Climate Change Disinformation Liability Under the Federal Trade Commission Act

Copyright © 2023 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. C O M M E N T S CLIMATE CHANGE DISINFORMATION LIABILITY UNDER THE FEDERAL TRADE COMMISSION ACT by Aspen Ono Aspen Ono is a 2023 graduate of the University of Virginia School of Law, and holds a master’s degree in Resources, Environment, and Sustainability from the University of British Columbia. H uman behaviors and actions are causing dramatic climate change and widespread biodiversity loss, jeopardizing existing ecosystem dynamics and threatening the well-being of current and future generations. 1 A global sustainability transition comprising transformative economic, social, political, and technological changes is necessary to combat current negative trends in climate, biodiversity, and ecosystem health. 2 Such a transition requires widespread individual and collective buy-in and action for transformative structural change. But conlicting information on climate change has contributed to the American public’s and policymakers’ delayed and erratic development of necessary large-scale emissions mitigation and adaptation programs. 3 he spread of disinformation campaigns is only exacerbated by the rise of digital communication and social media, which enable the rapid dispersal of false information. 4 Some of the loudest voices transmitting climate change disinformation have been and continue to be large oil corporations and conglomerates, who inancially beneit from climate inaction and the continued dependence on fossil fuel products. Oil companies and their agents have been actively involved in creating and propagating climate change dis-information for the past half-century. In response to this deception, more than two dozen American states and cit- 1. Sandra Díaz et al., Pervasive Human-Driven Decline of Life on Earth Points to the Need for Transformative Change , 366 Science eaax3100 (2019); Inter-governmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), Summary for Policymakers of the Global Assessment Report on Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (Sandra Díaz et al. eds., 2019). 2. Díaz et al., supra note 1; IPBES, supra note 1. 3. National Academies of Sciences, Engineering, and Medicine, Climate Intervention: Reflecting Sunlight to Cool Earth (2016). 4. Danielle Caled & Mario J. Silva, Digital Media and Misinformation: An Outlook on Multidisciplinary Strategies Against Manipulation , 5 J. Computational Soc. Sci. 123 (2022). See also News Release, Friends of the Earth, Report Reveals YouTube Sows Division, Violates Google’s Climate Disin-formation Ad Policy (May 2, 2023), https://foe.org/news/youtube-denial-dollars/ (noting that despite major media company Google’s pledge to stop disseminating climate disinformation, a 2023 report from the Climate Action Against Disinformation coalition determined that Google has systematically failed to enforce its policy). ies have sued these companies under traditional tort-based causes of action like public nuisance, fraud, negligence, and failure to warn. 5 hey allege that the companies fueled uncertainty about climate science and undercut public support for necessary climate action. Plaintifs in these suits often struggle to establish a legal causal chain linking fossil fuel companies’ deceptive communications to incurred climate-related injuries. hus, traditional tort-based suits may fail to provide suicient legal pressure to dissuade oil companies from spreading misinformation that questions legitimate climate science and undercuts the need for fossil fuel regulation. Section 5 of the Federal Trade Commission Act (FTCA), and similar business and consumer fraud statutes, might provide an alternative approach to penalizing commercial climate change deception and holding corporations accountable for their dissemination of climate disinformation. Among other things, the FTCA empowers the Federal Trade Commission (FTC) to prevent and seek redress for deceptive acts or practices in or afecting commerce. 6 he Act has been used to penalize oil companies, heat alarm manufacturers, and tobacco wholesalers for advertisements, telemarketing calls, direct solicitations, and other communications that were likely to mislead consumers acting reasonably under the present circumstances. 7 his Comment argues that the FTC could use its authority under §5 of the FTCA as a federal tool to prohibit, discipline, and seek redress for corporate climate dis-information campaigns, as a means to hold those actors responsible for obstructing advancement of the necessary large-scale behavior change needed to mitigate the climate crisis. 5. It should be acknowledged that many of these states, cities, and localities have also advanced consumer protection claims in these lawsuits. 6. FTCA, 15 U.S.C. §§41-58 (1914). 7. Federal Trade Comm’n v. Figgie Int’l, Inc., 994 F.2d 595 (9th Cir. 1993); Standard Oil Co. of Cal. v. Federal Trade Comm’n, 577 F.2d 653 (9th Cir. 1978); Federal Trade Comm’n v. Brown & Williamson Tobacco Corp., 778 F.2d 35 (D.C. Cir. 1985). 53 ELR 10900 ENVIRONMENTAL LAW REPORTER 12-2023 Copyright © 2023 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. I. The Fossil Fuel Industry’s Deceptive Public Communications In the 1980s, ExxonMobil developed a public reputation as a leader in climate research. 8 Around the same time, public discourse on climate change was beginning to grow. Notably, in the summer of 1988, National Aeronautics and Space Administration (NASA) climate scientist James Hansen warned the U.S. Congress of the relationship between greenhouse gas (GHG) emissions and the threat of global warming to the planet. 9 Four years later, governments around the world formally acknowledged the threat of climate change through the United Nations Framework Convention on Climate Change, which was signed by 154 nations including the United States, with the purpose of combating the “dangerous human interference with the climate system.” 10 Fossil fuel companies began to view the growing public awareness of the connection between oil, GHG emissions, global warming, and adverse climate change as a threat to their economic viability. By the end of the decade, ExxonMobil and other oil corporations changed their tune and began to attack rather than lead the ield in climate science research. At a 1989 board of directors meeting, ExxonMobil’s manager of science and strategy development, Duane LeVine, acknowledged that fossil fuel-generated GHG emissions would lead to global warming that would cause signiicant adverse harms such as sea-level rise. 11 In spite of this knowledge, LeVine stressed that if this information was disclosed to public policymakers, the company would likely face irreversible and draconian regulation that threatened its proits. 12 Similarly, in its internal 1989 company newsletter, ExxonMobil’s in-house climate expert, Brian Flannery, highlighted that regulatory eforts to mitigate climate change would “alter profoundly the strategic direction of the energy industry.” 13 ExxonMobil thus began spending millions of dollars on misinformation campaigns featuring prominent advertisements in major U.S. news sources questioning the scientiic certainty of climate science. 14 LeVine, in tandem with ExxonMobil’s public afairs manager, established that the company’s new position was to “[e]mphasize the uncertainty in scientiic conclusions regarding the potential enhanced greenhouse efect,” and to stress that it was thus too early to take regulatory actions to address climate 8. Sara Jerving et al., What Exxon Knew About the Earth’s Melting Arctic, L.A. Times (Oct. 9, 2015), https://graphics.latimes.com/exxon-arctic/. 9. Philip Shabecof, Global Warming Has Begun, Expert Tells Senate, N.Y. Times, June 24, 1988, at A1 (stating that “Dr. James E. Hansen of the National Aeronautics and Space Administration told a Congressional committee that it was 99 percent certain that the warming trend was not a natural variation but was caused by a buildup of carbon dioxide and other artiicial gases in the atmosphere.”). 10. United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107 (entered into force Mar. 21, 1994). 11. Id. 12. Id. 13. Id. 14. Id. change. 15 ExxonMobil’s purposeful deception continued over the coming decades. As recently as 2019, internal documents were recovered demonstrating that ExxonMobil pressured the Oil and Gas Climate Initiative to eliminate language advocating for the advancement of climate change mitigation goals under the 2015 Paris Agreement from the industry group’s annual policy statement. 16 Notably, one study of 187 of ExxonMobil’s communications from 1977 to 2014 found that while 80% of its internal papers recognized the reality of anthropogenic climate change, 81% of its publicly accessible documents disparaged the same scientiic conclusions. 17 ExxonMobil was not alone in its deception. In 2015, journalists at the Columbia University School of Journalism and the Los Angeles Times concurrently published independent investigations revealing major fossil fuel companies’ knowing and purposeful concealment and disparagement of climate science as a means to preserve the value of the oil industry. 18 Fossil fuel executives continue to belittle climate change risks and only to make weak commitments to a clean energy transition. hus, in September 2021, the U.S. House of Representatives Committee on Oversight and Reform (House Committee) launched a federal investigation into the fossil fuel industry’s dissemination of climate disinformation. 19 Rep. Ro Khanna (D-Cal.), who spearheaded the House Committee’s investigation, stated that “[i]t’s well established that these companies actively misled the...