Corporations have a history of using deceptive tactics to enhance their public image on environmental compliance while advancing their profit-focused objectives. This phenomenon began in the late 1980s, along with the rise of environmental consciousness. A new generation of environmentally aware consumers demanded sustainable practices from companies, leading to the emergence of “greenwashing.”
Greenwashing is the practice of making products, policies, or activities appear more environmentally friendly than they actually are. Several factors motivate companies to engage in greenwashing. First, the limited number of laws prohibiting these practices motivates companies to appear environmentally friendly without fear of repercussions. Second, the conduct of competitors who have promoted their environmental performance, truthfully or not, encourages companies to engage in greenwashing to maintain competitive advantage. Third, activists, nongovernmental organizations, and the media exert non-market pressures on companies to avoid reputational risks associated with a poor track record of environmental compliance.
The scope and severity of greenwashing has increased in the past three decades. The practice began in a subtle manner in the 1980s with hotels encouraging their guests to reuse towels to promote environmental conservation. However, a decade later, greenwashing tactics took a more serious turn. One globally infamous example of extreme greenwashing is the Volkswagen “diesel-gate” scandal, where devices were installed into their cars to falsely convey compliance with government emissions tests and market the cars as “clean diesel.”
Deception grew in scope with companies returning to the greenwashing playbook in food production, resulting in “humane washing,” where words like “humanely raised” chickens and “cage free” eggs were used. Humane washing involves overstating or lying about humane farming practices in labeling animal products, deceiving consumers who seek ethically raised meat and dairy. There are state statutes in the U.S. prohibiting false advertising and unfair, deceptive, or abusive practices in the sale of goods, including food. The reasonable consumer standard applies to these practices. Given that terms such as “humane,” “sustainable,” and “caring” do not have legal definitions, companies in the food industry often use them to describe products that do not conform to a reasonable consumer’s expectations. While lawsuits against humane washing have made progress, the practice persists. A recent example is Organic Valley’s deceptive practice of claiming that their cows are treated “with love,” when the company’s practice involves taking calves from their mothers at birth.
The most recent and perhaps most troubling development in this area has gained prominence the past few years. The emergence of “climate washing” builds on traditional greenwashing and humane washing practices and applies them in new contexts with more severe impacts. Climate washing is greenwashing with a climate-change compliance focus. It involves deceptive or false claims about climate-change compliance behavior, often masking crucial information; selective disclosure of climate performance; or the use of vague or ambiguous terms to convey a product’s climate-friendly attributes. What sets climate washing apart is the severity of its consequences, given the urgency of the climate crisis. Climate washing extends beyond environmental concerns to encompass human health, economics, and human rights dimensions.
The Paris Agreement established a new era of climate accountability. On the coattails of its approval in 2015, a flood of climate-accountability lawsuits was filed against governments and corporations worldwide. During the first wave of this litigation, lawsuits were filed against governments to compel them either to implement regulations for mitigating climate change or to strengthen their mitigation efforts if such regulations were already in place. Climate washing litigation is part of the second wave of these suits, which seek corporate accountability.
It gained traction in the U.S. in 2018 with the BP v. Baltimore line of cases. In these cases, states, counties, and cities alleged that fossil fuel companies knew for decades that their emissions of greenhouse gases contributed to climate change and that these effects were irreversible. The plaintiffs also alleged that the companies discredited scientific evidence, creating doubt in the mind of regulators and the public about the reality and impact of their significant contributions to global climate change. This deception laid the foundation for climate washing lawsuits globally.
Since the BP v. Baltimore line, plaintiffs have used various legal tactics, including filing complaints with the Federal Trade Commission for Green Guides violations. The Green Guides provide guidelines for environmental marketing claims to help marketers avoid misleading consumers. Plaintiffs also have filed state lawsuits alleging violations of state consumer protection laws, unjust enrichment, products liability, negligence, fraud, misrepresentation, and public nuisance. One example is a complaint against Exxon Mobil alleging that the company violated consumer protection laws by engaging in deceptive greenwashing campaigns. Exxon employed scientists to implement a long-term communication campaign to undermine climate change science, misrepresent its investments in reducing carbon emissions and the environmental impact of its products, and mislead the public about its transition away from fossil fuels. In a case that attracted international attention, TotalEnergies, a French company, engaged in a marketing campaign that conveyed that the company was able to achieve net-zero carbon emissions by 2050, even though it continued to produce fossil fuels in violation of applicable European law.
To gain a better understanding of the landscape of these practices in different contexts, two cases are illustrative. First, a suit was filed against KLM for engaging in deceptive advertising by endorsing its “Fly Responsible” program. The company asserted that carbon dioxide sequestration measures and the use of alternative fuels made their flights a sustainable activity, even though there is no way to fly sustainably at present. Second, in a case against Oatly, the company was accused of making misleading statements concerning greenhouse gas emissions and energy consumption practices. These deceptive efforts included using cherry-picked data to make the company look more sustainable and failing to disclose that one of its facilities in New Jersey had failed EPA regulations and that its New Jersey facility’s production process used more water than its European counterparts.
Yet, the most potentially dangerous form of climate washing in the private sector is the promotion of blue hydrogen. The oil and gas industry faced scrutiny over claims regarding the climate benefit of blue hydrogen. Some studies determined that while blue hydrogen emits less carbon dioxide, it produces more methane emissions. Additionally, when comparing the prices of green hydrogen and blue hydrogen, green hydrogen is expected to have a lower cost by 2030. As a result, the use of blue hydrogen is not as cost-effective or environmentally friendly as its supporters claim.
The human rights dimensions of climate washing raise an additional concern. In recent years, cases alleging human rights impacts from climate change have proliferated. This trend started with the Inuit petition before the Inter-American Commission of Human Rights in 2005. The petition alleged that the America’s failure to be a party to the Kyoto Protocol was accelerating the loss of ice in the Arctic and causing a wide range of human rights impacts on the people there. Although the commission rejected the petition, the effort marked the first time human rights and climate change were linked, providing a basis for climate litigation over the next two decades.
The preamble to the Paris Agreement in 2015 was another major breakthrough. In one sentence in the preamble, the agreement acknowledged the connection between climate change and human rights. This seemingly inauspicious development prompted litigation and other significant actions based on that connection in domestic and international courts, human rights commissions, and UN organizations.
One major development involved holding private sector entities accountable. In 2022, the Philippines Commission on Human Rights released a report emphasizing that private business, especially “carbon majors,” must answer for human rights violations related to climate change. Furthermore, the report stated that climate change affects some countries disproportionately and severely affects Indigenous peoples and that governments should enact legislation that ensures private sector compliance with human rights standards. Accordingly, a government’s failure to implement meaningful climate change mitigation measures can be a violation of human rights.
At the international level, the UN General Assembly’s recognition in July 2022 of a human right to a clean, healthy, and sustainable environment is pivotal to awareness of and recovery for human rights impacts from governments’ and corporations’ actions or inactions on climate change. A groundbreaking case in 2022 involving the Torres Strait Islanders in Australia demonstrated how courts and other tribunals have recognized the human rights impacts from climate change. Here, the UN Human Rights Committee concluded that Australia’s failure to protect the Torres Strait Islanders from climate change impacts violated these Indigenous peoples’ rights.
The link between human rights and climate change is crucial because climate washing affects the effective protection of human rights affected by climate change. There are two strategies that can strengthen corporate accountability for the impacts of climate washing on human rights.
First, in the U.S., the Green Guides should become mandatory rather than advisory. Furthermore, these guidelines should incorporate stricter regulations to tackle climate washing effectively. Transparency, disclosure, and accountability from corporations should be enforced with civil penalties and potential criminal liability for egregious offenses. Second, at the international level, there are new standards and norms for an era of “climate due diligence” to govern business activities to avoid human rights violations. For example, the European Commission’s Corporate Sustainability Due Diligence Directive determined that each EU member should enact national laws regarding corporate due diligence commitments to prevent and mitigate environmental impacts in companies’ operations. The UN Guiding Principles on Business and Human Rights also address obligations of states and businesses to “protect, respect, and remedy” human rights in conducting economic development. Moreover, the UN High-Level Expert Group on the Net-Zero Emissions Commitments of Non-State Entities’ 2022 report recommended that companies publicly disclose their progress toward their net zero goals using verified and comparable data.
While international guidance is valuable, the U.S. should implement binding standards consistent with these international principles to ensure effective accountability for climate washing. This unified approach can strengthen the fight against deceptive climate practices and protect human rights.
This post comes to us from Randall S. Abate, the Assistant Dean for Environmental Law Studies at the George Washington University Law School. It is based on his recent article, “‘Fool Me Once, Shame on You’: Promoting Corporate Accountability for the Human Rights Impacts of Climate Washing,” available here.