Three Strikes and You’re Out! New York Swings And Misses Again with Climate Litigation

From ENERGYINDEPTH

Mandi Risko

Frank Sinatra says if you can make it in New York, you can make it anywhere. So what does it mean when it’s repeatedly made clear that you just can’t make it in New York? That question is one the climate litigation campaign is grappling with today.

In yet another demoralizing defeat for the nationally-coordinated climate litigation campaign – and a poignant moment of déjà vu  – New York City’s lawsuit against American energy producers yesterday has been dismissed (for the second time). The Supreme Court of the State of New York’s ruling firmly rejected the city’s claims that the companies had misled the public about their products and their sustainability commitments.

This defeat marks the third blow to New York – city and state – in their attempts to “take down” American energy companies.

Recall that the national campaign kicked off in the state in 2015 when former New York Attorney General Eric Schneiderman met with Greenpeace and the Rockefeller Family Fund, who spoon-fed him a novel climate lawsuit cooked up by academic activists in La Jolla, California years before. The state’s case was dismissed in 2019 after what was marketed as “the climate trial of the century,” with the decision labeling the claims “hyperbolic”.

New York City filed its own climate case against the industry in 2018 – only for it to be thrown out in 2021. Undeterred, the city refiled a new lawsuit a month later, giving their means-to-an-ends crusade a facelift by swapping out the claims to focus on alleged consumer protection violations.

Today, that case joined the ghosts of failed New York lawsuits past, with the State Supreme Court acknowledging it as an obvious “re-purposing” of rejected allegations. Ten years and three lawsuits later, New York has nothing to show for its decade-long effort other than an 0-3 record.

Judge: Plaintiffs Can’t Have It Both Ways As To Whether Everyone Knew

Justice Anar Rathod Patel, an appointee of Democratic Governor Kathy Hochul, ruled that New York City’s claims did not sufficiently make the case that the oil companies could have deceived the public about the climate impacts of its oil and gas products.

While the City hoped to hold the companies “accountable” for not putting warning labels on gasoline pumps, Judge Patel argued that such disclosures weren’t necessary because the city itself admitted that New York City consumers are climate-aware consumers:

“The City cannot have it both ways by, on one hand, asserting that consumers are aware of and commercially sensitive to the fact that fossil fuels cause climate change, and, on the other hand, that the same consumers are being duped by Defendants’ failure to disclose that their fossil fuel products emit greenhouse gases that contribute to climate change.” (emphasis added)

Greenwashing Claims Don’t Pass Muster, Plaintiffs Took Statements Out of Context

Judge Patel also rejected the plaintiff’s far-fetched greenwashing claims, stating that the City did not convincingly make the case that companies made false statements in connection with the sale of energy to New York city consumers:

“Second, the City has not sufficiently pled that Defendants’ alleged greenwashing campaigns, involving statements about clean energy and alternative energy sources, are ‘made in connection with the sale’ of a consumer good (i.e., fossil fuel products) in NYC, as required under the CPL.”

Interestingly, the Judge duly noted that many of the corporate statements that plaintiffs cited were taken out of context, and when she actually went to the companies’ websites to read the claims, they didn’t appear to be “deceptive” in any sense:

“[C]ertain of the alleged statements are distortions of statements that have been taken out of context and Plaintiff does not not—and cannot—allege that each statement when viewed ‘in light of its context on the product label or advertisement as a whole’ is misleading to the reasonable consumer.” (emphasis added)

So, to summarize: it turns out that the “deceivers” were never the energy companies to begin with. Rather, New York City attempted to deceive the legal system by taking information out of context in order to name and shame American energy companies. While unfortunate, this activity isn’t surprising considering the City’s law firm, Sher Edling, is currently under Congressional investigation for its dark money financing and questionable ties to activist-academics.

Bottom Line: New York has now taken three big swing-and-a-misses. Will they try to step up to the plate again for a fourth attempt at climate litigation? We say it’s time to go back to the dugout.