With great fanfare and publicity, the state of California through Attorney General Rob Bonta filed a lawsuit in California state court in September against ExxonMobil for “allegedly engaging in a decades-long campaign of deception that caused and exacerbated the global plastics pollution crisis.” A related lawsuit was filed by environmental groups with similar allegations.
What is undoubtedly dumbfounding to many readers is the theory that Exxon, and other makers of resins that are key components in single use plastics, should be responsible for the failure of state-run plastics recycling programs. Using novel claims of public nuisance – a common law doctrine about property law, not products liability law – the state of California and the environmental groups are trying to shift public costs onto the backs of private actors simply because they engaged in sanctioned legal activity.
California’s claim is that Exxon committed “greenwashing” because – wait for it – the company toed the environmentalist line that plastic recycling was beneficial for the environment. Supposedly, Exxon erred in encouraging consumers to recycle plastic products. Of course, for decades now, so did nearly every environmental group and just about every jurisdiction in the country that set up recycling programs.
Now, faced with an ineffective recycling system that has, by California’s own admission, done little to mitigate the plastic pollution problem, the state seeks to pass the buck to producers of plastic resin, which is the building block of any plastic product. Never mind the fact that California knows well that the back end of its recycling system is riddled with infirmities and high costs that render its waste management program ineffective and uneconomical.
The Orwellian nature of the state’s claims speaks for itself. AG Bonta’s convoluted attempt to defend the lawsuit in the face of tough questioning last September on CNBC is Exhibit A in the case for the lawsuit’s paradoxical elements.
The case draws a parallel to other unsuccessful attempts to assign liability to producers of plastic products. A similar lawsuit brought by the state of New York against Pepsi/Frito Lay was dismissed in its entirety by a trial court order in October 2022.
In California’s case, like New York’s, only a few potential actors were sued for a problem which, if true, involves scores of contributors including state governments. Moreover, there is no proof California’s residents would have behaved differently even if Exxon’s public message on recycling were different. As the New York judge explained, “the [New York] Attorney General's allegations are speculative” for precisely that reason. And speculation does not make a lawsuit.
In our system of justice, actors can only be held liable for a wrong when presented with allegations that can be proven to be caused by that wrong, and only when the court has the power to issue an order that will make any difference.
Here, there is no wrong. Exxon made lawful statements that echoed those made at the time by the now retroactively prosecuting state. Even if any wrong did occur, there is no shortage of actors who make plastics and statements about plastics, so there is no real way to say that the single defendant caused the greater public to recycle improperly.
Note, too, that Exxon isn’t causing California’s plastic waste pollution. As the New York judge rightly exclaimed in his dismissal: “It is important to note that regardless of Defendant's aspirational goals, Pepsi/Frito Lay did not pollute the Buffalo River or any other local waterways - other people did!”
Secondly, claims are not viable unless the court is capable of fashioning a remedy that can undo or rectify a harm done. which it cannot do if the remedy is targeted at someone who is not the polluter. Here, it is simply speculation that a forcible change in Exxon’s plastics recycling message would change consumer behavior to the degree that the so-called nuisance of plastics pollution would be abated.
Just as the New York court concluded, California’s case, too, is emblematic of “phantom assertions of liability that do nothing to solve the problem that exists,” amounting to “nothing more than selective prosecution based on a naïve theory.”
Lawsuits like these in California and other jurisdictions are contrary to the rule of law, violate the Due Process Clause of the Constitution, violate free speech, and defy common sense.
Donald J. Kochan is Professor of Law and the Executive Director of the Law & Economics Center at the Antonin Scalia Law School at George Mason University.