For example, ExxonMobil CEO Darren Woods admitted during the 2023 APEC Summit that ExxonMobil has known climate change is a real danger, but sympathetically argues that producing affordable energy is an equally urgent and global issue affecting billions of individuals living in extreme poverty. He then pivots, reassuring his audience that ExxonMobil has been diligently working toward ameliorating both issues by investing billions of dollars in carbon capture technology, biofuel alternatives, and low-carbon hydrogen plants. The House Oversight Committee’s investigation, however, reveals that these investments make up a diminutive slice of the company’s profits and is not a meaningful effort to curb GHG emissions. The reality is that these fossil fuel companies make public-facing statements, like Woods’ speech, touting climate-positive actions that position these companies as critical players in the solution to climate change while, internally, they admit that these solutions are not viable and are merely a tactic to prolong the unabated use of fossil fuels.
Plaintiffs engaged in climate litigation have cited this deceptive practice in their complaints but have been met with an unexpected legal hurdle: fossil fuel companies are now co-opting anti-SLAPP (strategic lawsuits against public participation) laws to shield their statements about climate change as protected political speech under the First Amendment. This article critiques the fossil fuel industry's use of anti-SLAPP laws to evade accountability while offering guidance to cost-averse plaintiffs on overcoming challenges these claims produce such as delayed litigation and financial burdens.
What you need to know about anti-SLAPP laws
States developed anti-SLAPP law to discourage the practice. Preeminent legal scholar George R. Pring identified SLAPPs as an emerging trend of lawsuits in the 1970s that were a “frighteningly common and easy to stimulate” method of chilling constitutionally protected speech. Private entities use SLAPPs to intimidate individual and group activists into withdrawing from litigation through the threat of excessively high damages calculations. SLAPPs often “'masquerade as ordinary lawsuits' but are intended to deter ordinary people 'from exercising their political or legal rights or to punish them for doing so.'” Resolute Forest Prods. Inc. v. Greenpeace Int'l, 302 F. Supp. 3d 1005, 1024 (N.D. Cal. 2017).
Anti-SLAPP statutes vary by state, but share common mechanisms meant to protect victims of SLAPPs. California’s anti-SLAPP law, for instance, allows defendants to file a special motion to strike, a legal mechanism for dismissing lawsuits targeting protected speech on matters of public interest. Once a motion is filed, the claim is stayed and the burden shifts to the claimant to demonstrate they have a probability of prevailing. If they are unsuccessful, the defendant is entitled to attorney’s fees and costs—a financial deterrent against creating SLAPPs.
The history and development of these laws illustrate that they are intended to protect individuals from corporate intimidation. However, they have become a tool companies, including certain fossil fuel companies, use to dismiss legitimate climate litigation.
Articulating the anti-SLAPP defense
Fossil fuel companies articulate their anti-SLAPP defense in three steps. First, they seek to apply favorable law through persuasive choice-of-law analysis. In the 2022 case Platkin v. Exxon Mobil Corp., Chevron argued that because it is headquartered in California, California’s anti-SLAPP law should be applied as California has the most interest in applying its own law to its residents.
Next, they claim immunity under the anti-SLAPP law, asserting that statements regarding climate change are political speech. In the same case, Chevron cites Cal Civ. Proc. Code section 425.16(e)(2), (3), (4), stating that immunity applies to claims “arising from” speech on issues of “public interest” or issues that have been subject to “consideration or review” by a governmental body.
Finally, the procedural mechanisms of anti-SLAPP law take effect. Once a special motion to dismiss is filed the claim is stayed, shifting the burden to the plaintiff to prove their claims will prevail––to which the company will argue the plaintiff is incapable of doing. Invoking anti-SLAPP law through these arguments creates a real threat to plaintiffs as it opens the door to dismissal and financial burdens generated by drawn-out litigation.
Judicial response to anti-SLAPP claims
Despite fossil fuel companies' attempts, courts have largely resisted dismissing climate lawsuits based on anti-SLAPP claims. Several key decisions illustrate this trend:
- Commonwealth v. Exxon Mobil Corp. (187 N.E.3d 393 (2022)): Massachusetts’ attorney general sued Exxon Mobil for violating consumer protection laws by misleading the public about climate change. Exxon Mobil claimed its statements were protected petitioning activity under the state’s anti-SLAPP law. The court rejected this defense based on its plain reading of the statute which indicated that ruling that Massachusetts’ anti-SLAPP statute cannot apply to government enforcement actions.
- City & County of Honolulu v. Sunoco LP (No. 1CCV-20-0000380 Haw. Cir. Ct. (2021)): Plaintiffs sued major fossil fuel companies for knowingly contributing to climate change. Chevron attempted to invoke California’s anti-SLAPP statute to dismiss the claims. The court denied the motion, holding that, even if Chevron’s choice-of-law analysis is correct, California’s anti-SLAPP law would not protect Chevron from liability in an identical public nuisance claim in California. Furthermore, the court emphasizes that the location of the alleged tortious conduct is not dispositive in a choice-of-law analysis; while it is a factor to consider, it must be weighed against other variables such as where the alleged harm occurred and the where the alleged victims reside.
- State ex. rel. Jennings v. BP Am. Inc. (2024 Del. Super. LEXIS 25): Delaware sued major fossil fuel companies for concealing the dangers of fossil fuel emissions. Chevron and the American Petroleum Institute filed anti-SLAPP motions under California and Delaware anti-SLAPP laws. The court declined to engage substantively with these claims, suggesting that future courts could reject premature anti-SLAPP motions if the factual record is insufficient for a meaningful analysis.
Navigating concerns over delayed litigation
While these court decisions set initial precedents against fossil fuel companies' use of anti-SLAPP law, they do not definitively bar future attempts to invoke these protections. The procedural delays caused by anti-SLAPP motions pose a significant challenge, particularly for smaller plaintiffs like local municipalities and tribal governments, which often lack the financial resources to withstand prolonged litigation.
To mitigate these risks, plaintiffs should preemptively address anti-SLAPP defenses in their initial filings. One strategy involves framing a fossil fuel company’s statements as commercial speech. The courts in Commonwealth and Honolulu did not fully engage in discussing whether the alleged statements qualify as political speech or commercial speech due to an insufficient record, but briefly mentioned the issue because the respective anti-SLAPP laws exempted from the First Amendment protections commercial speech. These exemptions barred immunity under the statutes for speech deemed to be commercial in nature. This might suggest that by demonstrating early on that their claims do not trigger anti-SLAPP protection, or that the statements cited in the complaint trigger a similar exemption, a plaintiff could increase the likelihood of a court dismissing an anti-SLAPP claim expeditiously.
By leveraging statutory safeguards like the commercial speech exemption and addressing anti-SLAPP issues in anticipatory initial pleadings, plaintiffs can mitigate the challenge of drawn-out litigation and ensure that these laws are not used to dismiss legitimate climate action.
