Posts by jlieditors
Volume 43, Issue 2 (2025)
How Texas’s Immigration Power-Grab Harms Migrants, Legal Immigrants, and Communities
By: Cassandra Whall*
Recently, the news is dominated by discussions of a broken immigration system that has been straining the South, and the South’s belief that taking immigration into its own hands is the only appropriate and effective solution.[1] For months, Florida and Texas have been sending buses and planes filled with migrants to sanctuary cities, citing their inability to provide for the unprecedented rate of land border crossings.[2] Those concerned for the health and safety of migrants were shocked when Texas officials began constructing barriers of razor wire across the Rio Grande in July 2023,[3] which have led to the unnecessary deaths of a woman and two children.[4] Tensions heightened further when the federal government instructed border patrol agents to cut these barriers, which the Supreme Court permitted in early 2024.[5] This has culminated in a large-scale dispute where Texas, supported by over 25 other states, challenged President Biden’s execution of his executive duties.[6] Greg Abbott, Governor of Texas, specifically asserted Texas’s authority to protect itself from what Abbott deemed an “invasion” from the southern border.[7]
It is well-established that immigration is a field of law solely within the federal government’s authority to regulate.[8] However, supporters of Texas’s position in this debate argue for more state power to arrest and detain individuals suspected of immigration violations.[9] Although 61 local law enforcement agencies across 17 states already possess the authority to arrest and detain for immigration violations through 287(g) agreements, these are individual contracts made between the federal government and county sheriff’s offices.[10] Texas supports far more extensive state control, where all police across the state could arrest people they suspect of committing unlawful entry whether or not the officers have been deputized by the federal government.[11] Proponents of state control over
Empowering State authorities to enforce immigration policy “threatens severe damage to the social fabric of communities across the nation.”[13] Mutual trust between the police and the communities that they serve is critical to effective policing.[14] When undocumented persons are aware that local law enforcement officers work with Immigration and Customs Enforcement (ICE) or have the authority to become involved in immigration matters, this trust is undermined.[15] For example, undocumented individuals state that they are less likely to report crimes that they have been victims of, or have witnessed.[16] This chilling effect is found to extend to immigrants who are lawfully present in the United States, out of fear that their status would be questioned in any way.[17] If residents, regardless of their status, do not feel they are able to work with local authorities, they may not provide information to ensure that bad actors are held accountable for their actions.[18] The Department of Justice also notes how it is a well-established fact that criminals will target undocumented people because of their reluctance to inform police of their victimization.[19] Distrust in state and local law enforcement could create communities that are under-protected by police, where crime thrives, affecting the lives of all residents.[20]
In addition to chilling community engagement in public safety, states taking a role in policing immigration could contribute to the ever-present issue of pretextual and race-based policing. State law enforcement agencies have long been criticized by activists, lawmakers, and legal professionals for racial profiling and how this practice informs whose lives intersect with the criminal justice system.[21] Just last year, national leaders of the NAACP and local activists called for the Department of Justice to investigate the New Jersey State Police following concerns of racist police conduct in the field and internally.[22] Specific to immigration, Arizona State Police have been painted as “suspicious of drivers who were listening to Mexican music,” as described by the experience of a U.S. citizen, Catalina Veloz, when she experienced two traffic stops in one day which she believes were demonstrative of racial profiling.[23] Social psychologists assert that at the heart of racial profiling is inherent bias, meaning possible solutions may be understanding and combatting these beliefs through quality information and expectations.[24] Despite greater training and higher standards for specialized agents such as ICE agents, federal immigration authorities are known to engage in significant racial profiling that leads to inconsistent enforcement against individuals who appear to be racially or ethnically diverse.[25] If state troopers and local police broadly possessed the authority to stop, arrest, and detain those suspected of immigration violations, this could create greater opportunities for law enforcement to exercise biases and affect the lives of those who fit an officer’s expectation of an illegal immigrant.
Texas’s success in taking immigration under its own control could cause damaging practices to proliferate across the United States. State and local law enforcement, organizations already distrusted for their disparate treatment of non-White persons, could be empowered to arrest and detain more individuals who would otherwise be outside of their authority. Allowing states this power could institutionalize significant harms to migrant communities, and further strain the relationship between police and migrants, immigrants, or anyone authorities believe could be present in the United States unlawfully.
*Cassandra Whall is a Staff Writer on JLI Vol. 42.
[1] See generally J. David Goodman, Texas Will Expand Effort to Control Land Among Mexican Border, Abbott Says, New York Times (Feb. 4, 2024), https://www.nytimes.com/2024/02/04/us/texas-border-abbott-governors.html; Lauren Gambino, Andrew Witherspoon, Marcus Peabody & Chris Michael, The Unprecedented Situation at the US-Mexico Border, The Guardian (Feb. 7, 2024), https://www.theguardian.com/us-news/2024/feb/07/mexico-border-explained-chart-immigration.
[2] Seth Wessler, Bused From Texas to Manhattan, an Immigrant Struggles to Find Shelter, ProPublica (Feb. 7, 2024), https://www.propublica.org/article/bused-from-texas-to-nyc-immigrant-struggles-to-find-shelter.
[3] Valerie Gonzalez & Acacia Coronado, Texas is Using Disaster Declarations to Install Buoys and Razor Wire on the US-Mexico Border, AP News (July 23, 2024), https://apnews.com/article/immigration-texas-border-buoys-wire-abbott-5f138e354e88fc319f46c55344d7335c.
[4] Jonathan Allen, Three Migrants Drown at U.S. Border as Texas, White House Feud, Reuters (Jan. 16, 2024), https://www.reuters.com/world/us/three-migrants-drown-us-border-amid-dispute-between-texas-white-house-2024-01-14/.
[5] Mark Sherman & Paul J. Weber, Supreme Court Allows Federal Agents to Cut Razor Wire Texas Installed on the US-Mexico Border, AP News (Jan. 22, 2024), https://apnews.com/article/supreme-court-immigration-texas-razor-wire-9daef6bd316211b6633ece718e505187.
[6] Sam Cabral, 25 Republican Governors Back Texas in Escalating Border Standoff with US Government, BBC (Jan. 25, 2024), https://www.bbc.com/news/world-us-canada-68101927.
[7] Greg Abbott, Statement on Texas’ Constitutional Right To Self-Defense, (Jan. 24, 2024).
[8] Arizona v. United States, 567 U.S. 387 (2012) (finding that Arizona laws in conflict with federal alien registration requirements are preempted and therefore unconstitutional).
[9] Patrick Svitek & Renzo Downey, At Texas-Mexico Border, Ron DeSantis Unveils Immigration Platform with Trump in Mind, The Texas Tribune (June 26, 2023) (describing how the Florida governor called for deputizing more local law enforcement to manage the border).
[10] U.S. Customs and Immigr. Enf’t, Delegation of Immigration Authority Section 287(g) I.N.A., https://www.ice.gov/identify-and-arrest/287g (Feb. 2, 2024).
[11] Uriel J. Garcia, Gov. Greg Abbott Signs Bill Making Illegal Immigration a State Crime, The Texas Tribune (Dec. 18, 2023), https://www.texastribune.org/2023/12/18/texas-governor-abbott-bills-border-wall-illegal-entry-crime-sb3-sb4/#:~:text=Greg%20Abbott%20signs%20bill%20making,billion%20for%20more%20border%20barriers.
[12] Leticia M. Saucedo, States of Desire: How Immigration Law Allows States to Attract Desired Immigrants, 39 Immigr. & Nat’lity Rev. 215, 234 (2018) (highlighting legislation passed in California using state authority to protect immigrants in areas of employment, housing, and education).
[13] Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1095 (2004).
[14] Dep’t of Just., Cmty Relations Servs. Toolkit for Policing, (2015).
[15] Laura Munoz Lopez, How 287(g) Agreements Harm Public Safety, Center for Am. Progress (May 8, 2018), (explaining the chilling effect that 287(g) agreements have had on undocumented Mexican immigrants, and Latinos generally, regardless of immigration status), https://www.americanprogress.org/article/287g-agreements-harm-public-safety/.
[16] Id.
[17] Id.
[18] Id. (telling the story of an individual who provided key testimony in a murder case, who was subsequently detained and reported that he would not have assisted law enforcement if he had known his own safety and freedom was on the line).
[19] Matthew Lysakowki, Albert Anthony Pearsall III & Jill Pope, Policing in Immigrant Communities, U.S. Dep’t of Just. 4 (2009).
[20] Id.
[21] David A. Harris, Racial Profiling: Past, Present, and Future? A.B.A. (Jan. 21, 2020), https://www.americanbar.org/groups/criminal_justice/publications/criminal-justice-magazine/2020/winter/racial-profiling-past-present-and-future/.
[22] Sophie Nieto-Munoz, Activists Call for Federal Oversight of N.J. State Police Over Racial Discrimination Allegations, N.J. Monitor (July 12, 2023), https://newjerseymonitor.com/2023/07/12/activists-call-for-federal-oversight-of-n-j-state-police-over-racial-discrimination-allegations/.
[23] Mary Romero & Marwah Serag, Violation of Latino Civil Rights Resulting From INS and Local Police’s Use of Race, Culture, and Class Profiling: The Case of the Chandler Roundup in Arizona, 52 Clev. St. L. Rev. 75, 89–90 (2005).
[24] Jack Glaser, Suspect Race: Causes and Consequences of Racial Profiling 45 (2015).
[25] Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1102 (2004).
Seneca Re-Ad Industries Reinforces Why Congress Should Eliminate 14(c) Certificates
Seneca Re-Ad Industries Reinforces Why Congress Should Eliminate 14(c) Certificates
By: Matthew Schmitz*
Early this year the District Court for the Northern District of Ohio reviewed the application of a key component of American minimum wage law: Section 14(c) certificates.[1] The case, brought by workers with disabilities and appealed by their employer, seems to represent a win for those individual employees.[2] In the process of winning, however, the plaintiffs displayed that even the best case scenario under this legislative program still provides inadequate protection against disparate treatment. As such, the decision adds support to the current legislative push to phase out Section 14(c) certificates.
- Section 14(c) Certificates and Their Critics.
14(c) certificates are one enumerated exception to the Fair Labor Standards Act (FLSA) minimum wage requirements.[3] By the statute’s own terms, these certificates look to boost employment opportunities for young, disabled, and injured workers by allowing employers to pay subminimum wages that relate “to the individual’s productivity.”[4] The section was last amended in 1989, prior to the enactment of the Americans with Disabilities Act (ADA).[5] To support employee protections, the statute requires periodic review of wages,[6] adjustments to reflect prevailing wage changes,[7] and an administrative process for employees to petition subminimum wage determinations.[8]
By all accounts, this might seem to be a robust and supportive effort to bring disabled workers into the workplace. In reality, the Government Accountability Office (GAO) recently noted a decrease in the number of workers and employers participating as well as an estimated fifteen million dollars in unpaid back wages for violations between 2012 and 2021.[9] Many employers who did participate at the time also operated on expired certificates, decreasing government oversight of their subminimum payments.[10] According to a recent report from the National Federation of the Blind, 35,000 disabled workers continue to receive subminimum wages despite sixteen states passing laws limiting such programs.[11] The federation also noted that both political parties have called for ending 14(c) certificates since at least 2016.[12] That push came to a head with proposed legislation over the past several years.
- The Legislative Push to Remove 14(c) Certificates.
The Transformation to Competitive Integrated Employment Act (TCIEA) would work to phase out 14(c) certificates.[13] The act would require raising employee wages by ten percent of the FLSA minimum wage, starting at sixty percent on enactment and ending at one hundred percent by year four.[14] On the same timeline, the act would also sunset existing certificates and prohibit new authorizations.[15]
The key to the proposed scheme is supporting employers navigating this transition. The first stated purpose of the act is to assist employers with the transition.[16] The first form of such assistance is a competitive grant system for states to support employers and disabled individuals through the process.[17] The state grants, under Section 102, are set to run between two and ten million dollars each and have various application requirements.[18] Section 103 of the act also proposes to provide grants to certificate holders themselves.[19] Titles III and IV of the proposed act provide technical assistance and reporting requirements.[20]
In helping sponsor the bill, Republican senator Steve Daines cited the “dignity and hope in work” as a reason Congress should remove this obstacle to fair and full pay.[21] Democratic co-sponsor Bob Casey noted competitive and integrated employment is a key way to support financial independence and community engagement for disabled workers.[22] The bill, introduced and referred to the House Committee on Education and the Workforce in 2023, has yet to proceed beyond referral to committee.[23] Early in 2024, advocates for disabled workers returned to Congress to press the bill forward, claiming subminimum wages have pushed many to pursue self-employment rather than face debasing low pay.[24] This aligns with a 2022 Bureau of Labor Statistics report that found disabled persons more likely to be self-employed than their non-disabled peers.[25] One possible reason for the delay in enacting the bill could be the strong workplace progress disabled workers have made in recent years, especially through increased teleworking opportunities.[26]
- Seneca Re-Ad Industries Makes the Case for the TCIEA.
The Seneca Re-Ad Industries case is illustrative of the shortcomings of the current system. There, the employees availed themselves of Section 14(c)’s petition process.[27] The administrative law judge (ALJ) conducted a thorough review and found the employer could not show the employees “were impaired for the work performed” and, therefore, were not eligible for subminimum wages.[28]
On employer-requested review, the administrative review board (ARB) upheld the ALJ’s decision on the employer’s liability.[29] In that decision, the ARB made clear that Section 14(c) only allows paying subminimum wages for an employee whose “earning or productive capacity is in fact impaired by their disability.”[30] The Department of Labor (DOL) regulations, the ARB noted, suggest an individual’s disability must be the cause of their reduced productivity in the area of work performed.[31] In other words, both the ALJ and ARB found the employer needed to show more than a measure of decreased productivity; they needed to show the employee’s disability caused that productivity lapse.
On the employer’s appeal to federal district court, they argued the ARB’s causation requirement was an improperly-crafted novel standard for 14(c) petition claims.[32] The court rejected this argument, noting the ARB’s interpretation of the existing statute and regulations was “not ‘plainly unreasonable.’”[33] It is important to note that this holding only means future ARBs may reach the same conclusion, this case does not require future ARBs to apply the robust causation requirement to employers.
Even if the strong causation requirement was precedential, the process itself is instructive of the undesirability of Section 14(c). To receive judicial approval as minimum wage earners, the employees here, for no reason other than their disabled status, had to petition, persuade an ARB that Section 14(c) requires causation, and go to federal court. The best version of this process requires disabled workers to watch courts and employers openly analyze the relationship between their disability and their struggles at work. Even the most confident worker might find this distressing. At worst, the process allows employers to presume the worker’s disability is what makes them a less productive worker, perpetuating stigma and erecting “an artificial barrier to future employment opportunities.”[34]
Proponents of the program may argue it protects disabled employees from being shut out of employment due to productivity concerns, but this cannot remain an excuse forever. This is especially true when at least some measures suggest our minimum wage itself has not correlated with aggregate worker productivity for decades.[35] If the wage itself has become an arbitrary statutory number, the justification for tying subminimum wages to worker productivity has weakened as well. Continuing to subject disabled workers, who may be able to find a minimum wage elsewhere, to a productivity-tied fraction of a non-productivity-tied number seems to do little to protect employment opportunities. Instead, it protects employer interests.
Notably, employees now enjoy protection under the ADA from discriminatory hiring practices and terms of employment.[36] Advocates for Section 14(c) may point out that the class of employees the ADA protects is limited to qualified individuals with disabilities,[37] leaving the certificate program as an important gap-filler for those who would not otherwise be “qualified.” Despite this, there seems to be little reason to believe, nor does the ADA likely permit, that the same employers who have paid disabled workers to perform important tasks for them could reverse course on that judgment solely because of the new wage requirement.[38] Proponents of 14(c) may, however, be inadvertently pointing to the importance of adjusting the ADA or its regulations to clarify that the class of employees qualified to perform a specific role for $3.50 or less an hour for the past three decades is also qualified to perform that same work for $7.25 an hour.
- Conclusion
In total, the TCIEA, which many view as overdue, strikes a thoughtful balance. Rather than punishing employers for their delay in integrating disabled workers more fully into our economy, the act proposes to provide employers with a four-year off-ramp and robust financial support. There is room, no doubt, for haggling over what shape these supports take and the length of the sunset period. What there is no longer room for, as Seneca Re-Ad Industries shows, is endlessly refusing to fully integrate disabled workers into our wage structure. As encouraging as it is that the ARB in that case provided full protection to the disabled workers, the GAO’s wage theft data suggests this may not be the norm. Disabled workers deserve more robust protection for receiving the full and fair wages they earn, while at the same time recognizing employers might not be able to make the required changes overnight. With the TCIEA, Congress can provide just that.
[1] Seneca Re-Ad Indus. v. Sec’y of the DOL, No. 3:20-cv-2325, 2024 U.S. Dist. LEXIS 1527 (N.D. Ohio Jan. 4, 2024). Notably, the “employer” in this case is a sheltered workshop that performs work for Roppe Corporation, see Court Ruling Affirms Decision Awarding Back Pay and Liquidated Damages to Individuals Who Were Unlawfully Paid Less Than Minimum Wage, Disability Rts. Ohio (Jan. 9, 2024), https://www.disabilityrightsohio.org/news/court-ruling-affirms-decision-awarding-back-pay-and-liquidated-damages.
[2] Id.
[3] Id. at *11.
[4] 29 U.S.C. § 214(c).
[5] 29 U.S.C. § 214; 42 U.S.C. § 12101.
[6] 29 U.S.C. § 214(c)(2)(A).
[7] 29 U.S.C. § 214(c)(2)(B).
[8] 29 U.S.C. § 214(c)(5).
[9] U.S. Government Accountability Office, Subminimum Wage Program: DOL Could Do More to Ensure Timely Oversight 1, 12, 43 (2023).
[10] Id. at 32.
[11] Transformation to Competitive Integrated Employment Act, Nat’l Federation of the Blind, https://nfb.org/programs-services/advocacy/washington-seminar/washington-seminar-priorities/transformation. [Hereinafter “National Federation of the Blind”].
[12] Id. See also Subminimum Wages: Impacts on the Civil Rights of People with Disabilities, U.S. Comm’n on Civ. Rts. (2020).
[13] Transformation to Competitive Integrated Employment Act, H.R. 1263, 118th Cong. § 201 (2023).
[14] Id. at § 201.
[15] Id. at § 202.
[16] Id. at § 3.
[17] Id. at § 102.
[18] Id.
[19] Id. at § 103.
[20] Id. at §§ 301, 401, 402.
[21] Paige Smith, Bipartisan Bill Would End Subminimum Pay for Disabled Workers, Bloomberg L. News (Nov. 18, 2021), https://news.bloomberglaw.com/daily-labor-report/bipartisan-bill-would-end-subminimum-pay-for-disabled-workers.
[22] Casey, Daines, Scott, McMorris, Rodgers Announce Bipartisan Bill to Phase out Subminimum Wage for People with Disabilities, Casey.Senate.Gov (Feb. 27, 2023), https://www.casey.senate.gov/news/releases/casey-daines-scott-mcmorris-rodgers-announce-bipartisan-bill-to-phase-out-subminimum-wage-for-people-with-disabilities#.
[23] H.R. 2373 – Transformation to Competitive Integrated Employment Act, Congress.gov (2024), https://www.congress.gov/bill/117th-congress/house-bill/2373.
[24] Diego Areas Munhoz, Push to End Disabled Workers’ Subminimum Pay Continues on Hill, Bloomberg L. News (Jan. 30, 2024), https://news.bloomberglaw.com/daily-labor-report/push-to-end-disabled-workers-subminimum-pay-continues-on-hill.
[25] Persons with a Disability: Labor Force Characteristics – 2022, Bureau of Lab. Statistics (2023).
[26] Areas Munhoz, supra note 24.
[27] Seneca Re-Ad Indus., 2024 U.S. Dist. LEXIS 1527 at *3.
[28] Id.
[29] Id. at *4. The parties also disputed the remedies awarded, which, while important under the current scheme, are beyond the scope of this discussion.
[30] Id. at *13.
[31] Id. at *14.
[32] Id. at *15.
[33] Id. (quoting Bhd. of Locomotive Eng’rs v. ICC, 909 F.2d 909, 912 (6th Cir. 1990)).
[34] National Federation of the Blind, supra note 11.
[35] Dean Baker, Correction: This is What Minimum Wage Would Be If It Kept Pace with Productivity, Ctr. For Economic Policy Research, (Jan. 21, 2020) https://cepr.net/this-is-what-minimum-wage-would-be-if-it-kept-pace-with-productivity/
[36] 42 U.S.C. § 12112(a).
[37] 42 U.S.C. §§ 12112(a), 12111(8).
[38] This may be an arguable point, but the qualified individual evaluation (see 42 U.S.C. § 12111(8)) turns on essential functions rather than any ratio of pay-to-tasks-performed.
Matthew Schmitz is a current Staffer for JLI
Consumer Protection from Carbon Neutrality Claims Based in Carbon Offsetting
By: Lizzy Miller*
In recent years, the discourse surrounding carbon offsets has gained significant traction as companies strive to advertise their commitment to environmental sustainability. The growing popularity of carbon offset initiatives has also brought forth concerns about “greenwashing,” or misrepresentation of a company’s sustainability or environmentally friendly policies.[1] Because carbon offset programs may be “worthless” in recapturing carbon,[2] customers of companies using carbon offsets could have valid claims for greenwashing under consumer protection laws.[3]
As consumers become increasingly discerning about the environmental impact of their choices,[4] courts play a crucial role in ensuring that companies uphold the standards of transparency and accuracy.[5] Cases alleging greenwashing are on the rise,[6] brought either by the Federal Trade Commission (FTC) or through a class action.[7] Most greenwashing cases survive a motion to dismiss, a motion brought by the defense to throw out the case against them.[8] This generally means that courts find they are the correct authority to hear the claim, they can potentially provide a remedy to the plaintiff, and the plaintiff has stated a reasonable claim under the relevant law.[9] However, plaintiffs in class-action suits may face difficulty in certifying their class due to the varying interests of consumers.[10] Ongoing suits, such as the Mayanna Berrin lawsuit,[11] provide insight into consumers’ strategies for pursuing relief.
Plaintiff Mayanna Berrin sued Delta Airlines in May of 2023, alleging that the company’s claim of being “carbon-neutral” is mere greenwashing due to the (contestably) negligible effect of carbon offsetting.[12] She is suing under California’s Consumers Legal Remedies Act, the False Advertising Law, and the Unfair Competition Law to argue Delta’s claims of carbon neutrality are misrepresentations that caused her and other consumers to overpay for flights.[13] This argument rests on the effectiveness of Delta’s carbon neutrality policy. In the pursuit of environmental responsibility, companies often turn to carbon offsets as a means of compensating for their carbon footprint.[14] Carbon offsets involve investing in projects that reduce or capture greenhouse gas emissions equivalent to the company’s own emissions. Most notably, carbon offsets are not a substitute for genuine efforts to reduce emissions at the source.[15]
One study found that Verra, a company that approves three-fourths of all voluntary carbon offsets, should not have approved 94% of the credits.[16] When focusing on planting trees as a method to offset carbon,[17] “phantom credits” are approved through various means— overstating the threat to forests, relying on carbon offset by keeping those forests standing, counting planted trees multiple times, and other means of inflation.[18] Even when numbers are accurately reflected, reforesting itself is a questionable practice; deforestation rates remain high,[19] forests store less carbon while drying out from global heating,[20] younger trees store much less carbon than mature trees,[21] and the carbon stored can be released if the trees are damaged through logging or wildfires.[22] Following the United Nations Secretary-General’s Global Climate Action Summit goal to achieve climate neutrality, emissions need to be reduced by 45% by 2030.[23] One climate specialist likens carbon offsetting to “putting a Band-Aid on something when you need a tourniquet.”[24]
Regarding Mayanna Berrin, a Delta spokesperson stated that the company “has fully transitioned its focus away from carbon offsets toward decarbonization” in the past eighteen months.[25] Such statements prove the importance of discovery in cases where companies may not be transparent about their practices.[26] Even if they are moving away from carbon offsets, companies must be diligent in ensuring that their environmental claims are accurate and substantiated to avoid violating consumer protection laws.[27]
Even as large companies advertise environmentally-friendly policies to drive sales, they likely contribute to the consumption of natural resources and increased emissions.[28] Consumers should be aware of and utilize anti-greenwashing legislation to protect their interests in corporate transparency and environmentally friendly production.[29]
*Lizzy Miller is a Managing Editor on JLI Vol. 42.
[1] Shawn Collins & Lisa M. Northrup, The Legal Risks of Greenwashing are Real, Bloomberg Law (July 25, 2022), https://news.bloomberglaw.com/environment-and-energy/the-legal-risks-of-greenwashing-are-real.
[2] Fiona Harvey, Carbon Offsets Are Flawed but We Are now in a Climate Emergency, Guardian (Jan. 18, 2023), https://www.theguardian.com/environment/2023/jan/18/carbon-markets-credits-offsets-deforestation-aoe; Patrick Greenfield, Revealed: More than 90% of Rainforest Carbon Offsets by Bigger Certifier are Worthless, Analysis Shows, Guardian (Jan. 18, 2023), https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe.
[3] Irina Ivanova, Delta Faces Lawsuit Alleging its “Carbon-Neutral” Claim is Greenwashing, CBS News (May 31, 2023), https://www.cbsnews.com/news/delta-lawsuit-cabon-neutral-greenwashing-carbon-offsets/ (stating customers paid more for flights which were advertised to be “carbon-neutral.”).
[4] Id.
[5] See Collins & Northrup, supra note 1 (describing various court decisions on greenwashing).
[6] Dharna Noor, Why 2024 Will be a Crucial Year for Climate Litigation, Guardian (Jan. 22, 2024), https://www.theguardian.com/us-news/2024/jan/22/climate-change-cases-2024-lawsuits.
[7] Jessica Davidson, Nina R. Rose, & Robert A. Silverstein, Reducing the Risk of ‘Greenwashing’ Litigation and Defending Actions that Are Filed, Harv. L. Sch. F. on Corp. Governance (Oct. 10, 2023), https://corpgov.law.harvard.edu/2023/10/10/reducing-the-risk-of-greenwashing-litigation-and-defending-actions-that-are-filed/.
[8] Id.; Jacob H. Hupart, Douglas P. Baumstein, Joshua Briones, & Will G. McKitterick, Greenwashing Class Action Litigation: An Emerging Risk for Companies’ Claims of Sustainability, Nat’l L. Rev. (Aug. 4, 2023), https://www.natlawreview.com/article/greenwashing-class-action-litigation-emerging-risk-companies-claims-sustainability.
[9] Hupart, Baumstain, Briones, & McKitterick, supra note 8.
[10] See Davidson, Rose, & Silverstein, supra note 7; Hupart, Baumstain, Briones, & McKitterick, supra note 8.
[11] Mayanna Berrin v. Delta Airlines, No. 2:23-cv-04150 (C.D. Cal. filed May 30, 2023).
[12] Id.
[13] Byron J. McLain & Cole K. Waldhauser, Carbon Neutrality Suit Against Delta Airlines Signals the Arrival Time of Greenwashing” Litigation, Nat’l L. Rev. (June 15, 2023), https://www.natlawreview.com/article/carbon-neutrality-suit-against-delta-airlines-signals-arrival-time-greenwashing.
[14] Greenfield, supra note 2.
[15] Natacha Larnaud, Does Planting a Tree Really Offset Your Carbon Footprint?, CBS News (Jan. 28, 2020), https://www.cbsnews.com/news/planting-a-tree-offset-your-carbon-footprint/.
[16] Greenfield, supra note 2 (describing how Verra certifies carbon credits for companies, noting their claims of forest loss were originally “overstated by 400%,” resulting in falsely inflated claims of carbon offsetting through reforestation).
[17] Lilli Kaarakka, Julia Rothey, & Laura E. Dee, Managing Forests for Carbon-Status of the Forest Carbon Offset Markets in the United States, PLOS CLIMATE (July 6, 2023),https://journals.plos.org/climate/article?id=10.1371/journal.pclm.0000158 (“In the United States, forest-based offsets represent 92% of offset credits issued in the Cap-and-Trade Program operated by the state of California.”).
[18] Id.
[19] Harvey, supra note 2.
[20] Id.
[21] Larnaud, supra note 15.
[22] Greenfield, supra note 2; Larnaud, supra note 15; Ivanova, supra note 3.
[23] UN Environment Programme, Emissions Gap Report 2019, at 14 (Anne Olhoff & John Christensen eds., 2019); Larnaud, supra note 15.
[24] Larnaud, supra note 15.
[25] Ivanova, supra note 3.
[26] Noor, supra note 6 (noting that discovery is the “second most important part” in climate deception cases against fossil fuel companies for their statements regarding climate change).
[27] See Collins & Northrup, supra note 1 (describing how courts have dismissed companies’ defenses based on puffery); Hupart, Baumstein, Briones, & McKitterick, supra note 8.
[28] Lauren Pollock, How Capitalism is a Driving Force of Climate Change, PIT J. (https://pitjournal.unc.edu/2022/12/24/how-capitalism-is-a-driving-force-of-climate-change/ (last accessed Jan. 30, 2024).
[29] Hupart, Baumstain, Briones, & McKitterick, supra note 8 (noting companies’ behavior is influenced by consumer trends and implying accountability may be possible).