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).
Lewis Ritchie pulls a kayak through floodwater after delivering groceries to his father-in-law on July 28, 2022 outside Jackson in Breathitt County. (Photo by Michael Swensen/Getty Images).
Fracking The Hills: The Legal Exemption Flooding Appalachia By Kathryn Stapleton
The Appalachian Mountain region has long endured frequent and devastating floods. From the shale-rich hills of West Virginia to the hollers of eastern Kentucky and the Blue Ridge Mountains of western North Carolina, communities have repeatedly witnessed creeks overflowing and valleys drowning in mud and debris. While climate change has intensified annual rainfall, another, less visible factor is compounding the crisis: the Halliburton Loophole. This exemption from federal regulations on hydraulic fracturing allows companies to inject millions of gallons of fluid underground with minimal oversight, further destabilizing the region’s already fragile hydrology and escalating the risk of catastrophic flooding.
The Halliburton Loophole: What It Is and How It Came to Be
The Halliburton Loophole was created by the Energy Policy Act of 2005, which amended the Safe Drinking Water Act (SDWA) to exempt most hydraulic fracturing operations from the Underground Injection Control (UIC)program.[1] The UIC program was originally established to regulate underground fluid injection and safeguard underground sources of drinking water (USDWs).[2] Prior to 2005, the Environmental Protection Agency (EPA) had the authority to require permits, conduct testing, and monitor subsurface injections, including those involving fracking fluids.[3]
This changed with the 2005 amendment, heavily supported by Vice President Dick Cheney, a former Halliburton CEO, and redefined “underground injection” to exclude “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations.”[4] Consequently, the EPA lost its authority to regulate the chemical makeup, injection pressures, or long-term impacts of fracking fluids.[5] Oversight now largely rests with state agencies, which in Appalachia are frequently underfunded, understaffed, and subject to political pressures.[6] The result is a fragmented regulatory system that leaves watersheds vulnerable to contamination, slope instability, and hydrologic alteration.
Connecting Fracking to Flooding: Hydrology in Hills
At first glance, fracking and flooding seem unrelated—one occurs deep underground, the other unfolds on the surface. Yet in the Appalachian Mountains, the two are deeply connected. The region’s folded shale, fractured sandstone, and legacy coal seams create natural pathways for groundwater flow. When millions of gallons of high-pressure fluid are injected into these formations, underground water movement is disrupted, potentially opening new fractures or reactivating dormant ones.[7] Without the SDWA’s UIC permitting requirements, these subsurface changes frequently go undocumented, leaving regulators unaware of dangerous buildups in groundwater pressure.[8]
When heavy rains arrive—and in Appalachia, they always do—these modified subsurface pathways amplify runoff.[9] Water that once seeped gradually into the ground may now be channeled directly to streams through fractures, raising discharge rates and peak flood levels.[10] The EPA’s 2016 assessment of hydraulic fracturing impacts found that these subsurface changes can “create or enhance hydraulic connections between deep formations and near-surface aquifers.”[11] In some instances, fracking fluids and brine have migrated upward through abandoned wells or faults, contaminating both groundwater and surface water sources.[12]
Surface disturbance further heightens the risk.[13] Fracking operations require clearing land for well pads, access roads, and retention ponds, which are often on steep, sensitive slopes.[14] These impervious surfaces limit infiltration and accelerate stormwater runoff.[15] When heavy rains pound barren hillsides, erosion worsens, stream channels become clogged with sediment, and flash floods grow even more destructive.[16]
West Virginia: Ground Zero for Legal and Hydrologic Failure
Nowhere are these dynamics clearer than in West Virginia. The 2016 West Virginia floods, which killed 23 people and caused over $1 billion in damage, were exacerbated by deforestation, slope development, and poorly regulated energy infrastructure.[17] Researchers have since argued that hydraulic fracturing and related industrial activity amplified runoff in already-fragile watersheds.[18]
A U.S. Geological Survey (USGS) study in the Monongahela River Basin found that stress-relief fractures—naturally occurring cracks in the bedrock—act as important groundwater pathways and are highly sensitive to changes in underground pressure caused by human activity.[19] Even deep injection activity can alter groundwater discharge patterns that sustain valley streams.[20] Research also shows that areas near shale-gas wells exhibit elevated groundwater pressures and disrupted base-flow dynamics, highlighting the connection between subsurface fluid injection and surface-water response.[21] These findings demonstrate how the Halliburton Loophole’s regulatory gap hinders the hydrologic review necessary to anticipate and prevent flood impacts.
Kentucky: Landslides, Injection, and the 2022 Floods
In eastern Kentucky, where steep terrain and shale formations intersect with intensive energy extraction, the effects of deregulation have been equally severe. The July 2022 floods killed more than 40 people and devastated entire communities.[22] Although extreme rainfall triggered the disaster, post-event analysis revealed that widespread landslides and debris flows were linked to saturated, fractured slopes already destabilized by mining and drilling.[23]
Kentucky’s oil and gas statutes lack robust requirements for cumulative hydrologic impact assessment or subsurface injection monitoring.[24] Because the Halliburton Loophole preempts federal UIC oversight, the EPA cannot require operators to model how injection pressures might interact with groundwater or slope stability. The result is a self-reinforcing cycle: weak regulation leads to altered hydrology, which amplifies natural hazards in already vulnerable mountain communities.
North Carolina: A Lesson in Prevention
Unlike its neighbors, North Carolina has so far avoided widespread fracking. In 2013, the state’s Mining and Energy Commission proposed rules to require chemical disclosure for hydraulic-fracturing fluids, but the effort was weakened by lobbying from industry groups citing trade secret protections.[25] Legal challenges and political shifts delayed comprehensive regulation, leaving the state with only partial transparency requirements.[26] If the Halliburton Loophole persists, any future expansion of fracking in North Carolina will likely proceed without essential hydrologic safeguards or baseline groundwater testing—raising the risk of destabilization and flooding seen elsewhere in the region.[27]
Legal and Policy Implications: Federalism at Its Breaking Point
The Halliburton Loophole undermines the Safe Drinking Water Act’s central goal: safeguarding underground drinking water from contamination and structural damage.[28] In hydrologically connected regions like Appalachia, this exemption threatens not just groundwater but also surface stability and flood resilience. By shifting oversight to states—without adequate funding, technical resources, or consistent standards—Congress created a regulatory blind spot at the intersection of energy development and climate risk..[29] As a result, fracking can move forward in flood-prone areas without federal review of hydrologic risks, cumulative injection pressures, or the interplay between slope geology and extreme rainfall.
Reform and Responsibility: Closing the Loophole for Climate Resilience
Congress should amend the Safe Drinking Water Act to repeal the 2005 exemption and restore EPA authority over hydraulic fracturing fluids under the UIC program. The Fracturing Responsibility and Awareness of Chemicals (FRAC) Act—introduced multiple times since 2009—would close this loophole, mandating chemical disclosure and groundwater monitoring.[30] In addition to reinstating oversight, regulators should embed flood resilience into permitting by requiring hydrologic impact assessments, vegetative buffers, and adaptive monitoring in areas with steep topography or high rainfall.[31] States and localities should implement complementary zoning and stormwater controls in energy fields to prevent destabilization and capture runoff before it collects in hollows. A coordinated federal, state, and local approach is essential to close both the legal and hydrologic gaps.
Ultimately, the Halliburton Loophole exemplifies a breakdown of environmental federalism. It removed crucial oversight precisely where cross-jurisdictional coordination is needed most: in watersheds that span county and state boundaries. In Appalachia, water flows downhill through communities that often lack the political power to challenge upstream industry. The loophole enables private profits while transferring the costs—damaged homes, contaminated wells, and repeated flood recovery—to local taxpayers. Repealing the loophole will not stop the rain, but it would empower regulators to ensure industrial activity no longer exacerbates natural disasters. Water always finds the gaps—and in this case, the most dangerous gap is in the law itself.
[1] Energy Policy Act of 2005, Pub. L. No. 109-58, § 322, 119 Stat. 594, 694 (2005) (codified at 42 U.S.C. § 300h(d)(1)(B)).
[5] U.S. Env’t Prot. Agency, Permitting Guidance for Hydraulic Fracturing Using Diesel Fuels (Feb. 2014).
[6] Mary Tiemann & Adam Vann, Cong. Rsch. Serv., R41760, Hydraulic Fracturing and Safe Drinking Water Act Regulatory Issues (2015).
[7] Granville G. Wyrick & James W. Borchers, Hydrologic Effects of Stress-Relief Fracturing in an Appalachian Valley, U.S. Geological Surv. Water-Supply Paper 2177 (1981).
[8] U.S. Env’t Prot. Agency, EPA-600-R-16-236, Assessment of the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources (2016) (finding that “limited data availability and lack of consistent monitoring make it difficult to determine the full extent of hydraulic connectivity or subsurface pressure changes resulting from hydraulic fracturing operations”).
[19] D.B. Chambers et al., US Geological Survey, SIR 2014-5233, Water Quality of Groundwater and Stream Base Flow in the Marcellus Shale Gas Field of the Monongahela River Basin (2015), https://pubs.usgs.gov/sir/2014/5233/pdf/sir2014-5233.pdf.
[29] U.S. Gov’t Accountability Off., GAO-14-555, Oil and Gas Regulation: Opportunities Exist to Improve Oversight of Hydraulic Fracturing Activities (2014).
[30] Fracturing Responsibility and Awareness of Chemicals (FRAC) Act, H.R. 2133, 117th Cong. (2021).
How ICE Raids Impact the Enforcement of Labor Rights for Migrant Farmworkers By Grace Cunningham
Migrant farmworkers are the backbone of the U.S. agricultural industry, providing essential work from planting and harvesting to caring for livestock. In 2020–2022, only 32 percent of crop farmers were U.S.-born.[1] This workforce faces many vulnerabilities despite the critical role it plays in our food systems. Labor rights protections, such as those provided under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the National Labor Relations Act (NLRA), are designed to safeguard these workers from exploitation.[2] Yet, the increasing frequency of Immigration and Customs Enforcement (ICE) raids have created a climate of fear and uncertainty that render statutory labor protections largely ineffective, revealing a need for immigration and labor policies that prioritize worker safety and rights over punitive enforcement.[3]
Legal Protections for Migrant Farmworkers
The MSPA establishes critical protections for migrant and seasonal farmworkers. This includes requirements for fair wage payment, compliance with work arrangements, and prohibitions on retaliatory actions such as termination, blacklisting, or threats of deportation.[4] These provisions aim to address the inevitable power imbalance between migrant workers and their employers, ensuring that farmworkers can work under safe and nondiscriminatory conditions.[5] Courts have interpreted the MSPA to apply broadly to ensure protection of these workers, regardless of their immigration status. In Phillip D. Bertelsen, Incorporated v. Agricultural Labor Relations Board, the Court held that undocumented status did not preclude farmworkers from receiving backpay.[6] Similarly, in Martinez v. Shinn, the Court upheld damages for wage misrepresentation and retaliation under the MSPA, highlighting the Act’s central role in addressing exploitation of migrant labor.[7] Finally, in Eliserio v. Floydada House Authority, the Court reaffirmed Congress’s intent to make the MSPA accessible to migrant workers by denying a motion to transfer venues.[8] Together, these cases demonstrate the judiciary’s recognition that the MSPA must be construed liberally to ensure meaningful protection for migrant farmworkers.
Similarly, the NLRA extends protections to all “employees,” including undocumented workers, as established in Sure-Tan, Inc. v. NLRB.[9] Although later decisions, such as Hoffman Plastic Compound, Inc. v. NLRB, limited available remedies for undocumented workers, the Court still reaffirmed that they are entitled to the same protection against unfair labor practices.[10] These statutory frameworks create enforceable rights, regardless of immigration status, that ICE raids undermine.
The Impact of ICE Raids on Labor Rights Enforcement
ICE raids disrupt the enforcement of labor rights in several different ways. First, the fear of detention or deportation discourages workers from reporting any labor violations or asserting their rights. This effect is particularly pronounced in industries where undocumented workers make up a significant portion of the workforce. In 2020–2022, the U.S. estimated that 40 percent of all crop farmers were undocumented or lacked legal immigration status.[11] Workers are likely to avoid filing complaints on wage theft, unsafe working conditions, or any other abuses out of fear that it could lead to their deportation.[12]
Second, employers could exploit the threat of immigration enforcement as a tool of retaliation. Employers may report workers to ICE in response to union activity or complaints about labor violations.[13] This directly undermines the protections guaranteed under the MSPA and NLRA. Such practices not only harm the individual workers but weaken the collective efforts to improve working conditions across the industry.
Constitutional Implications
ICE raids raise serious Fourth, Fifth, and Fourteenth Amendment concerns. Warrantless workplace raids raise issues under Camara v. Municipal Court,[14] which require administrative searches to be conducted with the consent of an authorized occupant or pursuant to a judicial warrant. In Noem v. Vasquez Perdomo the Supreme Court temporarily stayed a district court’s injunction that had barred federal immigration agents from conducting stops based solely on race, ethnicity, language, or occupation.[15] The emergency order, issued without oral argument or briefing, effectively allowed these practices to continue, raising significant constitutional concerns. Additionally, the reports of racially discriminatory targeting during raids also implicate the Equal Protection Clause under the Fourteenth Amendment and the Due Process Clause under the Fifth and Fourteenth Amendments.[16] Further, relying on race violates reasonable search and seizure requirements under the Fourth Amendment, as recognized in United States v. Brignoni-Ponce.[17]
Reports of warrantless searches and discriminatory practices during ICE raids further erode trust between migrant communities and the legal system. This erosion of trust extends beyond just law enforcement and to labor advocacy organizations and other institutions that rely on cooperation from workers.[18] By undermining statutory labor protections, ICE raids perpetuate a cycle of exploitation that not only harms migrant workers but also threatens the long-term sustainability of the agricultural workforce.
Protecting Workers, Strengthening the System
The intersection of immigration enforcement and labor rights present complex challenges for migrant farmworkers and the entire agricultural industry. ICE raids exacerbate existing vulnerabilities, undermining the enforcement of labor protections and creating a climate of fear that threatens advocacy and organization.[19] To begin to address these issues, we need to strengthen and enforce legal protections for migrant workers. Strengthening reforms should enhance anti-retaliation provisions in the MSPA and NLRA to prevent employers from weaponizing immigration enforcement.[20] Reforms should also expand U Visas, which provide legal status to noncitizen victims of certain crimes, to cover labor violations, and make T visas, which protect victims of human trafficking, accessible to farmworkers who are exploited, allowing farmworkers to report abuse without fear of deportation.[21] Finally, safeguards against warrantless workplace raids should be enforced.[22] Together, reforms could ensure that migrant workers have a clear legal path to protect their rights. Ensuring these reforms are implemented is essential to protecting migrant workers, upholding labor rights, and sustaining a just agricultural system.
[12]See e.g. Does I–XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1071 (9th Cir. 2000) (recognizing the threats of retaliation, such as deportation, deters undocumented workers from filing complaints).
[13]See e.g. Arias v. Raimondo, 860 F.3d 1185, 1187 (9th Cir. 2017) (highlighting several retaliatory practices where employers contacted immigration authorities to intimidate workers asserting their workplace rights).
[14] Camara v. Municipal Court, 387 U.S. 523, 530–31 (1967)
[15] Noem v. Vasquez Perdomo, No. 25A169, 606 U.S. ____ (2025).
[16]See U.S. Const. amend. XIV, § 1; U.S. Const. amend. V.
[17] United States v. Brignoni-Ponce, 422 U.S. 873, 886 (1975) (holding ancestry alone is insufficient to justify a stop under the Fourth Amendment); see U.S. Const. amend. IV.
Cruelty for Me but Not for Thee: How Vermont’s Animal Cruelty Laws Could Protect Farmed Animals By Anthony Corradi
Complaints of animal cruelty in Vermont rarely result in a change to an animal’s status. Voluntary compliance or enforcement via civil or criminal penalties only occur in 21% and 1.3% of cases respectively.[1] There are many reasons for this, including the fragmentation of the law’s enforcement and lack of knowledge as to what constitutes a violation.[2] Cases involving livestock and poultry are even rarer given the deference afforded to accredited animal husbandry practices.[3] Despite these challenges, an analysis of Vermont’s animal cruelty statute shows that Vermont can—and should—enforce a provision of the law to inhibit several common methods of farmed animal confinement.
The Vermont Legislature wrote the animal cruelty statute with the broad purpose of “prevent[ing] cruelty to animals.”[4] Correspondingly, the State should interpret and enforce the law to respect its breadth.[5] The statute states that one commits criminal cruelty when one “[t]ies, tethers, or restrains . . . livestock, in a manner that is inhumane or is detrimental to its welfare.”[6] This provision further exempts “[l]ivestock and poultry husbandry practices.”[7] However, in defining this term, the legislature did not simply defer to common or accepted industry practices. Instead, a three-part conjunctive test requires, in part, that farmers raise animals consistent with “husbandry practices that minimize pain and suffering.”[8] This language creates a powerful exception (to the exception) for farmed animals.
The State need not prove that farmers tying or restraining animals intended to act in a manner detrimental to the animal’s welfare. In State v. Gadreault, the Vermont Supreme Court held that this provision creates a strict liability offense.[9] Thus, Vermont only needs to show that a farmer has voluntarily tied or restrained an animal in a manner that causes harm.[10]
Further, because husbandry practices must minimize pain and suffering to be exempt from the cruelty statute imposes a real limit on acceptable farming techniques.[11] Since the legislature did not define “minimize,” we start with the dictionary definition.[12] The dictionary defines “minimize” as: “to reduce or keep to a minimum,”[13] where “minimum” means “the least quantity . . . possible.”[14] While some may interpret these definitions as only requiring a nominal reduction in pain and suffering, a straight reading requires farmers to take non-cost prohibitive measures to eliminate pain and suffering at any cost. The Vermont Supreme Court has not resolved this ambiguity in the context of the animal cruelty statute, as it has done in other statutes.[15] In those cases, the Court has generally taken the middle route, holding that one meets a mandate to “minimize” when a fact-intensive inquiry shows evidence of reasonable and concrete steps taken to mitigate negative effects.[16]
Accordingly, Vermont could use its current animal cruelty law to prevent several types of on-farm confinement such as battery cages and veal crates. Of special relevance to dairy-loving Vermont, though, is the “tie stall.” Tie stalls are a housing scheme in which farmers confine a cow to a narrow stall by a neck collar and chain.[17] Numbers for Vermont alone are unavailable, but as of 2014 between 20% and 42% of cows were kept in tie stalls in the eastern U.S.[18] These are likely conservative estimates for Vermont as the data also showed tie stall usage increased as herd size decreased.[19]
In a potential criminal or civil enforcement action, the State would need to show that confining a cow in a tie stall is a voluntary act done in a manner that is detrimental to the cow’s welfare. Of course, farmers choose to use tie stalls, and thus the voluntary requirement would generally be irrelevant. The question of the cow’s welfare is only slightly more difficult. Farmers can point to certain benefits of tie stall use that are incidental to a lack of outdoor freedom—such as the reduced prevalence of foot lesions.[20] Conversely, the negative effects of tie stalls are more numerous and arguably more severe. Harmful outcomes include disrupted natural lying behaviors, increased physiological stress levels and injury rates, and decreased emotional states.[21] As farmers and governments alike have concluded from similar observations and data, tie stalls are almost certainly more detrimental to cows’ welfare than not.[22]
Harmful or not, however, tie stalls are an accredited animal husbandry convention. Thus, Vermont would still need to show that the customary livestock practice exception should not apply. Here, the exception is void if the farmers using tie stalls have not taken reasonable actions to mitigate cows’ pain and suffering. Considering the statute’s broad purpose, the State could likely show that any act short of replacing tie stalls with free housing is unreasonable. Even if not, farmers would have to submit evidence of concrete steps taken to reduce the harm of tie stalls. Though less desirable than an outright exclusion, this would still reduce extended or permanent tie stall use as outdoor access is the clearest way to reduce negative outcomes.[23]
The State’s inaction on farmed animal cruelty is not solely due to a lack of legal authority. To the contrary, the Vermont Legislature and Supreme Court has made it clear that the law applies to farmers who do not take reasonable steps to reduce harm. This surely implicates the use of objectively detrimental practices like tie stalls, veal crates, or battery cages without further mitigating action. As a result, Vermont’s prosecutors and courts have a powerful tool—should they choose to utilize it—that could improve the lives of vast numbers of animals.
[9] 171 Vt. 534, 536 (2000) (concluding strict liability offense since punishment not severe and provision lacking intent element other provisions include).
[10]Id. at 537, (holding that “the restraint need only be detrimental” and “the perpetrator’s actions be voluntary”).
[11]SeeIn re SM Farms Shop, LLC, 2025 VT 33, ¶ 10 (“[W]e presume that language is inserted advisedly and that the Legislature did not intend to create surplusage.”).
