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Is Loper Bright a Red Herring? Why Ohio v. EPA Could Be Dangerous for Environmental Federal Agencies 

By Christina Karem & Laurie Beyranevand

The 2024 term of the United States Supreme Court resulted in historic rulings affecting a variety of hot-press issues. Notably, this term reshaped administrative law and regulatory agencies in unprecedented ways. With the overturning of Chevron deference and the narrowing of rulemaking authority, regulatory agencies and regulated entities are scrambling to understand how two landmark cases will affect the enforcement and implementation of federal statutes.  

 One of the two consequential rulings was Loper Bright Enterprises v. Raimondo (Loper Bright), which overturned Chevron deference—a doctrine courts used to defer to agency’s reasonable statutory interpretation in the face of ambiguity. Another opinion that received less attention is Ohio v. Environmental Protection Agency (Ohio v. EPA). In Ohio v. EPA, the Court addressed the question of whether the EPA’s “good neighbor” rule, which is meant to limit transboundary pollution, should be stayed pending the outcome of a challenge by several states, industry groups, and others who argued the rule was arbitrary and capricious. While Loper Bright dismantles the Chevron deference framework, Ohio v. EPA goes a step further by questioning the validity of substantive regulatory decisions, raising concerns about the future of effective environmental governance. 

 This article argues that while Loper Bright captured the nation’s attention regarding administrative law, the threat posed by the Ohio v. EPA decision warrants serious attention. Language in the Court’s opinion suggests a return to a stricter version of hard look review that could challenge the expert-based substantive decision-making of federal regulatory agencies through judicial review. For environmental agencies like the EPA, this judicial development could hinder their ability to make science-based, expert-informed decisions in the face of pressing environmental challenges. 

 The Cases: What Happened and What Does It Mean? 

 In Loper Bright, the Supreme Court overruled Chevron v. Natural Resource Defense Council (1984). The Court held that the Administrative Procedure Act (APA) requires courts to exercise their own judgement on whether federal agencies have acted within their statutory authority. The courts should no longer defer to agency interpretation in the face of ambiguity—opposite Chevron deference.  

 Chevron deference was a two-part test courts employed when reviewing agency statutory interpretation. First, a reviewing court was to determine whether Congress had directly spoken to the question at issue. If congressional intent was clear, the judicial analysis was complete and the clear statutory language should be followed. But if congressional intent was ambiguous or silent, the courts were to defer to the agency’s reasonable interpretation. Should the courts determine the agency’s interpretation was not reasonable, the courts would disallow the agency’s interpretation.  

 Loper Bright expressly overruled Chevron. With this opinion, the Court established a ‘best interpretation’ standard—courts should use all statutory interpretation tools at their disposal to determine the best reading of a statute and resolve ambiguity, rather than deferring to the agency’s permissible construction. The Court emphasized the judiciary’s responsibility to determine statutory meaning, rather than the agency. This shift fundamentally alters how courts have approached these questions since Chevron by removing the long-standing presumption of agency ability to resolve unclear legislative mandates. The Court also highlights the lack of agency expertise in resolving statutory ambiguity, suggesting that they are not situated to understand how to interpret statutes despite their role administering, implementing, and enforcing often complex regulatory schemes. They point to the Framers’ anticipation that courts would resolve statutory ambiguities because that is the job of the judiciary—to interpret statutes. Loper did not say that courts cannot agree with agencies’ interpretations or give them a certain amount of respect, but they can no longer claim Chevron deference applies in the face of statutory ambiguity. While an important case for administrative law, Loper Bright mainly affects how agencies interpret statutes and would not interfere with their substantive expert policy decisions—but this case is not working against federal agencies alone.  

In Ohio v. EPA, the Supreme Court found that it was likely that the EPA’s ‘Good Neighbor’ rule was arbitrary and capricious, issuing a stay on the rule. The petitioners included a group of states for which EPA rejected implementation plans to reduce emissions and imposed a Federal Implementation Plan (FIP) on them. They argued the underlying regulation was arbitrary and capricious because the EPA failed to adequately consider comments submitted during the public comment period. Specifically, Petitioners requested an explanation of why a rule that was originally applicable to 23 states should maintain the same emission standards for only 12 states. EPA responded by saying the requirements placed on each state were severable and the rule could function regardless of the number of states involved. However, the Court held that Petitioners were likely to succeed on the merits of their argument that EPA acted arbitrarily and capriciously. When a court finds an agency acted in an arbitrary and capricious manner, the court has determined the agency did not provide a satisfactory explanation for its action, including a rational connection between facts found and choices made. Historically, agencies have received a high amount of deference for their substantive choices because those are based on the expertise of the agency. While Loper addressed the question of what the statute means, Ohio discussed the issue of how it should be applied and implemented. 

The decision in Ohio v. EPA reflects a broader shift by courts in evaluating agency action, moving beyond questions of statutory interpretation to questioning substantive decision-making. The Court here is signaling a willingness to scrutinize the reasoning behind certain actions, including actions involving complex scientific and technical decisions. Agencies must now be prepared to demonstrate compliance with their statutory requirements but also be prepared to address potential objection to their internal processes. Judges will have to consider the niche topics covered by large federal agencies—judges who are likely not experts in the science used by agencies. Paired with Loper Bright, Ohio v. EPA creates opportunity to completely overturn entire agency action. Ohio v. EPA opens the door for increased judicial interference in agency decision-making, which is particularly dangerous for environmental agencies who rely on their substantive expertise to promulgate regulations. 

The Result: What Will Happen to Environmental Regulation? 

Loper Bright and Ohio v. EPA could have devastating effects on environmental agencies. But Loper Bright may be the less concerning of the two depending on the framework that emerges from it. The Supreme Court had not cited Chevron in a case opinion in years, part of the reason many scholars were not surprised by the Courts action. Before the express overturning of Chevron, courts employed the two-step test, but often found the statute to be clear, and determined the meaning themselves, essentially eliminating the test without explicitly saying so. But Ohio v. EPA comes as a surprise for many reasons. One major concern is the EPA’s ability to regulate air pollution. Many scholars focus on this issue as the most pressing issue to come from this case. However, this article argues the sleeper-issue should be front of mind—harsh judicial review of substantive decision-making. 

Courts have always been able to review agency substantive decision-making through the APA; Ohio v. EPA’s holding is not a new concept. However, this case is concerning because of the rigorous application of the arbitrary and capricious standard to internal agency processes when developing rules and regulations. Ohio v. EPA goes a step further. In fact, Justice Barrett dissented, warning of an overstep in judicial authority. She questions the Court’s decision of holding an emergency docket case with large, technical records, and explains that requiring more from agencies risks unwarranted judicial examination of perceived procedural shortcomings that interfere with congressionally-created processes.  

Environmental agencies create science-based, technical rules and regulations about water quality, air pollution, climate issues, endangered species, food safety, pesticides, energy, waste, and more. These agencies touch civilians lives every day with regulations reliant on complex data. Agencies look for feedback on their decisions through the notice-and-comment process and conduct their own research. Agencies are required to consider and respond to all comments in a final rule. But Ohio v. EPA raises the concern that the courts may be looking at these technical decisions more skeptically leading agencies to question what level of information will satisfactorily justify their decisions. Judges will determine whether the agency did enough—and this decision will be at the mercy of each federal judge potentially leading to a complicated and difficult to apply federal common law.  

So, what does the future of administrative law look like? Theoretically, this new wave of judicial review sounds reasonable. Unless Congress has explicitly delegated authority to agencies, courts are statutory interpreters. And from a legal and constitutional perspective, there is merit to the argument that courts should be the statutory interpreters for purely legal questions. But practically, these cases could clog up courts and undermine agency authority. The Loper Bright decision calls on Congress to clarify ambiguous statutes, but with Republicans taking the majority in both houses of Congress, it is unlikely that agency-enabling statutes will see amendments. This system relies on Congress passing clear legislation that delegates clear constitutional authority to agencies so courts do not have to interpret statutes. And with Ohio v. EPA’s impact, Congress would also need to strengthen agency independence by ensuring environmental regulators can continue to act in the public interest through thoughtful regulation.  

 Loper Bright and Ohio v. EPA limit agencies abilities to decide questions of law and policy. Ohio v. EPA directly targets how agencies are allowed to make and defend their policy choices. The future of environmental governance is uncertain. The impact has yet to be seen in courts, but environmental agencies can expect pushback on environmental regulation.  

Author Bios 

Christina Karem is a third-year law student at Vermont Law and Graduate School, graduating in May 2025 with a J.D. She is the Editor-in-Chief of the Vermont Journal of Environmental Law Volume 26.  

Laurie Beyranevand is the Director of the Center for Agriculture and Food Systems and a Professor of Law at Vermont Law and Graduate School.  

Psilocybin-Assisted Therapy in the Green Mountain State 

 Written by Kathryn Keener and Diana Csank 

Cannabis laws are loosening, and recent legislative measures in some U.S. states and local governments indicate increased receptivity around psilocybin use, too. For example, in Vermont, beginning in 2018 individuals 21 years of age and older could legally possess an ounce or less of cannabis or two mature plants. And in May 2024, Governor Phil Scott signed S.114, which created the Psychedelic Therapy Advisory Group (PTAG).  

 The PTAG is comprised of medical professionals tasked with reviewing studies about the impact of psychedelics on mental health and advising whether Vermont should implement a psychedelic-assisted therapy program. The PTAG opted to study psilocybin specifically—rather than psychedelics broadly—because there exists comparatively more research aimed at understanding how psilocybin could be used to improve mental health and treat addiction.   

While in their final report the PTAG did not recommend Vermont establish any programming, members indicated “curiosity and hope for the potential strong application of the research on psychedelics as medicines and therapy.” PTAG member Dr. Rick Barnett, Psy.D., who specializes in addiction therapy and co-founded the Psychedelic Society of Vermont, avoids overstating the case for psilocybin-assisted therapy—noting that there remain many unknowns—but when interviewed said, “Keeping psilocybin criminalized is becoming more and more preposterous.” 

*** 

From a federal standpoint, cannabis—commonly known as marijuana—and psilocybin—commonly known as magic mushrooms—are illegal. Both became classified Schedule I substances when President Nixon signed the Controlled Substance Act into law in 1970. Schedule I status is reserved for substances with “no currently accepted medical use and a high potential for abuse.” While a recent proposed rule would reclassify cannabis to Schedule III, no such consideration has been extended to psilocybin. 

 But Indigenous Peoples have long employed psilocybin in medicinal and ceremonial contexts. In contrast to our Westernized approach, many Indigenous groups embrace naturally occurring psychedelics as sacred plant teachers; these teachers are animate beings—with whom humans can be in relationship—rather than inanimate drugs. Engagement with Indigenous researchers and communities as the psychedelic renaissance unfolds will be paramount to avoiding “biocolonialism” and “biopiracy.”   

As the term “psychedelic renaissance” suggests, even within a Western framework, psychedelic-assisted therapy is not new. During the 1950s and early 1960s, therapists administered psychedelics, including psilocybin, to complement psychotherapy targeted at mood disorders and addiction. A number of factors contributed to the mid-1960s decline of psychedelic-assisted therapy studies, including tighter regulations from the Food & Drug Administration (FDA) following the Thalidomide tragedy; the difficulty of creating studies that incorporate placebo effectively; the Sandoz Company halting production of the lab-produced compound used in trials; and the oft-cited Nixon administration’s war on drugs. 

Today, cannabis is poised for rescheduling. Drug law experts also expect eventual rescheduling of psilocybin, but it remains to be seen how long the process will take. Drug law expert Robert Mikos surmises psilocybin will follow a rescheduling path like that of cannabis, though he notes that public support around psilocybin use, as compared to cannabis, is more limited.   

Because it currently retains Schedule I status, psilocybin is subjected to strict regulatory burdens when it comes to conducting clinical trials. And clinical trials are expensive. As Hadas Alterman, Esq., founding partner at Plant Medicine Law Group and former Director of Communications & Policy at American Psychedelic Practitioners Association, explains,  

 “FDA clinical trials cost hundreds of millions of dollars. And if a drug manufacturer is going to invest hundreds of millions of dollars in the new drug approval process, they need to be able to see a return on their investment. Not only is this cost ultimately externalized onto the patients, but the dynamic creates bad pre-market incentives, which is one of the things delaying access now.”   

Alterman suggests short-term therapies, like MDMA-Assisted Therapy, are disadvantaged when compared to pharmaceuticals prescribed for extended use, like SSRIs. “There are so many hurdles to access lifesaving treatment,” Alterman laments. 

 Despite the difficulties around receiving approval and funding for studies, researchers at leading institutions believe that psilocybin—like cannabis—may be a viable, low-risk treatment for a range of ailments. For example, a 2022 Johns Hopkins study revealed that psilocybin-assisted treatment produced substantial antidepressant effects for participants with major depressive disorder. Multiple studies suggest psilocybin-assisted therapy appears a useful method for alleviating end-of-life anxiety in terminally ill cancer patients. Other disorders under consideration for psilocybin-assisted treatment include anorexia nervosa, post-traumatic stress disorder, obsessive compulsive disorder, and addictions.  

 Lauren Alderfer, PhD., a Vermont resident, award-winning international mindfulness educator, and the author of Mindful Microdosing, advocates for legal access to psilocybin-assisted therapy. For Alderfer and her husband, a lifelong humanitarian who is contending with Alzheimer’s, the impact of microdosing has been significant. “My husband sleeps better, is more cogent, and experiences greater well-being as a result of microdosing.” Additionally, Alderfer credits psilocybin with helping her maintain patience and well-being while providing care for her husband. The couple perceives ensuring legal access to psilocybin is an ethical imperative. “Demand is rising,” Alderfer says; “Let’s help pave the way.”  

*** 

 Recently, some locales have spearheaded psilocybin reform irrespective of federal guidelines.  

For example, in 2022 Coloradans voted in favor of Proposition 122, which decriminalizes psilocybin, dimethyltryptamine (DMT), ibogaine, and mescaline. Also, several cities—Ann Arbor, Berkeley, and Somerville and Cambridge, Massachusetts, to name a few—have decriminalized use of psilocybin, meaning the substance is still prohibited but that penalties, when they exist, are civil in nature and less severe than criminal sanctions. Notably, citizens residing in our Nation’s capital voted to decriminalize adult use in 2020, making psilocybin “among the lowest law enforcement priorities for the District of Columbia.” 

As for therapeutic programming, Oregon was the first state to develop a framework where patients can experience psilocybin-assisted therapy in state-licensed healing centers. Oregon’s Proposition 109—the Psilocybin Services Act—passed in 2020 and centers began offering their services in the summer of 2023. But in Oregon, psilocybin-assisted therapy remains difficult to access and expensive.  

As Dr. Rick Barnett, Psy.D., explains, “A well-curated psychedelic experience involves preparation, time for the patient to establish rapport with the person serving the medicine, and good follow-up care.” Hadas Alterman, Esq. concurs: “Therapy takes hours and hours and hours. There’s preparation; five therapy sessions—each eight hours long; and integration afterward. Plus, the industry standard is to involve two different guides.” Alterman proposes that centers could reduce costs by transitioning from offering individual therapy sessions to facilitating group therapy. “The economics are tricky,” Alterman says. 

 *** 

In their final report, the PTAG remarked on the challenge of evaluating new legal frameworks and determining what is likely to be successful in Vermont. Some members of the PTAG communicated misgivings about delaying access to psilocybin-assisted therapy given the pervasiveness of mental malaise and addiction in Vermont and nationally. Despite failing to reach consensus about recommended programming, however, the PTAG showed interest in continuing to meet and expanding membership.  

“To say psilocybin is going to come along and be this game-changing thing . . . I don’t think we know what works in these different paradigms,” Dr. Rick Barnett states. “But it’s really promising as another tool to peel back some of the layers of the psyche for change.” 

Ultimately, the PTAG final report is not binding on the Vermont legislature. But if the PTAG recommendations are any indication, psilocybin use is one instance where the Brave Little State will proceed cautiously.  

Author Bios 

Kathryn Keener is a 3L J.D. student at Vermont Law and Graduate School. She is a clinician at the Environmental Justice Clinic, student ambassador, member of the Native American Law Student Association, and one of the 2024-2025 Symposium Editors for the Vermont Journal of Environmental Law. Kathryn extends sincere thanks to interviewees Lauren Alderfer, PhD., Dr. Rick Barnett, Psy.D., and Hadas Alterman, Esq. for sharing their time and expertise. Kathryn is also grateful for Professor Diana Csank’s encouragement and guidance in writing about what was once a taboo legal topic that is gaining purchase in the mainstream. 

Diana Csank is an Assistant Professor in the Vermont Law and Graduate School Environmental Advocacy Clinic. A graduate of Stanford University and Tulane University Law School, where she was a student-clinician in the Environmental Law Clinic, Diana has more than fifteen years of environmental, energy, and litigation experience. For more than seven years, Diana was a Staff Attorney at the Sierra Club, where she directed challenges to fossil-fuel power-plant permitting in five southern and mid-Atlantic states, coordinated challenges to fossil-gas pipeline projects in proceedings at the Federal Energy Regulatory Commission, and handled interventions in state rate cases at public utility commissions in support of the clean energy transition. Diana previously held legal positions at the White House Council and Environmental Quality during the Obama Administration, where she helped supervise the Council’s cohorts of law clerks. Before attending law school, Diana worked on green building issues for the New York City Economic Development Corporation.  

Unseen and Unprotected: The Ongoing Struggle of Climate Refugees in the United States 

by Isaiah Gonzales and Professor Siu Tip Lam 

I. Introduction 

As climate change accelerates, environmental disasters will leave millions homeless. Recent projections from the World Bank estimate that by 2050, over 216 million people could be displaced by climate-related events. This looming crisis raises critical questions about legal recognition for climate refugees under U.S. asylum law, and the broader international community’s responsibilities. It also raises the need for the United States to develop a robust climate refugee resettlement plan, as these are not unique occurrences, but rather our new reality.  

The urgency of this topic stems from COP27 agreement, which established a framework for addressing loss and damage associated with the adverse impacts of climate change, reflecting a growing global acknowledgment of the plight of those displaced by environmental factors. Extreme weather events like Hurricanes Helene and Milton are becoming more frequent and severe. With legal protections remaining inadequate, the need for a robust legal framework to support climate refugees has never been more pressing. It is time the United States, as historically the largest emitter of greenhouse gases, investigates ways it can support those displaced by environmental destruction caused by climate change.  

II. Factual Background

A. Historical Background of Climate Change

The scientific consensus on climate change is undeniable. According to the Intergovernmental Panel on Climate Change (IPCC), human activities have significantly warmed our planet, leading to profound changes in the Earth’s systems. Our own actions have ultimately caused the demise and destruction of homelands, from islands in the Pacific Ocean to Florida.  

Recent catastrophic events illustrate this urgency. Unprecedented flooding in Barbados and Brazil in May 2024 displaced thousands, while floods in Pakistan in 2022 displaced approximately 8 million people. These events are not isolated occurrences, but rather serve as a clear look into our future and the increasing displacement of peoples by natural disasters.  

 B. History of Asylum Law in the United States

U.S. asylum law has evolved since the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. The Refugee Act of 1980 incorporated international standards into U.S. law, offering protection to individuals facing persecution based on specific grounds and increased the amount of refugee visas. Directly responding to the aftermath of the Vietnam War and the urgent need for comprehensive refugee protection, Congress enacted the Refugee Act of 1980 to address the humanitarian crisis overwhelming Asia. Through the codification of asylum law in the Immigration and Nationality Act (INA), Congress defined refugee as a person who “is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  

 C. Cruz Galicia v. Garland: First Circuit Denial of Climate Refugee Status

The narrowly defined “refugee” in the INA does not provide any protections to people displaced by ongoing environmental disasters. The recent case of Cruz Galicia v. Garland, 106 F.4th 141 (1st Cir. 2024), underscores the limitations of U.S. asylum law regarding climate refugees. In Cruz Galicia v. Garland, the First Circuit Court upheld the denial of asylum for individuals fleeing environmental disasters, asserting that environmental degradation does not equate to persecution as defined by the INA. Respondent, Mr. Cruz Galicia, cited droughts and severe storms in Guatemala as reasons for his family’s flight, highlighting a gap in current legal protections. While Mr. Cruz Galicia’s claim does not rise to the level necessary to meet the standard for an asylum claim, it serves as a pivotal moment and demonstrates a need for a special climate refugee immigrant status in our immigration system. Ultimately, the First Circuit’s decision demonstrates that the antiquated U.S. immigration asylum legal framework does not account for the realities of climate change. Individuals like Mr. Cruz Galicia have little to no protection from the destruction of their homelands by climate change. 

 D. Case Study: Climate Displacement in New Zealand

Courts in other countries implementing the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol have similarly rejected claims for asylum on the basis that climate refugee is not a protected category. A recent case out of New Zealand illustrates the urgency of addressing the issue of climate refugees on humanitarian grounds. In 2014, a family from Tuvalu sought refugee status in New Zealand because rising sea levels threatened their home. Although their claim was ultimately rejected, they were granted residency on humanitarian grounds, illuminating the complexities of legal recognition for climate-displaced individuals. This case highlights the necessity for the international community to formalize a legal framework to address climate-induced displacement. By securing global commitment, countries can ensure humanitarian aid for climate refugees and prevent similar situations in the future. 

III. Legal Background 

Thus, the central question remains for immigration advocates and stakeholders within our immigration system—what can the U.S. do to address this looming climate crisis? As described above, the current immigration framework, specifically Section 208 of the INA, 8 U.S.C. § 1158, provides asylum protection for persons who fear returning to their home because of past or future persecution based on their race, religion, nationality, political opinion, or membership within a particular social group. This demonstrates that climate refugees fit nowhere within the statutory framework of the INA, leaving them vulnerable to removal to their home countries that have been destroyed by climate change. 

 A. International Response

Several countries are beginning to recognize the plight of climate refugees. In May 2022, Argentina launched a three-year humanitarian visa program for individuals from Mexico, Central America, and the Caribbean displaced by sudden climate disasters. This initiative allows those forced to leave their homes due to hurricanes, floods, extreme rainfall, earthquakes, and tsunamis to secure initial residence, with the option to apply for permanent status while receiving community support for integration. The European Union is also researching and discussing ways in which they can codify a special visa category for climate refugees, but have fallen short of providing a foundational plan.  

 More importantly, the Paris Agreement commits the 195 signatory nations to combatting climate change through economic and political means. This historic agreement demonstrates a pledge to protecting vulnerable populations, including climate migrants. It states that “[a]cknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights,…rights of… migrants.”  

Additionally, Article 8 of the agreement addresses the adverse impacts of climate change by calling for cooperation to avert, minimize and address the associated loss and damage. To that effect, the 2022 COP27 in Dubai reached an agreement to create a loss and damage fund for vulnerable countries affected by climate disasters. As the world’s leading polluter and a signatory to the Paris Agreement, the U.S. should commit to addressing the climate refugee humanitarian crisis within our immigration system.

IV. Analysis

A. Potential Legal Frameworks for Protection

To address these challenges, the U.S. should look to international agreements, like the Paris Agreement and the COP27 framework on loss and damages, to bolster protections for displaced persons. The U.S. could consider amending the INA to include climate refugees and establishing a visa category for climate refugees similar to the one set up in Argentina. This could involve incorporating language such as “a well-founded fear of displacement due to climate change.” Congress must amend immigration laws now, as it did in 1980, to ensure protection for climate refugees and address the urgent humanitarian need. 

 

The United States’ formal recognition of climate refugees is a crucial step toward addressing this ongoing issue. Some members of Congress have already introduced legislation to address the climate refugee crisis. Ahead of the 2023 COP28, Senator Edward Markey of Massachusetts and several other senators, including Senator Bernie Sanders, introduced the Climate Displaced Persons Act to create a U.S. resettlement pathway for climate refugees. Just as other non-immigrant visas are codified in the INA, Congress must implement a climate refugee visa to protect vulnerable communities and remain committed to its promise to the Paris Agreement. 

V. Conclusion

It is crucial for U.S. law to explicitly recognize climate displacement as legitimate grounds for asylum or humanitarian protection under the INA. Strengthening international cooperation through treaties and bolstering existing frameworks, including those established at COP27, is necessary to tackle the realities of the climate crisis. Ultimately, the global community must act on its moral obligation to protect those most vulnerable to the impacts of climate change. As climate change continues to reshape our world, the legal frameworks governing refugee status must evolve to ensure that no one is left behind in the struggle for survival. The urgency of the situation cannot be overstated—we must act now to create a safer, more just future for all.   

Author Bios  

Isaiah Gonzales, a third-year law student, is a passionate advocate for immigration rights, inspired by his heritage as a descendant of Mexican immigrants. His goal of becoming an Immigration Judge reflects his commitment to justice in the immigration system. In the summer of 2024, he interned with the Vermont Asylum Assistance Project (VAAP), gaining valuable experience in asylum law and discussing migration patterns in an NBC interview. Isaiah also serves as the Student Bar Association (SBA) President for the 2024-2025 academic year, making history as the first Latino in this role. He previously co-chaired the Latin American and Caribbean Law Students Association (LALSA) and is a Symposium Editor for the Vermont Journal of Environmental Law, helping organize the “Climate Justice, LIVE!” symposium. As a Student Ambassador and Co-Chair of the Diversity Admissions Subcommittee, he promotes representation in the legal field. 

Professor Siu Tip Lam is the Director of the U.S.-Asia Partnerships for Environmental Law at Vermont Law & Graduate School. She came to Vermont Law & Graduate School from the Massachusetts Attorney General Office, where she was an assistant attorney general in the Environmental Protection Division for 11 years. During her tenure there, she enforced state environmental laws and litigated throughout the Massachusetts court system, including the Massachusetts Supreme Judicial Court. Prior to that, she practiced law with the Boston firm of Brown, Rudnick, Freed & Gesmer as a litigation associate. She graduated from Harvard-Radcliffe College with a bachelor’s degree in East Asian Studies and received her JD from Northeastern University Law School. She speaks Mandarin Chinese and Cantonese and came to the United States from Hong Kong as a child. 

AI Is Mining More Than Data 

 by Hadley Chance and Mia Montoya Hammersley 

Artificial Intelligence (AI) has crept into the everyday lives of tech users. Google attached “generative AI” to its search function in mid-2024; Siri has been embedded in the iPhone since 2011; ChatGPT, popular in education and business settings, was released to the public in 2022. As this tool becomes more commonplace, we need to change our perspective of “convenience.” AI does not exist in the ether, but as a physical machine that requires space, components, and resources, leading to the degradation of human rights and the planet. As the field of AI grows, its impacts can be traced backwards in the supply chain, starting with mining operations for critical minerals required to build the hardware. The run for critical materials in the U.S. and abroad is going to have harsh impacts on the environment and grim implications for environmental justice.  

AI is hardware merging with software. To simplify and understand the process, an overview of hardware is necessary. In short, AI needs semiconductors, which are made out of substances that have a specific level of conductivity to support AI’s functions, with the highest mineral demand on copper. If AI continues to grow as a tech industry, the demand for copper will increase by one million metric tons by 2030 and by 3.4 million tons a year by 2050. 

The Department of Energy has classified copper as a critical material. Critical materials are materials that have been designated as necessary to the “functioning of modern society.” Materials are added to the list because of potential risk to their supply chain. As AI use increases, the supply is likely to dwindle, enforcing copper’s status as a critical material. Some critics estimate that copper demand will double with the AI boom, where there is already a global copper shortage.  

 Along with the listing of copper as a critical material, the Biden Administration made a concerted effort to secure a foothold for the United States in the critical materials and minerals industry. The administration’s goal, met by investing more than $17 million in domestic mining projects, is to make the U.S. a major supplier of these minerals. The U.S. is the fifth largest producer of copper in the world, following Chile, Peru, China, and the Democratic Republic of Congo. At fifth place, the U.S. accounts for 6% of the world’s copper supply. Trying to bolster domestic growth, we are likely to see more and more proposed copper mines nation-wide.  

This should give us pause. Copper mining in the U.S. frequently takes the form of open pits, where copper is extracted close to the surface. This method can use chemicals to leech the desired minerals out of ore or, alternatively, explosive materials and drilling are used to reach the minerals. Open pits often drill below the water table, which can lead to water contamination. This leeching process, where the chemicals are injected into ore and left to seep into the material, leads to a slurry of dissolved copper and radionucleotides, including dangerous compounds like sulfuric acid. One of the byproducts of this process is concentrated radioactive materials, known as Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM). Populations who live near sites storing and producing TENORM can experience direct gamma radiation, inhalation of contaminated dust, inhalation of downwind radon, ingestion of contaminated well water, ingestion of food contaminated by well water, and ingestion of food contaminated by dust deposition. As of August 2024, the Environmental Protection Agency (EPA) is investigating regulating TENORM, but no regulations have been made.  

The byproducts of copper mining have entered and severely impacted water ways, farmland, wildlife, and community health. According to one report, 92% of water treatment systems failed, leading to ground water contamination from acid and metals.  

When the demand for copper skyrockets, we see more proposed mines. One example is the proposed Resolution Copper mine in Superior, Arizona. Arizona produces 65% of the country’s copper and is home to ten (soon to be twelve) copper mines. The land Resolution Copper is planning to drill, called Oak Flat, or Chi’chil Biłdagoteel in Western Apache, was held as a national forest within the Tonto National Forest. It was conveyed to Resolution Copper as a land swap under the National Defense Authorization Act of 2015.  

Before it was a national forest, and for time immemorial, Oak Flat has been a sacred place for several Tribes, including the San Carlos Apache. The land has been used for religious rites such as ceremonies, to gather medicine, and to pray. Resolution Copper is currently awaiting their Record of Decision per the National Environmental Policy Act (NEPA). Copper production has not yet begun. An Indigenous organization, Apache Stronghold, filed a lawsuit against the government in an attempt to reverse the land swap. This case was filed both on the grounds of violations of the Religious Freedom Restoration Act and of an 1852 Treaty, where Oak Flat was set aside for the Apache. The potential destruction of Oak Flat provides one example of the continued consequences of mining on Tribes’ ancestral territories. In addition to treaty violations and destruction of cultural resources, Tribal consultation is neglected and desecrated. 

Resolution Copper, too, is impacting water supply in Arizona. The mine is pumping more than 600 gallons of groundwater per minute to reach the copper deposits far below the water table. The mine is about an hour by car from Phoenix, where home construction was halted due to ground water supply concerns. Like many mines supported by the Biden critical minerals and materials policy, Resolution Copper stands to over-consume water in arid areas of the country. For a similar example, but with Lithium, check out Rhyolite Ridge in Nevada. 

Copper mining is but one facet of environmental impacts of AI. There are several more considerations. AI, once built and functioning, is housed in large remote servers. As of 2023, these servers demand about 1-1.5% of the world’s electricity. Electricity consumption from these servers may surpass electricity consumed by some small countries. The function of electrical grids where these servers are housed, like Northern Virginia, will be put at risk, and so will their infrastructure. To put into perspective how much more energy intensive AI is, one Google search (without Gemini’s interference) will use one-tenth the electricity as one with an AI generated response. Areas supporting AI hubs are beginning to feel the increased energy demand. AI infrastructure is projected to consume more water than Denmark. AI uses water in two ways—onsite server cooling and offsite electricity generation. The water consumed does not include the water necessary for AI physical production.  

Additionally, AI has a mounting waste footprint. By the year 2030, AI is projected to produce an extra 5,000 tons of E-waste. E-waste is waste from electrical equipment and have hazardous and toxic elements which negatively affect people and the environment. For AI, E-waste comes from the data servers (GPUs, CPUs, memory storage devices) using energy. Also, the servers become outdated rapidly because of the speed at which the AI industry is developing.  

Most of this ends up in landfills in poorer countries across the globe. Low-income workers typically handle these hazardous and toxic E-waste materials without any protective gear. The Basel Convention, an international treaty dedicated to controlling hazardous waste disposal, mandates that developed nations no longer dump hazardous waste, including E-waste, on poorer countries. The United States has not ratified the treaty—the only developed nation not to do so.  

As we move into a new Presidential administration, it is likely that Trump will reaffirm commitments to critical materials. Domestic mining will likely grow to satiate the demands of AI and other tech. According to some studies, six large copper mines will need to open a year to meet growing copper demands. Some positives as AI grows—there have been movements both nationally and internationally to moderate the environmental impacts of AI. In the U.S., a bill has been introduced to require the EPA to study environmental impacts of AI. Abroad, UNESCO has created its Recommendations about the Ethics of Artificial Intelligence, which include provisions about environmental impacts of AI. We don’t know where this winding road of AI is going, but we need to be aware of what consequences will arise from rapid, unchecked development.  

 Author Bios 

Hadley Chance (they/them) is a 3L at Vermont Law and Graduate School. They are a senior staff editor on Vermont Law Review. They grew up outside of Philadelphia, but went to the College of Charleston, where they began to be interested in Environmental Justice. They were the co-chair of the Environmental Justice Law Society their 2L year and have been on the E-Board of Alliance, the LGBTQ+ law student group, for the past two years. They also spent the last year with Professor Montoya Hammersley in the Environmental Justice Clinic. Hadley hopes to continue this advocacy work after graduation. When not in school, they enjoy the outdoors and playing tabletop games.  

Mia Montoya Hammersley is the Director of the Environmental Justice Clinic and an Assistant Professor of Law. She is a member of the Piro-Manso-Tiwa Indian Tribe, Pueblo of San Juan de Guadalupe, and a Yoeme (Yaqui) descendant. In her work, Mia has represented conservation organizations in protecting land from extractive industries, Tribes in defending and asserting their land and water rights, and communities experiencing disproportionate environmental health harms. Her chapter, “The Water-Energy Nexus and Environmental Justice: the Missing Link Between Water Rights and Energy Production on Tribal Lands” was published in the UA Press Series, Indigenous Environmental Justice, in 2020. In 2021, she was a recipient of the Young, Gifted, and Green 40 Under 40 Award by Black Millennials for Flint for her work in the field of environmental justice. 

 

Superfund Me: A High-Level Overview of Climate Change Superfund Bills 

 Written by Erin Evans and Dayna Smith 

Recent state-level “Climate Superfund” legislation seeks to hold climate polluters liable and shift climate change legal policies from simply adaptive and preventive policies to ones demanding payback by top contributors. The Superfund legislation model is not a new concept. However, states have recently adopted the framework to demand justice for climate pollution. Multiple states have considered Climate Superfund legislation, and two have enacted it, paving the way for more states to follow. This article gives a brief historical overview of federal Superfund, a high-level report of state-level Climate Superfund bills, and an outlook on possible legal questions that may arise in the future as more legislation like this emerges.  

A Brief History of Federal Superfund Legislation 

In 1980, Congress enacted The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), more commonly known as Superfund. This monumental piece of legislation constructed a new tax on chemical and petroleum industries. It also provided broader Federal authority to respond directly to “releases or threatened releases of hazardous substances that may endanger public health or the environment.” CERCLA dictated requirements for closed and abandoned hazardous waste sites, including providing for the liability of people responsible for the hazardous waste and establishing a fund for cleanup if there was no identifiable responsible party. The law authorized specifically two categories of response actions by the government: short-term removals to address a prompt release of a hazardous substance; and long-term response actions to permanently reduce releases of hazardous substances, pollutants, or contaminants. Significantly, CERCLA imposes liability on parties responsible for the presence of hazardous substances at a Superfund site. Liability can either be retroactive, joint and several, or strict. 

CERCLA has been a powerful tool to hold polluters responsible. For example, a 2021 United States Supreme Court decision in Territory of Guam v. United States allowed Guam to proceed with a cost-recovery claim against the U.S. Navy stemming from a toxic waste and ammunition disposal site. The specific issue before the Court was whether a consent decree under the Clean Water Act (CWA) could trigger the three-year statute of limitations under CERCLA. The EPA had sued Guam in 2002 under the CWA, and the parties entered a consent decree whereby Guam paid penalties and shouldered the costs of containing and closing the disposal site. In 2017, Guam filed suit against the United States under CERCLA, arguing it was a potentially responsible party (PRP) who should foot some of the clean-up bill. The Court, in a rare unanimous decision, rejected the federal government’s argument that the statute of limitations period had run, and held that a non-CERCLA settlement does not settle CERCLA liability or trigger the statute of limitations.  

This decision in Territory of Guam v. United States revived Guam’s cost recovery claim against the United States Navy for its share of a $160 million cleanup bill. It also potentially opens the door to other contribution claims against polluters, demonstrating CERCLA’s continuing role in making polluters pay. The power of CERCLA is that a polluter can be responsible, even if they did not do anything out of their ordinary course of business to cause the pollution. And, with more state-level, CERCLA-esque legislation on the rise, polluters may have to reach into their pockets more often.  

State-Level Superfund Efforts 

In 2024, several states, including Vermont and New York, have enacted Climate Change Superfund legislation, which would require major pollution contributors, including large fossil-fuel producers and refiners, to pay for hundreds of billions of dollars’ worth of state-level climate adaptation infrastructure. Other states—including Massachusetts, Maryland, California, and Minnesota—are pushing for similar legislation, however Vermont and New York are the only states that have passed bills thus far. These bills are modeled after CERCLA, seeking to impose liability on major polluters.  

In May 2024, Vermont enacted the first law of its kind requiring fossil-fuel companies to pay for a portion of the costs of climate-change-fueled weather disasters that have plagued the State. Lawmakers “hope the landmark policy will force the biggest fossil-fuel companies in the world to compensate Vermont for damage wrought by climate change,” enforcing the longstanding “principle that the polluter pays.” Widespread support bolstered the bill after Vermont suffered catastrophic flooding in 2023. The 2023 floods resulted in $500 million in damage claims made to the Federal Emergency Management Agency (FEMA)—more than double the amount of financial damages caused by Tropical Storme Irene in 2011. The enactment of S.259, the Climate Superfund Act, marks “a new era in the effort to hold the world’s largest polluters responsible for the mess they have made.”  

Modeled after CERCLA, the law empowers Vermont’s Attorney General to mandate payments from large sources of climate change pollution, including companies like ExxonMobil and Shell, for their share of climate change costs within the State. Using emissions data from 1995 to 2024, the payment amounts will be apportioned based on the impact each company’s products had on climate change. The specific companies and the precise amounts allocated to each company will be determined based on calculations of the degree that they directly contributed to weather disasters in Vermont, and how much money those events cost the State. The payments collected under the Vermont Climate Superfund Act will then provide funding for climate change adaptation projects in the State, “including nature-based solutions and flood protections, upgrading stormwater drainage systems, making proactive upgrades to roads, bridges, railroads, and transit systems, and more.”  

New York is also paving the way for these landmark bills. In June 2024, New York legislators passed another historic bill that would force fossil-fuel companies to pay for costs associated with climate change.  

The Climate Change Superfund Act (S.02129) would require the largest fossil-fuel companies to pay a total of $75 billion over a 25-year period in $3 billion increments. One of the bill’s key sponsors, New York Senator Liz Krueger, noted that this $3 billion figure will not even suffice the annual costs of adaptation and mitigation that New York currently pays.  

On December 26, 2024, Governor Kathy Hochul signed this landmark legislation “to bolster New York’s efforts to protect and restore the environment by requiring large fossil fuel companies to pay for critical projects that protect New Yorkers.” Vermont, and now New York, have pioneered this important legislation, thrusting these critical issues into the national spotlight.  

Possible Future Legal Questions and Issues 

These landmark legislative actions almost certainly will induce legal challenges and disputes from these large fossil-fuel companies. Currently, more than 30 state and local governments have sued the oil industry, with some of the lawsuits drawing on climate change attribution science to hold fossil-fuel companies liable for climate change and its disastrous effects. 

For example, in State of Rhode Island v. Chevron, Rhode Island sued fossil-fuel companies for causing climate change impacts that adversely affected the State. The State relied on several tort law theories: public nuisance, strict liability for failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, and impairment of the Public Trust Resources State Environmental Rights Act. The State asked for compensatory damages, equitable relief, abatement of nuisances, punitive damages, disgorgement of profits, and associated costs of attorneys’ fees.  

The fossil-fuel companies moved to dismiss the action for lack of personal jurisdiction due to insufficient contacts within the State of Rhode Island. But on April 28, 2023, the Rhode Island Superior Court granted the State’s motion to conduct jurisdictional discovery related to three narrow issues: the defendants’ fossil-fuel related business activity within the State during the times stipulated in the complaint; defendants’ marketing and promotion of fossil-fuel products to Rhode Island consumers; and defendants’ historical knowledge of climate change impacts in the State during that time period. This is a significant advancement of this case, signaling the court’s interest in how defendants have potentially impacted Rhode Island.  

Many of these large fossil-fuel companies are fighting the existing lawsuits, and now the new Climate Superfund laws, while publicly trying to cast doubt on attribution science. Attribution science plays a significant part of the allocation of damages for existing Climate Superfund bills, particularly since the laws do not depend on any proof of wrongdoing—companies are liable because pollution is part of their operation. The American Petroleum Institute (API) has already signaled its challenge to attribution science within the Vermont Climate Superfund Act: “With respect to impact attribution from source emissions, it seems obvious that those who drafted this legislation are aware of the difficulties of establishing a conclusive link between anthropogenic climate change and alleged injuries to Vermont.” Yet, despite public condemnation, analysts predict that the primary legal challenge to Climate Superfund legislation will not be based on attribution science, as courts generally give legislatures discretion to use the best available science in crafting laws.  

Instead, oil companies are probably weighing their options, though API has already signaled some potential legal challenges. We may see preemptive challenges to Climate Superfund laws on constitutional grounds, such as a due process violation. In essence, companies would argue that the laws are punishing them for engaging in a lawful economic activity. CERCLA faced similar arguments which were resolved against the companies in the U.S. Supreme Court based on existing precedent. It is not clear whether that CERCLA precedent would apply to the state laws, though. There is also a possible question of whether the federal CERCLA legislation preempts the state versions.  

Alternatively, companies may wait to see if the states send a bill and then not pay it. Then, it is up to the state to pursue legal action under their pertinent Climate Superfund law to seek recovery. Regardless of the means, legal analysts do not expect fossil fuel companies to pay states without a fight.  

Looking Ahead 

Because many fossil-fuel companies will likely challenge state Climate Superfund laws, there is a potentially rocky road ahead for the states leading the charge. However, the legal landscape for this area of the law promises to change and adapt over time as more states consider and pass Climate Superfund legislation. Several states have already seen some success in pursuing legal recourse against fossil-fuel companies, and Climate Superfund laws have the potential to be another extremely powerful tool in the toolbelt. So, will other states finally exclaim Superfund me and demand justice?  

Author Bios 

Erin Evans is a third-year J.D. student at Vermont Law & Graduate School from Dallas, Texas. Erin received her undergraduate degree from Texas Tech University, majoring in Honors Arts & Letters with a Pre-Law focus, and graduating with Highest Honors. While at Vermont Law & Graduate School, she has been involved as a Staff Editor for the Vermont Journal of Environmental Law (VJEL), a Production Editor for VJEL, and a Moot Court Advisory Board (MCAB) member.  

Professor Dayna Smith an Associate Professor of Law and Associate Director of the Academic Success Program at Vermont Law & Graduate School. She is the faculty advisor for the Vermont Journal of Environmental Law. Before working at Vermont Law & Graduate School, Professor Smith was an associate at a firm focused on toxic tort litigation, and worked at the University of Illinois College of Law International and Graduate Programs Office. While in law school, Professor Smith was the Editor-in-Chief of the Vermont Journal of Environmental Law.