Category: Beacon

National “Forever Chemical” Settlements: Swift Justice or Gross Disservice?
By Dane Whitman

A new star has risen over the field of mass toxic tort litigation. Perfluoroalkyl substances (PFAS), a non-stick waterproof coating, is the subject of over ten billion dollars in legal settlements between manufacturers and public water system operators.[1] PFAS have earned the name “forever chemicals” for their resistance to biodegradation in the environment as well as their tendency to accumulate in our bodies over time.[2] While one manufacturer alone has settled with public water system operators for $10.3 billion, some stakeholders have called this amount “grossly inadequate.”[3] Do these settlements serve swift justice for communities with polluted water systems, or do these deals underestimate PFAS’s harmful effects and shield manufacturers from future liability? Given the multifaceted extent of PFAS’s impact on public health, stakeholders should be cautious of settlement agreements that undervalue costs in return for short term money gains.

What exactly do experts know about “forever chemicals” and their impact on public health? The PFAS chemical class encompasses over 15,000 chemicals, many of which manufacturers have used in consumer products such as clothing, cookware, and food packaging.[4] Over 200 million Americans likely drink water from PFAS-contaminated sources, and PFAS persists in the human bodies for decades following exposure.[5] The Environmental Protection Agency (EPA) recognizes that peer reviewed studies have linked PFAS exposure to adverse impacts on reproductive health, child development, cancer risk, immune system and endocrine system performance, as well as cholesterol levels and obesity risk.[6] Meanwhile, the EPA also acknowledges that “thousands of PFAS with potentially varying effects and toxicity levels” will require more research to fully understand.[7]

Over the past decade, the federal government and states have taken decisive action to regulate PFAS. Since Congress passed the Infrastructure Investment and Jobs Act, states have received roughly $1 billion each year to remediate the harmful effects of PFAS and other emerging contaminants.[8] The EPA also established a safe drinking water limit for six PFAS compounds, requiring public water systems to monitor and comply with limits by 2029.[9] Further, certain states including Vermont and Maine have enacted legislation addressing upstream manufacture of PFAS by prohibiting its use in certain consumer products.[10] Meanwhile, hundreds of proposed bills related to PFAS regulation are currently pending in state legislatures across the country.[11] Given PFAS’s relatively recent emergence as a harmful chemical, litigators are reaching settlement agreements with remarkable speed.

PFAS settlement litigators should glean important lessons from previous mass tort settlements. In particular, the Tobacco Master Settlement Agreement (MSA) and the Opioid Purdue Pharma-Sackler Family Settlement Agreement provide insights for future mass tort litigators.[12] Key takeaways from these settlements suggest that litigators should (1) spend settlement funds on focused strategies to mitigate harm; (2) provide comprehensive awards to address past, present, and future harms; and (3) avoid overbroad liability shields barring future civil claims.

For example, the Tobacco MSA demonstrates the risks of broad settlement terms that do not require funds to be spent on mitigating harm. The 1998 Tobacco MSA provided $12.75 billion to plaintiffs over five years.[13] While these funds were “intended” to mitigate youth smoking, the settlements did not require state legislatures to spend settlement funds for these purposes.[14] This led to “a vast majority of the funds being spent on non-tobacco related matters.”[15] While the Tobacco MSA only included states (rather than individual plaintiffs), it did not preempt individual claims.[16]

Conversely, the Opioid Purdue Pharma-Sackler Settlement Agreement demonstrates the risks of undervaluing the costs of harm while providing overbroad liability shields against future claims. This settlement originally required the opioid manufacturer, Purdue Pharma, to provide $4.5 billion dollars for addiction treatment and prevention initiatives.[17] However, this agreement received a negative reaction from plaintiffs because it provided inadequate awards and attempted to shield Purdue Pharma’s owners (the Sackler family) from future civil liability.[18] The Supreme Court (in a 5-4 decision) remanded the agreement for further negotiation after finding that the settlement agreement’s liability shield for the Sackler family violated bankruptcy law.[19] This led parties to renegotiate the settlement, increasing the settlement amount to $7.5 billion while maintaining the Sackler family’s civil liability for future claims.[20]

What role, then, do legal settlements play at this early stage of our national PFAS response? First, unlike the Tobacco MSA, settlement agreements regarding PFAS should ensure that funds are used to mitigate pollution and health risks. However, these awards may be difficult to adequately quantify while public health experts are still uncovering the extent of PFAS’s harmful effects on the human body.[21] Second, settlements should contemplate awards that both fund public mitigation and compensate private damages. Settlement awards limited to remediating municipal water systems overlook communities’ harm from past, present, and future exposure. Finally, settlement negotiators should avoid overbroad shields to future liability, especially while the cost of exposure remains difficult to quantify. Settlement terms that undervalue damages while barring civil plaintiffs from exercising future legal action are a disservice to impacted communities.

Plaintiffs across the United States are already reaching settlements with PFAS manufacturers—notwithstanding scholars’ fledgling understanding of PFAS’s harmful effects. While this swift action reflects a growing national consensus regarding the risks of PFAS, the extent PFAS’s harmful effects is still an emerging research field. Litigators should be wary of closing the door to future civil claims until the public health and legal fields reach a firmer calculus to quantify the past, present, and future harms of PFAS.

[1] Lisa Friedman and Vivian Giang, 3M Reaches $10.3 Billion Settlement in ‘Forever Chemicals’ Suit, N.Y. Times, https://www.nytimes.com/2023/06/22/business/3m-settlement-forever-chemicals-lawsuit.html (last visited Oct. 14, 2025).

[2] Id.

[3] Clark Mindock, 3M DuPont PFAS Settlements Called Inadequate by Cities, Other Objectors, PFAS Project Lab, https://pfasproject.com/2023/11/15/3m-dupont-pfas-settlements-called-inadequate-by-cities-other-objectors/ (last visited Oct. 14, 2025).

[4] Symposium, The Environmental Justice Implications of PFAS, 54 Env’t L. Rep., 10911, 10911–12 (2024).

[5] Id. at 10912.

[6] Our Current Understanding of the Human Health and Environmental Risks of PFAS, U.S. Env’t Prot. Agency, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (last visited Oct. 15, 2025).

[7] Id.

[8] Memorandum from Marietta Echeverria, Director of Ground Water and Drinking Water to the EPA Regional Water Division Directors (June 17, 2025), https://www.epa.gov/system/files/documents/2025-06/fy25-ecsdc-funding-memo-final.pdf.

[9] Final PFAS National Drinking Water Regulation, U.S. Env’t Prot. Agency, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (last visited Oct. 14, 2025).

[10] Vt. Stat. Ann. § 2494; Me. Stat. tit. 38, § 1614.

[11] Noelle E. Wooten & Elizabeth Kaskins, States Step Up as Federal PFAS Regulations Retreat, BAKER DONELSON, https://www.bakerdonelson.com/states-step-up-as-federal-pfas-regulations-retreat (last visited Oct. 14, 2025).

[12] Kayla Ahmed, Settling for Less? An Analysis of the Use of Settlement Agreements to Mitigate Non-Communicable Diseases, 35 Geo. J. Legal Ethics 489, 493 (2022).

[13] Id. at 494.

[14] Id.

[15] Id.

[16] Id. at 495.

[17] Id. at 499–50.

[18] Id. at 450.

[19] Harrington v. Purdue Pharma, 603 U.S. 204, 227 (2024).

[20] Purdue Pharma, Sacklers Reach New $7.4 Billion Opioid Settlement, npr, https://www.npr.org/2025/06/16/nx-s1-5435318/purdue-pharma-sacklers-reach-new-7-4-billion-opioid-settlement (last visited Oct. 14, 2025).

[21] U.S. Env’t Prot. Agency, supra note 6.

A Civil Application of McGirt: What Could this Mean for Tribes?
By Lauren Burden

In McGirt v. Oklahoma, the U.S. Supreme Court held the Muscogee Creek lands were a reservation for purposes of the Major Crimes Act.[1] Specifically, this means that only the federal and tribal governments are allowed to try tribal members in court for criminal matters, not the state of Oklahoma.[2] States, however, are still allowed to prosecute non-Indian on non-Indian crimes within Indian country.[3] In holding this, the Court confirmed the Muscogee Creek Nation’s reservation “remains ‘Indian Country’”[4] and that once Congress creates a reservation, only Congress can disestablish it.[5]

But why is this important, and why do we care? By establishing that only Congress can make or break reservation status, McGirt validates the continued existence of the Muscogee Creek’s reservation––and their tribal self-governance[6]––even though Oklahoma has historically acted otherwise.[7]

A year later, in 2021, the Oklahoma appellate court applied this same analysis and extended reservation status to other tribes in State ex rel. Matloff v. Wallace and Grayson v. State. Matloff confirmed the continued existence of the Chickasaw, Choctaw, and Cherokee reservations,[8] while Grayson confirmed the Seminole reservation.[9] Other Tribes, such as the Miami, Ottawa, Wyandotte, Quapaw, and the Peoria, have also had their reservation status recognized.[10] This gave some tribes hope that their right to tribal self-governance would continue to be acknowledged, but the State of Oklahoma became fearful about future implications these rulings could create.[11]

Before tribes could get too excited, another case impacting Indian Country was decided in favor of the state of Oklahoma. In 2022, the 5–4 U.S. Supreme Court decided in Oklahoma v. Castro-Huerta that the State did have concurrent jurisdiction with the federal and tribal governments to prosecute non-Indian against Indian crimes in Indian Country after all.[12] The Court reasoned that State criminal jurisdiction in Indian Country stems from Indian Country being part of the state of Oklahoma.[13] Additionally, it reasoned that state jurisdiction is only preempted by explicit federal prohibition or by the state “unlawfully infring[ing] on tribal self-government.”[14] The Court noted the State’s exercise of criminal law could implicitly include the exercise of civil law in Indian Country.[15]

So why can’t McGirt also implicitly extend to civil matters and acknowledge tribal self-governance over civil violations within Indian Country? To answer this, one must first look to the civil limitations facing Indian Country today.

Tribal Courts used to have exclusive jurisdiction over “claims that arise in Indian Country [and] implicate Indian interests.”[16] In Williams v. Lee, the Court reasoned that allowing state jurisdiction over Indian Country would infringe on Indians’ right to govern themselves.[17] However, while not officially overturned, this idea was chipped away and replaced by the Court’s decision in Montana v. U.S.

In Montana v. U.S., the US Supreme Court held that Tribes do not have jurisdiction over non-Indians on reservation fee land (owned by non-tribal members) because regulating non-Indian hunting and fishing “bears no clear relationship to tribal self-government. . . [or] threatened the Tribe’s political or economic security as to justify tribal regulation.”[18] Because the Court did not consider the Tribe’s self-governance or integrity threatened, this meant that the Crow Tribe’s inherent sovereignty was limited regarding non-members on fee lands.[19] However, this case did establish some exceptions under which Tribes can hold non-Indians in tribal court for civil offenses.

Tribes retain inherent sovereign power to hold non-Indians in court for civil offenses for only two reasons. One, if the non-Indian entered a consensual relationship through commercial dealings (contracts, leases, etc.), then their activities can be tribally regulated via taxation, licensing, or other means.[20] Two, if a non-Indian’s conduct threatens or has a direct effect on the Tribe’s “political integrity, economic security, or health and welfare of the tribe” then the Tribe can exercise civil authority over them.[21] If either of these conditions is met, then a tribe may exercise its jurisdictional authority over a non-Indian. If we applied the Montana test to a tribe in Oklahoma, they would have to prove one of these two exceptions currently exists before they can exercise their tribal authority over a non-Indian to protect their people.

Hypothetically, let’s say there is a non-Indian upstream from the Choctaw Nation headquarters (located in Durant, Oklahoma) that is polluting the river with chemicals and runoff from their farm. This non-Indian lives within what is recognized now as the Choctaw Nation Reservation. Let’s say the Choctaw Nation has strict water pollution standards to ensure tribal health and safety via access to clean water. Under the Montana test, the Tribe must prove that this polluter either contracted with the Tribe (unlikely since the polluter seems to be a farmer that just lives in the area) or that they have threatened the Tribe politically, economically, or their communities’ health and welfare. The Tribe could argue that river pollution affects their drinking water, impacting tribal members’ health and welfare; therefore, the Tribe should be able to regulate water pollution within its reservation. However, the polluter could argue that the amount of pollution falls within the federal standards under the Clean Water Act, and therefore, even if he is violating Tribal regulatory law, he is within federal compliance, so Tribal law should not apply. This would then likely turn into very expensive litigation over whether the pollution really affects the tribe’s health and welfare. In contrast, under a civil application of McGirt, the Choctaws would be able to enforce their civil regulatory pollution standards without needing to prove tribal members are actually negatively impacted by the pollution. Therefore, a civil application of McGirt could allow Tribes to maintain and exercise their tribal self-governance over civil matters within Indian Country without having to go through the Montana test.

A recent Oklahoma case, Stroble v. Oklahoma Tax Commission, asked the State’s Supreme Court to do just that: extend McGirt to civil and regulatory law.[22] Here, the court specifically declined to extend McGirt to income taxes because it claimed the U.S. Supreme Court limited McGirt to “criminal jurisdiction under the Major Crimes Act.”[23] It reasoned Justice Gorsuch, while trying to calm the State’s fears, stated the only question before them in McGirt concerns what Indian Country means in a criminal law context.[24] Therefore, the Oklahoma Supreme Court claims it is bound by that ruling and cannot extend McGirt to civil law.[25] However, Stroble has petitioned the U.S. Supreme Court for certiorari as of October 1, 2025,[26] so there may be an explicit answer to this question soon.

[1] McGirt v. Oklahoma, 591 U.S. 894, 899–938 (2020).

[2] Id. at 934.

[3] Id. at 933.

[4] Id. at 913.

[5] Id. at 903-04.

[6] Id. at 902.

[7] McGirt v. Oklahoma, 591 U.S. 894, 913–24 (2020).

[8] State ex rel. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021).

[9] Grayson v. State, 485 P.3d 250, 254 (Okla. Crim. App. 2021).

[10] Kirke Kickingbird, The Jurisdictional Landscape of Indian Country After the McGirt and Castro-Huerta Decisions, Hum. Rts. Mag. Jan. 2023, at 10.

[11] The Court addresses Oklahoma’s concern that this ruling would extend to civil and regulatory law by stating “The only question before us, however, concerns the statutory definition of “Indian country” as it applies in federal criminal law under the MCA,” McGirt, 591 U.S. at 935.

[12] 597 U.S. 629, 656 (2022).

[13] Id. at 637-38, 649.

[14] Id. at 636-39, 649.

[15] Id. at 637; see Kickingbird, supra note 10.

[16] Montana v. U.S., DOJ Env’t and Nat. Res. Div., https://www.justice.gov/enrd/indian-resources-section/montana-v-us (updated June 6, 2023).

[17] 358 U.S. 217, 219 (1959).

[18] 450 U.S. 544, 546 (1981).

[19] Id. at 564-65.

[20] Id. at 565.

[21] Id. at 566.

[22] Matter of Stroble, No. 120,806, 2025 WL 1805918, at *3 (Ok. S.Ct. 2025).

[23] Id. at *4.

[24] Id.

[25] Id.

[26] Matter of Stroble, No. 120,806, 2025 WL 1805918 (Ok. S.Ct. 2025), petition for cert. filed, 25-382 (U.S. Oct. 1, 2025).

Insulating Our Own: How Zoning Code Updates Can Reduce Heat Deaths in Maricopa County, Arizona
By Grace McGuire

Spikes in summer temperatures leave urban dwellers across the globe in search of relief from heat exposure.[1] Desert regions like Arizona’s Maricopa County must address extreme heat through strategic zoning to protect marginalized populations from heat exposure and plan for a cooler urban future.

Arid urban areas experience compounded heat exposure because of their desert climates.[2] Arizona’s Maricopa County receives six months of extremely high heat; the metropolitan area undergoes 111 days of temperatures over 100°F.[3] Exposure to persistent heat can be deadly—in 2024, the Maricopa County Department of Public Health reported 608 heat-related deaths.[4] Over half of these deaths were among people aged 50 or older, and most occurred outside.[5] The prevalence of heat-related deaths is not region-specific; heat waves are the leading cause of all weather-related deaths worldwide.[6]

All cities retain more heat than natural landscapes. Unlike rural spaces where vegetation releases radiant heat through evapotranspiration, cities bake like dense ovens.[7] Building materials like concrete, brick, asphalt, and roof shingles absorb radiant energy from sunlight and store this energy at a higher rate than natural surfaces.[8] Cities become like “heat islands” because the built environment retains more heat than surrounding areas.[9] City-dwellers contribute to Urban Heat Island Effect while trying to avoid it—vehicles, air-conditioning units, buildings, and industrial facilities all emit even more heat into the urban environment.[10]

Maricopa County provides a valuable case study for desert cities experiencing negative public health impacts from the Urban Heat Island Effect (UHI).[11] Researchers in Maricopa County studying heat deaths report three factors that influence an individual’s risk of heat casualty: (1) socioeconomic vulnerability, (2) elderly age and isolation, and (3) lack of vegetation.[12] These factors reveal financial resources (and the resulting access to housing, transportation, and amenities), nearby family or community members, and proximity to vegetative surfaces are powerful indicators of an individual’s resilience to heat-related death. While individual wealth is not a valid zoning-reform target,[13] zoning strategies can target the remaining two factors.

Heat “overlay zones” can enhance existing Euclidean zoning requirements by imposing new measures on development that target heat island effect.[14] For Maricopa County, such new measures should include increased vegetation through urban forestry and bonuses for developers creating low-income housing developments that prioritize communal green spaces. These two features would address two of the most relevant factors to heat-related deaths in the County.[15]

Maricopa County can create overlay zones by acting within the County’s state-granted zoning authority and in accordance with a comprehensive plan.[16] Notably, the County’s existing 2016 Plan is due for an update. Arizona State law requires the County to renew its comprehensive plan every ten years.[17] The County’s new comprehensive plan must coordinate with other existing municipal partners, namely cities existing within the County.[18]

One of the County’s municipal partners is the City of Phoenix. Phoenix is the largest city located within Maricopa County and currently has an action plan called “Shade Phoenix.“[19] Shade Phoenix recommends applying “$60 million in public and private investments . . . [to plant] 27,000 new trees and 550 new shade structures in Phoenix.”[20] By acknowledging the role that shade plays in preserving lives[21] the City of Phoenix has begun the task of implementing trees and shade structures into the urban landscape.

Maricopa County can work in concert with the City of Phoenix by adopting its own goals for increased vegetation through a zoning overlay district. Because the County is poised to adopt a new comprehensive plan, the County government can apply existing data on heat deaths[22] to influence policymaking targeting Urban Heat Island effect. After the County’s new comprehensive plan is in place in 2026, Maricopa County can require developers to plant a certain percentage of shade trees along sidewalks, setbacks, and medians, or require new construction to include a percentage of green space.[23]

The County can address disproportionate heat risks affecting isolated elderly people in urban areas by applying a “density bonus” for low-income and elderly housing developments that prioritize greenspace. Density bonuses are incentives for developers to build more units than would ordinarily be permitted by the underlying zoning district.[24] Bonuses allow local governments to achieve affordable housing goals by allowing high density buildings within designated zones. For example, California enabling legislature encourages low-income housing by mandating specific standards for California cities and counties in awarding density bonus applications to developers installing affordable units.[25] Affordable housing can provide elderly adults with a network of daily social interactions[26] and lessen the risk posed by extreme urban heat by bolstering social networks.[27] Maricopa County should create similar density bonuses to aid in the County’s public health heat strategy.

Density bonuses and Heat Island overlay zones are useful strategies in Maricopa County’s fight against heat deaths. These tools allow the County to address the heat risks faced by isolated, elderly populations by increasing vegetative cover and incentivizing dense, low-income housing communities. Maricopa County’s unique desert climate and modern urban infrastructure beget creative heat strategies that promote public health, safety, and welfare.[28] In doing so, the County can provide an example for other arid cities facing necessary code updates in the face of rising temperatures.

^[1] Sharon L. Harlan et al., Neighborhood Effects on Heat Deaths: Social and Environmental Predictors of Vulnerability in Maricopa County, Arizona, 121 Env’t Health Persp. 197, 197 (2013) (noting most heat-related deaths occur in cities).

[2] Zachary W. Dichtl, Building Codes and Urban Heat Island Effect: An Analysis of the Impact of Building Codes on Temperature in Phoenix at the ZIP Code Level 29 (2023) (Graduate thesis, Ohio State University) (available at https://etd.ohiolink.edu/acprod/odb_etd/etd/r/1501/10?clear=10&p10_accession_num=osu1689928033715864).

[3] Id.

[4] Maricopa Cnty. Pub. Health, 2024 Heat-Related Deaths Report (2025) https://www.maricopa.gov/ArchiveCenter/ViewFile/Item/5934.

[5] Id.

[6] Dichtl, supra note 2, at 10.

[7] Jay S. Golden, The Built Environment Induced Urban Heat Island Effect in Rapidly Urbanizing Arid Regions – A Sustainable Urban Engineering Complexity, 1 Env’t Sci. 321, 327 (2003).

[8] Id.

[9] What Are Heat Islands?, EPA, https://www.epa.gov/heatislands/what-are-heat-islands (last visited Oct. 12, 2025).

[10] Id.

[11] Dichtl, supra note 2, at 9.

[12] Harlan et al., supra note 1, at 200.

[13] Thomas J. Albertson, Sustainable Housing in Three Steps Including Heat Island Overlay Zones, 39 J. Env‘t L. & Litig. 289, 297 (2024) (noting spot zoning is impermissible rezoning).

[14] Id.

[15] Harlan et al., supra note 1, at 200.

[16] Ariz. Rev. Stat. § 11–811(A).

[17] What Is a Comprehensive Plan?, Maricopa County, https://framework2040.com/about/ (last visited Oct. 12, 2025).

[18] Id.

[19] Shade Phoenix: An Action Plan for Trees and Built Shade, City of Phoenix (2024) BP_ShadePhoenixPlan_Report_031025_EN.pdf.

[20] Id. at 12.

[21] Id. at 4.

[22] Harlan et al., supra note 1, at 200.

[23] Albertson, supra note 13 at 328.

[24] Density Bonus, Inclusionary Housing, https://inclusionaryhousing.org/designing-a-policy/land-dedication-incentives/density-bonus/ (last visited Oct. 12, 2025).

[25] Cal. Gov’t Code § 65915 (a)(1) (Deering 2025).

[26] Housing for America’s Older Adults: Four Problems We Must Address, Harv. Joint Ctr. for Hous. Stud. (Aug. 18, 2022), https://www.jchs.harvard.edu/blog/housing-americas-older-adults-four-problems-we-must-address.

[27] Jessica Kutz, Social Isolation May Be Why Older Men Are Dying from Extreme Heat, Harv. Pub. Health (Oct. 15, 2024), https://harvardpublichealth.org/mental-health/social-isolation-may-be-why-older-men-are-dying-from-extreme-heat/.

[28] Ariz. Rev. Stat. § 11–811(A).

From Due Diligence to Circularity: Why America must Follow the European Union’s lead on EV Batteries
By Lakshita Dey

The electric vehicle (EV) revolution promises a cleaner future but has exposed a new environmental and ethical dilemma. Essential battery materials, lithium, cobalt, and nickel, are mined under conditions frequently criticized for environmental harm and human rights violations.[1] The mining and refining of these raw materials results in toxic chemicals from lithium extraction and widespread long-term pollution from nickel production.[2] Further, concerns regarding poor working conditions, child labor, and human rights violations, particularly in the cobalt mining in the Democratic Republic of the Congo, highlight the need for reform.[3] Addressing these challenges requires a legislative response that mandates transparency in sourcing and extraction of these raw materials. This solution compels the creation of a circular battery economy—a regenerative system that minimizes resource input and waste.[4]

Due diligence laws serve as the global forefront for mitigating these risks. Laws like the European Union’s (EU) due diligence requirements ensure that companies do not contribute to conflict and respect the environment and human rights.[5] These powerful laws harness the vast consumer market to ensure global accountability for environmental and social impacts of the battery value chain.[6] The regulations adopt a value chain[7] perspective to address all activities, from the raw materials stage to the end-of-life of a product. These measures ensure that products are sourced and manufactured in a sustainable manner and contribute to curbing carbon emissions on a global level.[8]

The EU’s Batteries Regulation compels any company placing batteries on its market to comply with a set of requirements spanning the entire battery life cycle.[9] This is not a passive request; it is a legal obligation that includes due diligence policies to identify, assess, and mitigate social and environmental risks across the entire supply chain. Additionally, the regulation introduces requirements such as waste collection and recycling for circularity, carbon footprint declaration and minimum performance for sustainability, and battery passports[10] to support traceability.[11]

Moreover, Extended Producer Responsibility provisions bolster the comprehensive framework of due diligence laws by increasing waste collection and recycling.[12] Specifically, this mechanism establishes a division of responsibility that extends to the post-consumer phase of the product life cycle.[13] The legal emphasis on due diligence effectively formalizes the concept of Corporate Social Responsibility, highlighting the profound responsibility business and industry must assume to contribute to sustainable development and inclusive human well-being.[14]

Relying solely on due diligence laws, however, fails to solve the long-term resource problem. An environmentally friendly battery future demands legal instruments that alter how batteries are designed, manufactured, and used, and disposed of. The legislature must ultimately focus on advancing a circular economy for batteries through aggressive, product-based mandates. It creates value that is not only economic but also environmental and societal by designing waste out of the system and decoupling economic activity from the consumption of finite resources.[15]

First, the legislature must create an economic pull for recycled materials. The EU Batteries Regulation creates an economic pull by mandating minimum percentage thresholds[16] for recycled content in new batteries.[17] These thresholds establish an obligation for manufacturers to incorporate a minimum percentage of these materials, sourced from recycled waste, into the composition of new batteries.[18] Recycling batteries is a promising solution to resource scarcity and supply chain risks. This process recovers valuable materials, creating a circular economy.[19] Recovering these valuable materials makes a circular system a more economically viable alternative to rising raw material costs. Recycling is key to providing a more reliable and affordable supply of materials and creating a market demand for secondary materials.

The American government could create a similar market pull by mandating minimum recycled content quotas for battery materials sold or manufactured in the U.S. Legally, this could be enacted using Congress’s Commerce Clause[20] authority to regulate interstate and international trade,[21] or by the Environmental Protection Agency (EPA) using its powers under statutes like the Resource Conservation and Recovery Act.[22] The mandate could initially target government-funded projects to establish demand for recycled materials. This leverages federal spending power to create a “captive market,” thereby mitigating the initial risk for recyclers and manufacturers.[23] Requirements could then be expanded to the entire market through nationwide regulations, modeling the EU’s approach.

Second, the government should promote technological advancements that enhance design and durability, extend the battery’s useful life, and facilitate its reuse. EU regulation requires EV batteries to be easily removable and replaceable by qualified professionals.[24] This simple legal requirement prevents the premature scrapping of entire vehicle components due to a single battery issue.[25] More significantly, it unlocks the second-life market, allowing used EV batteries to be repurposed for stationary energy storage.[26]

The U.S. legislature can promote similar technological advancements by requiring standardized battery modules. This would mandate EV batteries to be easily accessible for removal and replacement, providing documentation to third-party professionals.[27] Congress could create a dedicated “right to repair” framework for EV batteries, drawing on the Commerce Clause to set national manufacturing and warranty standards.[28] This would facilitate reuse in a second-life market, effectively extending the battery’s utility, and delaying the need for recycling.

Third, the legislature should utilize information transparency as a legal tool for environmental performance. For example, the EU “Battery Passport” is a digital record containing the battery’s composition, state of health, and manufacturing carbon footprint.[29] Requiring manufacturers to declare a battery’s carbon footprint creates a performance standard. The digital traceability provides data for recyclers to efficiently process batteries. The record also gives consumers and regulators a clearer picture of a product’s true environmental cost.[30] This disclosure paves the way for future legislation to impose mandatory maximum CO₂ equivalent limits, driving companies toward low-carbon manufacturing processes.

To adopt the EU’s transparency mandate, the U.S. can leverage existing legal authority. The Inflation Reduction Act (IRA) provides a foundation, as its consumer tax credits require proof of EV battery sourcing.[31] A mandatory digital tracing system is the most effective way to ensure compliance with these IRA mineral requirements. Additionally, a mandate for product-level carbon disclosure can be rooted in the power of the EPA. Requiring manufacturers to disclose a battery’s carbon footprint establishes a baseline that allows for future laws to mandate carbon limits and incentivize low-carbon production.[32]

Ultimately, creating a truly circular battery economy is the essential next step for a sustainable EV revolution. While domestic due diligence laws provide a critical foundation by addressing immediate supply chain ethics, they are only a partial solution. An aggressive, product-based legislative agenda is essential for long term environmental and resource security. By enacting policies that mandate design choices, set recycled content floors, and enforce digital transparency, the American government can mirror and enhance the EU’s comprehensive framework. Only by leveraging the full power of law to govern the entire life cycle can the EV revolution deliver on its promise of a sustainable future.

[1] Mohamed Amer et al., Critical Materials for EV Batteries: Challenges, Opportunities, and Policymakers, 3 Int’l J. Elec. Eng’g & Sustainability 119, 127 (2025).

[2] Elvira Sten, Can Batteries Really be “Green”? A Study of Value Chain Due Diligence Obligations in Response to Social and Environmental Problems Associated with Production 1, 20–22 (2023) (Master’s Thesis, Uppsala University) (located at https://www.diva-portal.org/smash/get/diva2:1787282/FULLTEXT01.pdf).

[3] Id.

[4] Fabio Carnazzola & Alfredo Guerra, Drivers and Barriers for Implementing Circular Business Models in the Electric Mobility Industry, 10 (2020) (Master of Science Thesis, Politecnico di Milano) (located at https://www.politesi.polimi.it/retrieve/a81cb05d-9373-616b-e053-1605fe0a889a/2020_04_Carnazzola_Guerra.pdf).

[5] Sten, supra note 2, at 44.

[6] Id. at 29.

[7] Id. at 8 (defining value chain as…).

[8] Id. at 44, 50.

[9] Id. at 27–29; Regulation (EU) 2023/1542 of the European Parliament and of the Council of 12 July 2023 Concerning Batteries and Waste Batteries, amending Directive 2008/98/EC and Regulation (EU) 2019/1020 and repealing Directive 2006/66/EC, 2023 O.J. (L 191) 1.

[10] Sten, supra note 2, at 26–27. A battery passport is a set of information, making, and labeling requirements introduced to improve traceability and transparency in the value chain. It is also used to indicate a battery’s sustainability in terms of material composition, recycled content, and carbon footprint.

[11] Id.

[12] Id.

[13] Id. at 29.

[14] Id. at 32–34.

[15] Carnazzola & Guerra, supra note 4, at 10.

[16] Quentin Hoarau & Etienne Lorang, An Assessment of the European Regulation on Battery Recycling for Electric Vehicles, 162 Energy Pol’y 1, 4 (2022). The definition of a minimum percentage threshold is the legislative requirement established to set a mandatory minimum content of recycled material that must be incorporated into new batteries manufactured after 2030.

[17] Id.

[18] Id. at 1, 4, 7, 8.

[19] Esra Kilavuz, Sustainable Lithium-Ion Battery Recycling: Challenges, Innovations, and Pathways to a Circular Economy, 2 ACS Sustainable Res. Mgmt. 1838 , 1852 (2025) https://doi.org/10.1021/acssusresmgt.5c00408.

[20] U.S. Const. art. I, § 8, cl. 3.

[21] See generally Christine A. Klein, The Environmental Commerce Clause, 27 Harv. Envt’l L. Rev. 1 (2003); United States v. Lopez, 514 U.S. 549 (1995) (identifying three broad categories of activity that Congress may regulate under its Commerce Clause authority, which includes regulating the channels and instrumentalities of interstate commerce)

[22] 42 U.S.C. §§ 6901-6992k (2018).

[23] See Comprehensive Procurement Guideline (CPG) Program, US EPA, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program; see also Federal Procurement: Government Agencies’ Purchases of Recycled-Content Products Before the S. Comm. On Env’t and Pub. Works, 107th Cong. (2002) (detailing the mandate for procuring agencies to have an affirmative procurement program for recycled content).

[24]From Production to Recycling: A Comprehensive Guide to the New European Battery Regulation 2023/1542, Flash Battery (May 14, 2025), https://www.flashbattery.tech/en/blog/eu-battery-regulation-obligations-updates/.

[25] Id.

[26]            “The recycling process of a lithium-ion EV battery involves significant energy costs and can represent a missed opportunity to repurpose the EV battery for other applications. The concept of ‘second life’ applications for electric vehicles has gained global traction, aligning with the principles of a circular economy. By extending the lifespan of lithium-ion batteries beyond automotive use, we not only reduce the demand for raw materials, but also optimize the value chain of energy storage.”
Tommaso Reschiglian et al., Repurposing Second Life EV Battery for Stationary Energy Storage Applications, Proceedings of 2024 IEEE PES Innovative Smart Grid Technologies Europe (ISGT EUROPE) (2025).

[27] Leah C. Grinvald & Ofer Tur-Sinai, Smart Cars, Telematics, and Repair, 54 u. mich. j.l. reform 283, 285, 291–92 (2021); Emanuele S. Putrino, Tesla, Let me Fix My Car: The Right to Repair and the Need for a Balance Between Public and Private Enforcement, 76 Okla. L. Rev. 351, 369 (2024).

[28] Robert W. Gomulkiewicz, Considering a Right to Repair Software, 37 Berkeley Tech. L.J. 943, 956–958 (2022).

[29] Unlocking the Value of the EU Battery Passport, Battery Pass 3–4 (2024), https://thebatterypass.eu/assets/images/value-assessment/pdf/2024_BatteryPassport_Value_Assessment.pdf; Sten supra note 2.

[30] Id.

[31] Levi McAllister, Industry Takeaways from IRS Guidance On EV Tax Credits, LAW360 (Jan. 13, 2023) https://www.law360.com/articles/1564855/industry-takeaways-from-irs-guidance-on-ev-tax-credits; John B. (Jack) Lyman, Electric Vehicles, Charging Get Jolt from Inflation Reduction Act, 23 Pratt’s Energy L. Rep. 88 (2023); 26 U.S.C. § 30(d).

[32] Gwyneth Gordon, The Impact of the EPA Mandate Requiring Public Reporting of Greenhouse Gas Emissions on Firms’ Climate-Related Disclosures, 3 (2023) (B.A. thesis, University of Arizona) (located at https://repository.arizona.edu/handle/10150/668609). This parallels the EPA’s Greenhouse Gas Reporting Program, a law that established a mandatory, facility-wide data baseline for emissions. That baseline can now be used as a precursor to corporate disclosure best practices, future targeted regulations, and incentives for cleaner industrial practices.

Institutionalizing Environmental Extortion: Why Jobs Projections Don’t Belong in Environmental Permitting Applications
By Kathryn LaMontagne

In the foundational environmental justice text From the Ground Up Luke Cole and Shiela Foster define Environmental Extortion as communities making the “tradeoff between jobs and health.”[1] In the text they discuss harmful industry’s targeting of communities of color by promising increased employment opportunities.[2] What plays out in this scenario is not a good faith negotiation, it is extortion, and the jobs do not follow.[3]

When industry saturates a community few if any jobs are created, and fewer go to the affected community members.[4] Despite this, agencies still consider the amount of jobs an industry is projected to bring to the community, when reviewing a permit application.[5] These jobs projections are generally unreliable and in Environmental Justice contexts they have an additional history of being used to prey on communities.[6] Agencies acceptance of jobs projections in Environmental Assessments (EA) and Environmental Impact Statements (EIS) legitimize and institutionalize these speculative and predatory reports.

When harmful industry players apply for permits to operate, they often present jobs projections in their application.[7] These projections are considered “socioeconomic benefits” for the community. [8] The alleged benefits are weighed against environmental harms a community will face by hosting the industrial facility. [9] In an area of Louisiana known as “Cancer Alley” petrochemical companies also receive massive tax breaks for their alleged “job creation.”[10]

In Cancer Alley the state subsidized petrochemical industry does not deliver on promised “socioeconomic benefits” to residents of the majority Black area.[11] According to a recent report by Tulane University’s Environmental Law Clinic about hiring practices in the petrochemical industry; “[p]eople of Color were consistently underrepresented among the highest-paying jobs and overrepresented among the lowest-paying jobs in both subsectors.”[12] Petrochemical industry players claim their unequal hiring practices are a result of educational disparity, yet there is almost no racial educational gap in the Cancer Alley area.[13] This data supports what Cancer Alley community members have long spoken out against, that they are left with all the harm and none of the benefit of harmful industry in their backyard.[14]

Across the country, pollution remains in targeted communities while even the promised socioeconomic benefits are extracted.[15] The extraction of promised benefits through racially unequal hiring practices is also not unique to the petrochemical industry in Louisiana, it is repeated across the country.[16] In the top thirty petrochemical producing states, people of color were “underrepresented in all of the highest paying jobs,” and were largely overrepresented in the lower paying jobs.[17]

The recent Tulane report seems to echo the famous United Church of Christ’s 1987 report which stated race as the number one predictor of where hazardous waste facilities will be located, regardless the community’s socioeconomic status.[18] According to the Tulane report race is a strong a predictor in exposure to common pollutants and toxic chemicals, with people of color being more likely to be exposed than whites.[19] All the while more harmful industry is trying to enter already overburdened communities like Cancer Alley. Polluters continue to request permits touting alleged “job projections” as a socioeconomic benefit to their presence.[20]

The Tulane study confirms that industry player’s job projections are not predictive of actual benefit to the communities.[21] Even outside of instances of environmental racism, job predictions are not reliable. [22] Job predictions are often inflated political tools that produce little benefit to people in need of jobs.[23] Despite the clear evidence that harmful industry does not provide jobs to the community members who their industry burdens, job projections continue to be considered by agencies and courts reviewing permit applications.[24]

The Bureau of Land Management has gone so far as to publish an online guide that gives instructions on how to include jobs projections in an Environmental Assessment or Environmental Impact Statement.[25] The guide states that a regional impacts analysis can be measured by either jobs or economic output.[26] The guide recommends applicants “emphasize cause-effect relationships,” the example they provide is: “mineral leasing can generate revenue and provide local employment opportunities.”[27] While the guide does make a point to distinguish the “value” that certain jobs may bring over others, there is no requirement that applicants ensure any projected jobs go to members of affected communities.[28]

Communities who seek justice in the courts by resisting permitting applications bolstered by speculative jobs reports will find little relief. In a recent Supreme Court case, Seven County Infrastructure Coalition v. Eagle County., the Court held that when reviewing a NEPA case, courts should give substantial deference to a federal agency’s decision.[29] It goes on to summarize the NEPA review process as agencies making a series of “fact-dependent, context-specific, and policy-laden choices.”[30] These choices include speculative jobs reports, which are presented as facts and not mere speculation.[31] Agencies already give deference to private enterprises applying for permits.[32] Because the Court gives deference to agencies who enshrine speculative jobs reports as fact, Environmental Extortion has become just another procedural aspect of project approval.

Agency consideration of speculative jobs projections has validated and institutionalized the practice of Environmental Extortion. Job projections are both predatory and unreliable and should not be included in Environmental Assessments or Environmental Impact Statements.[33] Agencies should not consider speculative jobs projections against the known harms of pollution.[34]

[1] Luke C. Cole & Shiela R. Foster, From the Ground Up 77 (2001).

[2] Id.

[3] Id. at 78.

[4] Id.

[5] BLM Socioeconomics Program, Desk Guide: Socioeconomic Aspects of Planning and NEPA 13–15 (Aug. 2024); NEPA and Project Development, U.S. Dep’t. of Transp. Fed. Highway Admin. (Feb. 21, 2018), https://www.environment.fhwa.dot.gov/nepa/Travel_LandUse/forecasting_reviewer_guidance.aspx?AspxAutoDetectCookieSupport=1.

[6] Cole & Foster, supra note 1; James Hohman, Front Page Failures: State Subsidy Deals Only Created 1 out of 11 Jobs Promised in Headlines (2024) https://www.mackinac.org/archives/2024/s2024-14.pdf.

[7] Cole & Foster, supra note 1; BLM supra note 5.

[8] Id.

[9] Id.; BLM supra note 5.

[10] Tristan Baurick, In Louisiana’s ‘Cancer Alley,’ Black Communities Get All of the Pollution, Few of the Jobs, Grist (Apr. 17, 2025) https://grist.org/equity/in-louisianas-cancer-alley-where-black-communities-get-all-of-the-pollution-few-of-the-jobs/.

[11] Kimberley Terrell, Gianna St. Julien, & Michael Ash, Pervasive Racial and Ethnic Disparities in the U.S. Petrochemical Workforce, 235 Ecological Econ. 2 (2025).

[12] Id. (emphasis in original).

[13] Id.

[14] Jarvis DeBerry, The Tax Breaks For Jobs Scheme Isn’t Working Out For Louisiana, La. Illuminator (Jun. 18, 2021), https://lailluminator.com/2021/06/18/the-tax-breaks-for-jobs-scheme-isnt-working-out-for-louisiana-jarvis-deberry/.

[15] Terrell, supra note 11.

[16] Id.

[17] Id.

[18] Bunyan Bryant & Paul Mohai, Race and the Incidence of Environmental Hazards 163 (1992).

[19] Terrell, supra note 11.

[20] Formosa Selects St. James Parish for $9.4 Billion Louisiana Project, Greater New Orleans Reg’l Econ. Dev. Inc. (Apr. 23, 2018), https://gnoinc.org/news/formosa-selects-st-james-parish-for-9-4-billion-louisiana-project/; Nate Perez & Ryal Kellman, Over-Polluted Communities Vow to Fight Despite EPA’s Rollback on Environmental Justice, NPR (June 2, 2025) https://www.npr.org/2025/05/23/nx-s1-5366617/over-polluted-communities-fight-despite-epa-rollback-environmental-justice.

[21] Terrell, supra note 11.

[22] Hohman, supra note 6.

[23] Id.

[24] Navigation and Navigable Waters, 33 U.S.C. §320.4(q); Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 608 U.S. 168, 173 (2025).

[25] BLM supra note 5.

[26] Id. at 13.

[27] Id. at 7.

[28] Id. at 15.

[29] Seven County, 608 U.S. at 180.

[30] Id. at 1513.

[31] BLM supra note 5.

[32] 33 U.S.C. §320.4(q)

[33] Hohman, supra note 6; Cole & Foster, supra note 1.

[34] Hohman, supra note 6.

Conservation Easements Perpetuate Inequitable Land Holdings
By Jill Reynolds

Conservation easements reinforce inequitable land holdings. Such easements are conservation tools utilized exclusively by private landowners.[1] For tax benefits, private landowners sell their parcels’ development rights to either a land trust or government entity.[2] The land trust or government holds this conservation easement and must enforce it in perpetuity.[3] The private land owner can no longer develop the property conserved under the easement, nor can any subsequent owner of that land.[4] While workable in theory, this model of land conservation unduly burdens subsequent owners, benefits predominately white land owners pursuing white conservation goals of exclusion and purity,[5] and prevents the public from accessing taxpayer-funded, conserved lands.

Conservation easements stand apart from all other constructions of modern property law.[6] They stand in opposition to the rule against perpetuities by allowing a tract of land to remain undeveloped forever.[7] While an individual landowner cannot pass their land down to their heirs in perpetuity, the conservation easement is permanent.[8] This poses a number of problems. For one, enforcement. Most violators of conservation easements are third parties, meaning parties that were not involved in the original conservation easement transaction.[9]

Indeed, the main benefactor from the conservation easement is the original landowner who sells their development rights. Why is this an issue? Landowners in the U.S. are overwhelmingly white. The top one percent of landowners own forty percent of non-home real estate and the top ten agricultural landowners––who are all white––own more agricultural land than all other racial minorities combined.[10] Additionally, land and home ownership are the most consistent building blocks of generational wealth.[11] In sum, majority white landowners benefit from the reduction of taxes from the conservation easement while restricting the future development of the land.

The conservation values embedded in easements are also at odds with long-held Indigenous ways of land stewardship.[12] The former values reflect privatization, exclusion, and the mindset that the only way to protect land is to keep people off it and keep the land unchanged.[13] The latter values adaptation, reciprocity, and a dynamic push and pull between people and land.[14] The U.S. landscape has been managed by Indigenous peoples for millennia, through methods like controlled burns, forestry practices, and fishing traps.[15] With the limiting language of conservation easements, all these practices that benefit the landscape are labeled as development and therefore forbidden. In turn, white colonialist ideologies that the country was founded on continue in perpetuity. Here, development can mean any human interaction with the land, ecologically minded or not. This is not the type of land management we need or want, especially as the climate becomes increasingly unpredictable and adaptation is vital to survival.

Further, conservation easements benefit private landowners on the public’s dime. The government is involved in every conservation easement transaction.[16] Federally, the U.S. Department of Agriculture (USDA) funds millions of dollars to directly purchase conservation easements.[17] Similarly, state governments fund these transactions through appropriations funds like country conservation funds.[18] Indeed, some state tax programs are more expansive than the federal tax code.[19] Government agencies may act as a de facto, back-up holder when enforcing the conservation easement in the name of the public interest from which the funds are derived.[20] If the conservation easement is enacted in the name of the public interest, from public funds, why doesn’t the public have access to this land? Because it is private property. Private property, secured by reproducing the original white settler, colonist paradigm of forcing Indigenous Peoples off their own land.

Another drawback is that many agencies and NGOs focused on conserving land have turned primarily towards conservation easements instead of other conservation programs like fee acquisition.[21] Instead of outright owning the land, the land trusts focus on securing development rights and keeping people off the land. This creates a tunnel vision effect, with land trusts pledging most of their funding towards conservation easements instead of experimenting with different land tenure arrangements outside the dominant paradigm.[22]

Conservation easements, while created for the right reasons, fail to reflect best land stewardship practices, keep the public off lands conserved in their interest, and perpetuate land and wealth inequities. Like most tools of property law, those with the most wealth and influence will always benefit most from land tenure strategies designed to help those without privilege.[23] Conservation easements are suited for some contexts, but new legal tools that allow for dynamic land stewardship and conservation are needed.

[1] Conservation Easements, Ctr. for Agric. & Food Sys., https://farmlandaccess.org/conservation-easements/ (last visited Oct. 30, 2025).

[2] Id.

[3] Id.

[4] Id.

[5]Amath Diouf, Challenging the White Narrative of Conservation, MBC (July 26, 2020), https://www.melaninbasecamp.com/trip-reports/2020/7/1/challenging-the-white-narrative.

[6]  Roger Colinvaux, Conservation Easements: Design Flaws, Enforcement Challenges, and Reform, Utah L. Rev. 755 (2013).

[7] Rule Against Perpetuities, Legal Info. Inst., https://www.law.cornell.edu/wex/rule_against_perpetuities (last visited Oct. 12, 2025).

[8] Conservation Easements, Ctr. For Agric. & Food Sys., https://farmlandaccess.org/conservation-easements (last visited Oct. 30, 2025).

[9] Jessica. E. Jay, Enforcing Perpetual Conservation Easements Against Third-Party Violators, 32 UCLA J. Envt’l L. Pol’y 80 (2014).

[10]Jacob Waggoner, Land of the Free or Land of the Few? Harv. Mellon urban initiative, https://mellonurbanism.harvard.edu/rules-engagement-forming-guidelines-design-schools-working-marginalized-communities (last visited Oct. 12, 2025).

[11] Id.

[12] Note, the author is not pro-development in the capitalist industrial sense. They do not want to see all undeveloped land turned into strip malls. However, there is very little middle ground in terms of land stewardship within a conservation easement.

[13] See Robin Wall Kimmerer, Braiding Sweetgrass (2013).

[14] Id.

[15] Kathleen Ciola Evans & Eva Perry, The Role of Indigenous Knowledge and Land Management Practices in Conservation, Univ. Md. Dept. of Entomology, https://entomology.umd.edu/news/the-role-of-indigenous-knowledge-and-land-management-practices-in-conservation (last updated Mar. 4, 2022).

[16] Jess Phelps, Understanding the Role of Government in Conservation Easement Transactions, 100 Denver L. Rev. 721 (2023).

[17] Id. at 744.

[18] Id.

[19] Id. at 743.

[20] Id.

[21] Id. at 732.

[22] Levi Van Sant et. al., Conserving what? Conservation Easements and Environmental Justice in the Coastal U.S. South, 14 Hum. Geography 31, 33 (2021).

[23] Id. at 33–34.

How ICE Raids Impact the Enforcement of Labor Rights for Migrant Farmworkers
By Grace Cunningham

Migrant farmworkers are the backbone of the U.S. agricultural industry, providing essential work from planting and harvesting to caring for livestock. In 2020–2022, only 32 percent of crop farmers were U.S.-born.[1] This workforce faces many vulnerabilities despite the critical role it plays in our food systems. Labor rights protections, such as those provided under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the National Labor Relations Act (NLRA), are designed to safeguard these workers from exploitation.[2] Yet, the increasing frequency of Immigration and Customs Enforcement (ICE) raids have created a climate of fear and uncertainty that render statutory labor protections largely ineffective, revealing a need for immigration and labor policies that prioritize worker safety and rights over punitive enforcement.[3]

Legal Protections for Migrant Farmworkers

The MSPA establishes critical protections for migrant and seasonal farmworkers. This includes requirements for fair wage payment, compliance with work arrangements, and prohibitions on retaliatory actions such as termination, blacklisting, or threats of deportation.[4] These provisions aim to address the inevitable power imbalance between migrant workers and their employers, ensuring that farmworkers can work under safe and nondiscriminatory conditions.[5] Courts have interpreted the MSPA to apply broadly to ensure protection of these workers, regardless of their immigration status. In Phillip D. Bertelsen, Incorporated v. Agricultural Labor Relations Board, the Court held that undocumented status did not preclude farmworkers from receiving backpay.[6] Similarly, in Martinez v. Shinn, the Court upheld damages for wage misrepresentation and retaliation under the MSPA, highlighting the Act’s central role in addressing exploitation of migrant labor.[7] Finally, in Eliserio v. Floydada House Authority, the Court reaffirmed Congress’s intent to make the MSPA accessible to migrant workers by denying a motion to transfer venues.[8] Together, these cases demonstrate the judiciary’s recognition that the MSPA must be construed liberally to ensure meaningful protection for migrant farmworkers.

Similarly, the NLRA extends protections to all “employees,” including undocumented workers, as established in Sure-Tan, Inc. v. NLRB.[9] Although later decisions, such as Hoffman Plastic Compound, Inc. v. NLRB, limited available remedies for undocumented workers, the Court still reaffirmed that they are entitled to the same protection against unfair labor practices.[10] These statutory frameworks create enforceable rights, regardless of immigration status, that ICE raids undermine.

The Impact of ICE Raids on Labor Rights Enforcement

ICE raids disrupt the enforcement of labor rights in several different ways. First, the fear of detention or deportation discourages workers from reporting any labor violations or asserting their rights. This effect is particularly pronounced in industries where undocumented workers make up a significant portion of the workforce. In 2020–2022, the U.S. estimated that 40 percent of all crop farmers were undocumented or lacked legal immigration status.[11] Workers are likely to avoid filing complaints on wage theft, unsafe working conditions, or any other abuses out of fear that it could lead to their deportation.[12]

Second, employers could exploit the threat of immigration enforcement as a tool of retaliation. Employers may report workers to ICE in response to union activity or complaints about labor violations.[13] This directly undermines the protections guaranteed under the MSPA and NLRA. Such practices not only harm the individual workers but weaken the collective efforts to improve working conditions across the industry.

Constitutional Implications

ICE raids raise serious Fourth, Fifth, and Fourteenth Amendment concerns. Warrantless workplace raids raise issues under Camara v. Municipal Court,[14] which require administrative searches to be conducted with the consent of an authorized occupant or pursuant to a judicial warrant. In Noem v. Vasquez Perdomo the Supreme Court temporarily stayed a district court’s injunction that had barred federal immigration agents from conducting stops based solely on race, ethnicity, language, or occupation.[15] The emergency order, issued without oral argument or briefing, effectively allowed these practices to continue, raising significant constitutional concerns. Additionally, the reports of racially discriminatory targeting during raids also implicate the Equal Protection Clause under the Fourteenth Amendment and the Due Process Clause under the Fifth and Fourteenth Amendments.[16] Further, relying on race violates reasonable search and seizure requirements under the Fourth Amendment, as recognized in United States v. Brignoni-Ponce.[17]

Reports of warrantless searches and discriminatory practices during ICE raids further erode trust between migrant communities and the legal system. This erosion of trust extends beyond just law enforcement and to labor advocacy organizations and other institutions that rely on cooperation from workers.[18] By undermining statutory labor protections, ICE raids perpetuate a cycle of exploitation that not only harms migrant workers but also threatens the long-term sustainability of the agricultural workforce.

Protecting Workers, Strengthening the System

The intersection of immigration enforcement and labor rights present complex challenges for migrant farmworkers and the entire agricultural industry. ICE raids exacerbate existing vulnerabilities, undermining the enforcement of labor protections and creating a climate of fear that threatens advocacy and organization.[19] To begin to address these issues, we need to strengthen and enforce legal protections for migrant workers. Strengthening reforms should enhance anti-retaliation provisions in the MSPA and NLRA to prevent employers from weaponizing immigration enforcement.[20] Reforms should also expand U Visas, which provide legal status to noncitizen victims of certain crimes, to cover labor violations, and make T visas, which protect victims of human trafficking, accessible to farmworkers who are exploited, allowing farmworkers to report abuse without fear of deportation.[21] Finally, safeguards against warrantless workplace raids should be enforced.[22] Together, reforms could ensure that migrant workers have a clear legal path to protect their rights. Ensuring these reforms are implemented is essential to protecting migrant workers, upholding labor rights, and sustaining a just agricultural system.

[1] U.S. Dept. of Agric., Econ. Research Service (ERS), Farm Labor, https://www.ers.usda.gov/topics/farm-economy/farm-labor (last updated Sept. 12, 2025).

[2] U.S. Dept. of Labor, The Migrant & Seasonal Agricultural Worker Protection Act (MSPA) (last visited Oct. 12, 2025), https://www.dol.gov/agencies/whd/laws-and-regulations/laws/mspa; U.S. Dept. of Labor, Wage & Hour Div., National Labor Relations Act, https://www.dol.gov/agencies/whd/flsa (last visited Oct. 14, 2025).

[3] Nat’l Employment. Lawyers Ass’n (NELA), NELA Statement on Worksite Raids by U.S. Immigration and Customs Enforcement, https://www.nela.org/nela-statement-on-worksite-ice-raids/ (last visited Oct. 14, 2025).

[4] MSPA, supra note 2.

[5] Id. (stating the purpose of the Act).

[6] Phillip D. Bertelsen, Inc. v. Agric. Labor Relations Bd., 23 Cal. App. 4th 759 (Cal. Ct. App. 1994).

[7] Martinez v. Shinn, 1991 U.S. Dist. LEXIS 10796 (E.D. Wash. 1991).

[8] Eliserio v. Floydada Hous. Auth., 388 F. Supp. 2d 774 (S.D. Tex. 2005).

[9] Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891–92 (1984).

[10] Hoffman Plastic Compound, Inc. v. NLRB, 535 U.S. 137, 144 (2002).

[11] USDA, supra note 1.

[12] See e.g. Does I–XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1071 (9th Cir. 2000) (recognizing the threats of retaliation, such as deportation, deters undocumented workers from filing complaints).

[13] See e.g. Arias v. Raimondo, 860 F.3d 1185, 1187 (9th Cir. 2017) (highlighting several retaliatory practices where employers contacted immigration authorities to intimidate workers asserting their workplace rights).

[14] Camara v. Municipal Court, 387 U.S. 523, 530–31 (1967)

[15] Noem v. Vasquez Perdomo, No. 25A169, 606 U.S. ____ (2025).

[16] See U.S. Const. amend. XIV, § 1; U.S. Const. amend. V.

[17] United States v. Brignoni-Ponce, 422 U.S. 873, 886 (1975) (holding ancestry alone is insufficient to justify a stop under the Fourth Amendment); see U.S. Const. amend. IV.

[18] NELA, supra note 3.

[19] Id.

[20] Lynn Rhinehart & Celine McNicholas, Shortchanged—Weak Anti-Retaliation Provisions in the National Labor Relations Act Cost Workers Billions, Econ. Pol’y Inst. (Apr. 22, 2021), https://www.epi.org/publication/shortchanged-weak-anti-retaliation-provisions-in-the-national-labor-relations-act-cost-workers-billions/.

[21] Nat’l Immigration Law Ctr., The U Visa and How It Can Protect Workers, https://www.nilc.org/wp-content/uploads/2024/09/How-U-Visa_Can-Protect-Immigrant-Workers.pdf (last visited Oct. 14, 2025).

[22] NELA, supra note 3.

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.