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A recent study by a pair of Harvard researchers examined ExxonMobil’s approach to public communications on climate change and how “ExxonMobil uses rhetoric and framing to shape public discourse on climate change.” CNN also covered the study. The researchers concluded the company has attempted shift responsibility away from itself and toward individual consumers, setting out what could be the foundation of future ESG litigation strategies against companies. Indeed, last week’s verdict from a Dutch court concerning Royal Dutch Shell (RDS) followed this logic and imposed responsibility for Scope 3 emissions on the company.

The highlights of the study are these four claims:

– ExxonMobil’s public climate change messaging mimics tobacco industry propaganda

– Rhetoric of climate “risk” downplays the reality and seriousness of climate change

– Rhetoric of consumer “demand” (versus fossil fuel supply) individualizes responsibility

– Fossil Fuel Savior frame uses “risk” and “demand” to justify fossil fuels, blame customers

It should be noted that the paper demonstrates a distinct bias from the beginning. The researchers take issue with (almost to the point of ridiculing) “enduring principles of ‘rugged individualism’ and self-reliance that pervade US culture and ideology,” while concurrently ignoring the role government has via regulatory powers to shape both corporate actions and consumer behavior. While companies certainly have a part to play here, disregarding public policy and individual responsibility when assigning blame is unrealistic. Further, as an academic study in corporate communications and behavioral science, it does not include case law or other relevant legal matters/doctrines relating to individual rights or causes of action in corporate law.

Attempting to fix societies’ ills is a massive burden for companies to undertake, and one arguably better suited for governmental policy response. Companies doing this face significant litigation risk. Baker McKenzie’s latest Litigation Intelligence: Ready for Anything sums up their take like this:

Navigating where the law ends but market expectations and corporate purpose continue is a uniquely challenging dynamic in relation to ESG and litigation… Where there is a gap between message and reality, companies leave themselves vulnerable to challenge.

In the context of the ExxonMobil research, one could rightly argue that the “gap between message and reality” includes individual consumer behavior. Along these same lines, firearm manufacturers are constantly litigating what responsibility the end user bears versus theirs as the product manufacturer.

What You Can Do

Especially for those in carbon-intensive industries, companies may benefit from assessing their risk of facing climate litigation. Think about reviewing external climate messaging on the company’s products/services with an eye towards “gaps between message and reality”. In-house and outside counsel should assume that all public ESG information is being read by someone, or is processed by artificial intelligence scans that are growing rapidly in popularity.

It may be instructive to look at product liability risk management strategies. Many times, this involves identifying a point at which responsibility for a company’s product moves to the individual customer. Look at how your company takes in, evaluates and responds to customer feedback on products/services. That could offer some insight into where – and how – individual use/responsibility is determined and managed.

Tracking liability and litigation trends on this topic will be increasingly important.

Finally, it may simply be the right decision to accept responsibility for Scope 3 emissions rather than pursuing the philosophy that customers are themselves responsible and accountable for how they use/misuse your products.

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The Editor

Lawrence Heim has been practicing in the field of ESG management for almost 40 years. He began his career as a legal assistant in the Environmental Practice of Vinson & Elkins working for a partner who is nationally recognized and an adjunct professor of environmental law at the University of Texas Law School. He moved into technical environmental consulting with ENSR Consulting & Engineering at the height of environmental regulatory development, working across a range of disciplines. He was one… View Profile