For any land exchange carried out by the Forest Service or the Bureau of Land Management (“Agencies”), federal law generally requires the Agencies to ensure that “the public interest will be well served by making that exchange.” To do so, the Agencies must consider the fate of the land they convey and how that is likely to affect the public interest. To help control the fate of the land they convey and the adverse impacts it may have on the public interest, the Agencies’ regulations mandate that they “reserve such rights or retain such interests as are needed to protect the public interest.” Nevertheless, the Agencies’ internal policies all but prohibit their employees from carrying out that mandate. As a result, the Agencies are missing opportunities to better serve both the public’s interests and their own. By including covenants, easements, or other restrictions on the lands they convey, the Agencies can more […]
This Article argues that this period of unprecedented clean tech innovation requires a new paradigm for thinking about greenwashing. Specifically, it is essential that the paradigm shift from almost exclusive focus on B-to-C environmental advertising directed to individual green consumers to an expanded and more nuanced view that also includes B-to-B representations made to commercial consumers. This new paradigm would define greenwashing expansively to include any false or misleading claim regarding the environmental benefit of a product, service, or business practice. Its analysis should not be limited to cases brought by or on behalf of individual consumers, but should also contemplate legal actions by and on behalf of green commercial consumers. Changing the greenwashing paradigm in this way will reflect the commercial realities of the clean tech revolution, and will provide the broader vantage point necessary to identify instances of greenwashing and understand its prevalence and effects.