito
penned an important dissenting opinion from a decision by the Supreme Court not to hear an appeal in National Review, Inc. v. Mann
. He saw the denial as a lost opportunity to underscore that traditional and ordinary principles protecting free speech to promote discourse should apply within climate change discussions specifically.
Justice Alito noted that “To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scrutinize any restrictions on the statements that can be made on important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views.”
Free speech is an invaluable thing with a fragility that counsels constant vigilance for its protection.