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Cambridge could be the first city in the country to require the labels but would likely face lawsuits from oil interests.
The city of Cambridge is aiming to become the first in Massachusetts — and perhaps the country — to require gas pumps to display warning labels describing the contribution fossil fuels make to climate change. The goal is to make consumers confront the impact of their choices, one fill-up at a time.
“It’s just a reminder to consumers that small actions have larger consequences,” said Cambridge Vice Mayor Jan Devereux, who introduced the proposal to the City Council.
Any such rule, however, is almost sure to attract lawsuits from oil interests citing First Amendment concerns about being forced to express city policy on private property, said Jamie Brooks, campaign manager for Think Beyond the Pump, the U.S.-based affiliate of Our Horizon, a Canadian nonprofit pushing for these warnings.
The proposed labels would be akin to the warnings that appear on cigarette packages or wine bottles: They would state facts but let the consumer decide what action to take. Efforts to require these warnings first emerged five years ago in California. In 2014, the city of Berkeley approved plans for the labels; the governments of San Francisco and Santa Monica, as well as Seattle, Washington, also considered the idea.
Then another Berkeley ordinance got in the way. In 2015, Berkeley passed a measure requiring cellphones to be sold with warnings about potential radiation exposure. The cellphone industry challenged the rule in court on the basis that it required retailers to communicate misleading and controversial information in violation of the First Amendment. Cities with gas pump labels in the works pulled back, waiting to see how the courts ruled on the argument.
The case eventually made it to the Supreme Court, which sent it back to the 9th Circuit Court of Appeals. In July, the appeals court again declined to issue an injunction stopping the city’s labeling mandate.
With the plans on the West Coast on hold, Brooks began reaching out to likely cities in other parts of the country. The Massachusetts cities of Cambridge and Newton both showed interest.
In Newton, City Councilor Emily Norton raised the idea, but the legal department told her the city would certainly be sued and would likely lose. The proposal was dropped.
“Newton alone probably doesn’t have the deep pockets it would take if it is going to be years and years of litigation,” Norton said.
In Cambridge, Devereux first brought the concept to the City Council in 2016, but the membership at that time was not interested in pursuing it. She re-introduced the idea this year and found a more receptive audience. The council voted earlier this month to direct the ordinance committee to develop more detailed rules for implementing the labels; the council will then vote again on the finalized proposal.
Cambridge’s legal counsel advised that the labels should pass constitutional muster as long as they stick to factual, non-controversial statements.
Still, litigation seems likely.
“I am 100% sure the industry will sue Cambridge,” Brooks said.
The question of whether government-mandated warning labels run afoul of the First Amendment usually hinges on whether the proposed labels contain factual information and whether they advance the public interest. In 2018, for example, California was prohibited from requiring agricultural giant Monsanto to label their pesticides as containing a carcinogen because the court found there was not enough scientific consensus on the facts. In 2012, courts struck down proposed cigarette warning labels bearing graphic images intended to show the damage smoking can do; the government had failed to provide evidence that the warnings would lead to lower smoking rates, the courts ruled.
Even if the legal hurdles are overcome, the question remains: Can such a modest measure make a meaningful impact?
“There is a tendency to look at this type of approach as something superficial, or that it’s somehow kind of radical,” Brooks acknowledged.
Still, he said, the labels have the potential to play an important role in the fight against climate change.
Most importantly, he said, they could increase transparency. Right now, oil companies are not required to disclose the impacts their products can have on public health, infrastructure, and environmental quality. That needs to change, Brooks said.
“Those effects are invisible to consumers and they need to be disclosed,” he said.
Furthermore, they could spread valuable information. Significant minorities of consumers still don’t understand the connection between burning fossil fuels and climate change, or confuse the issue of climate change with the hole in the ozone layer, Brooks noted. An educational label on gas pumps could start to correct public misperceptions.
The warnings could help create a groundswell of public awareness and demand for change. And this sort of widespread engagement, Brooks said, is necessary to spark any real movement on the issue, particularly in our capitalist society.
“You need to center climate change and let the markets capitulate,” he said.
Devereux argues the effect might be subtle, but cumulative. Months or years of reading the labels could make a commuter think twice about driving instead of taking the subway or nudge a consumer toward an electric vehicle the next time they buy a car.
“The more you are presented with uncomfortable facts,” she said, “the more it begins to register in your mind that you, as an individual, actually have a responsibility to do what you can.”
And if a community like Cambridge successfully adopts the mandate, other cities and towns are likely to follow the lead, she said.
“It’s a small thing,” Devereux said. “But, cumulatively, we need to do a lot of small things.”