Exxon uses free speech argument to fight climate laws

It’s not the first time the oil giant has tried to ward off accountability using the First Amendment.

Scope 3 emissions, released during the use of fossil fuel products, make up the majority of emissions from the oil and gas industry, but companies have fought to avoid accounting for them. Photo: iStock

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ExxonMobil has sued California over a pair of state laws that force big companies to disclose financial climate risks to shareholders and the full greenhouse gas emissions resulting from their businesses — arguing that the measures violate the company’s free speech. It’s the latest example of Exxon, the biggest U.S. oil company, wielding the First Amendment as both a shield and sword in court.

The California Climate Accountability Package, which passed in 2023, would make companies doing business in California disclose emissions that result from the use of their products — also known as “Scope 3” emissions. That category makes up the vast majority of emissions from the oil and gas industry, but companies including Exxon have fought to avoid making them transparent.

Exxon’s new lawsuit argues that by requiring it to account for the entirety of its emissions, the laws would force it to “espouse California’s preferred framing for issues of immense public concern” and to “describe its emissions and climate-related risks in terms the company fundamentally disagrees with.” The lawsuit asks a U.S. District Court to stop California from enforcing the laws.

The case targets the country’s only existing disclosure laws for greenhouse gas emissions, even as the federal government ends emissions reporting and required climate disclosures at the federal level. But it’s also part of a years-long trend of corporations using First Amendment arguments in an attempt to shield themselves from scrutiny and regulation, experts say.

“​​This is part of a long history of companies including Exxon trying to use the First Amendment to block regulation that they dislike,” said Amanda Shanor, an associate professor of legal studies and business ethics at the Wharton School of the University of Pennsylvania, who has chronicled some of those high-stakes efforts. “That’s not really how the First Amendment works or is supposed to work.”

The fossil fuel industry, in particular, has leveraged First Amendment arguments to repel criticism over their role in the climate crisis. In recent years, oil companies have claimed that lawsuits across the country accusing them of misleading the public about climate change violate their free speech rights. From Oregon to Massachusetts, the District of Columbia to California, Exxon has brought motions to dismiss states’ and municipalities’ climate deception lawsuits under anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes — laws that were developed to protect the free speech of press and civil society groups.

One of those motions, responding to lawsuits filed by the state of California and eight California municipalities, argues that oil companies “have long exercised their rights to participate in the public debate over which policies best balance the challenges posed by a changing climate and the world’s increasing need for energy,” and that “This lawsuit threatens Defendants’ continued participation in those debates.”

The law firm representing Exxon in that motion, O’Melveny and Myers, is the same as in the latest First Amendment lawsuit against California. The argument seeks to cast Exxon’s public statements on climate change as political speech, which concerns public policy and has stringent First Amendment protections, rather than commercial speech, which does not enjoy the same level of protections.

“We’ve seen this movie before,” said Robert Brulle, an environmental sociologist and professor at Brown University and director of research at the Climate Social Science Network, who has co-authored briefs in support of climate deception lawsuits. “Their fallback defense is freedom of speech — ‘nobody ever said we have to be truthful.’”

Mobil Oil, now part of ExxonMobil, helped pioneer the idea of corporations as citizen-like entities with free speech rights in an effort to revive their reputation back in the 1970s. Exxon and Mobil backed other corporations’ First Amendment lawsuits, arguing that companies should be free to express their views on “matters of public concern,” including climate change. In Supreme Court cases like First National Bank v. Bellotti and Citizens United v. FEC, the idea of corporate free speech was expanded to usher in nearly unlimited corporate money in politics.

Still, none of oil companies’ anti-SLAPP arguments has been validated by judges. Under existing First Amendment law, Shanor explained, Exxon’s lawsuit against California’s disclosure laws should be very unlikely to succeed, too.

“Exxon is grasping at straws,” said Maggie Coulter, a senior attorney for the Climate Law Institute at the Center for Biological Diversity. “Courts have already rejected companies’ weak arguments rebranding their greenwashing and misinformation as free speech.”

Exxon and other corporations could be hoping that the U.S. Supreme Court might eventually use such a case to alter the boundaries between political and commercial speech — or “change what the rules are in a way that will favor them,” Shanor said.

“You just keep throwing the same basic core argument up there, wave the flag of the First Amendment and say, ‘leave us alone.’ Kind of like holding up a cross to a vampire,” said Brulle. “Now they’re playing it out in California to try to build a record in the court.”

‘Disproportionate blame’ on Exxon

According to Exxon’s lawyers, California’s disclosure framework would place “disproportionate blame on large companies like ExxonMobil for being large.”

“ExxonMobil understands the very real risks associated with climate change and supports continued efforts to address those risks,” reads the complaint. Such frameworks “send the counterproductive message that large companies are uniquely responsible for climate change no matter how efficiently they satisfy societal demand for energy, goods, and services.”

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, said that Exxon should “let the readers decide.”

“If Exxon doesn’t like California’s framing, it’s free to supplement it with its own framing and offer an explanation of why it thinks that one is better,” he said.

The company’s own framing hasn’t gone over well so far, at least with climate experts. Exxon is the top investor-owned carbon emitter in the world, according to the latest Carbon Majors database by researchers at the nonprofit think tank InfluenceMap, and one of the most profitable. But Exxon officials have often blamed the company’s emissions largely on the habits of consumers. In an interview with Fortune last year, ExxonMobil CEO Darren Woods said that “the people who are generating the emissions need to be aware of and pay the price … for generating those emissions,” and referred to Scope 3 emissions as “essentially the emissions of our customers.”

Just before that interview, Exxon sued its own shareholders in an effort to block a proposal for the oil giant to limit its Scope 3 emissions. The lawsuit was dismissed, but not before shareholders revoked their proposal.

“What Exxon is asking for in this case is to say that shareholders should have no right to question companies on climate-related issues,” Danielle Fugere, president & chief counsel of shareholder advocacy group As You Sow, told ExxonKnews at the time.

Both that lawsuit and another last year brought by the U.S. Chamber of Commerce against the California Air Resources Board, which also alleged California’s climate disclosure laws violated the First Amendment, were argued by law firm Gibson Dunn — a favorite of fossil fuel companies. The industry has also used the firm to pursue massive legal damages from their opponents, including this year’s nearly $667 million verdict against Greenpeace for its role in the protests against Energy Transfer’s Dakota Access pipeline.

Earlier this year, after California Attorney General Rob Bonta and a group of nonprofits sued Exxon for a “decades-long campaign of deception” about the efficacy of plastic recycling, Exxon sued them back under defamation laws — a clear example of a SLAPP, legal experts said.

Though climate deception lawsuits face growing attacks from fossil fuel allies and the Trump administration in the United States, they have seen recent successes abroad — a Paris Court just ruled that French oil giant Total’s advertising about “net zero” and leading the energy transition was misleading consumers. And over the last week, two new lawsuits have been brought against major polluters in the UK and Germany by victims of climate disasters. “I think that the evidence is pretty solid that Exxon and Mobil and all sorts of other folks knew all about climate damages and lied about it, and it’s just going to get more solid the more information we get,” said Brulle.

California officials said they would fight to uphold the disclosure laws, which could soon show up in other states, too. “These laws are about transparency,” said Christine Lee, a spokesperson for the California Department of Justice, in a statement. “ExxonMobil might want to continue keeping the public in the dark, but we’re ready to litigate vigorously in court to ensure the public’s access to these important facts.”

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