Greenhushing, greenrinsing, greenlabelling, greenshifting, greenlighting and greencrowding. These are some of the sub-categories of the broader greenwashing concept. New sub-categories will develop. Could the examples below be new sub-categories?

There are a series of cases in the US against big oil seeking damages for “public deception”. Based on a substantial volume of documents now in the public domain, it is alleged that some oil companies have (the Allegations):

(a) continued to produce and sell their products, despite knowing by the 1950s (through their own research) of the potential warming effects of GHG emissions from burning fossil fuels; and

(b) funded, supported and promoted messaging campaigns to discredit the science regarding climate change and the role of fossil fuels in causing climate change.

The context and conduct identified in the Allegations have similarities to those that ultimately led to substantial success against the tobacco companies.

Other aspects of interest in the US cases are:

(a) the plaintiffs are pursuing the oil companies in negligence (amongst others). That cause of action has been bruised (but not defeated) in the decision of the Full Federal Court (Australia) in Minister for the Environment v Sharma.

It is conceivable that the Allegations and the continued improvement of the attribution science could solve some of the troublesome duty, breach and causation issues identified in the Sharma case and also in Smith v Fonterra (NZ Court of Appeal).

(b) a number of the plaintiffs in these cases are states and municipalities rather than classes of individual plaintiffs or NGOs;

(c) damages sought include:

(i) recovery of moneys spent by the states and municipalities in remediating public infrastructure damaged by rising sea levels and heat waves (among others);
(ii) moneys to construct seawalls and other protective measures to prevent future damage to public infrastructure.

Companies’ environmental targets/plans have been the subject of scrutiny by NGOs and others.  A recent example in the US involved sustainability statements in the offer documents of Oatly Group AB’s that were identified as misleading by the activist organisation, Spruce Point Management. Upon the release of Spruce’s report, Oatly’s share price fell 9%.

More recently Greenpeace France released a report in which it claimed that TotalEnergies (an oil major) underestimated its 2019 GHG emissions. TotalEnergies commenced proceedings in which it alleged that Greenpeace’s report is misleading. TotalEnergies seeks 1 euro in damages. Is this the start of a trend of companies fighting back?

So, what names should be coined for these new sub-categories of greenwashing?