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The Urgent Need for Stricter PFAS Regulations to Safeguard Water Quality and Public Health 

 Written by Ashton Danneels and Christophe Courchesne 

 Per- and polyfluoroalkyl substances (PFAS), often referred to as “forever chemicals,” are increasingly making headlines due to their persistence in the environment and their harmful health effects. To address this problem, the Environmental Protection Agency (EPA) has finalized a suite of important regulations. In April of 2024, the EPA introduced new Maximum Contaminant Levels (MCLs) for PFAS in drinking water, signaling a critical regulatory shift. And in May of 2024, two types of PFAS are now classified as Hazardous Substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Together, these measures are a good start to address the pervasive PFAS contamination holistically, from drinking water safety to remediation of polluted sites around the country. Yet stricter PFAS regulations are still needed, both at the federal and state level, to protect public health and address widespread contamination. 

 Why Are Federal Regulations Necessary to Regulate PFAS?

PFAS are a group of synthetic chemicals widely used since the 1950s in industrial processes and consumer products. They are used to make non-stick cookware, water resistant fabrics, firefighting foam, and various types of food packaging. PFAS are characterized by their strong carbon-fluorine bonds which make them extremely durable. The chemicals are resistant to heat, water, and oil. These properties contribute to the reason they are so persistent in the environment and in the bodies of living organisms. These properties earned them the nickname of “forever chemicals,” since they are largely indestructible. Over time, PFAS bioaccumulate in living organisms, so they are particularly dangerous when they contaminate drinking water. Once believed to be harmless, PFAS are in fact unsafe and are increasingly linked to various health issues, including cancer, thyroid disease, and immune system disorders, making it imperative for regulators to take aggressive action. 

EPA’s new regulations, discussed below, are a step in the right direction, but many environmental advocates and public health officials argue that stricter, more comprehensive regulations are still necessary.  

 Brief Overview of Important Federal Regulations Under the Biden-Harris Administration  

Under the Biden-Harris administration, numerous actions have been taken to regulate PFAS. Importantly, EPA has issued a final rule under the Safe Drinking Water Act (SDWA) to address six PFAS chemicals present in drinking water. This rule sets enforceable drinking water standards and provides a mechanism for updates as new information becomes available. Maximum Contaminant Levels are the highest permissible concentration of a contaminant in drinking water; the standards are determined by balancing the health protection with the cost of the water treatment. 

Another significant measure was EPA’s designation of two PFAS substances—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under CERCLA, commonly known as Superfund. This designation provides a tool to hold polluters accountable and enables cost recovery and enforcement actions to address PFOA and PFOS releases. 

The administration also took steps under the Toxic Substances Control Act (TSCA) by issuing a Significant New Use Rule (SNUR) to prevent the resumed manufacture or processing of hundreds of inactive PFAS without a rigorous, upfront EPA safety review. Additionally, EPA issued SNURs to ensure that existing protections imposed on PFAS manufacturers under TSCA’s New Chemicals Program are broadly applicable to all future manufacturers and processors of these chemicals. 

Lastly, the administration has prioritized funding the nation’s water infrastructure through the Bipartisan Infrastructure Law (BIL). Of the funds allocated by the BIL, $9 billion are dedicated to assisting communities and water systems impacted by PFAS and other emerging contaminants. Additional federal funds are also available to support progress in addressing PFAS. 

 Looking Forward: The Case for Regulating PFAS Under the Clean Water Act  

PFAS contamination extends beyond just drinking water. These chemicals are routinely found in surface waters, groundwater, and soil. Federal laws like the Clean Water Act (CWA) should include PFAS-specific regulations. The CWA’s primary goal is to maintain and restore the chemical, physical, and biological integrity of the nation’s waters. This regulatory strategy is consistent with the efforts of the PFAS Strategic Roadmap. Specifically, EPA provided guidance on how to use the National Pollutant Discharge Elimination System (NPDES) program as a tool to regulate point sources that discharge PFAS into waters of the United States.  

Explicitly including PFAS in the CWA would allow EPA to regulate discharges of these toxic chemicals from industrial facilities and other point sources that release PFAS into water bodies. This would be an essential step in addressing the widespread contamination of rivers, lakes, and streams across the country. By incorporating PFAS into the list of pollutants regulated under the CWA’s NPDES permit program, industries are required to limit their PFAS emissions into navigable waters. This limitation would reduce the environmental spread of these chemicals and would be help protect ecosystems, wildlife, and human health, particularly in communities dependent on these water sources. 

 Looking Forward: The Case for Regulating PFAS As a Chemical Class, not a Chemical-by-Chemical Basis 

 Similarly, the SDWA plays an important role in ensuring that public water systems meet health-based standards for contaminants. EPA’s recent MCL for PFAS in drinking water set levels for six PFAS chemicals. While a step in the right direction, there are nearly 15,000 types of these synthetic chemicals present in drinking water. Broader inclusion of PFAS past the six chemicals included in this MCL could ensure that public water systems nationwide are uniformly required to monitor, filter, and reduce PFAS contamination. If PFAS were regulated as a class, the SDWA rule would be more comprehensive, close existing gaps, and prevent piecemeal regulation. 

Regulating PFAS under both the CWA and SDWA would create a more complete framework for addressing PFAS contamination at multiple points in the water cycle—before it enters drinking water supplies and after it reaches water systems. This dual approach ensures that PFAS are not only removed from drinking water but also prevented from contaminating surface and groundwater sources in the first place. 

 Regulation as an Environmental Justice Imperative 

 Communities already grappling with environmental inequities, such as Flint, Michigan, and Wilmington, North Carolina, are more likely to be continuously exposed to contaminated water. Stronger enforcement of PFAS regulations by both the EPA and state agencies is crucial to protect at-risk residents of these communities. Without regulation, PFAS contamination will continue to disproportionately harm communities lacking the resources to implement expensive filtration systems or other remediation measures. It is essential for the federal government to not only set strict limits, but also to provide funding and technical support to help states comply. 

PFAS contamination disproportionately affects low-income and rural communities that often rely on local groundwater and those municipal water systems with limited resources. In these areas, the risk of exposure to dangerous levels of PFAS is higher, and without federal oversight, the burden of contamination could persist for years. For instance, rural water systems may lack the resources for the advanced filtration technology required to remove PFAS efficiently. Adding to the financial pressures, rural systems typically do not have enough customers where they can feasibly spread the rate increases to make up for the testing and treatment upgrades that are needed. A study found PFAS in the bodies of 97% of Americans tested; there is a growing demand for clearer guidance on remediation techniques and more robust funding sources to help under-resourced communities upgrade their water infrastructure.  

What’s Next for PFAS Regulation? 

 The new MCLs are just the beginning of what will likely be a long regulatory journey. Environmental groups are pushing for PFAS to be regulated as a class of chemicals rather than on a substance-by-substance basis, which could significantly broaden the scope of regulatory oversight. If this happens, it could lead to even stricter limits and increased pressure on industries to find safer alternatives to PFAS-based products. 

There are concerns that the Biden-Harris efforts to regulate PFAS could be repealed under the second Trump administration. The Trump campaign deregulatory posture suggests a hostility to incurring the costs of protecting public health from PFAS, especially when the cost of removing PFAS from tap water could reach $3.2 billion annually. Project 2025, the Heritage Foundation’s policy blueprint for the next Republican administration, pledges to dismantle regulations, make EPA more receptive to industry-backed science, and defund significant research into toxic chemical exposure. And the courts may play a deregulatory role going forward as well; chemical companies have already filed lawsuits challenging the new MCL regulation. 

Instead of abandoning protective regulations, EPA and state agencies must work together to enforce the new MCLs and other PFAS rules while exploring further regulatory options. The urgency of the PFAS crisis cannot be overstated, and failing to act could leave millions of Americans exposed to dangerous levels of contamination for years to come. To truly protect public health and ensure environmental justice, EPA must continue to set strict, enforceable standards that reflect the latest scientific understanding of PFAS’s dangers.  

Author Bios 

Ashton Danneels is a third-year student at Vermont Law and Graduate School studying for a J.D. and Master of Environmental Law and Policy from Albuquerque, New Mexico. She is a senior staff member of the Vermont Journal of Environmental Law. She hopes to work in toxics policy and regulation following law school with a focus on PFAS and water quality. 

Christophe Courchesne is the Director of the Environmental Advocacy Clinic, Interim Director of the Environmental Law Center, and an Associate Professor of Law. Before joining Vermont Law and Graduate School in 2022, he was senior leader at the Massachusetts Attorney General’s Office, leading work on the climate crisis, federal policy, environmental and racial justice, and clean energy. Professor Courchesne previously worked as an advocate at the Conservation Law Foundation and as a senior environmental associate at a large Boston law firm. He has been admitted to practice in Massachusetts, New Hampshire, Vermont and various federal courts. 

 

Stuck in the Weeds: How the Next Farm Bill Impacts the Environment  

Written by Andrew Hockenberry & Emma Scott 

Plant sequoias. 

Say that your main crop is the forest 

that you did not plant, 

that you will not live to harvest. 

Say that the leaves are harvested 

when they have rotted into the mold. 

Call that profit.  

 – Wendell Berry  

This excerpt comes from Wendell Berry’s 1973 poem titled, Manifesto: The Mad Farmer Liberation Front. Over 50 years later, the idea of farmers planting trees is not so “mad.” Instead, one might refer to agroforestry as “climate-smart” agriculture. The United States Department of Agriculture (USDA) considers agroforestry a climate-smart agricultural practice. Through the Inflation Reduction Act (IRA), the USDA pays farmers to implement practices like planting trees to sequester carbon. Congress limited these funds to support only climate-smart practices. With the sun-close-to-setting on the IRA and no word from Congress on a new Farm Bill, it is unclear whether Congress will continue funding climate-smart agriculture with IRA funds. Instead, Congress could remove the “climate-smart” requirement and expand the funding for current Farm Bill conservation practices that do not necessarily have a clear impact on emissions or sequestration. Even when many of those practices, in the face of climate change, might seem . . . “mad.”  

This Article provides an overview of where the 2024 Farm Bill got “stuck in the weeds” regarding conservation spending. First, the Article will introduce the Conservation title of the Farm Bill. Next, it will discuss the IRA and the $19.5 billion in the IRA marked for conservation in agriculture. Then, it will cover the back and forth of the current Farm Bill negotiations and the proposals from different parties. Finally, the Article will end by giving an update on the impacts of the 2024 elections and the forecast for a new Farm Bill.  

Conservation in the Farm Bill  

In 1935, Congress passed the Soil Conservation and Domestic Allotment Act, declaring soil erosion a “menace to the national welfare.” Three years later, Congress wove soil conservation into the Agriculture Adjustment Act of 1938—one of the earliest versions of the Farm Bill. The emphasis on soil conservation in the Farm Bill ebbed and flowed throughout its early renditions. However, Congress established a Conservation title in the 1985 Farm Bill, which implemented “conservation compliance” requirements conditioning farmer eligibility for specific programs on adherence to minimum conservation measures. 

A decade later, in 1996, Congress authorized the first version of the Environmental Quality Incentives Program (EQIP)—USDA’s flagship conservation program for “working lands.” Through EQIP, the Natural Resource Conservation Service (NRCS) provides financial assistance to producers via reimbursements—or cost sharing—for practice adoption and implementation. In order to receive benefits, producers must implement the conservation practice(s) according to an EQIP plan developed with NRCS that identifies the appropriate conservation practice to address a specific land resource concern. Congress has modified and reauthorized EQIP in every subsequent Farm Bill. Most recently, the 2018 Farm Bill expanded EQIP, steadily increasing its annual budget from $1.75 billion in FY2019 to over $2 billion in FY2023. 

However, environmentalists often criticize EQIP for awarding funding to practices that do not reduce greenhouse gas emissions, sequester carbon, or build climate resilience. These critiques are not without merit. In 2020, over 11% of the funding went to Concentrated Animal Feeding Operations (CAFOs). CAFOs directly contribute to the climate crisis through methane and nitrous oxide emissions. They also pollute the air and water, particularly through animal manure and manure management, making it difficult to see why they would receive any conservation funding through the Farm Bill.  

On the other hand, given CAFOs’ prevalence in our food system, funding to strengthen waste storage facilities may be wise. One of the significant environmental risks associated with CAFOs is waste runoff. Typically, CAFOs store waste in open lagoons. These lagoons seep waste into the groundwater and are vulnerable to overflow with heavy rain and flooding events, which happen more frequently with climate change. Although giving EQIP funds to CAFOs does not contribute to climate change mitigation, one could argue that it is a necessary climate adaptation strategy.   

Agriculture and The Inflation Reduction Act 

In 2022, President Biden signed the IRA into law after it passed through Congress, mainly along party lines. The IRA added $19.5 billion over five years to support conservation in agriculture. Congress designated about half of that money to the EQIP program. However, Congress also narrowed the requirements for these specific EQIP funds, stating that IRA money is available only if the Secretary of Agriculture “determines [the practice] directly improve soil carbon, reduce nitrogen losses, or reduce, capture, avoid, or sequester carbon dioxide, methane, or nitrous oxide emissions, associated with agricultural production.” 

The NRCS interprets this legislative directive to mean “climate-smart” agricultural practices. It defines “climate-smart” practices as those reducing greenhouse gas emissions, sequestering carbon, and building climate resilience. These practices are not new, but rather build on practices already employed by farmers. Through climate-smart funding in the IRA, the NRCS now pays farmers for practices like no/low-till, nutrient management, and cover-cropping.  

While the NRCS approach is statutorily mandated in the IRA to be narrower than the existing EQIP programs, it casts a wide net. In 2024, the NRCS expanded its list to 57 practices it considers “climate-smart agriculture and forestry” (CSAF). Despite the legislative directive, some practices on the list do not directly sequester carbon. The NRCS explains its list expansion as necessary to “facilitate the management or function of a CSAF activity.” Some see this as a good strategy because it encourages a broader range of farmers to take smaller steps, which ultimately leads to significant changes. Others, however, believe NRCS’s expansive strategy does not create change fast enough.  

Amidst this debate, scientific uncertainty remains about which practices are the climate-smartest—i.e., which practices sequester more carbon and which reduce more greenhouse gas emissions. For example, planting trees pulls carbon from the atmosphere and, thus, may have a more significant (or measurable) climate mitigation impact than no-till or planting cover crops, which simply keeps carbon stored in the soil. Evaluating these practices is quite challenging. For example, one study identified and collected 378 different indicators of climate-smart practices. Moreover, farmers in some areas might be unable to employ the practices that have the most significant impact. In the face of such adversity, the NRCS has continued to cast a wide net. 

The Sticking Points 

The IRA’s funding expires in 2026, and the 2018 Farm Bill’s funding expired in 2023, though Congress authorized continuing support for another year through a continuing resolution. The sticking point in the Conservation title, and a principal hold-up of the bill, boils down to whether Congress should continue to fund the IRA EQIP program with “climate-smart” guard rails. Alternatively, Congress could roll the IRA dollars into the Farm Bill Conservation title, which offers funding for a broader range of agricultural practices that may not be so climate-smart.  

The debate over what to do with these funds tracks along party lines. Representative Glenn Thompson (R-PA), Chair of the House Agriculture Committee, supported removing the climate-smart requirement in the House Agriculture Committee draft Farm Bill. Thompson, along with other House and Senate Republicans, argues that the climate-smart requirements add needless hoops for farmers to jump through. On the other side of the debate, the Senate Agriculture Committee Chair, Debbie Stabenow (D-MI), considers the climate-smart requirements essential for resolving Farm Bill negotiations.  

2024 Election Impacts on the New Farm Bill 

In the wake of the November elections, Republicans walked away with a trifecta of victories. Next year, Republicans will control the House (5 seats), the Senate (6 seats), and the White House. Many on the right want to roll back IRA money through a budget reconciliation bill. But with the IRA benefiting many states with Republican leadership, we could see some of that money woven into existing Farm Bill programs—with climate-smart guard rails off, of course. On the other side of the aisle, Democrats have introduced Farm Bill text, including the climate-smart guard rails for the EQIP program. While bipartisan support is needed to pass the Farm Bill, Republicans know that if they hold out through this lame-duck session, they can lead negotiations next year and even achieve some of their goals through budget reconciliation. Unlike the Farm Bill, budget reconciliation can pass the House and Senate with a simple majority vote. Thus, budget reconciliation will be just as important to USDA conservation spending as the Farm Bill, which will likely see another extension before the end of 2024.  

Author Bios 

Andrew Hockenberry is a 3L at Vermont Law and Graduate School. He is a senior staff editor on Vermont Law Review. At VLGS, he is working towards earning a J.D. and a Masters in Food and Agricultural Law and Policy. He attended undergraduate at the University of Louisville, earning a B.S. in Applied Geography. After undergrad, he spent three years working with produce production in Louisville, KY and then moved to Chicago to teach urban agriculture. He continued to work in gardening and produce production. Currently, he is a member of the National Food Law Student Network Executive Board and a member of VLGS’s Food and Agriculture Law Society. After law school, he hopes to continue to help strengthen the connections and coalitions bringing meaningful change to our food system. 

Emma Scott is an Associate Professor and the Director of the Food and Agriculture Clinic at VLGS. Her work focuses on food system workers and food system policy at the federal, state, and local level. Previously she served as the Associate Director of the HLS Food Law and Policy Clinic (FLPC) and a Lecturer on Law at Harvard Law School. At FLPC, Emma primarily led FLPC’s advocacy on farm bill policy, food system workers, and improvement of USDA programs and services. She was the Supervising Attorney for the Mississippi Delta Project and led FLPC’s partnerships in the Mississippi Delta region. Prior to joining FLPC, Emma served as an Attorney-Fellow at California Rural Legal Assistance Foundation in the Labor and Civil Rights Litigation Unit (supported by Justice Catalyst). At CRLAF, Emma’s practice focused on group representation of workers from immigrant communities in employment litigation, with an emphasis on farmworkers and the H-2A visa program. Before that, Emma clerked on the U.S. District Court for the Eastern District of California for the Hon. John A. Mendez for two years, assuming the position and responsibilities of Senior Law Clerk in her second year. She received her B.S. in Social Sciences, magna cum laude, with a concentration in Cross-Cultural Studies and International Development, from California Polytechnic State University, San Luis Obispo, and her J.D., cum laude, from Harvard Law School. 

 

Biogas’ Toxic Relationship with CAFOs: How Reliance on this Fuel Source Engenders Harmful Animal Farming Practices 

Written by Alex Hume and Delcianna Winders 

Spanning roughly 2.5-million years, the Pleistocene epoch demarcated a significant point of Earth’s geologic history in which vast frozen tundras blanketed the globe. This epoch also saw major changes in the evolution of our early hominid ancestors, eventually becoming the more recognizable form of homo sapiens. Our ancestors survived the (possibly) “nasty, brutish, and short” lives they had during the Ice Age and emerged into the world of the Holocene. This period saw the advent of developments key to human culture, society, and history. Among the many human innovations, agriculture and the domestication of “farm animals” (dogs were domesticated a few thousand years earlier) are near the top when it comes to impact on humanity as a whole. 

Fast forward about 10,000 years, and modern agriculture is almost unrecognizable from whence it came. Animal farming can be a lucrative endeavor due to ever-increasing need for food. To maximize profit from this, some entities try to utilize all the farm space they have. Animal farms of this nature are known as concentrated animal feeding operations (CAFOs), or factory farms, and are places where animals are confined in tight spaces to maximize food production at the cost of animal well-being. Officially, the Environmental Protection Agency (EPA) defines a CAFO as an animal feeding operation where a specific number of animals are kept indoors for at least 45 days a year and crops are not sustained during growing seasons. CAFOs are regulatorily categorized as large, medium, or small. For example, if the animal feeding operation has 1,000 or more cows, then it would be a large CAFO. Due to the large number of animals in relatively small areas, CAFOs present a multitude of problems. Both animal and environment advocates have filed many lawsuits in this area, some of which have sought stricter regulation of CAFOs.  

In 2017, several groups filed suit against the EPA for promulgating a rule to exempt CAFOs’ emissions from reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). CERCLA defines certain pollutants as particularly harmful, including ammonia and hydrogen sulfide. As animal waste breaks down, it releases these (and many other) gases, which can be harmful in concentrated amounts. The court ultimately sided with the environmental groups and held that this rule was unreasonable and vacated it. But this win was unfortunately short-lived, as the 2018 Farm Bill overturned the court’s ruling. While CAFO problems each warrant their own in-depth analysis, this article focuses on the emergent issue of biogas, also known as factory-farm gas, and how CAFOs engender this problem to the detriment of the environment. 

CAFOs present many issues that can actually be perceived: the overcrowded and poor living conditions of the animals, routine mutilations without anesthesia, and general harm to the surrounding land and communities, which are disproportionately comprised of people of color. There are also legal issues associated with CAFOs, such as the EPA failing to require Clean Water Act (CWA) and Clean Air Act (CAA) permits. Biogas is also incredibly harmful but is often overlooked due to its non-obvious nature. Biogas is produced as a byproduct of animal waste and is created when anaerobic bacteria consume biomass. Biomass is an organic compound that is derived from plants and animals and was used extensively in the past as a reliable fuel source and is still relied on in some parts of the world. Biogas is mostly comprised of methane and carbon dioxide, which are harmful gases that contribute to climate change. Despite this, fuel generated with biogas is considered a renewable form of energy due to the fact that it attempts to harness these gases. It can either be used directly after being digested by the bacteria, or can be treated via different methods and turned into biomethane. Because of this additional step, only a small percent of biogas is converted into biomethane, despite the fact that biomethane has more applications. Europe currently produces the most biogas, and the European Union (EU) plans to further increase its biogas use in the hopes of reducing fossil fuel reliance. While the EU touts the necessity of increasing biogas, doing so could lead to adverse effects on the environment, especially if they obtain their biogas through CAFOs. It would also lead to more harm being done to animals who produce the biogas on CAFOs. This interest in biogas is not unique to Europe, however, as evidenced by California’s Low Carbon Fuel Standard law (LCFS). 

California enacted its LCFS to combat greenhouse gases (GHGs) being released into the atmosphere. GHGs and climate change are arguably the most pressing issues that plague humanity. However, the issue with California’s law is that it further entrenches environmentally-harmful CAFOs by enticing residents to turn to alternative fuel sources, such as biogas and biomethane. Additionally, it theoretically makes the CAFO industry more profitable for entities who have the ability to benefit from it, such as CAFOs, energy companies, and investors. Due to this increased reliance on biogas, these aforementioned entities could start to propagate more CAFOs to increase their biogas output. More CAFOs means more inhumane treatment of animals, and more pollutants being produced. 

CAFOs can produce a harmful amount of toxins that find their way into the air, ground, and water. CAFO waste releases 168 gases into the atmosphere, which negatively impacts the overall environment and especially environmental justice communities living near CAFOs. Currently, the CAA’s fugitive emissions rule exempts CAFOs’ emissions from being adequately stymied, and right to farm laws protect many CAFOs from being sued for nuisance. This makes it difficult, if not impossible, to seek remedy in the courts. When animal waste is not cared for, it can easily leech into the ground, resulting in contaminants being released into groundwater, in violation of the CWA. Additionally, some CAFOs discharge directly into rivers, creeks, and other bodies of water that are considered “waters of the United States.” This too violates the CWA. CAFOs produce 335 million tons of animal waste every year in the United States, and increased reliance on biogas could result in even more waste being produced and subsequently discharged into water bodies.  

While these environmental concerns affect everyone, it should be noted that some communities face a disparate impact from CAFOs. Environmental justice is an incredibly important aspect of environmental law that unfortunately does not always get enough attention. It is a body of law that is concerned with ensuring all people, regardless of race, socioeconomic status, and nationality are protected from a harmful environment. Despite legislative attempts to guarantee a healthy living environment for all, there are still plenty of examples in the United States where people of color are overlooked, and CAFOs exemplify this. In North Carolina, for example, thousands of CAFOs were built in areas that are predominately black. To reiterate, CAFOs present many environmental concerns, especially for those who live in close proximity to them. Air, soil, and water quality are generally negatively impacted by nearby CAFOs. Residents are then subjected to these adverse environmental conditions, and oftentimes may not have the means of being able to escape them. 

Biogas presents a novel way of dealing with an issue that has plagued humanity for a long time. Burning biogas attempts to utilize these harmful gases that have historically just been released into the atmosphere where they have deleterious effects on the environment. While it may seem like harnessing biogas in this manner results in the majority of it being burned as fuel, some studies have found that the majority of biogas still escapes into the atmosphere. Even if this system were more efficient, this is still just treating one of the symptoms of the overall problem as opposed to treating the problem itself. CAFOs produce an abundance of biogas and are a serious problem today. They mistreat and abuse animals in a plethora of ways, which is often overlooked, especially if it is framed in a way that highlights the use of biogas as a renewable resource while ignoring the harms done to animals. If laws and policies continue to pass that further shield CAFOs from repercussions and make them more profitable, it will likely result in CAFOs becoming more prevalent. This will increase the overall use of biogas, but will directly result in more animal suffering. In an ideal world, CAFOs would not be allowed to continue to operate in the manner they do. While this is unlikely to happen anytime soon, measures should be taken to ensure they do not proliferate and harm the environment even more than they already do, and the government certainly should not be incentivizing it. Burning biogas as fuel should at best be seen as a last resort reserved for combating the harms resulting from CAFOs, not an incentive that promotes the creation of new CAFOs. 

Author Bios 

Alex Hume is currently a 3L at Vermont Law and Graduate School. He is the Senior Articles Editor on the Vermont Journal of Environmental Law. He intends to use what he has learned at law school to advocate for positive change in environmental law, specifically focusing on water quality and endangered species. He has interned with the United States Fish and Wildlife Service and the Philadelphia Law Department. Outside of law school, Alex enjoys reading fantasy books, hiking with friends in the beautiful Vermont outdoors, and cooking various cuisines. 

 Delcianna J. Winders is an associate professor of law and Director of the Animal Law and Policy Institute at VLGS. Professor Winders founded and directed the world’s first farmed animal advocacy clinic while teaching at Lewis and Clark Law School. She also served as Vice President and Deputy General Counsel at the PETA Foundation, was the first Academic Fellow of the Harvard Animal Law & Policy Program, and was a visiting scholar at the Elisabeth Haub School of Law at Pace University. Her work has appeared in many law reviews across the country, as well as in the popular press. She received her JD from NYU School of Law, where she was awarded the Vanderbilt Medal for outstanding contributions to the law school, named as a Robert McKay Scholar, and served as the Senior Notes Editor of the NYU Law Review. 

Home Sales and Water Levels are On The Rise in Flood Zones 

Written by Abigail Bailey and Dr. Guanchi Zhang 

Sea levels are rising in the United States, and so are home sales in flood zones. Although some buyers enter flood zone transactions happily with their eyes open wide, many are manipulated into a financial burden under the guise of an investment. Instead of protecting vulnerable buyers, the government is often the seller and beneficiary. Both the emotional and financial loss of homes destroyed by sea level rise increasingly falls on those least able to tolerate it. 

There are primarily two types of people buying houses in flood zones. The first category is wealthy, older individuals who imagine that they will not live long enough to see flood damage become a problem. These people generally want to live out their golden years in the coastal home of their dreams. In historically desirable areas like the Isle of Palms and the Florida Keys, home values stay high as this category of older people continue to buy homes that come on the market. As the occupants pass away and the land floods, the market may crash for this type of home. In the meantime, wealthy older people keep buying coastal houses at high rates, and the property values stay high.  

The second category is more troubling. Low-income buyers are increasingly purchasing homes in flood zones. Income and education disparities, cultural and language barriers, and climate change collide in an unfortunate way in the flood zones that lack palm trees and azure seas. Government programs intended to protect disadvantaged people in these areas instead pull them into the trap. There are many ways this issue is compounded. 

Income and education disparities drive people to buy homes in flood zones. Unless the flood zone area has been historically desirable, repeated flooding will decrease the property value. At the same time, people in flood zones must buy flood insurance, which can range from $350 to $10,000 per year. Homeowners in a flood zones are often required to purchase this insurance from the government and get a U.S. Department of Housing and Urban Development (HUD)-backed mortgage. When a homeowner cannot afford the flood insurance along with a mortgage and any flood damage repairs, the houses are foreclosed and sold at foreclosure sales below market value. Foreclosure sale prices are attractive to low-income families striving for homeownership. The process of selling houses below market value without disclosing the full cost of ownership, then foreclosing the homes and repeating the process, places homes in flood zones in a feedback loop until their eventual destruction. The repetition comes at the expense of low-income families striving to improve their circumstances. 

Instead of preventing unfair home sales to low-income families, the federal government often acts as the seller in these transactions. HUD disproportionately sells homes in flood zones. Between 2017 and 2020, HUD sold houses in official flood zones at 75 times the rate of houses outside flood zones. HUD even sells homes in neighborhoods the city has marked for buyouts and evacuation. HUD justifies this by claiming their duty is to sell houses in their inventory and preserve neighborhood character, a nonsensical idea in a neighborhood marked for destruction.  

HUD and other sellers rarely disclose the full extent of costs associated with owning a house in a flood zone. Many buyers do not realize they need to purchase flood insurance until they have committed too deeply to the transaction to back out. Some states require mandatory disclosures for certain risk factors in real-estate transactions. Generally, sellers are advised to disclose anything that might be a risk factor, even when uncertain if disclosure is required. Despite this, many states do not require adequate (or any) disclosures regarding flood zones and flood risks. Mandatory disclosures remain inadequate for both private sellers and HUD. 

That said, the burden on sellers to obtain and disclose relevant information about their homes is high. Sellers may not be able to bear the full cost of determining whether their home is, or will soon be, in a flood zone. Not all sellers in flood zones attempt to pull wool over the eyes of a disadvantaged buyer. Not all sellers in flood zones are even aware of the risks to their property. Establishing an unfettered disclosure requirement for sellers or establishing an unfettered right of action to sue for buyers would likely only lead to deadlock in the housing market. It is unfair for either the private buyer or the private seller to bear the entire cost of flooding.  

HUD, however, is not a private seller, but a government agency created to benefit the people. HUD still fails to disclose the full risk of flooding in its property sales. HUD defends its actions by claiming that any person can get adequate descriptions of flood zone risks on the Federal Emergency Management Agency (FEMA) website. Likewise, states often do not require mandatory disclosures of flood zone information in private sales because the information is publicly available. This is where a disparity in sophistication becomes relevant. A less sophisticated buyer may not realize they need to investigate the flood risks for their home. A basic home inspection is not likely to explain the full extent of flood risks. Some guides provide advice on how to research the true flood risk of your property but the process is not straightforward. Even if a buyer can get a full picture of the costs and risks associated with flooding in their home, flooding factors are likely to change and get worse over time.  

Disparity of income and education is compounded by language and cultural barriers. People who struggle to understand English may not be given a real estate contract in their native language. They also may struggle to navigate research on English language and American government websites like FEMA and are unlikely to have the resources to hire an agent to research for them. Some immigrant communities are likely to be debt-averse, wishing to buy homes in cash. These individuals are more likely to buy inexpensive homes to avoid a mortgage.  

Homeownership is a part of the ‘American Dream’ and deeply engrained in American society. Homeownership helps accumulate generational wealth. But houses in flood zones defy this assumption. Homeownership in flood zones leads to expenses that outweigh the financial benefits, because of flood insurance, water damage, and other difficulties. The home cannot be passed down through generations because it will ultimately be destroyed by flooding. Both private sellers with a high level of sophistication and the federal government realize that homes in flood zones are a liability, rather than an investment. Increasingly, these homes are sold off, so that the cost of their loss is borne by those least able to afford it.  

It is difficult to find solutions to adapt the real estate market system to flood zone areas. Increased burdens on the sellers to disclose information and increased burdens on buyers to prove their ability to afford the cost of the houses seem like attractive solutions at first glance. Although requiring clear warnings about flood risks and costs in real estate transactions would be helpful to reverse this trend, the issue must be handled carefully. Neither private buyers nor private sellers always have the means to bear the entire cost of flood damage. Fear of bearing the cost may lead to both buyers and sellers halting their sales. Additionally, as the federal government points out, increased requirements for buyers to prove their ability to afford houses in flood zones might lead to redlining and unfair exclusion along racial and socioeconomic lines. In a housing crisis, all are loath to restrict more areas of inexpensive housing. The answer is not to refuse access to these areas for low-income communities, but to ensure that the cost of the loss is not borne by poor and disadvantaged communities. If anything, communities and people in flood zones are performing a public service, by occupying houses that are, from time-to-time, damaged or unlivable. People performing a public service should not also bear the costs of property loss due to flooding.  

Author Bios 

Abigail Bailey is a 3L student at Vermont Law and Graduate School, intending to pursue a career in Environmental Law. Abigail grew up in New Hampshire and studied in New England but now lives in South Carolina. Abigail is currently an intern at the South Carolina Department of Environmental Services Bureau of Coastal Management and a senior staff member on the Vermont Journal of Environmental Law. Besides being a J.D. candidate, Abigail holds a B.S. in Biology from Plymouth State University, an A.A. from Bard College at Simon’s Rock, and a certificate of completion from the Williams-Mystic Coastal Studies program out of Mystic, Connecticut.  

Dr. Guanchi Zhang is an assistant professor of law at Vermont Law and Graduate School, specializing in property law, state and local government law, as well as planning and land use law. Guanchi’s research explores critical urban institutions and their impact on growth and inequality in contemporary cities. His work has appeared in journals including Political Geography, Law and Social Sciences, and Public Law Study, and won a paper award from the American Association of Geographers. He also contributes to the Fairbank Center for Chinese Studies blog at Harvard University. He holds an SJD from Harvard Law School, where he was awarded the F.Y. Chang Fellowship, Dean’s Scholar Prize, and Harvard Certificate of Distinction in Teaching. He received an LLM, an LLB, and a B.Econ. from Peking University in China, Beijing