A Bad Communication Strategy Around Sustainability Can Leave You Legally Exposed

In the last decade, the world witnessed an explosion of sustainability-focused commitments from the private sector. Following the adoption of the Paris Agreement on Climate Change in 2015, companies were eager to show stakeholders that they cared about our shared planet, and that they had an essential role to play in helping to achieve the global sustainability goals set by governments.

But as the enthusiasm of announcing these goals has given way to the complexities of achieving them, many companies are finding themselves in a difficult position.

From a communications perspective, companies have faced challenges like being named and shamed by watchdog groups, journalists, and employee activists — but the risks are becoming far greater than some bad press cycles. There are increasing examples of litigation aimed at holding companies financially responsible for the negative impacts of climate change on people and the planet. Some scholars have even suggested that there could (or should) even be criminal prosecutions due to losses of life attributed to climate change-related disasters

This raises several questions: Who should be most concerned about climate-related litigation and associated reputational risk? What are the implications for companies who may be off-track in meeting their climate goals? And how can companies communicate about their work on sustainability without putting themselves at risk?

The Current State of Legal Risk

It is not surprising that the companies most vulnerable to climate litigation are those in the fossil fuel industry. The litigation is not only about the nature of their business, but also the various tactics that oil and gas companies allegedly have employed to hide evidence of how fossil fuels are causing damage to the planet and, in turn, human lives.

For example, in City & County of Honolulu v. Sunoco LP the plaintiffs allege that a number of oil and gas companies “engaged in a deceptive promotion campaign and misled the public about the dangers of using their oil and gas products,” a claim that these leaders have repeatedly denied. Reporters have focused their coverage on these theories of liability: Slate notes that starting around 1990, oil and gas companies “turned from gathering information about climate change to deception…funding think tanks, front groups, and dark money foundations pushing climate change denial.”

While lawsuits like this one are reliant on decades of alleged deception — long before climate commitments became trendy among corporations — others are being targeted for a more recent phenomenon: greenwashing.

In 2024, New York state filed a lawsuit against JBS USA Food Company, taking aim at JBS’s corporate sustainability commitment announced in 2021 to be “net zero by 2040” alleging that “JBS had no viable plan to meet its commitment.” In a comment to The New York Times, JBS said it disagreed with the attorney general’s allegations and that it would continue to work with farmers and others “to help feed a growing population while using fewer resources and reducing agriculture’s environmental impact.” The lawsuit’s future is unclear: a New York state court recently dismissed the case but the office of the attorney general has said it will file an amended complaint.

While it seems unlikely that a company could be held liable for not meeting its own voluntary goal, the original complaint against JBS notes that “two-thirds of American adults are willing to pay more for environmentally sustainable products” and “sustainability is an important consideration when deciding what food or beverage to purchase.” Therefore, the crux of this lawsuit hinges on the state’s concept that JBS Group “profited from its fraudulent and illegal business activities across New York State” through “unsubstantiated and misleading environmental marketing claims to New York consumers.”

What is interesting about this case is that it is related to a voluntary commitment that the company made around sustainability. This is something that other corporate leaders are watching closely given that thousands of companies across nearly every sector have made similar pledges.

Regardless of the outcome, this case provides two important takeaways: Sustainability is critically linked to a business’s financial success because stakeholders care about these issues; and claims must be backed by viable plans and concrete results.

The Risks and Benefits of Silence

All of this raises the question: If publicly announcing a company’s sustainability intentions opens the company up to possible litigation, maybe it’s better to say nothing at all?

Undoubtedly, this had led some corporations to engage in the flip side of greenwashing, greenhushing, which can also have negative consequences. One is that companies do not want to be perceived as lagging behind their peers; another is that an important way that they learn about what their peers are doing is through public communications efforts.

For example, several organizations have launched venture funds to finance startups working on sustainability innovations, bringing increased public awareness and additional private financing towards these solutions. If companies were to stop communicating on said activities, this halo effect could largely disappear.

Another consequence of greenhushing is that it hinders the public’s ability to make informed decisions about the companies they choose to patronize, invest in, or work for. Studies have shown that people, especially younger generations, wish to align themselves with companies that share their values and that is more difficult to do if companies stop communicating about their environmental or social impact activities.

The Way Forward

Here are several tactics to help companies navigate communicating their sustainability progress and challenges:

Ensure that internal legal and communications teams are aligned on a sustainability communications strategy.

Input from both of these teams is critical to strike the right balance of when and how much to publicly communicate about your company’s sustainability efforts. Defining roles and responsibilities and jointly developing messaging to respond to any anticipated challenges is important. Additionally, being clear on what terminology to use and what those terms mean from a policy and legal perspective will be helpful in communications’ efforts. 

Engage in policy advocacy.

Showcase how your company is advocating for climate laws and policies and communicate how said policies and laws are essential to your organization in meeting its own goals. Advocating for regulation should not in itself lead to legal risk. In fact, the passage of such regulations could create a legal framework for companies to communicate their actions safely.

Support research into challenging areas for your sustainability work and communicate how you are integrating results into your business decision-making.

If sustainability factors are genuinely a part of business decision-making, then you need to communicate how research-backed decisions to support sustainability have actually changed how you run your business for the better.

One example of success is Ørsted, an organization which has transitioned from a traditional fossil fuel company into one of the largest renewable energy companies worldwide. According to research published in a company white paper, “growing societal focus on climate change would fundamentally challenge and eventually erode the fossil-based business” and therefore Ørsted “had to develop a sustainable business model to stay relevant and competitive.”

Be honest and recalibrate expectations if needed.

Bringing your stakeholders along on the journey, even when not 100% successful, is essential for building trust. WE Communications’ 2023 Brands in Motion survey notes that 80% of respondents say reputations can be improved by taking responsibility for past mistakes and creating policies that address the root cause of issues. This year’s survey, publishing later in 2025, indicates this feedback is resonating with those responsible for brand communications, with one respondent noting, “The strategy is being transparent, not appearing transparent. If you’re just trying to appear transparent, you’re going to fail.”

. . .

Estimates suggest that there are more than 2,500 active climate litigation lawsuits happening around the world, and this trend is expected to continue as the impacts of climate change and environmental degradation are felt by a wide variety of communities — from youth in Vanuatu to cattle ranchers in Texas. In the U.S., the Trump administration’s approach to environmental issues could potentially prompt an increase in lawsuits coming from local or state levels as stakeholders seek to mitigate expected deregulation and deprioritizing of climate change at the federal level.

While operating in this environment can be a significant challenge, ceasing sustainability-focused communication altogether is neither a viable or desirable option: Stakeholders are demanding it, and increasingly, governments are requiring it through policies and laws like the EU’s Corporate Sustainability Reporting Directive. Having an honest, authentic and realistic approach to sustainability communications is, therefore, not a nice-to-have for companies, it is a must-have — both for navigating the complexities of potential climate litigation and for other reputational, financial, and legal risks.