Category: News

The Jones Act: Turbulent Times for American Energy Policy
By Aidan Sitler

Congress enacted the Merchant Marine Act of 1920 in the aftermath of World War One.[1] The Jones Act is found in section 27 of the Merchant Marine Act, and it includes protectionist provisions regarding the shipment of goods between U.S. domestic points.[2] The Jones Act requires that merchandise “transported by water within the United States,” be shipped on vessels owned, operated and built by Americans.[3] The Act was codified in part “to ensure a ready supply of ships and mariners in case of war . . . .”[4] It was also enacted to stimulate the American shipping industry and to create more domestic jobs throughout the shipping supply chain.[5] Although Congress originally passed the Act to protect American interests, today it harms the American energy industry and curbs the growth of domestic energy independence.

Currently, the United States relies heavily on the fossil fuel industry for its domestic electricity generation.[6] More than 50% of the U.S. energy generation comes from coal or gas plants.[7] Despite the sustained reliance on fossil fuels, renewable energies have grown from less than 5% of U.S. energy generation fifteen years ago, to over 20% in 2024.[8] Renewables rose at an unprecedented rate as new technology advanced and allowed for greater production and implementation from wind and solar alike.[9] Despite the growth of the renewable sector, offshore wind developments have stalled while utility-scale solar and onshore wind projects continue to flourish.[10]

As of 2021, only two offshore wind facilities were operating in the U.S., with a modest combined total of seven turbines.[11] Together the two wind facilities generate 42 megawatts of electricity capacity.[12] The current generating capacity of offshore wind is minor compared to the U.S grid’s 1300-gigawatt nameplate capacity.[13] This means that the offshore wind facilities presently provide less than one percent of the entire electricity for U.S. grid.[14] But the US Department of Energy estimates that offshore wind has the potential to produce three times the electrical capacity of the current U.S. grid.[15] This potential energy output would help the U.S. transition from carbon-emitting coal and gas plants to a complete clean-energy-sustained grid. Offshore wind development would also help create more stable domestic resources for America’s electricity production.

As interests of global security and resource scarcity continue to shape energy policy, America can focus on expanding domestic energy production. Right now, the U.S. still relies heavily on the global supply chain for imports of natural gas.[16] Canadian pipelines and large shipments of liquefied natural gas primarily accomplish this.[17] As global conflicts such as Russia’s war in Ukraine continue, resource availability and stability can impact the global supply chain and harm America’s economic interests.[18] To limit exposure to the instability of the global supply chain, and to reduce the amount of carbon emissions, offshore wind facility materials should be waived from the Jones Act to help increase America’s energy independence.

An offshore wind facility can take anywhere from seven to eleven years to become fully operational.[19] In contrast, an onshore wind facility can be completed in about half the time.[20] The obstacles facing offshore wind facility developments are both the nature of where they are built, and the current regulations which add additional time and cost constraints to the process. While not much can change the difficult nature of building wind facilities in the ocean, the regulations that impede the building process can be altered. A major regulatory obstacle for offshore wind facilities is the Jones Act. Because the Jones Act requires American made ships to transport merchandise in U.S. waters, the development of offshore wind facilities falls under this category.[21]

The wind facilities are subject to the Jones Act because the pieces of the turbines are shipped from the U.S. port to the point of installation off the U.S. coast.[22] Because companies ship goods between two U.S. points, they are required to adhere to the guidelines of the Jones Act. The primary problem wind production facilities have when conforming to the Jones Act is that there is not an adequate supply of capable U.S. vessels.[23] The U.S. lacks the proper ships to ferry the parts and cranes needed for the construction process.[24] The construction process requires massive parts of the turbine to be hauled off the ship by an onboard crane, and U.S. vessels equipped for this process number in the single digits.[25] Companies now ship turbine related goods from Canadian ports to circumvent falling under the Jones Act.[26] This workaround adds to the total project costs and development time.[27]

Instead of requiring companies to add project time, shipping costs, and increased dealings with foreign ports, the Jones Act should be waived to advance U.S. energy expansion. In the past, the Jones Act has been waived for vessels transporting goods to help Americans during natural disasters.[28] The Department of Homeland Security has the authority to issue waivers for merchandise.[29] In this case, Homeland Security should waive offshore wind merchandise from the Jones Act provisions to help increase America’s energy independence. This waiver would allow a quicker production timeline of offshore wind facilities, and greater growth towards U.S. energy independence. The Act was originally enacted to protect American interests yet is now acting as an obstacle to U.S. energy independence. It would be within the spirit of the Act to help create more American energy security and independence through the growth and development of U.S. owned wind facilities.

[1] Merchant Marine Act of 1920, Pub. L. No. 66-261, 41 Stat. 988 (1920). See also Will Kenton, Understanding the Jones Act: Key Facts, History, and Economic Impact, Investopedia (Aug. 27, 2025), https://www.investopedia.com/terms/j/jonesact.asp.

[2] Kenton, supra note 1.

[3] The Essential Guide To The Jones Act, K&L GATES (Oct. 9, 2025), https://www.klgates.com/The-Essential-Guide-to-the-Jones-Act.

[4] Whither the Wind? The Jones Act and Evolving Impact on the U.S. Offshore Energy Industry, Vedder (Dec. 18, 2024), https://www.vedderprice.com/whither-the-wind-the-jones-act-and-its-evolving-impact-on-the-us-offshore-wind-energy-industry.

[5] Kenton, supra note 1.

[6] Electricity Explained, U.S. Energy Info. Admin. (July 16, 2024), https://www.eia.gov/energyexplained/electricity/electricity-in-the-us-generation-capacity-and-sales.php.

[7] Id.

[8] Id.

[9] Id.

[10] Teresa R. Christopher et al., The Road to 30 Gigawatts: Key Actions To Scale an Offshore Wind Industry in the United States, CAP (Mar. 14, 2022), https://www.americanprogress.org/article/the-road-to-30-gigawatts-key-actions-to-scale-an-offshore-wind-industry-in-the-united-states/.

[11] Id.

[12] Id.

[13] Electricity Explained, U.S. Energy Info. Admin. (July 16, 2024), https://www.eia.gov/energyexplained/electricity/electricity-in-the-us-generation-capacity-and-sales.php.

[14] Id.

[15] Forging the Pathway: Offshore Wind’s Role in U.S. Energy Transformation, U.S. Dep’t of Energy (June 12, 2024), https://www.energy.gov/technologytransitions/articles/forging-pathway-offshore-winds-role-us-energy-transformation.

[16] Id.

[17] Id.

[18] Russia’s natural gas and coal exports have been decreasing and shifting towards Asia, U.S. Energy Info. Admin. (Sept. 3, 2025),  https://www.eia.gov/todayinenergy/detail.php?id=66044.

[19] Construction of an offshore wind plant, Iberdrola (2025), https://www.iberdrola.com/about-us/our-activity/offshore-wind-energy/offshore-wind-park-construction.

[20] Id.

[21] Whither the Wind?, supra note 4.

[22] Id.

[23] Id.

[24] Id.

[25] John Engel, U.S. offshore wind supply chain: By the numbers, FACTOR THIS (Mar. 29, 2022), https://www.renewableenergyworld.com/wind-power/offshore/u-s-offshore-wind-supply-chain-by-the-numbers/.

[26] Whither the Wind?, supra note 4.

[27] Id.

[28] Id.

[29] Id.

Stand Your Ground: Environmental Advocates Fights Alligator Alcatraz for NEPA Violations
By Matthew Allen

On June 27, 2025, two nonprofit organizations filed suit against state and federal agencies and officials for violations under National Environmental Policy Act (NEPA).[1] This suit arises from the construction of Alligator Alcatraz, an immigration detention center located in southern Florida. Friends of the Everglades (Friends) and Center for Biological Diversity’s (CBD) complaint argues that the U.S. Department of Homeland Security (DHS) failed to complete necessary environmental review before undergoing construction.[2] NEPA promotes efforts to prevent damage to the environment while encouraging productive harmony between man and the environment.[3] Additionally, NEPA requires completion of a necessary report illustrating foreseeable environmental effects based off the proposed action.[4] Filed in the Southern District of Florida, Judge Kathleen Williams ruled in favor of the plaintiffs, clinching a pivotal ruling for environmental groups.

Under federal orders, the Florida Division of Emergency Management (FDEM) took control of the Dade-Collier Training and Transition Airport (TNT).[5] FDEM altered TNT into a mass migrant detention and deportation camp.[6] This federal order, along with construction activities, took place in less than an eight-day span.[7] Friends and CBD interpleaded because of the sensitive location of TNT. The TNT is located within the Big Cypress National Preserve,[8] designated as “an area of critical concern.”[9] Further, TNT is located near the Everglades National Park and historic Everglades. The state legislature established the Big Cypress Area to protect the natural resources and beauty of Florida.[10] Construction of a detention center within this area creates risk of harming local wetlands, wildlife, as well as air and water quality.[11] Due to this threat, the Miccosukee Indian Tribe of Florida (Miccosukee Tribe) intervened as plaintiffs.[12] The Miccosukee Tribe has strong ties to the land and the construction of Alligator Alcatraz poses a significant threat to their food and water supply.[13] The suit requested injunctive relief to stop construction further than what had already been completed.

On August 21, 2025, the District Court ruled in favor of Friends, CBD, and Miccosukee Tribe, finding construction of Alligator Alcatraz violated NEPA standards.[14] Friends and CBD indicated this is a “landmark victory” for those who believe the environment should be protected.[15] NEPA, enacted in 1970, establishes a system for state and federal agencies to find the most beneficial uses of the environment without degradation.[16] Prior to the construction of federal buildings, an environmental impact report must be completed.[17] This report provides reasonably foreseeable effects, elements that could not be avoided, a range of alternatives including negative impacts, and short-to-long term property uses.[18] It is the responsibility of the federal agency to ensure the integrity of scientific discussion and analysis within the assessment.[19] Without this necessary analysis, it is a guessing game how construction of certain facilities can impact the environment.

As the court reviewed the Plaintiffs’ complaint, Defendants failed to establish compelling arguments as to why they did not complete the necessary reports. The possible environmental impacts of this facility are subject to federal control, whereas the Defendant’s argue that Alligator Alcatraz is strictly a state project.[20] The Plaintiffs argue that the Defendants failed to “obtain critical information of the TNT site . . . failure to obtain critical information from the site’s owner . . . and process regarding the facilities construction and operations.”[21] Overall, the Plaintiffs’ argument stems from a lack of accountability and proper procedural steps not completed by the Defendants.[22] The District Court agreed with multiple aspects of the Plaintiffs’ NEPA claim.

NEPA provides clear instructions to which documents are necessary prior to construction of a facility like Alligator Alcatraz.[23] The Plaintiffs argue that this is a project comprised of “systematic and connected agency decisions.”[24] NEPA requires coordination between state and federal agencies, especially for a federally funded project taking place within a specific state jurisdiction.[25] NEPA requires that any “major Federal action significantly affecting the quality of the human environment” be preceded by an environmental impact statement (EIS) to balance impacts of objectives and benefits.[26] A NEPA claim requires the Plaintiff to show that construction of the facility involves (1) a final agency action, (2) a major federal action, and (3) without Defendants conducting a compliant EIS.[27] The District Court capitalizes on the Defendant’s argument that Alligator Alcatraz is not the embodiment of federal issues, therefore NEPA is not the supervising authority. The District Court is not fooled by this argument. Testimony and evidence provided by the Plaintiffs show the facility is operated under a federal agency, funded by federal money, and ultimately deals with federal issues.[28]

Finally, the District Court looks towards potential irreparable injuries to be suffered from the NEPA violation.[29] An injury is irreparable only if it cannot be undone through monetary remedies.[30] The Plaintiffs back their argument with notions of potentially damaged wetlands, endangered species, runoff and water discharge, light, noise, and traffic issues.[31] Plaintiffs provide an extensive amount of support for these notions. Construction of 800,000 square feet of paved area, fencing, lighting, noise, fueling systems, and car traffic will create substantial and irreparable harm to the area.[32] The Defendants attempt to say that all these issues balance out with equity and public interest. Balance of equities and public interest must be weighed when granting preliminary injunctive relief.[33] Immigration is a significant national interest. The Defendants attempt to “humanize” this ongoing issue by stating “as the swell of people seeking refuge and opportunities in our nation steadily increases, the government is under a corresponding pressure to respond and regulate.”[34] What their argument fails to address, is the lack of awareness to NEPA protocols. While the court recognizes that there is public interest, it does not outweigh the evidence provided by the Plaintiffs.[35]

Although there will certainly be an appeal, the masterclass the Southern District of Florida approach provided is exceptional. In difficult times when environmental laws are overlooked for government efficiency, now more than ever it is necessary to step up. The holding by Judge Williams shuts down any notion for the Defendants to skirt by. NEPA will always stand as the foundational point for environmental law. With this ruling, it provides environmental advocates hope for a push for conservation over quick development. The Defendant’s irrational judgment will hopefully prove as a lesson learned: that no matter the public policy being pushed, there are necessary environmental guidelines.

[1] Complaint at 2, Friends of the Everglades, Inc. v. Noem (S.D. Fla. June 27, 2025) (No. 1:25-cv-22896).

[2] Id.

[3] See 42 U.S.C. § 4321.

[4] 42 U.S.C. § 4332(C)(i).

[5] Complaint, Friends of the Everglades, (No. 1:25-cv-22896).

[6] Id.

[7] Id.

[8] Id.

[9] Fla. Stat. § 380.055(3).

[10] Fla. Stat. § 380.055(2).

[11] Complaint at 2, Friends of the Everglades, Inc. v. Noem (S.D. Fla. June 27, 2025) (No. 1:25-cv-22896).

[12] Id. at 3.

[13] Id.

[14] Id. at 2.

[15] Mitch Perry, Federal Judge Halts Operations at ‘Alligator Alcatraz’, Maine Morning Star, (Aug. 22, 2025) https://mainemorningstar.com/2025/08/22/federal-judge-halts-operations-at-alligator-alcatraz/.

[16] 42 U.S.C. § 4331(b)(3).

[17] 42 U.S.C. § 4332(C)(iii).

[18] See 42 U.S.C. § 4332(C)(i–iii).

[19] 42 U.S.C. § 4332(D).

[20] Complaint at 2, Friends of the Everglades (No. 1:25-cv-22896).

[21] Id.

[22] Id. at 17.

[23] 42 U.S.C. § 4321.

[24] Complaint at 2, Friends of the Everglades (No. 1:25-cv-22896).

[25] 42 U.S.C. § 4331(b)(3).

[26] 42 U.S.C. § 4332(C).

[27] Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008).

[28] Complaint at 26–29, Friends of the Everglades, (No. 1:25-cv-22896).

[29] Id. at 28.

[30] Ferro v. Assoc. Materials Inc., 923 F.2d 1441, 1449 (11th Cir. 1991).

[31] Complaint at 26–29, Friends of the Everglades, (No. 1:25-cv-22896).

[32] Id. at 29–30.

[33] Id. at 32.

[34] Id.

[35] Id.

 

Rights of Nature as an Alienating Step Towards Better Environmental Laws
By Brett Davis

Humanity continues failing to adequately protect world’s ecosystems despite years stewarding for the environment.[1] This failure poses devastating consequences to individuals, societies, and the world.[2] Nothing here is new; humankind has been aware of the cost of neglecting nature for thousands of years.[3] But this awareness has an anthropocentric tint in the modern age, which has informed environmental responses. To combat environmental failures that human-centered approaches bring, the “Rights of Nature” movement has emerged.[4] The movement attempts to redefine environmentalism to make nature a key player.[5] This blog will explore this attempt and provide a Marxist critique of a rights-centered approach to environmental law.

The Rights of Nature movement seeks to end the reductive view that nature is a mere sum of its parts.[6] The old Enlightenment view establishes humans as the environment’s master.[7] This mastery, paired with the idea of the wholly rational human, guided the law to treat nature as a tool for human needs.[8] During the late 20th century, industrial nations began adopting a stewardship approach, placing humans as nature’s protectors.[9] While more environmentally conscious, stewardship has still failed to protect Earth’s ecosystems.[10] The problem is that humans are still the masters of nature, and stewardship still reduces nature to human-defined values. Thus, the Rights of Nature focuses on establishing rights for nature itself¾rights that are defendable in court.[11]

Defendable rights take a legally human form. Recently, New Zealand’s Taranaki Maunga (or Mount Taranaki) was recognized as a legal person.[12] Taranaki joins a list of natural features with personhood in the New Zealand, a world leader in the Rights of Nature.[13] The hope is personhood will help to conserve and restore traditional Māori uses.[14] Members of Māori iwi will be “the face and voice” of Taranaki Maunga and will oversee the rights, powers, duties, responsibilities, and liabilities of the mountain.[15] Using a group of trustees representing a natural personhood is a common approach under the Rights of Nature.[16]

The personhood these trustees protect is one Marxism has long critiqued. Marx critiqued rights as separating individuals from their community.[17] The purely Marxist understanding is that the bourgeoisie favored individual rights undermine the proletariat’s interests in a unified class.[18] Now, modern theorists have expanded the alienating effect of individualism to anti-colonialism, feminism, and more.[19] The root issue of all these movements is clear: rights alienate people and deny the intersectionality arising from human issues.

Rights of Nature are no different than these human rights¾rights alienate nature from itself. Rights establish each actor in a system as distinct, manageable, and understandable. Each piece of nature may receive personhood and subsequent rights,[20] but nature is not a series of distinct persons. This tension, between nature’s reality and right’s unreality, poses serious strains on the framework’s solvency. How do a river’s rights relate to those of a migratory species that occasionally calls the river home? Both entities are simply together in nature. Enlightenment rationalism does not clearly apply to such interconnected systems. Nature does not prioritize one part of itself over another. Proscribing rights to nature creates environmental components as competitive agents in a larger rights system.

In the competitive system, rights act as “trumps,” some rights taking priority over others.[21] A priority of rights leads to balancing, an already contentious point in environmental policymaking.[22] Any current American political issue—freedom of speech, privacy, pro-choice, racial and wealth inequality—highlights the impasse of people’s rights against each other and the state. Nature’s components will just be a new agent in the constant balancing of rights.

This balancing goes to Marx’s concern.[23] How does nature, a collective, integral, and abstract entity, compete with individual rights? How can a river assert a right over the people who use the river for their livelihoods? This is the same problem. No person functions absent of nature, and nature is not complete absent people. Nature’s rights create a nonexistent antagonism: what is best for nature is contrary to what is best for people. And this conflict is the very goal of Rights for Nature, to create a system for nature to “fight” for itself.[24]

The Rights of Nature aim for conflict in the current system, contrasting the utopian ends of Marxism. Supplying nature with the right to defend itself allows for a better functioning status quo. Namely, personhood allows environmental claims a way around typically difficult standing challenges.[25] Additionally, Rights of Nature can help quell the anthropocentric views on the environment prevalent in the West.[26]  In these ways, the movement is a steppingstone to better evaluating nature’s importance. But a steppingstone is not an end.

We must ask whether a system of rights that has led to such devastating environmental catastrophes is the system that will truly be able to represent nature. Rights fix nature into the enlightenment system; it does not radically redefine how we approach problems. We live in a world where human rights abuses are still ubiquitous, even in democratic societies.[27] The Marxist critique is one way to explain these failures, and how the Rights of Nature might fall into the same historical struggle. But understanding rights power to alienate right holders underscores the frameworks shortcomings in uniting and caring for nature. The Rights of Nature do not supply the ends for environmental response but are simply a possibly misguided step towards equitable ends.

[1] Sandra Díaz, et al. The Global Assessment Report on Biodiversity and Ecosystem Services, XIV (Eduardo S. Brondízio et al. eds, IPBES, 2019).

[2] Id.

[3] Ryan Weyler, A Brief History of Environmentalism, GREENPEACE, (Jan. 5, 2018) https://www.greenpeace.org/international/story/11658/a-brief-history-of-environmentalism/.

[4] Karen Bradshaw, Identifying Contemporary Rights of Nature, 95 S. Cal. L. Rev. 1439, 1446 (2022).

[5] See id.

[6] Niels Hoek, et al., Implementing Rights of Nature: An EU Natureship to Address Anthropocentrism in Environmental Law, 19 Utrecht L. Rev. 72, 74 (2023).

[7] Id. at 75.

[8] Id.

[9] Id.

[10] Díaz supra note 1 at XIV.

[11] Hoek, et al. supra note 6 at 75.

[12] Charlotte Graham-McLay, A New Zealand mountain is granted personhood, recognizing it as scared for Māori, AP (Jan. 31, 2025), https://apnews.com/article/mountain-zealand-personhood-maori-taranak-590fca0f3d648cc0bf86d970782e954c.

[13] Id. (joining Te Urewera Forest and Whanganui River).

[14] Id.

[15] Id.

[16] Hoek, et al. supra note 6 at 75.

[17] Karl Marx, On the Jewish Question (1844), https://www.marxists.org/archive/marx/works/1844/jewish-question/ (last visited Oct. 12, 2025).

[18] Id.

[19] See generally Vasuki Nesiah, The Ground Beneath Her Feet: “Third World” Feminisms, 4 J. Int’l Women’s Stud. 30 (2003); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 Stan. L. Rev. 1241 (1991); Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 (2001).

[20] Graham-McLay supra note 12.

[21] Mauricio Guim & Michael A. Livermore, Where Nature’s Rights Go Wrong, 107 Va. L. Rev. 1347, 1370 (2021).

[22] Id. at 1370-74.

[23] See Marx supra note 17.

[24] See Bradshaw supra note 4 at 1449.

[25] See Marisa Martin & James Landman, Standing: Who Can Sue to Protect the Environment?, Insights on Law & Society, Vol. 19 2020, https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol–19—issue-1/standing–who-can-sue-to-protect-the-environment-/ (discussing standing issues in environmental law).

[26] See Bradshaw supra note 4 at 1449.

[27] See generally Human Rights Watch, World Report 2024: Events of 2023 (2024).

Spent Nuclear Fuel Storage: Coming to an Oil Field Near You!
By Jules Mule

In Nuclear Regulatory Commission v. Texas, the Supreme Court held that only parties to the Nuclear Regulatory Commission’s (NRC’s) licensing proceedings are entitled to judicial review of the licensing decision.[1] This case comes to the Court after respondents Texas and Fasken Land and Minerals challenged the NRC’s statutory authority to license a private-off-site-spent-nuclear-fuel-storage-facility in West Texas. However, the Court did not decide the case on the merits. Instead, it simply held that Texas and Fasken were not parties to the NRC’s licensing proceedings and are not entitled to judicial review. The Court should not have awarded the NRC undue control over judicial review of its licensing proceedings. More importantly, the Court should not have left such a significant regulatory question open for future litigation.

The United States began commercial nuclear power production in the 1950s after the enactment of the Atomic Energy Act of 1954 (AEA).[2] Nuclear reactors use enriched uranium to generate electricity and create waste known as spent nuclear fuel (SNF). Originally, SNF was reprocessed to extract weapons-grade plutonium for warheads. Eventually, nuclear proliferation concerns in the 1970s led President Ford to halt commercial reprocessing. However, continual generation without reprocessing meant many reactors were already approaching maximum capacity for on-site SNF storage by the 80s. Congress then enacted the Nuclear Waste Policy Act of 1982 (NWPA) which designated Yucca Mountain, Nevada as the nation’s single, permanent SNF repository. Public backlash, however, has killed nearly all federal support. SNF is still mostly stored on-site, but this is unsustainable, as many nuclear reactors are quickly approaching the end of their lifecycles. Now private, off-site storage is gaining federal support.

In 2018, Interim Storage Partners (ISP) applied for a license with the NRC to develop an  SNF storage facility in West Texas.[3] Fasken Land and Minerals (Fasken) operates oil and gas wells in West Texas and petitioned to intervene in the licensing proceedings.[4] The NRC denied the petition because Fasken failed “to show that a genuine dispute exists.”[5] Fasken challenged the denial in the D.C. Circuit, but the court upheld the NRC’s decision.[6] Fasken did not petition the Supreme Court for certiorari, and the NRC license proceedings continued.[7] In 2020, the NRC issued a draft environmental impact statement (EIS) and awaited public comments.[8] Among the many commenters were Fasken and a government agency representing the state of Texas.[9] Both raised environmental and public safety concerns, which the NRC considered in their final EIS.[10] The NRC then granted ISP the license to develop the storage facility in 2021.[11]

Following this, Texas and Fasken sued the NRC in the Fifth Circuit.[12] They claimed the NRC lacked the statutory authority to license private off-site SNF storage facilities.[13] The Fifth Circuit agreed, and vacated ISP’s license.[14] The NRC petitioned the Supreme Court for certiorari, and the Court granted cert in 2024.[15]

In a 6–3 opinion delivered by Justice Kavanaugh, the Court held that Texas and Fasken were not entitled to judicial review under the Hobbs Act.[16] The Court reasoned that neither met the AEA’s requirement to qualify as “part[ies] aggrieved” to the proceedings.[17] The one and only requirement is that the NRC must grant a prior petition to intervene the proceedings.[18] If the NRC denies the petition, as in this case, the would-be intervenors cannot seek judicial review in court.[19] Texas did not petition to intervene, and Fasken’s petition was denied and subsequently dispatched by the D.C. Circuit.[20] Therefore, neither was entitled to judicial review on the proceedings. The Fifth Circuit’s decision was reversed and remanded without a ruling on the merits.[21] However, the Court did offer five pages of commentary suggesting the NRC does have statutory authority to license private-storage facilities under the AEA.[22]

Regarding the jurisdictional issue, the Court should have held that Texas and Fasken were entitled to judicial review. Under the Hobbs Act, a “party aggrieved” by a licensing order is entitled to judicial review of the proceedings.[23] The Court relied on § 2239 of the AEA to determine who qualifies as a party to NRC licensing proceedings: “In any proceeding . . . for the granting . . . of any license . . . the Commission shall grant a hearing upon request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.”[24] The Court narrowly interpreted this language to mean that party status is only awarded if the NRC grants the hearing.[25] The NRC codified this interpretation, and the strict criteria for admittance, in 10 C.F.R. § 2.309(f).[26] However, the more obvious interpretation is that both granting the hearing and awarding party status are separately at the NRC’s discretion. Nevertheless, the Court upheld the NRC’s stricter interpretation, citing only to a 1990 D.C. Circuit case for support.[27]

The case is not very supportive. The issue centers around how § 2.309(f) interacts with an older late-filing rule.[28] Further, the circuit court relies on the now defunct Chevron deference.[29] Ultimately, the Court’s unjustifiably narrow reading of the AEA lends the NRC too much control over judicial review. Left unchecked, the agency can simply deny anyone that requests a hearing and remain unobstructed on the licensing proceedings. As the dissent put it: “Allowing agencies to decide who can challenge their work in court is like letting the fox guard the henhouse.”[30]

Accordingly, the Court should have decided this case on the merits. The dissent offered am alternative method to achieving party status under the Hobbs Act (i.e. commenting on an EIS).[31] Regardless of the method used, the open question is more worthy of discussion: Does the NRC have the statutory authority to license private SNF storage facilities? The Court could not stay silent on the matter after all, delivering five pages of unauthoritative dicta.[32] Oddly enough, the Court again based its argument on a less-than-supportive D.C. Circuit case it claims upheld NRC regulations.[33] In 1980, the NRC promulgated regulations under the AEA that allow it to license private off-site storage facilities.[34] And in 2004, the D.C. Circuit in Bullcreek v. NRC conceded that “the AEA does not specifically refer to the storage or disposal of spent nuclear fuel. . . .”[35] Rather, the authority is implicit, predicated on the decades of historical deference to the NRC.[36]

Unable to point towards any explicit authority in the AEA, the D.C. Circuit and this Court both resort to an even earlier case: Pacific Gas & Electric Company v State Energy Resources Conservation & Development Commission (PG&E).[37] Unfortunately, the most authoritative quote in the entire case is mere recognition: “the NRC has promulgated detailed regulations governing storage and disposal away from the reactor.”[38] The regulations were unchallenged; the case was about licensing reactors, not storage facilities. Even together, these two cases hardly amount to a substantial judgment on the statutory authority of the NRC’s private storage licensing practices. In Bullcreek, the petitioner “conceded at oral argument [that] the NRC had authority under the AEA to regulate private away-from-reactor storage facilities.”[39] And in PG&E, the Court made no mention of private vs. federally-owned storage facilities. It’s likely that the recently enacted NWPA that would soon establish a permanent federally-owned storage site was fresh on the Court’s mind. While recognition of the NRC’s authority over private storage facilities under the AEA is longstanding, the authority is implicit at best and has never been directly challenged. Avoiding judgment on the merits keeps the question open to future litigation and enables unnecessary confusion in the nuclear industry.

Regardless, the Court’s lengthy dicta suggests it would likely uphold the NRC’s statutory authority in any future challenge. Ultimately, the NRC is the obvious choice for regulating private storage. Congress should simply revise the AEA to match the NRC’s existing regulations.

[1] NRC v. Texas, 605 U.S. 665 (2025).

[2] See 42 U.S.C. § 2011 et seq.

[3] NRC, 605 U.S. at 672.

[4] Id.

[5] Id.; 10 C.F.R. § 2.309(f).

[6] NRC, 605 U.S. at 673; Don’t Waste Mich. v. NRC, No. 21-1048, 2023 WL 395030 (D.C. Cir. Jan. 25, 2023).

[7] NRC v. Texas, 605 U.S. 665 (2025).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] NRC v. Texas, 605 U.S. 665 (2025).

[14] Id. at 673–74.

[15] Id. at 674.

[16] Id. at 676-77; 28 U.S.C. § 2344.

[17] Id.

[18] Id.; 42 U.S.C. § 2239(1)(A).

[19] NRC v. Texas, 605 U.S. 665 (2025).

[20] Id. at 678–79.

[21] Id. at 690.

[22] Id. at 683–88.

[23] 28 U.S.C. § 2341.

[24] 42 U.S.C. § 2239(1)(A).

[25] NRC v. Texas, 605 U.S 665, 676 (2025).

[26] 10 C.F.R. § 2.309(f).

[27] NRC, 605 U.S. at 678; Union of Concerned Scientists v. NRC, 920 F.2d 50, 51-56 (D.C. Cir. 1990).

[28] Union of Concerned Scientists, 920 F.2d at 53 (“UCS does not contend that the heightened pleading requirement, standing alone, would be illegal”).

[29] Id. at 54; Chevron U.S.A., Inc. v. NRDC, 467 US 837 (1984), overruled by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

[30] NRC v. Texas, 605 U.S. 665, 711 (2025) (Gorsuch, J., dissenting).

[31] Id. at 707-10.

[32] Id. at 683–88.

[33] Id. at 685; Bullcreek v. NRC, 359 F.3d 536, 537–38, 541–43 (D.C. Cir. 2004).

[34] 10 C.F.R. § 72.

[35] Bullcreek, 359 F.3d at 538.

[36] Id. (“[T]he NRC has promulgated detailed regulations governing storage and disposal away from the reactor.”); NRC v. Texas, 605 U.S. 665, 683 (2025).

[37] Pac. Gas & Elec. V. St. Energy Resources Conserv., 461 U.S. 190 (1983); NRC, 605 U.S. at 683-84; Bullcreek, 359 F.3d at 538.

[38] Pac. Gas & Elec., 461 U.S. at 217.

[39] Bullcreek, 359 F.3d at 542.

A Critique of the Louisiana v. Biden Decision
By Max Oechsner

            A coalition of Republican-led states and oil and gas industry groups was handed a win in the latest legal battle over drilling in the Outer Continental Shelf (OCS).[1] The ruling in Louisiana v. Biden will allow renewed drilling in the OCS, the offshore land surrounding the continental United States.[2] The ruling, however, overly relied on former presidents’ actions and misinterpreted the act that governs the OCS. Not only was it poorly decided, but the ruling will have irreversible consequences on the climate crisis.

Background on the Controversy

            The OCS is roughly comprised of the submerged lands off the coast of the continental United States.[3] President Biden, at the very end of his term, withdrew the OCS from potential oil and gas leasing.[4] The President did this through two Withdrawal Memoranda (hereinafter memoranda), one addressing the coast of Alaska, and the other addressing the East Coast, West Coast, and the Gulf of Mexico.[5] Biden’s memoranda stated that the withdrawal was “for a period of time without specific expiration.”[6] The plaintiffs, comprised of Louisiana, Alabama, Alaska, Georgia, and Mississippi, the American Petroleum Institute, and the Gulf Energy Alliance, quickly filed suit.[7]

The plaintiffs filed suit in federal court three days before Trump took office.[8] They challenged the memoranda under the U.S. Constitution and the Outer Continental Shelf Lands Act (OCSLA).[9] The plaintiffs argued that § 12(a) of OCSLA violated the U.S. Constitution, therefore making the memoranda unlawful.[10] They also argued the memoranda were unlawful because they exceeded the scope of the President’s authority under § 12(a).[11]

The day that Trump took office, he issued an executive order that rescinded the memoranda.[12] A month later, a coalition of environmental groups filed suit to challenge his rescission order.[13] The challenge to Trump’s order is still awaiting a decision. Meanwhile, the Louisiana District Court decided the Biden case.[14] In this ruling, the Court first sidestepped the question of whether OCSLA is constitutional by giving deference to Congress.[15] The Court then ruled that President Biden exceeded his authority under OCSLA.[16]

The Flaws in the Court’s Decision

            The Biden court had several flaws in its analysis. Its decision rested primarily on two strains of reasoning: how former presidents have used § 12(a) of OCSLA and the text of § 12(a) itself. The court also failed to properly consider the context of § 12(a).

The court first erred in its analysis of the text of § 12(a). Section 12(a) provides that “the President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”[17] The court read the text as “encouraging an ongoing duty to revisit and amend regulations.”[18] In support of this reading, the court reasons that “it is generally accepted that in the absence of a specific statutory limitation, an [executive actor] has the inherent authority to reconsider its decisions.”[19] However, the text only grants the power of withdrawal.[20] It does not grant the power to rescind a withdrawal.[21] When a statute does not grant the president a power, the president cannot exercise that power.[22] The Supreme Court, in Youngstown Sheet v. Sawyer, clarified this critical rule of constitutional law:

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation.  It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.[23]

The application of this rule gives the president power to withdraw land, but not to rescind it. Therefore, the president should not be required to specify the future time at which a subsequent president may reconsider the withdrawal.

The court also errs in its reasoning that “presidential interpretations of their limited authority under § 12(a) support a [limited] reading.”[24] However, courts should not use presidential decisions as persuasive or binding authority.[25] Therefore, the court should not have looked to how earlier presidents seem to have interpreted OCSLA.

Finally, the context of § 12(a) was not adequately considered. In 2019, the Alaska District Court decided nearly the same issue in League of Conservation Voters v. Trump.[26] In that case, several environmental groups challenged Trump’s executive order rescinding an Obama-era withdrawal of the OCS.[27] Therefore, the court decided an inverse issue: whether the president had the authority under § 12(a) of the OCSLA to rescind a withdrawal. In their decision, the court took into consideration the context of OCSLA.[28] A major point in the analysis focused on the contrast between § 8 and § 12.[29] They interpreted § 8 to be “promoting leasing” and § 12 to be “entirely protective.”[30] Ultimately, they found that OCSLA did not give a president the power to rescind a withdrawal.[31] Therefore, the contrast in the structure lends to the idea that § 12 only grants protective withdrawal power.

Conclusion

            The decision in Louisiana v. Biden represents a significant misreading of both the text and the intent of the Outer Continental Shelf Lands Act. By grounding its reasoning in the practices of past presidents and stretching the language of § 12(a), the court undermined the intent of Congress. The ruling not only weakens the President’s ability to safeguard ecologically vital offshore lands, but it also opens the door to unchecked executive reversals that erode the stability of environmental governance. Ultimately, Louisiana v. Biden stands as a cautionary example of judicial overreach—one that prioritizes political expediency and economic interests over statutory fidelity and the urgent need to confront the climate crisis.

[1] Lauren Berg, Biden-Era Drilling Ban Memos Overstepped Law, Judge Says, LAW360, (Oct. 3, 2025, 10:36 PM) https://www.law360.com/environmental/articles/2395998/biden-era-drilling-ban-memos-overstepped-law-judge-says.

[2] Louisiana v. Biden, No. 2-25-CV-00071, 2025 WL 2808502, at 1 (W.D. La. Oct. 2, 2025).

[3] Outer Continental Shelf, Bureau of Ocean Energy Mgmt. (last visited Oct. 11, 2025), https://www.boem.gov/oil-gas-energy/leasing/outer-continental-shelf.

[4] Louisiana v. Biden, 2025 WL (2025).

[5] Id. (citing 90 C.F.R. § 6739 (2025); 90 C.F.R. § 6743 (2025)).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. (citing 90 C.F.R. § 8237 (2025)).

[13] Id. (citing N. Alaska Envtl. Ctr. v. Trump, No. 3:25-cv-38, doc. 1 (D. Alaska Feb. 19, 2025).

[14] Id. at 2.

[15] Id. at 4.

[16] Id. at 6.

[17] 43 U.S.C. § 1341 (1953).

[18] Louisiana v. Biden, 2025 WL (2025) at 6.

[19] Id. (quoting Macktal v. Chao, 286 F.3d 822, 825–26 (5th Cir. 2002)).

[20] 43 U.S.C. § 1341 (1953).

[21] Id.

[22] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952).

[23] Id.

[24] Louisiana v. Biden, 2025 WL (2025) at 6.

[25] Sawyer, 343 U.S. at 604 (“No authority that has since been given to the President can by any fair process of statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments.”).

[26] League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013, 1025 (D. Alaska 2019), vacated and remanded sub nom. League of Conservation Voters v. Biden, 843 F. App’x 937 (9th Cir. 2021).

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 1029.

Housing vs. Sustainability: Vermont Governor Passes Executive Order 06-25, Easing Building Energy Efficiency Standards
By Diamond McAllister

Vermont Governor Phil Scott issued Executive Order 06-25 (EO) on September 17, 2025.[1] EO 06-25 is titled “Promoting Housing Construction and Rehabilitation.”[2] It aims to improve housing access in Vermont by streamlining development, supporting affordability, incentivizing developers, coordinating state agencies, and reducing regulatory barriers.[3] Meanwhile, Vermont’s environmental goals, codified at 10 V.S.A. § 578, require the state to significantly reduce greenhouse gas emissions.[4] Governor Scott’s EO highlights the tension between Vermont’s statutory climate commitments and the state’s efforts to accelerate housing development.[5] This tension raises questions about whether easing energy efficiency standards undermines Vermont’s legally binding environmental goals.[6]  The EO marks a clear departure from the state’s codified mission to reduce greenhouse gas emissions.

I. Stated Purpose of the Executive Order

According to the 2024 Vermont Housing Needs Assessment, Vermont faces a longstanding housing deficit.[7] Most Vermont homes remain unaffordable to the majority of Vermonters.[8] The Governor spends over three pages of the EO justifying prioritizing rapid housing expansion over strict energy efficiency standards as a response to this housing issue.[9] The Governor cites strict energy efficiency rules as slowing the pace of housing development. [10] Specifically, he claims that the 2024 building energy efficiency standards increase construction costs and make housing less affordable for Vermonters.[11]

For several years, Vermont has faced a pressing housing shortage, with the Governor estimating Vermont needs 40,000 new homes by 2030 to adequately meet the state’s housing needs.[12] Vermont is not on track to meet this demand.[13] The EO streamlines permitting, accelerates project approval, and suspends heightened energy efficiency standards in an attempt to address the shortage.[14] However, by acting while the General Assembly is out of session, the Governor demonstrates tensions between urgent housing needs and statutory commitments.

The Governor listed the housing crisis, failed attempts to address it, and the need for accelerated executive action as the rationale for the EO.[15] He acknowledges legislative efforts to address Vermont’s housing crisis but notes that they have been insufficient.[16] Thus, he argues that the executive branch must use its authority to tackle the state’s critical housing shortage.[17] He calls this approach accelerated executive action.[18] This urgency operates within a broader legal framework that binds Vermont to ambitious climate goals.

II. Vermont’s Climate Framework and Energy Efficiency Standards

The Vermont Global Warming Solutions Act of 2020 (GWSA), codified at 10 V.S.A. § 578, establishes Vermont’s climate goals as legally binding mandates.[19] The statute obligates Vermont to reduce greenhouse gas pollution 26% below 2005 levels by 2025.[20] It also requires emissions to reduce a further 40% below 1990 levels by 2030 and 80% by 2050.[21] The GWSA aims to help Vermonters prepare for negative climate change effects.[22] Increasing energy efficiency across sectors plays a crucial role in reaching climate goals because improved energy efficiency reduces emissions.[23] Specifically, “[i]ncreased energy efficiency can reduce industrial carbon emissions by up to 34% in many sectors.”[24]  

The EO’s reinstatement of the 2020 energy efficiency standards rolls back prior efficiency requirements.[25] It shifts the focus from long-term energy efficiency to immediate housing expansion.[26] Efficiency Vermont (a nonprofit focused on transitioning Vermont to cleaner and more affordable energy solutions) has demonstrated key differences between the 2020 and 2024 residential building energy efficiency standards.[27] Among these substantial differences are heavier insulation requirements, stricter energy efficiency standards, required electric vehicle charging provisions, solar-ready zone requirements, mandatory airtightness testing, and more stringent overall performance requirements.[28] The 2020 energy efficiency standard reinstatement thus lowers Vermont’s energy efficiency requirements.[29] The reinstatement sets the stage for expanding housing at the expense of energy efficiency.

III. Expansion of Housing vs. Energy Efficiency

EO 06-25 embodies a deliberate trade-off between two objectives: promoting faster housing development and risking slower progress on energy efficiency.[30] This trade-off is evident throughout the EO, particularly in its framing of the 2024 residential building energy efficiency standards as “regulatory barriers.”[31] The EO reinstates the 2020 standards, giving builders the option to choose between the 2020 and 2024 standards.[32]

Conclusion

Will this rollback prevent Vermont from achieving its codified greenhouse gas reduction goals? The answer is still unclear. The EO, however, marks a clear departure from the state’s mission under the GWSA to reduce emissions. The question now is whether Vermont can expand housing and maintain strong energy standards at the same time. Ultimately, the state must balance its immediate housing needs with its long-term, legally binding climate commitments.

[1] Vt. Exec. Order No. 06-25, Promoting Housing Construction and Rehabilitation (Vt. Sept. 17, 2025) https://governor.vermont.gov/sites/scott/files/documents/EO%2006-25%20Promoting%20Housing%20Construction%20and%20Rehabilitation.pdf.

[2] Id.

[3] Id.

[4] Vt. Stat. Ann. tit. 10 § 578(a) (2023).

[5] Vt. Exec. Order No. 06-25, supra note 1.

[6] V.S.A. 10 § 578(a).

[7] Vermont Hous. Fin. Agency, Vermont Housing Needs Assessment: 2025–2029, at 16 (June 2024), https://vhfa.org/sites/default/files/publications/VT-HNA-2025.pdf.

[8] VHFA, Vermont Housing Needs Assessment, at 81.

[9] Vt. Exec. Order No. 06-25, supra note 1.

[10] Vt. Exec. Order No. 06-25, supra note 1.

[11] Id.

[12] VHFA, Vermont Housing Needs Assessment, at 16; Governor Phil Scott, Not Done Yet: More Work Ahead on Vermont’s Housing Crisis, Off. of Governor Phil Scott (Aug. 14, 2025), https://governor.vermont.gov/governor-scotts-blog/not-done-yet-more-work-ahead-vermonts-housing-crisis.

[13] Id.

[14] Vt. Exec. Order No. 06-25, supra note 1.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] V.S.A. 10 § 578(a); see 2020 Vt. Acts & Resolves No. 153 (2020), https://legislature.vermont.gov/Documents/2020/Docs/ACTS/ACT153/ACT153%20As%20Enacted.pdf.

[20] V.S.A. 10 § 578(a).

[21] Id.

[22] 2020 Act 153, § 591(b)(1).

[23] Energy Efficiency Reduces Industrial Carbon Emissions, Energy Star, https://www.energystar.gov/industrial_plants/decarbonizing_industry/energy_efficiency_reduces_industrial_carbon_emissions (last visited Oct. 11, 2025).

[24] Id.

[25] Vt. Exec. Order No. 06-25, supra note 1.

[26] Id.

[27] Efficiency Vermont, About Us: We Transform the Way Vermonters Use Energy–For A Better Life, https://www.efficiencyvermont.com/about?gad_source=1&gad_campaignid=21344841498&gbraid=0AAAAADrAuceQQk4RJvgjKR3Z9eRkb5iGU&gclid=CjwKCAjwup3HBhAAEiwA7euZuuVam1rwDtYQzsbNgJqstjeF420yuDHdjRwreyqZVWIo56cePDV3kBoCJV4QAvD_BwE (last visited Oct. 11, 2025); Steve Spatz, 2024 RBES Overview – Substantial Changes From 2020 & How to Comply, Efficiency Vermont (Feb, 23, 2024), https://www.efficiencyvermont.com/Media/Default/docs/trade-partners/code-support/rbes-2024-substantial-changes-training.pdf.

[28] See Spatz, 2024 RBES Overview.

[29] Id.

[30] Vt. Exec. Order No. 06-25, supra note 1.

[31] Id.

[32] Id.