Liability for Public Deception: Linking Fossil Fuel Disinformation to Climate Damages
By Jessica Wentz and Benjamin Franta
Over two dozen U.S. states and municipalities have filed lawsuits against fossil fuel companies, seeking abatement orders and compensation for climate damages based on theories such as public nuisance, negligence, and failure to warn, and alleging these companies knew about the dangers of their products, intentionally concealed those dangers, created doubt about climate science, and undermined public support for climate action. This Article examines how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids. A key finding is that courts may infer public reliance on false and misleading statements using multiple lines of evidence, including information about the scope and magnitude of the deceptive communications, defendants’ internal assessments of the efficacy of their disinformation campaigns, acknowledgements of intended reliance made by defendants, expert testimony on the effects of disinformation, public polling data, and more. The Article concludes with a discussion of these potential strategies and evidentiary sources.