Published: Volume 26, Issue 1 of the Vermont Journal of Environmental Law
By VJEL
November 18, 2024
The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 26, Issue 1. Unlike previous Books, this Volume’s issue contains four student notes. These student notes were chosen for publication with the intention of highlighting students’ academic contributions as the emerging voices of the environmental movement. The notes explore topics ranging from the exploitation of Alaska Native communities under NEPA, takings challenges to California cannabis codes, the ethical and ecological issues surrounding the biomedical horseshoe crab industry, to the injustices of “conservation gerrymandering” and the promise of Indigenous-led conservation models.
VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 26, Issue 1 Publication or by accessing our Current Volume from the navigation header.
Articles:
By Kari Millstein
First, Kari Millstein examines how the National Environmental Policy Act (NEPA) fails to protect remote Alaska Native communities. The Note focuses specifically on the Willow Project, a large oil drilling project located near the Native village of Nuiqsut. It argues that Environmental Impact Statements (EISs) required by NEPA provide inadequate protections for Alaska Natives residing near extraction projects due to their vague requirements and lack of independent research. The Willow Project is a significant oil extraction project in Alaska that poses a threat to the subsistence lifestyle of the Iñupiat Alaska Native community in Nuiqsut, a village situated close to the project site. The Note explores the unique legal circumstances in Alaska concerning Alaska Native land rights and tribal sovereignty, highlighting how these complexities contribute to the vulnerability of communities like Nuiqsut. For example, the Alaska Native Claims Settlement Act (ANCSA) extinguished Native claims to inherent land rights, preventing them from exercising full sovereignty over Alaskan lands and waters. This Note is a call to action for both state and federal governments to address the shortcomings of NEPA and prioritize the well-being of Alaska Native communities facing the threats posed by resource extraction projects like the Willow Project.
Hands Off My Grass: Potential Fifth Amendment Takings Challenges to Cannabis Codes in California
By Caroline Smith
Second, Caroline Smith examines potential Fifth Amendment regulatory takings challenges to local environmentally focused cannabis codes in California. California leads in both environmental and cannabis law. However, no Fifth Amendment regulatory takings challenges have been made to environmentally focused cannabis codes, even though the cannabis industry is subject to more unique and burdensome codes than most industries. This Note examines three potential regulatory takings claims to cannabis codes from Riverside County, the City of Berkeley, and El Dorado County, California. The Note provides recommendations to avoid these potential takings challenges, largely through holistic regulation of all industries. The Note examines how the cannabis industry is susceptible to lawsuits that may destroy local, pro-environment regulation. In conclusion, Smith urges that courts should interpret Dolan proportionality more holistically, and regulators should craft more rounded laws within similarly situated industries.
Blue Blood Money: Draining Horseshoe Crabs for Profit
By Mei Brunson
Third, Mei Brunson argues that current regulations surrounding the biomedical horseshoe crab industry are inadequate and rooted in anthropocentrism, prioritizing human benefit over horseshoe crab welfare. The article focuses specifically on the Limulus amebocyte lysate (LAL) test, which uses horseshoe crab blood to detect endotoxins in injectable drugs and medical devices. The author argues that, with the approval of a viable animal-free alternative, the recombinant factor C (rFC) test, the U.S. should move to completely replace the LAL test. Horseshoe crabs are a vital part of the ecosystem. The biomedical industry harvests nearly a million horseshoe crabs each year from the Atlantic coast to extract their blue blood for the LAL test. This process involves capturing, transporting, bleeding, and releasing the horseshoe crabs, often causing significant stress and injury to the animals. Estimates suggest that 15-30% of bled horseshoe crabs die after being released. The demand for LAL has led to overharvesting, causing a decline in horseshoe crab populations and negatively impacting the species’ reproductive abilities. Despite these concerns, regulations governing the biomedical horseshoe crab industry primarily focus on managing horseshoe crabs as a “fishery resource” rather than protecting their welfare. The Note concludes by calling for a paradigm shift in how society views and treats horseshoe crabs, urging the U.S. to abandon the exploitative practices of the biomedical horseshoe crab industry and embrace animal-free alternatives like rFC.
By Avery E. Emery
Lastly, Avery E. Emery examines the concept of “conservation gerrymandering”, or the practice of creating protected areas (PAs) that are designed to exclude humans, including the Indigenous peoples who have historically lived in and managed these areas. Emery argues that this model of conservation, which is based on a Western, anthropocentric view of nature, is flawed for several reasons. First, it is based on a false premise that nature can be separated from human activity, ignoring the long history of Indigenous peoples’ stewardship of the land. Second, it fails to recognize the importance of Indigenous knowledge and practices for biodiversity conservation. Third, it can lead to human rights abuses, as Indigenous peoples are often forcibly removed from their lands to create PAs. The author also discusses the limitations of the conservation gerrymandering method, including its failure to effectively address threats to biodiversity that originate outside of PA boundaries and the negative ecological impacts of creating PAs with contorted shapes. As an alternative to conservation gerrymandering, the Note advocates for a new conservation framework that centers Indigenous peoples’ sovereignty and knowledge. Specifically, the Note advocates for the adoption of Indigenous Protected and Conserved Areas (IPCAs), which are Indigenous-led and managed protected areas that are designed to promote both biodiversity conservation and the well-being of Indigenous communities. The article highlights the successes of IPCAs in Canada, where they have been shown to benefit both Indigenous communities and the environment. The Note concludes by calling for the widespread adoption of IPCAs as a way to achieve more effective and just conservation outcomes.