thorough opinion allows CT's greenwashing claims against Exxon to proceed

State v. Exxon Mobil Corp., 2025 WL 3459468, No. HHDCV206132568S (Conn. Super. Ct. Nov. 26, 2025)

The court allows greenwashing claims against Exxon to proceed under the Connecticut Unfair Trade Practices Act (CUTPA). The state alleged a decades-long “systematic campaign of deception” about the impact of its fossil fuel products on the earth’s climate and a more recent “greenwashing” campaign designed to bolster its image as an environmental steward in order to attract consumers.

The state focused particularly on an advertising campaign that began in 1970 and continued until 2007 or later, including advertorials in the New York Times nearly every Thursday between 1972 and 2001 with knowingly false claims such as

• Claiming that “a greenhouse effect” that could “melt the polar ice caps and devastate U.S. coastal cities” was a “lie” and a “myth of the 1960s and 1970s.”

• Describing predictions concerning the impact of global warming as “media hype” creating “an unwarranted sense of crisis.”

• Promoting the delay of any response to climate change based on a supposed “lack of scientific data.”

• Using scientific data in a misleading fashion to suggest that fossil fuels had little to do with global warming and that “little if any warming” had occurred.

Greenwashing: Exxon allegedly promotes its “minor and insignificant alternative fuels program to obscure its continued focus on its fossil fuel business and mislead the public into believing that the defendant is making serious efforts to address climate change.” The ads also allegedly mislead consumers into believing that “certain of its fossil-fuel-based products can help consumers reduce greenhouse gas emissions and improve fuel economy.” Exxon allegedly “sought to falsely induce purchases and brand affinity by portraying ExxonMobil as a company working on a solution to climate change through selling ‘green’ products.”

The materially false claims allegedly included: 

a. that ExxonMobil was uncertain that climate change was real, occurring or would occur in the future;

b. that ExxonMobil was uncertain that human activity, including the combustion of fossil fuels, contributed to climate change;

c. that there was time to wait before taking action;

d. that there was a balanced debate amongst scientists about whether climate change was occurring, its relationship to human activity, and whether its effects would be positive or negative;

e. that ExxonMobil’s research supported the assertions in (a) – (d).

The state sought penalties based on the number of false ads, as well as injunctive relief against making the claims and requiring disclosure of Exxon’s relevant internal research. It disclaimed seeking any damages caused by Exxon’s contribution to climate change.

Exxon argued that federal law preempted claims seeking monetary relief for injuries allegedly caused by interstate and international greenhouse-gas emissions. Although the court followed the framework in City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021), finding preemption, it distinguished the claims at bar. The Chevron case involved claims for “(1) public nuisance, (2) private nuisance, and (3) trespass under New York law stemming from the [defendants’] production, promotion, and sale of fossil fuels. The [plaintiff] requested compensatory damages for the past and future costs of climate-proofing its infrastructure and property, as well as an equitable order ascertaining damages and granting an injunction to abate the public nuisance and trespass that would go into effect should the [defendants] fail to pay the court-ordered damages.”

Here, the deceptive marketing claims and, to some extent, the nature of the relief sought counseled against preemption. The state’s CUTPA claims didn’t amount to state regulation of “the production, sale and use of fossil fuels,” but were limited to “regulating the associated marketing conduct.”

Indeed, in Connecticut v. Exxon Mobil Corp., 83 F.4th 122, 142 (2d Cir. 2023), the Second Circuit addressed federal removal jurisdiction in this case in a decision that resulted in remand to state court. The court said, “Each of the three necessary elements of Connecticut’s deception claim is one that a court could ... resolve[ ] ... without reaching the federal common law of transboundary pollution.... We entirely agree with the district court’s analysis of this point: Connecticut alleges that ExxonMobil lied to Connecticut consumers, and that these lies affected the behavior of those consumers. The fact that the alleged lies were about the impacts of fossil fuels on the Earth’s climate is immaterial.” So too with the unfairness claim.

On the merits, the complaint stated a claim. Exxon argued that the statements were made outside of Connecticut. CUTPA defines “trade” and “commerce” as: “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity or thing of value in this state.” The federal courts have “held that CUTPA does not require that a violation actually occur in Connecticut, if the violation is tied to a form of trade or commerce intimately associated with Connecticut, or if, where Connecticut choice of law principles are applicable, those principles dictate application of Connecticut law.” Based on the allegations of the complaint, some of the alleged tortious conduct occurred in Connecticut (advertorials in papers delivered to Connecticut), and that was enough.

Were the claims made in “trade or commerce”? Lafferty v. Jones, 229 Conn. App. 487, 327 A.3d 941 (2024), held that Alex Jones’s defamatory and harassing speech, which was motivated by desire to sell products, but otherwise unrelated to those products, fell outside the scope of “trade” and “commerce” in CUTPA. “[N]othing in the defendants’ speech, in and of itself, concerning the Sandy Hook massacre made any mention of their products.” That wasn’t the case here. “The speech at issue in the present case is expressly alleged to be about the defendant’s products, if not specifically then genetically.” [ed. note: generically?] After all, “advertising” “is not limited to direct and express solicitations for the sale of a product,” but includes “[a]ny form of public announcement intended to aid directly or indirectly in the sale of a commodity....” At least without a more developed factual record, the court wasn’t going to reject the claims here.

Were the statements falsifiable, or just opinion or true? Were they immaterial? The complaint adequately alleged deceptiveness; many of these disputes were for the factfinder. In determining whether a claim is falsifiable or opinion, Connecticut requires “analysis of three basic, overlapping considerations: (1) whether the circumstances in which the statement is made should cause the audience to expect an evaluative or objective meaning; (2) whether the nature and tenor of the actual language used by the declarant suggests a statement of evaluative opinion or objective fact; and (3) whether the statement is subject to objective verification.”

“It may be that some of the statements referenced in counts one and two of the complaint are expressions of opinion but … this court is being asked to make that judgment based only on the allegations of the complaint.” The complaint sufficed, especially given allegations that Exxon’s internal research disagreed with its ads. Interpretation of CUTPA is supposed to be guided by FTC interpretations, and the FTC has long held that “[c]laims phrased as opinions are actionable... if they are not honestly held, if they misrepresent the qualifications of the holder or the basis of his opinion or if the recipient reasonably interprets them as implied statements of fact.”

The disclosure-based claims also survived because, even though there’s no duty to disclose in many circumstances, one who decides to speak may not omit material facts if the omission misleads reasonable consumers about the import of the affirmative claims, and that was alleged here.

And materiality was properly alleged, given that materiality is a lower standard than reliance:

The FTC’s publication of the Green Guides reflects a recognition that environmental issues are a matter of interest and concern to consumers and that, therefore, the defendant’s alleged greenwashing efforts are material, at least potentially so. It is fair to be skeptical that consumers would choose to purchase gasoline from the defendant based on an erroneous impression that the defendant is proactively and earnestly engaged in efforts to reduce greenhouse gas emissions through the development of alternative energy sources and other more eco-friendly fossil fuel products. It is not a question of reliance by the consumer, however, only a question whether the consumer is influenced by the defendant’s allegedly misleading environmental marketing. That is a question of fact, not a question of law.

Unfairness claims survived for much the same reasons. CUTPA’s unfairness standard is taken from the FTC:

(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three....

Did the First Amendment bar the claim? Not at this stage. Commercial speech “can include material representations about the efficacy, safety, and quality of the advertiser’s product, and other information asserted for the purpose of persuading the public to purchase the product.” And “[a]dvertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.” Interestingly, the court relied heavily on Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014) (an ad congratulating Michael Jordan on his career and bearing store branding, but not explicitly proposing a commercial transaction or mentioning a specific product, was commercial speech), and Kasky v. Nike, Inc., 45 P.3d 243 (2002) (Nike’s advertorials and letters to the editor claiming fair labor practices were commercial speech). Jordan: “An advertisement is no less ‘commercial’ because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service.”Kasky: “speech is commercial if the speaker is a commercial person or entity, the intended audience is likely to be consumers of the speaker’s products or services, and the content of the speech includes ‘representations of fact about the business operations, products or services of the speaker... made for the purpose of promoting sales of, or other commercial transactions in, the speaker’s products or services.’”

In dismissing cert in Kasky as improvidently granted—basically because they couldn’t figure it out—Justice Stevens wrote:

Whether similar protection [as in defamation law] should extend to cover corporate misstatements made about the corporation itself, or whether we should presume that such a corporate speaker knows where the truth lies, are questions that may have to be decided in this litigation. The correct answer to such questions, however, is more likely to result from the study of a full factual record than from a review of mere unproven allegations in a pleading. Indeed, the development of such a record may actually contribute in a positive way to the public debate.

“Unfortunately, in the twenty-two years that followed the Court’s decision to dismiss the writ of certiorari in Kasky, it still has not addressed the ‘important,’ ‘difficult’ and ‘novel’ issues presented.” Preach!

Anyway, Exxon’s conclusory claim that the statements described in the complaint do not propose commercial transactions were insufficient. “[T]he mere presence of non-commercial information in an otherwise commercial presentation does not transform the communication into fully protected speech.”

Nor did the Noerr-Pennington doctrine, which protects the right to petition the government through lobbying, litigation, or other advocacy including publicity campaigns, bar the claims at this stage.

The court also rejected challenges to various smaller bits of the complaint, such as the state’s claim for relief seeking “an order that ExxonMobil fund a corrective education campaign to remedy the harm inflicted by decades of disinformation, to be administered and controlled by the State or such other independent third party as the Court may deem appropriate.” This wasn’t government-compelled speech or compelled subsidy of private speech; the funds would be used by the state to pay for corrective education.

Restitution/disgorgement: the state sought “payment of the monetary value of the defendant’s gain” to the state, acting on behalf of the citizens of the state. “[W]hen a public entity seeks disgorgement it does not claim any entitlement to particular property; it seeks only to deter violations of the [ ] laws by depriving violators of their ill-gotten gains.” This was a proper request.

Can the state reach decades back in its claims?  CUTPA’s three-year limitations period applicable to private enforcement actions does not apply to actions brought by the state. “The defendant presents scant authority in support of its proposition that an egregious delay by the sovereign violates due process.” It’s up to the legislature, not the judiciary, to abolish or modify the doctrine of nullum tempus (no limitations period runs against the state). Even if the court agreed that, at some point, nullum tempus must yield to due process, it couldn’t decide a laches-equivalent defense on a motion to strike. “The defendant is not precluded from raising due process concerns to temper the court’s consideration of the monetary relief sought by the plaintiff if the case reaches that juncture.”