The Rescission of the Roadless Rule and What This Could Mean for Vermont By Maddy Foley
The United States Department of Agriculture recently announced that they will rescind the Roadless Area Conservation Rule (the “Rule”). The lack of legislation protecting national forests will devastate communities that rely on their roadless areas for their health and economy. This post will compare the immediate effects of the Rule’s recission on Alaska to those in Vermont.
The Forest Service Department of Agriculture (USDA) enacted the Rule in 2001.[1] The Rule protects certain roadless areas in the National Forest Service System from road construction, road reconstruction, and timber harvesting.[2] The purpose of the Rule is to promote lasting positive effects on forest preservation in the national forest system.[3] In general, the Rule protects about 30% of national forest lands.[4] Public input such as public comments motivated the enactment of the Roadless Rule.[5] The public wanted areas of wild backcountry to benefit the people and wildlife.[6] The Rule represents the public’s need for land conservation, but the Trump administration does not view roadless areas in this way.
On June 23, 2025, the U.S. Secretary of Agriculture, Brooke Rollins, announced that the USDA will rescind the Roadless Rule.[7] Rollins described the Rule as outdated and that it contradicted “the will of Congress and goes against the mandate of the USDA Forest Service to sustain the health, diversity, and productivity of the nation’s forests and grasslands.”[8] This rescission will open up the 59 million acres of protected forests to road construction and timber production.[9] The USDA claims that the Rule is “overly restrictive and poses real harm” to the trees in the national forests.[10]
The USDA argues that the Rule recission will improve fire prevention safety.[11] The USDA also states that the rescission will allow Americans to “reap the benefits of this great land.”[12] Additionally, land use decisions will be made at a local level[13] so communities can decide what is best for their land.[14]
The rescission of the Rule could harm Alaska. For example, the Rule recission would further President Trump’s executive order to extract natural resources such as timber and oil from the state.[15] Specifically, the executive order rescinds another executive order that protected the Arctic National Wildlife Refuge.[16] The Arctic National Wildlife Refuge sustains several aspects of environmental justice.[17] The Refuge protects biodiversity in Alaska.[18] Additionally, the Refuge exists on the land of the Iñupiat and Gwich’in peoples, thus preserving Indigenous culture and traditions.[19] The Rule provides vital resources for environmental justice initiatives in Alaska.
What President Trump ordered in Alaska could set a precedent for future calls for the destruction of other protected roadless areas. Vermont could face similar calls for destruction as Alaska. Deforestation in the Green Mountains would cause devastating environmental justice impacts such as loss of healthy ecosystems and collapse of the ecotourism industry.
Vermont has a special interest in protecting the roadless lands’ ecology. New England continues to recover from the historic overharvesting of forests and heavy land development.[20] Vermont’s Green Mountains contain 376,000 acres of National Forest System lands that includes 25,000 acres of inventoried roadless land.[21] The roadless areas in Vermont provide habitats for critical species such as beavers.[22] Beaver damns naturally regulate the flow of water down the waterways.[23] Additionally, the roadless areas allow water to naturally seep back into the earth to refill aquifers.[24] Further, the roadless areas in Vermont act as carbon sinks, thus making the overall environment healthier.[25] The Rule protects these environmental benefits. The Rule must continue to protect these roadless areas to ensure a healthy environment for the citizens of Vermont.
Further, the state has an important interest in protecting the roadless area because the mountains provide a significant attraction for tourists. Tourists visit Vermont to see the Green Mountains.[26] The mountains attract tourists with the foliage in the fall, skiing in the winter, and lush green views in the spring and summer.[27] Vermont’s $4 billion tourism industry provides over 10% of jobs in Vermont’s work force.[28] For example, the Telephone Gap Project Area contains roadless lands.[29] This area is a popular site for recreational activities such as skiing, hiking, and watching wildlife.[30] Millions of tourists visit the Telephone Gap Project Area every year.[31] Destroying large amounts of forests for roads and logging could damage Vermont’s reputation for beautiful mountain views. Deforestation would cause a drop in tourism and loss of jobs. Thus, the Rule ensures that Vermont has a reliable tourism industry.
The Roadless Rule should stay in place to ensure environmental justice to regions across the U.S. Vermont’s Green Mountains ensure a healthy environment because they protect the ecology and biodiversity of the land. Further, the mountains draw in tourists which are essential to Vermont’s economy. The roadless areas in Vermont provide substantial support to both the health of the environment and the tourism industry. The Green Mountains, like other national forests in the U.S., need the Roadless Rule to stay.
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.
[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).
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.
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 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).
[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).
[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).
Preserving Our Playground: The Significance of State Stewardship By Maddy Barney
Land conservation is a consistent bipartisan priority in America.[1] Conservation brings ideologies together because of widespread historical support for maintaining public lands for all to enjoy.[2] Outdoor recreationists represent important stakeholders in land conservation by consistently using public lands.[3] Outdoor recreation and land conservation go hand in hand.[4] “Protecting . . . [and] defending public lands is especially important to the outdoor recreation community.”[5] Almost a third of the nation’s land is held by the United States’ government entities and most public land is managed for “conservation, recreation, and education.”[6] Given the influence the government exercises over public lands, it is of critical importance that lands open for recreation are managed and created intentionally.[7] Balancing dual goals of public recreation and conservation can raise substantial challenges, but successful projects bring generational benefits.[8]
I. Challenges Balancing Outdoor Recreation and Land Conservation
Although land conservation directly supports outdoor recreation, projects must incorporate sustainable goals to prevent disrupting the delicate environmental balance.[9] Land conserved for outdoor recreation can raise several challenges.[10] There is limited public awareness on the conflict between conservation and recreation—especially when introducing high volumes of people into outdoor spaces.[11] Visitors to protected areas can degrade local “vegetation, soil, water, wildlife, and cultural resources.”[12] Negative effects vary by site and activity.[13] Effects from recreationists are “not readily apparent to the individual” but are considered by land managers daily.[14]
Land managers must overcome significant hurdles governing conserved areas and balancing diverse interests.[15] Land managers face a lack of funding, threats of energy development leases, overcrowding, and climate change impacts.[16] Generally, ecological data that guides informed decision making is lacking.[17] The lack of necessary data makes it especially difficult for public agencies to defend their management decisions under scrutiny.[18] Lastly, public agencies have limited resources to manage public lands, with 75% of land managers citing inadequate funding.[19] Conservation management challenges due to a lack of resources were exacerbated this year given the federal government’s mass firing of park employees and continual attacks on land conservation.[20]
II. Who’s making land conservation decisions anyway?
The federal government has long prioritized land conservation.[21] Conservation stems back to “colonial-era policies” focused on extraction rather than protection.[22] Additionally, “conservation areas were historically established as ways to rid land of its indigenous inhabitants.”[23] Western expansion and the early establishment of national parks put land into the hands of the centralized government.[24] As extraction continued, conservation concerns arose, and President Roosevelt created the U.S. Forest Service, which established 230 million acres of public land.[25] The public’s awareness of environmental concerns steadily grew, making space for the first Earth Day in 1970.[26] During this pro-conservation period, President Reagan’s terms “marked a growing polarization” in American politics. But still, public land protection remained a bipartisan goal.[27] Congress continued enacting widely supported conservation legislation and started adjusting management practices to better meet modern protection objectives, including recreation and biodiversity.[28] President Trump, despite approving the passage of the Great American Outdoors Act, attempts to change the public lands rhetoric and threatens the classification of “conservation” as a valid land use.[29]
When the federal government threatens public lands, states must take action.[30] States can continue preserving conservation areas despite federal priorities straying.[31] Luckily, local municipalities majorly control land use decisions anyway.[32] States delegate authority to individual municipalities through enacting legislation “that empowers land use decision making to individual towns or cities.”[33] Since the seminal case Euclid, zoning has evolved from regulating the construction and location of buildings to involve more attenuated goals such as land conservation, sustainable development, and affordable housing developments.[34] States and their municipalities are in strong positions to set specific conservation goals that best serve the health, safety, and welfare of its residents through outdoor recreation.[35] Despite federal reform to conservation, there are opportunities to effectively conserve land at the local level. Outdoor recreation represents but one strategy opening the door to new and improved state-led conservation projects.[36]
III. Vermont’s Model State Conservation Project
A special conservation project is coming to fruition in Vermont, aligning the interests of outdoor recreationists and conservationists alike. Vermont is implementing ne of the largest conservation projects in the Northeast to date—the “Velomont.”[37] The Velomont is a huge trail connection project designed to improve local land conservation and encourage outdoor recreation.[38] The Green Mountain State’s expansive conservation project “will represent the largest hut-supported trail network in the U.S.” and conserve 214,000 unprotected acres of land.[39] The Velomont represents a massive collaboration between nonprofit organizations, state agencies, and private landowners.[40] This is not just a concept—the vision arose in 2016 and official planning began in 2023.[41] The “Velomont Vision Plan” lays out numerous goals that guide decision making on the statewide effort.[42]
The Velomont project is a model for intentional land conservation.[43] The Velomont addresses concerns from competing interests while outlining the benefits of such a massive project.[44] Outdoor recreation was a primary motivator of the Velomont. The ancillary motivators of protecting migratory wildlife corridors, boosting economic activity in small rural towns, and promoting public health are just as significant for the State of Vermont.[45] Additionally, this trail connection project creates a contiguous tract of conserved land the length of the state.[46] Generally, the distribution of conserved land is a result of convenience rather than strategic planning.[47] The Velomont represents a methodical approach to conservation that will benefit future generations of people and biodiversity.[48] States should follow Vermont’s lead by intentionally linking outdoor recreation with land use to create new opportunities for recreation and ecological protection in contiguous strips of conserved land. The Velomont Vision Plan even lays out the process for state organizations to develop similar projects.[49]
IV. Why Should States Follow Vermont’s Lead?
Despite challenges with local land conservation and federal cuts to conservation initiatives, it remains a valid interest to prioritize. Outdoor recreation is a primary use of public lands and a major contributor to the U.S. economy.[50] Public lands are the foundation of America’s $1.2 trillion outdoor recreation industry, which “accounted for 2.2 percent of the nation’s gross domestic product” in 2017.[51] Despite numerous economic benefits accompanying outdoor recreation, conservation efforts also encourage healthy populations and environments.[52] The current American reality, however, is that “less than half of people in the United States live within half a mile of a park.”[53] Inequitable access to public lands can be addressed through local and state initiatives. A well-designed, accessible conservation area offers endless benefits.[54] Individuals recreating outdoors experience lower cortisol levels, healthier heart functions, decreased likelihood of developing depression, and a closer connection to the community.[55] In addition to health benefits, green spaces have been shown to encourage social interaction in communal spaces.[56]
In 2024, 81 million people recreated on public lands.[57] The millions of people visiting public lands contributed to the local economy and connected with the community.[58] Outdoor enthusiasts may not align themselves on issues pertaining to how land is used, but all agree that access to conserved land is a necessity.[59] The ultimate goal of protecting everyone’s right to recreate on public lands requires collective action. Conservation issues can result in alignment because American land conservation is an “inherently bipartisan issue.”[60]
Conclusion
State conservation projects are crucial to protect public lands during this period in American politics. Conservation projects can receive widespread support among voters.[61] Outdoor recreation is an excellent strategy to advocate for conserving tracts of land.[62] Recreationists are rallying for threats to America’s public lands—public comments on recission of the roadless rule alone, which protect remaining truly wild places, reached 625,749.[63] The latest attack on public lands comes from President Trump’s attempt to de-recognize conservation as a valid land use.[64] Dissembling an inherently American ideal of protecting wild places for current and future generations is an issue that abridges ideological divides.[65] Hunters, fishers, mountain-bikers, hikers, and off-roaders all share a common interest in maintaining access to conserved areas despite ideological disagreements.
Moving forward, state legislators should genuinely consider similar projects to the Velomont that blend outdoor recreation and land conservation intentionally. There are efficient strategies to manage land conservation that states can utilize to minimize negative impacts to the environment.[66] Indigenous communities have extensive knowledge of “wildlife migration patterns, seasonal changes, and ecosystem balance” to develop community centered conservation.[67] States can adopt “strict carrying capacities” on recreation areas to prevent overcrowding and erosion.[68] Land conserved for outdoor recreation must include community engagement and careful planning to protect access for current and future generations.[69]
[2] Kate Wall, the nature of conservation is inherently bipartisan, IFAW (Dec. 15, 2020), https://www.ifaw.org/people/opinions/conservation-bipartisan; John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341, 343 (2022) (“Americans of all persuasions have come to agree on the importance of protecting [public] lands.”).
[3] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No. 11 (Nov. 14, 2019).
[6] John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341, 341 (2022) (“[I]ndustrial uses like mining, drilling, and large-scale commercial logging take place on a relatively small proportion of Forest Service and BLM lands.”).
[8] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No. 11 (Nov. 14, 2019).
[11]Id.; Roger L. Moore & Beverly L. Driver, Introduction to Outdoor Recreation: Providing and Managing Natural Resource Based Opportunities 209 (Venture Publishing 2005).
[12] Jeffery L. Marion, Impacts to Wildlife: Managing Visitors and Resources to Protect Wildlife, Interagency Visitor Use Mgmt. Council, Nat’l Park Serv. (March 2019).
[13] Roger L. Moore & Beverly L. Driver, Introduction to Outdoor Recreation: Providing and Managing Natural Resource Based Opportunities, 214 (Venture Publishing 2005); See Sierra Forest Legacy, Off-road Vehicles, https://www.sierraforestlegacy.org/FC_FireForestEcology/TFH_OHV.php (last visited Oct. 10, 2025) (outlining substantial negative impacts from off-road vehicles).
[14] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No. 11 (Nov. 14, 2019).
[17] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No.11 (Nov. 14, 2019).
[21]See generally John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341 (2022) (“[P]oliticians have time and time again joined hands regardless of political party to hold and protect more lands in U.S. ownership.”).
[27] John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341, 352 (2022) (“Reagan signed legislation adding more than eight million acres to the national wilderness system, the largest addition in any single year since the Wilderness Act.”).
[29] Great American Outdoors Act, Pub. L. No. 116-152, 134 Stat. 682 (2020) (establishing dedicated funds for use by National Parks and Public Lands); Great American Outdoors Act, U.S. Dep’t of the Interior, https://www.doi.gov/gaoa (last visited Oct. 10, 2025) (describing the Great American Outdoors Act as necessary to address overdue maintenance needs); Rescission of Conservation and Landscape Health Rule, 90 Fed. Reg. 43990 (Sept. 11, 2025) (to be codified at 43 C.F.R. pts. 1600, 6100).
[46] Compass Vermont, U.S. Forest Service Approves 72-Miles for the Velomont Bike Trail in Vermont (Sept. 4, 2025), https://www.compassvermont.com/p/us-forest-service-approves-72-miles; L. Claire Powers et al., Reconnecting stranded public lands is a win-win for conservation and people, 270 Biological Conservation June 2022 at 109557 (connecting conserved land use projects benefit both wildlife and people).
[47] L. Claire Powers et al., supra note 46 (outlining the negative aspects of “checkerboarded” nature of private and public land parcels).
[56]Id.; Viniece Jennings & Omoshalewa Bamkole, The Relationship between Social Cohesion and Urban Green Space: An Avenue for Health Promotion, 16 Int. J. Env’t Res. Public Health 452 (2019).
[68] Moore & Driver, supra note 66 (introducing formula to calculate carrying capacity based on acreage, trail mileage, and vulnerability of the system).
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).
[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.
[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.
[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)
[23]SeeComprehensive Procurement Guideline (CPG) Program, US EPA, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program; see alsoFederal 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).
[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).
[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.
When Agencies Overlook the Environment, NEPA Speaks Up By Gustavo Concepcion-Cordero
More than 55 years after its enactment, the National Environmental Policy Act (NEPA) is still a valuable tool for environmental advocates.[1] NEPA requires federal agencies to consider if there are reasonably foreseeable environmental impacts of proposed major federal actions.[2] An agency will have to issue an Environmental Impact Statement (EIS) if it finds that its proposed action has a reasonably foreseeable significant effect on the quality of the human environment.[3] Environmental advocates regularly bring suits when they believe an agency failed to prepare an EIS or a conduct a proper EIS.[4] One common outcome when a court finds that the agency did not comply with NEPA is to issue an injunction and order the agency to prepare a proper EIS.[5] While courts have described NEPA as a purely procedural statute, federal agencies must comply with its environmentally conscious provisions.[6]
In recent years, however, Congress has made certain NEPA challenges more difficult to pursue. In 2015 Congress approved the Fixing America’s Surface Transportation Act (FAST Act).[7] The Act contains certain provisions affecting some NEPA claims.[8] Under the FAST Act, parties seeking to bring a NEPA claim must submit a comment during the agency’s environmental review period and these claims are subject to a two-year statute of limitations.[9]
NEPA also created the Council on Environmental Quality (CEQ) with the purpose of, among other duties, assisting and advising the President on certain environmental matters, including NEPA implementation.[10] For almost 50 years, the CEQ promulgated government-wide regulations for other agencies to follow when implementing NEPA, but the current administration has taken actions to reduce the CEQ’s power.[11] As a part of his first day executive orders, the President reduced the regulatory power of the CEQ to implement NEPA regulations.[12] By April the CEQ was forced to rescind all of its NEPA regulations.[13]
The President may seek to expedite and simplify the permitting process, but this cannot come at the expense of our environment.[14] NEPA is part of the rule of law and agencies are still subject to judicial review when they fail to properly consider the reasonably foreseeable environmental impacts of their actions. Environmental advocates are not giving up, nor should they.
Recently, a group of advocates in Puerto Rico obtained a partial summary judgment in their favor against the Federal Emergency Management Agency (FEMA).[15] FEMA is currently working on projects to rebuild Puerto Rico’s power grid, following the devastating impacts of Hurricane Maria in 2017.[16] These projects will have a substantial impact on the citizens of Puerto Rico, as it has been reported that FEMA will spend billions of dollars on the repairs.[17] The suit, filed by the Center for Biological Diversity and eight Puerto Rican community groups, highlights how FEMA failed both to consider renewable energy sources in its plans and to prepare an EIS.[18]
The court found there would be significant impacts to human life in Puerto Rico and an EIS should have been prepared.[19] The court proceeded to explain how the agency’s decision will affect the vast majority of Puerto Rico. First, continued reliance on the existing energy infrastructure will affect public health and safety considering the frequent power outages caused by the aging infrastructure.[20] Second, the projects will likely affect park lands, ecologically critical areas, and protected species considering how transmission lines run through some of these areas.[21] Finally, it could establish a harmful precedent for future actions: if FEMA funding continues to be used for fossil fuel-based infrastructure, it is unlikely that Puerto Rico will have the resources to pursue renewable energy alternatives in the near future.[22]
What FEMA’s ultimate EIS may look like is yet to be seen, but they are required to go back and consider renewable energy alternatives for Puerto Rico and the environmental impacts of their proposals. Hopefully, FEMA will propose and pursue a project that is good for the environment and the people of Puerto Rico. However, as the Supreme Court has stated: “NEPA merely prohibits uninformed—rather than unwise—agency action.”[23] While this statement can be disheartening, it’s still a powerful one. Uninformed agency action is still prohibited, and courts are willing to hold agencies accountable.
The role of NEPA may seem small, but it can play a crucial role in federal decision making. The federal government engages a significant number of major federal actions; the least it can do is consider reasonably foreseeable environmental impacts of its actions. Especially when noncompliance may significantly affect the quality of human life. After all, complying with procedural statutes is an essential part of government integrity.
[23] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
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).
[11] Kimberley Terrell, Gianna St. Julien, & Michael Ash, Pervasive Racial and Ethnic Disparities in the U.S. Petrochemical Workforce, 235 Ecological Econ. 2 (2025).
Data Centers are Increasing Utility Rates—What are States Doing About it? By Daniela Ricardo
Data Centers are Increasing Electricity Consumption and Everyone Else is Paying For It Utility bills are rising because of data centers.[1] Residential rates are up 6.6% since 2023.[2] Additionally, more than 100 utilities have either raised or proposed higher rates for a total increase of 67 billion dollars.[3] These rising prices are due to increased demand,[4] namely from data centers.[5] In 2023, 4.4% of the electricity consumed in the United States was consumed by data centers.[6] This percentage is only projected to increase.[7] Data centers increase utility rates because they require expensive updates to the grid, which existing ratemaking allows to be shifted to residential consumers.[8]
Residential consumers end up paying for part of data centers’ electricity consumption in addition to paying for data centers’ infrastructure needs. To understand how residential consumers end up paying for data centers’ power consumption, understanding utility ratemaking is essential. Utilities are monopolies.[9] Most are investor-owned and for-profit.[10] Because electricity is an essential service and the industry is shielded from competition, utilities must be regulated.[11] Public utility commissions (PUCs) make sure utilities charge justifiable rates through rate cases.[12] PUCs use the “cost causation” principle to examine whether consumer rates correspond to the costs utilities incur in providing electricity to like consumers.[13] Utilities propose their preferred rates based on their own analyses and records.[14] Part of this proposal includes dividing the cost of operating expenses and profit among customers with similar infrastructure requirements.[15] These groups are called “ratepayer classes.”[16] For each ratepayer class, utilities propose different tariffs to standardize what they pay.[17] Because the cost-causation principle is flexible, all ratepayers can be made to pay for all transmission costs.[18]
Traditional cost distribution shifts the cost of updating the grid for data centers onto residential consumers.[19] The increase in electricity demand requires high-voltage transmission infrastructure.[20] Residential consumers, however, require low-voltage systems.[21] Therefore, data centers require transmission that residential consumers do not require.[22] However, utility-planned transmission is paid for by the customers within their territory.[23] Because the Federal Energy Regulatory Commission (FERC) does not require utilities to keep transmission connection costs separate from other transmission costs, utilities do not differentiate the costs incurred from data centers from that of other consumers.[24] Hence, all consumers within a utility territory pay for all transmission costs regardless of whether they benefit from it.[25]
PJM Interconnection, a regional transmission organization (RTO) monitoring utilities in thirteen states and the District of Colombia, exemplifies how traditional cost distribution has operated in the modern sphere.[26] In 2023, PJM approved a $5.1 billion cost-share plan for transmission costs.[27] PJM assigns transmission costs based on each utilities’ share of power demand and share of benefits.[28] When PJM allocates costs to each PUC, each PUC allocates costs based on ratepayer classes.[29] Over half of the cost incurred in this case was attributed to Virginia’s data centers.[30] Ratepayers in other states argued that they should not be made to pay for transmission when Virginia alone would realize the economic benefits.[31] Because it is presumed that all ratepayers benefit from transmission proportional to their energy consumption, FERC dismissed the economic benefit argument,[32] and approved the plan.[33] In Maryland and Virginia, residential ratepayers paid for more than half of the transmission costs.[34] Unless utilities require data centers to pay for transmission up-front, residential ratepayers will end up paying for it.
When utilities do not make data centers pay for transmission costs up front, they run the risk of building unnecessary transmission.[35] Ratepayers could be on the hook for transmission costs even when a data center does not connect to the grid.[36] Utilities build transmission anticipating the large load, but when it does not come ratepayers still have to pay for it.[37] Most data centers do not pay for transmission up-front.[38] Instead, they sign contracts with utilities behind closed doors.[39]
Traditional ratemaking allows data centers and utilities to shift costs onto residential consumers through special contracts or favorable tariffs. Because data centers are large consumers, they negotiate with utilities directly.[40] Utilities offer data centers lower rates to entice them into building in that utility’s service area.[41] As opposed to ratemaking, these private contracts have little opportunity for public participation and review.[42] The process is not transparent and is isolated from other ratepayers.[43] Furthermore, these contracts incentivize utilities to increase rates for residential consumers in the next ratemaking case.[44] Utility tariffs can function similarly. For example, Florida Power and Light (FPL) recently proposed a rate hike of $10 billion.[45] In a revised settlement, FPL walked back plans to create a new tariff for data centers which would have required data centers to pay 65% higher rates.[46] Instead, data centers under a certain size would save 50% off their base bills.[47] The increase in residential rates directly contrasts data centers’ savings.[48]
Are State Laws Protecting Residential Ratepayers? Several states have sought to address a major risk data centers pose to ratepayers—building too much transmission. In Ohio, data centers must pay penalties if they commit to using a certain amount of electricity and do not do so.[49] Data centers must pay 85% of the capacity they committed to for twelve years unless they give three years’ notice.[50] In Virginia, Dominion Energy has proposed both a rate increase and an exit fee for large load consumers.[51] It would require large load consumers to sign a fourteen-year contract.[52] If they withdraw early or do not build the facility, the consumer will still have to pay for their proposed energy costs.[53] Additionally, the consumer would have to pay a certain percentage of demand charges for transmission, distribution, and generation.[54] Oregon’s Power Act creates a new rate class for large energy users.[55] Oregon requires large energy users to sign contracts for at least ten years.[56] Large energy users are also required to pay for a minimum amount of energy and an extra fee if they exceed the maximum amount of energy projected.[57] To address potential burdens on residential ratepayers, Texas takes a slightly different approach.[58] Texas requires large energy users to pay for infrastructure costs.[59] It also requires large energy users to disconnect during emergencies and register backup generators.[60] In California, a new law requires the California Public Utilities Commission to conduct a study on the effects of data centers on ratepayers.[61]
While state-level legislation is progressing, the trend towards penalizing data centers falling short of commitments does not address major issues in traditional ratemaking. Unless data centers pay for transmission costs up-front, residential ratepayers will foot the bill. Furthermore, states with a lot of data centers are incentivized not to require data centers to pay for transmission upgrades up-front under current cost distribution methods.[62] If the RTO a state is in apportions costs by energy consumption among all states in the region, the state incurring those costs benefits the most. If that state required data centers to pay for transmission costs up-front, data centers would look elsewhere. On the other hand, requiring a data center to pay for energy it committed to using simply makes sure a utility gets paid. Either way, residential ratepayers are still on the hook for the cost of connecting data centers to the grid. Texas’ law requiring data centers to pay for costs up-front addresses this issue. Another way of addressing this issue would be changing how the cost causation principle works. If residential ratepayers are not using it, they should not pay for it.
[8]E.g., Ivan Penn & Karen Weise, Big Tech’s A.I. Data Centers Are Driving Up Electricity Bills For Everyone, N.Y. Times (Aug. 14, 2024), https://www.nytimes.com/2025/08/14/business/energy-environment/ai-data-centers-electricity-costs.html (“recent reports expect data centers will require expensive upgrades to the electric grid, a cost that will be shared with residents”); see Levy, supra note 1 (“[U]nless utilities negotiate higher specialized rates, other ratepayer classes . . . are likely paying for data center power needs”).
[28] Martin & Peskoe, supra note 9 at 15 (explaining that PJM assigns transmission costs based on each utilities’ share of power demand and share of benefits).
[38] Union of Concerned Scientists, supra note 19 at 5 (explaining that only large load customers paid for transmission connection costs up-front or directly in only 5% of cases in 2024).
[44]Id. (describing a FERC audit’s discovery of Duke Energy’s plan to “shift the cost of the discount” of a data center to other ratepayers by raising their rates).
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.
[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).
[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).
