Fraudulent Advertising and Environmental Degradation: Can Fossil Fuel Corporations Be Held Legally Responsible for their Contribution to Climate Change?

The 2021 Northwest heat dome, a record-breaking weather event with temperatures reaching up to 120°F, resulted in over 650 deaths and hundreds of heat-related illnesses in the United States and Canada. [1] Hitting the Pacific Northwest from late June to early July, the heat dome also had catastrophic effects on infrastructure, agriculture, wildlife, and flora. In response to the crisis, Multnomah County of Oregon sued seventeen fossil fuel companies, including ExxonMobil, Shell, BP, and Chevron in the Oregon Circuit Court. The county alleged that the defendants “rapaciously [sold] fossil fuel products and deceptively promote[d] them as harmless to the environment” even though they knew that their products would emit carbon pollution into the atmosphere and “would likely cause deadly extreme heat events like that which devastated Multnomah County.” [2]

The plaintiffs claim that these companies have intentionally misled the public on the harms of fossil fuel usage over the last six decades and instead prioritized profits over public health and well-being. They seek approximately $52 billion from the defendants: $50 million for past damages, $1.5 billion for future damages, and $50 billion for implementing new programs and infrastructure to help Multnomah County prepare for future catastrophes exacerbated by climate change. Although Multnomah County originally filed their suit in the circuit court, they filed a motion in October to remand, or send back, their case to the state court. While precedent suggests that the private corporations listed in County of Multnomah v. Exxon Mobil Corporation (2023) should be held legally responsible for false claims on greenhouse gasses, the Environmental Protection Agency’s (EPA) role in determining U.S. environmental standards makes it more difficult to hold these corporations accountable for perpetuating climate change.

Under the False Claims Act (FCA), a person or entity that intentionally lies to the government can be sued and held liable for any damages they generated. In the recent Supreme Court decision for U.S. ex rel. Schutte v. SuperValu Inc. (2023), the Court unanimously ruled that the FCA’s scienter requirement, or the requirement that the defendant committed a wrongdoing knowingly, is based on the defendant’s subjective beliefs, not on what an “objectively reasonable” individual might think of their actions. [3] In this qui tam, or whistle-blower, suit, Tracy Schutte and Michael Yarberry were relators, or private persons who acted on the behalf of the federal government, and sued SuperValu and Safeway, two pharmacy chains, under the FCA. The plaintiffs claimed that the defendants defrauded Medicare and Medicaid by offering discounted prices to customers while reporting retail prices to these government agencies. [4] The Court ruled that these two corporations did not knowingly violate the FCA, therefore failing to meet the scienter element. While the plaintiffs in this case were unsuccessful in their lawsuit, sufficient evidence exists suggesting that the corporations in question within Multnomah v. Exxon understood the implications of fossil fuel usage and still advertised their products as safe for the environment.

An investigation by InsideClimate News found that Exxon had knowledge of climate change since 1977 and employed scientists to study the effect of greenhouse gasses and build climate models. [5] Researchers from Harvard and the Potsdam Institute for Climate Impact Research assessed the validity of these projections made between 1977 and 2003 and found that Exxon was extremely accurate in predicting global warming. [6] Even with access to this knowledge, Exxon spent millions of dollars on think tanks and advertisements to question the validity of climate science, and this disinformation had dire effects on the public. Besides swaying the general opinion on fossil fuels, Exxon’s efforts also influenced the United States’ government; the corporation played a significant role in deterring the United States from ratifying the 1997 Kyoto Protocol, the first ever legally binding international climate treaty. [7] The intentional intervention of fossil fuel corporations like Exxon to stifle climate science has largely contributed to the sheer amount of greenhouse gasses within the troposphere.

Additionally, evidence shows anthropogenic climate change affected the extreme nature of the 2021 heat dome. A study published in the Earth System Dynamics found that this heat dome “would have been at least 150 times rarer without human-induced climate change.” [8] This scientific data outlines the “unnatural” nature of the 2021 heat dome, strengthening the plaintiff’s argument that fossil fuel companies are to blame for the casualties and other damages that resulted from this event.  

Nevertheless, even if the case is moved down to the state court, it might be more challenging for Multnomah County to argue for punitive damages that would fund their adaptation strategies to climate change. According to Oregon Revised Statutes (ORS) § 31.730, the plaintiffs must give “clear and convincing evidence” that the defendants “acted with malice or [showed] a reckless and outrageous indifference to a highly unreasonable risk of harm;” they must have also “acted with a conscious indifference to the health, safety and welfare of others.” [9] Although anthropogenic climate change, primarily caused by the burning of fossil fuels, will continue to increase the frequency of extreme weather events across the globe, proving “malice” or “indifference” will be more difficult due to the regulatory authority of the EPA.  

Within the United States, the EPA sets the rules and regulations regarding environmental usage and practices. In American Electric Power Co. v. Connecticut (2011), eight states, New York City, and three private land trusts sued four electric companies and the Tennessee Valley Authority for their contribution to global warming. [10] The respondents alleged that the petitioners were public nuisances, and they hoped to use the violation of federal common-law as a proxy to curb the petitioner’s carbon-dioxide emissions. However, the Supreme Court ruled in favor of the petitioners and unanimously decided that the Clean Air Act and EPA actions displace federal common-law to reduce carbon-dioxide emissions. [11]

The precedent set by American Electric Power Co. v. Connecticut will make it harder for Multnomah County to attack the private corporations listed in their suit. Although there have been instances where individual fossil fuel corporations have failed to comply with EPA standards – such as when ExxonMobil failed to properly monitor sulfur levels at one of its refineries between 2005-2007 – these corporations have generally followed EPA standards, at least according to their reporting. [12] However, Multnomah v. ExxonMobil differs from American Electric Power Co. v. Connecticut in the sense that the plaintiffs in this case are citing a tangible event, the 2021 heat dome, and are seeking monetary damages. Rather than citing them for public nuisance, Multnomah County can focus its argument on concrete facts and the direct result these fossil fuel companies played in the heat dome’s severity.

Still, defining direct harm to the environment is ambiguous, as it currently lacks legal personhood in the United States. “Rights of Nature” law would allow for the environment to be represented in the court system by a guardian. This idea, however, is not completely novel. Other countries have encoded Rights of Nature into their constitution, such as Ecuador, or have granted legal rights to specific environmental entities, such as the Rio Atrato in Colombia. [13]

There have been efforts in the United States to represent environmental entities within the court system. In Sierra Club v. Morton (1977), the Sierra Club, an environmental organization, filed injunctions to prevent the development of the Mineral King Valley, a region within the Sequoia National Forest. [14] The plaintiff sued under the Administrative Procedure Act (APA), which dictates how federal agencies issue regulations. [15] In a four to three decision in favor of Morton, the Supreme Court ruled that the plaintiffs failed to prove they had or would suffer injury from the development of the Mineral King Valley and therefore did not have standing to sue under APA. Multnomah County will have more evidence to prove that the 2021 heat dome injured them; however, the question remains whether the defendants can be held directly liable for these injuries.

Multnomah County v. ExxonMobil raises broader questions of how climate change and the environment can be addressed in the future. The outcomes of this lawsuit, and whether it will be dismissed, remain unknown. Other suits, such as Colorado River Ecosystem v. State of Colorado, have attempted to establish legal rights for nature, however they have been unsuccessful in establishing concrete progress. If the plaintiffs of Multnomah County v. ExxonMobil win their case, they will pave the way for future environmental cases trying to hold private entities responsible for their contributions to climate change.

 Edited by Henry Wagner

[1] “2021 Northwest Heat Dome: Causes, Impacts and Future Outlook,” U.S. Department of Agriculture Climate Hubs, Accessed November 29, 2023, https://www.climatehubs.usda.gov/hubs/northwest/topic/2021-northwest-heat-dome-causes-impacts-and-future-outlook. 

[2] County of Multnomah v. Exxon Mobil Corp., 3:23-cv-01213, 2 (D. Or.).

[3] “U.S. ex rel. Schutte v. SuperValu Inc.,” Oyez, Accessed November 29, 2023, https://www.oyez.org/cases/2022/21-1326.

[4] U.S. ex rel. Schutte v. SuperValu Inc., No. 21–1326, 598 U. S. ____ (2023) 

[5] Shannon Hall, “Exxon Knew about Climate Change almost 40 years ago,” Scientific American (2015), Accessed November 29, 2023, https://www.scientificamerican.com/article/exxon-knew-about-climate-change-almost-40-years-ago/.

[6] Alice McCarthy, “Exxon disputed climate findings for years. Its scientists knew better.,” Harvard Gazette (2023), Accessed November 29, 2023, https://news.harvard.edu/gazette/story/2023/01/harvard-led-analysis-finds-exxonmobil-internal-research-accurately-predicted-climate-change/.

[7] Jeffery Pierre and Scott Neuman, “How decades of disinformation about fossil fuels halted U.S. climate policy,” npr (2021), Accessed November 29, 2023, https://www.npr.org/2021/10/27/1047583610/once-again-the-u-s-has-failed-to-take-sweeping-climate-action-heres-why.

[8] Sjoukje Y. Philip et al., “Rapid attribution analysis of the extraordinary heatwave on the Pacific Coast of the US and Canada June 2021,” Earth System Dynamics 13 (2022): 1690, https://doi.org/10.5194/esd-13-1689-2022.

[9] “ORS 31.730”, OregonLaws, Accessed November 29, 2023, https://oregon.public.law/statutes/ors_31.730#google_vignette.

[10] “American Electric Power Co., Inc. v. Connecticut,” Oyez, Accessed November 29, 2023, https://www.oyez.org/cases/2010/10-174.

[11] American Electric Power Co. v. Connecticut, No. 10-174, 564 U. S. ____ (2011).

[12] “ExxonMobil Refinery Settlement,” United States Environmental Protection Agency, Accessed November 29, 2023, https://www.epa.gov/enforcement/exxonmobil-refinery-settlement#:~:text=Violations%20of%20the%20Consent%20Decree,-The%20majority%20of&text=Between%202005%20and%202007%2C%20ExxonMobil,Performance%20Standards%20for%20Petroleum%20Refineries.

[13] Tiffany Challe, “The Rights of Nature — Can an Ecosystem Bear Legal Rights?,” Columbia Climate School, Accessed November 29, 2023, https://news.climate.columbia.edu/2021/04/22/rights-of-nature-lawsuits/.

[14] “Sierra Club v. Morton,” Oyez, Accessed November 29, 2023, https://www.oyez.org/cases/1971/70-34.

[15] “Summary of the Administrative Procedure Act,” United States Environmental Protection Agency, Accessed November 29, 2023, https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20.