Washington Law Review


In an era of apprehension about climate change and the future of our planet, private companies are increasingly recognizing their role in increasing sustainability and lowering carbon emissions. To address this growing concern, some industry leaders are taking unilateral action to implement sustainable practices, but other companies have made agreements to fight emissions together. However, the Sherman Antitrust Act forbids agreements in restraint of trade. Further, antitrust law traditionally has refused to recognize ethical or moral justifications as legitimate reasons to permit anticompetitive agreements. As society’s concern for the planet grows and elected leaders move slower than needed to address climate problems, private sector actions take on a special urgency—especially given the massive carbon emissions stemming from corporate activities. This Comment reexamines the constructs and restrictions of antitrust law and identifies a solution that will allow companies to enter agreements aimed at addressing climate change while still upholding antitrust law’s primary goal: consumer welfare. Specifically, this Comment proposes an exemption to antitrust law for agreements addressing climate change based on new Dutch guidelines and also provides a framework for companies to combat antitrust challenges to sustainability agreements absent an explicit exemption.

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