In 2005, I was lead counsel for the United States in one of the largest corporate liability lawsuits ever filed. This trial proved that the tobacco industry knew it was selling and marketing a harmful product, funded the denial of public health science, and used deceptive advertising and public relations to protect assets at instead of protecting consumers.
Today, the fossil fuel industry is in the same precarious legal position as the tobacco industry was in the late 1990s. The behavior and goals of the tobacco and oil industries are quite similar – and there are many similarities in their passives.
Both industries lied to the public and regulators about what they knew about the harms of their products. Both lied when they knew it. And like the tobacco industry when I was in public office, the misleading advertising and public relations of the fossil fuel industry is now the subject of intense legal scrutiny.
And the wind begins to turn. More than 1,800 lawsuits have been filed for climate liability worldwide. Many of them relate to the misleading fake science that the industry has deliberately handed out to the public for decades, denying that its product is the primary cause of global climate change. Exxon knew the reality of climate change in the late 1970s, then invested later to tell the public it wasn’t happening. French giant Total knew and also funded efforts to deceive the public around the same time.
You can see echoes of the anti-tobacco strategy in every memo from corporate scientists studying the climate at fossil fuel companies. Since the 1950s, tobacco companies have known about the health effects of their products. Yet they spent the next 40 years developing public affairs strategies that downplayed the problem and sought to make their products more addictive. They did this through additives and marketing to children. At the same time, fossil fuel companies are scrambling to keep us going by fighting regulations to shift us to low-carbon transportation and scaring people about the climate transition.
They also both invested money in promoting fake science. The American Petroleum Institute and Exxon pumped big grants into astrophysicist Willie Soon’s climate denial research, the same way tobacco companies backed misleading health research by sympathetic scientists remunerated. The extent of this work may never be known, as both industries often funneled their grants through nonprofit intermediaries who hid the source of their money – and in some cases, as with the Heartland Institute, both industries used the same intermediaries.
The most significant legal cases facing fossil fuel companies today focus on continued deceptive marketing in the form of “greenwashing.” This is different from green marketing – companies that have genuinely sustainable products are, and should remain, free to market them accurately. But the oil industry is not a sustainable business – on average, less than 1% of its capital expenditure goes to low-carbon projects — and free speech laws don’t prevent companies from making false claims.
The oil and gas industry is now touting the promise of carbon capture and storage projects as a way to avoid reducing emissions. But not a single existing CCS project is viable, and no company is investing at a rate that will make future projects viable. It’s an old bait and switch, as it mirrors how tobacco companies have promoted various smoke-free alternatives for decades.
At the heart of the liability issues for the fossil fuel industry is the fact that no company has acknowledged – much as tobacco companies have refused to acknowledge – that its product is the problem. A new report from the Clean Creatives public relations and advertising campaign shows how this legal and reputational risk continues to grow as the true economic and social costs of climate breakdown become increasingly real. As more communities consider the damage caused by misleading communication, more are calling for responsible companies to be held accountable.
Ultimately, the tobacco industry was brought to heel because the number of legal threats grew too large to be managed with single regulations or isolated legal strategies. The weight of evidence has become so great that legal risks have become systemic, requiring global action by governments.
Cases against fossil fuel companies are now approaching a similar critical mass.
In France, Total (now TotalEnergies) was sued for misrepresenting its climate ambition. It claimed in a marketing campaign that it could achieve net zero carbon emissions by 2050 while still producing more fossil fuels. Total defended its advertisements by saying they did not constitute greenwashing. For the first time, two US lawsuits seeking damages for misleading advertising by fossil fuel companies are entering the trial phase, in Honolulu and Massachusetts. Either way, the discussion will focus on how the industry is still working with its agencies to deny, delay and minimize climate action. In the Netherlands, Shell has been the subject of numerous lawsuits and regulatory cases, so many that its greenwashing advertisements now carry a humiliating disclaimer: “Shell’s operating plans and budget do not reflect not Shell’s net zero ambition”.
A legal tipping point may soon be approaching for fossil fuel companies and the spin masters who work for them. As with our tobacco case, too many lives will be lost before these cases are resolved. But accountability is coming soon and the implications will be vast.
Sharon Y Eubanks was lead counsel in the United States Federal Tobacco Litigation v. Philip Morris USA, et al. She is co-author of Bad Acts: The Racketeering Case Against the Tobacco Industry