If you were trying to come up with a shocking headline, “Oil Company Revealed to Be Producing oil” would not be high up on the list. Yet the state of California thinks it should be. The state has sued ExxonMobil for fraud, claiming that it is misleading the public about processes used to make fuel.
The basis of the lawsuit involves new recycling processes for plastic products. Plastic has long posed a challenge when it comes to recycling. Unlike aluminum cans, which can be melted down and reused an indefinite number of times, plastic degrades during the ordinary recycling process, limiting its usefulness. However, a newly developed “advanced recycling” process uses pyrolysis (whatever that is) to break plastics down into their original base components.
These components tend to not be degraded to the same extent that with normal mechanical recycling, meaning that they can then be used to produce new plastic, or—and here is where the controversy starts—can be used to make oil.
Given that plastics are originally made as a by-product of fossil fuels, the idea that they can be turned back into fossil fuels shouldn’t be so surprising. But California’s attorney general is mad that Exxon refers to this as “recycling.” Because, you see, recycling is good, while fossil fuels are bad. Or something. In any event, the state is seeking various forms of monetary penalties and injunctive relief.
You might think that the California attorney general’s office has better things to worry about than whether reusing something in a politically unapproved way counts as recycling. But this lawsuit is only the latest in a line of legally dubious litigation that seeks to use courts to achieve environmental policy goals.
In 2011, the Supreme Court rejected a lawsuit brought by a group of states (including California) against a number of power companies, claiming that greenhouse gas emissions from fossil fuel generated electricity were a public nuisance under federal law. But while the Supreme Court’s decision put the kibosh on federal challenges, they left open the possibility of state challenges against companies based on the greenhouse gas emitting activities.
Since then a wave of lawsuits has followed against companies on a variety of legal theories. Some states and localities have filed lawsuits seeking recompense for the damage allegedly caused to their area by climate change. Others have sought to follow a similar playbook to the more recent litigation, claiming that energy companies committed fraud by denying or downplaying the link between greenhouse gas emissions and climate change. And some lawsuits take an almost cosmic approach. Last year, a Montana court decreed that the Montana state government was required to act to reduce emissions in the state because the state’s atmosphere was held in public trust.
The success rate for these lawsuits so far has not been good. And there is little reason to think that the current suit will fare any better. For one thing, when people decide to buy a plastic product over a non-plastic alternative, the specifics of whether and how that plastic might be recycled are typically not a factor in their decision making. The recycling rate for plastic in the United States is only 5%, far less than for other types of material. Calling it fraud when plastic is labeled as recyclable stretches language beyond recognition.
More importantly, going after oil companies is simply not a good way to address the problem of plastic pollution. Plastic waste is an important global problem, but it is one that is mainly confined to the developing world. Most ocean plastic originates from a handful of rivers in the Philippines, India, and Malaysia. In fact, only 7% of ocean plastics originate from developed countries. Plastic pollution is a matter not of how or whether plastic is recycled. It’s a matter of proper waste management.
California, of course, doesn’t have jurisdiction over the Philippines. Which may be why it has focused instead on headline catching but largely pointless efforts like banning plastic straws or the current lawsuit. But while politically motivated lawsuits may feel good in the moment, they are ultimately corrosive to our legal as well as our political system.
People who are really interested in solving problems like plastic pollution or climate change should concentrate their efforts on policies that will actually move the needle, and not waste time on symbolic, politically charged efforts.
Josiah Neeley is a resident senior fellow for the Energy Policy Program at the R Street Institute.