Describing its action as the “first-of-its-kind lawsuit seek[ing] to hold one of the largest petrochemical companies in the world accountable for misleading the public on plastic’s recyclability and polluting California’s environment and communities,” the California Attorney General has announced the filing of a complaint against Exxon Mobile.  The lawsuit alleges that ExxonMobil “has misled consumers and continues to do so by engaging in an aggressive campaign to deceive the public and perpetuate the myth that recycling will solve the crisis of plastic pollution.” 

In its nearly 150 page detailed and highly technical complaint, describing the myriad of harms to the environment and human health likely caused by plastic pollution and microplastics, the Attorney General alleges that ExxonMobil -- at the “top of the plastic production pyramid” --- is responsible for those harms. It alleges that the company is the world’s largest producer of the plastic polymers used to manufacture single-use plastics and that it is these plastics that have caused or substantially contributed to the “deluge” of plastic pollution harming California. Further, the AG alleges, ExxonMobil not only promotes and produces the largest amount of plastic that becomes plastic waste in California, but it has also deceived the public by promising that both mechanical and chemical recycling could and would solve the plastic waste crisis when it knew that it couldn’t. 

According to the complaint, Exxon Mobile has, for decades, been “falsely reassuring consumers that they can continue using plastics because recycling…is an effective solution to the plastic waste and pollution crisis.” Thus, greenwashing is at the heart of this complaint: Exxon Mobile knew how bad plastic waste would be for the environment but tried to convince the public otherwise by promoting feel-good but useless recycling efforts.  And it engaged in these efforts in order to protect its bottom line: as the complaint alleges, “ExxonMobil depends on single-use plastics production and consumption for its rapidly growing and profitable petrochemical business.” 

To further its business purposes, the complaint alleges, Exxon Mobile both convinced the public that plastic single-use products were necessary and that any problems associated with their accumulation could be solved by  recycling. However, Exxon Mobile knew that this was not true, as early as the 1970s.  As noted in the complaint “[r]ecycling most plastics was technologically infeasible, as the plastics industry knew, and subsequent scientific research would confirm.”  Yet the company, through a trade association, spent millions on PR and advertising saying otherwise, urging the public to recycle.  In fact, according to the complaint, a key aspect of the strategy to promote plastic recycling was to convince consumers that “they were responsible for the proliferation of plastic waste through their own personal habits, rather than through Mobil’s and Exxon’s efforts to produce an increasing number of plastic products designed for single-use. This strategy shifted attention from Mobil’s and Exxon’s creation of the plastic to consumers’ behavior.” 

In furtherance of this strategy, as detailed in the complaint, the company also adopted the chasing arrow symbol for plastic containers with numbers that would correspond to the type of resin the item was made from, leading consumers to believe that all labeled plastic items were recyclable, which they are not because there are no recycling facilities capable of recycling several of the resins. It also details the company’s aggressive promotion of so-called “advanced” recycling, a chemical process, which (despite its name), according to the complaint, is no more successful than mechanical recycling in reducing plastic waste. 

Further, it could not be any more successful because “[t]he economic problems with recycling plastics are well-known and widespread throughout the petrochemical industry” and there is too much money to be made in producing virgin plastic instead. Indeed, as the complaint states, “[l]ike its promotion of mechanical recycling decades ago, ExxonMobil’s promotion of ‘advanced recycling’ is another deceptive marketing campaign designed to encourage unabated consumption of its plastic products, rather than a real solution to the extraordinarily harmful plastic waste and pollution crisis that ExxonMobil’s deception substantially caused and continues to exacerbate.”

After detailing the harm caused by plastics to the public, the environment, ocean life, wildlife, workers, low income communities and communities of color, and more, the complaint states causes of action for public nuisance; pollution, impairment, and destruction of natural resources under the Government Code; water pollution under the Fish and Game Code; and untrue or misleading advertising, misleading environmental marketing, and unfair competition under the Business & Professions Code. The prayer for relief seeks nuisance abatement, disgorgement, civil penalties; and injunctive relief.

As my partner Jeff Greenbaum wrote in reporting on New York City’s greenwashing suit against Exxon Mobile and other fossil fuel companies, it may be too soon to know either how this case will play out, or what it will mean for other companies and their environmental claims. But we do know that when producers of petroleum-based products talk about the environmental benefits of their risk mitigation strategies, consumers – and regulators – are going to be paying very close attention.