2024 TOP 10 BLOG

Americans Must Shift Car Culture: Transportation Policy Can Help

VJEL Staff Editor: Margaret Chafouleas

Co-Author: Monica Nerz, Editor-in-Chief, Vermont Journal of Environmental Law, Volume 25

The world’s first Sustainable Transport Day was recently celebrated on November 26, 2023, reflecting a historic shift in the global mindset towards sustainable transportation and development. According to UN Secretary-General Antonio Guterres, the day “remind[s] us that the road to a better future depends on cleaner and greener transportation systems.” The UN reports that shifting from cars to public transportation alone can reduce up to 2.2 tons of carbon emissions annually per individual.

For most Americans, however, daily transportation relies solely on cars. In the United States, 91% of households have at least one car, and more than three-quarters of commuters drive to work alone every day. Driving is inherent to American culture, and its reliance on cars is killing the planet. Cars are a major source of carbon dioxide, a heat-trapping gas that is well-known to cause anthropogenic climate change, and the transportation sector is the largest contributor of greenhouse gas (GHG) emissions in the U.S., which predominantly comes from cars and trucks.

Not only are emissions from cars warming the planet, but car accidents are the leading cause of death in the U.S. for people ages 1-54. Cars pose a clear environmental and safety risk to people across the country. So, why do we keep using them?

It’s no surprise that American dependence on cars is partially due to the lack of safe and efficient transportation alternatives, like walking, biking, and public transit. Forty-five percent of Americans have no access to transit, and U.S. cities are less walkable than their international counterparts. This is because cars are prioritized in U.S. transportation infrastructure. The construction of highways, urban planning strategies that result in urban sprawl, and insufficient funding and planning for public transit projects on the local, state, and federal levels all contribute to car dependency.

These transportation infrastructure decisions are not an accident. Deliberate lobbying from the automotive and fossil fuel industries has historically targeted public transit and transportation policy and continues to do so today. Transportation policy is not politically neutral, but it is essential to the fight against climate change. Future transportation infrastructure decisions will either serve to perpetuate American’s disproportionately enormous climate impact, or help reduce it. Building transportation infrastructure that serves people, and not cars, requires effective climate-conscious and people-centered transportation policy.

The 2021 Infrastructure Bill Is Not Enough

This issue is particularly relevant now, as the rollout of the $1.2 trillion Infrastructure Investment and Jobs Act (IIJA) begins. IIJA, passed in November 2021, is a comprehensive piece of legislation that aims to upgrade the country’s infrastructure, including the transportation sector. IIJA allocated historic amounts of funding for several transportation-related projects, like $109 billion for transit, $102 billion for rail, and $432 billion for highways. With a focus on climate change and substantial investment in electric vehicle infrastructure, IIJA marks Congress’ initial and notable step toward promoting sustainability in U.S. infrastructure development.

However, IIJA is not the perfect solution to America’s car-dependency problem. Although IIJA’s historic investment in infrastructure will enhance safety and update deteriorating transit systems, it falls short of President Biden’s initial presentation as a groundbreaking environmental policy. Further policy is needed to specifically address transit accessibility, highway removal, and provide support for urban planning in cities.

Focusing Transit Policy for Real Outcomes

Firstly, IIJA does not make any fundamental changes to existing transit policy, despite increasing funding for transit projects by 79%. Although more funding is undoubtedly a win for sustainable transportation policy advocates, the policy provides no guidance on how that money may be spent. Instead, IIJA reinforces the goals of its predecessor, the FAST Act.

The largest amount of the funding for transit is allocated to the Capital Investments Grant Program. This program allocates money to state and local governments to develop their own high-capacity transit service. Without clear guidance on what projects are eligible for funding, deference to state and local governments may not lead to a meaningful decrease in car-dependency and creates a risk of allowing ineffective transit initiatives.

Instead, policy should favor transit projects that give, as Transportation 4 America advocates, “as many people as possible greater access to high quality transit, helping to keep the growth of emissions and vehicle miles traveled in check.” Policy that funds new transit projects should also explicitly guide state and local governments towards repairing inequities to transit system access.

Additionally, although IIJA provides a large increase in funding for transit projects, the amount still falls short of what is needed to institute real change. The American Society of Civil Engineers estimates that the current backlog of transit investments considering vehicles, facilities, and rail track that are past their useful lives to total over $176 billion. For example, in Chicago, a project to modernize the red and purple bus line is projected to cost $8.7 billion over 10 years. IIJA commits only $39 billion to funding new local public transit nationwide. Meaning, a project like Chicago’s alone uses over 20% of the allocated budget.

Investing In Highway Removal Instead of Reinforcing Interstate Infrastructure

Secondly, IIJA reinforces transportation infrastructure built for a car-centric country by allocating a historic amount of funding for highway spending. Highways pose environmental and social issues that are contrary to the goal of creating a more sustainable, less car-centric transportation system. The U.S. Interstate Highway System is a huge player in the car-dependency conversation. The 1956 Highway Act, signed by President Dwight D. Eisenhower, authorized the construction of 40,000 miles of highways, solidifying the nation’s commitment to infrastructure for cars and trucks at the expense of people. These highways played a pivotal role in shaping the U.S.’ transportation landscape and significantly contributed to making Americans more car-dependent.

Interstates were designed for swift access to and from city centers, facilitating the ‘white flight‘ phenomenon in the 1950s and 1960s. This development favored affluent white commuters, leading them to reside outside urban centers. As a result, suburban communities flourished, where car ownership was not just a convenience, but a necessity.

However, highway construction directed in urban areas exhibited racial and socioeconomic biases. Highways in urban areas were deliberately constructed directly through poor neighborhoods where citizens were under-resourced and unable to fight back against displacement. This resulted in over 1 million Americans being forced out of their homes in the name of urban renewal in just two decades. Displacing minority communities and causing property values to further plumet in poor neighborhoods was done in the explicitly racist name of “slum clearing.”

Congress recognizes the harm that highways cause to American communities and our environment. However, IIJA allocates only $1 billion for reconnecting communities separated by highways. This investment is only one-tenth of what is recommended by advocacy organizations, and one-twentieth of what was originally proposed in the House. The $1 billion allocated is a band-aid solution to the broader issue of highways in the U.S. and is negated by the large amount of money allocated for highway spending. Further investment in highway removal projects is necessary to usher in a new era of sustainable transportation policy.

Policy to Plan Cities for People, Not Cars

Lastly, to reduce car-dependence, future policy should support and guide state and local governments on how to build more walkable and bikeable cities. During the highway boom of the 1950s and 1960s, cities shifted towards urban design decisions that accommodated people driving in from the suburbs in their cars, resulting in car-centric planning. Car-centric planning choices include the construction of parking lots, wider roads, and sprawling shopping centers.

Investing in walk and bike-ability is an effective way to decrease car dependency. For example, in Philadelphia, a project to create miles of protected bike lanes led to a nearly 70% increase in the number of people who biked to work from 2010 to 2017.

IIJA provides $6 billion for road safety programs, titled “Safe Streets and Roads For All.” This provision dictates that, “at least 15 percent of a state’s highway safety improvement program funds to address pedestrians, bicyclists and other non-motorized road users if those groups make up 15 percent or more of the state’s crash fatalities.” Local governments already have, and should continue to use this policy to promote safer street development for walking and biking pedestrians. When the time comes to renew the IIJA, pedestrian safety measures must be re-emphasized so that pedestrians are prioritized in transportation infrastructure.

To Conclude, Shifting Car Culture Is Possible

While IIJA is generally a positive step for funding projects that can potentially reduce car-dependency, most importantly, its effectiveness in addressing emissions reductions from transportation will depend on how the funds are allocated and implemented at the state and local levels. Future policy should further incentivize equitable public transit, highway removal, and pedestrian-centric urban development.

Just because America’s transportation systems are built to prioritize cars now, doesn’t mean they have to be in the future. People across the country are fighting against dated transportation infrastructure practices already, and resistance has proven successful. Shifting American car culture is doable: policymakers must prioritize it in order for our country to reduce its climate impact.

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2024 TOP 10 BLOG

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 annual number of wildfires in the United States is increasing. These wildfires devastate communities, cause billions of dollars in damage, and claim the lives of hundreds of American citizens. Aging and worn-out electric grid infrastructure is a major cause of these fires. In 2020 alone, grid infrastructure caused over two thousand wildfires in the United States.

When poorly maintained grid infrastructure causes a wildfire, the natural response is to hold the responsible utility liable and seek payment for damages. This response is warranted when utilities ignore the need for grid hardening and fail to make needed improvements to their infrastructure. However, bankrupting utility companies does little to prevent future grid-related catastrophes. Furthermore, the idea that utilities are ignoring grid hardening is strange when you consider how most utilities earn revenue—by spending money on grid improvements. So why wouldn’t utilities be actively improving the safety of the grid? Well, regulators sometimes deny grid hardening proposals for perceived “gold-plating.” Gold-plating refers to the idea that utilities might make excessive grid upgrades strictly for profit, and not to enhance grid performance. Is it fair to hold utilities liable for wildfires in instances where regulators denied their grid hardening proposals?

This article will explain utilities earn revenue through traditional cost-of-service (COS) ratemaking; provide an example of a wildfire caused by aging grid infrastructure; discuss an instance where a utility is facing resistance to grid safety updates; and describe an alternative approach to COS.

Cost-of-Service Ratemaking

Regulating electric utilities in a COS ratemaking setting increases their revenue in two ways: increasing the volume of electricity they sell or investing in infrastructure. Utilities are permitted to pass the costs of building infrastructure on to ratepayers, plus an additional percentage they keep as profit. Utilities are free to choose which grid investments are worthwhile and can recoup their costs through rates so long as their local regulators believe the investments are “prudent and reasonable.” However, traditional COS regulation can incentivize “capex bias,” wherein utilities prefer to pursue capital-intensive projects over other alternatives, even if the alternatives would save ratepayer dollars.

The Camp Fire, Butte County, California 2018

Despite the fact that most utilities make money by investing in grid upgrades, grid infrastructure is still unsafe and continues to cause wildfires in the United States. On November 8th of 2018, transmission line equipment malfunctioned in Butte County, California, igniting the fifth deadliest wildfire in United States history, known as the “Camp Fire.” By the time the Camp Fire was fully contained on November 25th, the fire had claimed the lives of 85 people, burned almost 20,000 buildings, and charred over 150,000 acres. Investigations discovered that PG&E had failed to properly maintain the transmission line that caused the fire. The line was almost 100 years-old, and was located in a windy, dry forest.

Butte County Superior Court issued severe penalties to PG&E for the Camp Fire. PG&E’s former CEO, Bill Johnson, pleaded guilty to 84 counts of involuntary manslaughter incurring $3.5 million in fines as part of the criminal plea. In addition, the court ordered PG&E to pay $500,000 toward the county’s investigation costs. In separate proceedings, the California Public Utilities Commission (CPUC) fined PG&E almost $2 billion. Overall, PG&E estimated its wildfire liability to be about $30 billion for both the Camp Fire and an additional fire from the previous year. Ultimately, PG&E filed for bankruptcy in January of 2019 and emerged in 2020 after restructuring their business.

Resistance to PG&E’s Grid Safety Updates in the Wake of the Camp Fire

To prevent future disasters like the Camp Fire, PG&E wants to bury its power lines. PG&E hopes to build over 10,000 miles of power lines over the next decade and proposed an initial 2,100 miles of line to underground. Unfortunately, regulators and concerned ratepayer advocacy groups resisted these safety upgrades, preferring that PG&E add protective covering to their transmission lines rather than burying them. While protective covering is both cheaper and faster to implement, this solution is not nearly as safe as burying the lines. PG&E claims that burying power lines reduces the chance of wildfire by 99%, while adding protective covering only reduces this risk by 62%.

While CPUC regulators did not explicitly accuse PG&E of gold-plating, it was certainly implied. Critics of the plan scoffed at the idea of PG&E earning additional profits for its undergrounding project, which would raise customer rates an average of nearly 18%. However, the alternative solution of adding protective covering is significantly less effective at preventing wildfires, which are themselves extremely costly and dangerous. Furthermore, wildfire risk itself has repercussions. In the past year, seven of the top twelve insurance companies doing business in California have either paused or restricted new business in the state because of wildfire risk.

In a decision last month, CPUC finally approved a compromise: PG&E will bury 1,230 miles of power lines, reducing the original proposal by $1.7 billion (and nearly 1,000 miles of line). About 16 million California ratepayers will face bill increases averaging more than $32 per month to cover the costs of this investment.

An Alternative to Cost-of-Service Ratemaking: Performance-Based-Regulation

So, what are utilities to do? If they propose long-term, safety-oriented solutions to grid maintenance, they may be accused of seeking to increase their bottom-line at the expense of ratepayers. If they succumb to ratepayer or regulator pressure and implement short-term, low-cost safety measures, they expose themselves to unbearable liability. Meanwhile, unsafe grid infrastructure continues to cause devastating wildfires. With utility options restricted under the traditional regulatory framework, the burden of fixing the grid has shifted to policymakers.

In response, policy makers have created a new regulatory framework called “performance-based regulation” (PBR). PBR compensates utilities for making progress towards targeted grid performance outcomes, rather than providing them with a set rate-of-return. In a PBR setting, the better the power system performs, the more revenue the utility earns. As Connecticut Governor Ned Lamont put it, these utilities “don’t just get paid an automatic 9% whether [they] do good work or bad work, [they] get paid for doing good work.” This framework creates a strong incentive for utilities to fix or upgrade their existing infrastructure to optimize the power system’s performance and reliability. This framework also eliminates the perception of gold-plating, because the amount of money a utility makes is tied to performance outcomes rather than infrastructure spending.

Another important feature of PBR is that it incentivizes demand-side measures like distributed energy resources (DERs) and energy efficiency (EE). These resources make the grid safer, more reliable, and more affordable. For example, EE measures reduce the overall load on the grid, which eases the burden on transmission infrastructure. When transmission lines are overloaded, they can overheat and sag. Sagging lines are more likely to contact vegetation, which can cause fires and blackouts. Reducing the overall load on the grid reduces the chances of the transmission lines sagging, and thus reduces the likelihood of wildfires and blackouts. In addition to these safety benefits, EE improvements decrease ratepayers’ electric bills because energy-efficient structures take less electricity to heat and cool.

Perhaps the most important feature of PBR is that it is proactive, whereas COS is reactive. COS incentivizes utilities to sell as much electricity as possible and build as much infrastructure as possible, without necessarily considering reliability. When grid infrastructure causes a wildfire in a COS jurisdiction, the utilities react by engaging in grid hardening. In a PBR jurisdiction, on the other hand, utilities are incentivized to harden the grid before a catastrophe like a wildfire.

Stakeholders in California recognize that the state’s COS regulation is an impediment to major electric distribution system reform, but hope “a new performance-based paradigm can eventually allow utilities to make money by saving money.” Further, while PG&E could still face liability for future fires, the California Supreme Court recently ruled that the utility cannot be held responsible for customer losses when it proactively shuts off power to address safety concerns.

Conclusion

Overall, PBR is an important step nationwide toward hardening the grid and improving grid resilience, while managing ratepayer costs. So far, at least 17 states and the District of Columbia have moved away from traditional revenue structures and towards PBR. Recognizing the importance of improving grid safety and resilience, the Biden administration recently allocated billions of dollars to states for grid performance and reliability projects. An expedited transition to PBR could not only reduce the frequency of grid-related wildfires, but also ease the tension between regulators, utilities, and ratepayers.

2024 Watch List #2 >>

Fall 2023 Symposium

We're Bringing Nature Back: Nature-Based Solutions to Climate Change

Saturday, November 18, 2023

Chase Community Center, Vermont Law School, South Royalton, VT

The Vermont Journal of Environmental Law is pleased to announce our Fall 2023 symposium being held on November 18, 2023. The event will be held virtually and in person from with registration beginning at 8:00am and panels from 9:00am to 5:00pm in the Chase Community Center.

This year’s symposium will foster a positive, solutions-oriented dialogue around restoring natural ecosystems to fight climate change and address social challenges using nature-based solutions. This symposium will include four panels: International Implementation, Blue Carbon, Biodiversity, and Indigenous Contributions.

In addition, there will be a silent auction for the duration of the symposium, with proceeds benefiting the VLGS Animal Law Society and the White River Land Collaborative.

For more information, please don’t hesitate to contact symposium editors:

JenniferBass@vermontlaw.edu and KatlynSchafer@vermontlaw.edu

Free and open to the public and press. CLE credits available.

Event Link:

https://www.vermontlaw.edu/vjel-2023

Schedule:

Click here for a more detailed schedule.

8:00am – Registration

8:30am – Welcome and Land Recognition Presentation

- Welcome remarks from VJEL
- Presenter: Rich Holschuh

9:00am – Panel 1: International Implementation

- Moderator: Professor Yanmei Lin, Deputy Director, VLGS U.S.-Asia Partnership
- Speakers: Zhiyu Huang, Margot Clarvis, Dr. Fabiano de Andrade Correa

10:15am – Creating Just Transition in Agriculture: The 10 Agroecology Principles

- Presenter: Ilinca Johnson

10:30am – Panel 2: Indigenous Contributions to Climate Solutions

- Moderator: Professor Mia Montoya Hammersley, Director, VLGS Environmental Justice Clinic
- Speakers: Missy Crow, Rebecca Jim, Earl Hatley, Vickie Sutton

11:45am – Wetland Function of Chadwick Meadows in Sutton, New Hampshire

- Presenter: Alexander Simoneau

12:00pm – Keynote Address

- Keynote Speaker: Mary Wood, University of Oregon School of Law

1:40pm – A Vision for Community Based, Collaborative, and Sustainable Farming

- Presenter: White River Land Collaborative

2:00pm – Panel 3: Biodiversity

- Moderator: Professor Delcianna Winders, Director, VLGS Animal Law and Policy Institute and VJEL Faculty Advisor
- Speakers: Mackenzie Landa, Jamey Fidel, Jennifer Rubis, VT Representative Amy Sheldon

3:15pm – How Municipalities Can Utilize Nature-Based Solutions for Flood Resilience

- Presenters: Christina Ramsey, Ashton Danneels

3:30pm – Panel 4: Blue Carbon

- Moderator: Professor Pat Parentau, VLGS Professor Emeritus
- Speakers: Anastasia Telesetsky, Cymie Payne, Mark Ram, Adam D. Orford

4:45pm – Closing Remarks from VJEL

VJEL Newsroom

Announcing VJEL’s 2023 Symposium: We’re Bringing Nature Back (Nov. 18th)

By VJEL

November 13, 2023

The Vermont Journal of Environmental Law is pleased to announce its upcoming symposium, “We’re Bringing Nature Back,” on November 18, 2023, from 9 a.m. to 5 p.m. This year’s symposium is set to inspire an influential and forward-thinking conversation on the restoration of natural ecosystems as a key strategy to battle climate change and tackle social challenges. This year’s event will have an influential keynote speaker and four dynamic panel discussions, each exploring critical aspects of nature-based solutions.

This year’s symposium features Professor Mary Christina Wood from the University of Oregon Law School as the keynote speaker.

Mary Christina Wood is the Philip H. Knight Professor of Law at the University of Oregon and serves as the Faculty Director of the law school’s nationally acclaimed Environmental and Natural Resources Law Center. She is an award-winning professor and a co-author of leading textbooks on public trust and natural resources law. Professor Wood is a frequent speaker on climate issues. She has garnered both national and international attention for her pioneering sovereign trust approach to global climate policy. Her expertise and contributions to the environmental law field make her a distinguished and influential figure in environmental and natural resources law.

This keynote address promises to offer profound insights into the innovative legal approaches necessary to combat climate change and to effectively restore ecosystems. Additionally, her keynote address is set to appear in Volume 25 of the Vermont Journal of Environmental Law.

International Implementation Panel: A Global Perspective on Nature-Based Solutions

The International Implementation panel will scrutinize the diverse definitions and applications of nature-based solutions on an international scale to address climate change. By examining the various approaches and policies adopted by different countries, the symposium aims to lay the groundwork for developing universal best practices for the betterment of our planet.

Moderator: Professor Yanmei Lin, Deputy Director, U.S.-Asia Partnership for Environmental Law, VLGS

Panelists:

Margot Clarvis, Head of Nature Based Solutions, C-Quest Capital

Deandrade Fabiano, Chair, IUCN World Commission

Zhiyu Huang, Associate Professor, Law School of Nanchang University, China

Indigenous Peoples Contributions to Climate Solutions Panel: Honoring Indigenous Wisdom

In many instances, nature-based solutions derive their success from the effective incorporation of Indigenous knowledge. This panel recognizes the indispensable role of Indigenous communities in ensuring the long-term sustainability of nature-based solution initiatives. The panel advocates for empowering Indigenous communities to lead decision-making processes, acknowledging their deep-rooted wisdom as a cornerstone of effective climate solutions.

Moderator: Mia Montoya Hammersley, Director of the Environmental Justice Clinic, VLGS

Panelists:

Missy Crow, Southeast Regional Representative, Indigenous Environmental Network

Rebecca Jim, Founder, Local Environmental Action Demanded (L.E.A.D) Agency

Earl Hatley: Co-Founder and President, Local Environmental Action Demanded (L.E.A.D.) Agency

Vickie Sutton, VLGS: Founding Member of the National Congress of American Indians, Policy Advisory Board

Biodiversity Panel: Safeguarding Diversity for Climate Resilience

The Biodiversity panel will delve into the pivotal role that preserving biodiversity plays in the fight against climate change. Biodiversity is not merely an element of ecosystems, but an indispensable component of nature-based solutions projects’ long-term viability. Considering the alarming exponential loss of species, the symposium will underscore the urgency of conserving as many species as possible to strengthen our collective capacity to combat climate change.

Moderator: Professor Delcianna Winders, Director, Animal Law and Policy Institute, VLGS

Panelists:

Jamey Fidel, JD/MSEL’01, General Counsel and Forest & Wildlife Program Director, Vermont National Resources Council

Mackenzie Landa, LLM’16, Policy Advisor, U.S. Department of the Interior

Jennifer Rubis, Indigenous People Specialist, Green Climate Fund

Amy Sheldon, Vermont State Representative for Addison County

Blue Carbon Panel: Unleashing Ocean and Coastal Ecosystem Restoration

The Blue Carbon panel will focus on the many benefits of ocean and coastal ecosystem restoration, shedding light on the broad range of advantages beyond climate change mitigation. The discussion includes insight into how legal frameworks can create a variety of restoration projects that have far-reaching benefits for both humanity and ecosystem health.

Moderator: Pat Parentau, Professor Emeritus, VLGS

Panelists:

Dr. Adam Orford, Assistant Professor at the University of Georgia School of Law

Cymie Payne, Associate Professor, Rutgers University

Mark Ram, Lecturer, Department of Biology, Faculty of Natural Sciences, University of Guyana, South America

Anastasia Telesetsky, Professor of Law, California Polytechnic State University

Presentations Between Panels: Bringing Nature-Based Solutions to Life

The symposium will also host speakers for short presentations between panels:

Creating Just Transition in Agriculture: the 10 Agroecology Principles

Ilinca Johnson: JD’26

Wetland Function of Chadwick Meadows in Sutton, New Hampshire

Alexander Simoneau MFALP’24

A Vision for Community Based, Collaborative, and Sustainable Farming

White River Land Collaborative

How Municipalities Can Utilize Nature Based Solutions for Flood Resilience

Christina Ramsey JD/MCEP’25 and Ashton Danneels JD/MELP’25, Staff Editor, VJEL

In addition, there will be a silent auction fundraiser running throughout the duration of the symposium. Proceeds will benefit the VLGS Animal Law Society and the White River Land Collaborative. Winners will be announced after the final panel.

The Vermont Journal of Environmental Law’s symposium promises to be an influential event. The symposium will bring together thought leaders, experts, and advocates from diverse fields to explore innovative approaches for addressing climate change, restoring ecosystems, and tackling societal challenges. Through these panel discussions, attendees will gain valuable insights into the pressing issues of our time and contribute to forging a sustainable path forward using nature-based solutions.

Event Details:

Date: Saturday, November 18

Time: 8 a.m. registration and opening remarks, panels begin 9 a.m. to 5 p.m. ET

Location: Chase Community Center

Livestream: Available at https://vermontlaw.edu/vjel-2023

For a full schedule of the Symposium, visit the Vermont Journal of Environmental Law’s Symposium page: https://vjel.vermontlaw.edu/fall-2023-symposium.

Questions?

For inquiries, please contact: nbssymposium@vermontlaw.edu

Or reach out to Jennifer Bass at JenniferBass@vermontlaw.edu or Katlyn Schafer at KatlynSchafer@vermontlaw.edu

For more about the Vermont Journal of Environmental Law, read our About page.

VJEL Newsroom

Published: Volume 25, Issue 1 of the Vermont Journal of Environmental Law

By VJEL

November 8, 2023

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 1. Issue 1 features two Articles and two Student Notes, ranging from concerns of fast fashion and its contribution to microplastics in the environment; international self-determination in the context of climate change; risk communication using the East Palestine train wreck as a case study; and the captivity of orcas. VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 1 Publication or accessing our Volume 25 Publications from the navigation header.

Articles:

Overdressed and Underregulated: How the Fashion Industry’s Extreme Plastic Pollution Can be Linked to a Lack of Supply Chain Regulation

By Emma Ross

What if your clothing is leaving little trails of plastic everywhere it has been? Emma Ross examines the regulation of the global fast fashion supply chain with respect to the accumulation of microplastics in the environment.

She surveys the existing legal framework, concluding that it is entirely insufficient for addressing fashion retailers’ contributions to microplastics pollution. We may focus on the packaging that our clothing comes in, but what about the pollution that comes from our clothes themselves? Ross gives us a backstory of how the fashion industry emerged, and why it continues to stay where it is. She dives into issues such as globalization and the need to remain profitable, which means driving production costs down.

From there she pivots to what changes are being made, and specifically which changes are helpful. Ross goes on to summarize management guidelines such as extended producer responsibility (EPR) and closed-loop supply chains (CLSCs) before asserting that incorporating facets of both concepts into federal legislation would provide the most concise and effective solution.

Shifting Borders, Submerged States, and Novel Human Rights Claims: How Climate Change Impacts Could Help Remedial Secession Crystallize into Customary International Law and Bring Oppressed Peoples Closer to Independence

By Joe Udell

There exists an ongoing discussion of whether the “right to self-determination” provides oppressed peoples with the ability to secede under international law. Udell takes the right to self-determination analysis further by applying the increasingly severe climate-related impacts to support an argument under that theory.

Udell gives us a background of the history of self-determination and its traditionally opposing viewpoints for maintaining stable nations. He provides counters to these viewpoints, and describes why this shift in thinking is necessary due to the impacts of climate change.

Under such a theory, the author explains, oppressed peoples would argue that their human rights have been sufficiently violated to justify their secession from a parent state. Udell concludes by noting several notable developments arising from the nexus of human rights and the environment that could benefit those pursuing secession under international law. This includes the potential recognition of ecocide as a crime under the Rome Statute of the International Criminal Court, the growing rights-of-nature movement, and the United Nation’s recent recognition of the human right to a healthy environment. With this, Udell calls on future scholarship to further examine these ecocentric legal shifts and how they can represent feasible avenues for those oppressed.

Student Notes:

Train Wreck: Public Risk Communications in the Wake of the East Palestine Derailment

By Lindsay Matheos: 3L at City University of New York School of Law.

Examining the February 2023 train derailment in East Palestine, Ohio, this Note suggests that inherent gaps exit in the regulatory framework governing communications of risk.

This Note highlights the role of East Palestine as a “railside” community in America’s Rust Belt, asserting that such communication failures are only one aspect of a broader trend of failures to meaningfully include Rust Belt communities in the political process. Historically, Matheos argues, most political agendas have largely ignored the Rust Belt, and the events in Ohio show exactly that.

Matheos then examines how gaps in the existing federal risk communications framework make Rust Belt communities more susceptible than others to failures in communication. Additionally, these failures in communication serve as a symbol of the neglect East Palestine has faced, leaving this area under-resourced and ill-prepared. Matheos concludes by proposing several recommendations, including increased corporate responsibility, as part of a composite strategy for filling these regulatory gaps.

Toki’s Tale: A Comprehensive Analysis of the Statutory Hurdles to Seaside Sanctuary Creation in the United States

By Nicholas Govostes: 3L at VLGS, Articles Editor for VJEL, and Winner of Volume 24’s Note competition.

Tokitae the Orca spent over fifty years in captivity before she passed away in August of 2023. To put a stop to this, “seaside sanctuaries” could be a solution for re-homing marine mammals currently living in captivity. Various legal hurdles exist that prevent seaside sanctuaries.

Govostes’s Note addresses ongoing attempts to re-home marine mammals, both successful and unsuccessful. He guides us through federal statutes that a solution like seaside sanctuaries would have to navigate including the Endangered Species Act, Marine Mammal Protection Act, and Animal Welfare Act.

This Note considers pertinent policy implications of such solutions, including increasing public opposition to the housing of marine mammals in captivity, while also highlighting the opinions of Indigenous communities in the United States. Govostes concludes by proposing a host of variably robust legal and policy-based solutions.

VJEL would like to thank the authors for their submissions, as well as the Editorial Staff for their hard work to produce Volume 25, Issue 1. Their contributions continue to add exemplary and accessible work to the environmental law field.

VJEL Newsroom

Call for Student Presenters for VJEL’s 2023 Symposium: We’re Bringing Nature Back (Nov. 18th)

By VJEL

October 1, 2023

VLGS Students:

Do you have past experiences or interests in Nature-Based Solutions (NBS)? The Vermont Journal of Environmental Law (VJEL) is looking for students to present their NBS projects at the 2023 Nature-Based Solutions Symposium. Come present your NBS projects! This event will be held on campus on Saturday, November 18th, 2023. In between panel sessions, VJEL will host student presentations.

What are Nature-Based Solutions? These solutions involve conserving, restoring, or better managing ecosystems to remove CO2 from the atmosphere. Examples of nature-based solutions include: reforestation, restorative agricultural practices, conserving wetlands, and the like.

Presentation Length: 10 minutes

How to Apply: Send an email to nbssymposium@vermontlaw.edu with a brief description of your presentation idea and how it applies to NBS.

Applicants will be selected on the following criteria:

Relevance to the Symposium theme
Variety of projects
How far along the applicant is in their project

There is no limit on what projects apply. For example, you can present a Clinic project, independent project, or work-related project.

Please send any questions to nbssymposium@vermontlaw.edu. We look forward to hearing from you!

Best,

The Symposium Team

The Beacon Blog: Consider It Briefed

A Sacrifice to the Emperor of Forever: PFAS and Sacrifice

By Alexis McCullough, J.D. Candidate, 2024, Vermont Law & Graduate School and Articles Editor, Production Coordinator, and Personal Notes Editor for the Vermont Law Review

October 1, 2023

The Agency for Toxic Substances and Disease Registry noted that “most people in the United States have one or more specific PFAS in their blood, especially PFOS and PFOA.”(1) PFOS (perfluorooctane sulfonic acid) and PFOA (perfluorooctanoic acid) belong to a class of human-made chemicals known as PFAS, or per- and polyfluoroalkyl substances.(2) PFAS are characterized by their carbon-fluorine bonds, which are among the strongest in chemistry, giving them the nickname “forever chemicals.” The bonds make PFAS remarkably durable but also make them highly persistent in the environment. PFAS’s chemical nature allow them to exist in thousands of chemical forms, making them versatile enough to be found in numerous products. Chemicals are usually mobilethink of carbon existing everywhere and in all living organismsbut PFAS’s mobility makes them more dangerous than most other chemicals. PFAS have been found in the blood of humans and hundreds of species because of its prevalence in the air, soil, and water.(3) There is no escaping them.

Along the Mississippi River in Louisiana, communities are more likely to die because of petrochemical industrial practices. This location is called Cancer Alley, a sacrifice zone created from petrochemical facilities and factories releasing harmful chemicals into the environment. When an industry places a heavy environmental burden on an area to the point where inhabitants are forced to remain behind because of the high economic cost of leaving, a sacrifice zone arises.(4) These zones are usually adjacent to heavily-polluting industries or military bases, and people in areas near those facilities are “sacrificed” to the pollutant(s) caused by the pollution source. Sacrifice zones exist in an environmental justice context because it is often low-income and minority communities that suffer the most from chronic chemical exposure.(5) Often, those living in sacrifice zones do not know that they are being exposed to high levels of pollution.

In Cancer Alley, Black residents are unknowingly exposed to multiple sources of industrial air pollution, creating a cancer rate of about 47 times higher than the Environmental PPA’s acceptable levels.(6) PFAS also infest the unknowing residents’ drinking water, creating a cycle of exposure for the residents that use the Mississippi River in their daily life.(7) Without remedial action, they are sacrificed to the chemical manufacturing industry’s pollution.

Manufacturing facilities producing PFAS or PFAS byproducts can release those chemicals into the environment through several ways. PFAS can escape through the regular course of a manufacturing business or by accident. Through air emissions, spills, or waste disposal–among other ways–PFAS can leach into the environment and contaminate the air, drinking water, and soil near the facilities. Then those PFAS accumulate due to their “forever chemical” nature, making them capable of reaching the communities’ food and drinking water and staying in the bodies of the populace.

If more PFAS are not regulated, more sacrifice zones may be created. PFAS may cause communities across the United States to be sacrificed due to industries inadequately managing their PFAS production and harming the people and the environment. The EPA has regulated some of the chemicalsabout six of them so far in drinking water and identifying hundreds of PFAS under the Toxic Substances Control Act (TSCA).(8) However, the EPA should consider adding more PFAS in future rulemaking actions. Recently, communities face problems with unregulated or underregulated PFAS.

Three decades ago, DuPont released a chemical called GenX into Cape Fear River in North Carolina.(9) GenX slowly contaminated the drinking water for the 500,000 people living in three counties.(10) DuPont became Chemours, and Chemours placed self-imposed safeguards to reduce the amount of PFAS flowing into the river.(11) Unfortunately, PFAS bioaccumulate. Depending on the type of PFAS, it takes anywhere from 72 hours to 35 years to leave the body.(12) When eaten or drank, PFAS migrate to protein-rich tissues of the body, which are typically the liver and blood, but PFAS are also detected in the brain.(13) During that time of bioaccumulation, people may report symptoms from a long list of health effects.(14) However, PFAS are understudied and underregulated, making proving knowledge of contamination in humans and in the area difficult.

As many as 49,145 industrial facilities may exist as PFAS contamination sites.(15) The severity of PFAS contamination throughout the United States cannot be overstated, and it is imperative that PFAS are regulated more before heavy PFAS pollution creates a trend of sacrifice zones. The disproportionate harm brought on those on the frontlines of PFAS exposure is likely to continue to be a subject of concern in the future.

Citations

PFAS Blood Testing, AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY, https://www.atsdr.cdc.gov/pfas/health-effects/blood-testing.html (last updated Nov. 1, 2022).
Id.
PFAS Blood Testing, supra note 1; see also Wildlife Warning: More Than 330 Species Contaminated with Forever Chemicals,’ EWG, https://www.ewg.org/news-insights/news/2023/02/wildlife-warning-more-330-species-contaminated-forever-chemicals (last updated Sept. 26, 2023). Blood tests are how humans and animals are tested for PFAS.
STEVE LERNER & PHIL BROWN, SACRIFICE ZONES: THE FRONT LINES OF TOXIC CHEMICAL EXPOSURE IN THE UNITED STATES 2-3 (2010).
Nigell Moses, High Levels of Forever Chemicals’ in Southeast Louisiana Drinking Water Spur Concern, LA. ILLUMINATOR (Jan. 25, 2023), https://lailluminator.com/2023/01/25/high-levels-of-forever-chemicals-in-southeast-louisiana-drinking-water-spur-concern/ (“We are not a sacrifice zone, but continually we are the ones that are sacrificed.”).
Lisa Song & Lylla Younes, EPA Calls Out Environmental Racism in Louisiana’s Cancer Alley, PROPUBLICA (Oct. 19, 2022), https://www.propublica.org/article/cancer-alley-louisiana-epa-environmental-racism. There are high levels of airborne carcinogens in Cancer Alley created by a former DuPont facility generating chloroprene. Id. Now Denka Performance Elastomer owns the former facility, continuing the cancer-causing impact on the populace and continuing its legacy as the only chloroprene-generating industrial site in the United States. Id. Last year, the EPA wrote a letter to Louisiana’s health and environmental agencies, warning them of the harm and risk from chloroprene, which is an air-pollutant carcinogen. Id. Through President Biden’s Inflation Reduction Act, the EPA gave a grant to the Louisiana Department of Environmental Quality to create an air monitoring project in St. James Parish, a parish in Cancer Alley. EPA, Rep. Troy Carter Announce Grant for La. DEQ Air Monitoring Project in St. James Parish, U.S. E.P.A. (June 5, 2023), https://www.epa.gov/newsreleases/epa-rep-troy-carter-announce-grant-la-deq-air-monitoring-project-st-james-parish.
Moses, supra note 5.
Per- and Polyfluoroalkyl Substances (PFAS): Proposed PFAS National Primary Drinking Water Regulation, U.S. EPA, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas (last updated June 6, 2023); see also 40 C.F.R. § 705 (2022).
Trista Talton, Researchers Make Strides in Five Years Since GenX First Reported in Cape Fear River, WRAL NEWS, https://www.wral.com/story/researchers-make-strides-in-five-years-since-genx-first-reported-in-cape-fear-river/20319478/ (last updated June 7, 2022) (stating GenX chemicals are hexafluoropropylene oxide dimer acid, or HFPO-DA).
Katie Myers, Is PFAS Pollution a Human Rights Violation? These Activists Say Yes., GRIST (Apr. 27, 2023), https://grist.org/accountability/is-pfas-pollution-a-human-rights-violation-these-activists-say-yes/.
David Gelles & Emily Steel, How Chemical Companies Avoid Paying for Pollution, N.Y. TIMES (Oct. 21, 2021), https://www.nytimes.com/2021/10/20/business/chemours-dupont-pfas-genx-chemicals.html.
PFAS Exposure Assessment Community Update – Online Information Session, AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY, https://www.atsdr.cdc.gov/pfas/activities/ assessments/online-session.html (last updated Jan. 22, 2021).
Hannah M. Starnes et al., A Critical Review and Meta-Analysis of Impacts of Per- and Polyfluorinated Substances on the Brain and Behavior, 4 Frontiers Toxicology 1, 2-3 (2022), https://doi.org/10.3389/ftox.2022.881584.
Id. at 4.
Derrick Salvatore et al., Presumptive Contamination: A New Approach to PFAS Contaminated Based on Likely Sources, 9 Env’t Sci. & Tech. Letters 983, 983, 986 (2022).

EcoPerspectives Blog

The Fad of Ecotourism in India: Discovering Paradise to Creating Purgatory?

By Tejaswini Kaushal, B.A. L.L.B (Hons.) student, Dr. Ram Manohar Lohiya National Law University, Lucknow, India

August 17, 2023

I. Green is the New Black: Analyzing the Boom of Ecotourism

Through the 1900s, the phrase “ecotourism” boomed. It promised sustainable and responsible travel to make people aware and do good for the environment. And as all so-claimed “eco”-friendly things do, it gained significant popularity as a way to experience nature’s wonders while supporting conservation efforts. It garnered praise for raising environmental awareness, sensitizing the next generation, showcasing marginalized communities, preserving endangered cultures, and safeguarding wildlife. India has been one of the biggest benefactors of this trend, and the 2023 Union Budget, coupled with the “Visit India” regime, reflects the government’s continued commitment to empowering this industry.

The World Wildlife Fund defines ecotourism as “responsible travel to natural areas that conserves the environment and promotes the welfare of local people[,]” specifying four essential classifying criteria:

Responsible travel to natural areas;
Conservation of the environment;
Promotion of the welfare of local people; and often
Education and interpretation

Now, “ecotourism” has become a misnomer, now representing mere nature tourism lacking its sustainability premise. This leaves us to ponder the question:

II. Will Pseudo-Ecotourism Destroy What it Seeks to Preserve?

Researchers have well-studied the climatic and environmental impact of over-tourism. On this, the CEO of Agoda, an online travel agency in Asia, John Brown, recently commented: “. . . we saw a shift in travel patterns, as people, limited to domestic travel, explore lesser-known areas.” Though this might be a quick fix to decrease overcrowding in the conventional tourist spots, it creates a danger of reducing unobtrusive natural sites to similar travesties. With the increase in demand for ecotourism at such sites, the very premise on which it stands will begin to waver. Owing to the commercial pressures but lacking resources, pseudo-ecotourism emerged, a modified concept that lacks the key sustainability ingredient.

Furthermore, India’s legislative frameworks afford limited protection because of fragmented state-wise tourism policies and the National Ecotourism Policy, 2022 plays a normative function at best. The Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980, Environment (Protection) Act, 1986, Coastal Regulation Zone Notification, 1991, Environmental Impact Assessment Notification, 2006, and Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 become applicable, yet the limitations they face in their respective domains also extend to ecotourism, causing emergence of regulatory gaps. However, the Indian judiciary displays a proactive commitment to environmental conservation. In Nagarahole Budakattu Hakku Sthapana Samithi v. State of Karnataka, the Karnataka High Court ordered the handover of a restaurant building under forest conservation law violations. In Union of India v. Kamath Holiday Resorts Pvt. Ltd., the Supreme Court rejected land leasing rights for a restaurant in a reserved forest, emphasizing environmental priority over tourist convenience.

III. Looking Beneath the Green-Coated Surface

a. From Green to Grey

In Costa Rica, illegal traffickers and curious onlookers have threatened the leatherback turtles back to the brink of extinction. In Mexico, the Biosphere Reserve Sierra Gorda faces excessive logging, fires, and deforestation for tourist housing. Ecotourism initiatives in the Galapagos Islands have attracted migrants seeking employment, resulting in increased pressure on local infrastructure and the environment. In India, the 2013 flash floods in the Kedarnath Valley occurred due to a climate-change-aggravated melting of glaciers triggered by hordes of tourists banking themselves in the mountains yearly. In the Himalayas, a study conducted for ecotourism revealed that locals suffered from increased waste generation and water pollution. These incidents illustrate that ecotourism, despite its environmental claims, often disrupts ecosystems, damages fragile habitats, and degrades natural resources through unregulated footfall, undermining the very attractions it aims to preserve.

b. From Eden to Exploitation

The impact of pseudo-ecotourism on the locals is comparable to or even worse than conventional mass tourism since these irreversibly harm culturally sensitive areas. In Columbia and Indonesia, “green grabbing” is an all-too-common phenomenon with the forcible transfer of land ownership from locals under the “environmentalism'” label. Even India witnesses forest and coastal destruction, displacement of indigenous communities, erosion of traditional values, and exploitation without compensation. Without corrective actions, local communities face marginalization and cultural erosion due to the tourism industry’s lure of environmental opportunism.’ For instance, lifting the alcohol ban in Lakshadweep under tourism pressures stirred concerns about adversely affecting the “social fabric” of the predominantly Muslim community.

c. Hogwashing and Greenwashing

While the surge of eco-consciousness post-1992 Earth Summit led to businesses embracing the “green” tag, it also gave rise to “greenwashing,” which distorts environmental objectives for profit using the right buzzwords. Through misleading advertising of tourism packages’ ecological sustainability, travel agencies often hogwash environmentally-conscious tourists and lure them into seemingly eco-friendly trips. For instance, certification programs have gained prominence to accredit environmental commitments and discern authenticity. Nevertheless, the voluntary and market-driven nature of many of these programs, fueled by presumed consumer demand, raises concerns about their effectiveness. Not only do these create apprehension around large corporates dominating the market through money-power, but also showcases an absent universal certification standard since addressing the complex web of local concerns within an international certification framework proves challenging at the moment.

IV. Preserving Nature’s Playground

a. Carrying Capacity Assessments

Drawing from our neighborhood, Bhutan enjoyed sustainable growth with a protected environment until it followed a controlled tourism policy driven by a “high value, low volume” strategy, but it now faces the threat of regarded culture and nature having shifted to a “high value, low impact” strategy. On the other hand, Maldives achieved sustainability by adopting a carrying capacity standard and a 20% limit on building development in the mid-1990s. These measures were prompted by the detrimental effects of tourism, which led to beach erosion aggravated by hard armoring shores and coral reef degradation due to boating, dredging and commercial mining. India does enjoy a precedent establishing the principle of carrying capacity in Forest Friendly Camps Pvt. Ltd. v. State of Rajasthan, where the court limited park visitors and promoted environmentally, economically, socially, and culturally sustainable tourism activities. However, it was an isolated event lacking transnational impact. Furthermore, despite recognizing the importance of Environmental Impact Assessments and introducing policies in 1994, inconsistent limits and guidelines have prevailed across states and over time.

b. Conservation Impact Funds

Sikkim, India reflects a disparity between the government’s tourism plan and the locals’ desire for greater involvement in tourism management, environment conservation, and benefits-sharing, leading to half-hearted plan implementations. Ecotourism revenue-funded cultural impact funds (“CIFs”) can be a prospective solution to support cultural heritage, habitat restoration, and community development. Allocating a percentage of ecotourism revenue to conservation and CIFs can ensure improved and enthusiastic community participation. Additionally, establishing transparent governance structures to ensure effective allocation and management of these funds and involving local communities, NGOs, and relevant government agencies can further community participation.

c. Enhanced Community Engagement

The Peruvian Tambopata and Infierno native communities protect endangered harpy eagles and scarlet macaws while showcasing them to visitors. This expression of autonomy and proactive engagement by local communities has been facilitated through robust support from both local and governmental entities, empowering them to effectively manage local resources, get incentivized for their contributions, and simultaneously promote tourism. Similarly, granting local autonomy in India and promoting community-based enterprises, dialogue platforms, and fair benefit-sharing guidelines can prevent private players from dominating commercial hotspots and ensure equitable benefit-sharing and decision-making. Developing clear guidelines for benefit-sharing mechanisms to ensure that local communities receive fair compensation for their contributions and reinvesting tourism revenues in community development and conservation initiatives is equally essential.

d. Private Party Collaborations

In Peru, Rainforest Expeditions and the Ese’eja community made a joint tourism venture, with a 20-year contract safeguarding community affairs; prohibiting farming, logging, and hunting; and ensuring 60% of profits and shared decision-making. Adopting a similar balance in autonomy, traditions, wildlife preservation, and sustainable tourism by involving private entities to support local initiatives without replacing them is vital for improved implementation.

e. Boosting Village Tourism

Ecotourism, exemplified by the Sirubari Village Tourism Project in Nepal, thrives on smaller enterprises and boarding facilities, termed “village tourism.” The Project promotes homesteads as accommodations through contracts with locals, in turn benefitting tourists and the local community while reducing the need for additional infrastructure. Promoting such a structure through provisions of financial assistance and subsidies to homeowners, converting houses into bed and breakfast facilities, and marketing them through travel agencies and online platforms will ensure long-term sustainability.

f. Adopting a Culture-Preserving Approach

Increasing tourist demands in Ladakh, India, drives up local goods and water prices, while the demand for Western-standard facilities strains their culture’s sustainability. Highlighting the cultural differences creates awareness among tourists to embrace and sustain the locally abundant goods and cultural practices while avoiding actions that disrupt the local culture.

V. Towards greener Pastures

“Only if we understand, will we care. Only if we care, will we help. Only if we help, shall all be saved.”

– Jane Goodall, conservationist

Ecotourism holds immense potential as a tool for conservation, community empowerment, and sustainable development. However, to harness its benefits and prevent unintended negative consequences, it requires a holistic approach. Governments must enforce stringent regulations, conduct carrying capacity assessments, and invest in infrastructure development. Local communities should be active participants, receiving fair economic benefits while preserving their cultural heritage. With responsible management, ecotourism can be a force for positive change, ensuring that paradise remains intact for generations to come. If adoption of a holistic approach that combines preservation, community empowerment, and sustainable harmony are not done, it will leave behind mere green rhetoric in this quest to distinguish genuine sustainability efforts. India’s future steps will be critical in determining whether its natural environment ascends to the heights of paradise or descends into the depths of purgatory.

The Beacon Blog: Consider It Briefed

Environmental Justice in 2023: Equal Funding for All?

By Elizabeth Beairsto, Staff Editor for the Vermont Journal of Environmental Law

August 7, 2023

Introduction

From Flint Michigan’s contaminated water supply to Cancer Alley in southern Louisiana, communities of color and low-income communities are disproportionately affected by environmental pollution. Now, after decades of disinvestment, the Biden-Harris Administration has made Environmental Justice (“EJ”) a priority.

Spurred by the Biden-Harris Administration’s commitment to inclusivity, economic security, and climate resilience, 2023 brings historic federal funding in the fight against climate inequities. After decades of disinvestment, communities burdened by pollution and racist practices will receive this funding.

President Biden’s Justice40 Initiative [1] ignites the allocation of 40% of the overall benefits from federal investments to disadvantaged communities. Recent federal investments falling under the Initiative’s guidance include the 2021 bipartisan Infrastructure Investment and Jobs Act (“IIJA”)[2] and the Inflation Reduction Act (“IRA”) of 2022.[3] The IIJA invests in EJ communities by increasing access to clean drinking water; remediating legacy pollution; expanding access to public transit; and modernizing infrastructure.[4] Similarly, the IRA mirrors language from the Justice40 Initiative while building on investment programs from the IIJA. With nearly $369 billion in clean energy and climate tax credits, the IRA designates $3 billion in EJ block grants.[5]

On February 23, 2023, the Biden Administration announced $550 million in EJ grants in accordance with the IRA. Designed to expedite investments through the U.S. Environmental Protection Agency (“EPA”)’s new Environmental Justice Thriving Communities Grantmaking (“EJ TCGM”) program, this funding will advance efficiency and simplify the application process for EJ grants. However, with funding allocated and Republicans in control of the House, the year ahead is a crucial moment for EJ communities.

How this money is distributed presents a momentous task of ensuring investments reach communities most in need. Misuse of the funding, specifically allocation to organizations that do not need financial assistance, risks hurting EJ communities. Because local and state governments ultimately control how the money they receive gets used, agency oversight is paramount.

Where to Watch: Texas & Louisiana

Texas:

With a history of locating hazardous waste facilities, industrial plants, and other polluting industries in low-income communities and communities of color, Texas is rife with environmental injustices. Carbon capture and storage, highway expansions and increased natural gas exports all threaten EJ communities within the Lonestar state. Further, the current controversy surrounding illegal dumping in Houston highlights the ongoing injustices minority Texans face.

Vulnerable Texans disproportionately face pollution. For instance, minority neighborhoods in Houston are burdened with waste facilities.[6]. Home to “all five city-owned landfills,” six out of eight incinerators, and three out of four privately-owned landfills, these neighborhoods bear the brunt of the city’s pollution.[7] Additionally, from the 1930s until 1978, a staggering 82% of solid waste disposed of in Houston was dumped in predominantly African American neighborhoods, despite African American residents comprising only 25% of the population.[8]

As the Biden Administration recognizes the urgency of addressing environmental injustice, the Department of Justice (“DOJ”)’s investigation into Houston’s waste management practices is a notable example of the federal government’s commitment to ensuring that communities of color are not unfairly burdened with environmental hazards.

Louisiana:

Louisiana has been criticized for its inadequate regulation of toxic chemicals, particularly as it is home to Cancer Alley. The history of Cancer Alley dates back to the 1920s, when the first petrochemical plants were established in the area.[9] Originally coined “chemical corridor” for the hub of oil refineries that dot its landscape, 1987 brought a new name to the region: Cancer Alley.[10] The rapid industrialization of the region paired with lacking environmental regulations resulted in a wide range of ailments plaguing the residents, from cancer to mental and physical developmental disorders.[11]

Cancer Alley exemplifies the ongoing struggle to tackle the interconnected issues of race, poverty, and pollution. Home to African American and low-income residents, “this form of environmental racism poses serious and disproportionate threats to the enjoyment of several human rights . . . including the right to equality and non-discrimination, the right to health, right to an adequate standard of living and cultural rights.”[12] As federal investments roll out to the state, “air pollution projects are made possible to assess and address air quality across the industrial corridor.”[13] Thus, with Louisiana organizations receiving $2,399,604 from the IRA to support “air quality monitoring in marginalized communities,” agency oversight is paramount to prevent the perpetuation of past injustices.[14]

In October 2022, the EPA directed Louisiana to examine the disproportionate burdens black residents bear from air pollutants causing cancer. As of March 2023, Louisiana residents and the DOJ have unveiled a federal lawsuit. This lawsuit accuses local officials of civil rights and religious liberty violations by repeatedly approving the construction of petrochemical plants in two predominantly Black districts.[15] As such, the EPA and DOJ are collaborating to advance this pending litigation. When paired with federal investments and incentives, this partnership serves as an encouraging example for achieving justice and restoring dignity within vulnerable communities. This approach is necessary to mitigate the devastating impacts of environmental injustices and take concrete steps to rectify these harms.

Citations

Exec. Order No. 14008, 86 FR 7619-7633, https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad.
Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, H.R. 3684, 117 Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/3684/text.
Inflation Reduction Act, Pub. L. No. 117-169, H.R. 5376, 117 Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/5376.
See The White House, The Bipartisan Infrastructure Law Advances Environmental Justice (Nov. 16, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/16/the-bipartisan-infrastructure-law-advances-environmental-justice/.
Carlos Barria, White House Announces $13 Bln.in Funding to Modernize Power Grids, Reuters (Nov. 18, 2022), https://www.reuters.com/world/us/white-house-announces-13-bln-funding-modernize-power-grids-2022-11-18/.
See Robert D. Bullard, Environmental Justice & The Politics of Garbage: The Mountains of Houston (2014).
Cole Rosengren, Environmental Justice, including at waste sites, takes center stage at Houston Event, https://www.wastedive.com/news/enviornmental-justice-epa-waterhouse-bullard-houston/622414/ (Apr. 27, 2022).
Id.
See Monique Michelle Verdin, Cancer Alley, Istrouma to the Gulf of Mexico, 26 Art & Vision 30-42 (2020), https://www.southerncultures.org/article/cancer-alley/.
Dorceta E. Taylor, Cancer Alley, Louisiana, Pollution A to Z (2004).
Sumaya Addish, Cancer Alley, Louisiana (1987-) (Jul. 1, 2021), https://www.blackpast.org/african-american-history/cancer-alley-louisiana-1987/.
United Nations Office of the High Commissioner for Human Rights, USA: Environmental Racism in Cancer Alley Must End- Experts, Press Release (Mar. 17, 2021), https://www.ohchr.org/en/press-releases/2021/03/usa-environmental-racism-cancer-alley-must-end-experts.
EPA, EPA Announces Louisiana to Receive Nearly $2.4 Million for Air Monitoring Projects (Nov. 3, 2022), https://www.epa.gov/newsreleases/epa-announces-louisiana-receive-nearly-24-million-air-monitoring-projects.
Id.
See Oliver Laughland, Cancer Town: Residents of Louisiana’s Cancer Alley’ announce lawsuit against local officials, THE GUARDIAN (Mar. 21, 2023), https://www.theguardian.com/us-news/2023/mar/21/louisiana-st-james-parish-cancer-alley-lawsuit.

EcoPerspectives Blog

Does Pollution End at U.S. Borders? – Why U.S. Military Pollution is a Reason for Agencies to Implement the Global Social Cost of Carbon

By Mariah Bowman, J.D. Candidate, 2024, Pace University Elisabeth Haub School of Law

July 31, 2023

The social cost of carbon (SCC) has been the basis for policies such as tax credits for carbon capture technology and zero-emissions credits. This model can represent a domestic or global scenario of climate damage, but many in the United States favor domestic views only. The question is whether the U.S. should account for global damages from climate change in its SCC modeling based on how their emissions exacerbate that global harm. The short answer is yes, the U.S. should account for the global economy in its SCC policies. Based on the country’s international presence through the military, the U.S. should calculate an SCC that incorporates characteristics of the global economy.

The social cost of carbon is an economic tool used to determine how much the cost is, in dollars, of emitting another ton of carbon dioxide into the atmosphere. As carbon dioxide builds up in the atmosphere, it also traps heat surrounding the planet. The damage this heat creates is SCC. In other words, it is the quantitative benefit of reducing one ton of carbon dioxide emissions. Economists and policymakers use SCC to analyze the costs and benefits to environmental policies since carbon emissions are not reflected in market prices. Estimates of economic damages from climate change are approximately $1.7 trillion each year by 2025 and $30 trillion each year by 2075 if the status quo remains unchanged. If the temperature eventually reaches five degrees Celsius, damages will reach an estimated $140 trillion annually and $730 trillion at seven degrees Celsius.

The U.S. military has carried its carbon footprint across the globe for over a century, and because the U.S. is not a party to the Kyoto Protocol, the military does not have to report its emissions. The military may not have to report emissions to global institutions, but its stations across the globe leave an impact. The war in Iraq not only destroyed ecosystems, but also elevated rates of cancer for those living in the area. Additionally, the war in Afghanistan caused mass deforestation, and U.S. armed forces released toxic pollutants into the air, causing sickness in Afghans and U.S. veterans. In total, the “War on Terror” released 1.2 billion metric tons of greenhouse gases into the atmosphere, which equates to the emissions of 257 million cars each year. If the U.S. military were a nation, it would be the 47^th largest emitter in the world.

The military has an interest in reducing emissions and mitigating climate change because it predicts climate change will exacerbate current security threats or create new dangers. The Department of the Army released its Climate Strategy in February 2022, and the Department of the Navy released its Climate Action 2030. The problem is that these strategies are not required by statute, and their implementation is up to Congress’ discretion. However, the U.S. Department of Defense releases a different report as required by Section 335 of the National Defense Authorization Act that details the vulnerabilities the military faces as climate change-related events become more prevalent. The DoD’s report explains, “DoD is continuing to work with partner nations to understand and plan for future potential mission impacts. This is a global issue and a number of Ministries of Defense across the world are beginning to plan now for future impacts. . . .” The Department of Defense also released its Climate Risk Analysis in October 2021, detailing international effects of climate change, but it fails to explain how the actions of the military exacerbate those effects. Yet, it does include a map of its global aid missions. A government agency acknowledging that the climate crisis is a global issue and planning to work with other nations to address that issue means the U.S. government should be able to employ a global measurement of SCC to account for the effects of climate change in partner countries.

The argument of arbitrariness may be the strongest obstacle to the implementation of the global social cost of carbon. Courts will overturn an agency’s action if it deems it arbitrary and capricious or seen as unreasonable use of discretion. Courts may even see the act of following executive directions without question or review as arbitrary. For agency action to be reasonable, there must be factual and policy determinations, meaning there needs to be a plausible reason for taking that action and supported with facts. If an agency were to implement a global SCC without an explanation, a court would likely find this arbitrary under the Administrative Procedure Act. Even with an agency’s detailed justification for a global SCC, there are still constraints from the courts because “scientific and economic judgments are overridden by purely political considerations.” The global calculation of the SCC may be ruled as arbitrary because measurements of state-specific impacts on climate change are heavily scrutinized due to political tension.

If the executive branch were to argue that a global SCC calculation would solve international tensions and climate change negotiations, this would likely reduce questioning of arbitrariness. Also, accounting for the duty of preventing transboundary harm could be another counter to arbitrariness. Defending an argument against a hard look review of arbitrariness would need to involve deliberation over its merits, scientific evidence, and institutional capacities. While the method of calculating a global SCC is not unanimously agreed on, it is important for agencies to exhaust all techniques for calculating a range of global SCC, so that it creates a strong record to present in court. Administrative obstacles will remain in the way of implementing a global SCC, but the U.S. should maintain its focus on campaigning for a global SCC because of the impact the U.S. military has beyond its own borders.