MASKING MENACE AND RESTRICTING RESISTANCE: The Inherent Deception of “Neutrality” and “Net Zero” Claims and Protest Suppression Laws
Greenwashing is en vogue. With climate change now palpable, not even fossil fuel companies are bothering to dismiss environmental concerns but rather masquerading as environmentalists. Distraction, diversion, delay and the supposed adherence to environmental standards and good intention are the new order of the day. Even fossil fuel companies are lauding their “net zero” and “carbon neutrality” claims with several oil companies touting “net zero” barrels of oil. Financial institutions tout their ESG investment and at least on paper and if you don’t read too carefully or follow up on the numbers, it seems like we’ve all finally agreed to not pollute our environment and poison people. If only that were true. Rather, the new masquerade we’re being told is not that climate change doesn’t exist, but that the companies that created it, are now our saviors in mitigating it. When you think of BP, don’t think of the 2010 Deepwater Horizon spill (just four years after the massive oil spill from its pipelines in Prudhoe Bay, Alaska) but think environmental hero, because they are no longer British Petroleum but “Beyond” it. Lest we catch up with the litany of lies, this carious consortium of polluters is working hard to push protest suppression laws, including through the American Legislative and Exchange Council (ALEC) in violation of our increasingly etiolated First Amendment rights.
ALEC is a pay-to-play institution largely funded by large corporations, including from the fossil fuels industry (as evinced by ALEC’s past advertising of its “corporate sponsors” which have included ExxonMobil, Shell and BP) which provides face-time with legislators who in turn pay small annual membership dues for the privilege of understanding corporate wish lists in “model legislation” which the legislators in turn submit to their respective houses (http://www.alecattacks.org/;
https://www.alecexposed.org/wiki/ALEC_Exposed; https://www.exposedbycmd.org/alec/).
It’s lobbying on steroids. ALEC is a designated 501 (c ) (3) entity and appears to be flagrantly violating its tax exempt restrictions, because it is primarily a lobbying entity in violation of the lobbying restrictions of such entities, it seeks to increase the private profit of its corporate sponsors against its public purpose designation and because it violates the absolute prohibition on engaging in partisan political campaign activities (see the full IRS complaint, one of many that have been filed since 2012 here:
ALEC is one of the most dangerous institutions in our increasingly etiolated democracy. It has been instrumental in passing laws that are detrimental our climate, our environment, our public health and which target indigenous rights, women’s rights, people of colour and the LGBTQIA+ communities (https://www.alecattacks.org/alec-attacks-civic-engagement-and-dissent; https://www.hrc.org/press-releases/far-right-organization-has-long-anti-gay-history; https://www.splcenter.org/hatewatch/2021/12/07/leading-free-market-policy-network-enabling-anti-lgbtq-hate; https://truthout.org/articles/the-attack-on-planned-parenthood-a-view-from-inside-alec/; https://www.alecexposed.org/wiki/ALEC_%26_Women_and_Families ).
ALEC drafts “model” legislation and lobbies for all manner of laws that are detrimental to historically marginalized communities, including, privatizing public services and restricting access to public services, lowering corporate taxes and those of the upper tiered incomes (but not for low income people), restricting and even criminalizing abortion, increasing criminal penalties for drug possession offences, loosening environmental standards, discriminating against transgender people, including denying transgender people proper medical care to affirm their gender identity, prohibiting no-fault divorce, loosening environmental standards, and loosening standards to own and carry guns. ALEC and the NRA were instrumental in enacting “Stand Your Ground” or “Shoot First” laws, which were first enacted in Florida under Governor Jeb Bush as written by the NRA (https://www.splcenter.org/sites/default/files/_stand_your_ground_kills_-_how_these_nra-backed_laws_promote_racist_violence_1.pdf; https://publicintegrity.org/education/nra-pushed-stand-your-ground-laws-across-the-nation/ ).
These “Shoot First” laws are unnecessary to protect legitimate self-defense, because people are justifiably allowed to use lethal force when they reasonably believe their life, or someone else’s, is threatened. They are designed to loosen the objective standards of the use of proportionate force and reasonable belief of a threat to one’s own or another’s life by eradicating the requirement that a person retreat if they can do so safely (some states that do not have “Stand Your Ground” laws enact the “Castle Doctrine” which applies the same doctrine but only to any altercation in one’s own home). These laws are highly ambiguous and provide wide discretion to law enforcement to file charges and have not only led to a higher incidence of gun violence but a higher incidence of lethal shooting of people of colour (for good elucidation on these issues, see https://standyourgroundproject.com/research). Some states, such as Texas, allow “Shoot First” for people attempting to retrieve property, including shooting people that are fleeing and present no danger to shooter. They have also failed to decrease incidence of armed robbery and most shootings have been shootings of unarmed, young, black men, including the cruel and tragic deaths of high schooler Trayvon Martin and Markeis McGlockton, who was shot in the back in front of his children. Every month, 30–50 people are fatally shot because of “Shoot First” laws (Chandler McClellan and Erdal Tekin, “Stand Your Ground Laws, Homicides, and Injuries,” Journal of Human Resources 52, no. 3 (2017): 621–653).Their application has also been blatantly racist, with odds 281% greater for acquittals of white people shooting black people rather than white people (John K. Roman, “Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data” Urban Institute, July 2013, https://urbn.is/2VbN1Ml).
ALEC has also sponsored legislation that is intended to chill environmental and animal rights protestors. The federal Animal Enterprise Terrorism Act (AETA) was an ALEC initiative parroting the bill mill’s Animal and Ecological Terrorism Act (https://alec.org/model-policy/the-animal-and-ecological-terrorism-act-aeta/), which targets our First Amendment rights. This act imposes harsher penalties for criminal offences based on the belief of the offender — in this instance, that the particular offense was conducted in the belief that the offender was supporting animal rights. For instance, if you steal animals that are the property of a pharmaceutical, fur or agricultural entreprise in order to sell them or otherwise profit from the property, you are subject to normal criminal theft penalties of the particular jurisdiction. If you free animals that are in horrific conditions because you believe they have rights and should not be subject to such inhumane conditions for profit, you have committed a federal act of terrorism (you can find out more about the AETA in Gravity’s episode with Center for Constitutional Rights attorney Rachel Meeropol http://thegravity.fm/#/episode/40 ).
ALEC has drafted model legislation to harshly penalize environmental activism under the guise of national security. In September 2022, the Climate Cabinet and Stanford University Earth Systems Program (lead author Jonathan Borja) (https://climatecabineteducation.org/reports-2/) released a detailed report on how these laws utilize ambiguity and wide prosecutorial discretion to target peaceful, non-violent civil disobedience through redundant criminal penalties, which is reminiscent of the AETA. While trespassing was already subject to criminal penalties, now trespassing for environmental protest imposes much harsher criminal penalties — which on its face should be unconstitutional as it is a content based free speech restriction (Id., see also https://www.brennancenter.org/our-work/analysis-opinion/anti-protest-laws-threaten-indigenous-and-climate-movements; https://theintercept.com/2020/06/07/pipeline-petrochemical-lobbying-group-anti-protest-law/ ). Some of these laws, including the one in OK, impose vicarious liability on organizations for amorphously defined association and support with up to $1,000,000 in penalties. 20 states, including North and South Dakota, Texas, Louisiana and Mississippi have already enacted these laws- unsurprisingly states that rely heavily on the oil and gas industries. These laws were heavily lobbied for by the fossil fuel companies, including Energy Transfer Partners which owns the Dakota Access pipeline and TransCanada, which owns the Keystone pipeline. In 2018, the
the Louisiana Mid-Continent Oil and Gas Association drafted an amendment to the state’s Critical Infrastructure law with the amendment’s lead sponsor, Major Thibault, an ALEC-affiliated legislator. The law as enacted is facially unconstitutional and currently the subject of a suit brought by Anne White Hat and others by CCR (https://ccrjustice.org/home/what-we-do/our-cases/white-hat-v-landry; https://ccrjustice.org/sites/default/files/attach/2019/05/White%20Hat%20v%20Landry%20Complaint.pdf ). The term “critical infrastructure” was expanded in August 2018 to include the entire network of 125,000 miles of pipeline through the state, including pipelines that are unmarked and run under private property. This new definition led to the arrest of Anne White Hat, a Sicangu Lakota Water Protector, who was peacefully protesting the Bayou Bridge Pipeline which would connect to the Dakota Access Pipeline on private land with permission from the property owner (a court later threw out her arrest). It also led to the arrest of a number of other peaceful water protectors, including kayakers in a navigable river- and a journalist who was documenting the protests. White Hat appeared last September before the House Subcommittee on Civil Rights and Civil Liberties to document the use of these anti-protest laws which she declared to be “lawfare” (https://ictnews.org/the-press-pool/at-congressional-hearing-indigenous-water-protector-denounces-coordinated-attack-on-environmental-activists-by-industry-pols-police ; for more on “lawfare” against environmental and animal rights activists listen to Gravity’s episodes http://thegravity.fm/#/episode/39 with Cristina Stella an attorney from the Animal Legal Defense Fund on Ag-Gag laws and http://thegravity.fm/#/episode/43 with Lauren Regan, Executive Director and lead attorney at Civil Liberties Defense Center on SLAPPS and the Chevron suit against Steven Donziger).
ALEC is also attacking what the right deems — and apparently not ironically- “woke capitalism”. Its model legislation, the Energy Discrimination Elimination Act (since taken off ALEC’s website but see https://s3.documentcloud.org/documents/22046784/alecs-energy-discrimination-elimination-act-draft-model-bill.pdf ), seeks to combat ESG investment by requiring the state government to keep a list of companies that “boycott” fossil fuels companies and not invest in these in addition to requiring state contractors to verify that they do not “boycott” fossil fuels. Texas enacted the first version of the law in 2021 (TXSB13) (https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00013I.pdf ) and now six states, including Oklahoma and West Virginia have enacted similar laws (https://blog.ucsusa.org/elliott-negin/how-the-american-legislative-exchange-council-turns-disinformation-into-law/; https://truthout.org/articles/alec-is-pushing-a-bill-that-punishes-banks-for-divesting-from-fossil-fuels/; https://www.theguardian.com/us-news/2022/nov/11/alec-anti-political-boycott-state-legislation; https://www.nytimes.com/2022/08/05/climate/republican-treasurers-climate-change.html) . This ridiculous and injurious legislation is just the start — ALEC’s new draft model legislation, the Eliminate Political Boycotts Act, would bar state contracts with companies that have 10 or more employees that invest and do business with any “social, political or ideological interests” or in other words socially responsible businesses (https://www.alecexposed.org/wiki/Eliminate_Political_Boycotts_Act). These laws would ensure businesses cannot take into account child labour, slavery, war crimes, weapons, CAFOs and other destruction of our environment and abuse of animals, for instance. The state could utilize a company’s branding, for instance that it’s “eco-conscious” to divest from it and to cease its contracts with it. It’s ironic that these professed laissez faire economies are now directing businesses and financial institutions in operational matters, including, critically choice of investment. So much for the free market. Yet these avowed supposed limited government freedom fighters have always been highly hypocritical, advancing laws that impose religious views onto others and curb people’s free speech and privacy, including historically targeting gay, trans and women’s rights and people’s freedom to choose what to do with their own bodies and with whom to have personal relations with.
It’s unfortunate to note that last month the Supreme Court gave the green light to what is essentially an evisceration of First Amendment rights by declining to review Arkansas’s anti-BDS law (https://www.aclu.org/press-releases/supreme-court-declines-to-review-challenge-to-law-restricting-israel-boycotts). Unsurprisingly, anti-BDS legislation was lobbied for by ALEC which drafted model legislation aimed at preventing free speech on the continued crimes against humanity perpetuated against the Palestinian people (see https://www.hrw.org/news/2019/04/23/us-states-use-anti-boycott-laws-punish-responsible-businesses; https://truah.org/campaign/opposing-anti-bds-legislation/; https://palestinelegal.org/news/2022/11/14/new-resource-on-the-right-to-boycott). The laws are professed to be necessary to combat antisemitism, but it’s a vast logical leap to equate the criticisms of the policies of a government with any discriminatory intention related to an entire people. It’s not only logically absurd, but dangerous and has led to numerous people, including academics and teachers, losing their employment because they have refused to sign verifications that they do not or more problematically, will not boycott Israel. This is deeply concerning as there are continued attacks in the Occupied Territories as well as increasing evisceration of Israeli democratic institutions by the Lazarus of politics, Netanyahu, who is remarkably, yet again in power (but Israelis are not giving up that easily and massive protests continue in Israel https://www.haaretz.com/israel-news/2023-02-12/ty-article/.highlight/in-battle-over-israeli-democracy-netanyahu-is-already-losing-on-one-crucial-front/00000186-46dd-dfa7-afee-ffff8a3d0000 and https://www.haaretz.com/israel-news/2023-01-06/ty-article/.highlight/the-end-of-israeli-democracy-its-real-but-can-still-be-prevented/00000185-8265-d4ba-add5-aaf74d660000 for more on Israel-Palestine, listen to Gravity’s episode “In Exile at Home” http://thegravity.fm/#/episode/30) with Amit Gilutz, porte-parole of B’Tselem, the Israeli Information Center for Human Rights and the Occupied Territories and go to https://www.btselem.org).
Rather than affirming that the boycott is visceral to our democracy, the Supreme Court took what is arguably a cowardly approach to not make any decision on the matter, letting the law stand in the Eighth Circuit but not creating a precedent for other circuits as our schoolchildren are being taught about the Montgomery bus boycott, civil rights and the political solidarity (to hear more on this issue and the attack on free speech respecting Palestine, listen to Gravity’s upcoming episode with Maria LaHood, attorney and Litigation Director from CCR).
While this ludicrous and dangerous crusade against socially responsible businesses is being launched against professed socially responsible entities and funds, another problem is that we’re being oversold on ESG (environmental, social and governance) investment and compliance (see https://hbr.org/2021/05/overselling-sustainability-reporting; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3289544 ). There is no agreed standard on what “ESG” means exactly nor on how to report it. There are problems with both inconsistency of standards and incompleteness of data (with companies not adequately taking into account their supply chains) — because measuring ESG impact is something that is difficult to quantify and perhaps impossible in quarterly and annual metrics. Nor does the ESG investment industry question the very premise of growth — which got us into this pernicious problem in the first place. Hans Taparia, Clinical Associate Professor of Business and Society at NYU Stern, has elucidated the issues with ESG investment and the current “greed and good” culture (https://www.nytimes.com/2022/09/29/opinion/esg-investing-responsibility.html?smid=li-share) which does not question the premise that in the end, high profits and returns are necessary and achievable. In this new zeitgeist everyone seems to be an ESG company and fund and not everyone has good intentions. On the one hand, you have Nestlé, for instance, advertising it’s a socially responsible company, while on the other, it does its best to continue to profit from children that are kidnapped from their families and enslaved to perform harsh labour on cacao farms in Côte D’Ivoire which have financing and other agreements with the company (for more on this listen to Gravity’s episodes “Chained to Chocolate” http://thegravity.fm/#/episode/19 and “Cobbled by Cobalt” http://thegravity.fm/#/episode/45 both with attorney Terry Collingsworth from International Rights Advocates and also how a number of Big Tech companies are profiteering from child miners in the DRC).
Even the fossil fuel companies are supposedly environmentally responsible. Global Witness has recently filed a complaint against Shell with the SEC for violating securities laws, including Section 10(b) of the Exchange Act, for misleading statements in its “Renewables and Energy Solutions” segment including that the majority of Shell’s “renewable” spending is on trading and marketing “natural gas” — which is not a renewable solution and contributes to climate change (see https://www.rechargenews.com/energy-transition/shell-hit-by-groundbreaking-greenwash-complaint-to-us-watchdog-over-renewables/2-1-1397197 ).
There is a prevalence of perfidy respecting “net zero” claims, what UN SG António Guterres has referred to as the “rank deception” of the “surplus of confusion and deficit of credibility” (see https://news.un.org/en/story/2022/11/1130317). To combat this “toxic cover-up [that] could push our world over the climate cliff” the SG established the High-Level Expert Group on the Net Zero Emissions Commitments of Non-State Entities (“Expert Group”), which was tasked to address the credibility deficit of net zero pledges and released its report on 8 November 2022 at COP27 (the “Report”). The Report made several recommendations, including that “net zero” pledges for private entities must include (i) a concrete plan to reduce emission and cannot be merely based on carbon offsetting, particularly when increasing and planning to increase emissions (ii) addressing emissions across the entire value chain (iii) addressing all greenhouse gas emissions and (iv) aligning advocacy with pledges, so that companies that make “net zero” pledges cannot concomitantly lobby their governments, whether directly or through trade associations to reduce their climate commitments (https://www.un.org/sites/un2.un.org/files/high-level_expert_group_n7b.pdf?_gl=1*143ke8f*_ga*MTYwMzMyMTg0Ni4xNjc0MDY5NjE5*_ga_TK9BQL5X7Z*MTY3NjI4NjQxMy4yLjAuMTY3NjI4NjQxMy4wLjAuMA). Importantly, the Report also made the recommendation that little concrete steps will be taken with mere voluntary pledges and require a regulated environment (Id).
France has tackled écoblanchiment including under the Climate Resilience Law (see Article L. 121–2 of the French Consumer Code; see https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000043956924 and also amendments to Article L. 229–55 of the French Environmental Code relating to “carbon neutral” and the like advertising) which came into effect January 1, 2023. Importantly, French law also now prohibits fossil fuel companies advertising, albeit gas can be advertised. French law now codifies how a company may advertise “carbon neutral”, “net zero”, “fully offset” and the like claims with substantial penalties to be imposed for offences. The French law requires a public, concrete and independently verified report on the life cycle of the product, including both direct and indirect emissions in accordance with the NF EN ISO 14067 standard (or equivalent) and must be updated every year. French law also requires addressing permeance and additionality as well as informing the consumer of planned obsolescence of products or product components.
The US, which is currently seeking public comment on revisions of the Green Guides through the extended period of April 24, can amend the Green Guides (U.S. 16 C.F.R. § 260 et seq.) to be enforceable and revise their substantive content to go further than the French law. Currently, the Green Guides are just that — guides to aid the interpretation of the Section 5 (a) of the Federal Trade Commission Act (FTC Act) (15 USC §45) which prohibits “unfair or deceptive acts or practices in or affecting commerce” respecting environmental claims. Some states have incorporated the Green Guides into their laws, including providing a safe harbour for compliance and some states have gone further — including New York and California. For instance, in 2021, California enacted SB 343 “Truth in Labeling for Recyclable Materials” which aimed to mitigate the mischief of packaging and products being labelled as “recyclable” when in reality they were not able to be recycled by narrowing the parameters of the designation to exclude added PFAS or other chemical or colour additives that prevent recyclability and by adhering promulgated standards set by California’s Department of Resources Recycling and Recovery and mandating additional record maintenance (see https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB343) . A similar update to “recyclable” should be implemented by the Green Guides.
The amendments, by making a violation of the Green Guides violations per se, should also take this opportunity of revision to be the world leader in holding companies to account for false and misleading environmental advertising. For neither the Report’s recommendations nor the French law are sufficient as statements of “carbon neutrality” and the like by private entities are inherently deceptive and should be prohibited outright due to well analyzed plethora of problems for verifying such amorphous pledges, in particular pledges based on carbon offsetting rather than reduction — with the majority of pledges falling into this latter dubious category.
The Green Guides already codify an expression of a “general environmental benefit” to be too vague, unquantifiable and inherently misleading (see § 260.4). The reason for this rule is that nebulous and amorphous statements are difficult to hold to account. By this same logic, statements of “net-zero”, “climate neutrality”, “carbon neutral” or “carbon negative” should likewise be per se actionable and prohibited. Its inherently deceptive nature can be seen from its passionate adoption by the corporate sector, including the fossil fuels industry with several companies claiming they not only aim to achieve “net zero” in future decades but have already achieved shipments of crude oil that are ”carbon neutral” (see https://www.spglobal.com/commodityinsights/en/market-insights/latest-news/oil/012921-us-occidental-supplies-first-cargo-of-carbon-neutral-crude-to-indias-reliance; also see https://www.reuters.com/business/sustainable-business/clean-crude-oil-firms-use-offsets-claim-green-barrels-2021-04-16/ ). This absurdity, that barrels of oil can be carbon-neutral, reveals the true game at play: deflection and delay of reducing carbon emissions by “offset” of such emissions through various schemes that have been widely found to be reductive, ineffective and inherently deceptive.
Carbon, climate and other claims of “neutrality” imply and would be understood by the reasonable consumer to imply that the company is making strides towards reducing its carbon footprint whereas many companies that claim they are heading towards “carbon neutrality” or are already there, are actually increasing their emissions and simply claiming they have equivalent or additional offsets. The other issue is that most “neutrality” statements are forward leaning which allows a company to mislead a reasonable consumer that the company is taking action to achieve the goal in future decades which is difficult to quantify and thus verify.
Carbon offset schemes have been excoriated in academia as largely ineffective and even detrimental to climate action as they divert, deflect and delay substantive and necessary change to achieve climate resilience (see https://theconversation.com/climate-scientists-concept-of-net-zero-is-a-dangerous-trap-157368; https://ccsi.columbia.edu/news/corporate-net-zero-pledges-bad-and-ugly; https://conbio.onlinelibrary.wiley.com/doi/full/10.1111/cobi.13970; https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe; de Freitas Netto et al. Environ Sci Eur (2020) 32:19 https://doi.org/10.1186/s12302-020-0300-3 ; https://www.nature.com/articles/s41558-021-01245-w ).There is a plethora of issues in current offset accounting that make the statements inherently deceptive, because they rely on reductive and unreliable data and thus have limited if nil efficacy, including: (i) failure to include emissions throughout the entire value chain (ii) failure to define an accurate baseline (iii) failure to address additionality and permanence of claimed offset projects (iv) failure to account for planned obsolescence of a product even when purporting to show cradle to grave emissions (tech hardware companies such as Apple being notorious in this regard) (v) failure to have proper third party auditing (vi) failure to address the proper impact on the global environment (see prior articles). With respect to the latter, it’s important to note that claims of “carbon neutral” and “net zero” would be understood by a reasonable consumer to imply a net reduction in greenhouse gases in toto, albeit carbon is the protagonist of any climate drama. However, carbon offsets and accounting do not address (even if they included scope 3 emissions) the full ecological footprint of a company nor even its climate footprint, because they fail to address other greenhouse gases including: methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulfur hexafluoride (SF6) (amongst other nefarious company).
“Net zero” and “carbon neutral” claims also mislead consumers in that they imply that they have an inherent net benefit to the environment, which in most cases is demonstrably false. For instance, due to the whopping emissions from fast growing data centres (or where our digital junk from the cloud rests, utilizing energy and creating emissions), the industry has also hopped on this bandwagon, but many centres have employed “carbon neutral” energy schemes that have employed substantial freshwater usage, even in drought stricken areas, thus directly harm the environment and are decidedly not being neutral in environmental impact (see https://blog.scaleway.com/breaking-the-code-of-silence-data-centers-and-water-consumption/; https://www.channelnewsasia.com/commentary/water-usage-data-centres-climate-change-sustainability-cost-2293301; https://www.aurecongroup.com/insights/data-centres-the-worlds-greatest-energy-guzzlers; ). Further, the offsets caused by utilizing tree growth, which in the abstract sounds like a no-brainer, also has deleterious consequences that are unmentioned and thus add to the deceptive impact. For instance, companies have claimed millions in carbon offsets for areas that were not at threat of deforestation and have likewise claimed millions in carbon offsets from areas that did not protect natural forest and attendant biodiversity but utilized fast growing harmful monocultures and also displaced local, often indigenous communities in stygian landgrabs (including threats and use of violence).
It is also important to note that the plethora of these issues will be difficult to account for and even more difficult for a reasonable, ordinary consumer to verify and may not ever be able to be properly verified.
Good meaning companies should have an incentive to continue policies that help reduce carbon and other greenhouse gas emissions as well as contribute to environmental protection and sustainability — and thus should be able to advertise their real efforts and achievements in this field. Prohibiting “carbon neutral” and the like however does not prohibit a company from making accurate and truthful statements about its carbon reduction and offset schemes. It would rather require companies to make specific statements which it could more readily verify, provide a consumer with more information and consequently- by warranting specificity- achieve substantive impact.
The FTC has also specifically welcomed comments respecting statements relating to amending its current guidance on “renewable” energy as well as welcomed open-ended comments. Guidance as to what constitutes “renewable” should be amended and “clean energy” should be either prohibited as inherently deceptive or codified. An analysis of the issues will address “renewable” and “clean” collectively, because a reasonable consumer would understand that the two terms are interchangeable. Fossil fuels are dirty, renewable energy is clean. This is however not the case and the terms have been misleadingly employed to describe generation of energy that both relies on rare earth metals and minerals that are finite in nature and not renewable in addition to causing widespread environmental and social injury in their extraction. It is inherently deceptive to claim that energy is “renewable” if it relies on multiple elements of the periodic table. Likewise, it is even more deceptive if the way the required elements are extracted causes environmental damage. This is because “renewable energy” implies that the source of the energy is replenished on a human time scale — and that is not the case with most renewable energy sources. For instance, lithium, coltan and cobalt are required for rechargeable batteries that are utilized for our smart appliances and electric cars which are advertised to run on “renewable energy” and are “clean” — but they are decidedly not. Likewise, while the wind is renewable, wind turbines require copper for grid transmission and require the rare earths neodymium, praseodymium, dysprosium and terbium (see https://www.windsystemsmag.com/24015-2/#:~:text=Of%20the%2017%20rare%20earths,is%20required%20for%20grid%20transmission).
As we divest from fossil fuels, it is of utmost importance to transition to clean energy sources that do not repeat our past mistakes and continue both environmental carnage and social injustice and unrest. As companies gain steadily more market share by advertising to consumers that they are “renewable” and “clean” we must ensure that they are not being deceptive to consumers and hold them to account. Rechargeable batteries, for instance, are causing environmental damage in numerous places, including destroying local water sources, poisoning the air and removing habit from local flora and fauna and reducing biodiversity, particularly in the DRC (https://www.sciencedaily.com/releases/2021/12/211217113232.htm#:~:text=Waste%20generated%20from%20mining%20cobalt,respiratory%20and%20reproductive%20health%20issues; https://theconversation.com/what-coltan-mining-in-the-drc-costs-people-and-the-environment-183159). Lithium extraction also has numerous environmental impacts, which ironically, increase global warming; this is can be seen in the salt flats of the fragile ecosystem of Atacama (see https://eandt.theiet.org/content/articles/2019/08/lithium-firms-are-depleting-vital-water-supplies-in-chile-according-to-et-analysis; https://www.sciencedirect.com/science/article/abs/pii/S0303243419300996?via=ihub; https://hir.harvard.edu/lithium-triangle/; https://www.wired.co.uk/article/lithium-batteries-environment-impact).and the poisoning of Tibet (https://freetibet.org/wp-content/uploads/2022/02/BYD-in-Tibet-the-costs-of-lithium-extraction.pdf ). The extraction of rare earths for wind turbines, for instance, has resulted in water, soil and air pollution and the uprooting of whole mountains in Burma (Myanmar) (https://www.globalwitness.org/en/campaigns/natural-resource-governance/myanmars-poisoned-mountains/) . Moreover, the social impact is injurious on the local populations, to say the least, including land grabbing through intimidation and violence, use of forced and child labour, failure to provide proper safety equipment and failure to ensure the safety of mining operations, in addition to polluting the people’s local air, soil and water and attendant food supply, thus directly spoiling public health (see https://www.hrw.org/news/2022/07/14/child-labor-and-human-rights-violations-mining-industry-democratic-republic-congo; https://issafrica.org/iss-today/child-miners-the-dark-side-of-the-drcs-coltan-wealth ; https://www.responsible-investor.com/net-zero-minerals-linked-to-human-rights-abuses-by-leading-global-miners/ ; https://www.amnesty.org/en/latest/press-release/2021/02/amnesty-urges-bold-action-to-clean-up-the-battery-industry/ ).
“Renewable energy” and “clean energy” advertising needs to be independently verified and link to third party reports of the environmental and social impact of the value chain of a product. This needs to include at a minimum a publicly available third party report detailing (i) whether rare earths were utilized (ii) the environmental impact assessment report of extraction processes and how companies are ensuring against leakage into water sources and surrounding soil (iii) labour practices and assurance against forced labour and child labour as well as use of safety equipment, processes and proper payment for labour. If a company cannot provide these, it should be prohibited to call its operations and products “clean” as its environmental and social impact, render such claims inherently deceptive.
In line with recommendations from the Report and the necessity for governments to make great leaps in climate resilience, including in both energy transition and climate adaptation and mitigation, “eco-friendly” claims by companies are inherently deceptive when lobbying efforts directly attempt to achieve the opposite of what a company pledges. This is because the advertising purports to inform a consumer that the company is making strides to achieve X, but cannot be, if it is in fact working to achieve Y -and the former is the only easily accessible information available to the consumer. If a reasonable consumer were provided with a statement that the company’s ethos is for instance, to achieve a “clean energy” future across its supply chain but it lobbies the government to reduce or prevent regulation to that effect, the consumer will be deceived as to the true nature of the company’s intention. To put it another way, a reasonable consumer, provided with the lobbying disclosure, will likely interpret the company’s advertising differently and negatively. While the First Amendment restricts compelled speech, mandatory health disclosures on packaging, such as California’s Prop 65 warnings, do not violate First Amendment rights when the compelled speech is based on scientific fact and provides the consumer with necessary information. The lobbying disclosure should capture both direct lobbying and lobbying through trade associations.
In order to retain our democracy, we need to be vigilant in challenging these facially unconstitutional laws that aim to suppress our rights to speech and peaceful assembly and aim to criminalize dissent- including the right to boycott. We also need to be vigilant in curbing corporate lobbying and regulatory capture which turn our democracy into a plutocracy. Lawyers should be increasingly utilizing deceptive trade practices and misleading advertising laws to combat deceptive marketing, in particular misleading environmental marketing that aims to deflect, divert and delay substantive change toward a cleaner, more socially equitable and responsible and climate resilient future both locally and globally.
