About Top 10
Each year, VJEL publishes 10 articles that are considered the “Top 10” most pressing environmental law issues of the year. These articles are co-authored by 10 of our Staff Editors and their selected faculty member or co-author. Staff Editors typically select a faculty member that has extensive knowledge or experience in the field they are looking to write about. Over the course of the fall semester, Staff Editors and their faculty member or co-author will meet and draft an article incorporating the anticipated effects of a particular environmental issue as well as providing creative solutions to that issue. Through this collaborative writing assignment, students have the opportunity to further refine their writing and researching skills.
Gold-Plating vs. Grid Safety: How Cost-of-Service Ratemaking Creates Tension Between Regulators and Utilities and Slows Grid Hardening
VJEL Staff Editor: Michael Murphy
Faculty Member: Genevieve Byrne
The number of wildfires each year is increasing. These wildfires are devastating to communities, cost billions of dollars in damage, and take hundreds of lives—many of which are caused by aging electrical infrastructure. Naturally, the response is to hold the utility liable, especially when these utilities neglect to update their grid infrastructure, despite having their main source of revenue come from these update projects. But these infrastructure plans often get rejected by state and federal regulators because of "gold-plating," or the idea that utilities make grid updates strictly for profit, rather than improving performance. To compensate for this, many utilities charge customers through a cost-of-service model: a biased system that incentivizes utilities to pursue capital-intensive projects over other alternatives, so they can charge customers higher rates to recoup those costs. Instead, policymakers created a new regulatory system, a "performance-based regulation" that compensates utilities for making targeted performance outcomes, rather than a set rate-of-return under the cost-of-service model, incentivizing utilities to perform meaningful upgrades to their grids. As a result of the growing wildfires, customer frustrations, and regulatory overhauls under the Biden Administration, performance-based regulation is growing across the United States.
Americans Must Shift Car Culture: Transportation Policy Can Help
VJEL Staff Editor: Margaret Chafouleas
Co-Author: Monica Nerz, VJEL Editor-in-Chief
In the United States, over 91 percent of households have at least one vehicle, and the daily American life relies on these vehicles. But these vehicles are killing our planet. Not only are vehicles the number one emitter of greenhouse gas emissions, but car accidents are also the leading cause of death for those aged 1-54 in the country. Unfortunately, transportation lobbying is preventing meaningful change. Recent legislation, such as the Infrastructure and Investment Jobs Act (IIJA) helped create some changes and added funding to transportation upgrades, however it still is not enough, as the law still reinforces the car-centric culture. Instead, the U.S. should focus on shifting its policies away from individual cars, and more to mass transit, walkable and bikeable cities, and doing more to increase road safety.
Backlogged Projects May Actually See [and Use] the Light of Day in the Near Future
VJEL Staff Editor: Laura Arboleda Bowie
Co-Author: Chester Harper, South Royalton Legal Clinic Attorney
Renewable energy storage, such as solar, wind, and battery storage waiting to interconnect to major grids total more than what is currently generated on the nation’s grid—yet they still await a lengthy review and permitting process by the Federal Energy Regulatory Commission (FERC). Because of this backlog, FERC promulgated Order 2023 – RM22-14-000 to speed up this process. Key points to the rule include changing the process from a “first-come, first-serve” to a “first-ready, first-served cluster study process”; speeding up the interconnection queue processing by loosening procedural costs and deadlines; and incorporating technological advancements in the interconnection process. Despite the positives, there are some concerns that Regional Transmission Organizations (RTOs), who manage about 60 percent of the U.S. electric power supply, and other independent system operators, may impose steep tariff provisions to recover the costs related to interconnection study penalties previously issued by the old rule or whether utilities can even come into compliance with the new rule within 90 days. Nonetheless, the new rule is a step in the right direction to a greener path towards 80 percent clean energy by 2030.
The Global Stocktake Report: Ensuring Our Future
VJEL Staff Editor: Yanissa Rodriguez
Faculty Member: Derek Walker
Under Article 14 of the Paris Agreement, parties must share an assessment of their implementation of the Agreement, known as the “Global Stocktake” (GST)—the first of which took place at this year’s recent COP28 in Dubai, United Arab Emirates. While many had high hopes, there was a common theme: parties need laws that work while considering the practical concerns of individuals on the ground to implement the Paris Agreement’s goals. Currently, the global community is only reducing emissions by 15-30 percent, so the GST synthesis report created further recommendations ahead of COP28. Such recommendations include further implementing domestic policy, focusing more on mitigation and adaptation measures, and achieving all of these in a just manner, leaving no one behind. With this new information, parties have another five years to adequately respond to achieve Paris goals.
Balancing the Need for Housing and Conserved Land in Vermont
VJEL Staff Editor: Nathaniel Launer
Co-Author: Kesha Ram Hinsdale, VT State Senator
Rural states and communities are trying to balance housing concerns with land conservation, including Vermont. In June, the state passed two important pieces of legislation, the Housing Opportunities Made for Everyone (HOME) Act, which amends planning and permitting requirements to address the housing crisis, and the Community Resilience and Biodiversity Protection Act (CRBPA) to conserve one-third of Vermont’s land by 2030, and half by 2050. Naturally, these two Acts come into contention, but they both require cooperation by various agencies to achieve both goals. But each of these have their own costs and benefits from conserving land, addressing the housing crisis, and environmental concerns. Through the state’s environmental justice policy, however, Vermont can create a path that balances the two programs in a just manner that also protects Vermont’s wild lands.
How Can Maine’s Constitutional “Right to Food” Serve as a Foundation for Prioritizing Food System Resilience Across the State of Maine?
VJEL Staff Editor: Alexander Arroyo
Faculty Member: Laurie Beyranevand
We all need to eat to survive, but is there a “right” to food? In Maine, it is. Maine passed a constitutional amendment in 2021, called the “Right to Food” amendment, to address the high amount of food insecurity and users of state and federal food assistance programs that are vulnerable to political shifts, funding, and increasing disruptions to food systems caused by climate change. But despite producing enough food to support its 1.3 million residents, much of the local food supply is shipped outside the state or consumed by correctional facilities and schools, while importing most of the food used to feed the general population. The amendment promotes individuals to grow crops, raise livestock, and forage and hunt—despite the ever-growing threat by industrial agriculture and corporatization to take over local farms and food systems. Nonetheless, this is a critical first step for Maine to address its fight against hunger in a just and resilient manner and serves as a guide for the rest of the nation.
Fukushima’s Wastewater Problem: Balancing the Ocean’s Health with an Increasing Need for More Low-Carbon Energy
VJEL Staff Editor: Alexander Hume
Faculty Member: Yanmei Lin
Nuclear power provides 10 percent of the world’s energy and can be pivotal in helping countries achieve net-zero emissions—but lack of safe and effective permanent solutions to nuclear waste are roadblocks to further developing energy generation. Adding to this is the volatility of Japanese nuclear reactors, which are susceptible to earthquakes, flooding, and other natural disasters, which could lead to disastrous nuclear meltdowns, as well as emergency response introducing nuclear waste into the world’s oceans. Since the Fukushima Daiichi Nuclear Power Plant disaster in 2011, Japan had been “treating” the collected wastewater to remove radionuclides (except tritium, a radioactive hydrogen isotope that is near impossible to remove). But concerns are growing over whether tritium and other contaminants in the water could have global impacts to fish and other marine species. Japan has an international obligation not to pollute the ocean, but classifying this water as “treated” raises many health and legal questions that need swift assessment and action.
Rising Waters, Rising Solutions: Navigating the Path to Flood Resiliency in a Changing Climate
VJEL Staff Editor: Hannah Weisgerber
Faculty Member: Christophe Courchesne
In 2011, Vermont experienced devastating flooding after Hurricane Irene, and in 2023, torrential downpours inundated the state in floodwaters after an unusually wet season. Both resulted in lost lives, damaged communities long after the events, and severe environmental degradation. And these events are becoming more common across the country. In response, states are developing flood resiliency plans, including the Enhancing Flood Resiliency of Vermont State Lands plan. But legal structures are lacking in land planning and such projects can be significant time and financial investments. But since Hurricane Irene, Vermont reacted by cities purchasing properties in flood zones; rebuilding infrastructure like roads, bridges, and culverts; increased publication of educational materials and outreach through public websites; and encouraged municipalities to take initiative to address flood resilience. Even with these lofty goals, the state still fell short, including no mention of flood resiliency in its Acceptable Management Practices and no established conservation targets for state lands and hydrologic resource zones. This comes as a stalemate between prioritizing forests as working forests for logging or for conservation.
Natural, Native Solutions to Fire
VJEL Staff Editor: Joseph Gerngross
Faculty Member: Mark James
Wildfires pose new risks to communities that they did not previously during pre-Columbian North America, as indigenous cultures had a regular cycle of controlled burns to remove any buildup of highly flammable organic matter. Instead, governments spend billions on fire suppression—though this is changing amidst the growing number of large crown fires in the Western United States, like the Camp Fire in Northern California in 2018, to instead conduct over 50 million acres of controlled burns by the U.S. Forest Service (USFS). Indigenous cultures became keystone species to managing healthy ecosystems with controlled burns, but this clashed with settlers’ views of property ownership. Now, some indigenous tribes are working cooperatively with local governments to bring back controlled burns—but this is not enough. Despite the growing recognition of these traditional fire practices, their widespread use is almost nonexistent, even with USFS’s goal to create a safer fire regime for Americans.
Bon Appétit: Regulating the Microplastics You Eat
VJEL Staff Editor: Hanna Walker
Faculty Member: Mia Montoya Hammersley
Plastic is present in nearly every aspect of our lives: food packaging, clothing, and cosmetic products, to name a few. Each year, over 400 million tons of plastic ends up in landfills, water bodies, and the environment, and this amount could triple by 2060. Despite the sheer volume of plastics, recycling is not enough to reduce waste, especially as oil-rich nations continue to push for more production. Plastic pollution is so prolific that the United Nations is in the midst of drafting a new global agreement addressing it. As plastics accumulate in the environment, they break down into smaller pieces called microplastics, which can enter the human body in ways most could not imagine, such as chopping vegetables on plastic cutting boards, twisting the cap off and drinking from a soda or water bottle, or drinking from contaminated water supplies—most commonly found in environmental justice communities. These plastics act as inhibitors for beneficial bacterial growth in our digestive system and are endocrine disruptors that interfere with the body’s natural hormones for growth, reproduction, metabolism, sleep, and stress response. Addressing plastics has occurred at all political levels, from cities, states, to the federal government, all at varying degrees, however more efforts are needed to address the large volume of plastic in our daily lives, including the upcoming UN treaty and domestic policies.
Message from the Director
Jennifer Rushlow, Director of the Environmental Law Center and Dean of the Maverick Lloyd School for the Environment
On the other side of this new year is the official beginning of the 2024 presidential election cycle, with primaries just a few weeks away, and with predicted presidential candidates that are the same ones we had in the 2020 election. Wash, rinse, repeat. We have seen some gains in that time, like the passage of the Inflation Reduction Act. But we’ve also seen some devastating losses, such as Obama’s Clean Power Plan eagerly shredded by a majority of justices in the U.S. Supreme Court. Meanwhile, as we lash back and forth in high levels of government, the day-to-day impacts of climate change mount. Each year, it seems that this Top Ten list has more and more entries related to flood and fire damages and heaps on heaps of evidence on who bears the disproportionate brunt. Here in Vermont, there’s hardly enough time to recover from one historic flooding event before the next occurs.
As may be evident, it is a sobering task to write this letter each year. As I reflect on the year behind and the one ahead, it can feel like we are really stuck. But when things get scary, we must look for the helpers, as Mr. Rogers’ mother would say. They are easy to find around here at Vermont Law and Graduate School, with so many students that have committed themselves to law and policy reform in the name of environmental sustainability and justice. The ten students who worked hard on these Top Ten entries, for instance, who will take what they learn and go off to make change for years to come. The incredibly brave youth from California that, as of press time, had just filed the next federal Our Children’s Trust lawsuit. The indigenous women that traveled to COP28 to educate policymakers and showcase adaptation solutions like growing food on floating farms in Bangladesh, India, and Cambodia to escape rising soil salinity. There are so many helpers. We hope this latest entry of the Top Ten list will highlight some battles and perhaps some tools, but for all of our sakes, it should not limit the strategies we choose—because what we’re seeing on the near horizon, frankly, isn’t enough.