Year: 2026

Vol. No. 55-2 Federal Update

Federal Update

Consumer Product Greenwashing

1. Introduction

Consumer demand for sustainable products is increasing.[1] When making a purchase, consumers may rely on the product package information to make an informed decision. According to a survey conducted by PwC in 2024, consumers are willing to pay a “premium” for products that are environmentally friendly.[2] However, consumers who pay extra for products like “free-range” or “pasture-raised” eggs under the belief that hens are happily roaming an open farm may be in for a surprise.

To attract consumers and investors, companies sometimes advertise their product as more environmentally friendly than it really is. This practice is known as called greenwashing.[3] In 2023, NielsenIQ and McKinsey conducted a consumer data study that identified six types of common Environmental, Social, and Governance (ESG) claims on product packages: (1) animal welfare; (2) environmental sustainability; (3) organic positioning; (4) plant based; (5) social responsibility; (6) sustainable packaging.[4]

This article will provide updates regarding the regulations of consumer product greenwashing by various governmental agencies and will analyze recent greenwashing litigation and agency enforcement in this area. This article will also provide practical advice for both businesses and consumers to proactively identify false and deceptive ESG claims on consumer products.

2. Background and Recent Agency Regulation Updates

At the federal level, the Fair Packaging and Labeling Act of 1967 (FPLA) authorized the Food and Drug Administration (FDA) to issue regulations with respect to foods, drugs, cosmetics.[5] FPLA also authorized the Federal Trade Commission (FTC) to issue regulations with respect to other “consumer commodities” used in the household.[6] The FTC is also authorized under the Federal Trade Commission Act (FTCA) to regulate and prevent fraudulent, deceptive, and unfair business practices.[7]

In 1992, the FTC issued the Guides for the Use of Environmental Marketing Claims (“Green Guides”) to help businesses avoid making unfair or deceptive environmental marketing claims.[8] Since the last update of the Green Guides in 2012,[9]  the FTC announced the most recent review of the Green Guides in 2022,[10] which is expected to become effective in 2024.[11] The new changes will address specific issues such as: claims about offsets and climate change; the use of the terms “recycled” and “recycled content”; representations about energy use and energy efficiency; and whether there is a need for more guidance on the use of words like “compostable,” “degradable,” “ozone-friendly,” “organic,” and “sustainable.”[12]  The public comment period for the proposed Green Guides updates ended on April 24, 2023.[13] After the public comment period closed, the FTC hosted a public Recyclability workshop in New York, discussing the proposed Green Guides updates on the “recyclable” advertising claims.[14]

In addition to the FDA and the FTC, the U.S. Securities and Exchange Commission (SEC) also plays an important role in regulating consumer product advertising by overseeing public companies’ disclosure of their ESG efforts. On March 6, 2024, the SEC adopted new Climate Change Disclosure Rules that require public companies to include extensive and accurate information about their ESG efforts and environmental risk factors relating to climate change in their SEC filings.[15] Under these new rules, claims about environmentally friendly products and the company’s ESG goals may come under greater scrutiny to ensure reliability.[16] The final rules became effective on May 28, 2024.[17]

States also have their own laws to regulate product labeling. For example, in May 2023, Texas Governor Greg Abbott signed Senate Bill 664[18] which requires animal-free food products packages sold in the state to include a “plant-based” label[19] . The law went into effect on September 1, 2023.[20]

3. Case Studies

The role of the FTC Green Guides in greenwashing litigation

Courts have relied on FTC Green Guides to evaluate the accuracy and potential deceptiveness of environmental marketing claims. A California district court recently analyzed such a claim.

In August 2023, consumers brought a punitive class action against Colgate-Palmolive Company (Colgate) for misrepresenting the recyclability of its toothpaste tubes.[21] Consumers alleged that the label of “RECYCLABLE TUBE” was “false, deceptive, misleading and/or unlawful” because most recycling facilities in the nation do not accept these products.[22] Colgate filed a motion to dismiss, arguing that the “Recyclable Tube” labels were accurate descriptions of the product because “recyclable” worked as “an adjective that means capable of being recycled.”[23] Colgate also argued that this claim about the toothpaste tubes met the requirements of “substantial majority” threshold[24] defined in the Green Guides because recycling facilities are available to 87% of consumers.[25]

The Northern District of California District Court also relied on FTC Green Guides to evaluate Colgate’s “Recyclable” claim.[26] Specifically, under Green Guide § 260.12(d), “[i]f any component significantly limits the ability to recycle the item, any recyclable claim would be deceptive. An item that is made from recyclable material, but, because of its shape, size, or some other attribute, is not accepted in recycling programs, should not be marketed as recyclable.”[27] Here, although the Colgate toothpaste tubes were “made from recyclable material,” they were indistinguishable from non-recyclable tubes because of their shape and the possible contamination by the leftover toothpaste unremovable from the tubes.[28] The Colgate “Recyclable Tubes” were also rejected by recycling facilities.[29] Therefore, the court concluded that Plaintiffs had adequately alleged that Colgate’s “Recyclable Tube” claims were misleading.[30] Consequently, the court denied Colgate’s motion to dismiss on February 6, 2024.[31] The case is now pending for mediation with the deadline on July 15, 2025.[32]

The California district court’s analysis in the Colgate case demonstrated the pivotal role of the FTC Green Guides in leading judicial evaluations of the environmental claims’ fairness and deceptiveness.

A warning from the SEC: Watch out for greenwashing in public filings.

In addition to environmental litigation, the SEC issues rules and guidance to regulate environmental marketing claims. For example, in an investigation similar to the Colgate case, the SEC investigated Keurig Dr Pepper Inc. (“Keurig”) making false claims about its products’ recyclability.[33]

On September 10, 2024, the SEC charged Keurig for making inaccurate statements in its annual reports regarding its K-Cup beverage pods’ recyclability. Specifically, Keurig claimed in its 2019 and 2020 Form 10-K filings that its K-Cup pods “can be effectively recycled.”[34] However, the company failed to disclose negative feedback from two large recycling companies which had deemed the commercial recycling of K-Cups commercially infeasible and refused to accept them.[35] Research indicated that environmental concerns were a significant factor for consumers when deciding whether to purchase a Keurig brewing system.[36]

The SEC concluded that Keurig’s “incomplete and inaccurate” disclosure violated Section 13(a) the Securities Exchange Act of 1934 and Rule 13a-1, which require public companies to file “complete and accurate annual reports.”[37] Ultimately, Keurig agreed to pay $1.5 million to settle the claim.[38]

This enforcement action against Keurig shows the SEC’s focus on the completeness and accuracy of public filings. Companies must be mindful not to leave out material information, as such omissions can lead to significant legal and financial consequences.

Questions from recent egg lawsuits: is “free range” mere puffery?

Setting the recyclability issues aside, a recent lawsuit also shed light on the tension between consumers and businesses over false and deceptive environmental marketing claims related to egg products. The core issue, common in greenwashing litigation, is this: To what extent should businesses be allowed to make “mere puffery” claims and how can consumers distinguish between genuine promises and such “too good to be true” marketing claims?

In April 2021, consumers brought a class action against defendant Pete and Gerry’s Organics, LLC (“Nellie’s”), alleging that the company falsely marketed its eggs as “free-range” when in fact the hens were “crammed” into overcrowded sheds—“20,000 at a time,”—with little to no access to outdoor space.[39] Plaintiffs further alleged that they relied on these representations and paid a premium for Nellie’s eggs.[40]

Nellie’s moved to dismiss the lawsuit, arguing that its farming practices met the “Certified Humane Free-Range” standard and the “free-range” label was not misleading.41] Alternatively, it contended that “free-range” was non-actionable puffery, or “a statement that is too vague to constitute actionable misrepresentation.”[42]

The U.S. District Court for the Southern District of New York denied Nellie’s motion, finding that “free range” was not mere puffery because “a reasonable consumer could interpret the disputed product descriptions as factual claims on which he or she could rely.”[43] The case settled in 2023. According to Nellie’s website, the company still markets its eggs as “free-range.”[44] However, it’s unclear whether Nellie’s has made any substantive changes to its farming practices following the settlement.

However, egg-related lawsuits did not stop there. In July 2024, another two consumers sued Eggland’s Best for falsely representating its eggs as “cage free” and including small print on the packaging saying that every hen is “free to roam in a pleasant, natural environment.”[45] In fact, undercover footage revealed “thousands of birds packed into filthy wire battery cages, hardly able to move without crawling over other birds.”[46]

Eggland’s Best filed a motion to dismiss the class action, arguing that the term “cage free” is not misleading because a reasonable consumer would not equate “free to roam” with “free range” or “pasture raised.”[47] The company also argued that the word “pleasant” was “mere puffery.”[48] Plaintiffs countered that “free to roam in a pleasant, natural environment” was not inactionable “puffery” because consumers rely on the product claims about hens’ living conditions.[49]They further argued out that “a claim is not puffery if the opposite of the claim is allegedly true.” Here, “pleasant” was not “puffery” because hens actually lived with stress and pain, the very opposite of “pleasant.”[50]The case is now pending the court’s ruling on the motion to dismiss.

As illuminated in the above egg lawsuits, businesses commonly invoke the “puffery” doctrine as a defense in greenwashing litigation. Disputes more often arise from businesses’ use of vague or undefined terms.

4. Best Practice

To mitigate legal risks, businesses should familiarize themselves with the FTC Green Guides. First, companies should avoid making unqualified claims of environmental benefit.[51]Instead, companies should ensure every environmental benefit claim it makes is supported by “reliable scientific evidence.”[52]When designing product packages, businesses should use “plain language” to make the environmental marketing claims “clear and prominent.”[53] For public companies, disclosures on their ESG efforts should be accurate and complete.

The FTC also publishes articles for consumers to effectively identify common green claims on household products.[54]For example, when products claim to be made with “recyclable” materials, the FTC suggests that consumers check “whether the claims are about the product, the package, or both.” The FTC also encourages consumers to be critical when interpreting green claims. Three questions can help guide consumers in this critical thinking process: (1) Who is responsible for the message? (2) What is the message actually saying? (3) What does it want me to do?[55] Finally, if you see misleading marketing claims, report it to the FTC at ReportFraud.ftc.gov.

5. Conclusion

Recent greenwashing litigation and regulatory enforcements underscore the importance of clarity and accuracy in environmental marketing. Vague and misleading marketing terms might bring businesses short-term benefits, but may also erode consumer trust and harm the company’s social reputation.

For businesses, the key takeaway is to substantiate environmental claims with reliable evidence and avoid the use of vague or undefined terms. Complying with regulatory guidelines including the FTC Green Guides and the SEC filing rules when making environmental marketing claims can help businesses maintain consumer trust and avoid litigation.

For consumers, going green requires critically evaluating green claims and timely reporting misleading advertisements. As sustainability continues to influence consumer decisions, the legal landscape surrounding greenwashing will likely grow more stringent. A culture of transparency and accountability will be essential in fostering genuine sustainability.

Katie Jeffress is an associate at Baker Botts LLP. Her practice focuses on a range of environmental issues at the state and federal level, including regulatory compliance, permitting, and litigation. Her experience includes air and water permitting, waste issues and enforcement matters. She earned her B.S. in Environmental Economics from Juniata College and her J.D. from the University of Texas School of law, with high honors.

Jinhua Zhang is a 3L from China. She attended the Shanghai International Studies University for her bachelor’s degree in Japanese. She joined TELJ during her second year of law school and she is especially interested in environmental litigation.

[1] Environmentally Friendly Products: FTC’s Green Guides, FED. TRADE COMM’N, https://www.ftc.gov/news-events/topics/truth-advertising/green-guides (last visited Nov. 18, 2024).

[2] Consumers Willing To Pay 9.7% Sustainability Premium, Even as Cost-of-Living and Inflationary Concerns Weigh: PwC 2024 Voice of the Consumer Survey, PricewaterhouseCoopers Intern. LTD. (May 15, 2024), https://www.pwc.com/gx/en/news-room/press-releases/2024/pwc-2024-voice-of-consumer-survey.html.

[3] Greenwashing, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/greenwashing.

[4] Consumers Care About Sustainability—and Back It up With Their Wallets, McKinsey & Co. (Feb 6, 2023), https://www.mckinsey.com/industries/consumer-packaged-goods/our-insights/consumers-care-about-sustainability-and-back-it-up-with-their-wallets.

[5] 15 U.S.C.A. §1454(a).

[6] Fair Packaging and Labeling Act: Regulations Under Section 4 of the Fair Packaging and Labeling Act, FED. TRADE COMM’N,, https://www.ftc.gov/legal-library/browse/rules/fair-packaging-labeling-act-regulations-under-section-4-fair-packaging-labeling-act.

[7] 15 U.S.C. § 45 (2006).

[8] 16 C.F.R. § 260.1(a) (2012) (“The guides help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act, 15 U.S.C. 45.”).

[9] Environmentally Friendly Products: FTC’s Green Guides, FED. TRADE COMM’N, https://www.ftc.gov/news-events/topics/truth-advertising/green-guides.

[10] Public Workshop Examining Guides for the Use of Environmental Marketing Claims, FED. TRADE COMM’N  (Mar. 7, 2023), https://www.regulations.gov/document/FTC-2023-0025-0001.

[11] Laura Brett, It’s Not Easy Being Green: Preparing for the FTC’s Updated Green Guides, Adweek (Oct, 19, 2023), https://www.adweek.com/commerce/green-advertising-ftc-2024-guide/.

[12] Lesley Fair, FTC Greenlights Green Guides Comment Extension, FED. TRADE COMM’N (Jan. 31, 2023), https://www.ftc.gov/business-guidance/blog/2023/01/ftc-greenlights-green-guides-comment-extension.

[13] Id.

[14] Talking Trash at the FTC: Recyclable Claims and the Green Guides, FED. TRADE COMM’N  (May 23, 2023), https://www.ftc.gov/news-events/events/2023/05/talking-trash-ftc-recyclable-claims-green-guides.

[15] SEC Adopts Climate Change Disclosure Rules; Court Imposes Temporary Stay, White & Case (Mar. 21, 2024), https://www.whitecase.com/insight-alert/sec-adopts-climate-change-disclosure-rules-court-imposes-temporary-stay.

[16] See Press Release,  U.S. Sec. & Exch. Comm’n, SEC Adopts Rules to Enhance and Standardize Climate-Related Disclosures for Investors https://www.sec.gov/newsroom/press-releases/2024-31(last updated Mar. 6, 2024) (listing some of the disclosures required under the new rule, including but not limited to: “a registrant’s climate-related targets or goals”; “If, as part of its strategy, a registrant has undertaken activities to mitigate or adapt to a material climate-related risk, a quantitative and qualitative description of material expenditures incurred and material impacts on financial estimates and assumptions that directly result from such mitigation or adaptation activities.”).

[17] The Enhancement and Standardization of Climate-Related Disclosures for Investors, 17 C.F.R. §§ 210, 229, 230, 232, 239, 249 (2024).

[18] S.B. 664, 88th Leg., 2023–2024 Sess. (Tex. 2023).

[19] Id. See also Cindy Hazen, Texas Passes New Labeling Law for Plant-Based Food Products, Supply Side Food & Beverage J. (May 31, 2023), https://www.supplysidefbj.com/food-beverage-regulations/texas-passes-new-labeling-law-for-plant-based-food-products.

[20] Hazen, supra note 18.

[21] Della v. Colgate-Palmolive Co., No. 23-CV-04086-JCS, 2024 WL 457798, at *1 (N.D. Cal. Feb. 6, 2024).

[22] Id. at *2.

[23] Id. at *4.

[24] 16 C.F.R. § 260.12(b)(1) (“When recycling facilities are available to a substantial majority of consumers or communities where the item is sold, marketers can make unqualified recyclable claims. The term “substantial majority,” as used in this context, means at least 60 percent.”).

[25] Della, 2024 WL 457798 at *25.

[26] Id. at *24–25.

[27] 16 C.F.R. § 260.12(d).

[28] Della, 2024 WL 457798 at *25.

[29] Id.

[30] Id.

[31] Id.

[32] Weingarter  v. Colgate-Palmolive Co., No. 3:23-cv-04086 (N.D. Cal. Aug 11, 2023).

[33] Keurig Dr Pepper Inc., Exchange Act Release No. 34-100983, at 2–3 (Sep. 10, 2024).

[34] Id. at 2.

[35] Id.

[36] Id.

[37] Securities Exchange Act of 1934 Release No. 100983, Admin. Proc. File NO. 3-22100, at 4 (Sept. 10, 2024).

[38] Press Release, U.S. Sec. & Exch. Comm’n, SEC Charges Keurig Dr Pepper with Making Inaccurate Statements Regarding K-Cup Beverage Pod Recyclability (Sept. 10, 2024), https://www.sec.gov/enforcement-litigation/administrative-proceedings/34-100983-s.

[39] Mogull v. Pete & Gerry’s Organics, LLC, 588 F. Supp. 3d 448, 452 (S.D.N.Y. 2022).

[40] Id. at 454.

[41] Id.

[42] Id. at 453.

[43] Id. at 457.

[44] Nellie’s Free Range, Free Range Eggs, https://www.nelliesfreerange.com/products/free-range-eggs (last visited Nov. 11, 2025).

[45] Complaint, at 1, Janecyk v. Eggland’s Best, Inc., No. 1:24-cv-06222 (N.D. Ill. Jul. 23, 2024) (ECF No. 1).

[46] Id. at 7.

[47] Defendant Motion to Dismiss, at 6, Janecyk v. Eggland’s Best, Inc., No. 1:24-cv-06222 (N.D. Ill. Oct. 7, 2024), (ECF No. 20).

[48] Id.

[49] Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss, at 23–24, Janecyk v. Eggland’s Best, Inc., No. 1:24-cv-06222 (N.D. Ill. Oct. 30, 2024) (ECF No. 27).

[50] Id. at 24.

[51] 16 C.F.R. § 260.4(b) (“Because it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims, marketers should not make unqualified general environmental benefit claims”).

[52] 16 C.F.R. § 260.2 (“Marketers must ensure that all reasonable interpretations of their claims are truthful, not misleading, and supported by a reasonable basis before they make the claims. In the context of environmental marketing claims, a reasonable basis often requires competent and reliable scientific evidence”).

[53] 16 C.F.R. § 260.3(a).

[54] Eco-Friendly and Green Marketing Claims, FED. TRADE COMM’N (May 2021), https://consumer.ftc.gov/articles/eco-friendly-and-green-marketing-claims.

[55] Go Ahead — Be Critical, FED. TRADE COMM’N (July 2012), https://consumer.ftc.gov/articles/0308-go-ahead-be-critical.

 

 

Vol. No. 55-2 Waste

Waste

Don’t Be Square, Be Circular: The Global Pursuit of a Circular Economy

1. Introduction

There is a growing global need to address the negative impacts of climate change. The Circular Economy (CE) concept is a framework that seeks to mitigate these adverse effects by reducing biodiversity loss, decreasing pollution, and revitalizing natural resources. This paper will define CE, describe why CE is necessary, and identify the benefits of an environmental law and policy regime that pursues a CE model. Next, this paper will explore successful CE frameworks in France and the Netherlands. Finally, this paper will describe several CE initiatives in the United States and identify how the United States could better pursue a CE framework to help aid in efforts to alleviate the detrimental effects of climate change globally.

2. Defining a Circular Economy

Global consumption—and thus, waste production—of materials such as plastics, metals, and biomass is dramatically on the rise.[1] The natural result of heightened waste production is pollution of the groundwater, soil, and air, as well as resource depletion; and biodiversity loss.[2] These growing issues necessitate a paradigmatic shift to a “more sustainable sociotechnical [system].”[3] One framework that would help address the climate crisis, growing loss of biodiversity, and inequitable social impacts of these ever-increasing global issues is a CE—a framework that conceptualizes economic growth which offsets waste reduction rather than increased consumption alone.[4]

A CE is a production/consumption model and economic system where materials are regenerated, and waste is never produced.[5] Unlike the linear system, which uses materials to make products and eventually discards those products as waste, the CE stops materials from ever becoming waste.[6] According to the Ellen MacArthur Foundation, a leading organization in the CE space, a CE framework rests on three fundamental principles: (1) eliminate pollution and waste, (2) circulate products and materials at their highest value, and (3) regenerate nature.[7] In pursuit of these principles, the CE framework relies on processes like recycling, reusing, and refurbishing to keep materials in the production–consumption cycle for as long as possible, ideally in perpetuity..[8] CE is rooted in creating efficient product life cycles by using renewable energy for design and production as well as designing and disassembling the product to be returned to nature.[9]  Thus, this framework would rely both on consumers purchasing refurbished goods and manufacturers redesigning their products to be “less resource intensive.”[10]

Pursuing a CE could prove revolutionary in slowing the global climate crisis’ progression. Nearly half of global greenhouse gas (GHG) emissions are a result of industry, land use, and agriculture.[11] When recyclable goods are destroyed, their energy and resources are wasted, and destruction itself generates between 5 and 20 times the amount of GHG emissions than if the goods were otherwise recycled and reused.[12] By eliminating waste and keeping products in the line of production for as long as possible, the CE framework allows products to retain their inherent energy, reducing net GHG emissions.[13]

Furthermore, a CE framework would help address inequities in our current linear regime. The current methods of production and waste disposal disproportionately burdens already vulnerable and underserved communities.[14] Landfills and emissions are primarily located in low-income communities, making them more vulnerable to the adverse health and environmental impacts that result from the linear model.[15] A CE would help bridge this gap in the existing inequitable system.

3. Global Case Studies: France and The Netherlands

While the global transition has been slow, some countries have taken significant steps in adopting and implementing a CE framework. Generally, countries with the most ambitious CE transition plans have implemented “framework legislation,”—where their legislature outlined structures orprinciples to guide the development of specific CE laws[16] —and have supplemented that framework with laws and other regulatory and policy measures to target particular waste producing processes.[17] Two countries at the forefront of this transition are France and the Netherlands. Their progress provides insights that are likely globally applicable.

A. France

To combat the growing issue of waste disposal and environmental degradation,[18] France promulgated a broad sweeping piece of CE legislation: the Anti-Waste Law,[19] which contains roughly 50 measures intended to guide a national CE transition.[20] The Anti-Waste Law promotes sustainable resource management from the very beginning of product design; encourages recycling and reusing materials; and sets a goal of phasing out all single-use plastic by 2040, with intermediate benchmarks to  track progress..[21]

The Anti-Waste Law is the first of its kind, beyond any country’s CE legislation in its ambition and scope. France became the first country to categorically ban the destruction of unsold non-food products, requiring companies to reuse or donate them instead.[22] Research indicates that consumers consider the sustainability of products when determining which products to purchase.[23]  To incentivize environmentally conscious consumption, the Law requires various consumer disclosures. For example, it requires companies to disclose a “repairability index” for electronic products to help consumers evaluate a product’s environmental impact when purchasing.[24] Moreover, to eliminate single-use plastic, the Law restricts plastic use across multiple sectors. It prohibits the use of plastic packaging on many types of produce; bans takeout polystyrene containers, plastic straws, and plastic cutlery; mandates public water fountains at certain public institutions; and promotes bulk purchasing to reduce unnecessary packaging.[25] Finally, the Law promotes a “polluter pays” principle where those that produce the pollution must bear the costs of managing it.[26] In practice, manufacturers or importers of goods that produce waste, are required to financially contribute to certified organizations to collect and recycle such waste.[27] To ensure compliance, those that engage in illegal waste dumping could face fines of up to 15,000 Euros.[28]

B. The Netherlands

Like France, the Netherlands is considered one of the leading countries in the CE transition, with a goal of complete circularity by the year 2050.[29] The National CE program identifies four ways to achieve a CE: (1) ultimately eliminating non-renewable materials in production; (2) substituting non-renewable materials for renewable, sustainably produced materials; (3) expanding the life-cycle of a products in production; and (4) improving processing so that products can be reused to reduce waste.[30]

Using this framework, the Netherlands formulated a policy to target specific products and industries that are the most environmentally burdensome. These include consumer goods, plastics, construction, and manufacturing.[31] The Dutch Cabinet is responsible for implementing the program to achieve complete circularity, and the framework requires government-wide support and compliance.[32] Furthermore, to help hasten the CE transition, the Dutch approach recently transitioned from being largely non-binding and voluntary to mandating standardized compliance across multiple sectors.[33]

4. United States

The United States has not yet nationally pursued an explicit and broad CE framework like that of France or the Netherlands. This may be because of the constraints of the U.S. Constitution and the U.S. federalist structure. Otherwise, the United States may not have a physical imperative to embrace CE when compared to other countries, given its expansive geography and relative wealth. The United States has a vast surface area to place landfills and other facilities to dispose and store byproducts of production and unused materials.[34] Regardless of the explanation, at least so far, progress toward a CE has been relatively piecemeal, primarily undertaken federally by the Environmental Protection Agency (EPA) via guidance documents and resources, and by individual states.[35] The existing non-comprehensive approach leaves holes in the statutory and regulatory regime, that individual states cannot address.[36] For instance, the United States has not taken the initiative to address the significant environmental impact of shipping waste overseas.[37] A broad framework similar to that of France and the Netherlands could potentially address the gaps left by the current scheme for tackling climate change.

The EPA and individual states have taken steps that demonstrate how a CE framework would safeguard biodiversity and prevent the spread of climate change.[38] In 2020, the EPA Administrator announced a National Recycling Goal to increase recycling to 50% by the year 2030.[39] Furthermore, in 2022 the EPA released a report titled “Progress in Building a Circular Economy,”[40] which outlined federal sustainability advancements through 2022 in furtherance of a Circular Economy.[41] This included the publication of part one of the Circular Economy Strategy Series, the development of strategies to reduce plastic waste, and general next steps toward building a Circular Economy.[42] In June 2024, the EPA—along with the White House, U.S. Department of Agriculture, and U.S. Food and Drug Administration—released the National Strategy for Reducing Food Loss and Waste and Recycling Organics.[43] This strategy identified four main policy objectives to “build[] a more circular economy for all,” which includes preventing food loss, preventing food waste, increasing recycling for all organic waste, and supporting policies that incentivize and encourage food loss, waste prevention, and organics recycling.[44] Furthermore, the White House released reports that describe CE initiatives to combat climate change.[45]

While legislatively limited, support for a CE transition can be found in new laws and policies such as the CHIPS and Science Act, the Save our Seas Act 2.0, and the Inflation Reduction Act. While significant, these laws are narrow in scope, as they target only specific sectors and often fail to embrace CE as the underpinning policy issue. Thus, the effects are not as robust as necessary to effectuate circularity on a large scale.[46] For example, the 2020 Save Our Seas Act 2.0 specifically addresses marine debris by establishing requirements and incentives aimed at preventing plastic pollution.[47] The Act states that the EPA is responsible for developing a report on how to use plastic in consumer products innovatively.[48] Further, the CHIPS and Science Act identifies the CE transition as necessary to achieve the national science and technology research objectives.[49] In 2022, the White House Office of Science and Technology Policy, inaugurated the Net-Zero Game Changers Initiative stating that a national framework to achieve a CE is necessary and calling on administrative agencies to act in achieving net-zero GHG emissions by 2050.[50] Moreover, the Inflation Reduction Act (IRA) provides incentives for the transition to clean energy,[51] encouraging wind and solar investment.[52] Notably, however, the IRA does not explicitly identify a “circular economy” as the goal.[53] While these policies are essential, they fail to establish a comprehensive framework mandating multi-sector CE compliance. Instead, they only address individual waste-producing processes or list broad CE goal without any enforceable actions. To combat the climate crisis, mandatory CE legislation may prove more effective.

Meanwhile, some states have undertaken CE initiatives that require mandatory compliance. For example, multiple states have total bans on single-use plastics.[54] Illinois recently passed legislation that permits customers to bring reusable containers to restaurants.[55] California passed a bill to address textile waste as a result of fast fashion by creating a framework for textile producers to recycle garments.[56] While state-based policies are moves in the CE direction, to fully realize and effectuate such a paradigmatic shift, the nation will likely need to evolve from the piecemeal approach to one that is grounded in broad federal framework legislation that expansively targets a CE transition.

5. Conclusion

Ultimately, the U.S. pursuit of a CE is not in the global lead, with opportunities for acceleration. At the federal level, action has been primarily undertaken by the EPA via guidance documents and resources, embracing White House goals and policies, with some piecemeal support from the legislature embedded in laws such as the CHIPs and Science Act and the Inflation Reduction Act. A federal legislative CE framework has not yet emerged, compared to France and the Netherlands, which have undertaken broad programs that often mandate compliance across multiple sectors with continued more particularized requirements added to meet needs over time. To transition to a CE at the national level, the United States may need a broad federal law that mandates compliance across multiple sectors.   

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Grace Wright is a 3L from Arlington, Texas. She attended Tulane University for her B.S. in Political Science and Psychology and joined TELJ during her second year of law school.

 [1] Eur. Comm’n, Commc’n from the Comm’n to the Eur. Parl., the Council, the European Econ. And Social Comm. And the Comm. Of the Regions, A New CE Action Plan For a Cleaner and More Competitive Earth, at 3, COM (2020) 98 final (Nov. 3, 2020).

[2] Martin Geissdoerfer et al., A CE—A New Sustainability Paradigm?, 143 J. of Cleaner Prod. 757, 757 (2017).

[3] Id. at 757.

[4] Bridget T. Schuster, As the World Turns: Global Efforts Toward a CE, 37 Nat. Res. & Env’t 28, 28 (2022).

[5] What is a Circular Economy?, Ellen MacArthur Found., https://www.ellenmacarthurfoundation.org/topics/circular-economy-introduction/overview (last visited Feb. 12, 2025) [hereinafter What is a Circular Economy?].

[6] Id.

[7] Id.

[8] Id.; What is a Circular Economy?, Env’t Prot. Agency, https://www.epa.gov/circulareconomy/what-circular-economy (last updated Aug. 26, 2024) [hereinafter CE EPA].

[9] Schuster, supra note 4.

[10] CE EPA, supra note 8.

[11] Fixing the Economy to Fix Climate Change, Ellen MacArthur Found. (Nov. 15, 2022), https://www.ellenmacarthurfoundation.org/news/fix-the-economy-to-fix-climate-change-the-role-of-food-and-mobility [hereinafter Fixing the Economy to Fix Climate Change].

[12] France’s Anti-Waste and CE Law, Ellen MacArthur Found. (Sept. 12, 2022), https://www.ellenmacarthurfoundation.org/circular-examples/frances-anti-waste-and-circular-economy-law [hereinafter France’s Anti-Waste and CE Law].

[13] Fixing the Economy to Fix Climate Change, supra note 11.

[14] CE EPA, supra note 8.

[15] Id.

[16] Framework Law, Sci. Direct, https://www.sciencedirect.com/topics/social-sciences/framework-law (last visited Oct. 16, 2024).

[17] G. Gordon Davis & Jessica Anne Hall, CE Legislation—The International Experience, Reusable Indust. Packaging Ass’n, https://www.reusablepackaging.org/insights/circular-economy-legislation-the-international-experience/ (last visited Feb. 16, 2025).

[18] France produced 4.6 tons of waste per capita and 4.5 million tons of total plastic waste in 2016, causing significant environmental damage where 10,000 tons of waste were dumped into the Mediterranean Sea and 80,000 tons polluted the environment. Annually, the cost of unsold products subsequently destroyed was valued at 630 million Euros. France’s Anti-Waste and CE Law, supra note 12.

[19] See La 2050-105 du loi anti-gaspillage pour une economie circulaire [The Anti-Waste Law for a CE], Journal Officiel de la Republique Francaise [J.O.] [Official Gazette of France].

[20] A French Act of Law Against Waste and for a CE, Euro. CE Stakeholder Platform, https://circulareconomy.europa.eu/platform/en/strategies/french-act-law-against-waste-and-circular-economy (last visited Oct. 16, 2024).

[21] Janet Domenitz, How France’s Anti-Waste Law Targets Plastic Waste at its Source, Frontier Grp. (Sept. 28, 2023), https://frontiergroup.org/articles/how-frances-anti-waste-law-targets-plastic-waste-at-its-source/; see also France’s Anti-Waste and CE Law, supra note 12.

[22] France’s Anti-Waste and CE Law, supra note 12.

[23] See Sylvie Gallage-Alwis, Nancy Forster, & Eva Biezunski, France’s New Anti-Waste Law 1 (2020), https://www.signaturelitigation.com/wp-content/uploads/2020/03/Signature-Litigation-Paris-Briefing-Note-Frances-new-anti-waste-law-March-2020.pdf.

[24] France’s Anti-Waste and CE Law, supra note 12.

[25] Elisabeth Borne and Brune Poirson, The Anti-Waste Law in the Daily Lives of the French People, What Does That Mean in Practice? 8 (2020), https://circulareconomy.europa.eu/platform/sites/default/files/anti-waste_law_in_the_daily_lives_of_french_people.pdf; Domenitz, supra note 21.

[26] Gallage-Alwis, Forster, & Biezunski, supra note 24, at 2; Borne & Brune Poirson, supra note 29, at 27.

[27] Gallage-Alwis and Forster, & Biezunski, supra note 24, at 2.

[28] Id.

[29] Circular Dutch Economy by 2050, Gov’t of the Netherlands, https://www.government.nl/topics/circular-economy/circular-dutch-economy-by-2050 (last visited Oct. 16, 2024).

[30] Id.

[31] The Netherlands Central Government, English Summary National CE Programme 2023-2030, at 4 (2023), https://National+Circular+Economy+Programme+2023+-2030+Summary%20(1).pdf.

[32] Id.

[33] Vivianne Heijnen, National Circular Economy Programme 2023-2030, at 5 (2023), https://NPCE+Circulaire+Economie+rapport+Engels%20(1).pdf.

[34] Schuster, supra note 4, at 29.

[35]  Id.

[36] Jennifer Gentile, Adoption of a CE in the United States, Am. Bar Ass’n (Feb. 8, 2024), https://www.americanbar.org/groups/environment_energy_resources/resources/newsletters/environmental-social-governance-sustainability/adoption-circular-economy-in-us/?abajoin=true.

[37] Id.

[38] See Mark Weick & Nicole Ray, Circular Economy: Navigating the Evolving Global Policy Landscape, EY (Dec. 16, 2022), https://www.ey.com/en_us/insights/chemicals/circular-economy-navigating-the-evolving-global-policy-landscape.

[39] U.S. Env’t Prot. Agency, U.S. National Recycling Goal, https://www.epa.gov/circulareconomy/us-national-recycling-goal (last updated Feb. 22, 2024).

[40] CE EPA, supra note 8.

[41] Id.

[42] U.S. Env’t Prot. Agency, Building a Circular Economy for All: Progress Toward Transformative Change 2–5 (2022),  https://www.epa.gov/system/files/documents/2022-09/EPA_Circular_Economy_Progress_Report_Sept_2022.pdf

[43] See U.S. Env’t Prot. Agency, National Strategy for Reducing Food Loss and Waste and Recycling Organics, https://www.epa.gov/circulareconomy/national-strategy-reducing-food-loss-and-waste-and-recycling-organics (last updated Jan. 24, 2025).

[44] Id.

[45] Sally Benson et al., Advancing a Circular Economy to Meet Our Climate, Energy, and Economic Goals, The White House (July 5, 2023), https://www.whitehouse.gov/ostp/news-updates/2023/07/05/advancing-a-circular-economy-to-meet-our-climate-energy-and-economic-goals/.

[46] Gentile, supra note 38.

[47] Save Our Seas 2.0 Act, Pub. L. No. 116-224, 134 Stat. 1072 (2020); see also Save Our Seas Act 2.0, One Planet (Jan. 31, 2022), https://www.oneplanetnetwork.org/knowledge-centre/policies/save-our-seas-act-20 [hereinafter SOS, One Planet].

[48] SOS, One Planet, supra note 49.

[49] CHIPS and Science Act, Pub. L. No. 117-167, 136 Stat. 1634, § 206(b)(1)(A)(ii) (amending Section 206 of the National Science and Technology Police Organization, and Priorities Act of 1976, 42 U.S.C. 6615); see also Time to Act: Seizing the Potential of U.S. CE Innovation, Ellen MacArthur Found. (June 7, 2023), https://www.ellenmacarthurfoundation.org/articles/time-to-act-seizing-the-potential-of-us-circular-economy-innovation [hereinafter Time to Act].

[50]Time to Act, supra note 51; The White House, U.S. Innovation to Meet 2050 Climate Goals: Assessing Initial R&D Opportunities 5 (2022), https://www.whitehouse.gov/wp-content/uploads/2022/11/U.S.-Innovation-to-Meet-2050-Climate-Goals.pdf.

[51] U.S. Env’t Prot. Agency, Summary of Inflation Reduction Act Provisions Related to Renewable Energy, https://www.epa.gov/green-power-markets/summary-inflation-reduction-act-provisions-related-renewable-energy (last visited Feb. 13, 2025).

[52] Aly Bryan, How the Inflation Reduction Act Will Accelerate the Case for Investing in the Circular Economy in the United States, Closed Loop Partners (Aug. 18, 2022), https://www.closedlooppartners.com/how-the-inflation-reduction-act-will-accelerate-the-case-for-investing-in-the-circular-economy-in-the-united-states/.

[53] Gillian Tett, Why ‘Circularity’ is Missing from the U.S. Climate Incentives Bill, Fin. Times (Feb. 14, 2023), https://www.ft.com/content/8f4ffd3d-c6f6-44ca-a01b-96a6cd5f4ba2.

[54] Gentile, supra note 38.

[55] Id.

[56] Danielle Garno & Vicky Yuan, A Closer Look at California’s Recently Passed Responsible Textile Recovery Act of 2024, Holland & Knight (Oct. 17, 2024), https://www.hklaw.com/en/insights/publications/2024/10/a-closer-look-at-californias-recently-passed-responsible.

Vol. No. 55-2 Water Rights

Water Rights

The U.S. Government Stands on the Opposite Side of the River as a United Group of States: Updates in Texas v. New Mexico and Colorado

1. Introduction

For around a decade, Texas and New Mexico have been in litigation over the distribution of the Rio Grande River’s waters.[1] After years of disputes, a proposed consent decree between the states was thwarted by the federal government’s objection.[2] The  Supreme Court upheld this, recognizing distinct federal interests in the dispute.[3] However, this decision is likely to affect the delicate balance of authority between state and federal governments in future management of interstate water rights.[4]

2. The Rio Grande Compact

The Rio Grande River is one of the most valuable natural resources in the American West.[5] It originates in southern Colorado, flows through New Mexico, and then forms the international border between Texas and Mexico.[6] Controversies over its date back to the 1880’s, when strife arose between irrigators in Mexico and the United States. In 1906, an international treaty between the United States and Mexico allocated 60,000 acre-feet of Rio Grande water to Mexico and prompted “construction by the federal government of a dam at Elephant Butte, New Mexico.”[7] The U.S. government also entered into separate “Downstream Contracts” with New Mexico and Texas to supply water captured and managed by the Bureau of Reclamation via the federal Rio Grande Project irrigation system.[8] To further address interstate water allocation, Colorado, New Mexico, and Texas entered into a temporary agreement called the Rio Grande Compact of 1929.[9] This interstate agreement was negotiated based on the compact clause of the U.S. Constitution, with approval from the federal government.[10] Nine years later the states entered the more permanent Rio Grande Compact of 1938, which remains in effect today.[11]

The Rio Grande is a vital resource to farmers living in the Chihuahuan Desert, spanning Texas and New Mexico, where rainwater is limited.[12] The Compact’s water obligations significantly impact residents of both states.[13] Under the Rio Grande Compact, Colorado must deliver a sufficient quantity of water to New Mexico, which must then enough to the Elephant Butte Reservoir to feed the Rio Grande as it flows into Texas.[14] The required deliveries are “calculated on a sliding scale based on the river flow” as stated in the compact.[15] However, the Compact does not explicitly define how to divide waters “between western Texas and southern New Mexico after New Mexico has met its delivery obligation at Elephant Butte Reservoir.”[16] Within just 20 years of the Compact’s passage, drought and groundwater pumping in New Mexico reduced the water flowing across the New Mexico-Texas border.[17] For much of the last half-century, the two states have been at odds over their fair share of the Rio Grande’s waters.[18]

3. Texas v. New Mexico and Colorado – An Overview

In 2013, Texas sued New Mexico for allegedly violating the Rio Grande Compact.[19]  Texas alleged that New Mexico permitted local entities to pump excessive groundwater, intercepting water from traveling to Texas via the Rio Grande.[20] Texas claimed that such groundwater pumping not only violated the Compact but also infringed on its legal right to groundwater in the Basin that is hydrologically connected to the river.[21] Texas sought “declaratory, injunctive, and monetary relief,” including an injunction commanding New Mexico to prevent further groundwater pumping.[22] In response, New Mexico contended that Compact’s language only obligates it to deliver sufficient water to Elephant Butte, which it asserted it has done.[23] New Mexico refuted the argument that groundwater pumping that depletes water below Elephant Butte is a violation of the Compact.[24]

In 2014, the federal government filed its own complaint against New Mexico and sought to intervene in Texas’s lawsuit.[25]  Like Texas, the federal government challenged New Mexico’s groundwater pumping, arguing that it interfered with the efficiency of the federal Rio Grande Project.[26]  Justice Gorsuch described these claims as “allegations that parallel Texas’s’” in his 2018 Supreme Court majority opinion.[27] The Court held that the United States was permitted to intervene in this case due to its “distinctively federal interests,” but noted that the United States is not automatically entitled to intervene in every dispute stemming from an interstate compact under the Compact Clause.[28] The Court intervention here because: 1) “the [Rio Grande] Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts,” 2) the United States plays an “integral role” in the Compact’s operation, 3) the Compact could jeopardize the federal government’s treaty obligations, and 4) the United States sought substantially the same relief as Texas.[29] In sum, the Court permitted the United States to proceed because the Compact is intertwined with federal projects and treaty obligations, and because the federal government’s claims aligned with those of Texas.

4. The 2024 SCOTUS decision in Texas v. New Mexico to reject the States’ proposed consent decree

As the litigation advanced for around a decade, the federal government’s claims and requested relief against New Mexico remained somewhat consistent, but Texas’ position changed.[30] Rather than continuing to pursue litigation, Texas and New Mexico negotiated a “consent decree” that “updated the method used to calculate the amount of water New Mexico had to deliver downstream,” using a new system of calculations known as the EEPI method.[31] The proposed consent decree would have practically replaced the previous terms of the Compact as the states agreed that being in compliance with the consent decree would be sufficient for the states to also be in compliance with the Compact.[32] The consent decree would “incorporate New Mexico’s groundwater pumping into the Compact” through adopting the new EEPI method to apportion Rio Grande water.[33]

However, the U.S. government objected to this proposed consent decree.[34] The federal government claimed that the states’ proposed consent decree “would dispose of its Compact claims without it consent.”[35]  The U.S. government maintained that it still had valid claims against New Mexico for violating the Rio Grande Compact, regardless of Texas’s choice to pursue a consent decree. The Court was then forced to address whether the federal government could still pursue the same claims in the same litigation, even though no other signatory state to the Compact maintained a claim.[36] A narrow 5-4 majority of the Court held that the United States still had its own valid individual claims under the Compact in this case, and that the proposed decree would unlawfully dispense with them.[37]

The analysis determining whether the United States still had valid Compact claims despite Texas’s desire to settle mostly followed the same reasoning in the 2018 opinion which determined that the United States was permitted to intervene in the litigation. Writing for the majority, Justice Jackson states that “the same considerations that convinced [the Court] to let the [United States] intervene” in the lawsuit led the Court “to conclude that the [United States] still has valid Compact claims[].”[38] Interstate compacts are mainly agreements between the participating States; however, the federal government can engage in compact suits to protect “distinctively federal interests” tied to that compact.[39] With the Rio Grande Compact, the United States still has the same commitments in ensuring the Rio Grande Project’s efficiency, the execution of the Downstream Contracts, and the fulfillment of the treaty with Mexico. The distinct federal interests involved are: “(1) the [U.S.’s] duties under the Project and the Downstream Contracts, (2) the [U.S.’s] integral role in the Compact’s toperation, and (3) the [U.S.’s] treaty obligations.[40]  Although the United States had parallel interests to Texas and brought a similar claim, these interests are “distinctively federal.”[41] Regardless of Texas’s position in the litigation, the Court determined that these interests remained with the federal government.

Moreover, the Court held that as the United States government had valid compact claims and had not agreed to the proposed consent decree, the consent decree would impermissibly dispose of those valid claims.[42] Even though U.S. and Texas interests have diverged, Texas is not permitted to settle with New Mexico via a consent decree if it extinguishes the federal government’s claims without the federal government’s consent.[43] The dissent authored by Justice Gorsuch, who wrote the previous 2018 opinion in this case, expresses concern at this decision. Gorsuch urges that when a consent decree consistent with the Compact has been accepted by the states initially embroiled in the litigation, the federal government’s claims should be extinguished here, and the United States should pursue “any valid independent claims it may have in the lower courts.”[44] Still, despite Gorsuch’s dissent, the majority decision sides with the federal government and directs this ten-year-old lawsuit to continue.

5. The impact of the 2024 Texas v. New Mexico SCOTUS decision

While the most direct impact of the Supreme Court decision in 2024 is that the litigation between Texas and New Mexico will persist, the opinion may provide a broad and powerful example of the balance of power in interstate compact disputes.  The dissent worries that the Court gives the federal government license to undo inter-state efforts to resolve water disputes whenever the United States has sufficient federal interests.[45]  Gorsuch writes that the majority decision disregards the long practice of federal deference to state water law in the management of federal reclamation projects.[46] The impact of this decision shifts the delicate balance between state and federal governments in the management of interstate water resources towards more federal authority and input.  It may therefore be harder to “secure the kind of cooperation between federal and state authorities” in future water rights management issues.[47]

Emily Rogers is the managing partner at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of water and environmental law. She has extensive experience representing cities, river authorities, and water districts in matters involving surface and groundwater rights, water and wastewater utility matters, and industrial and municipal solid waste disposal cases. Emily earned her B.A. in History from the University of Texas, her M.A. in History from Southwest Texas State University, and her J.D. from the University of Houston Law Center.

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University

[1] See Frances Williamson, Water and Federalism in Texas v. New Mexico, 2024 Harv. J.L. & Pub. Pol’y  28, 30 (2024)

[2]  Id. at 31.

[3] Id.

[4] Id. at 33.

[5] Tylynn R. Payne, In (Not So) Deep Water: The Texas-New Mexico Water War and the Unworkable Provisions of the Rio Grande Compact, 52 Tex. Tech L. Rev. 669, 670 (2020).

[6] Douglas R. Littlefield, The Rio Grande Compact of 1929: A Truce in an Interstate River War, 60.4 Pacific Hist. Rev. 497, 497 (1991).

[7]Id.

[8] Frances Williamson, Water and Federalism in Texas v. New Mexico, 2024 Harv. J.L. & Pub. Pol’y  28, 2 (2024).

[9] William A. Paddock, The Rio Grande Compact of 1938, 5 U. Denv. Water L. Rev. 1, 3 (2001).

[10]  Littlefield, supra note 6 at 499, 501, and 512–15.

[11] Id. at 514–15; Colo. Rev. Stat. Ann. § 37-66-101

[12] Payne, supra note 5, at 670–72.

[13] Id.

[14] Williamson, supra note 1, at 30.

[15] Priscilla M. Hubenak and Kellie E. Billings-Ray, Essentials of Texas Water Resources §14.11 (8th ed.  2024).

[16] Id.

[17] Williamson, supra note 1, at 30.

[18] Payne, supra note 5, at 682.

[19]  Texas v. New Mexico, 602 U.S. 943, 947 (2024).

[20] Id. at 951.

[21] Payne, supra note 5, at 683.

[22] Texas, 602 U.S. at 951.

[23] Payne, supra note 5, at 684.

[24] Id.

[25] Texas, 602 U.S. at 952.

[26] Id. at 951–52.

[27] Texas v. New Mexico, 583 U.S. 407, 411 (2018).

[28] Id. at 412–13 (quoting Maryland v. Louisiana, 451 U.S. 725, 724 n.21 (1981).

[29] Id. at 413–15

[30] Williamson, supra note 1, at 3.

[31] Texas, 602 U.S. at 952,

[32] Id.

[33]  Id. at 962 (emphasis omitted).

[34] Williamson, supra note 1, at 3.

[35] Id.

[36] Id. at 955.

[37] Texas, 602 U.S. 943 at 954.

[38] Id.

[39] Id.

[40] Id. at 959

[41]  Id. (emphasis omitted).

[42] Williamson, supra note 1, at 3.

[43] Texas, 602 U.S. at 964

[44] Id. at 979 (Gorsuch, J., dissenting).

[45] Williamson, supra note 1, at 1.

[46] Texas, 602 U.S. at 983 (Gorsuch, J., dissenting).

[47] Id. at 990.