Category: Beacon

Redlining Is Alive and Well Today
By Dalia Rodriguez-Caspeta

Though redlining was in full force before 1968, its effects are still felt today.[1] The Federal Housing Administration (FHA) oversaw federally supported redlining from 1934 until the 1960s.[2] “FHA staff concluded that no loan could be economically sound if the property was located in a neighborhood that was or could become populated by Black people.”[3] This practice became known as redlining. Over the next few decades, the FHA preferentially distributed loans to new suburban builds over older housing in Black inner city neighborhoods.[4] Redlining neighborhoods was the practice until 1968.[5] In 1968, the Fair Housing Act prohibited the practice of racially segregating neighborhoods through redlining.[6] Yet, the Act failed to combat the effects of redlining as they continue through today.

As a practical matter, redlining is still enforced today through environmental racism. Environmental racism is “the intentional siting of polluting and waste facilities in communities primarily populated by African Americans, Latines, Indigenous People, Asian American and Pacific Islanders, farmworkers, and low-income workers.”[7] It stems from the historical policies that favor “the health, well-being, and consumer choices of white communities,” including redlining.[8] Examples of present day cases of environmental racism are Flint, Michigan’s water crisis; North Dakota’s Access Pipeline; and Louisiana’s cancer alley.[9]

In 1979, nine years after the passing of the Fair Housing Act, Bean v. Southwestern Waste Management Corp. was litigated in Texas.[10] It was the first U.S. lawsuit that brought claims of environmental racism as civil rights violations.[11] Plaintiffs filed a suit contesting the Texas Department of Health’s decision to grant a permit to Southwestern Management to build a solid waste facility in their neighborhood.[12] The plaintiffs claimed that the Department of Health, in granting the permit, was partially motivated by racial discriminatory intent.[13] The solid waste facility was set to be placed 1,700 feet from the local high school.[14] In the end, the court held that the plaintiffs failed to establish a substantial likelihood of success.[15] The court denied the preliminary injunction.[16]

In addition to litigation, researchers have studied the effects of environmental racism in communities of color. Researchers found that “neighborhoods today are a manifestation of a myriad of racist housing policies and practices.”[17] In a study based on the City of Milwaukee, “redlining alone was associated with current lending discrimination . . . and with poor mental and physical health in the City.”[18] Another study found that “poor housing conditions and environmental risks are often clustered in low-income and minoritized neighborhoods.”[19] Further, the results concluded that environmental risks disproportionally affect low income communities of color.[20] For example, low income communities of color “tend to live near major roadways, waste sites, and in areas with less greenery.”[21] Access to green spaces such as “bike lanes, parks, and healthy food stores are less available in neighborhoods with larger proportions of Hispanic and Black residents.”[22]

Historically, environmental justice movements have focused on the “siting of toxic waste dumps, disproportionate burden of pollution, and inadequate regulatory enforcement in low-income communities of color.”[23] Dr. Robert Bullard, a Black scholar, started the environmental justice movement centering the voices of impacted communities in a time when it did not get a lot of support.[24] Dr. Bullard’s wife, Linda McKeever Bullard, represented the concerned community members in Bean v. Southwestern Waste Management Corp.[25] Bullard conducted a study for his wife’s case on the placement of landfills within communities of color.[26] The study became “America’s first ethnographic study to identify neighborhoods in proximity to polluting industries.”[27]

Although redlining has been outlawed, its effects continue to affect low-income communities of color today. Black and brown low-income neighborhoods continue to carry the burden of our past choices as a society.[28] These neighborhoods can be classified as sacrifice zones where communities endure violence perpetuated for the benefit of the dominant population.[29] Sacrifice zones refer to the reality that “environmental harms are concentrated in some places in order to protect the environmental health and sustainability of other places.”[30] The Fair Housing Act of 1968 failed to eliminate the racist effects of redlining. Even today, the effects of racially discriminatory policy practices continue to endanger the health and wellbeing of low-income communities of color.

[1] Redlining, Federal Reserve History (June 2, 2023), https://www.federalreservehistory.org/essays/redlining.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] What Is Environmental Racism, NRDC (May 24, 2023), https://www.nrdc.org/stories/what-environmental-racism#.

[8] Id.

[9] Id.

[10] Bean v. Sw. Mgmt. Corp., 482 F.Supp. 673, 674 (S.D. Texas 1979).

[11] Yesenia Funes, The Father of Environmental Justice Exposes the Geography of Inequity, Nature (Sept. 20, 2023) https://www.nature.com/articles/d41586-023-02613-6#.

[12] Bean, 482 F.Supp. at 674–75.

[13] Id.at 677.

[14] Id. at 675.

[15] Id. at 677.

[16] Id. at 680.

[17] Emily E. Lynch et al., The Legacy of Structural Racism: Associations Between Historic Redlining, Current Mortgage Lending, and Health, 14 SSM Population Health, June 2021, at 2.

[18] Id. at 7.

[19] Chima Anyanwu & Kirsten M.M. Beyer, Intersections Among Housing, Environmental Conditions, and Health Equity: A Conceptual Model for Environmental Justice Policy, 9 Social Sci.s & Humans. Open, 2024, at 5.

[20] Id. at 4.

[21] Id.

[22] Id.

[23] Id.

[24] Lee McNew, Dr. Robert Bullard, Father of Environmental Justice, Clean Air Council, https://cleanair.org/dr-robert-bullard-father-of-environmental-justice/ (last visited Oct. 11, 2025).

[25] Id.

[26] Id.

[27] Id.

[28] Anyanwu & Beyer, supra note 18, at 2.

[29] See Ryan Juskus, Sacrifice Zones: A Genealogy and Analysis of an Environmental Justice Concept, 15 Env’t Humans. 3, 3 (2023).

[30] Id. at 16.

Dam Removal on the Lower Kennebec River: Using Indigenous Stewardship to Heal
By Swithin Shearer

Indigenous populations in the United States are spiritually connected to their land and water.[1] In the U.S., the government’s policies on property ownership, development, and expansion historically deprived Native people of their lands.[2] Federal policies for dam construction were no different.[3] Despite objections from various Tribes based on spiritual, environmental, and ecological concerns,[4] dams were built based on perceived economic benefits.[5] Dam infrastructure is now aging and the government is faced with the choice of removal or repair.[6] Members of affected Tribes have called for dam removal to restore the ecological and environmental balance to the land.[7] Native communities, as the traditional stewards of the land, should be entrusted to manage this environmental rehabilitation process.

Members of Indigenous communities often consider their very identity inextricably linked to their environment.[8] As a result, members of those communities often consider themselves to be stewards of the land.[9] Stewardship ensures Earth’s abundant gifts are available for future generations by taking only what one needs.[10] The goal of stewardship is not to deplete or exploit the land, but to live in harmony with it.[11] For example, the Mi’kmaq Nation[12] live according to the cultural value of netukulimk, which emphasizes the interconnectedness of people and the surrounding world.[13]

Given the deep connection to their environment, it is no wonder that Indigenous populations in the U.S. have suffered when they have been cut off from their native homelands. When Indigenous peoples are separated from their lands, “the impacts are more than physical—they are spiritual.”[14] In a particularly poignant example, 117 of 250 members of the Sayisi Dene Tribe of Canada died within 19 years of being forcibly removed from their traditional lands and relocated elsewhere.[15] Tribal members attributed the deaths to the “despair and the loss of hope and the loss of connection to the land.”[16]

Since our country’s early years, federal policies have forced Tribal communities from their land; the General Allotment (Dawes) Act of 1887 alone resulted in the expropriation of 90 million acres from Tribal Nations.[17] Tribal land was also targeted when the government kicked off an era of dam-building projects in the 19th and 20th centuries.[18] Indigenous populations in the U.S. were dispossessed of another 1.13 million acres as a result of those projects.[19]

The motivations for the large-scale federal dam projects were primarily economic.[20] Some dams were built for hydroelectric power generation, which in turn powered industrial development and metropolitan expansion.[21] Others were built for flood control.[22] Still others were built to provide water for municipal and irrigation uses in the arid West.[23] Regardless of a dam’s purpose, economic benefits were prioritized over environmental and ecological damage.[24] The fact that dam construction severed Indigenous spiritual connections to the land was often outright ignored.[25]

Tribes have sustained lasting injuries from dam construction. They have lost access to lands that held spiritual significance.[26] For example, dams flooded and obliterated sacred burial grounds and villages.[27] Further, Tribal members have been denied treaty-guaranteed fishing and hunting rights (either because the land was permanently flooded or the fish populations were nearly depleted).[28] In addition, ecosystems were damaged to the point that multiple species have been listed as endangered.[29] Spiritual and environmental concerns have led Tribal communities to fight to remove the dams, restore their Native lands, and rehabilitate the damaged ecosystems.[30]

Because of their focus on respect for and protection of land for future generations, Indigenous peoples are well suited to oversee the restoration of damaged ecosystems. Domestic[31] and international[32] programs have helped Native people re-acquire millions of acres of ancestral lands.[33] They are now using their Traditional Ecological Knowledge, rooted in traditional beliefs in stewardship of the land, to heal the ecosystems.[34] Traditional Ecological Knowledge should also guide ecosystem restoration once dams are removed. Indigenous stewardship would effectively restore the ecosystems that were harmed by dam construction and flooding. Returning previously flooded land back to Native stewardship also fits within the broader picture of the Land Back movement, which seeks to restore ancestral lands to Indigenous populations.[35]

The Nature Conservancy recently reached an agreement to take over and eventually decommission four major dams along the lower Kennebec River in Maine.[36] The Wabanaki Nations were displaced by those dams.[37] One of The Nature Conservancy’s long-term goals in acquiring the dams is to “help reestablish cultural and physical connections between the Wabanaki Nations and the Kennebec River.”[38] Another goal is to restore fish populations that used to thrive in the Kennebec River.[39] If the Nature Conservancy can connect those two goals by placing the Wabanaki Nations at the forefront of the restoration process, the environment will benefit. It will also take a step towards addressing the wrongs of the past by reconnecting the Wabanaki Nations with their ancestral lands, so they can heal together.

[1] Rhiannon Johnson, Water is sacred to Indigenous people. They have been fighting to protect it for decades, CBC Radio (Apr. 24, 2023), https://www.cbc.ca/radio/unreserved/water-is-sacred-protecting-1.6818685#; Killa Atencio, Netukulimk: The Mi’kmaq Way of Life, Asparagus Mag. (Dec. 18, 2020), https://www.asparagusmagazine.com/articles/netukulimk-is-the-mikmaq-way-of-living-in-harmony-with-nature.

[2] See Johnson v. McIntosh, 21 U.S. 543 (1823).

[3] See Heather Randell & Andrew Curley, Dams and Tribal Land Loss In the United States, 18 Env’t Rsch. Letters, no. 9, 2023.

[4] Gene Johnson, Northwest dams have devastated the region’s Native tribes, U.S. government acknowledges, PBS (June 18, 2024, 6:09 PM), https://www.pbs.org/newshour/politics/northwest-dams-have-devastated-the-regions-native-tribes-u-s-government-acknowledges.

[5] David P. Billington et al., The History of Large Federal Dams: Planning, Design, and Construction in the Era of Big Dams 386–87 (U.S. Dep’t of the Interior Bureau of Reclamation ed., 2005).

[6] Randell & Curley, supra note 3, at 7.

[7] Bala Sivaraman, Klamath River Dam Removal Is a Victory for Tribes, Earthjustice (June 3, 2024), https://earthjustice.org/article/klamath-river-dam-removal-is-a-victory-for-tribes.

[7] Billington et al., supra note 5, at 383; Sivaraman, supra note 7.

[7] Sivaraman, supra note 7.

[8] Atencio, supra note 1.

[9] Alex Hager, The Colorado River is this tribe’s ‘lifeblood,’ now they want to give it the same legal rights as a person, KUNC (Aug. 20, 2025, 6:00 AM), https://www.kunc.org/news/2025-08-20/the-colorado-river-is-this-tribes-lifeblood-now-they-want-to-give-it-the-same-legal-rights-as-a-person.

[10] Atencio, supra note 1.

[11] Id.

[12] The Mi’kmaq are one of four main Wabanaki Nations in Maine; the other three are the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe, and the Penobscot Nation. Who We Are, Wabanaki Alliance, https://www.wabanakialliance.com/who-we-are/ (last visited Oct. 12, 2025).

[13] Atencio, supra note 1.

[14] U.S. Dep’t of the Interior, Ten Years of Restoring Land and Building Trust 2012-2022 iii (2023). Deb Haaland, former Secretary of the Interior, went on to say that the impacts of being separated from the land “manifest deep in our bodies and in our hearts, and they have lasting and inter-generational consequences.” Id.

[15] Johnson, supra note 1.

[16] Id. (internal quotations omitted).

[17] U.S. Dep’t of the Interior, supra note 14; National Park Service, The Dawes Act, https://www.nps.gov/articles/000/dawes-act.htm (July 9, 2021).

[18] Billington et al., supra note 5, at 20, 278–80; The Dawes Act of 1887, Pub. L. No. 49-105, 24 Stat. 388 (1887).

[19] Randell & Curley, supra note 3, at 1.

[20] Billington et al., supra note 5, at 386–87.

[21] Id.

[22] Id. at 224, 356, 371.

[23] Id. at 386.

[24] Id. at 387–89 (stating the focus of the big dam era was “the desire to control nature and manage its resources” to protect the man-made environment).

[25] Snake River Dams in Context: Past, Present, and Future, Columbia Riverkeeper (Apr. 24, 2025), https://www.columbiariverkeeper.org/2025/snake-river-dams-in-context-past-present-and-future/; see Johnson, supra note 1.

[26] Johnson, supra note 4.

[27] Id.

[28] Snake River Dams in Context: Past, Present, and Future, supra note 25.

[29] Id.; Johnson, supra note 4.

[30] The Federal Government Is Finally Acknowledging How Columbia River Basin Dams Have Harmed Tribes, Earthjustice (June 27, 2024), https://earthjustice.org/brief/2024/the-federal-government-is-finally-acknowledging-how-columbia-river-basin-dams-have-harmed-tribes; Johnson, supra note 4; Sivaraman, supra note 7.

[31] U.S. Dep’t of the Interior, supra note 14, at 1.

[32] Jim Robbins, How Returning Lands to Native Tribes Is Helping Protect Nature, YaleEnvironment360 (June 3, 2021), https://e360.yale.edu/features/how-returning-lands-to-native-tribes-is-helping-protect-nature.

[33] U.S. Dep’t of the Interior, supra note 14, at 1; Robbins, supra note 32.

[34] Robbins, supra note 32.

[35] Dan Gunderson & Melissa Olson, The latest on the Land Back movement, in which Native American tribes reclaim land, NPR (Sept. 18, 2024, 6:01 PM), https://www.npr.org/2024/09/18/nx-s1-5091001/the-latest-on-the-land-back-movement-in-which-native-american-tribes-reclaim-land.

[36] The Nature Conservancy and Brookfield Reach Deal for Four Lower Kennebec River Dams, The Nature Conservancy (Sept. 23, 2025), https://www.nature.org/en-us/newsroom/kennebec-river-restoration/.

[37] Restoring Balance to the Kennebec River, The Nature Conservancy, https://www.nature.org/en-us/about-us/where-we-work/united-states/maine/kennebec/ (last visited Oct. 12, 2025).

[38] Id.

[39] Id.

Diamond in the Rough: Using Corporate Interests for Environmental Justice Goals
By Brett Davis

The Supreme Court’s latest term lacked blockbuster environmental decisions like years past.[1] The Court’s biggest decisions focused largely on the Trump administration’s various attacks on power within the Federal government.[2] Decisions like Trump v. Wilcox and Trump v. CASA have left the president with increased control over environmental policy decisions.[3] While those cases stole the spotlight, Diamond Alternative Energy v. EPA subtly shifted the legal standing in environmental suits.[4] Such a shift could change approaches to environmental justice litigation, where standing has long been a core obstacle.[5]

Standing derives from Article III of the Constitution, which requires a “case” and “controversy” for justiciability.[6] The Supreme Court has listed three requirements for standing: injury in fact, causation, and redressability.[7] Injury in fact requires an injury be both “concrete and particular” and “actual and imminent.”[8] The test limits plaintiffs’ ability to attack policies they are merely against.[9] Causation requires that the challenged rule cause the injury in fact and is not merely speculative.[10] Redressability requires that a favorable ruling will redress the injury in fact.[11] Causation and redressability are often opposite sides of the same coin.[12] Other issues, such as prohibiting suits involving generalized grievances, can also block environmental litigation.[13]

In Diamond, fuel producer plaintiffs challenged California’s heightened emission standards and electric-vehicle mandate under the Clean Air Act.[14] The Court found injury in fact to be relatively straightforward.[15] California’s policy would reduce the use of gasoline-powered vehicles compared to a free market.[16] Thus, there will be fewer gasoline sales and a monetary injury to gasoline companies.[17] Neither party meaningfully disputed this injury in fact.[18]

The Court focused mainly on causation and redressability.[19] Given that causation and redressability generally rely on the same thrust, the court interweaves their analysis.[20] The EPA argued that even if the laws were invalidated, the plaintiffs failed to prove why vehicle manufacturers would reduce the size of their electric vehicle fleets to favor gas-powered vehicles.[21] The Court emphasized the use of commonsense economics as a basis in evaluating cause.[22] The commonsense being that California’s policy has and could induce vehicle manufacturers to alter production in favor of electric vehicles.[23] Thus, the plaintiffs satisfied their burden to show California’s rule injured fuel interests without providing evidence.[24]

This commonsense approach also satisfied redressability.[25] Plaintiffs must simply show a “predictable chain of events that would likely result from judicial relief.”[26] The Court noted that regulation aimed at producing market effects ordinarily means the result of vacating policy would have the opposite effect.[27] And a mere dollar of relief satisfies the redressability standard.[28] The plaintiffs had a commonsense redress if a court struck California’s rule.[29] The Court denied any heightened redressability standard.[30]

Diamond’s leniency to causation and redressability standards gives corporations more grace than citizens.[31] And the Court’s grant of certiorari to a doomed policy would further indicate sympathy for companies.[32] While these concerns Justice Jackson provides are apt, the Court’s 7-2 decision indicates the remaining justices lack the same opinion.[33] Even with Justice Jackson’s critique, companies can be a vehicle for environmental change. Diamond’s relaxed standard may offer green companies or nonprofits easier opportunities to combat fossil fuel-centered policy.[34]

Rather than approaching people physically affected by environmental hazards, advocates can seek organizations economically disadvantaged from executive rules. For example, the Trump administration’s executive orders cutting green and electric programs in favor of fossil fuels are like California’s policy.[35] Following Diamond, renewable energy companies have a very straightforward argument for all three standing elements.[36] Trump’s regulations are “designed to produce a particular effect on the market.”[37] In this case, promote fossil fuel energy sources over alternatives. Therefore, renewable companies suffer an injury in fact through reduced sales.[38] Commonsense economics implies that those regulations caused the effect, and redress occurs upon a favorable ruling.[39] With injunctive relief, the executive orders would no longer produce their intended market effects—boosting revenue for the unfavored companies.[40]

Alternatively, environmental challenges outside of the corporate landscape could utilize Diamond’s reasoning. Citizens can utilize the Court’s focus on economic impacts as an obvious line to standing for more nebulous environmental policy challenges. Plaintiffs who gain economically from cleaner environments, such as farmers, may derive commonsense economic impacts of a degrading climate.

However, relying on environmental science rather than direct market interference likely overstretches the limits of Diamond.[41] Instead, plaintiffs will need to show economic impairment because of financial trends induced by rulemaking. The issue remains in uncoupling these economic impairments from corporate revenues so all citizens affected can bring suit.

Overall, Diamond does not drastically change the approach to standing.[42] The Court does seem to lower the burden on plaintiffs in showing economic injury, causation, and redressability.[43] This benefits companies’ standing arguments, but likely remains inconsequential to everyday citizens. Environmental justice advocates may need to approach standing difficulties by finding who fits Diamond’s slightly altered model. If the Court gives leniency to companies, savvy lawyers should take advantage of that leniency. While the Court fears gamesmanship,[44] any change to the rules requires new ways to play the game.

[1] Joseph Winters, The Supreme Court just ended its term. Here are the Decisions that will affect climate policy, Grist, https://grist.org/justice/supreme-court-term-climate-decisions-trump-workforce/ (last visited Sept. 17, 2025).

[2] See id.

[3] See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025); Trump v. Casa, Inc., 606 U.S. 831, 861 (2025); see also Joseph Winters, The Supreme Court just ended its term. Here are the Decisions that will affect climate policy, Grist, https://grist.org/justice/supreme-court-term-climate-decisions-trump-workforce/ (last visited Sept. 17, 2025).

[4] Sara Dewey, Environmental & Energy Law Program, Quick Take: Diamond Alternative Energy v. EPA (June 27, 2025), Environmental and Energy Law Program, https://eelp.law.harvard.edu/quick-take-diamond-alternative-energy-v-epa/.

[5] Lauren Cormany, Standing in the Way of Environmental Justice, 2024 Utah L. Rev. 167, 171 (2024).

[6] U.S. Const. art III, § 2, cl. 1; see Lujan v. Defenders of Wildlife et al., 504 U.S. 555, 559 (1992) (clarifying justicibility standards).

[7] Id. at 560–61.

[8] Id. at 560.

[9] Id. at 575.

[10] Id. at 560.

[11] Id.

[12] Diamond Alternative Energy, LLC, et al. v. Environmental Protection Agency et al., No. 24-7 U.S. Reports 1, 8 (2025).

[13] Cormany, supra note 5 at 172.

[14] Diamond, No. 24-7 U.S. Reports 1, 1-2 (describing California’s exception to the Clean Air Act which allows the State to set more restrictive standards to address local pollution concerns).

[15] See id. at 11 (finding no meaningful dispute between parties).

[16] Id. at 11.

[17] Id.

[18] Id. at 10.

[19] Id. at 2.

[20] See id. at 13-20 (conducting analysis on traceability of both cause and redress).

[21] Id. at 10.

[22] Id. at 14.

[23] Id.

[24] See id. at 15-17 (noting plaintiffs did bring arguments and referred to California’s statue and stated aims).

[25] See id. at 18-20 (reasoning same commonsense chain of events as cause analysis).

[26] Id. at 18 (quoting FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 385 (2024)).

[27] Id. at 15.

[28] Id. at 11.

[29] Id. at 15.

[30] Id. at 19 (reasoning that a heightened standard would only involve “gamesmanship”).

[31] Id. at 1 (J. Jackson dissenting).

[32] Diamond, No. 24-7 U.S. Reports 1, 1 (J. Jackson dissenting).

[33] See id. at 1 (7-2 split).

[34] Dewey supra, note 4 at 2.

[35] See Exec. Order No. 14,154, 90 Fed. Reg. 8353 (Jan. 20, 2025) (eliminating incentives for green fuel systems); see also Exec. Order No. 14,261, 90 Fed. Reg. 15517 (Apr. 14, 2025) (promoting the coal industry).

[36] See Diamond, No. 24-7 U.S. Reports 1, 11.

[37] See id. at 15.

[38] See id. at 11.

[39] See id.

[40] See id.

[41] See id. at 14 (finding plaintiffs suffer classic monetary injury from regulation).

[42] Dewey supra, note 4.

[43] Diamond, No. 24-7 U.S. Reports 1, 1 (J. Jackson dissenting).

[44] Diamond, No. 24-7 U.S. Reports 1, 19.

Lithium Valley Project Dead in the Water?
By Jules Mulé

On the eastern border of California and Mexico lies the Sonoran desert’s hidden gem: the Salton Sea, the largest body of water in California.[1] It was formed in 1905 when the Colorado River flooded an irrigation canal servicing Imperial County farming communities.[2] From afar, the lake looks like an idyllic desert oasis. Up close, the Salton Sea is more akin to a harbinger of death. After decades of evaporation, the shrinking lake has bombarded residents with exposed pollutants from agricultural runoff that become airborne in toxic dust storms.[3] Constant exposure to these pollutants contributes to exceptionally poor air quality[4] and much higher rates of asthma than the national average.[5] Locals also face high poverty[6] and unemployment rates,[7] largely due to conservative-led immigration policy prioritizing border patrol.[8] But, there is hope for the residents of Imperial County, now known as the Lithium Valley.

The Salton Sea’s surrounding basin boasts geographical features that make it ideal for both geothermal energy production and direct lithium extraction.[9] Geothermal energy and lithium extraction are important tools for combatting climate change. Geothermal is a carbon-free renewable resource, and lithium is crucial for electrification because it is used in the large batteries found in electric vehicles and energy storage systems.[10] The most common method of lithium production is to evaporate large pools of brine, which involves significant freshwater consumption and pollution.[11] However, the geothermal energy plants around the Salton Sea present a unique opportunity for a cleaner method of lithium production. Geothermal plants use mineral-rich brine pumped up from beneath the Earth’s surface to generate electricity. This brine can be co-opted for “direct lithium extraction” before returning to the geothermal plant for subsurface reinjection.[12] Direct lithium extraction is currently the cleanest way to source lithium, as it extracts the lithium directly from the brine with minimal water loss.[13]

Only one domestic lithium mine is currently operational, so the United States is significantly dependent on the lithium from evaporation pools in Argentina and Chile.[14] Increasing domestic production would serve as an economic benefit, a supply security measure, and a step towards combatting climate change. These factors have led to an unprecedented amount of support from the federal,[15] state,[16] and local[17] governments for lithium production around the Salton Sea. The current administration also remains supportive of geothermal energy despite the largely negative treatment of decarbonization and renewable energy development.[18]

Controlled Thermal Resources (“CTR”) is determined to capitalize on the opportunity with the Hell’s Kitchen Project, a 50MW geothermal energy facility with large-scale direct lithium extraction facilities.[19] Hell’s Kitchen is estimated to generate 25,000 metric tons of lithium each year.[20] That much lithium would account for more than 10% of the global production in 2024.[21] However, there is substantial concern among community groups that local resident benefits are being overlooked and underprioritized.[22] Environmentalists are also concerned that risks associated with direct lithium extraction—especially water consumption and air pollution—are being ignored.[23] Motivated by these concerns, the Comité Cívico Del Valle (“CCV”) filed suit against CTR in the Imperial County Superior Court on March 13th, 2024.[24] The court dismissed the case in favor of CTR,[25] but CCV filed an appeal with California’s Fourth Appellate District nearly a year later.[26] In their brief, CCV claims that CTR had not conducted the environmental impact report properly, that they failed to account for the accurate scope of water use, and that they did not consult with local tribal leaders pursuant to California law.[27] CTR has until October 13th of this year to respond.

The lawsuit highlights a significant concern at the heart of the global climate crisis: how do we fight climate change without compromising on environmental justice? Decarbonization and electrification should counteract, rather than utilize, harmful environmental practices. Lithium batteries in electric vehicles and energy storage systems are crucial for decarbonization and electrification.[28] Accordingly, global production and consumption is projected to increase over 300% by 2030.[29] But importing nearly all of the lithium we’d need for these industries, as we do now, keeps the country dependent on fluctuating global supply generated by environmentally harmful traditional mining practices.

Domestic lithium production around the Salton Sea via direct extraction presents the unique opportunity to simultaneously increase supply security and promote a safer lithium extraction method. Domestic lithium production can also increase renewable energy development in the form of geothermal energy. However, there is equal opportunity to directly harm the Lithium Valley residents if environmental guidelines and community voices are ignored. To be done properly, mining operations in the Lithium Valley should be to the benefit of the local residents, not at their expense.

[1] Background Information on the Salton Sea, Cal. Dep’t Fish and Wildlife, https://wildlife.ca.gov/Regions/6/Salton-Sea-Program/Background (last visited Sept. 20, 2025).

[2] Id.

[3] Luke Runyon, How a Dying Lake in California Factors into the Colorado River’s Future, kbps (Mar. 21, 2018), https://www.kpbs.org/news/2018/mar/21/how-dying-lake-california-factors-colorado-rivers-/.

[4] Paul B. English, Imperial County Community Air Monitoring Project, Nat’l Inst. Env’t Health Sci.s (Apr. 12, 2021), https://www.niehs.nih.gov/research/supported/translational/community/imperial.

[5] Shohreh F. Farzan et al., Assessment of Respiratory Health Symptoms and Asthma in Children near a Drying Saline Lake, Int’l J. Env’t Rsch. and Pub. Health 1, 1 (2019).

[6] Arturo Bojórquez, Census: People in Poverty Increased by 22 Percent in the Imperial Valley, Imperial Valley Press (Feb. 6, 2024), https://www.ivpressonline.com/news/local/census-people-in-poverty-increased-by-22-percent-in-the-imperial-valley/article_033c96c4-c226-11ee-a16c-936f6a53fadd.html.

[7] Craig Johnson, The Story Behind the 20% Jobless Rate, Staffing Indus. Analysts (Oct. 8, 2024), https://www.staffingindustry.com/news/global-daily-news/the-story-behind-the-20-jobless-rate.

[8] Sasha Abramsky, Hard Times in the Imperial Valley, Cap. & Main (June 13, 2019), https://capitalandmain.com/hard-times-in-the-imperial-valley-0613.

[9] Patrick Dobson et al., Characterizing the Geothermal Lithium Resource at the Salton Sea 4 (2023).

[10] Marco Tedesco, The Paradox of Lithium, Columbia Climate Sch. Climate, Earth, and Soc’y: State Planet (Jan. 18, 2023), https://news.climate.columbia.edu/2023/01/18/the-paradox-of-lithium/.

[11] March Zheng, The Environmental Impacts of Lithium and Cobalt Mining, Earth.org (Mar. 31, 2023), https://earth.org/lithium-and-cobalt-mining/.

[12] Overview of Direct Lithium Extraction (DLE) from Salar Brine and Geothermal Brine, Sunresin, https://www.seplite.com/sunresin-direct-lithium-extraction/ (last visited Sept. 20, 2025).

[13] María L. Vera et al., Environmental Impact of Direct Lithium Extraction from Brines, 4 Nature Rev.s Earth and Env’t 149, 162 (2023).

[14] U.S. Geological Survey, U.S. Dep’t of the Interior, Mineral Commodity Summaries 110–11 (2025).

[15] Proclamation No. 14241, 90 Fed. Reg. 13673 (Mar. 25, 2025).

[16] Blue Ribbon Commission on Lithium Extraction in California Submits Final Report to State Legislature, Cal. Energy Comm’n (Dec. 1, 2022), https://www.energy.ca.gov/news/2022-12/blue-ribbon-commission-lithium-extraction-california-submits-final-report-state; Eric Everwine, State Allocates $10M to Support Lithium Valley Planning, Infrastructure, Calexico Chronicle (Mar. 24, 2025), https://calexicochronicle.com/2025/03/24/state-allocates-10m-to-support-lithium-valley-planning-infrastructure/?utm_campaign=desert-environmental-news-march-24-2025&utm_medium=newsletter&utm_source=desertenvironmentalnews.beehiiv.com.

[17] Developing Lithium Valley, Lithium Valley, https://lithiumvalley.imperialcounty.org/planning/ (last visited Sept. 20, 2025).

[18] Maria Gallucci, Geothermal Survives in ‘Big, Beautiful’ Budget Bill—but Hurdles Remain, CANARY MEDIA (July 9, 2025), https://www.canarymedia.com/articles/geothermal/enhanced-trump-bill-tax-credits.

[19] See Generally, CTR, U.S. Energy + Critical Minerals Powerfully Combined, https://www.cthermal.com/ (last visited Sept. 20, 2025).

[20] Id.

[21] U.S. Geological Survey, supra note 14.

[22] Manuel Pastor & Chris Benner, Big Lithium Plans for Imperial Valley, One of California’s Poorest Regions, Raise a Bigger Question: Who Should Benefit?, THE CONVERSATION (Sept. 26, 2024), https://theconversation.com/big-lithium-plans-for-imperial-valley-one-of-californias-poorest-regions-raise-a-bigger-question-who-should-benefit-238397

[23] Jared Naimark, Environmental Justice In California’s Lithium Valley 23–26 (2023).

[24] Community & Environmental Groups Issue Landmark Legal Challenge to Imperial Valley Lithium Project, EARTHWORKS (Mar. 14, 2024), https://earthworks.org/releases/community-environmental-groups-issue-landmark-legal-challenge-to-imperial-valley-lithium-project/

[25] Deborah Brennan, Massive Salton Sea Lithium Project Gets Judge’s Go-Ahead, Ending Advocates’ Lawsuit, CAL MATTERS (Jan. 29, 2025), https://calmatters.org/environment/2025/01/salton-sea-lithium-mining/.

[26] Deborah Brennan, When Lithium Mining Starts, Who Benefits, and Who’s at Risk? Inside this Salton Sea case, CAL MATTERS (Sept. 18, 2025), https://calmatters.org/environment/2025/09/when-lithium-mining-starts-who-benefits-and-whos-at-risk-inside-this-salton-sea-case/.

[27] Brief for Petitioner at 13, Comite Civico Del Valle v. County of Imperial, No. D085747 (Cal. Ct. App. Sept. 11, 2025).

[28] Tedesco, supra note 10.

[29] IEA, Global Critical Minerals Outlook 124–35 (2024).

Tribal Environmental Sovereignty in Oklahoma: Where Did It Come from and Where Did It Go?
By Lauren Burden

What does environmental regulation look like for Tribes in Oklahoma today? To answer that question, an understanding of the complicated history of Tribal sovereignty in Oklahoma is essential.

There are three pillars of Tribal sovereignty: (1) inherent sovereignty, (2) delegated sovereignty, and (3) negotiated sovereignty.[1] Negotiated sovereignty comes from treaties and US Supreme Court decisions interpreting those treaties, such as Worcester v. Georgia and Cherokee Nation v. Georgia.[2] Both of these landmark cases confirmed tribal sovereignty by limiting state reach into tribal affairs and officially recognizing tribes as nations.[3] Inherent sovereignty, however, differs from negotiated sovereignty because it is rooted in tribes recognizing themselves as sovereign through self-governance, like they did before colonization.[4] Although tribes still practice inherent sovereignty today[5], tribal governance within reservations and tribal boundaries is often limited, especially regarding non-natives in civil cases.[6] Delegated sovereignty, on the other hand, seems to allow tribes a little more leeway.

Tribes get delegated sovereignty from Congress via the Commerce Clause.[7] The Clause states, “Congress shall have power . . . to regulate commerce with foreign Nations . . . and with the Indian Tribes,”[8] implying Indian Tribes are like foreign Nations. One example of delegated sovereignty in Oklahoma is the Environmental Protection Agency (EPA) delegating to qualifying Tribes the ability to create and manage environmental regulatory programs in Indian country.[9] Specific examples include the Quapaw Tribe of Indians (regulating air quality), the Pawnee Nation of Oklahoma (establishing water quality standards), and the Cherokee Nation (targeting lead abatement).[10] This delegation of sovereign authority, while still technically overseen by the EPA,[11] promotes tribal sovereignty through environmental regulatory self-governance.

Similar to Tribes, Oklahoma also receives authority from the EPA to regulate environmental programs over lands under EPA’s authority (with some oversight, of course).[12] Before McGirt v. Oklahoma, this typically meant tribal lands within Indian country were excluded from state regulation.[13] And since only some Tribes had delegated sovereignty to regulate environmental programs within Indian country, the EPA had environmental authority over most tribal lands before October 2020.[14] This all changed after McGirt.

McGirt v. Oklahoma is another landmark case regarding tribal sovereignty. Specifically, the Supreme Court held in McGirt that the Creek Nation’s reservation remained intact and that only Congress could disestablish it (which it had not).[15] After this ruling, Oklahoma State courts confirmed that other tribal reservations also remained intact.[16] While one would think this is great news for Tribal Nations in Oklahoma, there is a catch. The catch, also known as the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (“SAFETEA Act”), is an appropriations bill for transit programs and highway safety.[17] This unsuspecting bill has a provision, known as the midnight rider, that keeps tribes in Oklahoma from regulating their own environmental programs without making a deal with the State first.[18] And the State has used this to its advantage.

After McGirt, the State applied for EPA approval under the SAFETEA Act to regulate environmental programs over lands that were previously State regulated but are now considered Indian country.[19] Under the midnight rider, once the State requests this authority, the Administrator (here, the EPA) must grant approval.[20] The EPA approved it in October 2020.[21] But that’s not the end of this story.

In January 2021, President Biden issued an executive order requiring agencies to review the last four years’ actions and regulations to see if they conflict with any national objectives.[22]  After review and consultation with Tribes,[23] EPA issued notice of a proposal to withdraw and reconsider its 2020 decision.[24] In January 2025, the EPA withdrew its 2020 decision and replaced it with the new 2025 decision, detailing its decision in a letter to Oklahoma’s Governor Stitt.[25] This new decision conditions state environmental regulatory approval on Tribal consultation through a specific engagement process,[26] and highly encourages individual State-Tribal agreements to better promote tribal sovereignty.[27] While Governor Stitt considers this an overreach of power,[28] tribal nations are ready to work with the State in protecting their valuable natural resources.[29]

Now we’ve seen where tribal environmental sovereignty in Oklahoma comes from and where it has been, but where will it go from here? That’s a question that only the State and the Tribes can answer. I just hope it’s someplace great.

[1] Lily Yazzie-Begay, What is Tribal Sovereignty?, Native Am. Today (July 13, 2025), https://nativeamericanstoday.com/what-is-tribal-sovereignty/.

[2] Worcester v. Georgia, 31 U.S. 515 (1832); Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

[3] Id.

[4] Id.; See also Kimberley Chen, Comment, Toward Tribal Sovereignty: Environmental Regulation in Oklahoma After McGirt, 121 Colum. L. Rev. Forum (2021).

[5] Yazzie-Begay, supra note 1.

[6] Chen, supra note 4.

[7] Id.

[8] U.S. Const. art. I, § 8, cl. 3

[9] Tribes Approved for Treatment as a State (TAS), EPA (July 3, 2025), https://www.epa.gov/tribal/tribes-approved-treatment-state-tas.

[10] Id.

[11]Letter from EPA, Off. of the Adm’r, to Kevin Stitt, Gov. of Okla., at 2 (Jan. 13, 2025) (online file with Oklahoma.gov).

[12] Id.

[13] Id.

[14] Id. at 3

[15] McGirt v. Oklahoma, 591 U.S. 894, 894-895 (2020).

[16] Letter from EPA, supra note 11, at 3.

[17] Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, 119 Stat. 1144 (2005).

[18] Raymond Nolan, The Midnight Rider: The EPA and Tribal Self-Determination, 42 Am. Indian 329, 329 (2018).

[19] Letter from EPA, supra note 11, at 4.

[20] Id.; see also Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users § 10211.

[21] Letter from EPA, supra note 11, at 5.

[22] Id.; see also Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021).

[23] Letter from EPA, supra note 11, at 5.

[24] Proposed Withdrawal and Reconsideration and Supporting Information, EPA (June 9, 2025) https://www.epa.gov/ok/proposed-withdrawal-and-reconsideration-and-supporting-information.

[25] Letter from EPA, supra note 11, at 6.

[26] Id. at 11.

[27] Id. at 14

[28] Governor Kevin Stitt Condemns EPA’s Last Minute Overreach, Oklahoma.gov (Jan. 16, 2025), https://oklahoma.gov/governor/newsroom/newsroom/2025/governor-kevin-stitt-condemns-epa-s-last-minute-overreach.html.

[29] EPA Directs Oklahoma to Coordinate with Tribes on Protecting Air, Water and Public Health, Pawnee Nation (Jan. 28, 2025), https://pawneenation.org/epa-directs-oklahoma-to-coordinate-with-tribes-on-protecting-air-water-and-public-health/.

The “Space Race” Sequel: At What Cost for Global Dominance?
By Eden Reynolds

While the excitement surrounding potential benefits of Artificial Intelligence (AI) like increasing work productivity,[1] generating cute pictures and videos on social media, or other contributions to “harmless” activity, the implications that follow AI use are difficult to ignore. AI requires computational power. This power demands a staggering amount of electricity and strains municipal water supplies that disrupt local ecosystems.[2] AI’s rise negatively impacts the environment. The consequences of these impacts will worsen without policies regulating technology and data centers.

AI’s rapid development models come with serious environmental repercussions.[3] ChatGPT, for example, uses anywhere from ten to 30 times more energy than a regular internet search.[4] Data centers house and power servers required by AI models.[5] These facilities consume a considerable amount of energy and generate a substantial Carbon footprint because the data center must remain temperature-controlled.[6] Globally, scientists measured the electricity consumption of data centers rose to 460 terawatt-hours in 2022.[7] Data centers fall in the 11^th largest electricity consumer in the world.[8] Besides the energy supply, data centers use water for cooling by absorbing heat from computing equipment.[9] For each kilowatt hour of energy a data center consumes, it requires two liters of water for cooling.[10]

Data centers not only consume outrageous amounts of energy and water, but they also produce electronic waste (e-waste), which often contain hazardous substances.[11] This e-waste makes valuable metals, like iron, gold, and silver, recoverable to help the economic case, but recycling e-waste is costly because safely handling the hazardous material is difficult.[12] Part of this impact falls on marginalized communities.[13]

The collective costs of AI and data centers are disproportionately harming Black households.[14] Black communities face the harshest pollution exposure from data centers.[15] For example, in Spartanburg County, South Carolina, this rural community attracted technology companies for data centers because of their low population densities, available space, and affordable low energy and land costs.[16] The Spartanburg County data center emits harmful air pollution without enforceable limits.[17] This data center overburdens the community with environmental and health impacts.[18] Statistically, Black people use the least amount of electricity nationally yet experience the highest energy burden.[19] Meaning, their utility bills will increase as much as $40 to $50 mainly due to data centers.[20] This research suggests that the Black communities in rural South Carolina, and other marginalized communities nationally, will face health and financial burdens at the cost of data center development.[21]

In Europe, lawmakers recognized the potential for disproportionate harm against marginalized communities. The European Union (EU) established the first comprehensive AI regulation framework in April 2021.[22] Parliament intended for AI systems to be safe, transparent, traceable, non-discriminatory and environmentally friendly.[23] The EU believes that people should oversee the AI systems, rather than automation.[24] If people supervise the AI systems, then the environment and economy benefit.[25] The EU strategically split the AI Act into two categories: unacceptable risk and high-risk.[26] The different risk levels entail different rules.[27]

The EU banned unacceptable risk AI applications entirely.[28] The prohibited AI usage includes: (1) cognitive behavioral manipulation of people or specific vulnerable groups; (2) social scoring AI that classifies people based on behavior, socio-economic status, or personal characteristics; (3) biometric identifying that exploits vulnerabilities; and (4) real-time identifying systems, such as facial recognition in public spaces.[29] The EU allows some exceptions for law enforcement purposes, but those require court approval first.[30] The EU classified these AI systems as unacceptable risks because the systems pose a clear threat to people’s safety and privacy.[31]

The EU permits but heavily regulates high-risk AI systems to ensure it meets strict safety standards.[32] The EU divided high-risk systems into two categories.[33] First, the EU’s product safety legislation that uses AI systems.[34] Second, the EU databases with registered, specific AI systems.[35] The AI used in specific fields that impact fundamental rights are: (1) critical infrastructure, (2) education, (3) employment, (4) essential public and private services, and (5) law enforcement assessing reliability of evidence.[36] The high-risk AI carries a significant risk of harm but is not inherently incompatible with EU values.[37] The EU considered citizen’s health, safety, and fundamental rights in critical areas when forming these strict rules on risk management, data governance, and transparency.[38] The EU implemented the unacceptable risk and high-risk policies to regulate the technology;[39] and therefore, the EU sought to help the marginalized communities affected by harm imposed by AI systems.[40]

If the EU acknowledges the harmful impact that AI systems create on its communities and enacts legislation with the intent to mitigate these damages, then that begs the question, what is America doing for its people? Frankly, the country has room to improve. The White House released America’s AI Action Plan in July 2025.[41] The White House stated that America is in a “Space Race” to achieve global dominance in AI.[42] America’s AI Action Plan has three objectives: (1) accelerate AI innovation, (2) build American AI infrastructure, and (3) lead in international AI diplomacy and security.[43] These objectives must coexist to meet America’s goal of global AI dominance.[44] However, the recommended policy actions counteract mitigating infrastructure pollution.[45] America wants to establish a new Categorical Exclusions under the National Environmental Policy Act to cover data center-related actions;[46] where the government believes data centers do not have a significant effect on the environment.[47] And where would these data centers and infrastructure be built? Likely in the rural, underserved communities because there is space, property affordability, and decent service.[48] Evidence supports that data centers do negatively impact the environment and surrounding communities.[49] The data centers exhaust an enormous amount of energy, generate a substantial carbon footprint, deplete water sources, and release hazardous waste and pollution into the surrounding regions.[50]

Therefore, America should take a page out of the EU’s book and target its policies towards serving the American people. Marginalized communities do not want infrastructure near their homes, because they know the effects it will have on their health.[51]

[1] Adam Zewe, Explained: Generative AI’s Environmental Impact, MIT News (Jan. 17, 2025), https://news.mit.edu/2025/explained-generative-ai-environmental-impact-0117.

[2] Id.

[3] Id.

[4] Adam Mahoney, America’s Digital Demand Threatens Black Communities with More Pollution, Capital B (Feb. 25, 2025), https://capitalbnews.org/ai-data-centers-south-carolina-black-communities/.

[5] Sophie McLean, The Environmental Impact of ChatGPT: A Call for Sustainable Practices in AI Development, Global Commons (Apr. 28, 2023), https://earth.org/environmental-impact-chatgpt/.

[6] Id.; Zewe, supra note 1.

[7] Zewe, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] AI has an environmental problem. Here’s what the world can do about that, U.N. Env’t Programme (Sept. 21, 2024), https://www.unep.org/news-and-stories/story/ai-has-environmental-problem-heres-what-world-can-do-about.

[12] Casey Crownhart, AI will add to the e-waste problem. Here’s what we can do about it, MIT Tech. Rev. (Oct. 28, 2024), https://www.technologyreview.com/2024/10/28/1106316/ai-e-waste/.

[13] See Mahoney, supra note 4.

[14] Mahoney, supra note 4.

[15] Id.

[16] Id.; Spartanburg County data center could emit harmful air pollution without enforceable limits, S. Env’t. L. Ctr. (Aug. 18, 2025), https://www.selc.org/press-release/spartanburg-county-data-center-could-emit-harmful-air-pollution-without-enforceable-limits/ [hereinafter SELC].

[17] SELC, supra note 16.

[18] Id.

[19] Mahoney, supra note 4.

[20] Id.

[21] Id.

[22] EU AI Act: first regulation on artificial intelligence, European Parliament (June 8, 2023), https://www.europarl.europa.eu/topics/en/article/20230601STO93804/eu-ai-act-first-regulation-on-artificial-intelligence.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] President Donald Trump, Winning the Race, Am.’s AI Action Plan (July 2025), https://www.whitehouse.gov/wp-content/uploads/2025/07/Americas-AI-Action-Plan.pdf.

[42] Id. at 1.

[43] Id.

[44] Id.

[45] Id. at 14.

[46] Id.

[47] Id.

[48] Mahoney, supra note 4; SELC, supra note 16.

[49] Id.

[50] Zewe, supra note 1.

[51] SELC, supra note 16.

Debunking EPA Administrator Lee Zeldin’s Claims of the Economic Harms of Emission Regulations
By Max Oechsner

The current American administration has been canceling climate change initiatives since its first day in office.[1] The administration has abandoned lawsuits,[2] heavily deregulated,[3] and issued executive orders that repeal environmental initiatives.[4]  Most recently, the Environmental Protection Agency (EPA) proposed a rule[5] that would eliminate the 2009 endangerment finding by the EPA.[6] This finding determined that certain greenhouse gas (GHG) emissions hurt human health and the environment. [7] The endangerment finding is the only legal basis for the federal government to regulate GHG emissions.[8] This makes it a fairly special piece of regulation. If the endangerment finding goes away, potentially all emission regulations carried out since 2009 could go with it.[9]

Lee Zeldin, the current administrator of the EPA, has defended this proposal to the media vigorously. In one interview, Zeldin bashed the economic costs of EPA regulations as having been “significant.”[10] In another interview, Zeldin claimed that EPA regulations “were seeking, in some respects, to strangulate out of existence entire sectors of our economy.”[11] He claimed that he inherited a “mess,” which has contributed to the high costs of heating homes.[12] But how true is this rhetoric that he presents to the public in support of the EPA’s proposal?

First, we may look to the EPA proposal’s own Regulatory Impact Analysis (RIA).[13] In the RIA, one major consideration is the change in assumptions related to consumer interests in purchasing electric vehicles.[14] Specifically, they discuss how recent uncertainty in the continuation of tax credits established by the Inflation Reduction Act has reduced projected demand for EVs.[15] The uncertainty comes from Trump’s “One Big Beautiful Bill,” but these projections raise concerns that current initiatives are underperforming. However, this consideration does not go so far as to include evidence of economic strangulation.

Another consideration in the RIA is the EPA’s estimate of future gasoline and diesel prices.[16] They conclude that rollback would cause the price of gasoline to be $1 lower compared to Biden-era projections.[17] This projection, however, is not supported by data.[18] The RIA only references President Donald Trump’s “energy dominance” policies.[19] And still, this consideration does not imply the strangulation of any sectors of the economy. To quote Kathy Harris, director of the Natural Resources Defense Council: “It’s a lot of funny math.”[20]

What about the past fourteen years since the endangerment finding? Has there been a noticeable strangulation of any sector of the economy that the endangerment finding regulates? Gas prices, despite being highly volatile, have not shown much increase or decrease in price since 2009.[21] U.S. field production of crude oil has actually gone up.[22] The automotive industry has seen significant growth, increasing by roughly 20 million jobs.[23] On the clean energy front, automakers have invested nearly $200 billion in U.S. clean vehicle production, supporting almost 195,000 jobs.[24] Clean energy itself has increased, with wind and solar production now providing more electricity than coal.[25] In fact, it appears that the more stable regulatory environment has been compatible with growth, innovation, and clean solutions.[26]

The inverse may also be true: a less stable regulatory environment could lead to worse economic conditions. As previously mentioned, rescinding the endangerment finding will result in important climate change regulations being repealed.[27] This could theoretically lead to patchwork state and local regulations in the absence of federal rules. Twenty-four states and the District of Columbia have already adopted GHG emission targets.[28] It is not difficult to imagine that these states may increase those targets while others do nothing. This would likely negatively affect industry, as shown by some automakers recently signing on to self-regulate to avoid regulatory uncertainty.[29]

Ultimately, the endangerment finding being repealed will be harmful on many levels. Our economy will likely do worse overall, with the clean energy market being hit especially hard.[30] The clean energy market’s pain, in turn, hurts our environment and our communities. Socioeconomically disadvantaged communities bear a particularly disproportionate cost from the use of fossil fuels.[31] Without emission limitations, fossil fuel pollution will continue to hurt those communities, deepening existing health disparities.[32] This is especially true considering EPA regulations are the only real option for abating harm, given the significant hurdles to bringing private suits.[33] As a result, those who could benefit most from clean energy investments—through job creation, affordable energy access, and cleaner air—are left behind.

[1] See, e.g., 90 C.F.R. § 8237 (2025) (revoking several previous executive orders such as 86 C.F.R. 43583 (2021), 86 C.F.R. 51579 (2021), and 86 C.F.R. 7615 (2021)); 90 C.F.R. 8347 (2025); 90 C.F.R. 8353 (2025).

[2] Justice Department Dismisses Suit Against Denka, Delivering on President Trump’s Mandate to End Radical DEI Programs, DOJ (last updated March 7, 2025), https://www.justice.gov/opa/pr/justice-department-dismisses-suit-against-denka-delivering-president-trumps-mandate-end.

[3] Press Release, EPA Launches Biggest Deregulatory Action in U.S. History, EPA (March 12, 2025), https://www.epa.gov/newsreleases/epa-launches-biggest-deregulatory-action-us-history.

[4] See, 90 C.F.R. 8455 (2025); 3 C.F.R. 8353 (2025); 90 C.F.R 8347 (2025).

[5] 40 C.F.R. Parts 85, 86, 600, 1036, 1037, and 1039.

[6] 40 C.F.R. Chapter 1.

[7] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, U. S. Env’t Prot. Agency (last updated Feb. 27, 2025), https://www.epa.gov/climate-change/endangerment-and-cause-or-contribute-findings-greenhouse-gases-under-section-202a.

[8] Id.

[9] Id.

[10] ABC News, EPA administrator defends repeal of landmark climate regulation finding, YouTube (Jul 30, 2025), https://www.youtube.com/watch?v=wF2SguLC_YA.

[11] CBS News, EPA Chief Lee Zeldin defends proposed repealing of endangerment finding, YouTube (Aug 1, 2025), https://www.youtube.com/watch?v=YCM_o0ora2E&t=207s.

[12] Id.

[13] Office of Transportation and Air Quality, Reconsideration of 2009 Endangerment Finding and Greenhouse Gas vehicle Standards: Draft Regulatory Impact Analysis, EPA-420-D-25-002 (July 2025).

[14] Id.

[15] Id.

[16] EPA, supra note 11.

[17] Jean Chemnick, Inside EPA’s analysis for killing the endangerment finding, Politico (Sept.10, 2025 6:16 AM), https://www.eenews.net/articles/inside-epas-analysis-for-killing-the-endangerment-finding/.

[18] Id.

[19] Id.

[20] Id.

[21] Average price data (in U.S. dollars), selected items, U.S. Bureau of Lab. Stat., https://www.bls.gov/charts/consumer-price-index/consumer-price-index-average-price-data.htm.

[22] Petroleum & Other Liquids, U.S. Energy Info. Admin., (last updated Aug. 2025) https://www.eia.gov/dnav/pet/hist/leafhandler.ashx.

[23] Industry and occupational employment projections overview and highlights, 2023–33, U.S. Bureau of Lab. Stat. (Nov. 2024), https://www.bls.gov/opub/mlr/2024/article/industry-and-occupational-employment-projections-overview-and-highlights-2023-33.htm.

[24] Supra note 22.

[25] In 2024, the United States produced more energy than ever before, US Energy Info. Admin. (Oct. 16, 2025), https://www.eia.gov/todayinenergy/detail.php.

[26] Sean Hackett, Bad for business: The Trump Administration’s attack on EPA’s endangerment finding, Env’t Def. Fund, (May 6, 2025) https://business.edf.org/insights/bad-for-business-the-trump-administrations-attack-on-epas-endangerment-finding/.

[27] Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 404 (D.C. Cir. 2013).

[28] State Climate Policy Maps, Ctr. for Climate and Energy Sol. (last visited Oct. 6, 2025), https://www.c2es.org/content/state-climate-policy/.

[29] Joseph DeQuarto, Automakers Prefer Self-Regulation to Regulatory Uncertainty, The Regulatory R., (Sept. 19, 2019)

https://www.theregreview.org/2019/09/19/dequarto-automakers-prefer-self-regulation-regulatory-uncertainty/.

[30] See supra notes 21–29.

[31] See Aneesh Patnaik, et. al, Racial Disparities and Climate Change, Princeton Student Climate Initiative, (Aug. 15, 2020) https://psci.princeton.edu/tips/2020/8/15/racial-disparities-and-climate-change.

[32] Id.

[33] See Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012) (holding that the displacement doctrine precludes private nuisance suits).

Two Approaches to Energy Access: United States Justice vs. European Union Rights
By Diamond McAllister

            The United States (US) and the European Union (EU) take different approaches to energy policy.[1] The varying strategies reflect contrasting views of energy as a social right versus a matter of justice and equity. The EU favors a top-down strategy, relying on mandates, regulations, and penalties to achieve compliance.[2] Meanwhile the US leans on incentives, rewarding “good behavior” through subsidies and investments in sustainable energy initiatives.[3]

This brief comparison examines programs and policies from both sides of the Atlantic, highlighting approaches to clean energy and climate initiatives. The difference in strategies of implementing clean energy is reflected in the terminology and program design of the US and EU. The US Inflation Reduction Act (IRA) invests in clean energy and lowers household energy costs to address climate change. The EU Net-Zero Industry Act (NZIA), by contrast, expands net-zero technology manufacturing to meet climate goals and cut import reliance. Unlike the US framework, the EU framework holds those who fail to comply accountable.

I. Terminology Differences: Framing Justice vs. Rights
            Policy terminology matters. It not only describes issues but shapes how they are understood and acted upon. The US IRA emphasizes concepts such as environmental justice, equity, communities of color, disadvantaged, and underserved groups.[4] The EU NZIA does not adopt this language. While the environmental justice movement has not yet gained significant traction in the EU, related concepts appear under different terms.[5] EU law often frames these issues in terms of energy poverty, just transition, and social cohesion.[6] The US and EU’s employment of distinct terminology in drafting their clean energy and climate initiatives points to differing policy objectives.

Why do these two jurisdictions use different terminology? The answer lies in their distinct policy objectives and historical contexts. The United States’ emphasis on equity and justice is informed by its history of slavery and systemic injustice, shaping a policymaking approach that seeks to address historical disparities.[7] The NZIA primarily targets industrial strategy and green technology deployment, embedding social standards only minimally.[8] This contrast highlights how terminology signals not just priorities but the broader societal values that underpin energy policy in each jurisdiction.

II. The US Approach: The IRA and Justice40
            The IRA represents the most comprehensive federal climate policy in American history, integrating equity and justice as core components of its design.[9] The Justice40 initiative, supported by the IRA, directs 40% of federal climate and clean energy investment benefits to historically disadvantaged communities that have long faced environmental harms and systemic underinvestment.[10] These investments span a wide range of areas: climate action, clean energy development, energy efficiency improvements, clean transit infrastructure, affordable and sustainable housing, workforce development, pollution remediation, and clean water infrastructure.[11]

Building on this framework, Justice40 and other IRA provisions reflect a structural shift in federal policymaking, ensuring that historically marginalized communities are actively included in the benefits of the global clean energy transition rather than being “left behind.”[12] The IRA accomplishes these goals through a combination of tax credits, rebates, grants, and direct support for community solar projects, energy efficiency upgrades, electric vehicles, and other mechanisms designed to facilitate equitable access to clean energy technologies.[13] The IRA embeds social equity directly into funding allocations and program design.[14] This method demonstrates an approach to energy policy that leveraging incentives and targeted investments to advance both environmental and social objectives.[15]

III. The EU Approach: NZIA
           The EU emphasizes energy as a social right and frames policy around collective obligations and social solidarity. The NZIA represents the EU’s industrial and technological strategy for achieving net-zero emissions.[16] Unlike broader EU social protections, the NZIA primarily focuses on accelerating green technology deployment and supporting industrial innovation, rather than direct social equity measures.[17]

The NZIA is part of a larger EU legal and regulatory framework that embeds energy protections in law.[18] Energy protections are illustrated by directives that ensure member states monitor energy access and support vulnerable populations, and its incentives are targeted toward technology adoption and market transformation.[19] Because the NZIA is grounded in EU law, its provisions are legally binding and enforceable, providing a framework to hold member states accountable for meeting energy standards.[20]

IV. Why the EU System Is Superior to the U.S. Approach in Enforcing Climate and Energy Commitments
           U.S. equity initiatives like Justice40 lack justiciable rights, which renders them vulnerable to administrative reversal or inconsistent compliance. In the US, many programs are currently stalled or facing funding freezes due to recent federal policy changes.[21] Whereas, the EU is advancing its net-zero objectives rapidly, embedding social protections and industrial strategy into its policy framework.

The EU’s approach to enforcing climate and energy commitments is more robust than that of the US, primarily due to its structured accountability mechanisms. Under the EU’s European Climate Law, the European Commission can initiate infringement procedures against member states for non-compliance, which may lead to cases before the Court of Justice of the European Union.[22] Similarly, the Renewable Energy Directive (Directive 2018/2001) establishes binding targets for renewable energy adoption, and the Commission has actively pursued legal action against member states failing to meet these obligations.[23] These mechanisms create a level of enforceability and accountability that the U.S. system currently lacks.

In contrast, the U.S. system, exemplified by the IRA and Justice40 Initiative, lacks explicit statutory mechanisms to hold noncompliant parties accountable for failures in enforcement. Enforcement in the US often relies on administrative discretion and general legal principles, making it more challenging for communities to hold the government accountable for non-compliance. While there have been recent court rulings that have supported certain aspects of the IRA and Justice40, these decisions do not establish a clear, enforceable framework for communities to hold the government accountable for non-compliance.[24] The absence of an explicit right of action and the limited scope of judicial interventions underscore the challenges in ensuring consistent and equitable enforcement of these initiatives. Therefore, while the EU system offers stronger accountability mechanisms, the US approach remains less certain and more susceptible to political and administrative changes.

V. Conclusion
           Together, these approaches illustrate fundamental differences in policy style and priority. Exemplified by the IRA and Justice40, the U.S. strategy relies on incentives to direct clean energy investments toward historically underserved communities, integrating social justice into environmental policy. The EU, while embedding social protections in its regulatory framework, prioritizes energy as a right and emphasizes mandates and structural supports, with the NZIA focusing on industrial and technological advancement. Understanding these differences provide insight not only into policy design but also into the underlying societal values shaping energy and climate strategies on both sides of the Atlantic. Given that energy access is essential to dignity, health, and participation in modern society, the U.S.’s lack of structured accountability mechanisms represents a critical gap in its climate and energy policy.

[1] Milan Elkerbout et al., Transatlantic Cues: How the United States and European Union Influence Each Other’s Climate Policies 1 (2024), https://www.rff.org/publications/reports/transatlantic-cues-how-the-united-states-and-european-union-influence-each-others-climate-policies/.

[2] Id.

[3] Id.

[4]  The White House, Justice40 Initiative: A Whole-of-Government Initiative, The White House Archives, https://bidenwhitehouse.archives.gov/environmentaljustice/justice40/ (last visited Oct. 10, 2025) [hereinafter Justice40 Initiative]; Elkerbout et al., supra note 1.

[5] Isabela Mihalache, Environmental Justice in National Strategic Frameworks 4 (2024), https://eeb.org/wp-content/uploads/2024/01/report-ERGOEEB-V1.pdf.

[6] Directive 2019/790, of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights in the Digital Single Market and Amending Directives 96/9/EC and 2001/29/EC, 2019 O.J. (L 130) 92; Eur. Comm’n, About the EU ETS, https://climate.ec.europa.eu/eu-action/carbon-markets/eu-emissions-trading-system-eu-ets/about-eu-ets_en (last visited Oct. 10, 2025).

[7] Lukas Althoff, Stan. Inst. For Econ. Pol’y Rsch., Policy Approaches to Addressing a History of Racial Discrimination (May 2024), https://siepr.stanford.edu/publications/policy-brief/policy-approaches-addressing-history-racial-discrimination.

[8] Eur. Comm’n, Net-Zero Industry Act: Making the EU the Home of Clean Technologies Manufacturing and Green Jobs (2023), https://single-market-economy.ec.europa.eu/industry/sustainability/net-zero-industry-act_en.

[9] Elkerbout et al., supra note 1, at 1.

[10] Justice40 Initiative, supra note 4.

[11] The White House, Building A Clean Energy Economy: A Guidebook to the Inflation Reduction Act’s Investments in Clean Energy and Climate Actions 5 (Jan. 2023), https://bidenwhitehouse.archives.gov/cleanenergy/inflation-reduction-act-guidebook/.

[12] Id. at 7; Justice40 Initiative, supra note 4.

[13] Justice40 Initiative, supra note 4.

[14] The White House, supra note 11.

[15] Id.

[16] Eur. Comm’n, supra note 8.

[17] Id.

[18] Tobias Buscher et al., Clean Energy for All Europeans – An Overview, Bird & Bird (Aug. 22, 2019), https://www.twobirds.com/en/insights/2019/global/clean-energy-for-all-europeans—an-overview.

[19] Alessandro Fiorini & Giuli Iorio, Main Energy Poverty Measures in Europe: Characterisation from the EPOV and the EED Perspectives, ODYSSEE-MURE (Aug. 2024), https://www.odyssee-mure.eu/publications/policy-brief/energy-poverty-measures-eu-epov-eed.html.

[20] Eur. Comm’n, supra note 8.

[21] See Unleashing American Energy, Exec. Order No. 14,975, 90 Fed. Reg. 1 (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/unleashing-american-energy/.

[22] Latham & Watkins LLP, EU Sustainability: State of Play – EU Climate Law and Energy Transition (Oct. 1, 2025), https://www.lw.com/en/insights/eu-sustainability-state-of-play-eu-climate-law-and-energy-transition.

[23] Eur. Comm’n, Commission Takes Action to Ensure Complete and Timely Transposition of EU Directives – Key Decisions on Energy (Jul. 24, 2025), https://energy.ec.europa.eu/news/commission-takes-action-ensure-complete-and-timely-transposition-eu-directives-key-decisions-energy-2025-07-24_en.

[24] Olivia Guarna, Court of Appeals Sets Aside Preliminary Injunction in GGRF Litigation, Climate Law Blog (Sept. 4, 2025), https://blogs.law.columbia.edu/climatechange/2025/09/04/court-of-appeals-sets-aside-preliminary-injunction-in-ggrf-litigation/; Eur. Comm’n, supra note 8.

 

Stewarding the Land: Why the Aquinnah Wampanoag Tribe Should Retain Their Sovereign Immunity
By Maddy Foley

In a 2004 Supreme Judicial Court of Massachusetts decision, Building Inspector and Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., the Court concluded that a Wampanoag shellfish hatchery was subject to the zoning laws of the Town of Aquinnah (formerly known as Gay Head, hereinafter “the Town”).[1] The Aquinnah Wampanoag Tribe (“the Tribe”) wanted to build a shed and a pier platform for the hatchery on tribal lands.[2] The Court, however, found that the Wampanoag Tribe waived its sovereign immunity when it entered into a settlement agreement[3] with the town (referred to in the agreement as “Gay Head”).[4] The settlement agreement permitted the Building Inspector to oversee the Tribe’s land use.[5] This post will examine the settlement agreement from a purposivist prospective and answer the question of why the Tribe waived their sovereign immunity.

The Tribe does not have sovereign immunity. Sovereign immunity prevents litigants from suing a government  for their harmful conduct.[6] Like the federal and state governments, tribes also have sovereign immunity.[7] But tribes can waive their sovereign immunity.[8] Tribes may waive sovereign immunity  to enter into agreements like large construction contracts.[9] This can subject tribes to lawsuits. Unfortunately, one lawsuit could potentially significantly impair the tribal government due to waived sovereign immunity.[10] In contrast, waiving sovereign immunity can open up a tribe to business opportunities to support their economy.[11] Here, the Tribe waived their sovereign immunity so that it may acquire their tribal land.[12]

Tribal autonomy over lands is important, not only to preserve Indigenous cultures and traditions, but to protect the land and biodiversity.[13] Indigenous communities often  act as stewards to the land which can mitigate the impacts of climate change.[14] In fact, Indigenous peoples protect 85 percent of the Earth’s biodiversity.[15] In Building Inspector, the Tribe built improvements for their shellfish hatchery, practicing land stewardship in the process.[16] The Tribe should have more power over what they can do with their land especially when it involves something as important as protecting the land’s biodiversity.

The Settlement Agreement in question involves agreements with the State and local government.[17] The U.S. Constitution, however, delegates the federal government the power to manage affairs with tribes in the Commerce Clause.[18] Further, tribal land can either be trust land where the land is held in trust by the federal government, or fee land, where the Tribe, or a Tribal member purchases the land.[19] The Aquinnah Wampanoag Tribal land is held in trust, as are most Native American lands. Yet, the Tribe’s situation is unique because it is also tied to the restrictive Settlement Agreement with the Town and the State.

Initially, individual tribal members owned the land subject to the agreement, but then the State took the land.[20] The area known as the “common lands” were held in common by all tribal members by tradition and their culture.[21] Then in 1870, the General Court of Massachusetts took the Tribe’s land and claimed it as the Town of Aquinnah.[22] The stolen land was then divided into lot and deeded to tribal members.[23] The common lands were kept as part of the Town. Next, the Tribe incorporated as a Massachusetts nonprofit in 1972.[24]

The Tribe needed to file suit to get their land back. In 1974, the Tribe sued the Town for the Common lands.[25] The Tribe alleged that some transfers of land within the Town violated the Indian Non intercourse Act because the Tribe had claimed title to them.[26] The Tribe, however, did not have federal tribal status at the time.[27] In 1976, the Town’s citizens urged their selectmen to negotiate a settlement with the Tribe to transfer the Common Lands back to the Tribe.[28] Then, the selectmen approved to transfer the Common Lands to the tribe.[29] A week later, the Gay Head Taxpayers Association argued that the selectmen did not represent their interest and filed papers with a federal judge.[30] The association thus became a negotiating party in the settlement agreement.[31]

The Tribe and the Town took several years to reach an agreement. In 1981, the Tribe petitioned the Bureau of Indian Affairs for tribal recognition.[32] Finally in 1983, the Bureau placed the Tribe’s land request in active consideration. But then the Tribe, the Town, the Commonwealth of Massachusetts, and the Aquinnah/Gay Head Community Association, Inc. all entered into a “Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims,” which is the Settlement Agreement.[33] The Tribe agreed to the settlement for the purpose of acquiring 238 acres of land in Aquinnah.[34] The joint memorandum stated that federal funds will maintain the common lands, the Cook property, the former Strock Estate, and the Menemsha Neck Lands.[35]

The Settlement Agreement established many predatory terms between the Tribe, the Town, and the Commonwealth of Massachusetts. The agreement extinguished all the Tribe’s “aboriginal” land claims in exchange for funding to acquire the lands in dispute for the Tribe.[36] The Tribe also agreed to create a state-charted corporation, the Tribal Land Corporation, which would be subject to the Settlement Agreement.[37] The Agreement states “[a]ny structure placed on this property shall be subject to all Federal, State and local laws, including Town zoning laws, State and Federal conservation laws, and the regulations of the Martha’s Vineyard Commission. . . .”[38] Additionally, the Land Use Plan in the Agreement was a part of the Town’s zoning laws. The Plan enabled the Tribe to approve of future amendments to the zoning laws.[39] Further, the Building Inspector regulates the Land Use Plan as applied to the Cook Lands.[40] The Building Inspector specifically prohibited the Tribe from building structures within 200 feet of wetlands, bodies of water, beaches, dunes, and certain bluffs. In essence, the Plan prohibited the Tribe from building any structures within  the Cook Lands.[41]

Further, Massachusetts required  payments in lieu of taxes when the Tribe built structures  or  made improvements to the land.[42] If the payments are not made, the Town or anyone with the proper authority may not foreclose on the lands but instead enforce a lien against the Tribes assets.[43] If the Tribe does not pay the liens in 5 years, the Town may seize the land, but it would not affect the Tribe’s title to the land.[44]

Moreover, the Agreement limited the Tribe’s delegation of power to decide its own hunting regulations. The Tribe could not regulate  firearms or crossbow.[45] The Tribe may not establish its own trapping or fishing regulations.[46] Also, any regulations made by the Tribe are subject to Judicial review “for reasonableness.”[47] Additionally, the Agreement did not establish federal recognition for the tribe.[48] These terms purposefully limit the Tribe’s autonomy on the land they acquired through the Agreement.

The Settlement Agreement significantly impacts the Tribe’s autonomy. The Tribe finally gained Federal recognition in 1987.[49] The State placed the lands in trust with the U.S. under the Federal Implementing Act.[50] The federal government, however, allowed the Settlement Agreement to still stand between the Tribe and the Town.[51] Thus, claims against the Tribe, like the one in Building Inspector, were permissible. The Tribe does not have complete power over their lands due to the zoning laws. In contrast, the Tribe in Wisconsin Department of Natural Resources v. Tiber and Wood Products Located in Sawyer County retained their sovereign immunity and prevented an entity from taking natural resources from the Tribe’s land.[52] The federal government should allow the Aquinnah Wampanoag Tribe to retain their sovereign immunity.

The purpose of the Tribe entering into the Agreement was to acquire their tribal lands. The Agreement was an essential step in securing the lands for the Tribe. The Town’s objective, however, was to control the use of the land, among other things. The Town should not have major power over what the Tribe does with their land considering most of the tribal land is undeveloped conservation lands.[53] Tribes can benefit from waiving sovereign immunity in some instances, for example, to facilitate  economic growth. The Aquinnah Wampanoag Tribe should be allowed to decide what is the best use for their land.

[1] Bldg Inspector and Zoning Officer Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 818 N.E.2d 1040, 1042 (2004).

[2] Id.

[3] Wampanoag Tribal Council of Gay Head, Inc., Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims (Sept. 28, 1983), https://www.decoulos.com/legislative/1983_Settlement_Agreement.pdf.

[4] Id.

[5] Id. at 1044.

[6] Padraic I. McCoy, Sovereign Immunity and Tribal Commercial Activity: A Legal Summary and Policy Check, The Federal Lawyer, Mar.–Apr. 2010, at 41, 42.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 44.

[11] Id.

[12] Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 3, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[13] Stewarding Native Lands, First Nations Development Institute, https://www.firstnations.org/our-programs/stewarding-native-lands/ (last visited Sept. 16, 2025).

[14] Land Back: How Two Tribes are Re-Acquiring and Leveraging Community Forests, First Nations Development Institute, https://www.firstnations.org/stories/land-back-how-two-tribes-are-re-acquiring-and-leveraging-community-forests/ (last visited Sept 16, 2025).

[15] Id.

[16] Bldg Inspector and Zoning Officer Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 818 N.E.2d 1040, 1042 (2004).

[17] Wampanoag Tribal Council of Gay Head, Inc., Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims (Sept. 28, 1983), https://www.decoulos.com/legislative/1983_Settlement_Agreement.pdf.

[18] U.S. Const. art. I, § 8, cl. 3.

[19] Office of Natural Resources Revenue, Native American Ownership and Governance of Natural Resources, U.S. Dep’t Interior, https://revenuedata.doi.gov/how-revenue-works/native-american-ownership-governance/ (last visited Sept. 15, 2025).

[20] W. C. Platt, Historic Transfer of Indian Lands Signed, Vinyard Gazette (July 21, 1989) https://vineyardgazette.com/news/1989/07/21/historic-transfer-indian-lands-signed.

[21] Id.

[22] Id.

[23] Id.

[24] Building Inspector, 818 N.E.2d at 1042.

[25] See Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[26] Building Inspector, 818 N.E.2d at 1042.

[27] W. C. Platt, Historic Transfer of Indian Lands Signed, Vinyard Gazette (July 21, 1989) https://vineyardgazette.com/news/1989/07/21/historic-transfer-indian-lands-signed.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.; Building Inspector, 818 N.E.2d at 1043.

[34]Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 2–3, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[35] Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 5, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[36] Building Inspector, 818 N.E.2d at 1043.

[37] Id.

[38] Id.

[39] Id. at 1044.

[40] Id. at 1045.

[41] Id. at 1044.

[42] Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 9, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[43] Id.

[44] Id.

[45] Id.

[46] Id. at 10.

[47] Id.

[48] Id.

[49] Bldg. Inspector, 818 N.E.2d at 1045.

[50] Id.

[51] Id.

[52] See Wisconsin Department of National Resources v. Timber & Wood Prod., 379 Wis.2d 690, 721 (2017).

[53] Tribal Lands, Wampanoag Tribe of Gay Head (Aquinnah), https://wampanoagtribe-nsn.gov/lands (last visited on Sept. 16, 2025).

Community Land Trusts as a Tool for Land Reparations

By: Jill Reynolds

            Whiteness is embedded in property law. From the groundbreaking law review article, Whiteness as Property, “American law has recognized a property interest in whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated.”[1] As a result of this bias, Black communities have been systemically prevented from acquiring or maintaining land and thus, generational wealth.

Agricultural land is no different. In fact, farmland rests overwhelmingly in white hands. In 1920, Black farmers made up 14% of all producers.[2] Today, Black farmers make up 1.4% of the 3.4 million producers in the country.[3] This is nearly a ninety percent loss.[4] Numerous factors led to Black farmland loss, including institutional discrimination. Much of the institutional discrimination took the form of discriminatory lending. Pigford v. Glickman is the seminal class action lawsuit brought by Black farmers against the U.S. Department of Agriculture (USDA) for decades of discriminatory lending practices.[5]

In Pigford, Black farmers brought claims of discriminatory loan practices by the Farmer Service Agency (FSA)––formerly known as the Farmers Home Administration (FHA), the branch of the USDA responsible for administering loans to American farmers. First, USDA “willfully discriminated against them and other similarly situated [Black] farmers on the basis of their race when it denied their applications for credit and/or benefit programs or delayed processing their applications.”[6] Second, when farmers “filed complaints of discrimination… the USDA failed properly to investigate and resolve these complaints.”[7] Pigford resulted in a $1 billion settlement.[8] While historic, this remedy only scratched the surface of addressing harms. Foremost, the payout went only to producers discriminated against between 1982 through 1996.[9] For some, it was already too late.

New Communities Incorporated (New Communities), a Black owned and founded community land trust (CLT), failed due to these discriminatory practices. CLTs are an alternative land access model that prioritizes community ownership and takes land out of the speculative market. A CLT is a nonprofit entity that holds title to land to serve community-oriented interests.[10] Primarily, they exist to serve as long-term, affordable solutions for buying homes and leasing low-cost agricultural land.[11]

The first CLT, New Communities, grew out of the southern civil rights movement in the 1960s in Georgia.[12] The goal was to establish economic and political independence for Black farmers and their families being forced off the land. New Communities bought 5,000 acres of agricultural and forested land in 1970. However, they had to borrow much of the one-million-dollar purchase.[13] Caught in a debt treadmill, all agricultural products produced went towards paying down their debt burden.[14] After successive years of drought and discriminatory lending practices by FHA, New Communities had to sell off a parcel of their land: 1,300 acres.[15] The rest of the land was lost a few years later to foreclosure.[16]

Fortunately, the entity of New Communities never dissolved, and through Pigford they recovered monetary damages.[17] Using the $12 million payout, they purchased the Cyprus Pond Plantation outside Albany, Georgia, a 1600-acre parcel in June of 2011.[18] Despite these setbacks, community land trusts (CLTs) are still a powerful, underutilized legal solution to reclaim lost agricultural land.

Currently, there are few agricultural community land trusts in the U.S. Yet, they offer flexibility for landholders and farmers without much capital. In practice, the CLT holds title to the land and grants ninety-nine-year ground leases to farmers. Farmers are allowed to make improvements to the land, such as building infrastructure and installing irrigation.[19] The farmer then owns these improvements and can sell them when they decide to retire or move on to a new venture.[20] The land itself is held by the CLT and rented out for a low cost.[21] Not only does the agricultural land stay perpetually affordable, but it also allows farmers to adapt to a changing climate and steward their land as they see fit.[22] This arrangement is far more flexible than a conservation easement, which can forbid certain types of improvements to land, often to the detriment of the farmer.[23]

Importantly, a CLT is governed by a tri-partite board. One part is individuals on the land, one part community members, and one part public interest representatives. The democratic style of this governing structure allows for community involvement and community buy-in to the land. While it may be a more challenging model than individual ownership of land, it presents an opportunity for coalition building and political might.

Community land trusts can increase land access for groups historically disadvantaged from land ownership, but they still require institutional support. Until other funding structures fill in the gaps, it is crucial to prevent discriminatory lending practices to allow for equal access to land. Institutional funders should prioritize socially disadvantaged groups and conduct outreach into these communities. Community-based lawyers can assist in facilitating outreach and be on alert for discriminatory practices. Advocacy groups can call farmers in and call injustices out. On stolen land, everyone has a role to play in reparations.

[1] Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1713-14 (1993).

[2] Black Producers, USDA NASS, https://www.nass.usda.gov/Publications/Highlights/2019/2017Census_Black_Producers.pdf (last visited Sept. 19, 2025).

[3] Id.

[4] Tom Philpott, White People Own 98% of Rural Land, Grist, (June 20, 2020), https://grist.org/justice/white-people-own-98-of-rural-land-young-black-farmers-want-to-reclaim-their-share .

[5] Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) aff’d 206 F.3d 1212 (D.C. Cir. 2000), and enforcement denied sub nom. Pigford v. Schafer, 536 F. Supp. 2d 1 (D.D.C. 2008).

[6] Id. at 86.

[7] Id.

[8] The Pigford Cases: USDA Settlement of Discrimination Suits by Black Farmers, Cong Rsch Serv., https://nationalaglawcenter.org/wp-content/uploads/assets/crs/RS20430.pdf (last visited Oct. 6, 2025).

[9] Id.

[10] What is a Community Land Trust?, Int’l. Ctr. for Cmty. Land Tr.s, https://www.cltweb.org/resources/what-is-a-community-land-trust  (last visited Sept. 19, 2025).

[11] Id.

[12] New Communities, Int’l. Ctr. for Cmty. Land Tr.s, https://www.cltweb.org/resources/clt-case-studies/new-communities  (last visited Oct. 6, 2025).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] New Communities, Int’l. Ctr. for Cmty. Land Tr.s, https://www.cltweb.org/resources/clt-case-studies/new-communities  (last visited Oct. 6, 2025).

[18] Id.

[19] Land Trusts, Ctr. for Agric. and Food Sys., https://farmlandaccess.org/land-trusts  (last visited Oct. 6, 2025)

[20] Id.

[21] Id.

[22] Id.

[23] Conservation Easements, Ctr. for Agric. and Food Sys., https://farmlandaccess.org/conservation-easements (last visited Oct. 6, 2025).