Dam Removal on the Lower Kennebec River: Using Indigenous Stewardship to Heal By Swithin Shearer
Indigenous populations in the United States are spiritually connected to their land and water.[1] In the U.S., the government’s policies on property ownership, development, and expansion historically deprived Native people of their lands.[2] Federal policies for dam construction were no different.[3] Despite objections from various Tribes based on spiritual, environmental, and ecological concerns,[4] dams were built based on perceived economic benefits.[5] Dam infrastructure is now aging and the government is faced with the choice of removal or repair.[6] Members of affected Tribes have called for dam removal to restore the ecological and environmental balance to the land.[7] Native communities, as the traditional stewards of the land, should be entrusted to manage this environmental rehabilitation process.
Members of Indigenous communities often consider their very identity inextricably linked to their environment.[8] As a result, members of those communities often consider themselves to be stewards of the land.[9] Stewardship ensures Earth’s abundant gifts are available for future generations by taking only what one needs.[10] The goal of stewardship is not to deplete or exploit the land, but to live in harmony with it.[11] For example, the Mi’kmaq Nation[12] live according to the cultural value of netukulimk, which emphasizes the interconnectedness of people and the surrounding world.[13]
Given the deep connection to their environment, it is no wonder that Indigenous populations in the U.S. have suffered when they have been cut off from their native homelands. When Indigenous peoples are separated from their lands, “the impacts are more than physical—they are spiritual.”[14] In a particularly poignant example, 117 of 250 members of the Sayisi Dene Tribe of Canada died within 19 years of being forcibly removed from their traditional lands and relocated elsewhere.[15] Tribal members attributed the deaths to the “despair and the loss of hope and the loss of connection to the land.”[16]
Since our country’s early years, federal policies have forced Tribal communities from their land; the General Allotment (Dawes) Act of 1887 alone resulted in the expropriation of 90 million acres from Tribal Nations.[17] Tribal land was also targeted when the government kicked off an era of dam-building projects in the 19th and 20th centuries.[18] Indigenous populations in the U.S. were dispossessed of another 1.13 million acres as a result of those projects.[19]
The motivations for the large-scale federal dam projects were primarily economic.[20] Some dams were built for hydroelectric power generation, which in turn powered industrial development and metropolitan expansion.[21] Others were built for flood control.[22] Still others were built to provide water for municipal and irrigation uses in the arid West.[23] Regardless of a dam’s purpose, economic benefits were prioritized over environmental and ecological damage.[24] The fact that dam construction severed Indigenous spiritual connections to the land was often outright ignored.[25]
Tribes have sustained lasting injuries from dam construction. They have lost access to lands that held spiritual significance.[26] For example, dams flooded and obliterated sacred burial grounds and villages.[27] Further, Tribal members have been denied treaty-guaranteed fishing and hunting rights (either because the land was permanently flooded or the fish populations were nearly depleted).[28] In addition, ecosystems were damaged to the point that multiple species have been listed as endangered.[29] Spiritual and environmental concerns have led Tribal communities to fight to remove the dams, restore their Native lands, and rehabilitate the damaged ecosystems.[30]
Because of their focus on respect for and protection of land for future generations, Indigenous peoples are well suited to oversee the restoration of damaged ecosystems. Domestic[31] and international[32] programs have helped Native people re-acquire millions of acres of ancestral lands.[33] They are now using their Traditional Ecological Knowledge, rooted in traditional beliefs in stewardship of the land, to heal the ecosystems.[34] Traditional Ecological Knowledge should also guide ecosystem restoration once dams are removed. Indigenous stewardship would effectively restore the ecosystems that were harmed by dam construction and flooding. Returning previously flooded land back to Native stewardship also fits within the broader picture of the Land Back movement, which seeks to restore ancestral lands to Indigenous populations.[35]
The Nature Conservancy recently reached an agreement to take over and eventually decommission four major dams along the lower Kennebec River in Maine.[36] The Wabanaki Nations were displaced by those dams.[37] One of The Nature Conservancy’s long-term goals in acquiring the dams is to “help reestablish cultural and physical connections between the Wabanaki Nations and the Kennebec River.”[38] Another goal is to restore fish populations that used to thrive in the Kennebec River.[39] If the Nature Conservancy can connect those two goals by placing the Wabanaki Nations at the forefront of the restoration process, the environment will benefit. It will also take a step towards addressing the wrongs of the past by reconnecting the Wabanaki Nations with their ancestral lands, so they can heal together.
[5] David P. Billington et al., The History of Large Federal Dams: Planning, Design, and Construction in the Era of Big Dams 386–87 (U.S. Dep’t of the Interior Bureau of Reclamation ed., 2005).
[12] The Mi’kmaq are one of four main Wabanaki Nations in Maine; the other three are the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe, and the Penobscot Nation. Who We Are, Wabanaki Alliance, https://www.wabanakialliance.com/who-we-are/ (last visited Oct. 12, 2025).
[14] U.S. Dep’t of the Interior, Ten Years of Restoring Land and Building Trust 2012-2022 iii (2023). Deb Haaland, former Secretary of the Interior, went on to say that the impacts of being separated from the land “manifest deep in our bodies and in our hearts, and they have lasting and inter-generational consequences.” Id.
[24]Id. at 387–89 (stating the focus of the big dam era was “the desire to control nature and manage its resources” to protect the man-made environment).
All Politics is Local: Vermont Municipalities Can and Should Take the Lead in Driving Vermont to Achieve Energy Goals By Aidan Sitler
The Vermont State legislature has made it easier for thermal energy networks to emerge as a viable option for clean heating and cooling in the State. The State set goals to lower energy costs and reduce greenhouse gas emissions in the Global Warming Solutions Act.[1] Currently, Vermont is expected to fall short of attaining these goals.[2] One of the best pathways for Vermont to achieve the target set in the Act is for towns to lead the efforts and establish municipally owned thermal energy networks.
Why Thermal Energy Networks? Thermal energy networks “use a shared network of water-filled pipes that transfer heat in and out of buildings.”[3] Thermal heating and cooling systems work by exchanging heat with the constant temperature below Earth’s surface to regulate the temperature inside the buildings.[4] Thermal energy networks use a heat pump connected to the underground network of pipes. [5] The pipe’s water stores heat regulated by the in-building pumps.[6] The pumps regulate heat as a sink to absorb excess heat during the summer months, and act as a heat source during the colder winter months.[7] The more buildings connected to the same network, the more efficient the exchange and stronger the system.[8] Thermal energy networks can replace traditional heat methods that rely on fossil fuels, such as natural gas, and traditional cooling methods that rely on inefficient air conditioning.[9] In addition to replacing these methods entirely, thermal energy networks can co-exist with traditional heating and cooling methods as a way to supplement the majority of the energy needed to run them.[10] Local municipalities benefit from the build-to-scale model for outfitting neighborhoods and existing infrastructure with thermal energy networks.[11]
Why Local Municipalities? The design and scale of thermal energy networks are what make them ideal for local municipalities to implement and control. Traditionally, in Vermont, any entity wanting to establish a thermal energy network would have to obtain a certificate of public good.[12] The Vermont Public Utility Commission requires a certificate of public good to begin construction.[13] Obtaining a certificate is a lengthy application process that requires many procedural obstacles, reducing a project’s chance of success.[14] Because thermal energy networks are a way of distributing heat among citizens, they would normally be subject to the control and regulations of the public utility commission.[15]
Recently, Vermont enacted Act 142, which changed regulations surrounding public utilities.[16] A major change in the Act is that local municipalities no longer require a certificate of public good or permission from the public utility commission to establish and operate a thermal energy network.[17] The Act now allows municipalities to “have the authority to construct, operate, set rates for, finance, and use eminent domain for thermal energy networks . . . .”[18] This change creates opportunities for municipalities in Vermont to greenlight construction on thermal energy networks. The benefits from the Act for the municipalities include foregoing the application process and regulation from the public utility commission. The benefits from the Act for the citizens come in the form of reduced rates, energy efficiency, and having a voice in their energy needs.
Rate decreases for users in a thermal energy network are reflected in the efficiency of the system. As the network becomes more efficient, the municipality will be able to save on energy costs. These savings can then be passed down as lower rates for every user of the network. Thermal energy networks can also ensure fixed rates for users as they are not subject to traditional fluctuations in cost.[19] These fluctuations occur from the natural gas global market, supply chain, or fuel transportation fees.[20] Instead, thermal energy networks rely on local resources to effectuate heating and cooling.[21]
Citizens will also have opportunities to go directly to the town with concerns and feedback on how their thermal energy network is functioning. This creates a more local, hands-on experience for users of the energy networks in voicing their needs. Inclusion is important for creating an equitable energy system, which is more difficult to do when citizens must navigate the public utility structure.[22] The local management of the thermal energy networks allows for a greater ease of access and accountability in the operations.
For Vermont to get back on track and achieve its goals of lowering energy costs and reducing its greenhouse gas emissions, there needs to be a greater push at the local level. Municipalities are in a unique position to be the best fit owners of a thermal energy network, both within the logistical and regulatory frameworks surrounding the networks. It is time for Vermont towns to take advantage of this new exemption and begin implementing thermal energy networks to address the energy concerns in the State.
Diamond in the Rough: Using Corporate Interests for Environmental Justice Goals By Brett Davis
The Supreme Court’s latest term lacked blockbuster environmental decisions like years past.[1] The Court’s biggest decisions focused largely on the Trump administration’s various attacks on power within the Federal government.[2] Decisions like Trump v. Wilcox and Trump v. CASA have left the president with increased control over environmental policy decisions.[3] While those cases stole the spotlight, Diamond Alternative Energy v. EPA subtly shifted the legal standing in environmental suits.[4] Such a shift could change approaches to environmental justice litigation, where standing has long been a core obstacle.[5]
Standing derives from Article III of the Constitution, which requires a “case” and “controversy” for justiciability.[6] The Supreme Court has listed three requirements for standing: injury in fact, causation, and redressability.[7] Injury in fact requires an injury be both “concrete and particular” and “actual and imminent.”[8] The test limits plaintiffs’ ability to attack policies they are merely against.[9] Causation requires that the challenged rule cause the injury in fact and is not merely speculative.[10] Redressability requires that a favorable ruling will redress the injury in fact.[11] Causation and redressability are often opposite sides of the same coin.[12] Other issues, such as prohibiting suits involving generalized grievances, can also block environmental litigation.[13]
In Diamond, fuel producer plaintiffs challenged California’s heightened emission standards and electric-vehicle mandate under the Clean Air Act.[14] The Court found injury in fact to be relatively straightforward.[15] California’s policy would reduce the use of gasoline-powered vehicles compared to a free market.[16] Thus, there will be fewer gasoline sales and a monetary injury to gasoline companies.[17] Neither party meaningfully disputed this injury in fact.[18]
The Court focused mainly on causation and redressability.[19] Given that causation and redressability generally rely on the same thrust, the court interweaves their analysis.[20] The EPA argued that even if the laws were invalidated, the plaintiffs failed to prove why vehicle manufacturers would reduce the size of their electric vehicle fleets to favor gas-powered vehicles.[21] The Court emphasized the use of commonsense economics as a basis in evaluating cause.[22] The commonsense being that California’s policy has and could induce vehicle manufacturers to alter production in favor of electric vehicles.[23] Thus, the plaintiffs satisfied their burden to show California’s rule injured fuel interests without providing evidence.[24]
This commonsense approach also satisfied redressability.[25] Plaintiffs must simply show a “predictable chain of events that would likely result from judicial relief.”[26] The Court noted that regulation aimed at producing market effects ordinarily means the result of vacating policy would have the opposite effect.[27] And a mere dollar of relief satisfies the redressability standard.[28] The plaintiffs had a commonsense redress if a court struck California’s rule.[29] The Court denied any heightened redressability standard.[30]
Diamond’s leniency to causation and redressability standards gives corporations more grace than citizens.[31] And the Court’s grant of certiorari to a doomed policy would further indicate sympathy for companies.[32] While these concerns Justice Jackson provides are apt, the Court’s 7-2 decision indicates the remaining justices lack the same opinion.[33] Even with Justice Jackson’s critique, companies can be a vehicle for environmental change. Diamond’s relaxed standard may offer green companies or nonprofits easier opportunities to combat fossil fuel-centered policy.[34]
Rather than approaching people physically affected by environmental hazards, advocates can seek organizations economically disadvantaged from executive rules. For example, the Trump administration’s executive orders cutting green and electric programs in favor of fossil fuels are like California’s policy.[35] Following Diamond, renewable energy companies have a very straightforward argument for all three standing elements.[36] Trump’s regulations are “designed to produce a particular effect on the market.”[37] In this case, promote fossil fuel energy sources over alternatives. Therefore, renewable companies suffer an injury in fact through reduced sales.[38] Commonsense economics implies that those regulations caused the effect, and redress occurs upon a favorable ruling.[39] With injunctive relief, the executive orders would no longer produce their intended market effects—boosting revenue for the unfavored companies.[40]
Alternatively, environmental challenges outside of the corporate landscape could utilize Diamond’s reasoning. Citizens can utilize the Court’s focus on economic impacts as an obvious line to standing for more nebulous environmental policy challenges. Plaintiffs who gain economically from cleaner environments, such as farmers, may derive commonsense economic impacts of a degrading climate.
However, relying on environmental science rather than direct market interference likely overstretches the limits of Diamond.[41] Instead, plaintiffs will need to show economic impairment because of financial trends induced by rulemaking. The issue remains in uncoupling these economic impairments from corporate revenues so all citizens affected can bring suit.
Overall, Diamond does not drastically change the approach to standing.[42] The Court does seem to lower the burden on plaintiffs in showing economic injury, causation, and redressability.[43] This benefits companies’ standing arguments, but likely remains inconsequential to everyday citizens. Environmental justice advocates may need to approach standing difficulties by finding who fits Diamond’s slightly altered model. If the Court gives leniency to companies, savvy lawyers should take advantage of that leniency. While the Court fears gamesmanship,[44] any change to the rules requires new ways to play the game.
[3]See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025); Trump v. Casa, Inc., 606 U.S. 831, 861 (2025); see also Joseph Winters, The Supreme Court just ended its term. Here are the Decisions that will affect climate policy, Grist, https://grist.org/justice/supreme-court-term-climate-decisions-trump-workforce/ (last visited Sept. 17, 2025).
[14]Diamond, No. 24-7 U.S. Reports 1, 1-2 (describing California’s exception to the Clean Air Act which allows the State to set more restrictive standards to address local pollution concerns).
[15]See id. at 11 (finding no meaningful dispute between parties).
[35]See Exec. Order No. 14,154, 90 Fed. Reg. 8353 (Jan. 20, 2025) (eliminating incentives for green fuel systems); see also Exec. Order No. 14,261, 90 Fed. Reg. 15517 (Apr. 14, 2025) (promoting the coal industry).
Moving Backwards: EPA Aims to Repeal Greenhouse Gas Emission Standards for Power Sector By Matthew Allen
On June 11, 2025, the U.S. Environmental Protection Agency (EPA) proposed to repeal greenhouse gas (GHG) emission standards for fossil-fuel-fired power plants. GHG standards act in direct accordance with the Clean Air Act (CAA).[1] The Supreme Court granted EPA this power after it held in Massachusetts v. EPA that the CAA authorizes EPA to regulate GHG emissions.[2] CAA requires standards for emissions of air pollutants from stationary sources like power plants.[3] EPA Administrator Lee Zeldin indicates this proposal would provide more reliable energy supply and drive down costs which would benefit U.S. citizens.[4] Eliminating GHG emission standards would not only violate the CAA, but would be a direct contradiction to what the EPA seeks to protect.
Administrator Zeldin’s reasoning is no more than a showing for public appeal. EPA proposal looks to neglect years of scientific data, research, and positive changes the CAA has helped to promote. Deregulating GHG emissions could create long lasting environmental and public impacts, reversing decades of effort.[5] This proposal leans more toward corporate and production convenience rather than focusing on EPA’s mission of protection and sustainability.[6] Although the proposal has been submitted, EPA ought to look back at its roots and prevent this injustice from continuing.
EPA is looking to cut the red tape burdening energy production for facilities. Actions like this proposal draw concern for quality of public health and future climate issues. Mary Rice and Amruta Nori-Sarma, Professors of Environmental Health at Harvard University School of Public Health addressed concerns on the long-term effects of deregulating GHG emissions.[7] Greenhouse gases like carbon dioxide (CO₂) and other toxic substances released expose harmful pollutants to the public, especially for children and the elderly.[8]
Not only are short-term air pollution effects of concern, so are long-term climate impacts. GHGs are linked to increased temperatures, more frequent and severe wildfires, and severe weather patterns.[9] Emissions from GHGs like CO₂, methane, and nitrous oxide from burning of fossil fuels and other production are the primary drivers of climate change.[10] Like some health professionals, American Public Health Association (APHA) strongly opposes EPA’s decision for these rollbacks.[11] APHA argues “these rules are especially important, as they would bring environmental and climate justice to historically disadvantaged communities, which face the greatest exposure to pollution from the power sector.”[12] Many private and public organizations have joined in opposition to these rollbacks including, U.S. Climate Alliance, Sabin Center, Health Care Without Harm.[13] All of which have expressed how the repeal of these standards can cause significant harm.[14]
Under the CAA, the Administrator shall include sources that contributes significantly to air pollution resulting in possible endangerment to public health or welfare.[15] In Massachusetts v. EPA, the Court originally only refers to motor vehicles or “moving” sources as a necessary regulated issue.[16] That holding addresses key distinctions that relied upon statutory interpretation of the CAA. Under CAA, a pollutant must reasonably be anticipated to endanger public health or welfare.[17] EPA argues that GHG emissions from fossil-fuel-fired power plants do not contribute to dangerous air pollution.[18] EPA also proposes that it is the responsibility of the agency to prove the emissions are dangerous prior to issuing regulations.[19]
Removing the regulation standards opens the door for power plants to emit anything and everything they want without accountability. EPA estimates this proposal would save over $15 billion on regulatory costs over the course of two decades.[20] Not only does EPA believe GHG emissions play a little part in climate change, the proposal does not address any future public health concerns of these rollbacks.[21] A repeal of emission standards would constitute a clear violation of CAA. [22] New or previously existing facilities would no longer be enforced to regulate their emissions.[23]
EPA’s proposal is based on a new scientific and economic framework that contradicts the Endangerment Finding codified in 2009.[24] The Endangerment Finding states that regulation must be prescribed for any motor vehicle that emits air pollutants. The Endangerment Finding also states that regulations can be set if emissions contribute to the endangerment of public welfare.[25] EPA’s proposal to remove the Endangerment Finding is supported by the Department of Energy, where multiple scientists challenged the validity of the climate crisis.[26] The scientists claim that models and experience suggest that CO₂ “might be less damaging economically than commonly believed, and excessive mitigation policies could prove more detrimental” to economic and environmental safety.[27] The authors of the Greenhouse Gas Emissions Review exhibit skeptic ideology regarding climate change.[28] An administrative push towards less regulatory restrictions and skepticism of climate change could play a major role on why the EPA is utilizing this report. Regardless, the objective to repeal the Endangerment Finding directly correlates to GHG emissions under CAA. A rollback of these necessary standards could cause legal and environmental uproar.
EPA challenges the established authority under CAA to set emission standards. EPA establishes the standard of performance which creates a standard that reflects the “degree of emission limitation.”[29] Subsequently, this standard represents the best system of emission reduction and monitoring to prevent poor quality of health and environmental impacts. Even with emission standards in place, facilities are still meeting energy requirements.[30] This standard directly correlates with the administrative power to enforce the regulations.[31] EPA’s proposal wishes to reshape the meaning of standard of performance to allow EPA more leeway with emissions regulations.[32] In turn, the administration is attempting to remove current authority established within CAA that authorizes EPA to establish emission standards. EPA’s argument stems from seeking to eliminate regulatory roadblocks that prohibit efficiency.[33] While this action may streamline regulatory process, the proposal creates an open market for facilities to ignore previous standards. GHG emission standards established a sense of responsibility for emitters to protect the environment and public welfare. This proposal could negate years of challenging work and corporate accountability.
CAA stands as the foundational element to authorize EPA to regulate emissions from stationery and mobile sources. This aligns with the protection of public health and welfare.[34] EPA should not look at flawed science or misrepresentations of foundational statutes. EPA should focus on sustainability and not jeopardizing the safety of the community. Courts should continue to act against rash decisions, like this proposal, which deregulate key initiatives instead of protecting our environment.
[1] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).
[2] Massachusetts v. EPA, 549 U.S. 497, 521 (2007).
[18] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).
[21] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).
[32] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).
Withdrawing from the UN Climate Negotiations: Cascading Mistakes from the Trump Administration By Rachel Westrate
No one was particularly shocked when one of President Trump’s first acts upon returning to office on January 20, 2025 was to sign an executive order directing the State Department to withdraw from the Paris Agreement on climate change. After all, Trump pulled out of the Agreement during his first term, only for the United States to re-join the Agreement under the leadership of President Joe Biden in 2021. Now, a new January 7, 2026 Presidential Memorandum demands the U.S. withdraw from the parent treaty of the Paris Agreement—the United Nations Framework Convention on Climate Change (UNFCCC)—as well as 30 other United Nations entities and 35 non-U.N. organizations.
Withdrawal from the UNFCCC will make the United States the only U.N. member state that does not participate in the international climate treaty. For those who care about the health of our planet, U.S. foreign relations, or general international order, this move is deeply troubling. It is unsurprising that this Administration would take such drastic measures to prevent the United States from participating in the international climate conversation. But it is also a profoundly un-strategic move by the Trump Administration, given both their keen interest in international energy trends and ongoing domestic litigation against state climate laws.
This blog will provide a brief background on the international climate regime, summarize the legal speculations around the U.S. withdrawal from the UNFCCC, and discuss the implications for Trump’s international and domestic priorities.
Background: the UNFCCC & International Climate Negotiations
The United States was the first industrialized country and the fourth country overall to join the UNFCCC, after ratification by the Senate and signature by Republican President George H.W. Bush. As the first and still the most significant multinational climate treaty, the UNFCCC establishes the framework under which countries cooperate to address climate change. That framework entails an annual Conferences of the Parties (COPs) where UNFCCC member states negotiate “legal instruments” or “protocols” to help achieve the UNFCCC’s goal of stabilizing greenhouse gas concentrations in our atmosphere.
Countries have negotiated and adopted two main instruments under the UNFCCC: the 1997 Kyoto Protocol and the 2015 Paris Agreement. The United States signed the Kyoto Protocol in 1998. But the Senate never ratified that treaty, because it called for binding emissions reductions in developed countries without imposing similar obligations on developing countries (the Byrd-Hagel Resolution expressing the Senate’s distaste for Kyoto passed with a vote of 95 – 0). As soon as it became clear that the U.S., the largest annual emitter of greenhouse gases at the time, would not ratify the Kyoto Protocol, negotiations began anew under the UNFCCC to work toward an agreement that would be more universally accepted.
The result was the Paris Agreement. Paris, unlike Kyoto, does not mandate emission cuts from any country. Instead, it establishes a cooperative framework under which countries work together to limit warming to under 2 degrees Celsius by creating and submitting plans to reduce national greenhouse gas emissions (called Nationally Determined Contributions, or NDCs). Parties to the Paris Agreement must also submit annual reports on their greenhouse gas emissions. Aside from those reporting obligations, though, the Paris Agreement is an entirely voluntary instrument, relying on bottom-up, domestic action within countries to address climate change—an evolution from the top-down, mandatory emissions reductions required under the Kyoto Protocol. 195 member countries to the UNFCCC adopted the Paris Agreement in 2015, and President Obama used his executive authority to ratify the Agreement on behalf of the United States in 2016.
President Trump withdrew from the Paris Agreement upon taking office, with the U.S. withdrawal becoming effective in 2020. The U.S. then rejoined under President Biden in 2021, only to deposit a notice of withdrawal from the Paris Agreement with the Office of the U.N. Secretary General on January 27, 2025, shortly into Trump’s second term. The U.S. withdrawal will become effective one year from that date, on January 27, 2026. (For a full timeline and guide, see NRDC’s Paris Climate Agreement: Everything You Need to Know).
Legal Implications of Withdrawing from the UNFCCC
While a President can unilaterally withdraw from the Paris Agreement (given that President Obama unilaterally entered it in 2016), it is a matter of legal debate whether the same is true of the UNFCCC. During the last Trump Administration, legal scholars built a body of work exploring this question. Professor Harold Koh published a 2018 essay arguing the President does not have the authority to unilaterally terminate or withdraw from any international agreement. Professor Jean Galbraith argued in a law review article that if a President unilaterally withdraws from a Senate-ratified treaty, the action does not negate the Senate’s initial advice and consent, and a future President could unilaterally rejoin the same treaty without seeking Senate re-authorization. But there is no Supreme Court precedent on unilateral withdrawal or rejoining of Senate-ratified treaties, and so the question remains up for debate.
This time around, the climate legal community has been quick to opine on whether or not the President can withdraw from the Framework Convention without consulting Congress and what withdrawal might mean for U.S. participation under a more climate-friendly future administration. Former U.S. climate negotiator Sue Biniaz and Professor Galbraith explained the international and domestic process of withdraw and reiterated their theory of rejoining without additional Senate consent. Carbon Brief collected experts’ thoughts on withdrawal, rejoining, and practical changes to the climate negotiations absent U.S. participation, detailing the legal uncertainty of the move and analogizing to other international organizations the U.S. has left and rejoined. Law Professor Dan Farber suggested that the U.S. may not even need to be a party to the UNFCCC to play a role in the Paris Agreement. The Executive Secretary of the UNFCCC issued a statement on Thursday, January 8th noting that “the doors remain open for the US to reenter in the future”—but what that looks like legally is anyone’s guess.
We have yet to see if any litigation will be filed against the Trump Administration for this latest action—and whether any potential litigation may provide us with a definitive answer.
International Implications
By withdrawing from Paris, the United States will no longer be required to submit an NDC, nor will it submit yearly reports on domestic emissions (although, despite the withdrawal not officially occurring until 2026, the Trump Administration failed to submit the data in 2025). U.S. funding to the international climate organizations has ceased, including the UNFCCC and the Green Climate Fund (GCF).
But the U.S. withdrawal also means it can no longer participate in negotiations as a party and does not have the right to vote, which in turn means the U.S. will no longer have a say on topics that seem central to the Trump Administration’s policy agenda. In recent years, multinational climate negotiations have increasingly seen calls for an international roadmap to phase out fossil fuels, which would jeopardize the Administration’s goal of exporting domestic fossil fuels. The U.S. has already used its influence in other spheres to weaken environmental language coming out of the U.N., and it seems strange the Administration is willing to so easily give up the opportunity to thwart international climate progress.
Pulling out of the UNFCCC also means that future decisions and agreements will not reflect the interests or priorities of the United States—and are likely to be more heavily influenced by other big players. That includes China, which is rapidly expanding its global influence and renewable energy markets, and the European Union, which usually favors a more top-down, regulatory approach to addressing climate change in comparison to U.S.-favored market-based, voluntary approaches (for evidence of the U.S.-EU tension, see recently released State Department papers detailing the lead up to the Paris summit).
But what is bad for the Trump Administration could well be good for people and the planet. The lack of the presence of the United States, and particularly the Trump Administration, could leave room for more innovation and progress in the climate talks, as U.S. positions (in both Republican and Democratic Administrations) against mandatory emissions reductions, climate finance contributions, and phase-out of fossil fuel subsidies have frustrated negotiations in the past. While deep divides remain among countries party to the UNFCCC and the Paris Agreement, the power vacuum left by the U.S. may create an opportunity for new players and alliances to support ideas that would have previously been considered dead on arrival.
The folly of the Trump Administration and the potential for new movement in the climate negotiations, however, are unlikely to outweigh the staggering loss of the U.S. withdrawing from the UNFCCC. A climate process without the largest historical emitter of greenhouse gases, the second largest current emitter of GHGs, and the world’s largest economy can only achieve so much when climate change is a collective action problem. And while the international climate negotiations process will not break down without the participation of the U.S., the country has been a major player for the last thirty years and often a broker of compromise.
Beyond this Administration, if decisions and agreements coming out of the COPs are not reflective of U.S. priorities and political landscape, it may also make it more difficult for the U.S. to rejoin in the future. President Obama was able to unilaterally join the Paris Agreement because domestic legislation and authority already existed to allow the country to comply with obligations under the agreement—and U.S. negotiators worked to design the agreement with this in mind. Even in the final hours of the negotiations over the Paris Agreement, State Department lawyers had to lobby for a one-word change that threatened the U.S.’s ability to support the outcome. Without U.S. input and pressure, it is possible for the negotiations to produce outcomes that even a climate-friendly Administration would be unable to rejoin without action from the Congress.
Domestic Implications: Inconsistencies in Ongoing Litigation
Perhaps especially cofounding is the Trump Administration’s decision to withdraw from the UNFCCC while relying on U.S. membership in the organization to justify ongoing domestic litigation against state climate laws. Both Vermont and New York passed climate superfund acts in 2024, which require payments from entities that emitted large amounts of greenhouse gases in the past several decades to help pay for climate adaptation projects in the states. On May 1, 2025, the United States of America and the United States Environmental Protection Agency filed suit against Vermont and New York, claiming (among other things) that the climate superfund laws are preempted by the federal government’s foreign affairs power.
The basis for the lawsuits overall is fundamentally flawed, given that the climate superfund laws do not regulate greenhouse gas emissions, states have both a right and responsibility to protect their citizens and environment, and both the UNFCCC and Paris Agreement support subnational action. But putting aside the Trump Administration’s mischaracterization of the laws and misunderstanding of national and international law, withdrawing from the UNFCCC fatally undermines their arguments that the federal government’s participation in the UNFCCC is what preempts states from acting on climate.
In its complaint against Vermont, the United States argues that “[b]y adopting the Framework Convention, the federal government undertook to formulate foreign policy” on greenhouse gases. It characterizes Trump’s decision to withdraw from the Paris Agreement as a foreign policy decision because Trump wants to “put the interests of the American people first in negotiating the terms of any future treaty to implement the” UNFCCC. The Vermont Act, the brief claims, “interferes with… the United States’ participation in the” UNFCCC. In a subsequent brief, the Department of Justice also argues that state climate superfund statutes conflict with the 1987 Global Climate Protection Act, in which Congress directed the President to “‘work towards multilateral agreements’ on greenhouse gas emissions.”
By withdrawing from the UNFCCC, the Trump Administration has pulled the rug out from under those arguments. The Administration has ensured that the United States will not be negotiating any future treaty to implement the UNFCCC or to carry out its obligations under the Global Climate Protection Act. By abdicating its role in formulating the American climate policy, the Trump Administration may well have cleared the way for states to fill the void.
The news from January 7th is, without a doubt, a major setback for the international climate negotiations. But it is also, as U.N. climate chief Simon Steill said, a “colossal own goal” for the United States and the Trump Administration in their quest to influence international and domestic climate priorities in the coming years.
Justice and Equity in Community Forestry: An Enigmatic Dogma? By Aayush Gautam[1]
In 1987, the Brutland Commission offered the world a new vision with the report “Our Common Future”: a development that meets present needs without compromising the future.[2] This gave rise to a new domain of developmental approach, the concept of “Sustainable Development”, which gained global prominence in the early 1990s.[3] With this came a wave of participatory natural resource management, an ethos grounded in local empowerment and ecological sustainability. Around the globe, countries began embracing models that placed communities as a frontier of development and environmental stewardship.
Nepal, a readily accepting nation for the global initiatives, rode this global wave with legal acceptance in the forestry sector giving legality to the Community Forestry (CF), which later became one of the most acclaimed environmental governance models in the country.[4] However, community-based forest management in Nepal had already taken root in earlier decades, under state-led programs such as Panchayat Forest and Panchayat Protected Forest under the legal provision of Forest Act, 1961.[5] While these earlier models were framed under the centralized Panchayat governance structure, they offered a glimpse of local involvement in forest care and use.
By the early 1990s, this evolved into a nationwide movement. Community Forests, now legally recognized and supported by formal policies, became one of the most acclaimed environmental governance models in the country. Fast forward to today, over 23,000 Community Forestry User Groups (CFUGs) manage approximately 2.58 million hectares, accounting for more than 36% of Nepal’s forest area.[6]
Community Forests: Beyond the canopy
The journey of CFs is, by many measures, a success story. Did CFs help reestablish depleted forest cover that had been lost in the 1970s and 80s? Yes. Did they support livelihoods and reduce dependency on state-managed resources? Yes. Did they strengthen local relationships and collective action? Yes. Did they inject value into local economies and into the national economy as a whole? Yes. But as in most complex social endeavors, bold “Yes” or “No” answers rarely capture the full picture. There is often a blurry line between the two sides of yes and no.
For example, while community forestry successfully restored forest cover, a critical examination is required: : What is the actual meaning of forest restoration? Is it just the visual recovery of the tree stands and increased forest cover? Or the regeneration of a healthy, functional forest ecosystem? Much of Nepal’s CF’s success has focused on reestablishing lost forest cover, but issues of monoculture plantation, the growing threat of wildfires, biodiversity loss of often ignored flora and fauna cast doubt on the ecological robustness of this restoration. Similarly, CFs were initially established to meet local sustenance needs, especially in Nepal’s mid-hills, where fuelwood was essential for cooking. But has CF governance evolved to meet the changing aspirations of communities whose energy needs, economic goals, and demographic dynamics have shifted? Theat remains an unreached terrain of answered geography.
However, caution to the readers, this article does not aim to glorify the pessimistic views presented to downplay CF’s notable achievements. Romanticizing or vilifying the participatory model misses the nuances of interpretation. The goal of this piece is to reflect honestly upon the scenario, on the dimensions of social justice and equity, which often remain buried beneath the roots of a tall standing forest canopy.
The Musahar Community Forest is located at the confluence of Khairmara and Madiya river in Ward No. 10 of Bardibas Municipality, Mahottari district. With an area of 36 Hectares, it serves as a vital resource for its users, which provides both ecological benefits and livelihood opportunities. During the early 1980s, local communities from Gausala (south of the forest) felled the forest trees for agricultural purposes, starting a feud with the forest authorities. In the early 1990s, the forest was covered with overgrown bushes, which were cleared by the Musahar community and subsequently planted with fruit trees. Mangoes, jackfruit, citrus, and litchi trees were introduced in about 14 hectares of land. “Each of the 37 households planted 32 fruit trees in the forest completing almost 2000 fruit trees plantation in 1996” – says Dev Narayan Yadav and Ramchandra Sada.
The sale of mangoes through contracts brought an annual average income of almost 0.5 million (all financial figures written in Nepali rupees, NRS). The community already have provided assistance of almost 2 million in social and infrastructure development initiatives like roads, electricity, drinking water, and hospitals. “We were providing monthly salary of 49 thousand to four teachers of Musahar and Yadav community in the nearby school” – says one of the members in the meeting of the user groups. The hand-over of the community forest soon became a transformative initiative in enhancing both ecological and social well-being.
Nonetheless, things gradually took an unprecedented turn. Tensions began to rise among and within the community once lucrative income from the mangoes sales became apparent. Initially managed by the marginalized Musahar and Tamang communities, the CF soon faced demand for inclusion from communities like Koiri, Yadav, and Mahato households. These disputes led to divisions among community members, fueled by historical grievances and socio-political dynamics. “Whenever the meetings were held, disputes arose, and after that, forest officials stopped attending the meetings” – says Ram Babu Mahato in the user group meeting.
Internal tensions, coupled with allegations of financial mismanagement, also made Mangoes’ contract inconsistent and on the brink of closure. Total earnings from the sales were overshadowed by the Secretary of the committee, with significant amount left unrecorded and unaccounted for. This exacerbated mistrust among users. Consequently, the financial discrepancy is being watched by the Commission for the Investigation of Abuse of Authority (CIAA), the bank account has been frozen, and the salaries of the teachers have not been paid for five months. The forest’s exemplary transformation to the community-managed resource spectacle devolved into a state of stalemate and governance fiasco.
Reflection and Conclusion
The issue in the Musahar CF is not an isolated case. It is a reflection, sometimes a warning, of deeper structural issues in community forests across Nepal. Power asymmetries, weak institutional safeguards, and selective participation often overshadow the ideals.
One of the female CFUG secretaries in Kavrepalanchowk district of central mid-hill region says, “I’m in the committee just as a mud statue. They tell me to sign a decision or a cheque, so I do. I don’t know what they do or how they do it. They say nothing will happen.” In the name of obligatory representation, it is a symbolic inclusion, a common practice across many CFUGs. We cannot deny that the “pseudo-participation” seen here is not mirrored in countless community-based forest governance, where decisions are made behind the back and marginalized voices are reduced to a mere signatory.
If Nepal’s community forestry model is to thrive ecologically and ethically, it must go beyond the practice of merely planting trees and sharing resources based on legal provisions. It must redistribute power, recognize structural inequalities, and represent all voices fairly, especially those of the marginalized ones. Because in the end, a community forest is more than just a patch of trees. It is a social contract, and its health depends as much on its canopies as on the justice rooted beneath it.
[1] Aayush Gautam is a forestry researcher working at the intersection of forest science, governance, and forest-based enterprise development in Nepal. He holds a Master of Science in Forestry (Gold Medalist) from Tribhuvan University and has a background in applied research, policy analysis, and field-based forest management.
[2]See Our Common Future, Rep. Of the World Comm’n on Env’t and Dev., U.N. Doc. A/42/427 (1987).
[3] . History of SD, Sustainable Development Commission, https://www.sd-commission.org.uk/pages/history_sd.html (last visited Oct. 5, 2025).
[4] Forrest Act, 2049 of 1993; see also G. C. Dhruba Bijaya, et.al., Community Forestry And Livelihood In Nepal: A Review, The Journal of Animal & Plant Sciences (2016), https://www.thejaps.org.pk/docs/v-26-01/01.pdf.
[5] Pramod Ghimire & Uchita Lamichhane, Community Based Forest Management In Nepal: Current Status, Successes and Challenges, Grassroots Journal of Natural Resources (June 20, 2020), https://www.researchgate.net/publication/342501024_Community_Based_Forest_Management_in_Nepal_Current_Status_Successes_and_Challenges.
[6]Nepal’s Community Forest Groups: Incubators of Democracy, Community Conservation (July 2, 2025), https://communityconservation.org/nepals-community-forest-groups-incubators-of-democracy/; see also Hari Krishna Laudari, et.al., Community forestry in a changing context: A perspective from Nepal’s mid-hill, 138 Land Use Policy (Mar. 2024), https://www.sciencedirect.com/science/article/pii/S0264837723004842.
[7] Some assertions are from the Author’s experience during a field visit to the Musahar Community Forest. The field visit was conducted in June 2025 and involved direct observation, participation in user group meetings, and discussions with community forest user group members and local residents. The following account draws on these field interactions and community testimonies.
Can You Dig It? Artificial Pond Construction in Vermont By Dane Whitman
“What I have observed of the pond is no less true in ethics. It is the law of average.”[1]
In 1901, the Harvard Law Review published an article stating, “[a]lthough comparatively little has as yet been written about the law of ponds, the decisions are hopelessly confused.”[2] One could argue that, since then, ponds continue to attract relatively little attention in the field of environmental law. Rather than perform an extensive review of the “law of ponds” (previously attempted by Samuel Warren and Louis Brandeis in the 1889 edition of Harvard Law Review),[3] this blog post will explore a narrower topic: artificial pond construction in Vermont.
Vermont is home to “hundreds of small ponds, many of which provide a great habitat for plants, animals, and people.”[4] Satellite images over Vermont (such as the title image) reveal a landscape sprinkled with countless kidney-bean-shaped pockets of water seemingly unconnected to natural waterways.[5] Are these pools the result of lawless backwoods excavations? Or are backyard ponds evidence of Vermonters exercising their property rights to improve the local ecosystem? An overview of Vermont’s legal landscape suggests that there are both environmental opportunities and considerable risks regarding artificial ponds.
One example of a Vermont homestead utilizing artificial ponds for environmental benefits is Whole Systems Research Farm in the Mad River Valley.[6] The farm’s owner, Ben Falk, excavated a pond that catches rainwater and snowmelt from the upper portions of the property and then irrigates a series of terraced rice paddies.[7] The pond serves as a “bathroom” for his domestic ducks, and therefore the pond water irrigating the rice paddies is “rich in nutrients.”[8] The two small paddies are scaled for subsistence farming, producing enough rice “to satisfy the grain needs of a family of four.”[9]
Amy Siedl, a biologist and lecturer at the University of Vermont, has cited Falk’s farm as a model for climate adaptation.[10] Seidl has suggested that, given the Northeast’s increasing precipitation from climate change, artificial pond systems such as Falk’s are well-suited to capture rain from these events.[11] For example, Falk’s rice crop “thrives” during historic rain events, such as Hurricane Irene, whereas many of Vermont’s corn farmers have struggled with increasingly wet soil conditions.[12]
The remarkable potential of these artificial ponds begs the question: are they legal? Most prudent property owners might be intimidated by the prospect of renting an excavator and breaking ground without performing due diligence. Fortunately, Vermont regulators provide guidance (often accompanied by disclaimers of liability) for property owners to dig ponds that are structurally safe and environmentally sound.
To some extent, Vermont law supports property owners to construct artificial ponds. For example, Vermont’s statutes expressly allow property owners to stock and harvest fish from “artificial ponds.”[13] This requires, however, that “the sources of water supply for such pond are entirely upon his or her premises or that fish do not have access to such pond from waters not under his or her control . . . .”[14] In essence, this statute facilitates backyard fish farming, also known as “aquaculture.”[15]
Vermont’s administrative agencies also provide ample guidance for property owners who wish to excavate and manage artificial ponds on their property. Some of this guidance is practical, ranging from siting considerations; water supply needs; various depth requirements for fish versus waterfowl; which kinds of ponds require engineering consultation; and even a directory of excavation contractors.[16] The State also points potential pond owners to information regarding the best fish to stock, a list of native plants to prevent erosion, methods to maintain water quality for swimming, and how to optimize bird watching potential.[17]
While state resources appear to enable (if not encourage) pond construction, these materials also carry a strong dose of caution. Any pond “capable of impounding more than 500,000 cubic feet of water” will essentially constitute a dam requiring approval by the Department of Environmental Conservation.[18] For some perspective, a person could cover an acre of land with an 11-foot deep pond and still be shy of 500,000 cubic feet of water.[19] The Department explains, however, that even dams for small backyard ponds “are significant structures that can have major public safety and environmental implications.”[20] A variety of local, state, and federal laws can affect dam ownership, and more information can be found on Vermont’s Dam Safety Program website.[21]
Based on the specifics of a project, a suite of other regulatory entitles may also have a stake in your pond construction. Any construction that impacts a stream may require a stream alteration permit with Vermont’s River Management Program.[22] Any pond work that comes within fifty feet of a wetland may require a permit through Vermont’s Wetlands Program.[23] Other considerations include rare, threatened, and endangered species; fish and wildlife; local zoning bylaws; Vermont’s Act 250; historic or archaeological significance; and Vermont’s water quality standards.[24]
Of course, a great variety of tort and property law claims could also involve a pond. One illustrative case dates back to 1909, when a plaintiff successfully argued that mosquitos breeding behind a newly constructed dam caused him and his family to contract malaria.[25] While this was a Georgia case, the court’s words of wisdom apply to any Vermonter hoping to stay a good neighbor while constructing a new pond:
[I]n the construction of dams and in the backing of water they must choose their sites with due regard to the surroundings. They are not authorized to maintain stagnant ponds, polluted pools of water, or places in which mosquitoes breed, in unusual numbers to the endangering of the health of surrounding communities.[26]
Artificial ponds may provide an immediate opportunity for Vermont’s property owners to enhance biodiversity, climate resiliency, and land productivity on a hyper-local scale. Property owners should, however, perform due diligence to mitigate any potential environmental, public health, or safety issues associated with pond construction and maintenance. Nonetheless, it may be well worth the effort to hear choruses of frogs singing through the night; to watch birds inspecting the shoreline; or to ponder over schools of fish—all thriving because somebody dug a hole in the right place.
Lithium Valley Project Dead in the Water? By Jules Mulé
On the eastern border of California and Mexico lies the Sonoran desert’s hidden gem: the Salton Sea, the largest body of water in California.[1] It was formed in 1905 when the Colorado River flooded an irrigation canal servicing Imperial County farming communities.[2] From afar, the lake looks like an idyllic desert oasis. Up close, the Salton Sea is more akin to a harbinger of death. After decades of evaporation, the shrinking lake has bombarded residents with exposed pollutants from agricultural runoff that become airborne in toxic dust storms.[3] Constant exposure to these pollutants contributes to exceptionally poor air quality[4] and much higher rates of asthma than the national average.[5] Locals also face high poverty[6] and unemployment rates,[7] largely due to conservative-led immigration policy prioritizing border patrol.[8] But, there is hope for the residents of Imperial County, now known as the Lithium Valley.
The Salton Sea’s surrounding basin boasts geographical features that make it ideal for both geothermal energy production and direct lithium extraction.[9] Geothermal energy and lithium extraction are important tools for combatting climate change. Geothermal is a carbon-free renewable resource, and lithium is crucial for electrification because it is used in the large batteries found in electric vehicles and energy storage systems.[10] The most common method of lithium production is to evaporate large pools of brine, which involves significant freshwater consumption and pollution.[11] However, the geothermal energy plants around the Salton Sea present a unique opportunity for a cleaner method of lithium production. Geothermal plants use mineral-rich brine pumped up from beneath the Earth’s surface to generate electricity. This brine can be co-opted for “direct lithium extraction” before returning to the geothermal plant for subsurface reinjection.[12] Direct lithium extraction is currently the cleanest way to source lithium, as it extracts the lithium directly from the brine with minimal water loss.[13]
Only one domestic lithium mine is currently operational, so the United States is significantly dependent on the lithium from evaporation pools in Argentina and Chile.[14] Increasing domestic production would serve as an economic benefit, a supply security measure, and a step towards combatting climate change. These factors have led to an unprecedented amount of support from the federal,[15] state,[16] and local[17] governments for lithium production around the Salton Sea. The current administration also remains supportive of geothermal energy despite the largely negative treatment of decarbonization and renewable energy development.[18]
Controlled Thermal Resources (“CTR”) is determined to capitalize on the opportunity with the Hell’s Kitchen Project, a 50MW geothermal energy facility with large-scale direct lithium extraction facilities.[19] Hell’s Kitchen is estimated to generate 25,000 metric tons of lithium each year.[20] That much lithium would account for more than 10% of the global production in 2024.[21] However, there is substantial concern among community groups that local resident benefits are being overlooked and underprioritized.[22] Environmentalists are also concerned that risks associated with direct lithium extraction—especially water consumption and air pollution—are being ignored.[23] Motivated by these concerns, the Comité Cívico Del Valle (“CCV”) filed suit against CTR in the Imperial County Superior Court on March 13th, 2024.[24] The court dismissed the case in favor of CTR,[25] but CCV filed an appeal with California’s Fourth Appellate District nearly a year later.[26] In their brief, CCV claims that CTR had not conducted the environmental impact report properly, that they failed to account for the accurate scope of water use, and that they did not consult with local tribal leaders pursuant to California law.[27] CTR has until October 13th of this year to respond.
The lawsuit highlights a significant concern at the heart of the global climate crisis: how do we fight climate change without compromising on environmental justice? Decarbonization and electrification should counteract, rather than utilize, harmful environmental practices. Lithium batteries in electric vehicles and energy storage systems are crucial for decarbonization and electrification.[28] Accordingly, global production and consumption is projected to increase over 300% by 2030.[29] But importing nearly all of the lithium we’d need for these industries, as we do now, keeps the country dependent on fluctuating global supply generated by environmentally harmful traditional mining practices.
Domestic lithium production around the Salton Sea via direct extraction presents the unique opportunity to simultaneously increase supply security and promote a safer lithium extraction method. Domestic lithium production can also increase renewable energy development in the form of geothermal energy. However, there is equal opportunity to directly harm the Lithium Valley residents if environmental guidelines and community voices are ignored. To be done properly, mining operations in the Lithium Valley should be to the benefit of the local residents, not at their expense.
[5] Shohreh F. Farzan et al., Assessment of Respiratory Health Symptoms and Asthma in Children near a Drying Saline Lake, Int’l J. Env’t Rsch. and Pub. Health 1, 1 (2019).
[29] IEA, Global Critical Minerals Outlook 124–35 (2024).
Tribal Environmental Sovereignty in Oklahoma: Where Did It Come from and Where Did It Go? By Lauren Burden
What does environmental regulation look like for Tribes in Oklahoma today? To answer that question, an understanding of the complicated history of Tribal sovereignty in Oklahoma is essential.
There are three pillars of Tribal sovereignty: (1) inherent sovereignty, (2) delegated sovereignty, and (3) negotiated sovereignty.[1] Negotiated sovereignty comes from treaties and US Supreme Court decisions interpreting those treaties, such as Worcester v. Georgia and Cherokee Nation v. Georgia.[2] Both of these landmark cases confirmed tribal sovereignty by limiting state reach into tribal affairs and officially recognizing tribes as nations.[3] Inherent sovereignty, however, differs from negotiated sovereignty because it is rooted in tribes recognizing themselves as sovereign through self-governance, like they did before colonization.[4] Although tribes still practice inherent sovereignty today[5], tribal governance within reservations and tribal boundaries is often limited, especially regarding non-natives in civil cases.[6] Delegated sovereignty, on the other hand, seems to allow tribes a little more leeway.
Tribes get delegated sovereignty from Congress via the Commerce Clause.[7] The Clause states, “Congress shall have power . . . to regulate commerce with foreign Nations . . . and with the Indian Tribes,”[8] implying Indian Tribes are like foreign Nations. One example of delegated sovereignty in Oklahoma is the Environmental Protection Agency (EPA) delegating to qualifying Tribes the ability to create and manage environmental regulatory programs in Indian country.[9] Specific examples include the Quapaw Tribe of Indians (regulating air quality), the Pawnee Nation of Oklahoma (establishing water quality standards), and the Cherokee Nation (targeting lead abatement).[10] This delegation of sovereign authority, while still technically overseen by the EPA,[11] promotes tribal sovereignty through environmental regulatory self-governance.
Similar to Tribes, Oklahoma also receives authority from the EPA to regulate environmental programs over lands under EPA’s authority (with some oversight, of course).[12] Before McGirt v. Oklahoma, this typically meant tribal lands within Indian country were excluded from state regulation.[13] And since only some Tribes had delegated sovereignty to regulate environmental programs within Indian country, the EPA had environmental authority over most tribal lands before October 2020.[14] This all changed after McGirt.
McGirt v. Oklahoma is another landmark case regarding tribal sovereignty. Specifically, the Supreme Court held in McGirt that the Creek Nation’s reservation remained intact and that only Congress could disestablish it (which it had not).[15] After this ruling, Oklahoma State courts confirmed that other tribal reservations also remained intact.[16] While one would think this is great news for Tribal Nations in Oklahoma, there is a catch. The catch, also known as the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (“SAFETEA Act”), is an appropriations bill for transit programs and highway safety.[17] This unsuspecting bill has a provision, known as the midnight rider, that keeps tribes in Oklahoma from regulating their own environmental programs without making a deal with the State first.[18] And the State has used this to its advantage.
After McGirt, the State applied for EPA approval under the SAFETEA Act to regulate environmental programs over lands that were previously State regulated but are now considered Indian country.[19] Under the midnight rider, once the State requests this authority, the Administrator (here, the EPA) must grant approval.[20] The EPA approved it in October 2020.[21] But that’s not the end of this story.
In January 2021, President Biden issued an executive order requiring agencies to review the last four years’ actions and regulations to see if they conflict with any national objectives.[22] After review and consultation with Tribes,[23] EPA issued notice of a proposal to withdraw and reconsider its 2020 decision.[24] In January 2025, the EPA withdrew its 2020 decision and replaced it with the new 2025 decision, detailing its decision in a letter to Oklahoma’s Governor Stitt.[25] This new decision conditions state environmental regulatory approval on Tribal consultation through a specific engagement process,[26] and highly encourages individual State-Tribal agreements to better promote tribal sovereignty.[27] While Governor Stitt considers this an overreach of power,[28] tribal nations are ready to work with the State in protecting their valuable natural resources.[29]
Now we’ve seen where tribal environmental sovereignty in Oklahoma comes from and where it has been, but where will it go from here? That’s a question that only the State and the Tribes can answer. I just hope it’s someplace great.
[4]Id.; See also Kimberley Chen, Comment, Toward Tribal Sovereignty: Environmental Regulation in Oklahoma After McGirt, 121 Colum. L. Rev. Forum (2021).
[22]Id.; see also Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021).
NEPA Without CEQ: Environmental Review Under Trump and Seven County Written by Benjamin Behimer and Christophe Courchesne
Introduction
Long a cornerstone of federal environmental law, the National Environmental Policy Act of 1969 (NEPA) has been the target of a series of judicial and executive attacks in 2025. Below, we provide a brief description and history of NEPA, including legislative history, before examining how the 2025 rescission of CEQ’s government-wide regulations and the Supreme Court’s decision in Seven County reshape the practical future of NEPA litigation.
I. NEPA and Congressional Intent
NEPA passed with overwhelming support in both chambers of Congress in 1969 and was signed into law by President Richard Nixon on January 1, 1970.[1] Congress set out NEPA’s purpose, inter alia, in Section 101:
[I]t is the continuing policy of the Federal Government . . . to use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.[2]
Congress also recognized that there had been no uniform national policy or guidance for managing the environment and its natural resources.[3] It indicated that one purpose of NEPA was to provide this policy.[4]
Section 102 implemented “action-forcing procedures” to ensure that the policy goals in Section 101 were met.[5] Congress directed that all other federal laws should be interpreted and applied in accordance with Section 102 “to the fullest extent possible.”[6] It also required all agencies of the Federal Government to prepare a “detailed statement,” i.e., an environmental impact statement (EIS), for all “major Federal [sic] actions significantly affecting the quality of the human environment.”[7] The House’s Conference Report provided a succinct summary of the elements that were to be considered in an EIS:
[T]he environmental impact of the proposed action, any adverse environmental effects which can not [sic] be avoided should the proposal be adopted, alternatives to the proposed action, the relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved.[8]
In practice, agencies do not undertake EISs for most projects. If the agency responsible for drafting the EIS is uncertain whether the major federal action[9] will significantly affect the environment, it will prepare an environmental assessment (EA).[10] An EA has less stringent requirements than an EIS and is significantly shorter.[11] A common conclusion of an EA, a finding of no significant impact (FONSI), is the endpoint of the process.[12] Depending on whether the agency finds that its action will have significant environmental effects, it will prepare either a FONSI or an EIS.[13] If the agency determines that there will be no significant environmental effects, it will issue a FONSI that explains its reasoning for finding no significant impacts.[14] If it finds that the project will have significant effects, it will prepare a full EIS.[15]
II. “Purely Procedural”
In the early years following NEPA’s enactment, the U.S. Court of Appeals for the D.C. Circuit established that NEPA is primarily a procedural statute.[16] Although the court did not completely foreclose the possibility that a court could reverse an agency’s substantive decision, there has never been a successful challenge of an agency’s substantive decision under NEPA.[17] In other words, NEPA requires agencies to study the environmental consequences of their proposals through a prescribed process that includes substantial public involvement but does not dictate what agencies ultimately do. The statute reflects Congress’s insistence that agencies carefully consider the environmental values articulated in the law, without imposing those values on every decision.
In May 2025, the Supreme Court issued its most recent NEPA decision, Seven County Infrastructure Coalition v. Eagle County, confirming that NEPA is “purely procedural” and “‘does not mandate particular results, but simply describes the necessary process’ for an agency’s environmental review of a project.”[18] The Court further stated that in determining whether an “agency action was arbitrary and capricious[19] due to a deficiency in an EIS,” the reviewing court may only review whether “the agency has addressed environmental consequences and feasible alternatives as to the relevant project”—not whether the agency’s decision to move forward with the project was the “correct” one.[20]Seven County’s other key holdings are discussed below.[21]
III. The Council on Environmental Quality
NEPA Section 202 established the Council on Environmental Quality (CEQ).[22] The CEQ’s statutory purpose is to advise the president by compiling information to help determine whether NEPA’s policy goals are being met and to recommend national policies that further NEPA’s goals, as set out in Section 101.[23] Notably, NEPA was not the direct source of CEQ’s authority to create and enact NEPA regulations. Instead, CEQ’s authority to create NEPA regulations has historically been grounded in an executive order issued by President Jimmy Carter in 1977.[24] Pursuant to Carter’s executive order, CEQ promulgated final NEPA implementing regulations on November 29, 1978, to “accomplish three principal aims: to reduce paperwork, to reduce delays, and to produce better decisions.”[25]
Aside from technical changes and an amendment to one provision in 1986, CEQ’s NEPA implementing regulations remained unchanged for 40 years.[26] President Trump broke this streak in 2017 when he issued an executive order directing CEQ to identify and propose changes to the regulations.[27] CEQ proposed regulations and, after notice and comment, these updated regulations were adopted in 2020.[28] These changes were reversed shortly thereafter under President Biden in two phases—the first in 2022,[29] and the second in 2024.[30] In the background sections of both the 2022 and 2024 CEQ final rules, CEQ emphasized the important role its regulations have played in realizing NEPA’s purposes:
[T]he NEPA regulations reflected CEQ’s interpretation of the statutory text and Congressional intent, expertise developed through issuing and revising the CEQ guidelines and advising Federal agencies on their implementation of NEPA, initial interpretations of the courts, and Federal agency experience implementing NEPA. The 1978 regulations reflected the fundamental principles of informed and science-based decision making, transparency, and public engagement Congress established in NEPA.[31]
All seemed well again until, in 2024, a panel of the D.C. Circuit held in Marin Audubon, sua sponte, that all CEQ NEPA regulations were ultra vires.[32] Without engaging with the nearly half-century of experience of the regulations or receiving briefing from the parties, the court’s reasoning was simple and superficial: under separation-of-powers principles, the executive cannot create laws through an executive order.[33] In other words, because CEQ’s rulemaking authority stemmed from an executive order rather than legislation, CEQ’s regulations are not legally enforceable. Marin Audubon was the perfect opening for President Trump to take CEQ’s regulations off the books.
IV. Executive Order 14154 and the Rescission of CEQ’s NEPA Regulations
On January 20, 2025, President Trump issued Executive Order 14154: Unleashing American Energy.[34] A lengthy read, the Order begins by setting out background and policy goals: namely, that the U.S. is rich in natural resources and that it is the policy of the U.S. to remove as many regulations as possible to extract those resources.[35] Specifically, Trump ordered an “immediate review” of all agency actions that might impose an “undue burden” on domestic energy resource development.[36] He revoked Carter’s executive order authorizing CEQ to issue NEPA regulations and directed the CEQ Chairman to propose rescinding CEQ’s NEPA regulations and to provide “guidance on implementing the National Environmental Policy Act.”[37]
CEQ issued an interim final rule on February 25, 2025, rescinding its NEPA regulations and requesting public comments.[38] It delayed the rule’s implementation until April 11, 2025.[39] Although CEQ’s authority for issuing an interim final rule under the APA’s “good cause” exemption was certainly questionable under the circumstances, it was ultimately not challenged, likely due to the D.C. Circuit’s determination that CEQ’s NEPA regulations were ultra vires.[40]
Despite CEQ’s rescission of its NEPA regulations, there is still binding and nonbinding authority that agencies and NEPA practitioners can rely on. The first place to look is NEPA itself. Caselaw and binding agency-specific NEPA regulations (i.e., agency rules that do not constitute nonbinding guidance) are also applicable. Agency regulations themselves are now also in transition, as agencies work to implement CEQ’s directive to modify their rules to expedite permitting;[41] some agencies have moved to rescind their own procedures altogether.[42] Regarding nonbinding guidance, CEQ published a memorandum on September 29, 2025, in which it recommended that agencies voluntarily rely on its rescinded NEPA regulations.[43] It also discussed and urged agencies to keep in mind the Supreme Court’s decision in Seven County, which it correctly described as a “landmark decision.”[44]
V. The Supreme Court’s Seven County Decision: Deference
In Seven County, the Court reversed the U.S. Court of Appeals for the D.C. Circuit’s holding that the U. S. Surface Transportation Board’s EIS—which considered the environmental effects of an 88-mile railroad line construction project to connect the oil-rich Uinta Basin to a national rail network—was inadequate.[45] The Court’s reasoning was twofold: first, the D.C. Circuit “did not afford the Board the substantial judicial deference” that NEPA requires;[46] second, contrary to the D.C. Circuit’s holding, NEPA did not require the Board to address the upstream or downstream environmental effects of the project.[47]
Regarding the “substantial judicial deference” that NEPA requires, the Court held that NEPA is “purely procedural,”[48] and that “[t]he bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.”[49] The Court reasoned that agencies, not courts, should “determine whether and to what extent to prepare an EIS . . . ” because agencies better understand the relevant facts of projects under their authority.[50] The Court further emphasized that courts should defer to agencies “so long as [the agency’s decision] fall[s] within a broad zone of reasonableness.”[51]
Regarding the Court’s holding that agencies need not consider the upstream or downstream environmental effects of the project, the Court stated that substantial deference should also be afforded to agencies regarding the scope of the environmental effects to be addressed.[52] In Seven County, the Board determined in its EIS that the possible upstream environmental effects of building the rail line—namely, a potential increase in oil drilling in the Uinta Basin—fell outside the scope of its EIS because the Board would not have authority over potential future oil drilling projects in the Basin, and any environmental effects from future drilling projects were speculative and attenuated from the rail line project.[53] The Board similarly reasoned that the possible downstream environmental effects of the project—namely, that oil from the Uinta Basin would be transported to refineries elsewhere in the U.S.—fell outside the scope of its EIS because the Board would not have authority to regulate the oil refining process, and it would be difficult to identify which refineries to analyze in the EIS.[54]
The Court held that the Board’s decision not to analyze the upstream or downstream effects of the rail line project should have been afforded substantial deference, and that “when the effects of an agency action arise from a separate project—for example, a possible future project or one that is geographically distinct from the project at hand—NEPA does not require the agency to evaluate the effects of that separate project.”[55] Ultimately, the Court’s holding that agencies need not analyze the environmental effects of projects separate in time or place from the current project relied on the reasoning that such projects break the proximate chain of causation between the environmental effects of such projects and the project under review.[56]
The Court emphasized that through this decision, it was making a “course correction”[57] to bring what it deemed “overly intrusive (and unpredictable)” judicial review in NEPA cases back to NEPA’s statutory language.[58] In this regard, Seven County—empowering agencies to disregard NEPA’s statutory values—is in arguable contradiction with the Court’s recent decisions scaling back agency authority.[59] In describing the required level of judicial deference to agency decision making, the Court quoted Baltimore Gas: “[b]lack-letter administrative law instructs that when an agency makes those kinds of speculative assessments or predictive or scientific judgments, and decides what qualifies as significant or feasible or the like, a reviewing court must be at its ‘most deferential.’”[60] But what was the Court referring to when it wrote “those kinds”?
By “those kinds of speculative assessments or predictive or scientific judgments,” the Court was attempting to draw a broad category of agency decisions that, if speculative, predictive, or scientific, should be deferred to. However, the Court misapplied the language from Baltimore Gas. The Court in Baltimore Gas was referring specifically to situations in which the agency is making decisions at the frontiers of science[61]: “a reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.”[62]
Despite its holding that NEPA’s bedrock principle is deference, the Seven County decision failed to correctly distinguish between agency decisions that are made at the frontiers of science—such as the Nuclear Regulatory Commission’s decision regarding long-term nuclear waste storage in Baltimore Gas[63]—from those decisions that are more common or more easily understood. Whether courts will be sympathetic to this distinction remains to be seen.
What’s Next for NEPA?
NEPA was one of the first comprehensive federal environmental statutes, in which Congress recognized that “each person has a responsibility to contribute to the preservation and enhancement of the environment.”[64] Although NEPA is “purely procedural,”[65] it was enacted with the hope that, by following NEPA’s required procedures, agencies would consider the significant environmental effects of their actions.[66] That aspiration has never been more under threat, and the statute’s roles as a sentinel and a bulwark against environmental degradation will depend on how advocates, agencies, and courts navigate the coming years of disputes in the new world of NEPA implementation under Trump and Seven County.
Author Bio: Ben Behimer is the Senior Managing Editor of the Vermont Law Review for Volume 50 at Vermont Law and Graduate School. His interests focus on environmental and energy law, and he wrote this piece drawing on his work with Vermont Law and Graduate School’s Environmental Advocacy Clinic, where he has worked on NEPA-related litigation. He thanks Professor Christophe Courchesne for his guidance and feedback on this piece.
[2] 42 U.S.C. § 4331(a) (emphasis added). Section 101 also lists more specific policy goals, such as assuring a safe and healthful environment for all Americans and recognizing that “each person has a responsibility to contribute to the preservation and enhancement of the environment.” Id. § 4331(b)(2), (c).
[9] The phrase “major federal actions” has been construed broadly, such that it is easier to describe what does not constitute a major federal action than to describe what does: “[m]ajor federal actions do not include nonfederal actions with ‘no or minimal federal funding,’ federally funded actions where the agency lacks oversight or control over the subsequent use of the funds, or other circumstances where the federal agency ‘does not exercise sufficient control’ over the outcome of the project.” Kristen Hite & Heather McPherron, Cong. Rsch. Serv., IF12560, National Environmental Policy Act: An Overview 1 (2025).
[16] Calvert Cliffs’ Coordinating Comm., Inc. v. U. S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).
[17]Id. at 1115 (stating that courts “probably” could not reverse a substantive decision on the merits).
[18] Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 145 S. Ct. 1497, 1510 (2025) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)).
[19] NEPA challenges are typically brought under section 706 of the Administrative Procedure Act because NEPA itself does create a cause of action. Eli Dourado, Much More Than You Ever Wanted to Know About NEPA, The Ctr. for Growth & Opportunity (Oct. 20, 2022), https://www.thecgo.org/benchmark/much-more-than-you-ever-wanted-to-know-about-nepa/. APA § 706 requires that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
[40] Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902, 908 (D.C. Cir. 2024). The APA allows agencies to dispense with “notice and public procedure” if it determines them to be “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). CEQ stated in its interim final rule that “the need to meet the deadlines in E.O. 14154 and to avoid agency confusion given the recent vacatur of CEQ’s 2024 Rule” made notice and comment impracticable and unnecessary. Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10610, 10614 (Feb. 25, 2025). It is well established in administrative law that the need to meet a deadline cannot, in itself, satisfy the good cause exemption. United States v. Gould, 568 F.3d 459, 480 (4th Cir. 2009) (“strict congressionally imposed deadlines, without more, by no means warrant invocation of the good cause exception”). Additionally, CEQ’s reasoning that “agency confusion” renders notice and comment unnecessary would be unlikely to satisfy the good cause exemption. United States v. Valverde, 628 F.3d 1159, 1166 (9th Cir. 2010) (“If ‘good cause’ could be satisfied by an Agency’s assertion that ‘normal procedures were not followed because of the need to provide immediate guidance and information[,] . . . then an exception to the notice requirement would be created that would swallow the rule’”) (quoting Zhang v. Slattery, 55 F.3d 732, 746 (2d Cir. 1995)).
[41] Council on Env’t Quality, Exec. Off. of the President, Memorandum for Heads of Federal Departments and Agencies, Implementation of the National Environmental Policy Act 1 (Feb. 19, 2025).
[42] For example, the USDA and DoD rescinded most NEPA regulations of the agencies under their purview in favor of more general, department-wide regulations. Federal Agencies Roll Out New NEPA Regulations, Greenberg Traurig (July 10, 2025), https://www.gtlaw.com/en/insights/2025/7/federal-agencies-roll-out-new-nepa-regulations; National Environmental Policy Act, 90 Fed. Reg. 29632, 29632 (July 3, 2025) (publishing an interim final rule and request for comments rescinding USDA’s NEPA regulations); Department of Defense Implementation of the National Environmental Policy Act, 90 Fed. Reg. 27857, 27857 (June 30, 2025) (providing notice that the Army, Navy, and Air Force are rescinding their NEPA regulations). Other agencies have taken different approaches; for instance, the DoI rescinded most of its NEPA regulations, but stated in its interim final rule that it would maintain most of its NEPA procedures in a Handbook separate from the Federal Register. Brandon Tuck et al., The New NEPA: Federal Agencies Overhaul Procedures for Environmental Reviews, Vinson & Elkins (July 11, 2025), https://www.velaw.com/insights/the-new-nepa-federal-agencies-overhaul-procedures-for-environmental-reviews/; National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 29498, 29498 (July 3, 2025).
[43] Council on Env’t Quality, Exec. Off. of the President, Memorandum for Heads of Federal Departments and Agencies, Implementation of the National Environmental Policy Act 3 (Sept. 29, 2025).
[54]Id. The Court stated that the identity of refineries would depend on the refineries’ ability and willingness to receive oil from the Uinta Basin. Id. at 1509.
[59] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority . . . . ”).
[60]Seven Cnty., 145 S. Ct. at 1512 (quoting Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)).
[66] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts . . . [and] ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.”).
