New York City’s long-running greenwashing case against major fossil fuel companies appears to have hit a wall. The case alleged a variety of New York City Consumer Protection Law violations. That law prohibits deceptive practices, including false and misleading statements, in product offerings. New York City argued that BP, Shell, and ExxonMobil, made misleading environmental statements when advertising premium gasoline products. A recent Frankfurt Kurnit memo discusses the Court’s reasoning for dismissing the case:
“Noting that New York City didn’t allege that the fossil fuel companies had made any expressly false statements, the First Department just didn’t buy that their advertising was misleading, since consumers understand that the use of fossil fuels causes harm to the environment… In other words, the advertisers have no obligation to disclose the harm, if consumers are already aware of it.”
Essentially, the court reasoned that oil company advertising wasn’t misleading because everyone already knows that burning gasoline accelerates climate change. Therefore, no consumer would believe that buying gasoline is good for the climate, regardless of what marketing they were presented with. The justices did not remark on the fact that 33% of Americans actively deny that climate change is primarily driven by human activity.
The outcome of the NYC case may spell trouble for other consumer protection cases against fossil fuel companies. Even if climate litigation survives Suncor v. County of Boulder, plaintiffs still have to plead viable greenwashing cases. However, the memo notes that NYC’s consumer protection laws are narrower than many other state and local marketing laws. Just because these claims didn’t fly in New York doesn’t mean they aren’t viable elsewhere.
