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New Jersey’s EJ Law Is Passed, and It Still Might Not Be Enough

by Isabella Marie Nangano

In 2020, the New Jersey State Legislature enacted the Environmental Justice Law, one that its citizens wanted for a long time. The law requires the Department of Environmental Protection (DEP) to consider the environmental impact of a proposed project on the community before approving its permits. This legislation was passed in response to calls from environmental activists for meaningful climate reform, particularly in a state that hosts the largest number of Superfund sites in the country. Governor Murphy expressed hope that the law would shield New Jerseyites from the pollution impacts of superstorms, like Hurricane Sandy, which caused widespread devastation in 2012. However, the law has fallen short of its promise. Despite being regarded as a landmark environmental justice law in this country, it does not fully protect the communities it was designed to serve. For instance, residents of the Ironbound neighborhood in Newark are fighting against constructing a sewage treatment plant which will lead to further pollution in the neighborhood—an outcome the Environmental Justice Law has not prevented.

Ironbound is a multicultural neighborhood rife with pollution. The heavily polluted Passaic River and countless factories border residents’ homes. These residents suffer health consequences from their living conditions, such as higher asthma rates in their children, but are unable to afford housing elsewhere. In theory, the law should be helping prevent further damage to this neighborhood, but it’s not. The state plans to build a new sewage treatment plant in the Ironbound neighborhood. The sewage treatment plant will act as a backstop for other sewage plants in case of future superstorms like Sandy. Hurricane Sandy destroyed New Jersey’s sewage system and raw sewage ran through the streets of Newark. Governor Murphey intends for this new plant to ensure that future storms are never as detrimental as Sandy. The plant is only meant for emergencies, but for one hour every day, the plant will run to ensure that the technology is still operable. The people who live in Ironbound already are impacted daily by factories and the pollution, and the last thing this neighborhood needs is another pollution source.

Ironbound residents have tried to organize against the sewage plant’s construction, but the Department of Environmental Protection conditionally approved the project in July. The plant is allowed to be built as long as it is: 1) only operative in an emergency, 2) incorporates some solar energy, and 3) utilizes high-quality equipment to reduce noise pollution. The conditional approval of this project is what the Environmental Justice Law was made to avoid. The reasoning behind building the sewage plant is to reduce the impacts from climate change-exacerbated storms (superstorms) caused by businesses which will never be a firsthand witness to the consequences of their actions. Those actors and decision-makers whose polluting tendencies created the need for an emergency sewage plant will never have to live next door to that emergency sewage plant. The Ironbound residents cannot afford housing elsewhere and are trapped in a toxic neighborhood.

The new sewage plant in Ironbound is just one example of environmental injustice in a country that has a serious problem with the disproportionate impact of pollution on poor and BIPOC communities. New Jersey appears to have taken one step towards righting these wrongs by passing the Environmental Justice Law, but that step is not enough. The intent that accompanies this law is a just one. However, the enforcement of this law is lacking. Had the Department of Environmental Protection taken a moment to consider the impact on environmental and public health that this new sewage plant would have (per the statute’s requirement) perhaps it would not have approved the project. The Environmental Justice Law is a good law, but if is ever going to live up to its potential, then the Department of Environmental Protection must try to enforce the law.

Melting Away: The Environmental Impacts of Rock Salt and Possible Solutions

By Cassidy McMann

Since the 1940s, the use of rock salt, or sodium chloride (NaCl), combats snow and ice accumulation on roads during the winter. However, rock salt contaminates water resources, damages vegetation, and harms wildlife. Therefore, many state transportation agencies across the country now utilize alternatives and administer new practices to mitigate the environmental harms of rock salt. Yet, the use of more environmentally friendly methods is not widespread, and transportation agencies should look to the success of other states for guidance.

Transportation agencies often use various means and methods for de-icing roads. For example, the NYSDOT utilizes about six different chemicals and treatments to control ice and snow on its roads. These include rock salt, treated salt, calcium chloride, magnesium chloride, magnesium chloride with organic based performance enhancer (OBPE), and sand. However, rock salt is the most common and least expensive ice control chemical. Today, about 20 million tons of rock salt is used annually, which is equivalent to about 123 pounds for every American. Rock salt works by creating a saltwater brine on the ice, which lowers the ice’s melting point. The salt then breaks into separate sodium and chloride ions which ultimately make their way into waterways and ecosystems.

Once applied to roads, rock salt seeps into ground and surface waters such as streams, rivers, and lakes. High chloride levels in these waters negatively impact a large number of fish, bugs, and amphibians. According to a survey done by the U.S Geological Survey (USGS), 84% of urban streams had increased chloride levels, and 40% exceeded federal safety guidelines for aquatic life. The USGS concluded rock salt to be the source of the contamination. Moreover, high levels of chloride can hinder the growth and reproduction of aquatic species’ and organisms. Furthermore, increased chloride in freshwater ecosystems can negatively impact food sources and disrupt osmoregulation in amphibians.

Rock salt also harms vegetation alongside roadways. Salt, or salt-ladened water, is kicked up onto plants and trees by passing vehicles and covered by the overspray during salt application. Rock salt can cause discoloration or browning of needles on evergreen trees, bud damage, twig and stem dieback, reduced or distorted leaf or stem growth, and reduced plant vigor in contaminated plants and deciduous trees. Furthermore, rock salt negatively affects soil quality and health. Sodium ions in rock salt can displace important minerals like potassium and phosphorus when they become attached to soil particles. As a result, the soil becomes more dense and compacted leading to reduced drainage and aeration. Additionally, due to the increased presence of chlorine and sodium in the soil, plants will absorb these minerals instead of necessary nutrients resulting in deficiencies.

Above all, what may be the most concerning about rock salt is its persistence. Once salt is present in an ecosystem, in the soil, or in a waterway, biological processes will not remove it. According to Paul Gallay, the President of Riverkeeper, increasing sodium concentrations in many freshwater waterways and water bodies could have originated from salt applied decades ago. This salt is now percolating into surface waters today after reaching groundwater years ago. Salt can be transported out of a system through dilution by fresher water. However, this process is only successful when transport from the system is possible, such as through an isolated lake or aquifer.

While there is no perfect, singular solution to rock salt’s impacts, the implementation of new technologies and policies can reduce environmental damage while maintaining public safety. Changes in the maintenance and type of equipment used to de-ice roads offer many achievable options. For example, live edge blades on snowplows are more efficient at removing snow. Currently, the majority of snowplows currently have flat blades. However, most roads are built to have a small curve to prevent water from pooling on the lanes during rainfall. As a result, flat blades have a tendency to leave some ice behind on the road which leads to the need for more salt application. Unlike flat blades, live edge blades can adapt to curves in the road and efficiently remove more snow and ice.

Another change to implement is calibrating snowplows and trucks more frequently. Most agencies and municipalities only calibrate their trucks for salt flow at most once a year. Without proper calibration, trucks could be releasing more salt than intended. “Smart snowplows” are another new innovation that can aid in the reduction of salt use. These plows are outfitted with GPS technology that can gauge pavement temperature, the amount of residual salt from prior applications, and the presence of ice and amount of friction on the road. This sophisticated technology allows for operators to have unique control of the plow’s blades and application rates which results in less salt and chemical use.

Moreover, action can be taken through policy implementation at the state level. For example, in 2020 NY passed legislation establishing the Adirondack Road Salt Reduction Task Force. The Task Force is responsible for studying and assessing the impacts of road salt in Adirondack State Park and must complete a comprehensive review of rock salt application and best management practices. In 2023, the Task Force published its review, which identified instances of exceedances of regulatory contaminant levels and found current water quality standards are not protective enough for the Park’s resources. The review recommends implementing new environmental assessment and monitoring guidelines and providing training to snow and ice removal practitioners for best management practices.

Rock salt likely is not going away anytime soon. However, it is important to acknowledge and address the environmental impacts of rock salt, especially since climate change will likely intensify winter storms and make winter weather more erratic. Rock salt has lasting environmental affects and ultimately wreaks havoc on groundwater and surface waters. Therefore, transportation agencies should continue to implement new technologies that reduce the need for rock salt and states should encourage these changes through legislation and funding.

Railroading State Environmental Law: The Surface Transportation Board Preempts All

By Benjamin Albertson

The Surface Transportation Board (“STB”) has exclusive authority over railroads in the United States and has since the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”). With this authority, it has consistently railroaded almost any state law that affects the construction and operation of railroads, even if the effect is purely incidental to the law’s general purpose. The ICCTA explicitly preempts any conflicting local, state, or federal law. The STB has consistently interpreted this preemption to include any law affecting the operation of railroads in any way, including local permits. The preempted laws of specific concern are state environmental laws, which railroads have been allowed to ignore with impunity.

Now, the Ninth Circuit has provided a framework under which state environmental laws can have the “force and effect of federal law” and are not preempted by ICCTA. This framework allows state environmental laws passed pursuant to a federal environmental law, like the Clean Water Act (“CWA”) or Clean Air Act (“CAA”), to have the force and effect of federal law if the Environmental Protection Agency (“EPA”) approves the state implementation plans. This means such laws will not be preempted by ICCTA. This framework is not limited to the CWA and CAA, but their statutory construction is a roadmap for the Ninth Circuit’s method. The Ninth Circuit later applied this framework to a case in Washington, where a federal law allowed Washington and Oregon to work together to maintain a scenic area. The Court found the relevant federal law (The Columbia River Gorge National Scenic Area Act), unlike the CAA or CWA, failed to contain a provision that could transform a local law into a law with the force and effect of federal law.

Multiple Circuits have also held that any form of permitting requirements are per se preempted, even if for environmental reasons (City of Ozark, AR v. Union Pacific Railroad Co., Oregon Coast Scenic Railroad, LLC v. State of Oregon Department of State Lands, Green Mountain Railroad Corp. v. Vermont). Unfortunately, this severely limits state environmental regulations and their ability to address environmental concerns from railroads. Trains produce noise, vibration, and air pollution. Pollution which disproportionately affects poor and marginalized communities. As shown above, however, state attempts to regulate have often left the state wanting. Also, while it is good the Ninth Circuit adopted the “force and effect” framework, it has already shown what happens when federal law fails to give states the force and effect they need. This leaves state and local governments in a sorry state when the federal government has and continues to fail to act. The STB has used this preemption against states that have attempted to apply their environmental laws against railroads. Still, not all is dark, and work is getting done.

States around the country have taken great steps to address climate change, California is a great example. But what if one state’s emissions reductions are offset by another’s additions? A national climate change law implementing a cap-and-trade system for carbon would go far in managing our emissions. Unfortunately, that is unlikely right now. The STB should stop railroading state attempts to fight climate change, and perhaps be a bit more open to assisting states in this fight.

That is not to say the STB does nothing. The Eighth and Ninth Circuits frameworks which could potentially enforce state and local environmental laws against railroads, come from STB decisions. Understandably, these frameworks give great deference to the railroad industry’s concerns because years of effort to deregulate the railroad industry led to the passage of the ICCTA. The deregulated rail industry is not interested in change either. While California works to address concerns due to the idling of older locomotives, the Association of American Railroadsprepares litigation to ensure such laws are preempted.

Still, the future is not all bleak; the EPA recently promulgated rules to give state and local governments some control of locomotive pollution, at least for older locomotives. This is a step in the right direction. Hopefully, as time goes by, the EPA and STB can recognize their role in the fight against railroad pollution and nuisance. The rail industry may be uninterested in cleaning itself up, but states, the EPA, and the STB have the power to work together to address these concerns and lead our railroads into a cleaner, greener future.

Published: Volume 26, Issue 1 of the Vermont Journal of Environmental Law

By VJEL

November 18, 2024 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 26, Issue 1. Unlike previous Books, this Volume’s issue contains four student notes. These student notes were chosen for publication with the intention of highlighting students’ academic contributions as the emerging voices of the environmental movement. The notes explore topics ranging from the exploitation of Alaska Native communities under NEPA, takings challenges to California cannabis codes, the ethical and ecological issues surrounding the biomedical horseshoe crab industry, to the injustices of “conservation gerrymandering” and the promise of Indigenous-led conservation models. 

VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 26, Issue 1 Publication or by accessing our Current Volume from the navigation header.  

Articles: 

Those We Forget: NEPA Does Not Protect Remote Alaska Native Communities from Exploitation by Resource Extraction Companies \

By Kari Millstein 

First, Kari Millstein examines how the National Environmental Policy Act (NEPA) fails to protect remote Alaska Native communities. The Note focuses specifically on the Willow Project, a large oil drilling project located near the Native village of Nuiqsut. It argues that Environmental Impact Statements (EISs) required by NEPA provide inadequate protections for Alaska Natives residing near extraction projects due to their vague requirements and lack of independent research. The Willow Project is a significant oil extraction project in Alaska that poses a threat to the subsistence lifestyle of the Iñupiat Alaska Native community in Nuiqsut, a village situated close to the project site. The Note explores the unique legal circumstances in Alaska concerning Alaska Native land rights and tribal sovereignty, highlighting how these complexities contribute to the vulnerability of communities like Nuiqsut. For example, the Alaska Native Claims Settlement Act (ANCSA) extinguished Native claims to inherent land rights, preventing them from exercising full sovereignty over Alaskan lands and waters. This Note is a call to action for both state and federal governments to address the shortcomings of NEPA and prioritize the well-being of Alaska Native communities facing the threats posed by resource extraction projects like the Willow Project. 

Hands Off My Grass: Potential Fifth Amendment Takings Challenges to Cannabis Codes in California 

By Caroline Smith 

Second, Caroline Smith examines potential Fifth Amendment regulatory takings challenges to local environmentally focused cannabis codes in California. California leads in both environmental and cannabis law. However, no Fifth Amendment regulatory takings challenges have been made to environmentally focused cannabis codes, even though the cannabis industry is subject to more unique and burdensome codes than most industries. This Note examines three potential regulatory takings claims to cannabis codes from Riverside County, the City of Berkeley, and El Dorado County, California. The Note provides recommendations to avoid these potential takings challenges, largely through holistic regulation of all industries. The Note examines how the cannabis industry is susceptible to lawsuits that may destroy local, pro-environment regulation. In conclusion, Smith urges that courts should interpret Dolan proportionality more holistically, and regulators should craft more rounded laws within similarly situated industries. 

Blue Blood Money: Draining Horseshoe Crabs for Profit 

By Mei Brunson 

Third, Mei Brunson argues that current regulations surrounding the biomedical horseshoe crab industry are inadequate and rooted in anthropocentrism, prioritizing human benefit over horseshoe crab welfare. The article focuses specifically on the Limulus amebocyte lysate (LAL) test, which uses horseshoe crab blood to detect endotoxins in injectable drugs and medical devices. The author argues that, with the approval of a viable animal-free alternative, the recombinant factor C (rFC) test, the U.S. should move to completely replace the LAL test. Horseshoe crabs are a vital part of the ecosystem. The biomedical industry harvests nearly a million horseshoe crabs each year from the Atlantic coast to extract their blue blood for the LAL test. This process involves capturing, transporting, bleeding, and releasing the horseshoe crabs, often causing significant stress and injury to the animals. Estimates suggest that 15-30% of bled horseshoe crabs die after being released. The demand for LAL has led to overharvesting, causing a decline in horseshoe crab populations and negatively impacting the species’ reproductive abilities. Despite these concerns, regulations governing the biomedical horseshoe crab industry primarily focus on managing horseshoe crabs as a “fishery resource” rather than protecting their welfare. The Note concludes by calling for a paradigm shift in how society views and treats horseshoe crabs, urging the U.S. to abandon the exploitative practices of the biomedical horseshoe crab industry and embrace animal-free alternatives like rFC. 

Conservation Gerrymandering 

By Avery E. Emery 

Lastly, Avery E. Emery examines the concept of “conservation gerrymandering”, or the practice of creating protected areas (PAs) that are designed to exclude humans, including the Indigenous peoples who have historically lived in and managed these areas. Emery argues that this model of conservation, which is based on a Western, anthropocentric view of nature, is flawed for several reasons. First, it is based on a false premise that nature can be separated from human activity, ignoring the long history of Indigenous peoples’ stewardship of the land. Second, it fails to recognize the importance of Indigenous knowledge and practices for biodiversity conservation. Third, it can lead to human rights abuses, as Indigenous peoples are often forcibly removed from their lands to create PAs. The author also discusses the limitations of the conservation gerrymandering method, including its failure to effectively address threats to biodiversity that originate outside of PA boundaries and the negative ecological impacts of creating PAs with contorted shapes. As an alternative to conservation gerrymandering, the Note advocates for a new conservation framework that centers Indigenous peoples’ sovereignty and knowledge. Specifically, the Note advocates for the adoption of Indigenous Protected and Conserved Areas (IPCAs), which are Indigenous-led and managed protected areas that are designed to promote both biodiversity conservation and the well-being of Indigenous communities. The article highlights the successes of IPCAs in Canada, where they have been shown to benefit both Indigenous communities and the environment. The Note concludes by calling for the widespread adoption of IPCAs as a way to achieve more effective and just conservation outcomes. 

Agriculture, Animals, and AI – Modern Solutions for Age-Old Problems

by Scott Scribi

When you think of Artificial Intelligence (“AI”), folks usually point towards ChatGPT, not agriculture. However, this modern technology extends to help farmers effectively and sustainably pursue their practice. Whether it is ensuring the health of their crops, monitoring livestock, harvesting, or conserving energy, AI has advanced the productivity and in turn the environmental impact of agriculture. One thing is for certain, AI plays a large role in the agricultural field, and will only get larger in the future.

AI’s Impact on Agricultural Sustainability

AI is a breakthrough in the agricultural field, not just for the efficiency that it brings to farmers, but also for the environmental benefits it can provide. AI supports sustainable agriculture which aims to produce quality products that protect the environment and also protect and aid farm animals. Technologies like Nofence help farmers keep track of their livestock, recognize their behaviors, and optimize their well-being and safety. This technology enables a grazing-based dairy system, which studies have shown provides an energy usage reduction of 35%. Smaxtec has developed TruAdvice, which monitors and alerts diseases in cows, enabling farmers to respond quicker and more directly. Other high-tech tools help reduce fertilizer use by observing and analyzing soil, which helps minimize runoff pollution into waterways. Even cannabis companies utilize AI technology; Growlinkprovides constant oversight into the production and health of each plant and implements changes to best suit their growth.

Each of these budding technologies aims to optimize the time and value of its customers, but also provides long-term health and stability benefits to the environment. Additionally, these systems are more effective the more integrated they become. Each farmer that provides information to the technology strengthens the reliability and function of the product. Machine learning algorithmspredict outcomes, assign probabilities, and update understanding from the results. Put simply, the more frequently AI  is used, the more effective it becomes.

Growing AI Use in the Agricultural Field

Perhaps nothing is more persuasive for the effectiveness of AI than its rapid growth in the agricultural field. In 2017, the investment value for AI technologies totaled nearly 520 million dollars; it is expected to be 2.6 billion by 2025. But it isn’t projected to slow down – rather, it will speed up. Research suggests that artificial intelligence investment will reach almost 17 billion in ten years.

Perhaps equally as important is the availability of these technologies to not just large-scale producers, but smaller, local businesses. Indeed, smallholder farmers grow nearly 70% of the world’s food, each owning land less than two and a half acres. The Northeast Dairy Business Innovation Center, a multi-state initiative program, offered grants totaling $45 million to smaller farms throughout New England for AI technology. Having AI technology accessible to smaller businesses serves to enhance the technology by exposing it to additional data points to enable more of the industry to understand and implement AI.

This technology is not just limited to the United States. Crop Protection AI is one of the various technologies being implemented in Africa. It is a low-cost tool that is easy to understand and utilize. Through machine learning, Crop Protection AI prevents unnecessary pesticide use, reduces pesticide pollution, and analyzes deficiencies in crops. Since farmers in Africa lose about half of their crops to pests each year, this AI technology would provide significant economic benefits to farmers and improve their productivity.

The Benefits AI Provides to the Environment Offsets its Energy Exertion

It is undisputed that AI technology has the potential to significantly sap electricity consumption and exert unprecedented levels of energy. Indeed, data centers in 2022 made up 2% of electricity demand across the globe. AI technology is projected to double its consumption by 2026. Nearly 30% of the world’s energy consumption is from agricultural ventures.

However, it is important to note that the energy drain from AI depends on the form of its usage. For example, AI tasks that generate images exhaust an enormous amount of energy, thousands of times more than non-generative tasks. Since the AI models utilized by farmers are only for a specific purpose, its energy usage is only a fraction of what generative systems, like ChatGPT, consume.

Additionally, AI tools in the agricultural field create a positive impact on the environment by ensuring sustainability. Targeted irrigation and fertilization methods help minimize the environmental footprint of farming. AI technology mitigates soil erosion and greenhouse gas emissions. Overall, researchers estimate that AI can reduce energy consumption up to 15%.

It also has even better results for indoor agriculture. Researchers found that AI systems can reduce energy consumption for indoor farms by up to 25%. By managing sophisticated lighting and climate regulation systems to be as efficient as possible, it cuts at the carbon footprint and makes indoor farms more sustainable and viable.

Finally, AI is making impacts on sustainable energy generation. Machine learning algorithms maximize the ability for renewable energy systems like wind turbines and solar panels. The link between sustainable energy and agriculture has only become strongerwith time. Thus, AI can serve to both aid farmers in sustainable, effective cultivation and create more clean, sustainable energy.

Conclusion

AI technology is here to stay and has positive implications for the agricultural field. As AI continues to grow, it can bring more efficient, more sustainable systems to farmers. This technology not only minimizes energy output but even conserves energy in its processes. With local farms having access to AI, it will expand its accessibility and efficiency, creating more sustainable systems and ensuring effective tools for farmers to rely on.

Bridging the Gap: Ensuring a Just Transition for Rural Communities in the Clean Energy Revolution

by Olivia Moulton

As we begin transitioning from fossil fuels to renewable energy, we must be mindful of the disproportionate effects that the existing energy system has had on certain communities. In order to meet the 2050 goals set forth by the International Renewable Energy Agency, approximately 37 gigatons of annual CO2 emissions must be cut by 2050. To achieve this goal, there must be substantial improvements in energy efficiency. There are ongoing disparities in energy efficiency in rural communities in America. The importance of improving energy efficiency measures in rural communities is crucial for the clean energy transition.

Rural communities have the highest energy burdens, meaning they spend the highest percentage of their income on energy costs. Rural communities, on average, have earned less than their urban and suburban counterparts. This means that rural residents have less money to spend on energy, driving down demand and disincentivizing utilities from investing in infrastructure. Rural communities also have higher transportation energy burdens than those who live in urban areas. This is because they do not have abundant public transportation options and often have to travel further distances for work, school, and leisure. All rural subgroups can see benefits from even modest energy efficiency improvements.

One program designed to help these rural communities improve their energy efficiency is the Energy Improvements in Rural or Remote Areas (ERA) program. The ERA is funded through the Bipartisan Infrastructure Law, and received $1 billion to help expand education, investment, access, and resilience in America’s rural and remote communities. Under the ERA, there is the Cooperative Agreement Funding Opportunity and the Fixed Award Grant Funding Opportunity Announcement. Most projects have been awarded to indigenous tribes in Alaska and the western part of the country, as well as universities who help to develop clean energy projects. This is because many tribes pay almost four times the national average for their utilities, causing them to have a high energy burden.

Another program that is available is the Rural Energy Savings Program (RESP). This program provides loans to rural utilities and other companies who provide energy efficiency loans to qualified consumers to implement durable, cost-effective energy efficiency measures. Eligible applicants under this program include entities that provide retail electric service needs. These loans could help with reluctance to implement energy efficiency programs. By providing the opportunity for a utility to provide the service, it could override some of the reluctance that is seen from customers.

In the same vein as the RESP, there is also the Renewable Energy for America Program (REAP). REAP provides guaranteed loan financing and grant funding to agricultural producers and rural small businesses. 15% of agricultural production costs are energy related, and with the cost of energy rising, using less energy can go a long way. Agricultural producers are among the most energy-intensive businesses, so they would benefit the most from improved energy efficiency measures. REAP would save them money as well as reduce greenhouse gas emissions. By allowing these entities to improve their energy efficiency it can not only bring benefits to those businesses themselves but also to the communities where they are located. Allowing these businesses to cut their energy costs will allow them and their communities to prosper. For example, just switching to more efficient lightbulbs could result in energy savings of $2,658 a year. If this small measure would give farmers an almost $3,000 profit, imagine what larger efficiency measures could do.

Energy efficiency has been noted as a crucial part of the clean energy transition, but ultimately, not enough has been done to remedy energy efficiency defects. Especially in rural areas, where utilities are less likely to focus infrastructure upgrades, sentiments are often against changing the system, and energy burdens are among the highest in the country, these measures are more important than ever. In the transition to clean energy we cannot leave rural communities, often forgotten about or who come secondary to urban centers, behind. The effects that energy efficiency measures could have on these communities could not only help them financially but help to cut down on emissions by using less energy. All people deserve a place in the clean energy transition, and our actions moving forward must be just.

 

CAFOs: Harming People Now, Later, and Forever

by Aika Mitchell

As early as 1997, the National Bar Association had understood CAFOs to be an environmental justice issue. CAFOs directly endanger members of the local community—the majority of whom are poorer or belong to racial minorities—by polluting the air and spreading disease. Furthermore, CAFOs continue to emit significant amounts of methane, which in turn increases the incidence of climate disasters. These climate disasters differentially affect the same lives who were directly harmed by CAFOs in the first place: poorer communities with less resources to cope with climate disasters, and livestock animals who are left to die and rot when a hurricane blows through. Americans’ continued reliance on CAFOs perpetuates injustice and cruelty, subject to little regulatory oversight.

The Environmental Protection Agency created the term “Concentrated Animal Feeding Operation”, (CAFO) as part of a regulatory scheme for enforcing the Clean Water Act. CAFOs confine a large number of animals for at least 45 days in a given 12-month period. CAFOs dominate agriculture in the United States: in 2017, an estimated 99% of all meat sold in the U.S. came from animals confined in CAFOs. That’s 99% of an enormous industry—retail sales of beef alone represented 143 billion dollars in 2022. The value of broiler chicken sales (i.e. sales of chickens selective bred for maximum meat production) was about 42.6 billion dollars in 2023, and eggs brought in about 17.9 billion dollars in 2023. CAFOs are huge. They are huge in terms of dollars, animals confined, and negative effects on surrounding communities.

While data about CAFOs is hard to obtain because of EPA’s historic lack of oversight and inadequate recordkeeping, there is still evidence of the direct harm CAFOs do. Historically disenfranchised groups are harmed by a frequent proximity to CAFOs. For example, a study of CAFOs in North Carolina suggests that CAFOs tend to be sited in poorer communities with more Black people, increasing their exposure to CAFO-related pollutants. That same study also suggests that CAFO exposure is correlated with cardiovascular and kidney disease. A similar siting trend was observed in Ohio, where Black and Hispanic communities suffered higher exposure. In Pennsylvania, the 8th largest milk producing state, CAFO exposure was correlated with preterm birth; the correlation was stronger in Black mothers. Additionally, there is the everyday burden of living near a pig CAFO. Imagine the stench of thousands of pigs, miserable, covered in feces. Your porch is unusable—there are too many flies. You can’t cook outside because the smell taints everything.

CAFO workers themselves also suffer. While the exact nature of the harm is unknown, dust and ammonia from animal manure were correlated with worsened lung function after six years of working. Exposure to certain bacteria prevalent in CAFOs also impairs lung function. CAFOs also contribute to a wider industry that harms communities, including slaughterhouses. A 2023 Beacon blog highlighted the myriad ways slaughterhouses worsen uncountable human lives. Slaughterhouse workers are more likely to suffer from anxiety, depression, and engage in substance abuse to cope. The effects from CAFOs are wide ranging and concentrated on specific communities that are not valued as highly as others.

Mere proximity to a CAFO harms people, but CAFOs are also nefarious contributors to climate change—the effects of which are borne overwhelmingly by poor and minority communities. Methane is a greenhouse gas that traps heat more effectively than carbon dioxide. CAFOs are significant methane emitters through their manure.

A 2021 EPA report demonstrated that low income, minority, undereducated, and elderly people are disproportionately affected by climate change compared to people outside those groups. For example, Black Americans are 40% more likely than non-Black Americans to live in places where climate change-induced extreme temperatures will cause death. Low income Americans or those with no high school diploma are 25% more likely to live in places where projected higher temperatures will cause losses in labor hours. The Fifth National Climate Assessment (NCA5) paints a similarly bleak picture. Low income and minority neighborhoods tend to be less resilient to the effects of climate change. Low income neighborhoods suffer from hotter surface temperatures (up to 12 degrees hotter during a heatwave), which can cause a slew of severe health problems. Throughout the country, Black communities are predicted to suffer more flood damages than other racial groups. The NCA5 attributes this differential impact to past discriminatory practices such as redlining. Thus, climate change continues to reinforce climate-resilience disparities between class and racial groups.

Despite the tremendous harm that CAFOs do, the federal government does not effectively regulate methane emissions from CAFOs. The EPA had promulgated a rule exempting smaller farms from mandatory air emissions reporting requirements back in 2008. Then, the D.C. Circuit Court of Appeals vacated that rule in the case Waterkeeper Alliance v. EPA in 2017. In response, Congress stepped in and passed the Fair Agricultural Reporting Method Act (“FARM Act”), which exempted CAFOs from needing to report their air emissions from manure to the EPA. While Congress has impeded the public’s awareness of the true extent of CAFOs’ emissions, the EPA has acknowledged, that greenhouse gas emissions (including methane emissions) have risen sharply with the proliferation of CAFOs between 1990 and 2017.

Greenhouse gases are major drivers of global climate change. Global climate change tends to disproportionately affect poor and minority communities. Nearly 20 years ago, the United Nations Food and Agriculture Organization wrote “Livestock’s Long Shadow”, which warned that the “livestock sector” is “one of the top two or three most significant contributors to the most serious environmental problems.” We did not heed that warning: livestock still contribute significantly to global greenhouse gas emissions. CAFOs remain a neglected opportunity to mitigate climate change harms.

Though the sheer size and influence of the animal agriculture industry makes change difficult, there are multiple possible avenues. Citizens can pressure state legislatures to regulate CAFOs more strictly. Oregon can celebrate a victory here: in the 2023 legislative session, a new law prohibiting CAFOs from getting discharge permits in groundwater management areas was signed into law. This was a hard-earned win, and it was only possible because of a collective effort by organizations and community stakeholders. Similarly, building just policies for broadly transitioning away from industrial animal consumption can get ahead of the common concerns (e.g. how to transition when some people absolutely rely on industrial animal agriculture to survive.)

Another legislative strategy for reducing CAFO-caused harms is pushing legislators to refine right to farm laws so that they don’t protect CAFOs. This may allow private citizens to bring common law nuisance claims against CAFOs, hopefully suing them into better behavior. A less monumental—but perhaps more critical—strategy would be changing consumption patterns. Whether your priorities are environmental justice, climate change, animal welfare, or something else altogether, personally choosing to consume less animal products is an important way to oppose CAFOs, a highly entrenched industry that inflicts tremendous amounts of harm.

Reforming Oceanic Governance: A Department of Oceans 

by Joseph Lepak

Current federal ocean governance is spread across a myriad of federal agencies in different departments and the time has come to bring them all together. This blog proposes that a new federal executive department is needed to bring ocean governance into the 21st century: a Department of Oceanic Affairs (DOA). First, we will cover the current governance structure of United States oceans, the current need for a DOA, and lastly propose how DOA would be structured, and what DOA would be responsible for.

From the mean high tide line on the shore to 200 nautical miles, the waters above and below are under United States jurisdiction. Beyond 200 nautical miles, the ocean seafloor part of the continental shelf(the extension of the continent into the ocean) is still under United States jurisdiction. Twelve nautical miles from shore to sea are the territorial waters, where full U.S. law applies. Congress, in the 1953 Submerged Lands Act gave states jurisdiction from shore to three nautical miles (although Texas and Florida for their gulf coastline are special as their jurisdictions extend nine nautical miles). From the territorial waters and up to 200 nautical miles is the exclusive economic zone where only a limited form of jurisdiction exists, primarily regulation of economic activities. In total, 131 million square kilometers (~50 million square miles) is under United States jurisdiction.

Governing this vast area, four agency mandates prioritize oceans, while other mandates involve oceans. The largest and most important agency is the National Oceanic and Atmospheric Administration (NOAA). NOAA is responsible for research of the ocean and weather, conservation of the ocean, management of fisheries, and the protection of marine endangered species. NOAA is part of the Department of Commerce, and interestingly does not have an organic statute, instead being created by executive order. Then there is the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE), both created by splitting the Minerals Management Agency in the wake of the 2010 BP oil spill. BOEM is responsible for permitting ocean energy projects (oil rigs and wind-turbines) while BSEE is responsible for ensuring that those energy projects meet safety standards. Lastly, the Maritime Administration (MA) regulates and promotes the development of the U.S. merchant marine and shipping industry. Beyond the four primary ocean agencies is the Environmental Protection Agency, which regulates ship discharges, ocean trash, and beach/coastal health; and the United States Army Corps of Engineers which regulates certain uses of water, such as dredging and dock and harbor construction and operation.

Creating a new executive department would promote administrative efficiency and the new department would serve as a designated entity to address ocean developments. Reorganization for administrative efficiency is a common reason for creating new departments. The Department of Education was a spin-off of the Department of Health, Education, and Welfare’s education programs consolidated with education programs in the Department of the Interior and Department of Labor. Similarly, the Department of Energy (DOE) brought together 30 agencies with energy-related mandates under one roof. Both departments were meant to provide an effective means of communication between the different agencies but also highlighted a commitment by the federal government to the field in question. For example, the DOE assembled its various agencies to tackle the energy crisis of the 1970s. The need for an Ocean Policy Committee in 2021 indicates the potential for efficiency increases by creating DOA. The push by the Biden administration to balance conservation with increased offshore development required greater coordination by agencies and necessitated a national ocean strategy.

While improving federal administrative efficiency is a solid reason for DOA’s creation, the growing “blue economy” demands that an organization like DOA exists. Notably, the Biden Administration seeks to build 30 gigawatts of offshore wind power by 2030. However, the expansion of offshore wind is but one part of the Biden Administration’s strategy which includes the protection of 30% of all marine areas by 2030 and the elimination of greenhouse gas emissions from shipping. Additionally, the Biden administration has invested $240 million into aquaculture. All these actions (offshore renewable energy, clean shipping, and fisheries management) are part of what experts call the blue economy. The blue economy is the revitalization of industries related to the ocean as part of a sustainable future, as exemplified by the United Nations Sustainable Development Goal 14, and the recognition that offshore wind and aquaculture will only increase the importance of the ocean in the overall economy. However, regardless of the future president, the Biden Administration will end, and the future of these initiatives may become uncertain. A special purpose department, if built on sustainable principles, will enshrine our nation’s commitment to the ocean and ensure a just development of the blue economy.

The Department of Oceanic Affairs would be the logical outgrowth of the Ocean Policy Committee, and would consolidate the National Oceanic Atmospheric Administration, the Bureau of Ocean Energy Management, and the Bureau of Safety and Environmental Enforcement. The Maritime Administration, as a transportation agency, would remain part of the Department of Transportation since keeping all transportation agencies together maintains their efficiency. Additionally, the DOA is a management entity and not a defense entity, so the DOA would not share roles with the U.S. Navy or Coast Guard. Instead, the DOA should be viewed as a maritime equivalent to the Department of the Interior, administering federal lands at sea. DOA would be responsible for the regulation of fisheries, offshore energy development, marine national sanctuaries and other protected areas, protecting marine species, research into the ocean and the atmosphere, and be the first point of federal regulatory efforts as new maritime ocean developments occur. At minimum there should be four assistant secretaries that the current agencies would filter into: (1) an Ocean Research Administration; (2) an Ocean Conservation Administration; (3) an Ocean Resource Management Administration; and (4) an Ocean Safety Administration. The administrations/assistant secretaries would oversee the relevant current agencies, so NOAA would be split, and (for example) the National Marine Fisheries Service would be part of the Ocean Resource Management Administration while the Weather Service would go to the Ocean Research Administration. BOEM would be incorporated as a sister within the Resource Administration alongside the fisheries service, while BSEE would be part of the Ocean Safety Administration. With NOAA as its backbone, the new department would transform NOAA into an entity that can address the 21st-century ocean challenges outlined above.

Hurricane Helene and Appalachia: The Climate Disaster Built on Environmental Injustice

by Savannah Collins

Hurricane Helene

On September 26th and 27th of 2024, Hurricane Helene barreled through the Appalachian Mountains. Dropping over 18 inches of rain in many mountainous areas, communication lines are still down and entire sections of roads and highways have been washed away. Following days of prior rainfall, the already saturated soil could not take anymore.

As of this writing, Hurricane Helene is the deadliest hurricane to strike the mainland U.S. since Hurricane Katrina. At least 227 people are reported dead across six states with hundreds more reported missing. At least 72 people are dead in Buncombe County, NC, alone. Due to the extremely isolated nature of these mountainous homes, search and rescue efforts are still underway to locate some of the community’s most vulnerable members. Asheville is projecting that drinking water will not be restored for weeks. President Biden has declared the majority of western North Carolina as a federal disaster area, making FEMA assistance available to those who meet the requirements.

FEMA’s disaster assistance will help people get back on their feet in the short-term, but there must be a focus on rebuilding for long-term climate resilience based on what works for the affected communities. While donating helps, more physical effort on the ground and federal investments are needed to get this historically underinvested and exploited area back on its feet.

Why Appalachia is an Environmental Justice Area

The devastating storm and resulting flooding are the direct effects of climate change.  Appalachia has been at the root of exploitation for well over a century and is now at the “nexus of the climate crisis.”Beginning in the 1700s and ramping up with railroad expansion in the 1800s, Appalachia and the Appalachian people have been exploited for their natural resources and physical labor for generations. Environmental justice and labor issues are deeply intertwined in Appalachia. From coal mining to fracking for natural gas, the physical impacts on the people of Appalachia are growing and compounding.

Furthermore, the area is deeply rural and often does not receive investments in their infrastructure from the federal government. As seen in 2022 with major flooding in eastern Kentucky, the area’s mountainous topography and supposedly reclaimed mining sites have made flooding significantly worse. The infrastructure in this area actually brings more problems than solutions. In fact, a 2019 project found areas in central Appalachia with increased flood risks actually overlapped with landscapes damaged by mining operations.

Additionally, most Appalachian households lack access to broadband, making filling out FEMA forms online nearly impossible. According to the FEMA website, an unreliable internet connection will likely cause issues with completing the application, potentially slowing down disaster assistance. When an area is already isolated, as is the case in many hollers in Appalachia, receiving aid requires getting past many hurdles. In the past week, there have been reports of individuals delivering supplies and aid via horseback and mules because the devastated roadways are too dangerous for vehicles. Even with this isolation and distance from the coast, climate change exacerbated storms are still hitting Appalachia.

Not only have companies physically plundered the land for coal, oil, and natural gas, but now communities like Asheville and Weaverville are directly facing the consequences. Without a more honest and focused plan on the part of the federal government, Appalachia is likely to continue to suffer at the hands of climate change built on the exploited, undervalued labor of their ancestors.

Call to Action

Legislation must be geared toward physically rebuilding these areas for long-term resilience. Organizations like Appalachian Voices, Appalachians for Appalachia, and POWHR Coalition have already been doing the work, but they need more federal funding and support. Senators and Representatives for the area should consider the long-term for their constituents and stop catering to extractive industries that reap all the physical benefits without rebuilding the community. Funding from historic environmental legislation, such as the Inflation Reduction Act, should be used to build back Appalachia for the almost certain natural disaster-filled future.

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