Still Unclear Whether Twiqbal is Game Changer for Pleading Environmental Claims

Posted on May 15, 2013 by Richard Horder

What lessons can environmental litigators take from the Supreme Court’s recent jurisprudence on pleadings?  As most of the legal community is aware, the Court retired the “no set of facts” standard for a motion to dismiss under Rule 12(b)(6) and installed a “new” plausibility pleading standard in its 2007 decision, Bell Atlantic Corp. v. Twombly and 2009 decision, Ashcroft v. Iqbal.  Together, these cases are often affectionately called “Twiqbal” and have caused both the courts and plaintiffs a great deal of angst over the years since their pronouncement.  Yet, in the midst of the confusion, the greater question remains whether these decisions, as a practical matter, actually represent a game changer for pleading.

According to the latest Report to the Judicial Conference Advisory Committee on Civil Rules, there has been no increase in the rate of courts granting motions to dismiss following Twiqbal.  However, a recent study from the University of California Hastings College of Law disputes this conclusion and finds that dismissal rates of all claims have, in fact, increased since Twiqbal.  More importantly, the Hastings study finds a greater likelihood that a claim will be dismissed for factual insufficiency following the Supreme Court’s decisions.

Such studies raise the question of what impact, if any, Twiqbal has today on pleading environmental claims.  Thus far, although several courts have addressed environmental claims under the Twiqbal plausibility standard, the results have not been consistent.  Like the antitrust and civil rights claims addressed in Twombly and Iqbal, courts have often elevated the pleading standard for environmental claims due to their complexity, which often requires expensive discovery to flesh out the facts after filing the complaint.  An early dismissal in such circumstances stands to avoid substantial litigation costs.  Thus, if a court believes Twiqbal indeed represents a heightened pleading requirement, it is likely to require more specific facts to support the relevant environmental claims.

Accordingly, the environmental plaintiff should hedge its bets and take care in crafting its complaint if it is filing in federal court.  Specifically, the plaintiff may want to take more time to investigate prior to filing to better describe the defendant, it’s link to the site, the types of hazardous substances released, and how specifically the defendant’s actions caused the release and the damages incurred.  Depending on the circumstances, the plaintiff may want to avoid federal court altogether and rely on state claims as most states have yet to adopt the Twiqbal plausibility pleading standard.  On the other side of the field, the environmental defendant should more carefully consider the value of filing a motion to dismiss for factual insufficiency and attack any gaps between the facts alleged and the formulaic recitations of the elements of the claim.

The Federal Trade Commission’s Green Guides – What is “Green” and what is merely gray

Posted on November 9, 2012 by Elliot Laws

We’ve all seen the advertisements. Products that are supposedly “recycled,” “environmentally friendly,” and “green,” with labels and commercials resplendent in shades of light green and yellow, seeking to evoke nature, sunlight, and a family-friendly, non-toxic product. But how “green” must a product be in order to rightfully proclaim itself to be so? The revised “Green Guides,” issued by the Federal Trade Commission (“FTC”) on October 1, 2012, propose to answer that very question.

Originally issued in 1992, and revised in 1996 and 1998, the FTC’s “Green Guides” offer guidance to marketers on how to properly use words of environmental attribution in describing products. The Guides are examples of environmental claims that the FTC might find deceptive under the FTC Act, § 5; they are neither rules nor regulations. The current version of the Guides was released in proposed form in 2010 and received several hundred unique comments. Beyond analyzing the comments, the FTC accumulated additional information based on three public workshops and a study designed to understand how consumers perceived environmental claims. The final version of the Guides, in addition to updating its original content, provided additional information on newer types of environmental claims.

The new sections in the Guides cover carbon offsets, certifications and seals of approval, “free-of” claims, non-toxic claims, and two claims relating to the manner and materials used in production: renewable energy claims and renewable materials claims. As an illustration of the new sections, the FTC addresses deceptive practices used to claim an emissions reduction through carbon offsets. Marketers should “clearly and prominently disclose if the carbon offset” does not provide an emissions reduction for over two years. Similarly, claiming that a carbon offset corresponds to an emissions reduction that is otherwise required by law is a deceptive practice.

Other sections are modified. For example, the Guides clarify that an unqualified degradable claim must be able to show that the entire product or package will break down completely within one year after disposal. Objects that are expected to go to a landfill, incinerator, or be recycled do not degrade within a year, and thus should not be linked to such a claim. In each of its 13 total sections, the FTC provides concrete examples of practices it terms deceptive.

The Guides recommend that some environmental claims not be used at all, such as “environmentally friendly” or “eco-friendly.” The consumer study performed by the FTC found that these terms indicate wide-ranging environmental benefits that few, if any, products may obtain. The Guides do not address “sustainable,” “natural,” and “organic” to avoid conflicting or duplicative advice from other agencies that have the purview of these terms.

In order to provide assistance to the general public in understanding the Guides, the FTC produced several educational and business resources, from summaries to a highlight video to relevant legal documents. These resources, in conjunction with the Green Guides themselves, provide protection to consumers, allowing us more transparency into just how “green” our products really are.