California's new plastics lawsuit against Exxon could set up a First Amendment Supreme Court showdown
Commercial interests like Exxon have been laying claim to the First Amendment more and more. The plastics case could show how lenient SCOTUS is willing to be with corporations.
A quick programming note before we get started: This weekend we have a special double-header on this new plastics lawsuit. Landmark spoke exclusively with California Attorney General Rob Bonta this week about the case, and we’ll be publishing that interview tomorrow.
California’s new lawsuit against Exxon for an alleged “decades-long campaign of deception” that oversold the benefits of plastics recycling highlights important First Amendment questions that could reach the U.S. Supreme Court, experts say.
That’s because the lawsuit filed in state court on Monday by the California attorney general’s office doesn’t just seek potentially billions in damages and disgorgement of profits from one of the world’s largest manufacturers of polymers, which are used to make single-use plastics.
It also asks the court to analyze decades-worth of statements by Exxon and cut to the heart of the company’s messaging with an order blocking it from using terms like “advanced recycling,” “circular” and even “recyclable” to describe plastics.
Those requests invite “strong First Amendment push-back from defendants,” Patrick Parenteau, an environmental law professor at the University of Vermont, told Landmark.
He added: “While not altogether novel in kind, I think the First Amendment issues presented in this case could well lead to a SCOTUS decision on how far companies can go to lie about what they are doing.”
Promoting recycling for decades as plastic piles up in landfills
The lawsuit filed by California Attorney General Rob Bonta is the most expansive plastics-related lawsuit to date and seeks to hold the oil and gas giant accountable for its role in creating the plastics crisis.
Exxon is among the largest manufacturers of synthetic polymers, which are made of crude oil and are used by other companies to make single-use plastics.
At the heart of the case are claims that Exxon knew for decades those plastics will not — or cannot in practice — be recycled. As plastics piled up in landfills and oceans, the company used “misleading public statements and slick marketing” that misled the public, the state’s lawsuit says.
Here’s a breakdown of some key points from the 174-page lawsuit:
California claims producing chemicals used in plastics is a “key component” of Exxon’s overall business, with 80% of its growth dependent on single-use plastics production.
Exxon allegedly produced more “virgin” or unused plastic polymers bound for single-use plastics than any other petrochemical company in 2021. Per the lawsuit, it made six million tons of the polymers, or enough to make around two trillion single-use plastic cups, that year alone.
The lawsuit claims that Exxon is able to sustain that production through investments in plants in places like Texas and Louisiana, where it uses crude oil to produce plastics while claiming it supplements “virgin” polymers through “advanced recycling.”
The lawsuit claims that 92% of plastics in the “advanced recycling” stream — an industrial process that turns used plastics into chemical feedstock to produce new plastic — do not get turned into new products, and are burned as fuels.
In a best case scenario, plastics produced using Exxon’s “advanced recycling” program will account for less than one percent of the company’s growing total virgin plastic production capacity, California claims.
By allegedly misleading the public about the success of advanced recycling and other recycling techniques, California says Exxon has exacerbated the plastics waste crisis and violated state environmental protection laws, created a public nuisance and violated unfair marketing laws.
“For decades, ExxonMobil has been deceiving the public to convince us that plastic recycling could solve the plastic waste and pollution crisis when they clearly knew this wasn’t possible,” Bonta said in a statement. “ExxonMobil lied to further its record-breaking profits at the expense of our planet and possibly jeopardizing our health.”
An Exxon spokesperson shifted the blame in a statement, claiming California officials knew for decades that the state’s recycling system wasn’t effective and “failed to act, and now they seek to blame others.”
They continued: “Instead of suing us, they could have worked with us to fix the problem and keep plastic out of landfills. The first step would be to acknowledge what their counterparts across the U.S. know: advanced recycling works. To date, we’ve processed more than 60 million pounds of plastic waste into usable raw materials, keeping it out of landfills. We’re bringing real solutions, recycling plastic waste that couldn't be recycled by traditional methods.”
A well-known legal strategy
If the general allegations sound familiar, that may well be because they echo the litigation brought against Big Tobacco decades ago for misleading the public about the dangers of smoking, or the lawsuits against major pharmaceutical companies for their roles in the opioid crisis.
More recently, similar claims have been made by cities and states to try to hold fossil fuel companies — including Exxon — accountable for allegedly deceiving the public about the dangers of climate change.
“While this lawsuit is obviously inspired by the tobacco litigation focus on false representations, I think it is extremely important because it helps the public, courts, and regulators connect the dots between fossil fuel extraction and plastic waste,” Rebecca Bratspies, a professor at CUNY Law, told Landmark.
Responding to those lawsuits, Exxon and other major oil and gas companies have pushed a variety of defenses. They have argued that federal law preempts state law on those issues, for instance, since they believe the climate cases revolve around emissions that are theoretically regulated by the Clean Air Act.
And they have also said that the attacks are seeking to essentially limit their free speech, arguing freedom of speech is “most seriously impacted…in cases involving disfavored speech on important political or social issues.”
Legal experts say it is very likely that Exxon will respond with a similar defense to the plastics lawsuit, at least as far as the company’s First Amendment rights are concerned.
Cakes, credit card fees, abortion crisis centers and… plastics?
Amanda Shanor, a constitutional law expert and professor at the University of Pennsylvania’s Wharton School, told Landmark that the potential defense highlights a long effort among business interests to use the First Amendment to challenge economic regulations, such as California’s action on plastics.
While many think of the First Amendment as extending equally strong protection for all speech, there are longstanding doctrines that treat commercial speech differently than political speech, Shanor said. That difference is crucial because it permits laws against corporations from lying about their finances, or about the safety of their products and forms the foundation of contracts.
In other words, speech that is inherently “political” — say, vocally supporting a politician or practicing religion — is strongly protected, but a corporation’s factually incorrect economic speech isn’t.
Shanor said the Supreme Court has been showing signs that it would rather avoid some of the hard questions around free speech rights in commercial life, even though just seven years ago it was chipping away at the commercial speech doctrine.
Those decisions chipping away at the doctrine included two cases in 2017: the Masterpiece Cakeshop case (in which a baker successfully argued they can discriminate against gay customers) and the Express Hair Design case (in which the court said a New York law prohibiting merchants from imposing surcharges for credit card usage is a First Amendment matter).
But the court appeared to switch gears ever so slightly in 2018 when it reversed a lower court’s ruling that upheld a California law requiring anti-abortion crisis pregnancy centers to more fully disclose what they are. The court said it is likely that the law violates the First Amendment, but generally reaffirmed the limited free speech protections afforded to professionals when giving out untrue information.
Shanor said, though, that it isn’t impossible that California’s high-profile plastics case, or some other environmental case, attracts a new look from the high court.
“The case highlights questions about the First Amendment that the Supreme Court has been trying to dodge,” Shanor said.