The Supreme Court’s oral argument in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County exposed a question that has received comparatively little attention in the broader debate over climate litigation: How should courts understand the role of corporate deception in these cases?

“Climate deception” describes several different forms of litigation. Some lawsuits assert public nuisance, trespass, failure to warn, negligence, or related tort theories seeking compensation for the physical, economic, and governmental costs of climate change. Others challenge allegedly false or misleading environmental representations under state consumer-protection statutes. There are also hybrid cases combining consumer-protection and tort claims.

As originally pleaded, Suncor began as a hybrid case. Boulder combined common-law claims with a statutory claim under the Colorado Consumer Protection Act (“CCPA”). The trial court dismissed that statutory claim without prejudice, while allowing Boulder’s common-law claims to proceed. Thus, although consumer deception formed part of the original complaint, the consumer-protection cause of action is not before the Supreme Court.

Plaintiffs in both categories frequently allege that fossil-fuel companies engaged in a longstanding “campaign of deception,” misleading consumers and the public about the climate consequences of fossil-fuel use while later promoting their products or businesses as cleaner, lower-carbon, or environmentally responsible. Thus, consumer protection claims (also called consumer “greenwashing” claims) and climate-tort claims often arise from the same factual narrative of deception, but importantly, they do not share the same theory of liability.

The distinction became unusually visible at oral argument in Suncor. Post-argument analysis identifies several possible outcomes, including a narrower ruling for the fossil-fuel defendants and, importantly, a split result in which claims based on production and emissions are barred while deception-based theories survive. That possibility deserves attention because it would force courts to confront the classification problem directly.

Two Theories Inside One Tort Case

The oral argument brought a related distinction into focus within Boulder’s surviving tort case itself: the difference between its deception theory and its sales-and-production theory. As respondents explain in their Supreme Court brief, the common-law claims proceed through two theories. Under what respondents call the “deception claims,” Boulder alleges that, through advertising, defendants intentionally misled the public about climate change and the role of their fossil-fuel products. Under the second theory, Boulder alleges that defendants contributed to climate change through the production, promotion, refining, marketing, and sale of fossil fuels.

The first theory, the deception claims, has become increasingly important because it does not fit comfortably within the familiar description of these lawsuits as attempts to regulate interstate emissions. During argument, several Justices explored precisely that tension. Justice Kagan compared Boulder’s suit to earlier tobacco and opioid litigation and asked whether those cases would also have been preempted under the companies’ theory. At the same time, she expressed greater concern about claims closely connected to production and emissions. That leaves a plausible middle ground: deception-based theories might survive even if production-and-emissions theories do not.

Deception Is Conduct; It Is Not a Cause of Action

One reason the debate becomes confusing is that deceptive marketing can appear in multiple legal frameworks. False or misleading marketing is conduct. The doctrinal question is what legal work that conduct performs.

In a consumer-protection claim, the representation itself may constitute the statutory wrong. Depending on the applicable state consumer-protection statute, a court may ask whether the challenged representation would mislead a reasonable consumer. For example, the District of Columbia alleges that Exxon advertised its Synergy Diesel Efficient fuel as helping consumers “[r]educe emissions and burn cleaner” and “was created to let you drive cleaner, smarter and longer,” while failing to disclose the broader climate impacts of fossil-fuel use. The consumer-protection inquiry therefore focuses on the allegedly misleading marketplace representation itself.

In a climate-tort case, the same kind of deceptive representation can play a very different role. Boulder, for example, alleges that defendants’ concealment and misrepresentations helped “protect[] fossil fuel demand,” lulled consumers into a “false sense of security,” and delayed changes in energy use and supply. Those allegations are not the endpoint of the tort theory. They form part of a longer causal chain in which continued fossil-fuel use contributes to greenhouse-gas emissions, climate change, and ultimately the physical and governmental injuries for which Boulder seeks compensation.

The distinction between climate tort and consumer claims appears throughout current climate deception cases. For example, climate-tort complaints in Maui and Honolulu plead solely tort claims and no consumer-protection causes of action and seek recovery for downstream climate injuries. Rhode Island similarly alleges deceptive promotion and concealment while pursuing nuisance, products-liability, negligence, trespass, and related theories rather than a consumer-fraud count. In these cases, climate deception describes part of the alleged conduct; it does not identify the legal theory of liability.

In Suncor, even if the Supreme Court allows Boulder’s deception-based theory to proceed, what returns to Colorado state court would still be a common-law climate case involving deception, not a consumer-protection action. Thus, surviving federal preclusion would only begin the merits inquiry. If Boulder’s deception theory survives, causation is likely to become one of the central questions in state court. The issue will not simply be whether fossil-fuel companies made misleading statements. Boulder would have to connect those statements to the downstream injuries for which it seeks compensation.

Consumer Greenwashing: A Different Animal

The causal architecture of a conventional consumer-protection action differs significantly from that of a climate-tort action. Boulder seeks compensation for such things as wildfire response, flood control, infrastructure repair, public-health measures, and future climate adaptation. Consumer-greenwashing litigation instead ordinarily seeks remedies directed at deceptive marketplace conduct—injunctions, civil penalties, restitution, and related statutory relief. 

Therefore, the eventual Suncor decision should not automatically determine the fate of genuine consumer-greenwashing litigation. Consumer-fraud greenwashing claims arise under state consumer-protection statutes, and those statutes vary considerably in their standing rules, pleading requirements, available remedies, and substantive standards. Some provide broader avenues for enforcement than others. In Boulder, for example, the consumer-protection claim was subjected to heightened fraud pleading and dismissed without prejudice on pleading and limitations grounds. By contrast, statutes such as the D.C. Consumer Protection Procedures Act (CPPA) permit broader forms of public-interest enforcement and can reduce some of the standing obstacles encountered elsewhere.

For example, the District of Columbia sued Exxon and other fossil-fuel companies for alleged climate disinformation and greenwashing solely under the D.C. Consumer Protection Procedures Act (CPPA). Connecticut’s Attorney General brought a similar consumer-protection action against Exxon under the Connecticut Unfair Trade Practices Act (CUTPA), alleging deceptive marketing concerning climate change. Although the Connecticut complaint also describes the physical consequences of climate change, the court emphasized that the alleged actionable conduct concerns Exxon’s marketing practices—not nuisance or trespass—and that the requested relief targets the allegedly deceptive conduct rather than compensation for climate-related physical harm.

Furthermore, consumer-protection law may also provide a distinct avenue for strategic climate litigation if broader climate-tort theories are narrowed or foreclosed. Unlike climate tort claims, consumer-fraud actions can target allegedly deceptive marketplace communications without requiring plaintiffs to establish the full causal chain from corporate conduct to global emissions and localized physical climate injury. In some jurisdictions, these statutes also expand who may sue. The D.C. CPPA, for example, permits qualifying public-interest organizations to bring claims on behalf of consumers, allowing NGOs to challenge allegedly misleading environmental representations even where they could not satisfy ordinary Article III standing requirements in federal court. [1] 

In Earth Island Institute v. Coca-Cola Co. the D.C. Court of Appeals reversed dismissal and held that the organization had plausibly stated a CPPA claim based on Coca-Cola’s sustainability representations.x Furthermore, Mighty Earth v. JBS USA Food Co. similarly demonstrates the significance of statutory standing. After removal, the federal court concluded that Mighty Earth lacked Article III injury in fact and remanded the case, leaving the organization free to pursue its CPPA claim in D.C. Superior Court under D.C.’s broader public-interest standing regime. These cases do not establish that consumer-greenwashing plaintiffs will necessarily prevail on the merits, but they show that consumer-protection statutes can furnish a comparatively accessible pathway for NGOs, consumers, and public enforcers to challenge climate-related marketing.

If federal preclusion or state-law causation doctrines substantially constrain climate-tort litigation, consumer-fraud claims may therefore assume greater importance as a narrower form of strategic climate litigation—one aimed not at shifting the full costs of climate harm, but at regulating the informational environment in which climate-related products and corporate identities are marketed.

Additionally, because Boulder’s CCPA claim is no longer before the Supreme Court, Suncor will not directly decide whether that consumer-protection cause of action is federally precluded. Nor will the Court necessarily determine the fate of consumer-greenwashing actions. Its reasoning, however, could affect those cases if the Court adopts a rule broad enough to treat deceptive-marketing claims as functionally equivalent to regulation of interstate emissions.

The Supreme Court has recognized a related distinction in other regulated fields. In Altria Group, Inc. v. Good, the Court held that federal cigarette regulation did not preempt state deceptive-practices claims challenging allegedly misleading “light” and “lowered tar” advertising. Similarly, the plurality in  distinguished claims predicated on a general state-law duty not to deceive from claims imposing additional smoking-and-health requirements on cigarette advertising. Although the tobacco cases arise under a different statutory scheme and do not resolve Suncor, the cases illustrate a narrower principle: federal regulation of an underlying product or activity does not necessarily preempt state-law duties directed at deceptive marketplace representations.

The Possible Outcomes and The Possible Consequences                   

The post-argument possibilities therefore have consequences extending beyond Boulder.

A broad ruling treating deception-based climate claims as indirect attempts to regulate greenhouse-gas emissions could collapse legal theories that protect different interests, require different causal showings, and authorize different remedies. That approach has already appeared in lower-court litigation, where courts have classified an entire complaint according to its downstream climate injury rather than separately considering consumer-protection theories.

A narrower ruling, by contrast, might leave open meaningful distinctions among production-based climate torts, deception-based climate torts, and consumer-protection actions directed specifically at marketplace representations. If deception-based tort theories survive while production-and-emissions theories do not, the next question would be whether those surviving tort claims can satisfy state-law requirements of causation and the other elements of the asserted causes of action. Going one step further, even if deception-based tort theories do not survive, consumer-greenwashing claims may remain independently viable because they target allegedly false or misleading marketplace representations under state consumer-protection law and do not necessarily require plaintiffs to connect those representations to a wildfire, flood, or other physical manifestation of climate change.

Barbara Ballan is Assistant Professor of Law at Florida International University College of Law. Her scholarship examines greenwashing litigation, consumer protection law, securities law, and corporate accountability.

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[1] See D.C. Code § 28-3905(k)(1)(A)–(D); see also Animal Legal Defense Fund v. Hormel Foods Corp., 258 A.3d 174 (D.C. 2021).