- - Tuesday, July 28, 2020

The D.C. attorney general recently brought a case against a number of oil companies alleging they deceived their customers about the impact of their products on climate change.

I was hesitant to draft this opinion piece. After all, if the D.C. attorney general is willing to bring a meritless case like this one against oil companies, would they find some way to twist the law to sue me in retaliation for writing an opinion piece critical of his decision to bring this case? 

Lest you think I’m exaggerating, one of the allegedly illegal acts mentioned in the complaint is literally that a trade association executive wrote an op-ed arguing a position on climate change that the attorney general doesn’t agree with.

The D.C. attorney general’s complaint accuses oil companies of deceiving consumers through lobbying campaigns about climate change. This is because the AG can only bring a case if it is able to twist a consumer protection statute about deception in advertising into covering public advocacy by oil companies. The complaint will fail because the lobbying efforts described as deceptive were not aimed at consumers to convince them to buy their product, those consumers already knew they needed to regularly fill their gas tanks. They were aimed at influencing policy.

One of the sins listed in its complaint was that a trade association, the American Petroleum Institute, advocated on behalf of the oil and gas industry to encourage consumption of their member’s goods and services. Which, if that is actionable, will result in a large portion of the District of Columbia soon becoming unemployed.

Even if the public advocacy were inaccurate, even if it were intentionally deceptive, it would not be actionable by the attorney general because it was not designed to sell products. Put another way, if state attorneys general can get away with this, they can shut down any small business owner who takes a position they disagree with, political or otherwise.

The complaint further fails to show deception. It is common knowledge that carbon emissions contribute to the man-made component of climate change. It is not clear, to oil companies or to anyone else, precisely how much any individual firm’s production contributes to climate change relative to other firms or relative to the rest of the world. The AG’s complaint frequently fails to distinguish between man-made climate change and naturally occurring climate change, a key question debated in the scientific community. 

The latest climate change report from NASA indicates that the impact of climate change will be highly variable from region to region. Thus the AG would not be able to show precisely how residents of D.C. are impacted by climate change relative to other states, even if he could show deception of consumers. Another hard truth in the policy debate, and a fact which will ultimately lead the case to be dismissed, is that carbon emissions from developing countries dwarf those of the developed world.

The AG claims in part that the oil companies have deceived customers by failing to disclose that these products emit carbon. There is no question that any fuel that burns in a vehicle will emit carbon, that fact is facially obvious to all consumers. 

If the D.C. attorney general wants to sue for contributing to climate change, then this case will need to add as defendants all of the residents of the District of Columbia who drive a car or use electricity in their homes. Those defendants would include employees of the D.C. attorney general’s office.

The D.C. attorney general is not even original in its abuse of power here. Instead, the case essentially cuts and pastes from a similar complaint that was brought by the New York attorney general against oil firms and rapidly dismissed by the courts for failure to make a case.

The point, however, is not to bring a successful case through to trial, but instead to score cheap political points for taking a stand against climate change. The debate over policy responses to climate change belongs in the legislative and regulatory arena, where the difficult economic costs for consumers and our inability to alter emissions from developing countries can be considered.

When attorneys general bring cases based on political considerations we should all be concerned. The same abuse of power the D.C. attorney general displays in this case could be leveled at any one of us the moment it becomes politically convenient to do so.

• J.W. Verret is an associate professor at George Mason University School of Law.

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