Climate Change Disinformation Liability Under the Federal Trade Commission Act
Oil companies and their agents have been actively involved in creating and propagating climate change disinformation for the past half-century. In response to this deception, more than two dozen American states and cities have sued these companies under traditional tort-based causes of action like public nuisance, fraud, negligence, and failure to warn, alleging that the companies fueled uncertainty about climate science and undercut public support for necessary climate action. Plaintiffs in these suits often struggle to establish a legal causal chain linking fossil fuel companies’ deceptive communications to incurred climate-related injuries. Thus, traditional tort-based suits may fail to provide sufficient legal pressure to dissuade oil companies from spreading misinformation that questions legitimate climate science and undercuts the need for fossil fuel regulation. Section 5 of the Federal Trade Commission Act (FTCA), and similar business and consumer fraud statutes, might provide an alternative approach to penalizing commercial climate change deception and holding corporations accountable for their dissemination of climate disinformation. This Comment argues that the Federal Trade Commission could use its authority under §5 of the FTCA as a federal tool to prohibit, discipline, and seek redress for corporate climate disinformation campaigns, as a means to hold those actors responsible for obstructing advancement of the necessary large-scale behavior change needed to mitigate the climate crisis.