Columbia Journal of Environmental Law
This Article argues that the Supreme Court has expanded commercial speech rights too far. The current Court increasingly appears to view the government's power to regulate commercial speech as limited to only proscribing false or misleading commercial speech. Any attempt by the government to restrict truthful commercial speech, even if potentially misleading, is generally treated as unjustified paternalism in violation of the First Amendment. The evolving jurisprudence threatens reasonable economic regulations that restrict speech for important and non-paternalistic reasons. To make this case, this Article explores how the evolving commercial speech doctrine could invalidate the food-labeling regime established by the Organic Foods Production Act of 1990 ("OFPA") and its implementing regulations. That regulatory regime, often referred to as the National Organic Program ("NOP"), generally prohibits representing food as "organic" unless a United States Department of Agriculture ("USDA") licensed inspector has certified that the food was produced consistent with OFPA's implementing regulations. The National Organic Program: (1) provides assurance to the consumer that the product is indeed organic; (2) sets clear standards to define the organic market so that producers can enjoy a price premium for food produced consistent with those standards; and (3) incentivizes producers, through the price premium, to convert from conventional to organic production practices, resulting in substantial environmental benefits. Although the regulations facilitate the creation and growth of an organic market with integrity, the regulations are vulnerable to a First Amendment challenge because they restrict the use of the term "organic" to a very limited set of circumstances.
Since the revolution of environmental law began roughly forty years ago, scholars have wrestled with the complex interactions of the states and federal government, but they have largely ignored tribal governments. Although some scholarship exists regarding the suggested development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This Article fills that vacuum by taking a first look at existing tribal environmental law and exploring the laws of one tribal nation that has enacted several environmental laws. The Article also proposes some initial norms to guide the development of tribal environmental law.
Too often, environmentalists view American consumerism and corporate advertising as damaging forces necessarily at odds with conservation and sustainability. With this in mind, many environmental activists have emphasized the basic rejection of consumerism as an essential step towards sustainable consumption. Importantly, however, this over-broad dichotomy often ignores the potentially powerful role that consumer culture can play in achieving environmental objectives. In fact, the early environmental movement also heralded an important shift in American consumerism. Just as leaders in Washington began to recognize growing public interest in the environment, companies across the nation sought to capitalize on consumers' newfound environmentalism. Since that time, environmental marketing has continued to draw on consumers' interest in sustainability and is today a familiar element of the American marketplace.
Effective environmental regulation of products requires knowledge of their entire lifespan. For example, a gallon of corn ethanol produces greenhouse gas emissions when burned, but this does not reflect its full environmental impact. The energy and water used to produce the fuel, side effects of production such as land use changes, and emissions associated with its transportation from producers to distributors all add to the environmental impact of the fuel. This holistic method of assessing environmental impacts is known as "lifecycle analysis" or "lifecycle assessment." The scientific community recognizes lifecycle analysis as providing the touchstone for effective environmental regulations. Congress has endorsed this methodology, for example, requiring that federal agencies incorporate lifecycle analysis into contracts to purchase alternative or synthetic fuels. Businesses often employ lifecycle analysis when comparing the environmental impacts of different potential production processes.