Right to Farm or Right to Monopolize? How Litigation Shields Accelerate Agricultural Consolidation and Environmental Degradation
By Grace Cunningham
For decades, pharmaceutical and biotechnology company Bayer (formerly Monsanto) has insisted that its Roundup herbicide was safe to control weeds, despite one of its active ingredients being linked to cancer and shown to be carcinogenic to humans.[1]Across the country, veterans exposed to cancer-causing chemicals in contaminated water at Camp Lejeune are just now beginning to seek justice.[2] And in hospital neonatal intensive care units (NICUs), Abbot Laboratories, a global healthcare company, pushed baby formula out to the most vulnerable population despite its links to necrotizing enterocolitis––a serious and often fatal disease.[3]
These high-profile cases demonstrate that when corporate interests endanger public health and the environment, the legal system is often the only path to accountability and justice. But what happens when that path is blocked? For rural communities, Right-to-Farm laws (RTFLs) are doing just that. These laws have shielded corporate-owned mega-farms from lawsuits and have allowed agriculture consolidation to accelerate, leaving rural communities and traditional farms to bear the environmental, health, and economic costs.[4]
Developed in the 1970s and 1980s, RTFLs were the response to a sprawling suburbia encroaching on farmland.[5] As residential development expanded into agricultural areas, long-established farms increasingly faced nuisance lawsuits – claims that ordinary farming activity unreasonably interfered with neighboring properties. RTFLs were designed to limit these suits and protect farmers from liability while adhering to standard agricultural practices.[6]
Overtime, lobbying efforts from large agribusiness have expanded the scope of Right-to-farm laws to coincide with the market consolidation and growth of industrial agriculture.[7] State legislators expanded what “normal” practice means to cover these industrial-scale activities.[8] Legislators also redefined phrases such as “significant change” to exclude the expansion of size or the conversion of a small farm into a Concentrated Animal Feed Operation (CAFO).[9] These Right-to-Farm laws were deliberately re-drawn to fit the new wave of industrialized agriculture, all while excluding traditional farms.[10]
The effect of these changes has been profound. As consolidation increased, a small handful of corporations now control the vast majority of livestock markets, leaving independent farmers with little to no bargaining power.[11] Communities near these factory farms face declining property values due to odor, water contamination, and public health risks tied to poor air quality.[12] While RTFLs were meant to help rural communities, they now are used to block rural residents from accessing justice.
Many state RTFL protections require agriculture operations to be of a commercial scale or meet acreage requirements.[13] Notably, there are currently no RTFLs that are specifically focused on protecting traditional and family farmers. In 1982, Minnesota was the only state to define “family farm,” then subsequently struck down this provision.[14]
Going back to the original intent of these RTFLs, to protect farmers and farmland from urban takeover, it is clear that the laws were designed with good intentions.[15] However, over time, these laws have been exploited to serve the interests of factory farms and have accelerated the path to consolidation of the agricultural industry. Consequently, this has left traditional farms and rural communities vulnerable to the unregulated factories put up next door.[16]
Closing loopholes that have allowed factory farms to escape litigation is necessary to hold industrial agriculture accountable to the communities that they pollute. At the same time, RTFLs should continue to protect independent family farmers while preserving the original purpose of these laws. This would allow traditional farmers to have a better chance at competing in the marketplace and could revitalize rural economies.
The benefits extend far beyond economics. Protecting traditional farms while limiting the expansion of industrial-scale factories would have significant environmental benefits. Factory farms are notorious for their contribution to local pollution and worldwide greenhouse gas emissions.[17] By protecting traditional farmers, who are far better stewards of the land, we can reduce the environmental harms of modern-day agriculture.
Just as lawsuits against Bayer, the federal government, and Abbott have been critical in exposing the hidden costs of unsafe practices and products, litigation remains an essential tool for holding corporations accountable. When RTFLs are manipulated to block access to the courts, rural communities lose the same chance at justice that cancer patients, veterans, and families in NICUs have fought to secure. By restoring RTFLs to their original purpose of protecting traditional farmers, we can use the legal system to work as a safeguard for public health, the environment, and the future of farming.
[8] Danielle Diamond et al., Agricultural Exceptionalism, Environmental Injustice, and U.S. Right-to-Farm Laws, 52 Env’t. L. Rep. 10727 (2022).
[9] Ashwood et al., How “Right-to-Farm” Laws Hurt Farmers, Barn Raising Media (Jan. 22, 2024).
[10] Neil D. Hamilton, Right-to-Farm Laws Reconsidered: Ten Reasons Why Legislative Efforts to Resolve Agricultural Nuisances May Be Ineffective, 3 Drake J. Agri. L. 103, 112 (1998).
[16] Don E. Albrecht, The Industrial Transformation of Farm Communities: Implications for Family Structure and Socioeconomic Conditions, 63 Rural Sociology 51 (1998).
[17] Karuppan Sakadevan & Minh Long Nguyen, Livestock Production and Its Impact on Nutrient Pollution and Greenhouse Gas Emissions, 141 Sci.s in Agronomy 147, 155 (2017).
Community Land Trusts as a Tool for Land Reparations
By: Jill Reynolds
Whiteness is embedded in property law. From the groundbreaking law review article, Whiteness as Property, “American law has recognized a property interest in whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated.”[1] As a result of this bias, Black communities have been systemically prevented from acquiring or maintaining land and thus, generational wealth.
Agricultural land is no different. In fact, farmland rests overwhelmingly in white hands. In 1920, Black farmers made up 14% of all producers.[2] Today, Black farmers make up 1.4% of the 3.4 million producers in the country.[3] This is nearly a ninety percent loss.[4] Numerous factors led to Black farmland loss, including institutional discrimination. Much of the institutional discrimination took the form of discriminatory lending. Pigford v. Glickman is the seminal class action lawsuit brought by Black farmers against the U.S. Department of Agriculture (USDA) for decades of discriminatory lending practices.[5]
In Pigford, Black farmers brought claims of discriminatory loan practices by the Farmer Service Agency (FSA)––formerly known as the Farmers Home Administration (FHA), the branch of the USDA responsible for administering loans to American farmers. First, USDA “willfully discriminated against them and other similarly situated [Black] farmers on the basis of their race when it denied their applications for credit and/or benefit programs or delayed processing their applications.”[6] Second, when farmers “filed complaints of discrimination… the USDA failed properly to investigate and resolve these complaints.”[7]Pigford resulted in a $1 billion settlement.[8] While historic, this remedy only scratched the surface of addressing harms. Foremost, the payout went only to producers discriminated against between 1982 through 1996.[9] For some, it was already too late.
New Communities Incorporated (New Communities), a Black owned and founded community land trust (CLT), failed due to these discriminatory practices. CLTs are an alternative land access model that prioritizes community ownership and takes land out of the speculative market. A CLT is a nonprofit entity that holds title to land to serve community-oriented interests.[10] Primarily, they exist to serve as long-term, affordable solutions for buying homes and leasing low-cost agricultural land.[11]
The first CLT, New Communities, grew out of the southern civil rights movement in the 1960s in Georgia.[12] The goal was to establish economic and political independence for Black farmers and their families being forced off the land. New Communities bought 5,000 acres of agricultural and forested land in 1970. However, they had to borrow much of the one-million-dollar purchase.[13] Caught in a debt treadmill, all agricultural products produced went towards paying down their debt burden.[14] After successive years of drought and discriminatory lending practices by FHA, New Communities had to sell off a parcel of their land: 1,300 acres.[15] The rest of the land was lost a few years later to foreclosure.[16]
Fortunately, the entity of New Communities never dissolved, and through Pigford they recovered monetary damages.[17] Using the $12 million payout, they purchased the Cyprus Pond Plantation outside Albany, Georgia, a 1600-acre parcel in June of 2011.[18] Despite these setbacks, community land trusts (CLTs) are still a powerful, underutilized legal solution to reclaim lost agricultural land.
Currently, there are few agricultural community land trusts in the U.S. Yet, they offer flexibility for landholders and farmers without much capital. In practice, the CLT holds title to the land and grants ninety-nine-year ground leases to farmers. Farmers are allowed to make improvements to the land, such as building infrastructure and installing irrigation.[19] The farmer then owns these improvements and can sell them when they decide to retire or move on to a new venture.[20] The land itself is held by the CLT and rented out for a low cost.[21] Not only does the agricultural land stay perpetually affordable, but it also allows farmers to adapt to a changing climate and steward their land as they see fit.[22] This arrangement is far more flexible than a conservation easement, which can forbid certain types of improvements to land, often to the detriment of the farmer.[23]
Importantly, a CLT is governed by a tri-partite board. One part is individuals on the land, one part community members, and one part public interest representatives. The democratic style of this governing structure allows for community involvement and community buy-in to the land. While it may be a more challenging model than individual ownership of land, it presents an opportunity for coalition building and political might.
Community land trusts can increase land access for groups historically disadvantaged from land ownership, but they still require institutional support. Until other funding structures fill in the gaps, it is crucial to prevent discriminatory lending practices to allow for equal access to land. Institutional funders should prioritize socially disadvantaged groups and conduct outreach into these communities. Community-based lawyers can assist in facilitating outreach and be on alert for discriminatory practices. Advocacy groups can call farmers in and call injustices out. On stolen land, everyone has a role to play in reparations.
[1] Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1713-14 (1993).
Our Food System is Sustained by Undocumented Immigrants
By Dalia Rodriguez-Caspeta
On January 20, 2025, Donald Trump signed 26 executive orders.[1] Amongst them was Executive Order 14159 titled “Protecting People Against Invasion.”[2] The order’s purpose is to “protect the American people by faithfully executing immigration laws of the United States.”[3] The order authorized the “efficient and expedited removal of [immigrants] from the United States.”[4] Since then, Immigration and Customs Enforcement (ICE) has “arrested 66,463 [undocumented immigrants] and removed 65,682 [immigrants]” and counting.[5] “Over forty percent of hired crop farmworkers lack legal immigration status” in the United States.[6] In California, it is estimated that about 75% of farmworkers are undocumented.[7]
To understand the effect expedited removal of undocumented individuals will take on the nation, understanding California’s contribution to food production is crucial. “California is the nation’s sole producer . . .of a large number of specialty crops.”[8] The list includes almonds, artichokes, figs, olives, and walnuts.[9] “The state produces about half of the U.S.-grown fruits, nuts, and vegetables.”[10] In 2023, agricultural exports from California totaled $22.4 billion.[11] Essentially, food produced in California reaches the entire nation.
Amongst the fields, farmworkers are vital for the harvesting of the produce.[12] Yet, under the new ICE efforts, Latino farmworkers have stopped going to work.[13] Initially, the Trump administration refrained from ICE raids in farming communities, but quickly changed course.[14] ICE agents started conducting raids “at farm fields and packinghouses from the Central Coast to the San Joaquin Valley.”[15] Raids were documented on farms and fields in Tulare and Ventura counties.[16]
The Central Coast and San Joaquin Valley house some of the top food production counties in the United States.[17] At the top is Fresno County, followed by Tulare, Monterey, and San Joaquin.[18] Most of the farms located in these counties employ undocumented workers.[19] As the immigration raids began targeting these communities, farms have suffered. Farmworkers have stopped going to work for fear of being taken on their commute to work.[20] According to Marcy Kreiter, “Migrants are reluctant to take the chance of being hauled off to detention.”[21] Farmers are struggling to get their crops harvested as more than half of their workers have stopped showing up for work.[22] Farms expecting about 300 workers have only 80 show up after immigration raids.[23]
Farmers are not only experiencing losses in labor, but their crops have also gone unharvested, creating economic losses for them as well.[24] A farmer in Ventura County stated, “if 70% of your workforce doesn’t show up, 70% of your crop doesn’t get picked and can go bad in one day.”[25] Loss of labor thus means loss of crops and loss of food on American tables.
Outside of California, farmers are also experiencing crop and revenue loss. In Oregon, a farmer lost most of his workforce, leaving cherries to rot on the tree.[26] At the end of the picking season, the farmer will lose $250,000–$300,000 of revenue.[27] In Texas, Farmer Nick Billman lost his entire workforce.[28] He is struggling to find workers as he starts planning for the fall season.[29] Billman estimates that if he cannot find labor for his harvest plans, he is going to lose about $100,000 to $150,000 in revenue.[30]
In addition to the loss of revenue, grocery prices may be affected by immigration raids. From July 2024 to July 2025, food prices rose 2.9%.[31] If the produce is not harvested within a specific timeframe, it risks being sunburned or becoming over mature.[32] The labor shortage, in some instances, has prevented the harvest of crops, leading to loss not just for the farmers but for the nation.
The ongoing immigration raids affect the entire food system in the United States. Undocumented immigrants compose 75% of farmworkers in California[33] and 42% nationwide.[34] In addition to farming and agriculture, undocumented workers have a significant presence in food production, wholesale, and restaurants.[35] The fear of being taken away from their families has prevented many from going to work.[36] After a couple of days, others resume going to work due to economic necessity.[37]
The current approach to immigration in the United States is ineffective and harmful to the immigrant community. The leaders of this nation must take a different approach to immigration. Mass deportations are not the solution. Rather, our focus should be looking to new reforms tailoring pathways to legalization. Our food system depends on the immigrant community. They sustain our food system. No one should be living in fear.
Are Youth Plaintiffs Winning the Court Battle but Losing the Climate War? Lessons from Montana and Hawai’i Youth Plaintiff Climate Cases
By Swithin Shearer
Young people occupy a unique space in the fight against climate change. Today’s youth are projected to see some of the most drastic climate change impacts unless countries take immediate action to reduce greenhouse gas (GHG) emissions.[1] However, the voting age is 18 or older in the vast majority of countries.[2] Without a political voice, youth can be forgotten or excluded from the climate change conversation. Youth have raised their voices and responded by filing climate lawsuits against the government to effectuate positive change.[3] But does litigation, or a court victory, necessarily result in climate or environmental benefits? The classic legal answer is: it depends.
Two recent cases in the United States, brought on behalf of young people in Montana[4] and Hawai’i[5], are illustrative. In Held v. Montana and Navahine F. v. Hawai‘i Department of Transportation, the plaintiffs demanded that their voices be heard as part of the climate conversation. In both cases, youth plaintiffs sued their State to demand changes to policies that adversely affected the environment.[6] The plaintiffs in each case alleged the State violated their constitutional right to a “clean and healthful environment”[7] when the State endorsed the use of fossil fuels.[8] The plaintiffs in both cases leveraged environmental protections embedded in their state constitutions to challenge the government. And, in both cases, they won their legal battles. For the Navahine F. plaintiffs, the on-the-ground outcome was a happy ending; the Held plaintiffs were not so lucky.
Montana Litigation: Empty Victory
Montana youth are arguably worse off than before the Held decision. In Held, the plaintiffs’ argument centered around the Montana Department of Environmental Quality’s analysis (or lack thereof) of GHG emissions during environmental review pursuant to the Montana Environmental Policy Act (“MEPA”).[9] The district court determined the statutory scheme for environmental review was not compatible with the constitutional guarantee of a clean and healthful environment.[10] Rather than accepting the district court’s decision, the State elected to appeal the decision to the Montana Supreme Court.[11] Two of the issues on appeal were whether the Montana Constitution required a “stable climate system” and whether the challenged portions of MEPA were unconstitutional.[12]
By challenging the substantive core of the district court’s decision, Montana showed it was not willing to improve its environmental policy voluntarily. After the Montana Supreme Court affirmed the district court’s decision,[13] the legislature passed two bills in response.[14] The bills amended MEPA by making evaluation of GHG emissions optional and eliminating the unconstitutional portions that prohibited evaluation of GHG emissions.[15]
Combined, the changes to MEPA weaken environmental protections for actions requiring environmental review. GHG emission data, if evaluated, may only be “given appropriate consideration and assessment.”[16] Previously, GHG emissions could be considered in decision-making.[17] Legislators had the opportunity to bolster environmental protections by requiring, rather than prohibiting, GHG emission assessment. Instead, they downgraded the value of emissions data by choosing to make evaluation optional and limiting the use of that information. This may ultimately leave Montanans, and the youth plaintiffs who brought the suit, in a more vulnerable position than they previously occupied.
Hawai’i Litigation: Ideal Outcome
In Navahine F., the youth plaintiffs argued their constitutional rights had been violated because Hawai’i’s carbon emissions had no reasonable prospect of decreasing enough to meet the State’s “Zero Emissions Clean Economy Target” by 2045.[18] In contrast with Held, the Navahine F. litigation in Hawai’i resulted in a favorable settlement agreement that required the State to, among other terms, “develop and implement a concrete and comprehensive statewide plan . . . to reduce GHG emissions . . . .”[19] The Hawai’i Department of Transportation (HDOT) has since set a goal to achieve “zero emissions in the transportation sector.”[20] HDOT has also drafted a plan for GHG reduction across the State in order to achieve that goal;[21] a final plan is scheduled to be completed by October 2025.[22] The State must set five-year “GHG emissions reduction targets” and perform a periodic “comprehensive review and update.”[23] Unlike Montana’s response to the Held decision, Hawai’i has shown its willingness to embrace its responsibility to protect the environment for its citizens in the aftermath of litigation.
Reflecting on Held and Navahine F.: Was Litigation Successful?
Two key questions arise when comparing the outcomes of the Held and Navahine F. cases. First, why were the outcomes so starkly different? And second, does a court win really mean the plaintiffs will be better off? The answer to both questions seems to hinge on whether the government’s actions are voluntary or forced. The aftermath of Held shows the risks of climate litigation when a state’s elected officials do not wish to grapple with climate issues. Where a state takes a hostile view toward climate-conscious policies, a victory in court does not necessarily translate to a successful shift in a government’s climate policies. Yet, it is those circumstances where climate litigation is the most enticing to try to force the government to shift its policies. This is particularly important for youth plaintiffs, who are unable to vote to influence policy. Litigation therefore provides a much-needed forum for youth to seek justice on climate-related issues, especially those that violate explicit state constitutional protections.
Youth plaintiff lawsuits that challenge a state’s climate policies based on state constitutional protections are fairly novel.[24] Such litigation is unlikely to be widespread; only a handful of state constitutions have sufficiently specific provisions protecting a citizen’s right to a clean and healthful environment to support legal claims such as those raised in Held and Navahine F.[25] Yet, the possibility of success has prompted similar lawsuits in other states.[26] However, youth plaintiffs would be wise to pause before jumping into litigation. They will need to consider the possibility that their government may choose to further retreat from environmental policies when faced with climate litigation, as the Held plaintiffs are now witnessing in Montana. Because in Montana’s case, the youth plaintiffs won the court battle, but they may have lost the climate war.
[3]See, e.g., Complaint at 1, Dunn v. Wis. Pub. Serv. Comm’n, No. 2025CV002797 (Wis. Cir. Ct. Aug. 22, 2025); Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020); Complaint for Declaratory and Injunctive Relief at 1–4, Lighthiser v. Trump, No. CV-25-54-BU-DLC (D. Mont. May 29, 2025).
[4] Held v. Montana, No. CDV-2020-307 (Mont. 1st Dist. Ct. Aug. 14, 2023).
[5] Complaint, Navahine F. v. Hawai‘i Dep’t of Transp., No. 1CCV-22-0000631 (1st Cir. Jun. 1, 2022).
[6] Complaint at 1–3, Held v. Montana, No. CDV-2020-307 (Mont. 1st Dist. Ct. Mar. 13, 2020); Complaint at 1–4, Navahine F. No. 1CCV-22-0000631.
[10] Held v. State, No. CDV-2020-307, 2023 Mont. Dist. LEXIS 2, at *129.
[11] Notice of Appeal of Governor Greg Gianforte, Mont. Dep’t of Env’t Quality, Mont. Dep’t of Nat. Res. and Conservation, and Mont. Dep’t of Transp., 2024 MT 312 (No. DA 23-0575).
[14] A third bill, H.B. 229, was introduced. H.B 229, 69th Leg., 2025 Sess. (Mont. 2025). Based on the initial amendments it made to MEPA, it could have expanded, or at least not scaled back, environmental protections. However, H.B. 229 died in process. Id.
[17] Mont. Code Ann. § 75-1-201(b)(ii) (emphasis added).
[18] Complaint at 3–4, Navahine F. v. Hawai‘i Dep’t of Transp., No. 1CCV-22-0000631 (1st Cir. June 1, 2022).
[19] Joint Stipulation and Order re: Settlement Ex. A: Settlement Agreement and Release 5, Navahine F. v. Hawai’i Dep’t of Transp., No. 1CCV-22-0000631 (June 20, 2024).
[26]See, e.g., Complaint at 1, Dunn v. Wis. Pub. Serv. Comm’n, No. 2025CV002797 (Wis. Cir. Ct. Aug. 22, 2025); Complaint at 1–4; see also Natalie R. v. Utah, 2025 UT 5, 567 P.3d 550.
Walking the Talk – Can Vermont Law and Graduate School and the village of South Royalton, Vermont become an example of respect for the right to a right to a clean, healthy, and sustainable environment?
By Todd Howland & Katherine Cantor
Todd Howland serves as Interim Director of the Environmental Justice Clinic and Visiting Professor at Vermont Law and Graduate School, and is also a Senior Fellow at the Institute on Race, Power and Political Economy at the New School.
Katherine Cantor is a 2L and is the Research Assistant for Professor Howland, as well as a Staff Editor on Vermont Law Review.
What comes to mind when you consider human rights? Is it something along the lines of summary executions and torture in far off countries? The reality of human rights is different and is much closer to home. Human rights are relevant to everyone’s lives, every single day and include civil, political, economic, social, and cultural rights.[1] For example, the right to a clean, healthy, and sustainable environment impacts all of our lives each day. “All human rights depend on a healthy environment. We cannot be healthy, eat adequate and nutritious food, drink clean water and breathe clear air without it.”[2]
Not only are human rights integrated into our everyday lives, but human rights are also more than limits on government action. Instead, human rights should be seen as a social contract that creates rights and duties for each of us that we owe to each other in order to create healthy and prosperous societies. All levels of government, village to national, have duties to respect, protect, and fulfill human rights including ensuring that individuals (including the most powerful individuals) and corporations respect our human rights. “This extends to protecting people from foreseeable and preventable human rights harms caused by all forms of environmental degradation.”[3]
As Eleanor Roosevelt—who was Chair of the Drafting Committee of the Universal Declaration of Human Rights—said in 1958, “[w]here, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world.” [4] That would be us, on our bend of the beautiful White River. We all have a duty to respect the right to a clean, healthy, and sustainable environment and that duty extends to all decisions we make.
Many cities and local governments are beginning to embrace the fact that they have duties and obligations to fulfill human rights law. A city councilor in Winnipeg, Canada, stated, “[a] quiet revolution is happening, cities and municipal actors are doing a lot of incredible work to understand how they can engage more with human rights.”[5] Many localities have designated themselves as ‘Human Rights Cities’ where the local governments recognize their duties under international human rights law and integrate human rights into decision and policy making “to promote the rights of their constituents.”[6] We are aiming to be one of those localities.
We aim to be a community taking our human rights obligations seriously, for the benefit of us all, because if it does not start locally, where will it start? To the degree that we have the power to help implement the right to a clean, healthy, and sustainable environment, we must use that power. Further, through our effort to respect the right to a clean, healthy, and sustainable environment we can further all rights, including the rights to quality affordable housing, access to health care, and livelihoods. We can demonstrate to all those willing to learn that you do not need huge capital but sensible financing to go green and that going green does not necessarily produce negative consequences, like gentrification. It is all about understanding interconnections and doing due diligence about the impact of our actions on others in order to create a “Just Green Transition” that is human rights enhancing.[7]
There have already been numerous efforts in the law school community—too many to mention here—applying our human rights duties in our community. Perhaps the most well-known example being the composting toilets in Oakes.
Among the many efforts going on at VLGS today, are those of: Marley Wiest, Kathryn LaMontagne, Kirt Mayland, Genevieve Byrne and Dee Gish (partnering with 350 Vermont), on developing a geothermal energy network in SORO; Lara Herrmann with the Animal Law Society who is working on implementing more vegan options and days at the Cafe; Vanessa Kranz and Professor Ireland who are working on window decals to decrease bird strikes and deterring the campus from utilizing rodenticides; Caroline Sherman-Gordon, a community farmer, who works with Rural Vermont on a host of agricultural issues wants to partner with the school relative to composting and local food production; and the students, staff and faculty re-dynamizing our food waste composting system; Jenny Carter at the Institute of Energy and the Environment has expanded our EV charging capabilities, both on campus and in service to the town; Rich Levitt and Taylor Cox are looking at ways to raise funds or investments for moving VLGS and SORO to green energy. Additionally, last semester students and faculty launched the Just Green Transition effort not only for VLGS and SORO to up our game, but to convert us into a world leader.
Please join us all in accepting our human rights obligations to implement a clean, healthy, and sustainable environment for one another. During this time of the negation of rights and rule of law, we can lead the way to creating a campus and village that are respectful of all human rights for everyone. Our practices will demonstrate that human rights begin close to home, in places so small that they cannot be seen on any maps of the world, but through this effort, it will put us on the map!
Join us to walk our talk. Take the linked survey to be part of the solution or to find out how you can become part of the solution. Also, look for work study and volunteer opportunities in this area by contacting Talor Cox at tcox@vermontlaw.edu.
Pseudo-Science and Bad Law: The Trump Administration’s Proposed Repeal of the Endangerment Finding
Patrick Parenteau, Emeritus Professor of Law, Vermont Law and Graduate School
On August 1, 2025, the Environmental Protection Agency (EPA) formally proposed rescinding the “endangerment finding” under the Clean Air Act (CAA).[1] This is the finding that greenhouse gases (GHG) pose a danger to public health and welfare. The endangerment finding was issued in 2009 in response to the landmark Supreme Court decision in Massachusetts v. EPA holding that GHG were “air pollutants” subject to regulation under the CAA and that once, the EPA makes the endangerment finding, it has a mandatory duty to regulate all the major sources of GHG including power plants, motor vehicles, and a wide variety of industrial sources.[2]
In addition to revoking the endangerment finding, the proposal seeks to rescind all GHG emission standards for new motor vehicles and engines. This rescission includes GHG emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines for model years 2012 to 2027, and beyond. Separately, the EPA has proposed rescinding the GHG rules for power plants and published a rule extending the compliance deadlines for methane emissions from oil and gas production.[3] Further deregulatory actions are expected.
In announcing the proposal, EPA Administrator Lee Zeldin stated the Trump administration’s intent to drive “a dagger through the heart of climate-change religion.”[4] His proposal relies heavily on a new Department of Energy (DOE) report on the impacts of carbon dioxide emissions on the U.S. climate.[5] The report was produced by the Climate Working Group convened by DOE Secretary Chris Wright and comprised of five “independent scientists” who are widely considered to be climate skeptics.[6] Their draft report argues that human-caused climate change “might be less damaging economically than commonly believed,” and “aggressive mitigation strategies could be more detrimental than beneficial.”[7]
In the accompanying commentary Professor Adam Orford provides a legal analysis of how the CWG violates the Federal Advisory Committee Act (FACA). Professor Orford also authored a detailed scientific critique on the DOE report that was signed by several environmental law professors and submitted as comments to the EPA.[8]
In a related development, the Environmental Defense Fund and the Union of Concerned Scientists have filed suit in Massachusetts federal court seeking a declaration that the CWG violates FACA and an injunction prohibiting EPA from relying on its report. Plaintiffs have filed a motion for preliminary injunction, or a stay and expedited briefing is underway. A hearing before Judge Young is expected this month. Professor Orford’s analysis could prove helpful to the outcome of this case.
This repeal is more than a regulatory rollback; it is a willful abandonment of the scientific, legal, and moral foundations of environmental protection. But the fight to restore the integrity of the EPA’s mission has just begun. The courts will have the final say, and in the end, I am confident truth and justice will prevail.
When Platforming Climate Skepticism Breaks the Law
Adam Orford, Associate Professor of Law, Fordham University School of Law
On July 29, 2025, the U.S. Department of Energy (DOE) released a draft report titled “A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate.”[9] The report was an exercise in climate science skepticism: contrary to an enormous body of more credible scientific work, it argued that climate change is minimally attributable to human activity, that the negative impacts of climate change are likely to be manageable and outweighed by beneficial effects, and that U.S. regulatory efforts to respond would not make a substantial difference in any event.[10] It read more like talking points from a think tank than a federal science study.
The DOE’s report was immediately condemned as inaccurate and misleading by scientists from around the world.[11] A group of researchers whose work the report had cited identified more than one hundred mischaracterizations and false statements contained in its pages.[12] A later published rebuttal by over 85 scientists identified similar flaws.[13] In my own review, I identified examples of extensive cherry-picking, overgeneralization, analysis outside the scope of the authors’ expertise, self-citation, and failure to address research contrary to the authors’ preferred conclusions, as among its most important analytical deficiencies.[14] In most respects, the report simply was not a credible scientific document.
Notwithstanding these technical deficiencies, however, and despite the fact that the DOE report was a draft that had never received outside review or public comment, the Environmental Protection Agency (EPA) relied on the DOE’s report extensively in its proposed decision to reverse the 2009 Endangerment Finding, eliminating the nation’s entire greenhouse gas regulatory program under the Clean Air Act, which was published on the same day the draft report was released.[15]
In relying so heavily on the DOE’s report, however, the EPA seriously undermined its own efforts. As discussed below, the DOE solicited its report from five authors who have each spent much of their recent careers questioning the scientific consensus on climate change. In doing so, the DOE ignored the Federal Advisory Committee Act (FACA), which it was required to follow.[16] Therefore, the EPA built its endangerment finding analysis on a report produced by an illegal federal advisory committee.
Federal courts have consistently required federal agencies to comply with FACA, have enjoined federal agencies from using advice produced in violation of FACA, and have held unlawful federal agency decisions based on such advice. Concerned litigants should have little trouble demonstrating that the same relief is justified in this case, which appears to be simultaneously the most blatant and most consequential FACA violation ever to have been perpetrated.
The “Red Team” Report: Federal Platforming of Climate Skepticism
On April 20, 2017, Steven Koonin, then a professor at NYU, published an op-ed in the Wall Street Journal arguing that climate science should be subject to a federal “red team” exercise, whereby a group of climate skeptics would “write a critique” of a consensus climate science assessment, and a “blue team” would then defend the assessment against that critique.[17] Shortly afterwards, inspired by the op-ed, EPA Administrator Scott Pruitt began discussing how to initiate exactly such a process.[18]
Analysts immediately raised concerns that the EPA’s “red team” plan “could politicize scientific research and disproportionately elevate the views of a relatively small number of experts who disagree with mainstream scientists,” and be used as a pretext for eliminating greenhouse gas regulation.[19] Others quickly noted the “red team” approach was exactly the strategy employed by The Heartland Institute, a think tank heavily involved in supporting climate skepticism, in its “Nongovernmental International Panel on Climate Change” reports, which similarly tend to elevate climate skepticism over credible scientific debate.[20] The Heartland Institute, for its part, encouraged the endeavor and sent the EPA a list of proposed members for the red team exercise, including among them Drs. John Christy, Judith Curry, Steven Koonin, and Roy Spencer—four of the five future authors of the DOE’s report.[21]
Eventually, White House Chief of Staff John Kelly vetoed Administrator Pruitt’s efforts to conduct a red team exercise on climate science, fearing the spectacle would not go well.[22] But the idea remained. Immediately after President Trump won the 2024 election, reports emerged that he was open to reviving the red team initiative.[23] According to Steven Koonin, it would involve “four or five researchers on each side.”[24] However, no further reporting on the idea emerged. In July 2025 it was revealed that the DOE had hired Drs. Koonin, Christy, and Spencer as special government employees for undisclosed work,[25] but nothing about their work was made public. When Dr. Christy was asked about his new role, he stated only that he was “just here to help as needed.”[26]
In fact, Drs. Christy, Spencer, and Koonin, together with two others, had been recruited personally by Secretary of Energy Chris Wright in March 2025 to conduct a “red team” exercise in secret. Although public information is still scant, what is known is that in late March 2025, Secretary Wright developed a plan for the DOE to conduct such an exercise.[27] He recruited Cato Institute policy director Travis Fisher to coordinate the effort,[28] and then personally contacted five people he had pre-selected to author the DOE report, who collectively agreed to the project and were given the official title of the DOE’s “Climate Working Group.”[29] Although the group worked intensively for several months to produce its report, that work was not publicly disclosed while it was occurring.[30] The authors completed their work in May 2025, and it was immediately sent to the EPA to support its efforts to rescind the endangerment finding. The DOE report’s publication—and the announcement of the authors’ roles in writing it—was kept secret until the day that EPA released its endangerment finding proposal.[31]
The members of the DOE’s “Climate Working Group”—Drs. John Christy, Roy Spencer, Judith Curry, Steven Koonin, and Ross McKitrick—are all members of what Dr. Spencer himself has recently called the climate science “red team.”[32] They are current and former academics, well known for their vocal skepticism of various aspects of consensus climate science and policy:
John Christy is a Distinguished Professor of Atmospheric Science and Director of the Earth System Science Center at the University of Alabama in Huntsville (UAH).[33] He rose to prominence in the 1990s for his work on satellite data to build global temperature records, but became convinced that his satellite data showed that the earth was not warming as predicted.[34] He has also argued that atmospheric temperatures are not as responsive to CO2 as most scientists believe.[35] He has frequently provided Congressional testimony opposing greenhouse gas regulation based on his beliefs, and has produced speeches and policy papers for think tanks associated with climate skepticism.[36]
Roy Spencer is a principal research scientist at UAH and Dr. Christy’s frequent research collaborator on satellite data projects.[37] He has claimed that observed climate change is largely due to natural variability.[38] Dr. Spencer has been very active with think tanks associated with climate skepticism, having served as a policy advisor for The Heartland Institute, as a visiting fellow at the Heritage Foundation, as a board member for the CO2 Coalition (formerly the George C. Marshall Institute), and as a senior fellow for the Cornwall Alliance.[39]
Judith Curry is Professor Emeritus and former Chair of the School of Earth and Atmospheric Sciences at the Georgia Institute of Technology.[40] After producing a great deal of mainstream scientific research, she became known for her increasing critiques of academic culture and her emphasis on the uncertainties of climate impact prediction.[41] Dr. Curry has been particularly noted for her influence on online media discourse around climate skepticism,[42] and has contributed to events and publications by think tanks associated with climate skepticism.[43]
Steven Koonin is a former professor, former chief scientist at BP, and former Under Secretary for Science at the DOE, and is currently a fellow at the Hoover Institution at Stanford.[44] He first rose to national prominence for challenging questionable cold fusion research claims in the late 1980s.[45] Today, he is best known for his advocacy for a climate science “red team” project, and for his view that climate science is too uncertain and unsettled to form the basis of federal policymaking.[46]
Ross McKitrick is a Professor of Economics at the University of Guelph in Ontario, Canada, and he is currently a senior fellow at the Fraser Institute, a Canadian think tank associated with climate skepticism.[47] He is particularly concerned with developing statistical critiques of methods widely used to attribute observed warming to human influences,[48] and has also been active in think tanks associated with climate skepticism for decades.[49]
That is, the five authors of DOE’s “climate science” report have spent significant parts of their careers questioning broadly held views about climate science.[50] Notwithstanding their efforts, their own views on climate science have not been widely accepted by the scientific community.[51] Yet, they were selected as the sole members of the DOE’s “Climate Working Group” and wrote a report elevating their own “red team” minority views to the level of federal climate policy.
In their landmark book Merchants of Doubt, Naomi Oreskes and Eric M. Conway documented a process by which industry interests and industry-funded think tanks engage with academics and researchers to develop public relations campaigns casting doubt on policy-relevant scientific findings.[52] Other researchers have since contributed to a deeper understanding of the social and political phenomenon of “climate denial” or “climate skepticism,” which has followed this strategy very closely.[53] Of particular interest, in recent years many climate science skeptics associated with such think tanks have shifted away from contesting that climate change is occurring or that human beings are causing it, toward contesting the magnitude of future harm projections and the appropriateness of various policy response options.[54] These frameworks seem apt for describing the production of the DOE’s report. Yet Oreskes and Conway did not identify any example exactly as brazen as what the DOE and the EPA have done in this case.
The modern phenomenon of “platforming” means to provide a media platform that facilitates the promotion and dissemination of misinformation or extreme or marginalized views, often in the guise of promoting robust debate over a controversial topic.[55] The “red team” idea was perceived, correctly, as an effort to platform climate science skepticism. When Congressional committees stack witness lists with skeptics of climate science, they are platforming. When The Heartland Institute organizes a climate conference exclusively for skeptics of climate science, it is platforming. When the DOE solicits a climate science report exclusively from climate skeptics, the DOE is platforming. Similarly, when the EPA adopts that report as if it were the best scientific information available to it, it is platforming as well.
Congress, however, is free to platform. So is The Heartland Institute. The DOE and EPA, however, are federal agencies subject to federal laws regarding not only the content of and rationale of their decisions, but their solicitation of outside opinions in any manner that might influence those decisions. Federal agency platforming of climate skepticism is illegal.
DOE’s Report Is an Illegal FACA Violation, as Was EPA’s Reliance on It
The Federal Advisory Committee Act[56] was adopted to address government waste and to counteract the capture of federal advisory committees by special interests.[57] Consequently, Congress restricted the executive’s authority to create and rely on advisory committees, and imposed stringent transparency and accountability requirements on such committees’ operations.[58] FACA applies to any “committee, board, commission, council, conference, panel, task force, or other similar group” that is “established or utilized by” a federal agency “to obtain advice or recommendations” by that agency or its officers.[59] Such advisory committees must be managed according to FACA, its implementing regulations,[60] and, in the DOE’s case, the DOE’s Advisory Committee Management Program policies.[61]
The DOE’s “Climate Working Group” was an advisory committee. The DOE’s report itself discloses that its members were selected personally by the Secretary.[62] The group’s purpose, as evidenced by the identity of its authors, the circumstances of its creation, and the structure of its discussion, was to advise and provide recommendations to the DOE and EPA on how to select and communicate justifications for the DOE’s, EPA’s, and the current presidential administration’s, preferred climate policies and regulatory decisions.[63] The DOE report accomplished this purpose not simply by reporting facts, but by selectively presenting and promoting the authors’ opinions, with the potential for, and evident purpose of, the DOE’s and EPA’s future adoption and use of those opinions as their own.[64]
The “Climate Working Group,” furthermore, was not exempted from FACA.[65] The group was not a national intelligence committee, was not exempted from FACA by statute, and was created by the DOE, a federal entity.[66] The group was not a meeting of attendees assembled to “provide individual advice to a Federal official(s)” or to “exchange facts or information with a Federal official(s).”[67] The group was not “composed wholly of full-time or permanent part-time officers or employees of the Federal Government.”[68] Nor was it a local civic group, a group established to advise state or local officials, or a group established by or on behalf of a foreign country.[69] Finally, the group had no “operational” function, and therefore was not “primarily operational” in nature.[70] Non-exempt advisory committees must be formed and operated pursuant to FACA.
Yet, there is no evidence that any of FACA’s requirements were followed in the Climate Working Group’s formation or operation.[71] The group therefore was formed and operated in violation of FACA.
Of particular concern, FACA regulations require the appointment of a “fairly balanced membership, as appropriate based on the nature and functions of the advisory committee, as documented through the agency’s Membership Balance Plan (MBP).”[72] But, as discussed above, the members of the Climate Working Group all represent a single shared “red team,” climate skeptic perspective regarding the aspects of climate science they advised on. Their inclusion, together, as the exclusive authors of a scientific advisory report therefore represented a lack of membership balance and indicates they were, in fact, chosen precisely to avoid such balance.[73] This lack of membership balance may also be indicative of the committee’s intended advisory function.
The DOE’s report itself also states that the authors agreed to draft the report only “on the condition that there would be no editorial oversight by the Secretary, the Department of Energy, or any other government personnel.”[74] While this was framed as a protection of the group’s independence, in this case it appears also to reflect an attempt to protect the authors from engagement with qualified experts at the DOE and elsewhere. The legal way to protect advisory committee independence is to adhere to FACA’s requirements.[75]
Failure to comply with FACA should render all of the advice and opinions provided to the DOE in the DOE’s report unusable for purposes of federal policymaking and decision-making. Concerned litigants would be justified to seek a use injunction on that basis.[76] If at any point in the future the DOE’s, or any other federal agency’s, policymaking or decision-making incorporates, adopts, or refers to positions taken in this report, courts would be justified in concluding the department or agency has improperly relied on the report, and in reversing the Department’s or other agency’s actions on that basis.
And yet, it is clear the EPA relied extensively on the DOE’s report in crafting its justifications for its rescission of the endangerment finding. On the same day the DOE’s draft report was released publicly, and prior to the opportunity for any public comment, the EPA cited the DOE’s report repeatedly in its proposed rescission rule, treating the DOE report as a central scientific justification for the EPA’s action.[77] Even lacking any other legal inadequacies, the EPA’s reliance on the report in this likely fashion violated the Administrative Procedure Act, which requires federal agencies to base their regulatory decisions on credible scientific information.[78] But given its heavy reliance on the DOE report, the EPA itself should be deemed to have violated FACA for relying on the work of an illegal advisory committee formed in secret by a partner federal agency.
The climate science that formed the basis of the EPA’s original endangerment finding has only grown stronger in the years since 2009. To produce a report contradicting this enormous body of evidence, the EPA and DOE had no choice but to “disproportionately elevate the views of a relatively small number of experts who disagree with mainstream scientists,” as the original critics of the “red team” proposal feared. Fortunately, FACA forbids this, and, again perhaps fortunately, by violating FACA, the DOE and EPA have rendered their subsequent decisions vulnerable to legal attack. The courts should act swiftly to prevent the EPA from using such flawed science to justify its ongoing deregulatory initiative.
[10]Contra Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), Climate Change 2021: The Physical Science Basis (Masson-Delmotte et al. eds. 2021) (summarizing the full body of scientific research establishing a connection between human activities and climate change); Contribution of Working Group II to the Sixth Assessment Report of the IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability (Pörtner et al. eds. 2022) (summarizing the full body of scientific research establishing the enormous likely future harms caused by climate change); Contribution of Working Group III to the Sixth Assessment Report of the IPCC, Climate Change 2022: Mitigating Climate Change (Shukla et al. eds. 2022) (summarizing the full body of scientific research establishing the manner in which those harms can be avoided, and the important role of law and policy in achieving those aims); see also U.S. Global Change Research Program, Fourth National Climate Assessment (2018).
[35] Marianne Lavelle & Dennis Pillion, When Trump’s EPA Needed a Climate Scientist, They Called on John Christy, Inside Climate News: Politics (Nov. 2, 2020) (“Christy argued that Earth’s climate simply wasn’t that sensitive to changes in carbon dioxide. So, neither the weakened federal standards, nor California’s tougher standards, which the Administration repealed as part of its rollback, would make any difference.”). See generally DeSmog: Climate Disinformation Database, John Christy (last visited Sept. 6, 2025).
[36]See e.g., John Christy, The Global Warming Fiasco in Global Warming and Other Eco-Myths: How the Environmental Movement Uses False Science to Scare Us to Death (Ronald Bailey ed., 2002); John Christy, The Tropical Skies, Falsifying Climate Alarm, Global Warming Policy Foundation (2019); Testimony of John. R. Christy before the U.S. House Committee on Science, Space & Technology (Mar. 29, 2017); Testimony of John R. Christy before the U.S. Senate Committee on Commerce, Science, & Transportation Subcommittee on Space, Science and Competitiveness (Dec. 8, 2015).
[37] ResearchGate, Roy Spencer (last visited Sept. 6, 2025); Roy Spencer, As Retirement Approaches…, Dr. Roy Spencer, Ph. D. Blog (Oct. 26, 2024) (explaining that he is reliant on funding tied to Dr. Christy’s projects and will likely retire when Dr. Christy retires in 2026).
[39] The Heartland Institute, Roy Spencer (last visited Sept. 6, 2025); The Heritage Foundation, Roy Spencer (last visited Sept. 6, 2025); CO2 COALITION: About (last visited Sept. 6, 2025); Cornwall Alliance, Roy W. Spencer (last visited Sept. 6, 2025). Dr. Spencer was a signatory of the Cornwall Alliance’s Evangelical Declaration on Global Warming, which tied climate skepticism to intelligent design. See Prominent Signers of “An Evangelical Declaration on Global Warming”, Cornwall Alliance (May 1, 2009). He appeared frequently on Rush Limbaugh’s radio show, where he was referred to as the network’s “official climatologist.” Dr. Roy Spencer’s New Book, THE Rush Limbaugh SHOW (Apr. 20, 2010).
[42]See Alexander Michael Peterson et al., Discrepancy in Scientific Authority and Media Visibility of Climate Change Scientists and Contrarians, 10 Nature Commc’ns 3502 (2019). Although this article’s analysis has since been anonymized, Dr. Curry was listed as the fourth-most cited “contrarian” in the study. See DeSmog: Climate Disinformation Database, Judith Curry (last visited Sept. 6, 2025).
[46] Dr. Koonin’s views on climate science are summarized in his recent book. See Steven E. Koonin, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters (2021); but see Steven Vigdor & Tim Londergan, Debunked? A Review of Steven Koonin’s Book ‘Unsettled?’, DEBUNKING DENIAL (Oct. 4, 2021) (criticizing Dr. Koonin’s work); Mark Boslough, A Critical Review of Steven Koonin’s ‘Unsettled’, YALE Climate Connections (May 25, 2021). See generally DeSmog: Climate Disinformation Database, Steve Koonin (last visited Sept. 6, 2025).
[48]See Chen et al., A Statistical Review on the Optimal Fingerprinting Approach in Climate Change Studies, 62 Climate Dynamics 1439 (2024) (“We provide a statistical review of the ‘optimal fingerprinting’ approach … in light of the severe criticism of McKitrick. . . . Our review finds that the ‘optimal fingerprinting’ approach would survive much of McKitrick (2022)’s criticism by enforcing two conditions related to the conduct of the null simulation of the climate model, and the accuracy of the null setting climate model. . . . We further provide the reason why the Feasible Generalized Least Square method, much advocated by McKitrick (2022), is not regarded as operational by geophysicists.”).
[52] Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010) (reviewing counter-scientific discourse development in cigarette smoking, acid rain, ozone depletion, climate change, and DDT policy contexts).
[53] Recent reviews include Laila Mendy et al., Counteracting Climate Denial: A Systematic Review, 33 Pub. Understanding Sci. 504 (2024); John Cook, Deconstructing Climate Science Denial in Research Handbook in Communicating Climate Change (Holmes & Richardson, eds., 2020). See also Pascal Diethelm & Martin McKee, Denialism: What Is It and How Should Scientists Respond?, 19 Eur. J. Pub. Health 2 (2009) (defining denialism as “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.”). With respect to the quantification of consensus, see Krista F. Myers et al., Consensus Revisited: Quantifying Scientific Agreement on Climate Change and Climate Expertise Among Earth Scientists 10 Years Later, 16 Env’t Rsch. Letters 104030 (2021) (reviewing literature quantifying the scientific consensus on climate change, and finding that among scientists interviewed, 98.7% agreed that “the Earth is getting warmer mostly because of human activity such as burning fossil fuels,” while among the most qualified experts 100% agreed). With respect to common methodological issues in the contrarian literature, see Rasmus Bernstad et al., Learning from Mistakes in Climate Research, 126 Theoretical and Applied Climatology 699 (2016).
[54]See e.g., Eric Bonds, Beyond Denialism: Think Tank Approaches to Climate Change, 10 Socio. Compass 306 (2016) (identifying emerging discourses promoting limited climate mitigation, climate adaptation, and climate opportunism).
[63] The DOE Report states that the group was asked “to critically review the current state of climate science, with a focus on how it relates to the United States,” with no further explanation regarding the purpose of the review. Id. at viii. The only other stated purpose is found in the report’s Notice of Availability, which states that information submitted in response to the report “may be used to assist DOE in planning the scope of future research efforts,” implying that the report itself was produced at least in part for the same purpose. Notice of Availability: A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, 90 Fed. Reg. 36150 (Aug. 1, 2025). The history discussed above, and its use by the EPA, indicate its purpose was in part to support agency decision-making. SeeNorthwest Forest Res. Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994) (finding that FACA applied to a group purported only to have produced a technical assessment because evidence indicated that the report had influenced the government’s policymaking in a variety of ways); Nat’l Nutritional Foods Ass’n v. Califano, 603 F.2d 327 (2d Cir. 1979) (finding evidence existed from the advisory committee that FDA relied on limited viewpoints of selected group); Nat’l Res. Def. Council v. Herrington, 637 F. Supp. 116 (D.D.C. 1986) (examining parochial interests of group members in determining application of FACA, and finding FACA did not apply only where expert committee found to have no stake in the outcome, and were widely recognized as credible experts; neither of which is the case here); Heartwood, Inc. v. U.S. Forest Serv., 431 F. Supp. 2d 28 (D.D.C. 2006) (explaining that even where a group made no policy recommendations, advisory committee existed where their report provided the framework, context and information that an agency could rely on in making policy decisions).
[64] Framing the purpose of the report only as to inform or educate the DOE of minority scientific viewpoints on various topics would not save the report from FACA. The report as written is intended not only to inform, but to promote certain specific scientific viewpoints, and the existence of FACA itself implies that the federal government cannot solicit, sponsor, create, refer to, or rely on reports intended entirely to promote marginal scientific views relevant to federal policymaking and decision-making. Even to the extent that such a report could legally be produced by an advisory committee, the group’s formation would still need to comply with FACA’s membership balance requirements to ensure a thorough, comprehensive, and fully contextualized presentation of the various issues under analysis.
[67]Id. §§ (d), (e). The authors functioned as a group, not individuals. The DOE has indicated the group’s work may be used to direct research. The context of the group’s creation indicates their report is intended to inform policy, and the group’s work was a one-way report, not an exchange of information between the DOE and the group. SeeHeartwood, 431 F. Supp. 2d 28 (addressing these factors).
[70]Id. § (j). Primarily operational groups are those that directly make or implement policy. See, e.g., HLI Lordship Indus., Inc. v. Comm. for Purchase from the Blind & Other Severely Handicapped, 615 F. Supp. 970, 978–79 (E.D. Va. 1985), rev’d on other grounds, 791 F.2d 1136 (4th Cir. 1986) (explaining the group operating pursuant to regulation in various capacities was primarily operational); Pub. Citizen v. Comm’n on the Bicentennial of U.S. Const., 622 F. Supp. 753, 758 (D.D.C. 1985) (stating the commission operating by statutory mandate was primarily operational); Jud. Watch, Inc. v. Clinton, 76 F.3d 1232, 1233 (D.C. Cir. 1996) (explaining the trust primarily engaged in soliciting, managing funds, and providing no advice to government was primarily operational).
[73] The Secretary stated: “I chose them for their rigor, honesty, and willingness to elevate the debate.” U.S. Department of Energy, A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, at viii. This does not appear to be true. However, to the extent that it is, the DOE should release information regarding its efforts to develop definitions of these selection criteria, to assess all potentially qualified authors against these selection criteria, and to ensure a fairly balanced membership.
[76]See e.g., Western Org. of Res. Councils v. Bernhardt, 412 F. Supp. 3d 1227, 1242 (D. Mont. 2019) (granting use injunction); NAACP Legal Def. & Educ. Fund, Inc. v. Barr, 496 F. Supp. 3d 116, 146 (D.D.C. 2020) (discussing standards for issuance of use injunction); seeLawyers’ Comm. for Civ. Rts. Under L. v. Presidential Advisory Comm’n on Election Integrity, 265 F. Supp. 3d 54, 65-66 (D.D.C. 2017) (explaining that although FACA does not provide an independent cause of action, judicial review is still available through the APA and mandamus act).
[78] 5 U.S.C. § 551 et seq. See e.g., Bark v. U.S. Forest Serv., 958 F.3d 865, 869 (9th Cir. 2020) (“An agency action is arbitrary and capricious [under the APA] if the agency has . . . entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”).
Riccardo Savi, Photograph of a Humpback whale jumping, in Riccardo Savi: Vanishing Ecosystems.
On the Chopping Block: Trump Administration Moves to Rescind ESA Regulations Protecting Imperiled Species
In 1975—half a century ago, and less than two years after President Richard Nixon signed the ESA into law—the FWS promulgated a regulation defining “harm” to include “significant” habitat “modification or degradation” that “actually injures or kills wildlife” by “significantly” impairing “essential behavioral patterns,” including “breeding, feeding or sheltering.” The agency retained this language when it refined the definition in 1981 and the definition has remained constant ever since. In 1999 NMFS followed suit, promulgating a virtually identical regulatory definition of “harm.” The agency underscored that formalizing this definition was “not a change in existing law” and was intended to “provide[] clear notification to the public that habitat modification or degradation may harm listed species and, therefore, constitutes a take under the ESA,” and to “ensur[e] consistency between NMFS and the Fish and Wildlife Service.”
But industry does not like anything that threatens its bottom line, and the Endangered Species Act is no exception.
Challenged and Upheld: The Supreme Court Solidifies the “Harm” Definition
Not long after the FWS promulgated its regulatory definition of harm, the timber industry challenged it in court. The case, Babbit v. Sweet Home Chapter of Communities for a Great Oregon, went all the way to the U.S. Supreme Court, which rejected the industry’s challenge and upheld the agency’s regulatory definition using all the standard tools of statutory interpretation—plain language, linguistic canons, purpose, and legislative history.
First, looking to plain meaning, the Court found that the regulatory definition was consistent with the “ordinary understanding of the word ‘harm,’” which is defined as “‘to cause hurt or damage to: injure.’” As the Court explained, “that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.”
In response to the logging industry’s contention that “harm” should be limited to “direct applications of force against protected species,” the Court explained that “the dictionary definition does not include the word ‘directly’ or suggest in any way that only direct or willful action that leads to injury constitutes ‘harm.’” Moreover, the Court added, the rule against surplusage—the linguistic canon providing that no word or phrase in a statute should be interpreted as redundant or meaningless—supported the regulatory definition, because “unless the statutory term ‘harm’ encompasses indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words that [the ESA] uses to define ‘take.’”
The Court further noted that this plain language reading is consistent with the broad primary purpose of the ESA—again, “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Indeed, the Court explained, interpreting “harm” to not include indirect injuries arising from habitat destruction would, for example, give carte blanche to drain a pond, even where it was known that doing so “would actually result in the extinction of a listed species by destroying its habitat.”
In addition, the Court explained that the FWS’s definition was supported by the ESA’s legislative history: “The Senate Report stressed that ‘“[t]ake” is defined . . . in the broadest possible manner to include every conceivable way in which a person can “take” or attempt to “take” any fish or wildlife.’” And “[t]he House Report stated that ‘the broadest possible terms’ were used to define restrictions on takings” and that it included both intentional and unintentional actions. For example, the House Report explained, the Act’s definition of “take” could “prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.” In response to the suggestion that this definition was too broad the Court recognized that “harm” would need to be foreseeable to fall within the ESA’s prohibitions.
Thus, for decades, with the blessing of the Supreme Court, the ESA has been interpreted to prohibit not just directly killing or injuring a member of a listed species but also doing so indirectly through habitat modification or degradation when that death or injury is foreseeable. Since being upheld by the U.S. Supreme Court thirty years ago, this regulatory definition has remained in place and protected species from the number one threat they face: habitat loss. It is a huge reason that the Act has “saved more than 99% of species under its protection.”
On the Chopping Block: A Proposed Rescission to the Definition of “Harm”
Now, all of that is on the chopping block. In a self-described “deregulatory action,” the Trump administration recently proposed rescinding the regulatory definition of “harm,” bizarrely describing that definition—which, again, the U.S. Supreme Court upheld—as “legally incorrect.”
The government’s reasoning does not even rise to the level of specious, and the real reasons for the proposed rescission are clear: to “relieve[]” businesses of “costs” and “burden[s].” Just as interpreting “harm” to not include indirect injuries arising from habitat destruction would give carte blanche to drain a pond even where it was known that doing so “would actually result in the extinction of a listed species by destroying its habitat,” so too would it give industry complete freedom to kill and injure imperiled species. Loggers would have carte blanche to kill and injure imperiled animals like red-cockaded woodpeckers and Northern spotted owls by cutting down old growth forests. Oil companies would have carte blanche to engage in drilling that foreseeably injures and kills imperiled species like polar bears, numerous whales—including the few dozen surviving critically endangered Rice’s whales—and many, many more species.
And that is precisely the point.
President Trump has made clear, including in day-one executive orders, his intent to override longstanding environmental laws, including the ESA, to expedite the extraction of oil and gas at all costs, including species extinction—a cost that Congress and the Supreme Court have described as “incalculable.”
But the law does not allow such recklessness. As the Supreme Court explained in its first ESA case, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’” None of that has changed.
Comments on the proposal can be submitted on regulations.gov and are due by May 19, 2025.
Published: Volume 26, Issue 3 of the Vermont Journal of Environmental Law
By VJEL Spring 2025
The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 26, Issue 3. This Issue brings together critical scholarship at the intersection of law, environment, and justice—offering bold and timely insights into climate litigation, valuation of environmental harms, and federal conservation strategies.
VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 26, Issue 3 Publication or by accessing our Current Volume from the navigation header.
Articles:
First, Dayna Smith’s “The Ripple Effect: Examining Judicial Activism in Two Landmark Climate Cases” explores the influence of judicial decisions on global climate litigation. Analyzing Massachusetts v. EPA and Urgenda Foundation v. Netherlands, Smith illustrates how courts can serve as powerful catalysts in advancing environmental governance through judicial activism.
An Old-Fashioned Disease Still Poses Modern-Day Threats in Coal Country
By Savannah Collins
Hello, everyone! This is Savannah Collins, the VJEL Volume 26 Environmental Justice Editor, and this is my final post in this position. It has been an absolute honor and privilege to be part of this year’s editorial board and working on environmental justice issues at such a critical time. When I first began this position, I wanted to highlight environmental justice organizations who are on the ground, doing the hard work. I’ve been extremely fortunate to have a wonderful group of contributors this year and the opportunity to speak during the devastation following Hurricane Helene. Now, as a final send off, I would like to highlight an organization near and dear to my heart who I hope reminds you of what we are working for: our fellow person.
In September of 2024, I spoke with Mary Varson Cromer, the Deputy Director of the Appalachian Citizens’ Law Center (ACLC). The ACLC is a nonprofit law firm focused on providing justice for coal miners and those living in the coal fields of Appalachia. Founded on the needs of coal miners, ACLC has adopted a community lawyering approach grounded in a just transition. Mentioned in other posts on The Beacon, a just transition is the notion of making sure the same people are not harmed by new forms of energy we transition to as we move away from a fossil fuel economy. In the case of Appalachia, this looks like ensuring mines that were developed using mountaintop removal are properly rehabilitated, water sources are not completely depleted, and those who worked in the mines have a new place of employment as the mines shut down. It also looks like making sure miners with occupational diseases receive the benefits they were promised.
Coal mining has led to the plundering and exploitation of Appalachia. Miners have often been subjected to extremely dangerous conditions. Historically, they were exploited through the use of company towns and forced to stay in debt to the very companies using them for their labor. These horrendous conditions culminated in many armed battles with the company owners and even the federal government, including the infamous multi-ethnic strike in 1921 that led to the Battle of Blair Mountain. This battle was the origin of the term “redneck”—referring to the red bandanas signaling who were striking miners.
Today, the occupational hazards of coal mining have remained; however, the jobs have dried up quickly as the mines have closed. Due to the lower levels of available coal from centuries of mining, it now takes much more digging to find any usable coal, stirring up great amounts of silica. This increase has directly led to greater rates of black lung at younger ages and with more serious implications. Black lung, also known as Coal Miner’s Pneumoconiosis, is a latent and progressive disease where a buildup of silica in the lungs causes extensive scarring, making it more difficult to breathe. Individuals with black lung essentially are facing a death sentence simply because their work is so hazardous.
ACLC, in partnership with Black Lung Associations across Appalachia, have gone to Congress multiple times on behalf of black lung sufferers to ensure their federal benefits remain intact. In 2019, 150 miners went to Washington, D.C., to speak with lawmakers and make sure their benefits did not sunset. This action was successful.
Benefits for these occupational diseases are critical when the jobs for renewable energy often do not employ the current labor force in an area. Instead, experts are brought in to run the job sites, leaving hard working people like these coal miners struggling to find a job. There was some progress under the Biden administration’s Inflation Reduction Act, working in partnership with agreements involving the United Mine Workers of America, have been trying to link former miners with renewable energy jobs. This work has largely been put on pause with the Unleashing American Energy executive order under the current Trump administration.
Now, more than ever, it is critical to support the work of ACLC and Black Lung Associations. On April 8, 2025, the Mine Safety and Health Administration paused enforcement of the Silica Rule which requires mine operators to “update their respiratory protection programs and…obtain additional respirators.” Without rules enforcing respiratory mine safety, the effects of black lung only increase. Additionally, the National Institute of Occupational Health and Safety was closed in April of 2025, stopping black lung screenings
Wasting Time: The Undoing of a Two-Year Septic Improvement Agreement Between the Department of Justice and the State of Alabama
By Aamore Richards
The Trump administrations recent approach to Diversity, Equity, and Inclusion has posed a threat to environmental justice everywhere. Earlier this year, President Trump issued an executive order eliminating Diversity Equity and Inclusion initiatives from the foreign service, declaring them to be illegal and “immoral” discrimination programs. While it may appear that President Trump’s anti-DEI initiatives are limited to hiring protocols, the ideological premise behind this decision undermines the longstanding principals of environmental justice. At the front end of these environmental justice rollbacks is the state of Alabama.
Lowndes County, Alabama is a predominantly Black county with nearly 73% of residents being African American. In June of 2023, the Alabama Department of Public Health issued a press release detailing the issues with septic systems in Lowndes County. Septic systems serve the purpose of treating and disposing household wastewater in residences disconnected from a centralized sewer system. A properly functioning septic system should prevent sewage from backing up into homes, and therefore ease public health and sanitation concerns for community members. In Lowndes County, the septic systems are not designed or installed to work with Lowndes County Black Belt soil, a dark-fertile clay soil whose thickness makes it difficult for tradition septic systems to function. As a result, raw sewage from residents’ toilets have been washing up into their yards where children play. The incompatibility between the soil and system is leading to improper drainage of wastewater from homes—raising potential health concerns for residents from the exposure to raw sewage.
In 2023, to reconcile the sewage issue faced by Lowndes County residents, the Departments of Justice and Health and Human Services under the Biden administration reached a groundbreaking agreement with the Alabama Department of Public Health. This exclusive legal agreement between the Department of Justice and Alabama Department of Public Health sought to “protect Black and low-income residents of Lowndes County” who: cannot pay to put in a functioning septic system, cannot afford to fix one, or are not on a municipal sanitation system.
In April 2025, the Trump administration abruptly reneged on this agreement. The Department of Justice has cited this decision as an expansion of President Trump’s executive orders forbidding federal agencies to perpetuate diversity, equity, and inclusion initiatives. The silent rationale from the Trump administration appears to be that the agreement between the Department of Justice and Alabama Department of Public Health, fits within the scope of Diversity, Equity, and Inclusion, by trying to be inclusive of low income and Black Lowndes County residents in subsidizing their inability to afford proper septic systems.
The consequences of the Department of Justice’s drawback from the agreement are clear. Black and low-income residents who have not already received support in fixing or installing a compatible septic system in their homes will continue to be plagued by washed-up raw sewage. This contact with raw sewage may deteriorate the quality of health of Lowndes County residents by exposing citizens to harmful microorganisms which cause illness.
The question on everyone’s mind is can they do this? Can the federal government breach a contract with a state agency? How might the State of Alabama proceed to fill a Department of Justice-sized vacancy in their support plan for their residents? What are the legal options remaining for the state to pursue?
The state of Alabama has two options. First, formulating defenses against the Department of Justice’s abandonment of their agreement. One option the state could consider is pursuing legal action against the Department of Justic in a civil suit for breach of contract. Damages received could be used by the state to supplement the costs of continuing to provide residents assistance with installing proper septic systems. The second, and most important focus of the Alabama Department of Public Health should be to take proactive measures to limit the impact health and disease on residents from the exposure to raw sewage. One way the County can do this is by providing a pop-up health truck offering regular checkups and care to potentially exposed low-income residents. By providing health care access assistance, the County can directly monitor and work to prevent the consequences of the failing septic systems.
The Department of Justice’s betrayal of Lowndes County residents is all the more reason why environmental agreements and initiatives ought not to be left to the whims of presidential administrations changes but engraved in the fabric of law. The County may consider filing suit against the federal government for breach of contract or for the County’s economic losses in beginning to facilitate the program. Costs may include any purchases of systems and contracting of employees to work on the implementation and installment of suitable septic systems. If successfully, the County may request the government fulfill its obligations or request compensation which can be used for the County to facilitate the program on its own.
