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 shar …