Web Editor – Page 3 – Vermont Journal of Environmental Law

MINUSTAH/Marco Dormino. A man walks through rubble of collapsed buildings in downtown Port au Prince, Haiti, which was rocked by a massive earthquake, on Tuesday, January 12, 2010, devastating the city and leaving thousands dead.

Supplement to: THE TOXIC DIVIDE: INTERNATIONAL WASTE DUMPING AND THE FIGHT FOR ENVIRONMENTAL EQUITY

By Christine Paul

This blog is a supplement to an original article published by Vermont Journal of Environmental Law, Vol. 26 Issue 2. You can find the original piece here.

The environmental landscape continues to evolve as research sheds light on the complexities of international toxic waste disposal and its disproportionate impacts on developing nations. The article explored the frameworks established by the Bamako, Basel, and Stockholm Conventions to regulate transboundary hazardous waste movement and highlighted case studies from Nigeria, Côte d’Ivoire, and Haiti.

This short supplement expands upon the original research addressing newly identified intersections between environmental justice and toxic waste disposal, focusing on Haiti. It examines the implications of the 2010 earthquake on toxic waste management, and how the nation’s ongoing political crisis exacerbates the challenges of waste regulation.

By providing these additional perspectives, this supplement deepens the analysis of systemic inequities by global waste practices and contextualizes the environmental and human health impacts within historically marginalized communities.

Underlying vulnerabilities in Haiti such as poor governance, lack of sound infrastructure and technical capacities, and corruption provide the baseline for inconsistent or nonexistent environmental laws and regulation. The flagrant lack of regulation promotes widespread deforestation, leaves infrastructure vulnerable to frequent natural disasters, and results in unorganized waste disposal.[1]

Illegal hazardous waste imports have been on the back burner as Haitian officials prioritize responses to natural disasters and other climate-related harms.[2] For example, on January 12, 2010, an earthquake struck Haiti near Port-au-Prince in a catastrophic event, affecting approximately 3.5 million people.[3] Reports estimate 220,000 individuals died, 300,000 homes were destroyed, and over 1.5 million were displaced.[4] To date, a significant portion of the population remain displaced after the catastrophic disaster. [5]

Some argue that Haiti’s current poor environmental management results from a lack of sufficiently developed environmental policy and responsible government institutions that fail to enact meaningful change.[6] The majority of environmental regulations were formulated through the twentieth century.[7] Reportedly, more than a hundred laws, orders, and decrees were promulgated up until 1995 dealing with various aspects of the environment.[8] In 1998, the Haitian Collective for the Protection of the Environment and Sustainable Development produced a compilation of two hundred legal texts on the environment.[9]

An example of a modern environmental law regulated by the Ministry of the Environment is the law of September 21, 2017 (the Law), which replaces the Decree of March 3, 1981 (the Decree).[10] The Decree recognized the “first national framework specifically addressing the issue of solid waste management in the country.”[11] This decree also created the Metropolitan Solid Waste Collection Service (MSWCS), the first state institution in charge of waste management.[12] As of 2022, the law emphasizes solid, medical, and high-toxicity waste without providing precise definitions for those terms.[13] Waste management remains problematic even after the law’s promulgation.[14] For example, the MSWCS lacks the manpower and supporting regulations to ensure that waste is appropriately disposed.[15]

History shows that decades of ineffective environmental regulation, coupled with the country’s socio-political climate, has greatly exacerbated Haiti’s tenuous environmental scheme.[16] This is why Haiti must establish a regulatory body that responsibly implements, executes, and enforces environmental laws and regulations; or transform the Ministry of the Environment into a force that effectively addresses the country’s many environmental woes. The Haitian government and relevant stakeholders must prioritize these issues and others affecting the Haitian people and the environment.

Footnotes:

[1] Richener Noël, Governance and environmental degradation in Haiti, in 12 Humanitarian Aid on the Move 1, 8–11 (2023), https://www.urd.org/wp-content/uploads/2019/04/URD_HEM_12_EN.pdf.

[2] UN summit puts global spotlight on land degradation, UNEP (Dec. 2, 2024), https://www.unep.org/news-and-stories/story/un-summit-puts-global-spotlight-land-degradation; See also Global response to drought takes center stage at UN land conference in Riyadh, United Nations Convention to Combat Desertification (Dec. 3, 2024), https://www.unccd.int/news-stories/press-releases/global-response-drought-takes-center-stage-un-land-conference-riyadh.

[3] Francois Pierre-Louis, Earthquakes, Nongovernmental Organizations, and Governance in Haiti, 42 J. of Black Stud. 186, 187 (2011).

[4] Id.

[5] Robin Whitlock, Dealing with the Aftermath of a Disaster—Hazardous Materials, Rubble, and Ashes, The Earth and I (Dec. 13, 2024), https://www.theearthandi.org/post/dealing-with-the-aftermath-of-a-disaster-hazardous-materials-rubble-and-ashes; See also Juliette Benet, Behind the numbers: the shadow of 2010’s earthquake still looms large in Haiti, Internal Displacement Monitoring Ctr. (Jan. 13, 2020), https://www.internal-displacement.org/expert-analysis/behind-the-numbers-the-shadow-of-2010s-earthquake-still-looms-large-in-haiti/.

[6] Glenn R. Smucker et al., Environmental Vulnerability in Haiti: Findings and Recommendations 68 (U.S. Agency for Int’l Dev., 2007).

[7] Association Haitienne de Droit de l’Environnement et al., Republic of Haiti, United Nations Universal Periodic Rev. (Oct. 3, 2011), https://www.ohchr.org/sites/default/files/lib-docs/HRBodies/UPR/Documents/session12/HT/JS5-JointSubmission5-eng.pdf?utm.

[8] Id.

[9] Id.

[10] Mickens Mathieu, Spotlight on the law of September 21, 2017: to better address the challenges of the solid waste management system in Haiti, UNDP Haiti (Mar. 22, 2022), https://www.undp.org/fr/haiti/blog/spotlight-law-september-21-2017-better-address-challenges-solid-waste-management-system-haiti.

[11] Mathieu, supra note 10.

[12] Id.

[13] Id.

[14] Waste Management, International Trade Administration (2024) https://www.trade.gov/country-commercial-guides/haiti-waste-management#.

[15] Mickens Mathieu, A Focus on Informal Solid Waste Collectors in Haiti: Key Players but Neglected Actors, UNDP Haiti (Mar. 17, 2022), https://www.undp.org/fr/haiti/blog/focus-informal-solid-waste-collectors-haiti-key-players-neglected-actors.

[16] Marcelin LH, Cela T, Shultz JM. Haiti and the politics of governance and community responses to Hurricane Matthew, Disaster Health. 2016 Nov 22;3(4):151–161.

About the Author:

Christine Paul is a Class of 2023 Presidential Management Fellow. She holds a J.D. from Vermont Law and Graduate School and a B.S. in Biology from St. John’s University. Christine is dedicated to environmental law and justice, and thanks Professor Catherine Fregosi and Christine Ryan for their invaluable support while writing.

Green Gentrification: Rochester’s Inner Loop

By Katherine Scott

Community development is an essential part of creating a more sustainable society. The way that most cities currently operate is not efficient and is generally detrimental to the environment. To change that, city planners, architects, and legislators will scope out spaces that can be re-utilized into something more sustainable. They develop plans to create more walkable cities to reduce the amount of time an average commuter has to spend in a car, or they’ll create larger plots of land for trees and other vegetation to create “green space” in a city.

These are great ideas, but the plans often overlook what is already in front of them. City planners and legislators often tear down what already exists to create green spaces or more walkable cities. By doing so, they discount the residents who live in that community.

The major factor that often goes under looked, or that gets reduced to a small net loss, is the economic impact that “greening” the city will have on the current residents. Too often, those residents are low-income and disproportionately people of color. For example, New York City converted an abandoned subway track into a lovely park for people to walk on, called the High Line. This park includes modern art, plenty of plants and flowers, and an incredible view of the city. However, many parts of the High Line are surrounded by resident housing (as is most of New York City). Any residential housing adjacent to the High Line raised housing values by 35%. The increase displaced current residents and keeps out anyone who cannot meet the new economic norm.

This is the process known as green gentrification. Cities have big aspirations of creating a sustainable community but end up displacing low-income residents. This happens all over the country, but more specifically, it is happening right now in Rochester, New York.

Marketview Heights is a community in Rochester that has existed for generations. Members of the Marketview Heights community want to keep the community’s sense of place and are skeptical about the incoming teardown of Inner Loop North. Sense of place is the attachment that one has to their home and to their community. When there is not a strong connection to the community, people tend to not treat the space very well. Renters who move into the places built in place of the Inner Loop often do not have a strong connection to their community. Residents fear losing this sense of place, especially given what they have already experienced from the Inner Loop East project.

In the place of Inner Loop East, where part of the highway used to run, are towering modernized apartment buildings for renters. It is quite a juxtaposition from the houses just across the river that have been standing for generations. When asked about the change, Suzanna Mayer, of the local Non-profit Hinge Neighborhoods, said, “They got rid of a moat, and built a wall.”

The city of Rochester, New York, has just recently received a substantial grant from the state to tear down another part of the Inner Loop–a highway that has segregated the downtown Rochester community since the 1960s. From the perspective of an observer of the downtown Rochester community, this is a great success. The city of Rochester is achieving its goal of tearing down the eye-sore highway, making downtown Rochester a more walkable city, and creating “. . .safer streets, bike lanes, green spaces, and good paying local construction jobs. . ..” to quote Senator Chuck Schumer when interviewed for the City of Rochester website. This seems like a great environmental win for the city. Some residents of Marketview Heights, the community right down the street from the recent Inner Loop East construction, disagree.

Renters who move into the places built in place of the Inner Loop often do not have a strong connection to their community.

A solution to this inevitable paradox: Consider what the people already living in that community have to say about developing their community. The experts in community development are the people who live there. No one can create a better place for a person when they have no idea of the needs of that person and their community. Take into consideration that there could be more community-building events or what they can do to encourage renters to consider long-term living.

The “wall” that Inner Loop East built was not just a physical, aesthetic divide but a social divide as well. There must be a plan to incorporate the current Marketview Heights community into the new one created by the Inner Loop project; a plan to create opportunities for the people coming into the community and especially opportunities for its current residents. The architects of the Inner Loop project should build upon what is already in the community and listen to the residents’ input and ideas.

image used with public share permission from: ProtectThackerPass.org/resources

While We’re Here: Acknowledging Harm in Federal Green Initiatives

By Ariana Richmond

On day one in office, the new administration canceled climate change initiatives. Executive Order 14154 eliminated the “electric vehicle (EV) mandate,” revoked twelve executive orders addressing the climate crisis, and attempted to override bipartisan climate change legislation. Setting aside the consequences likely to result from an absence of federal leadership, this complete stop is also an opportunity to pause and think about equitable solutions through a Just Transition. To that end, how have green initiatives like electric vehicle goals harmed marginalized communities?

Federal green initiatives—even well-intentioned with environmental justice—too often still come at the expense of historically oppressed communities. Under the Biden administration, there was bipartisan support for clean energy and infrastructure as well as environmental justice—and even for putting them all together.

At the executive level, the Biden administration committed to environmental justice through the Justice40 (J40) Initiative. Through Executive Orders 14008 and 14096, the White House committed 40% of overall benefits from federal clean energy and infrastructure projects to historically disadvantaged communities.

Consistent with this, Congress passed, and President Biden signed into law, two pieces of landmark legislation: the 2021 Infrastructure Investment and Jobs Act (commonly known as the Bipartisan Infrastructure Law or BIL) and the 2022 Inflation Reduction Act (IRA). Both laws established infrastructure and clean energy projects that prioritized disadvantaged communities. From this, the Biden administration produced a list of over 500 programs under J40authorized by Congress for climate change and environmental justice. In this way, the federal government committed to a green economy while purporting to serve marginalized communities.

However, some of the clean energy programs directly harm marginalized communities. For example, the BIL and IRA advance electric vehicle (EV) manufacturing, which has harmful local impacts. The IRA alone appropriated $3 billion to the Department of Energy’s Advanced Technology Vehicles Manufacturing Loan Program, and removed the program’s loan cap, to fund direct loans for manufacturing facilities for EV battery critical minerals. Accordingly, the Department of Energy issued a $2.26 billion loan to Lithium Americas, a Canadian company, to build a lithium mining facility at Thacker Pass in northern Nevada. Notably, this is all part of the J40 environmental justice program. Further, both the Biden and previous administration supported the mine, with the Biden administration increasing funding and finalizing the loan.

The area of the mine, Thacker Pass, Nevada (Peehee Mu’huh), is unceded land. The Numu/Nuwu and Newe Peoples maintain rights to the land. Today, the area borders Oregon, sits atop an extinct volcano, and is likely one of the largest sources of lithium in the U.S. Most importantly, the area is hugely significant to the Indigenous Peoples who have lived there since time immemorial.

Forcibly removed to reservations nearby, at least six federally recognized Tribes of the Numu/Nuwu and Newe People resist the mine site. The Fort McDermitt Paiute and Shoshone Tribe has a 54-square mile reservation that is around 30 miles from the mine. Some of the harm to Tribes from the mine includes: obstructing hunting, fishing, and gathering rights; preventing cultural and religious practices; obstructing the continuation of traditions; and infringing on ancestral land claims—in addition to ecological and environmental harm. There is also an increased risk of violence, including sexual violence against women, historically pervasive among extractive industry practices. Additionally, the land is a sacred burial site since 1865, when U.S. soldiers massacred Numu/Nuwu and Newe Peoples who inhabited the land.

Tribes resisting the mine have sued in federal district court, lost, and lost on appeal at the Ninth Circuit. Under the National Historic Preservation Act and NEPA, the federal government must follow procedural requirements, including Tribal consultation, before approving the project. Additionally, the U.S. government has a trust relationship with Indigenous Nations and must engage in good-faith, nation-to-nation consultation. According to a February 2025 Human Rights Watch report, the construction of the mine also violates Indigenous Peoples’ rights under international law, to obtain free, prior, and informed consent before permitting the mine. Yet, the U.S. government failed to uphold each of these obligations.

In this way, the lithium mine violates the rights of Tribes despite the U.S. government categorizing the project as green and just. This case illustrates how federal green initiatives purporting to advance environmental justice fail to do so. A green economy carried out at the expense of Indigenous Peoples is neither green nor just. It is important to acknowledge this harm now while federal initiatives are stalled. It is equally important to consult directly with environmental justice communities, including Indigenous Peoples, before advancing policies for a green economy.

With Global Fishing Fleets, Justice Walks the Plank

By Ilinca Johnson

What happens when poorly regulated fishery harvest practices lead industry to exploit vulnerable, impoverished communities? Global Fishing Fleets (“GFFs”) are large-scale industrial operations sustained by harmful fishery subsidiesprovided by their respective governments. The largest fleets are maintained by China, Japan, South Korea, Russia, and theUnited States. GFF operations keep the cost of seafood low for consumers around the globe by raising numerous other costs that marine ecosystems, the climate, and marginalized communities bear instead. Most alarming is how GFFs promote modern-day slavery. The current state of GFFs calls for great reform to prevent resource exploitation and protect vulnerable communities globally.

Working in the theory of Environmental Justice, scholars “tend to cast a broad net to allow consideration of how exploitative relationships between industrial actors and marginalized communities, including workers, transcend into peoples’ everyday lives.” In this current case, the exploitative practices of GFFs unsustainably harvest from marine ecosystems while simultaneously violating the human rights of vulnerable communities, demonstrating the intersection of environmental and social injustices.

Environmentally, industrial fishing has severely depleted fish stocks. In the past few decades, GFFs have tripled the number of over-harvested stocks of fish through illegal, unreported, or unregulated fishing (IUU). Today, one out of every five fish is caught IUU. Approximately 27 million tons of marine life – including an estimated 300,000 whales and dolphins—are caught and discarded as bycatch each year.

GFFs often illegally harvest in protected areas or the territorial waters of developing nations with weaker regulatory systems. GFFs avoid detection through falsifying reports, deactivating transponders, and transshipments. Transshipments move catch between vessels at sea to large “reefer” ships. These reefers have huge onboard freezers where legal and illegal fish alike mix, hiding their original source. Overfishing threatens the survival of iconic and ecologically important species including the bluefin tuna, cod, and numerous shark species, damaging marine ecosystems and devastating local indigenous communities reliant on subsistence fishing.

GFFs also contribute significant carbon emissions. Since the 1950s, greenhouse gas emissions have more than quadrupled due to unsustainable fishing practices. Today, fleets must expend more energy to maintain catch levels, going further and further from their coastlines in search of enough fish. Now, it takes twice as much effort to harvest the same number of fish as in the 1950s. The loss in fish populations disrupts blue carbon sequestration in the deep ocean, contributing even more carbon dioxide emissions to the atmosphere.

Beyond environmental destruction, GFFs notoriously exploit labor. An estimated one-third of these fleets engage in forced labor, particularly in South Asia, where trafficked workers from Myanmar, Cambodia, Thailand, and Bangladesh then endure inhumane conditions. Many are lured by deceptive job offers, only to have their passports confiscated.

These people then face months to years of twenty-hour workdays without pay while sleeping in a concentration-style bunk room and given largely non-nutritious meals. Supported by reefers and supply ships, a ship crew could be at sea for years. Reports indicate widespread torture, forced confinement, and even the murder of laborers. Between 2019 and 2020, at least 30 Indonesian workers died on Chinese fishing vessels. Today, potentially half a million migrants remain enslaved in Thailand’s shrimp industry. Additionally, Uyghurs and North Koreans are documented as working under forced labor conditions in Chinese seafood processing plants directly supplying global markets.

The exploitation of forced labor is deeply tied to overfishing. Some studies suggest the use of forced labor is a direct response to the diminished populations of fish in the ocean. By aggressively reducing expenditure on crew by utilizing human trafficking, Global Fishing Fleets save money and can provide cheap seafood to the world.

Western consumer markets, particularly in the U.S. and EU, inadvertently fuel these abuses by prioritizing cheap seafood over ethical sourcing. Major retailers such as Walmart, Tesco, and Costco sell shrimp produced through slave labor in Thailand. Currently, it is virtually impossible to trace the opaque supply chains within the global shrimp industry, though efforts are being made. The U.S. alone accounts for 14% of global seafood imports, with an estimated average potential slavery risk of 3.1 kg (~6.8 lb) of seafood per tonne consumed. That risk is 17 times higher than seafood from domestic fishery sources.

To address these injustices, urgent action is needed. Governments and industry leaders must prioritize human rights and environmental sustainability by implementing stronger labor regulations, increasing supply chain transparency, banning harmful subsidies, and ending or closely managing transshipment practices. Closing the high seas to fishing and investing in small-scale, equitable fisheries would help restore fish populations, create more equitable access to highly migratory species like tuna. Most importantly, adopting such measures would protect both the environment and vulnerable communities globally, leading to a more secure future for millions. Without reform, continued overexploitation deepens economic and social inequalities that threaten global food security, the livelihoods of millions, and the long-term health of marine ecosystems.

The time for change is now—ensuring ethical, sustainable fishing practices is essential for both people and the oceans.

The Substitution Effect: Could Reducing Fossil Fuel Sales Truly Have No Impact?

By Shekhar Pathak

“Climate change is an extremely complex and difficult issue. It crosses jurisdictional boundaries, is rapidly worsening and has the potential to cause unprecedented loss and damage.”

–Winkelmann CJ, Glazebrook and Ellen France JJ

Imagine, a large paper company, aware that its logging practices contribute to deforestation and increased carbon emissions, argues that it should not be held liable for these environmental impacts, because if it ceased operations, other firms would take over the same logging areas, leading to no net reduction in emissions. A Dutch appellate court (“Court”) reflected similar reasoning in a recent ruling concerning Shell’s climate obligations. Globally, temperature increases, driven by greenhouse gas (“GHG”) emissions, reach 0.8°C above pre-industrial levels but specifically rise above those levels by 1.7°C in the Netherlands. The Court overturned a landmark ruling that had required Shell, whose energy sales in 2023 were 91% derived from major GHG sources, to reduce its carbon emissions by 45% by 2030. The Court acknowledged Shell’s significant duty of care in mitigating climate change, given its century-long dominance in the fossil fuel market. However, regarding Scope 3 emissions, the Court rejected Shell’s claim that it had limited influence on demand-side factors, but accepted its supply-side argument. It also agreed with the substitution argument, noting that reducing Shell’s fossil fuel sales would not lower overall CO2 emissions, as other suppliers would step in to fill the gap, leaving global emissions unchanged. Nonetheless, the Court ruled that Milieudefensie et al. lacked sufficient legal interest under Article 3:303 of the Dutch Civil Code (“DCC”) to impose a Scope 3 reduction obligation on Shell.

However, as observed, the Court’s reasoning—claiming that reducing Shell’s fossil fuel sales would not lead to a net reduction in CO2 emissions—is flawed on two significant grounds: First, it overlooks the inherently collective nature of climate change, where individual actions cumulatively contribute to global emissions. Further, while Shell and similar carbon producers may not have specific obligations to future generations, the court acknowledged their general duty to avoid jeopardising future living conditions. Second, the Court’s reliance on the ‘but-for’ test in assessing sufficient interest under Article 3:303 DCC implies that since granting the claim would not directly benefit the claimant, there is no legal interest. While this test is effective for assessing discrete causation, it fails to account for complexity, as seen in Gloucester Resources, where it proves problematic for systemic issues like attributing specific climate-related events to individual emitters. And, by focusing solely on whether harm would have occurred without Shell’s actions, the court overlooked the shared responsibility for climate change, making it nearly impossible to prove, on the balance of probabilities, that Shell’s actions were the direct cause of the harm.

The challenge of proving causation in climate-related cases is evident globally. In the Native Village of Kivalina, an Alaskan Inupiat village sued 24 companies for nuisance, alleging their emissions contributed to coastal destruction. Similarly, in Luciano, a Peruvian farmer claimed a corporate defendant’s emissions caused glacier melting, leading to significant mitigation costs. In Smith, the plaintiff alleged public nuisance, negligence, and breach of duty against corporate emitters. In all these cases, plaintiffs failed to establish the requisite causal link for climate change-related harm, reflecting the inherent difficulty in attributing specific damages to individual emitters. Moreover, its rigidity not merely applies to climate change but also to toxic torts, as seen in Fairchild, Barker, Sienkiewicz and Sindell as well as to emotional harms, as highlighted in Shorey, and Calascione, which have similarly struggled with conventional approaches to legal causation.

The observations made in the above case laws suggest, that the core difficulty in applying the traditional causation test, specifically in climate change litigation, lies in the following: First, a plaintiff faces difficulty in proving the direct, causal link required by the test between their harm and the defendant’s actions. In this case, the judge considered emissions from other third-party emitters, which, in the absence of Shell’s contributions, merge indistinguishably, interact, and ultimately, through complex natural processes, contribute climate change. This makes it impossible to establish a clear causal chain from one emission source to specific damage. Second, given that everyone contributes to emissions, Shell is just one of more than seven billion emitters. The plaintiff cannot establish, on the balance of probabilities, that the harm would not happen in the absence of the defendant’s emissions. It is more likely that the harm occurred because of the actions of other emitters. However, in reality, Shell’s emissions, alongside those of other corporations, contribute to a harmful set of factors. Reducing Shell’s emissions would still mitigate the overall damage, even if other contributors remain active.

Therefore, the court should adopt a more flexible approach, such as the ‘extended but-for test’ proposed by Professor Jane Stapleton, considering the complexities of environmental protection. This test identifies a factor as causal if it positively contributes to the mechanism causing harm, even if it is not independently sufficient. For example, a defendant who negligently pushes a car over a cliff alongside others remains a cause, even if the act could have occurred without their involvement. The UK Supreme Court’s decision in Financial Conduct Authority reiterated this departure from the strict ‘but-for’ test. In addressing business losses caused by COVID-19 restrictions, the Court held that an insured peril could be considered a cause of loss, even if it was neither necessary nor sufficient alone, as long as it contributed alongside other factors. This approach recognises the limitations of the rigid traditional test and provides a more adaptable framework for addressing causation in complex, systemic scenarios, such as determining the liability of giant emitter corporations like Shell.

The Climate Is Changing in the United States: Preserving Environmental Interests in a New Administration

By Eric Grimes

President Trump made his intentions for United States environmental interests clear within hours of his inauguration. Among the slew of executive orders President Trump passed on his first day in office was an order withdrawing the United States from the Paris Agreement, another authorizing unlimited oil drilling, and another gutting green initiatives across the country. Few people in the world today do not believe climate change and the health of the environment are extremely prominent issues requiring immediate and extensive action. Unfortunately, the President and his administration seem to be among the group of people uninterested and unwilling to act. While the President’s policies do not look good for the United States’ environment, hope for its protection can still be found elsewhere. President Trump has attacked many environmental issues, but this post will focus on the initiatives surrounding the Paris Agreement. Many initiatives outside of the Federal government aim to mitigate the President’s environmental policies.

When President Trump was elected for a second term, many hoped he would reverse his stance from his first termand allow the United States to stay in the Paris Agreement. The Agreement focuses on keeping global warming below a 2 degrees Celsius increase from global temperature in 1990. The 2-degree level is largely understood to be a temperature at which there will be severe climate change impacts. Unfortunately, President Trump has felt that goal does not align with his policy interests. Luckily, between the initiatives established after the President’s first withdrawal and a substantial number of pessimists (or possibly realists?) concerned with his second withdrawal, avenues have been made to uphold the U.S. obligations to the Paris Agreement without Trump.

The most prominent representation of hope for Pro-Paris interests is the U.S. Climate Alliance. The U.S. Climate Alliance is a coalition of state governors interested in upholding the United States obligations under the Paris Agreement in their states. The representative states make up over 50% of the United States population and economy. The U.S. Climate Alliance allowed states to fight back against President Trump’s first withdrawal from the Paris Agreement. After the first withdrawal, the U.S. Climate Alliance was responsible for extensive climate legislation and regulations. Some of the resulting statutes passed included the Vermont Global Warming Solutions Act of 2020, which held Vermont to even stronger goals than the Paris Agreement, and the 2017 Climate Change Scoping Plan Update, which created an extensive plan for California to achieve its climate goals. When President Biden rejoined the Paris Agreement after taking office, the U.S. Climate Alliance slowed down its activity. However, on the same day as President Trump’s recent withdrawal from the Paris Agreement, the U.S. Climate Alliance made a public statement about upholding the United States’ pledge to the Agreement.

The current political turmoil in the United States has created a shift toward greater localization of action. The U.S. Climate Alliance is a perfect example of localizing action to address climate change. State governments might not have the reach or the resources that the federal government possesses, but they have the drive and support to address change where they can. Situations like these can sometimes even encourage states–such as Vermont, California, Hawai’i, and New York–to create stronger goals and legislation to address climate change than the federal government can or would implement. On top of state-specific action, local governments, organizations, and companies have started to take action to support the fight against climate change. America Is All In, a joint declaration of over 5,000 organizations committed to upholding the obligations of the Paris Agreement, is a prominent example of companies joining the fight against climate change. The coalition includes many influential companies such as Microsoft, which recently entered into an agreement to directly support the Paris Agreement.

While the United States may have left the Paris Agreement, hope can still be found in the shift to localized efforts. President Trump’s efforts to disrupt climate action in the United States may be successful at the federal level, but the path forward is clear for state and local governments, companies and organizations, and people and communities. Climate change must be addressed through all available avenues. For issues as pressing as climate change, action cannot be put off till the next administration.

Environmental Attorneys Push Vermont to Take CAFOs Seriously

By Julia Wickham

Americans eat meat. And lots of it. To satisfy consumer demand, land use needs, and workforce availability, concentrated animal feeding operations (“CAFOs”) are the predominate means of livestock production in the United States. Recently, a coalition of environmental groups brought suit against the EPA for their lack of Clean Water Act (“CWA”) oversight surrounding CAFOs. For example, Iowa has 4,025 “large” CAFOs according to the EPA. Iowa Department of Natural Resources considered over half of Iowa’s lakes, reservoirs, rivers and streams impaired. Iowans fear their climb to second place for highest cancer incidents in the nation correlates to the density of large animal operations and runoff infiltrating the water.

Yet, one of the most recent EPA interventions of CAFO pollution is in Vermont–home to only 37 “large” CAFOs. In September, the EPA ordered Vermont to control pollution from CAFOs and adhere to the CWA. The lax state regulations allow CAFOs to dump phosphorus into waterways, resulting in water quality issues such as cyanobacteria blooms in Lake Champlain. At first glance, EPA’s investigation and mandate regarding Vermont’s agricultural pollution seems misplaced given the relatively small number of CAFOs in the state. However, this federal scrutiny is clearer when considering Vermont’s status as home to one of the nation’s leading environmental law schools, which trains attorneys to advocate for stronger environmental oversight.

Starting in 2008, a Vermont Law School Clinic filed a petition asking the EPA to withdraw approval for the Vermont Agency of Natural Resources (ANR) to administer the National Pollutant Discharge Elimination System (NPDES) under the Clean Water Act. Vermont Law School cited numerous concerns with how ANR issued and enforced discharge permits to prevent water pollution. In response, EPA issued a 2013 Corrective Action Plan calling on ANR to improve various aspects of its NPDES program. However, nearly ten years later, the Conservation Law Foundation, Vermont Natural Resources Council and the Lake Champlain Committee filed a petition with the EPA voicing similar concerns to Vermont Law School’s 2008 petition. In response, the EPA launched another investigation and released the most recent demand letter in September 2023, requiring Vermont to change how the state regulates farms—specifically CAFOs.

Currently, Vermont law divides jurisdiction over agricultural water quality between ANR and the Agency of Agriculture, Food, and Markets (“AAFAM”). The agencies have attempted to manage the division of jurisdiction through Memoranda of Understandings (“MOUs”), dating back to the 1990s, updated in 2009, and again in 2017. In their most recent letter to ANR, the EPA determined this current division of responsibilities to be “preventing Vermont from adequately addressing agricultural water quality.”

Vice President of the Conservation Law Foundation (“CLF), Elena Mihaly, graduated Vermont Law School in 2013 with a J.D. and Masters in Environmental Law and Policy. In the investigation prior to submitting the formal 2022 petition to the EPA, Mihaly reported that CLF found glaring oversights from both ANR and AAFAM, including examples of email feuds over which agency had jurisdiction.

In December 2024, ANR sent a proposal for agency restructuring to the EPA. This would create a new permitting process for Vermont farmers overseen by ANR instead of initial inspections done by AAFAM with referrals to ANR. If the proposal is accepted by EPA, both agencies will participate in on-farm inspections, but ANR will take the lead. This 2025 Legislative Session, Vermont Legislators could provide more funding for state agency staff or draft legislative fixes for the overlapping delegation of authority.

The EPA’s focus on Vermont’s regulation of CAFOs may surprise others in states like Iowa where confinement barns dot the landscape, and there is 1 Iowan for every 7.3 hogs. However, Midwestern states have not fostered generations of environmental attorneys and advocates at their law schools. It has taken repeated attempts over nearly two decades to address the gaps in enforcement and oversight of the CWA in agricultural pollution in Vermont. However, because of Vermont Law School alumni and the Vermont Law School Clinic, Vermont is one step closer to having cleaner water. Vermont provides a framework demonstrating how a law school, dedicated to public service can push for change—if any young lawyers are looking to make some noise, Iowa’s wide open.

We Paved Paradise to Put Up with Parking Lots

Angie Kaufman

At first glance, the American parking lot may seem, well, boring; perhaps it’s helpful and convenient at best, benign at worst. However, the effects of parking reach far and wide as it drives urban sprawl, housing shortages, inequitable costs, and spatial injustice. Parking takes up nearly one third of the land in United States cities. This comes out to eight spaces per car, according to some estimates. In San Bernadino, California, parking takes up nearly fifty percent of the central city. Across the country, most land use practices prioritize scarce land and monetary capital for carsover housing. For example, parking spaces in Los Angeles take up more land than housing. As UCLA professor and parking policy specialist Donald Shoup stated, “Zoning requires a home for every car, but ignores homeless people.”

Traditionally, environmental justice refers to the disproportionate placement of industrial hazards in low-income communities and communities of color. But equal access to resources is also a foundational environmental justice principle. Car-centric zoning policies violate this principle by creating spatial injustice, the “[in]equitable allocation of socially valued resources,” like “jobs, political power, social services, environmental goods in space, and the [un]equal opportunities to utilize these resources over time.” A society designed for cars leads the way for sprawl and decentralized resources accessible only by car. Mandated amounts of parking, criminalization of pedestrians, and restrictive zoning laws have silenced urban centers and stripped them of vibrancy and resources. Car-dependence and urban sprawl limit people’s access to necessities like affordable housing and food security while exposing communities to more intense effects of climate change. Thoughtfully reshaping the law to encourage human-scale spaces that prioritize public transit and walkability can ameliorate spatial injustice by improving access to resources, affordable housing, food security, and opportunities in urban communities.

Historically, cars were seen as a status symbol. They were used primarily for sporting and entertainment, so long as you could afford the high cost of purchase and maintenance. Once manufacturers began mass producing cars, American car ownership soared. Today, high costs of purchase and maintenance remain with one crucial difference: cars are no longer a sporting luxury but rather a necessity in the daily lives of many Americans.

Through laws mandating parking minimums and zoning restrictions, corporate lobbying and market forces transformed much of the landscape from an approachable, human-scale model to one designed for cars. For example, the advent of “jaywalking” was originally justified as a way to protect pedestrians; the car lobby criminalized the act in the 1920s. The auto industry funded a propaganda campaign that framed pedestrian victims as responsible for their own death after drivers hit them. Such criminalization “reconstruct[ed] how streets are used, and who they are intended for.” In other words, criminalizing “jaywalking” redefined streets from common spaces for people to gather, shop, and walk to spaces for cars to pass through.

Researchers have recently focused on the deleterious impacts of parking minimums in municipalities. Parking minimums are local laws baked into a municipality’s zoning code that mandate developers include a specified minimum number of parking spaces per new development. As cars increased in popularity, they occupied more curb space and congested streets. As a result, municipalities implemented parking minimums. These parking minimums operate under the guise of ensuring that an adequate number of parking spaces are available for cars. In reality, there are many more parking spaces than needed. Today, it’s common knowledge among parking experts that the numbers are pulled from thin airthrough arbitrary pseudoscience.

Such abundance of free parking encourages more travel by car than would parking that requires a driver to pay directly for it. This creates two inequities. First, more travel by car requires more car infrastructure, like highways from suburban areas into cities. Highways have a prickly history with racial and environmental injustice. Federal programsfacilitated highways expansion to accommodate “white flight” – that is, when White people fled to suburban areas while redlining and disinvestment stranded people of color in urban centers. This displaced low-income communities of color and elevated the risk of industrial expansion, like incinerators, in their neighborhoods. This trend of racial injustice intertwined with highway expansion persists today.

Second, free parking offsets the price of parking spaces – each costing between five and ten thousand dollars for construction alone – to the consumer. For suburbanites driving into the city, this seems fair: without free parking, they would have to pay for it anyway. But for the urbanites that live nearby or used other means of transportation, they must pay the cost for the drivers. Housing developers also pass costs of parking to tenants, adding an average of $225 per month to a tenant’s rent, according to one estimate. That is, if there’s enough land available for developers to build housing in the first place, in accordance with parking minimum laws.

Parking minimums also imperil human health. Providing “free” parking encourages passenger car use, which increases traffic, and puts pedestrians, cyclists, and motorists at higher risk of injury or death by automobile accident. Parking minimums also drive urban sprawl by the nature of needing more space for parking and encouraging developers to opt for tracts of land outside of downtowns, where prices for land run high. This can create food deserts – areas without food options – for low-income communities and communities of color. Alternatively, the urban sprawl effect can create food swamps – areas drowned by unhealthy, fast-food options – when combined with the effect that parking minimums favor national corporations over small businesses. High density of parking also takes up land that could be used for greenspaces, depriving environmental justice communities equal access to nature, in violation of Environmental Justice Principle Number Twelve.

Moreover, parking lots’ impervious surfaces exacerbate the effects of climate change and jeopardize human health. A lack of porous surfaces to absorb flood waters and carbon intensifies flooding and directly correlates with increased temperatures in urban areas. Exhaust from cars similarly exacerbates the urban heat effect. Transportation emissions are the leading contributor of direct greenhouse gas emissions in the United States. Light-duty vehicles, like pickup trucks, and passenger cars account for nearly sixty percent of these emissions. These emissions, contribute to climate change – which strains urban infrastructure – and harm human health.

The abundance of free parking that birthed car culture has robbed municipalities of robust public transportation, walkability, and bikeability – all options that are safer, release fewer emissions, connect people of all income levels to resources, and don’t require parking lots. The costs of parking outlined above are many and don’t even account for the opportunity costs of parking minimums. At the root of it all, parking minimums drive urban sprawl and perpetuate spatial injustice for lower income residents who can’t afford to live in the suburbs – or have been systemically excluded from doing so.

Cities around the United States are beginning to recognize the impacts of parking minimums and remedy their effects by abolishing such laws, instituting parking maximums, and revamping their zoning laws to include multi-use and inclusionary zoning. Reclaiming human-scale places as an equitable climate solution, however, requires keen attention to social justice. While policies that create walkable communities are inherently equitable, they also attract gentrification, the influx of wealthier demographic and development corporations displacing working class communities and communities of color due to an increase in property values. Inoculating communities against gentrification requirescollaboration among community members, grassroots community organizing, inclusionary zoning measures and proactive housing laws. Carefully un-paving parking lots could create an equitable, human-scale paradise accessible to all.

The Future is Green: Amending State Constitutions to Safeguard the Environment for Future Generations

By Natalie Schaffer

Modern America swings between two futures: one that chants “drill, baby, drill” and another that preaches “reduce, reuse, recycle.” For many, the future we look to depends on the person in power, and because of the constantly shifting whims of politics, that future is continuously changing. American families struggle to rely on policies that change the moment a new administration comes into power.

There is a solution: Green Amendments. These amendments are self-executing provisions amended into a state constitution’s bill of rights by the legislature or citizens of a state. These amendments act as promises to the people of the state, or even the country, which secure the natural environment and health in a way that preserves its integrity for future generations. State-level Green Amendments allow states to create environmental safeguards for their citizens above and beyond what the federal government provides.

A Green Amendment has the beauty of being whatever the people make it to be. It can require the state to preservethe environment. It could require environmental repair to undo the damage already done. It can secure a right to clean water or clean air. It can require that the state ensure that the natural environment remains stable and healthy for the use and enjoyment of future generations. And most importantly, it can give legal standing to the people to bring a constitutional suit for environmental destruction.

These Amendments can provide a more stable environmental future for citizens because the environment is no longer subjected to the will of shifting politics. They give the people power by ensuring those people are not just given a clean environment, but that they are entitled to one. This stops legislators from rescinding environmental protections when doing so would damage the environment because it would violate the people’s constitutional rights.

Green Amendments have paved the way for young people to challenge the actions of their state that will harm them. Young people can use Green Amendments to sue their states or other bad actors within their states who are polluting and destroying the environment. By including provisions in these amendments that give a right to future generations, states will need to consider not only the immediate damage that a decision would cause but also the damage that future generations might have to endure.

So far, over twenty states have either passed a Green Amendment or are working towards passing one. These Amendments have provided a means for the people of those states to safeguard their futures. In Hawai’i, the state constitution safeguards citizens’ rights to a “clean and healthful environment”. A group of youths in Hawai’i used their state’s Green Amendment to sue the Hawai’i Department of Transportation for its increased release of greenhouse gas emissions, which contributes to man-made climate change. The youths successfully settled the case with the state and the state agreed to reduce emissions to a net negative level by 2045. This was a major win for the citizens of Hawai’i and shows the power that Green Amendments can have in forcing state governments to protect their natural environments.

The citizens of Montana recently had a major win in Held. v. State of Montana. Sixteen Montana youths sued the State for their Environmental Policy Act, which prohibited the state from considering the effects on the climate when assessing new energy projects. The court in Held ruled that Montana youths had a constitutional right to a stable climate and that Montana was required to take action to reduce emissions to protect the stability of the climate.

Montana is not the only state that has had a major win. Pennsylvania passed its Green Amendment in 1971 with overwhelming support. Because of a State Supreme Court case just two years later, however, the amendment was effectively rendered dormant. Then, in 2017, the Court overturned its previous decision, holding that the test previously established by the Court was incorrect. Under this new ruling, the state is required to “formally and forcefully” prevent environmental harm and protect the environment via legislation. Since then, organizations have been able to sue the government to protect the state’s environment. It has only been a few years since this ruling, so only time will tell how impactful this amendment will ultimately be.

As concern for the environment continues to grow, the push for Green Amendments will only continue to increase. It is important for those who want to protect the environment to advocate for a Green Amendment within their states. As more states pass these vital amendments, the impact that these amendments have on the nation will likewise increase. Citizens of Green Amendment states across the nation will begin to feel the positive impacts of a healthier environment. This may place pressure on the federal government to consider a Green Amendment of their own. Climate Change is a global problem, and while Green Amendments alone will not halt the damage currently being done, these amendments can force governments to tackle climate change head-on.

Published: Volume 26, Issue 2 of the Vermont Journal of Environmental Law

By VJEL

January 23, 2025

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 26, Issue 2. This issue delves into a variety of timely issues including the environmental justice implications of flood insurance policies, challenges that policies funding clean energy efforts face, and hazardous waste dumping.

VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 26, Issue 2 Publication or by accessing our Current Volume from the navigation header.

Articles:

First, “Navigating the Green Path: The Greenhouse Gas Reduction Fund and the Hurdles to Deploying Federal Funds” by Brian Farnen and Max Mrus unpacks the complexities of the GGRF, the largest U.S. investment in clean energy, shedding light on its potential, challenges, and impacts on equity and inclusion.

Next, Christine Paul’s “The Toxic Divide: International Waste Dumping and the Fight for Environmental Equity” dives deep into the exploitation of developing countries through hazardous waste dumping. This compelling piece examines systemic failings and offers bold solutions to tackle eco-racism and enforce international accountability.

Lastly, “Come Home or High Water: How National Flood Insurance Requirements Are Creating Redlining 2.0” by Savannah Collins uncovers how outdated flood policies deepen systemic inequities in the face of climate change. Her sweeping analysis reveals how federal programs inadvertently trap vulnerable communities in harm’s way while offering innovative legal and policy solutions to promote climate resilience.