Senior legal analyst Daniel Hanley writes about how federal agencies have an opportunity to take immediate action against climate change using anti-monopoly policy.

In the face of escalating extreme weather events, monopolistic corporations that profit from activities that accelerate climate change have consistently blocked U.S. politicians’ attempts to avert disaster. In some cases, they fund think tanks that publish anti-climate propaganda. In other cases, they spend millions on lobbying politicians. State legislatures provide no sanctuary either, with big oil and gas companies providing funds to political campaigns and lobbying. In other cases, companies like Monsanto and Koch Industries directly fund lawsuits to protect their private interests. No opportunity to thwart progress seems to be wasted.

Even corporations with purported climate goals are, overall, apathetic about encouraging lawmakers to enact comprehensive solutions. They often resist changing their operations, and over 90% of corporate sustainability pledges fail.

To mitigate the most adverse effects of global warming, it is evident that we must rein in concentrated corporate power. And we don’t have much time to do it — some scientists estimate we have less than 10 years before the most disastrous effects occur, and we’re already experiencing many of them.

For progressives, robust action from Congress appears to be almost hopelessly stymied. Fortunately for us, President Joe Biden has created an opportunity for federal agencies to take immediate action using anti-monopoly policy.

It is understandable, given the impending human-caused climate catastrophe, that advocates often prioritize decarbonization above all else to avoid the devastating effects of climate change. However, market structure matters. All markets, corporations and business strategies are products of the laws created by the state. Thus, when firms take a specific action, it is often a result of the legal paradigm within which they are operating.

“To mitigate the most adverse effects of global warming, we must rein in concentrated corporate power.”

Anti-monopoly policy rests on the principle that the law should structure markets to widely disperse economic power, promoting fairness and democracy and ensuring that corporations are operating in the public interest. If the past 50 years of inaction are any indication, without robust restraints on concentrated corporate power, firms will continue to elevate their own profits and the interests of financiers above the health, safety and welfare of the communities they serve. As long as corporations control markets, rather than the public and their elected officials, we’re unlikely to see serious long-term action to avert climate change.

In the past year, President Biden signed two executive orders authorizing administrative agencies to enact anti-monopoly policies — ones that could make the marketplace fairer, greener and more democratic. These policies could be America’s secret weapon against climate change. And of the more than 400 agencies that make up America’s administrative apparatus, the Federal Trade Commission (FTC), United States Department of Agriculture (USDA) and the Federal Energy Regulatory Commission (FERC), in particular, have great potential to enact a green agenda.

Reining In Corporate Greenwashing

One need only look to recent congressional hearings to see that major oil companies keep peddling the idea, like big tobacco companies in the 1990s, that they do not know the harmful effects their business operations have on the health of the planet. Meanwhile, a plethora of evidence shows that, at least since the 1970s, oil companies have known that emitting excessive amounts of carbon dioxide can have “globally catastrophic effects.”

Fossil fuel corporations routinely use advertising to misrepresent the actual scope and scale of their ostensibly green policies and the environmental benefits of their products and services. In March, the environmental groups Earthworks, Global Witness and Greenpeace USA petitioned the FTC accusing Chevron of using television and digital advertisements to “misrepresent the benefits of [natural gas].” The company uses deceptive jargon, the petition said, to mislead consumers about the extent of its emissions-reducing efforts, while initiating no substantive changes to its operations and increasing the extraction and production of oil and gas.

Congress has explicitly empowered the FTC to prohibit “unfair or deceptive acts or practices.”  Rather than have a marketplace controlled by dominant corporations and caveat emptor (“buyer beware”), Congress’s reasoning goes, the FTC would be able to create a fairer marketplace and establish a minimum level of conduct among companies selling or advertising to potential buyers.

FTC guidelines require corporations to substantiate objective claims in their advertising by clearly and prominently displaying accurate evidence. And while the guidelines do not have the force of law, violations can act as the basis of lawsuits the agency can bring against corporations that do not sufficiently communicate to the public the facts supporting their environmental claims.

For example, Kellogg settled with the FTC because the company claimed that children who ate its Frosted Mini-Wheats cereal experienced an almost 20% improvement in attentiveness. In an investigation, the FTC found that the study Kellogg used showed few of the participants had seen such an improvement.

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