Published: Volume 26, Issue 1 of the Vermont Journal of Environmental Law

By VJEL

November 18, 2024 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 26, Issue 1. Unlike previous Books, this Volume’s issue contains four student notes. These student notes were chosen for publication with the intention of highlighting students’ academic contributions as the emerging voices of the environmental movement. The notes explore topics ranging from the exploitation of Alaska Native communities under NEPA, takings challenges to California cannabis codes, the ethical and ecological issues surrounding the biomedical horseshoe crab industry, to the injustices of “conservation gerrymandering” and the promise of Indigenous-led conservation models. 

VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 26, Issue 1 Publication or by accessing our Current Volume from the navigation header.  

Articles: 

Those We Forget: NEPA Does Not Protect Remote Alaska Native Communities from Exploitation by Resource Extraction Companies \

By Kari Millstein 

First, Kari Millstein examines how the National Environmental Policy Act (NEPA) fails to protect remote Alaska Native communities. The Note focuses specifically on the Willow Project, a large oil drilling project located near the Native village of Nuiqsut. It argues that Environmental Impact Statements (EISs) required by NEPA provide inadequate protections for Alaska Natives residing near extraction projects due to their vague requirements and lack of independent research. The Willow Project is a significant oil extraction project in Alaska that poses a threat to the subsistence lifestyle of the Iñupiat Alaska Native community in Nuiqsut, a village situated close to the project site. The Note explores the unique legal circumstances in Alaska concerning Alaska Native land rights and tribal sovereignty, highlighting how these complexities contribute to the vulnerability of communities like Nuiqsut. For example, the Alaska Native Claims Settlement Act (ANCSA) extinguished Native claims to inherent land rights, preventing them from exercising full sovereignty over Alaskan lands and waters. This Note is a call to action for both state and federal governments to address the shortcomings of NEPA and prioritize the well-being of Alaska Native communities facing the threats posed by resource extraction projects like the Willow Project. 

Hands Off My Grass: Potential Fifth Amendment Takings Challenges to Cannabis Codes in California 

By Caroline Smith 

Second, Caroline Smith examines potential Fifth Amendment regulatory takings challenges to local environmentally focused cannabis codes in California. California leads in both environmental and cannabis law. However, no Fifth Amendment regulatory takings challenges have been made to environmentally focused cannabis codes, even though the cannabis industry is subject to more unique and burdensome codes than most industries. This Note examines three potential regulatory takings claims to cannabis codes from Riverside County, the City of Berkeley, and El Dorado County, California. The Note provides recommendations to avoid these potential takings challenges, largely through holistic regulation of all industries. The Note examines how the cannabis industry is susceptible to lawsuits that may destroy local, pro-environment regulation. In conclusion, Smith urges that courts should interpret Dolan proportionality more holistically, and regulators should craft more rounded laws within similarly situated industries. 

Blue Blood Money: Draining Horseshoe Crabs for Profit 

By Mei Brunson 

Third, Mei Brunson argues that current regulations surrounding the biomedical horseshoe crab industry are inadequate and rooted in anthropocentrism, prioritizing human benefit over horseshoe crab welfare. The article focuses specifically on the Limulus amebocyte lysate (LAL) test, which uses horseshoe crab blood to detect endotoxins in injectable drugs and medical devices. The author argues that, with the approval of a viable animal-free alternative, the recombinant factor C (rFC) test, the U.S. should move to completely replace the LAL test. Horseshoe crabs are a vital part of the ecosystem. The biomedical industry harvests nearly a million horseshoe crabs each year from the Atlantic coast to extract their blue blood for the LAL test. This process involves capturing, transporting, bleeding, and releasing the horseshoe crabs, often causing significant stress and injury to the animals. Estimates suggest that 15-30% of bled horseshoe crabs die after being released. The demand for LAL has led to overharvesting, causing a decline in horseshoe crab populations and negatively impacting the species’ reproductive abilities. Despite these concerns, regulations governing the biomedical horseshoe crab industry primarily focus on managing horseshoe crabs as a “fishery resource” rather than protecting their welfare. The Note concludes by calling for a paradigm shift in how society views and treats horseshoe crabs, urging the U.S. to abandon the exploitative practices of the biomedical horseshoe crab industry and embrace animal-free alternatives like rFC. 

Conservation Gerrymandering 

By Avery E. Emery 

Lastly, Avery E. Emery examines the concept of “conservation gerrymandering”, or the practice of creating protected areas (PAs) that are designed to exclude humans, including the Indigenous peoples who have historically lived in and managed these areas. Emery argues that this model of conservation, which is based on a Western, anthropocentric view of nature, is flawed for several reasons. First, it is based on a false premise that nature can be separated from human activity, ignoring the long history of Indigenous peoples’ stewardship of the land. Second, it fails to recognize the importance of Indigenous knowledge and practices for biodiversity conservation. Third, it can lead to human rights abuses, as Indigenous peoples are often forcibly removed from their lands to create PAs. The author also discusses the limitations of the conservation gerrymandering method, including its failure to effectively address threats to biodiversity that originate outside of PA boundaries and the negative ecological impacts of creating PAs with contorted shapes. As an alternative to conservation gerrymandering, the Note advocates for a new conservation framework that centers Indigenous peoples’ sovereignty and knowledge. Specifically, the Note advocates for the adoption of Indigenous Protected and Conserved Areas (IPCAs), which are Indigenous-led and managed protected areas that are designed to promote both biodiversity conservation and the well-being of Indigenous communities. The article highlights the successes of IPCAs in Canada, where they have been shown to benefit both Indigenous communities and the environment. The Note concludes by calling for the widespread adoption of IPCAs as a way to achieve more effective and just conservation outcomes. 

VJEL Newsroom

Announcing the VJEL Podcast: VJEL Talks

By VJEL

June 12, 2024

 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of its new podcast series: VJEL Talks. VJEL Talks is a student-produced podcast featuring VJEL Staff and various experts within the environmental law field to discuss current trends, issues, and solutions to contemporary topics in environmental law and environmental justice.

VJEL welcomes listeners to listen or download the VJEL Talks podcast either on our website by clicking this link to view our VJEL Talks page or vising our PodBean page.

 

Volume 25, Episode 1: VLGS’s Role in Advancing Environmental Law

Travis and Hope sit down with Vermont Law and Graduate School President Rod Smolla to discuss how VLGS can address various ongoing and contemporary issues in environmental law, including how students can address concerns to environmental justice in the current state of United States politics and culture.

 

Volume 25, Episode 2: The Farm Bill

Joined by Professor John Coppas and Chris Adamo, Travis and Hope break down the recent negotiations of the Farm Bill as it came up for reauthorization by Congress—from working directly with farmers to members of Congress. At the end of the day, Farm Bill policy focuses on one thing: our food system, including providing affordable and sustainable food for all stakeholders involved.

 

Volume 25, Episode 3: The Transformation of Animal Law

Professor, Director of the Animal Law and Policy Institute, and VJEL Faculty Advisor Delci Winders gives a broad overview of the transformation of animal law across the United States and how it connects to both environmental law and environmental justice.

 

Volume 25, Episode 4: The Confusing Landscape of Cannabis Law

Professor Ben Varadi breaks down the modern development of cannabis law, including why States and the federal government are so fractured on cannabis regulation from a cultural, agricultural, business, and government viewpoint.

 

VJEL would like to thank the experts who contributed their time and expertise to create a dynamic, though-provoking conversation. Their contributions continue to add exemplary and accessible work to the environmental law field.

VJEL Newsroom

Published: Volume 25, Issue 4 of the Vermont Journal of Environmental Law

By VJEL

May 23, 2024

 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 4. Issue 4 features two Articles and one Student Note. First, Keith Rizzardi examines the decline in water quality in Florida, attributing it largely to what the author terms “micro-deregulation.” It identifies various subtle forms of deregulation, such as the liberal use of exemptions and the discretion granted to agency decision-makers, as well as practical effects like budget cuts for water managers. The Article concludes by proposing comprehensive changes to Florida’s regulatory framework to address the worsening water quality issue. Next, Zhiyu Huang argues that while Chinese environmental law incorporates nature-based solutions for natural disaster preparedness and response, the current perception of disasters as force majeure events limits effectiveness. The Article suggests integrating scattering nature-based solutions into a more cohesive framework within China’s forthcoming “Ecological Environment Code,” emphasizing the need to reframe disasters as often human-induced as and proposing a systematic integration approach. Finally, Aashini Choksi addresses lead service line replacement efforts in Washington D.C., emphasizing the need for a clear, comprehensive policy to ensure equitable access to safe water across all neighborhoods. The Note outlines the prevalence of lead service lines in BIPOC and low-income areas, discusses ongoing replacement plans, and highlights the challenges faced by vulnerable communities in accessing these programs. Recommendations include banning partial replacements, diversifying funding sources, and creating opportunities for private funding through municipal bonds to prioritize vulnerable communities.

VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 4 Publication or accessing our Volume 25 Publications from the navigation header.

 

Articles:

Micro-Deregulation: Polluting Florida’s Water, Drop by Drop

By Keith W. Rizzardi

 

This Article surveys the diminution in Florida’s water quality, largely because of what the author describes as “micro-deregulation.” As the Article makes clear, some of these deregulatory efforts—like outright repeal of statutes or rules—are obvious, and some are less so. The Article focuses on these latter, more insidious forms of deregulation. “Open” deregulation, for example, includes the liberal use of exemptions, presumptions, and preemption to sidestep regulation altogether. “Hidden” deregulation, on the other hand, is exemplified by the vast discretion granted to agency decision-makers under Florida law. The Article describes “deregulation through blindness,” meanwhile, as the de facto deregulation that results when concepts like judicial restraint, standing doctrine, and fee-shifting provisions with respect to citizen suits serve to restrict potential plaintiffs’ willingness to seek redress in court. Finally, the Article briefly describes the practical deregulatory effects of shrinking budgets for water managers in Florida. Rizzardi concludes by recommending a series of comprehensive changes to Florida’s regulatory framework that would help address the state’s rapidly diminishing water quality.

 

From Discrete to Systematic: Mainstreaming Nature-Based Solutions to Disasters into Environmental Law in China

By Zhiyu Huang

 

This Article asserts that, although Chinese environmental law contains various mechanisms for utilizing nature-based solutions to prepare for and respond to natural disasters, the current understanding of natural disasters as force majeure events has resulted in a framework that is discrete rather than comprehensive and that thereby fails to be optimally effective. The solution, Huang suggests, is for China to integrate these scattered aspects of its nature-based solutions for disaster risk reduction (“NbS-DRR”) into a more comprehensive scheme as the country drafts its “Ecological Environment Code.” The Article begins by surveying the global disaster-related landscape and overviews some of the more serious recent natural disasters in China. It goes on to reframe natural disasters as “unnatural”—often resulting from a combination of climate change and poor land management—and discusses the achievements and potential detriments with respect to some of the more massive ecological engineering projects China has undertaken over the past five decades. The Article continues by assessing the 42 pieces of Chinese environmental legislation that currently utilize NbS to respond to and mitigate disasters and describing the various shortcomings of this disparate approach to disaster risk reduction. It concludes by briefly proposing how China should approach integrating NbS systematically into the Ecological Environment Code.

 

Student Note:

Lead-Free with Equity: An Environmental Justice-Focused Proposal to Achieve Lead-Free D.C. by 2030

By Aashini Choksi

 

This Note summarizes ongoing lead service line (LSL) replacement efforts in the District of Columbia and calls for a clear, comprehensive policy for the District that ensures equitable access to safe water, regardless of neighborhood. The Note begins by briefly providing a history of lead drinking-water pipes in the United States and explaining the prevalence of LSLs in the District, particularly in BIPOC and low-income areas. It continues by discussing the replacement plans currently ongoing while highlighting the relative inaccessibility of these programs for vulnerable communities. Choksi concludes by providing recommendations for the District to prioritize vulnerable communities by banning partial replacements, seeking a wider variety of funding options through local and federal programs, and offering opportunities for private funding through municipal bonds.

 

VJEL would like to thank the authors for their submissions, as well as the Editorial Staff for their hard work to produce Volume 25, Issue 4. Their contributions continue to add exemplary and accessible work to the environmental law field.

VJEL Newsroom

Announcing VJEL’s 2024 White River Writing Competition Winners

By VJEL

April 25, 2024

 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the two winners of the 2024 Notes Competition. This year’s first-place winner is Kari Millstein, with her Note “NEPA’s Requirements are Inadequate to Protect Remote Alaska Native Communities from Exploitation by Resource Extraction Companies” and this year’s second-place winner is Caroline Smith, with her Note “Hands off My Grass: Potential Fifth Amendment Takings Challenges to Cannabis Regulations in California.” Both Kari’s and Caroline’s winning Notes will be featured in the upcoming Volume 26 of The Vermont Journal of Environmental Law during the 2024-2025 publication cycle.

 

The VJEL Notes Competition is held annually that VJEL Staff Editors participate in. As part of VJEL requirements, each Staff Editor writes a scholarly Note on a novel environmental law topic throughout their first year on the journal with feedback and guidance from Notes Editors, and optionally, with a faculty advisor to satisfy the Vermont Law and Graduate School Advanced Writing Requirement. After Staff Editors submit their final draft, the Notes Editors select Notes to move to the next step and receive a second grade from the VJEL Executive Board. The Board then decides a winner who is offered a publication offer with VJEL, and at their discretion, additional Notes may receive publication offers.

 

Meet the 2024 First-Place Winner: Kari Millstein

Kari Millstein is a 2L dual Juris Doctorate and Masters of Restorative Justice candidate, graduating in May 2025, and is the incoming VJEL Volume 26 Senior Managing Editor. After graduation, Kari plans to return to her home state of Alaska and pursue interests in environmental justice, criminal justice reform, tribal sovereignty, and climate resilience. Kari also holds a Bachelor of Arts in anthropology from Willamette University in Salem, Oregon, and enjoys travel and outdoor activities.

 

NEPA’s Requirements are Inadequate to Protect Remote Alaska Native Communities from Exploitation by Resource Extraction Companies

 

Kari’s Note criticizes the National Environmental Policy Act (NEPA) and the environmental impact statement process through the lens of ConocoPhillips’ new oil drilling project on the North Slope of Alaska called the Willow Project. By examining several distinct ways in which the Bureau of Land Management (BLM) failed to use this environmental legislation to protect the small Alaska Native village that exists near the proposed site, this Note illustrates the need for new solutions.

 

Kari first details that resource extraction projects pose a serious danger of increased sexual exploitation of Indigenous women. Though the BLM is aware of this problem, NEPA does not require it to include the issue in its analysis of potential impacts to the community. She then argues that while NEPA requires public participation in the process of approving the project, the opportunities for participation are performative and designed to allow the project to move forward, rather than creating any real collaboration. Further, no part of the process is enforceable against ConocoPhillips or the BLM, so even if those organizations fail to fulfil the commitments made in the environmental impact statement, there is no penalty. Finally, NEPA is national legislation, so it is up to the implementing agency to tailor its approach to the area. Kari emphasizes that in Alaska, there are many unique factors that complicate environmental projects that went largely unacknowledged through the approval process for the Willow Project.

Meet the 2024 Second-Place Winner: Caroline Smith

Caroline Smith is a 3L accelerated Juris Doctorate candidate from northern Kentucky, graduating in May 2024. After graduation, Caroline plans to move to Alaska to begin her legal career. Caroline also holds a bachelor’s degree in political science and history from Florida State University.

 

Hands off My Grass: Potential Fifth Amendment Takings Challenges to Cannabis Regulations in California

 

Caroline’s Note explores the potential takings challenges under a Fifth Amendment regulatory takings theory to the cannabis industry in California, first by walking through potential challenges that may arise; detailing current California cannabis, relevant environmental law, and regulatory takings law; to applying that law to potential claims against cannabis regulations; and finishing with recommendations to avoid potential takings challenges by incorporating holistic regulation of all associated industries.

 

Cannabis is a controversial industry, imbued with government regulation that heavily criminalized cannabis as a Schedule I drug under the Controlled Substances Act (CSA), outlawing any potential medical or recreational use—often with hefty penalties. Despite this overbearing federal regulation, States did not necessarily follow in suit, and instead legalized cannabis at varying degrees, and after a push from States, the federal government finally gave way, by providing guidance to the Attorney General to prohibit the Department of Justice from interfering with state medical cannabis schemes. Despite this, there is still no permanent scheme to protect recreational use or all sectors of the cannabis industry.

 

While California has a reputation of being cannabis-friendly and among some of the first states to legalize it for both medical and recreational use, cannabis regulations in California localities nonetheless pose the risk of regulatory takings challenges because of economic burdens that other industry counterparts need not bear. Examples of these regulations include requiring cultivators to have at least 20 percent of their energy demand supplied by on-site renewable energy; purchase 100 percent renewable energy from a local utility; and for indoor cultivators, to source their energy from a choice of either on-grid renewable energy, on-site net-zero renewable energy sources, or purchase off-site carbon offsets for any non-renewable usage. Caroline walks through unique jurisprudence that other states have not yet faced, as well as general rulings from the United States Supreme Court on deciding how a court could strike down these regulations as a regulatory taking under the Fifth Amendment of the federal Constitution. Caroline finally concludes by offering recommendations to California localities to incorporate various changes to their regulations to avoid a takings challenge, such as adjusting the renewable energy requirement to be more flexible or taking a holistic approach to regulation so that other similar industries are all regulated the same.

 

VJEL would like to thank all the Staff Editors for their dedication in writing their Notes on a wide variety of topics. There were many strong submissions, and VJEL had a difficult decision in deciding winners. Nonetheless, VJEL is grateful for their contributions to creating rigorous, exemplary, and accessible work to the environmental law field.

VJEL Newsroom

Announcing VJEL’s 2024 White River Writing Competition Winner

By VJEL

April 15, 2024

 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the winner of the 2024 White River Writing Competition. This year’s winner is Dawson Vandervort, with his submission “Using Contingent Valuation to Bridge the Gap.” Dawson’s winning submission will be featured in the upcoming Volume 26 of The Vermont Journal of Environmental Law during the 2024-2025 publication cycle. In addition, Dawson’s bio will be featured on our Writing Competition page until next year’s winner is announced.

 

The White River Writing Competition, sponsored by VJEL and Vermont Law and Graduate School, is an annual writing competition that seeks law students with a passion for environmental law to illuminate creative solutions to current legal frameworks at the local, state, federal, and international levels. The competition, named after the White River that flows through VJEL’s home in South Royalton, Vermont, embraces the broad view of environmental law, just as the river brings the local community together, flowing through the state of Vermont, until finally connecting to a larger river system progressing through many other states to ultimately reach the Atlantic Ocean. The competition is announced annually in the early spring semester and is available to all students pursuing a Juris Doctorate (JD) or Master of Laws (LLM) degree at an accredited law school within the United States. Winners are awarded a $1000 cash prize and an offer of publication in The Vermont Journal of Environmental Law.

 

Meet the 2024 Winner: Dawson Vandervort

 

Dawson Vandervort is a 3L dual JD and Master of Energy Regulation and Law (MERL) candidate at Vermont Law and Graduate School, graduating in May 2024. While Dawson is originally from Vandalia, Ohio, he plans to move to Washington D.C. after graduation to pursue a career with the federal Internal Revenue Service working with tax law. With this career path, he hopes to have a healthy mix of renewable energy, tax, and animal law, and hopes to use his experience and knowledge with the law to lobby Congress to create more animal rights legislation.

 

Using Contingent Valuation to Bridge the Gap

 

Dawson’s winning submission, “Using Contingent Valuation to Bridge the Gap” evaluates the differences between how the law treats damages for harm to companion animals versus environmental damages. While environmental statutes allow for the use of contingent valuation (CV) to account for non-use or non-economic values, the common law approach to companion animal damages has generally limited recovery to the animal’s fair market value. It further asserts that this is a flawed approach because companion animals provide significant non-economic value to their families that is not accounted for in fair market valuations. It draws a parallel to how the law treats environmental damages, where statutes have recognized the need to account for non-use values through methods like contingent valuation.

 

The submission then shifts to highlighting that animal advocates could leverage a more flexible approach used in environmental law to push for reforms in how companion animal damages are calculated. Just as the allied forces under Wellington were able to overcome Napoleon’s forces, this submission analyzes an environmental law approach that could be used to overcome the limitations of the current companion animal damages framework.

 

Dawson concludes by calling on the law to evolve to better account for the true value of companion animals. Recovery that is limited to their fair market price fails to capture their full worth to their human families.

 

VJEL would like to thank all the authors for their submissions to the 2024 White River Writing Competition. There were many strong submissions, and VJEL had a difficult decision in deciding a winner. Nonetheless, VJEL is grateful for their contributions to creating rigorous, exemplary, and accessible work to the environmental law field.

VJEL Newsroom

Published: Volume 25, Issue 3 of the Vermont Journal of Environmental Law

By VJEL

April 4, 2024

 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 3. Issue 3 features two Articles and one student Note. Professor Mary Christina Wood’s article proposes Regional Frameworks to organize land-based, natural climate solutions for atmospheric carbon drawdown, emphasizing the need for global collaboration and financing. Professor Anastasia Telesetsky’s Article advocates for a communitarian approach to nature-based solutions (NBS), arguing that an economic rationale alone may dilute the effectiveness of NBS projects. The Article further suggests implementing an “ecological education and service” model akin to jury duty to foster public engagement. Finally, Elizabeth Beairsto’s Note discusses strategies for states to align a clean energy transition with equity and justice principles, highlighting legislative changes and offering recommendations for facilitating a just transition. VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 3 Publication or accessing our Volume 25 Publications from the navigation header.

 

Articles:

Sky Carbon Cleanup and Biodiversity Restoration: Devising Regional Frameworks

By Mary Christina Wood

 

Professor Wood’s Article proposes Regional Frameworks aimed at organizing the land-based, natural climate solutions (NCS) necessary to meet humanity’s need to reduce excess carbon in the atmosphere. The Article first explains the scientific need for atmospheric carbon drawdown. It then introduces a meta-strategy for catalyzing drawdowns worldwide by implementing an interlocking, “three-gear” approach comprised of (1) developing Regional Atmospheric Recovery Frameworks; (2) financing those Frameworks; and (3) organizing Regional Sky Trusts to carry out drawdown projects. The Article then outlines which components the Regional Frameworks should include and discusses significant stakeholders and contributors before summarizing ongoing efforts to develop such a framework in the Pacific Northwest region of the United States. Professor Wood concludes by proposing the establishment of Regional Atmospheric Recovery Institutes to sustain efforts at implementing NCS in a globally comprehensive and collaborative way.

 

Nature-Based Solutions: Applying a Legal Principle of Solidarity to
Protect Human and More-than-Human Communities Through an
“Ecological Education and Service Program”

By Anastasia Telesetsky

 

Professor Telesetsky’s Article summarizes the concept of nature-based solutions (NBS) and attempts to provide a novel solution to increase public engagement in NBS work. The Article begins by exploring the variety of ways in which NBS are characterized and then explains why that expansiveness of that definition dilutes the potential for effective financing of true NBS projects. In particular, the Article argues that NBS should not operate on a predominantly economic rationale but should instead incorporate communitarian principles of solidarity and “care ethics.” Professor Telesetsky concludes by outlining one potential approach for approaching NBS in a communitarian way: by implementing an “ecological education and service” mechanism of community participation modeled after the practice of jury duty.

 

Student Note:

Clean Energy and Justice for All: The Federal Government’s Influence on
State Energy Justice Legislation

By Elizabeth Beairsto: 3L at Vermont Law and Graduate School and VJEL’s Public Relations Editor.

 

Elizabeth Beairsto’s Note seeks to outline strategies for states to harmonize newfound opportunities to advance the clean energy transition with their ongoing obligations to uphold overarching principles of equity and justice. The Note begins by describing the complex energy “trilemma” of energy security, affordability, and environmental sustainability. Against this backdrop, it then describes the ways in which the legislative framework created by the Inflation Reduction Act of 2022 and Infrastructure Investment and Jobs Act of 2021 altered the clean energy landscape by providing novel opportunities for implementing clean energy. The Note concludes by summarizing certain strategies that states may undertake as they seek to develop legislation that helps facilitate the necessary just transition.

 

VJEL would like to thank the authors for their submissions, as well as the Editorial Staff for their hard work to produce Volume 25, Issue 3. Their contributions continue to add exemplary and accessible work to the environmental law field.

Vermont Journal of Environmental Law
Vermont Law & Graduate School
164 Chelsea Street | P.O. Box 96 South Royalton, VT 05068 vjel@vermontlaw.edu

February 12, 2024

Dear Students, Faculty, and Members of the Environmental Legal Community,

The Vermont Journal of Environmental Law (VJEL) is thrilled to announce our tenth-annual White River Environmental Law Writing Competition. This Competition aims to encourage academics nationwide to contribute their voices and insights to the ongoing debates and conversations within the environmental law community. The annual writing Competition supports VJEL’s mission to provide the legal community with premier scholarship in environmental law.

All submissions must be in Word format and be emailed to ArticlesVJEL@vermontlaw.edu with the subject line: “White River Submission” by 5:00 PM EST on Monday, March 18, 2024. The submission must include a cover page that includes your name, address, phone number, email address, law school, and year of graduation to ensure anonymity and impartiality for the judging process. Do not include your name or any other personal information in any other part of your submission. The winning author will be notified in Spring 2024 and will receive a $1,000 cash prize along with a publication offer from VJEL. At the discretion of our senior editors, additional entries may receive publication offers.

Please share these Competition details with any current ABA-accredited J.D., LL.M., or Masters student(s) that may be interested.* Any questions regarding the Competition may be directed to VJEL@vermontlaw.edu and/or MonicaNerz@vermontlaw.edu. For general questions about VJEL, please visit our website at https://vjel.vermontlaw.edu/.

*Please note that current VJEL and Vermont Law Review Staff Editor Notes are not eligible for submission. However, Staff Editors may submit works other than their Note. Senior Staff may apply with their Note or any other work.

All of us at the Vermont Journal of Environmental Law look forward to reading your submissions!

Sincerely,

Monica Nerz
Editor-in-Chief, Vol. 25
Vermont Journal of Environmental Law

VJEL Newsroom

Published: Volume 25, Issue 2 of the Vermont Journal of Environmental Law

By VJEL

January 3, 2024

 

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 2. Issue 2 features one two Articles and one student Note ranging from land use issues in small-scale agriculture through the western United States; to applying Vermont’s Environmental Justice Act to Tennessee; and finally, land use regulation in Vermont’s outdoor industry. VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 2 Publication or by accessing our Volume 25 Publications from the navigation header.

 

Articles:

Land Use Law Analysis to Empower Small-Scale Agriculture in Teton County, Wyoming

By Rachael Romsa et al.

 

Several western regions, including Teton County, Wyoming, face challenges of meeting food demands via small-scale agriculture. By having vast swaths of public land, available land for local agriculture is limited. Mountain ranges and forests make food importation difficult, especially during winter months. All the while tourism demands for food continue to grow. This Article focuses on legal frameworks to empower local or regional food supplies in western states, using Teton County, Wyoming, and its Conservation District as a case study for feasibility with its unique conditions.

 

To tackle these problems, Romsa et al. propose small-scale agriculture to not only limit further development on private lands, but also produce food for local communities—all the while supporting local farmers. But policy planning is lacking in Teton County. Instead, the authors analyzed three existing land use planning and regulatory frameworks that could supplement this development:

• • The Jackson/Teton County Comprehensive Plan
  • The Teton County land development regulations (LDRs)
  • The Town of Jackson LDRs.

 

For each policy framework, the authors first analyze where small-scale agriculture could be supported or challenged. The authors then highlight how other communities have used their own comprehensive plans for small-scale agriculture. For each regulatory framework, the authors give their recommendations as to how the frameworks may better support agricultural production.

 

Romsa et al. conclude by finding that the Jackson/Teton County Comprehensive plan would need a new chapter or amendments to existing chapters to better support small-scale agriculture. For the Teton County and Town of Jackson LDRs, they would need to incorporate a more expansive definition of “agriculture.” This would allow for agriculture in more zoning districts coupled with additional policy and regulatory tools such as Planned Resort Zones and Planned Unit Development Zones. Last, Teton County could find support in these revisions from other communities that have used similar strategies and the growing support from local residents.

 

A Comparative Look: Applying Vermont’s Environmental Justice Act in Tennessee

By K. Ashley Eshleman

 

In 2022, Vermont enacted the Environmental Justice Act. Vermont’s EJ Act includes impact analyses, community engagement, and an online mapping tool centered around environmental effects on certain groups of citizens. This Article focuses on key points for a potential environmental justice bill drafted in the Tennessee legislature, using Vermont’s Environmental Justice Act as a model. The federal government, much like Vermont, has been looking at legislative and regulatory action to address EJ concerns, including many programs created by the U.S. Environmental Protection Agency (EPA).

 

The author first looks at federal initiatives to address EJ concerns through legislation, executive orders, and agency indicatives by the EPA. Following that, Eshleman provides background to Vermont’s EJ Act, noting that it is more comprehensive than the EPA’s recognition and emphasis of fairness and equity in government decision-making. Additionally, Vermont offers more classes such as race, color, income, and English language proficiency.

 

Following the analysis of federal and Vermont initiatives, the author then details Tennessee’s background, which does not currently have any EJ legislation, with only minimal mentions of EJ perspectives from the Tennessee Department of Environment and Conservation. Tennessee boasts a much larger and more diverse population than Vermont, many of which work in agriculture and who have been historically discriminated against, which was only worsened by Trump-era policies that encouraged non-citizen deportations. In addition, much of the lower-income population is among these diverse groups. Diverse and poor groups are more vulnerable to poor water quality and flooding after large rain events, while redlined communities suffer the most from the effects of climate change.

 

From there, Eshleman discusses how Tennessee can implement and adapt a similar bill for the state. She focuses on addressing pollution, agriculture, community engagement, and improving language access, all to secure greater protections than Title VI of the federal Civil Rights Act of 1964 in Tennessee. Eshleman concludes that Vermont’s Act is not perfect, and would need modification, especially for identifying focus populations and implementations of impact analyses. But nonetheless, she explains, Vermont’s Act would theoretically work if implemented in Tennessee if disparities within the state are better identified—first starting with defining what “environmental justice” is.

 

Student Note:

Givings and Takings: Challenges to Regulation Under Vermont’s Act 250

By Taylor Scott Berkley: 3L at Vermont Law and Graduate School and VJEL’s Senior Articles Editor.

 

Focusing on ski area development, Berkley proposes a constitutional analysis of federal takings doctrine under Act 250, a comprehensive environmental law focused on land use and development that has far-ranging regulations and restrictions. Berkley highlights the contrasting nature of competing interests: state consistency over local control, economic growth against ecological preservation, and entrenched interests against emerging needs.

 

Berkley first begins by looking back at the historical and ecological roles of land-use regulations in Vermont, as well as some context behind takings jurisprudence, all while focusing on the unique need for the state’s regulation and renewal. Following the background discussion, this Note moves into how Act 250 interplays with the Takings Clause of the Fifth Amendment and the Vermont Constitution, analyzing legal decisions between the two frameworks by the state’s supreme court.

 

The author concludes by stating that with the growing environmental-focused climate amongst Vermonters, the courts are likely to hear more takings challenges to Act 250. Thus, calling for more specificity in regulations to reduce friction between private land rights and state regulations.

 

VJEL would like to thank the authors for their submissions, as well as the Editorial Staff for their hard work to produce Volume 25, Issue 2. Their contributions continue to add exemplary and accessible work to the environmental law field.

 

VJEL Newsroom

Announcing VJEL’s 2024 Top 10 Environmental Watch List

By VJEL

December 18, 2023

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of its 2024 Top 10 Environmental Watch List. VJEL Staff Editors work closely with a faculty member or subject-matter expert to select a topic based on what is considered within the “Top 10” most pressing environmental law issues for the upcoming year and to propose creative solutions for those problems. This year’s list includes a diverse array of topics, from concerns over our energy and transportation infrastructure; housing and land conservation; international and local climate change; food security and contamination; and water quality of our world’s oceans.

2024 Top 10 Environmental Watch List:

#1: Gold-Plating vs. Grid Safety: How Cost-of-Service Ratemaking Creates Tension Between Regulators and Utilities and Slows Grid Hardening

By: Michael Murphy and Professor Genevieve Byrne

The number of wildfires each year is increasing, which cost billions of dollars in damage and take hundreds of lives. Many of these fires begin because of power grid failures—yet power utilities neglect to update the grids, as many regulators reject plans because they are “gold plating,” or only making “improvements” strictly for profit rather than truly upgrading the grid, in order to charge customers higher rates. But energy regulation does not have to take this form, instead, states are adopting “performance-based regulation” that instead compensates utilities for making targeted outcomes to enhance grid performance, rather than the traditional rate-of-return structure charged to customers.

#2: Americans Must Shift Car Culture: Transportation Policy Can Help

By: Margaret Chafouleas and VJEL Editor-in-Chief Monica Nerz

In the United States, over 91 percent of households have at least one vehicle, and the daily American life relies on these vehicles. But these vehicles are killing our planet. Not only are vehicles the number one emitter of greenhouse gas emissions, but car accidents are also the leading cause of death for those aged 1-54 in the country. Unfortunately, transportation lobbying is preventing meaningful change. Recent legislation, such as the Infrastructure and Investment Jobs Act (IIJA) helped create some changes and added funding to transportation upgrades, however it still is not enough, as the law still reinforces the car-centric culture. Instead, the U.S. should focus on shifting its policies away from individual cars, and more to mass transit, walkable and bikeable cities, and doing more to increase road safety.

 

#3: Backlogged Projects May Actually See [and Use] the Light of Day in the Near Future

By: Laura Arboleda Bowie and South Royalton Legal Clinic Attorney Chester Harper

Renewable energy storage, such as solar, wind, and battery storage waiting to interconnect to major grids total more than what is currently generated on the nation’s grid—yet they still await a lengthy review and permitting process by the Federal Energy Regulatory Commission (FERC). Because of this backlog, FERC promulgated Order 2023 – RM22-14-000 to speed up this process. Key points to the rule include changing the process from a “first-come, first-serve” to a “first-ready, first-served cluster study process”; speeding up the interconnection queue processing by loosening procedural costs and deadlines; and incorporating technological advancements in the interconnection process. Despite the positives, there are some concerns that Regional Transmission Organizations (RTOs), who manage about 60 percent of the U.S. electric power supply, and other independent system operators, may impose steep tariff provisions to recover the costs related to interconnection study penalties previously issued by the old rule or whether utilities can even come into compliance with the new rule within 90 days. Nonetheless, the new rule is a step in the right direction to a greener path towards 80 percent clean energy by 2030.

#4: The Global Stocktake Report: Ensuring Our Future

By: Yanissa Rodriguez and Professor Derek Walker

Under Article 14 of the Paris Agreement, parties must share an assessment of their implementation of the Agreement, known as the “Global Stocktake” (GST)—the first of which took place at this year’s recent COP28 in Dubai, United Arab Emirates. While many had high hopes, there was a common theme: parties need laws that work while considering the practical concerns of individuals on the ground to implement the Paris Agreement’s goals. Currently, the global community is only reducing emissions by 15-30 percent, so the GST synthesis report created further recommendations ahead of COP28. Such recommendations include further implementing domestic policy, focusing more on mitigation and adaptation measures, and achieving all of these in a just manner, leaving no one behind. With this new information, parties have another five years to adequately respond to achieve Paris goals.

#5: Balancing the Need for Housing and Conserved Land in Vermont

By: Nathaniel Launer and VT State Senator Kesha Ram Hinsdale

Rural states and communities are trying to balance housing concerns with land conservation, including Vermont. In June, the state passed two important pieces of legislation, the Housing Opportunities Made for Everyone (HOME) Act, which amends planning and permitting requirements to address the housing crisis, and the Community Resilience and Biodiversity Protection Act (CRBPA) to conserve one-third of Vermont’s land by 2030, and half by 2050. Naturally, these two Acts come into contention, but they both require cooperation by various agencies to achieve both goals. But each of these have their own costs and benefits from conserving land, addressing the housing crisis, and environmental concerns. Through the state’s environmental justice policy, however, Vermont can create a path that balances the two programs in a just manner that also protects Vermont’s wild lands.

#6: How Can Maine’s Constitutional “Right to Food” Serve as a Foundation for Prioritizing Food System Resilience Across the State of Maine?

By: Alexander Arroyo and Professor Laurie Beyranevand

We all need to eat to survive, but is there a “right” to food? In Maine, it is. Maine passed a constitutional amendment in 2021, called the “Right to Food” amendment, to address the high amount of food insecurity and users of state and federal food assistance programs that are vulnerable to political shifts, funding, and increasing disruptions to food systems caused by climate change. But despite producing enough food to support its 1.3 million residents, much of the local food supply is shipped outside the state or consumed by correctional facilities and schools, while importing most of the food used to feed the general population. The amendment promotes individuals to grow crops, raise livestock, and forage and hunt—despite the ever-growing threat by industrial agriculture and corporatization to take over local farms and food systems. Nonetheless, this is a critical first step for Maine to address its fight against hunger in a just and resilient manner and serves as a guide for the rest of the nation.

#7: Fukushima’s Wastewater Problem: Balancing the Ocean’s Health with an Increasing Need for More Low-Carbon Energy

By: Alexander Hume and Professor Yanmei Lin

Nuclear power provides 10 percent of the world’s energy and can be pivotal in helping countries achieve net-zero emissions—but lack of safe and effective permanent solutions to nuclear waste are roadblocks to further developing energy generation. Adding to this is the volatility of Japanese nuclear reactors, which are susceptible to earthquakes, flooding, and other natural disasters, which could lead to disastrous nuclear meltdowns, as well as emergency response introducing nuclear waste into the world’s oceans. Since the Fukushima Daiichi Nuclear Power Plant disaster in 2011, Japan had been “treating” the collected wastewater to remove radionuclides (except tritium, a radioactive hydrogen isotope that is near impossible to remove). But concerns are growing over whether tritium and other contaminants in the water could have global impacts to fish and other marine species. Japan has an international obligation not to pollute the ocean, but classifying this water as “treated” raises many health and legal questions that need swift assessment and action.

#8: Rising Waters, Rising Solutions: Navigating the Path to Flood Resiliency in a Changing Climate

By: Hannah Weisgerber and Professor Christophe Courchesne

In 2011, Vermont experienced devastating flooding after Hurricane Irene, and in 2023, torrential downpours inundated the state in floodwaters after an unusually wet season. Both resulted in lost lives, damaged communities long after the events, and severe environmental degradation. And these events are becoming more common across the country. In response, states are developing flood resiliency plans, including the Enhancing Flood Resiliency of Vermont State Lands plan. But legal structures are lacking in land planning and such projects can be significant time and financial investments. But since Hurricane Irene, Vermont reacted by cities purchasing properties in flood zones; rebuilding infrastructure like roads, bridges, and culverts; increased publication of educational materials and outreach through public websites; and encouraged municipalities to take initiative to address flood resilience. Even with these lofty goals, the state still fell short, including no mention of flood resiliency in its Acceptable Management Practices and no established conservation targets for state lands and hydrologic resource zones. This comes as a stalemate between prioritizing forests as working forests for logging or for conservation.

#9: Natural, Native Solutions to Fire

By: Joseph Gerngross and Professor Mark James

Wildfires pose new risks to communities that they did not previously during pre-Columbian North America, as indigenous cultures had a regular cycle of controlled burns to remove any buildup of highly flammable organic matter. Instead, governments spend billions on fire suppression—though this is changing amidst the growing number of large crown fires in the Western United States, like the Camp Fire in Northern California in 2018, to instead conduct over 50 million acres of controlled burns by the U.S. Forest Service (USFS). Indigenous cultures became keystone species to managing healthy ecosystems with controlled burns, but this clashed with settlers’ views of property ownership. Now, some indigenous tribes are working cooperatively with local governments to bring back controlled burns—but this is not enough. Despite the growing recognition of these traditional fire practices, their widespread use is almost nonexistent, even with USFS’s goal to create a safer fire regime for Americans.

#10: Bon Appétit: Regulating the Microplastics You Eat

By: Hanna Walker and Environmental Justice Clinic Director and Professor Mia Montoya Hammersley

Plastic is present in nearly every aspect of our lives: food packaging, clothing, and cosmetic products, to name a few. Each year, over 400 million tons of plastic ends up in landfills, water bodies, and the environment, and this amount could triple by 2060. Despite the sheer volume of plastics, recycling is not enough to reduce waste, especially as oil-rich nations continue to push for more production. Plastic pollution is so prolific that the United Nations is in the midst of drafting a new global agreement addressing it. As plastics accumulate in the environment, they break down into smaller pieces called microplastics, which can enter the human body in ways most could not imagine, such as chopping vegetables on plastic cutting boards, twisting the cap off and drinking from a soda or water bottle, or drinking from contaminated water supplies—most commonly found in environmental justice communities. These plastics act as inhibitors for beneficial bacterial growth in our digestive system and are endocrine disruptors that interfere with the body’s natural hormones for growth, reproduction, metabolism, sleep, and stress response. Addressing plastics has occurred at all political levels, from cities, states, to the federal government, all at varying degrees, however more efforts are needed to address the large volume of plastic in our daily lives, including the upcoming UN treaty and domestic policies.

VJEL would like to thank the faculty members and co-authors for their expertise and assistance to the Staff Editors during the drafting process to produce the 2024 Top 10 Environmental Watch List. Their contributions continue to add to exemplary and accessible work to the environmental law field.

VJEL Newsroom

Announcing VJEL’s 2023 Symposium: We’re Bringing Nature Back (Nov. 18th)

By VJEL

November 13, 2023

The Vermont Journal of Environmental Law is pleased to announce its upcoming symposium, “We’re Bringing Nature Back,” on November 18, 2023, from 9 a.m. to 5 p.m. This year’s symposium is set to inspire an influential and forward-thinking conversation on the restoration of natural ecosystems as a key strategy to battle climate change and tackle social challenges. This year’s event will have an influential keynote speaker and four dynamic panel discussions, each exploring critical aspects of nature-based solutions.

This year’s symposium features Professor Mary Christina Wood from the University of Oregon Law School as the keynote speaker.

Mary Christina Wood is the Philip H. Knight Professor of Law at the University of Oregon and serves as the Faculty Director of the law school’s nationally acclaimed Environmental and Natural Resources Law Center. She is an award-winning professor and a co-author of leading textbooks on public trust and natural resources law. Professor Wood is a frequent speaker on climate issues. She has garnered both national and international attention for her pioneering sovereign trust approach to global climate policy. Her expertise and contributions to the environmental law field make her a distinguished and influential figure in environmental and natural resources law.

This keynote address promises to offer profound insights into the innovative legal approaches necessary to combat climate change and to effectively restore ecosystems. Additionally, her keynote address is set to appear in Volume 25 of the Vermont Journal of Environmental Law.

International Implementation Panel: A Global Perspective on Nature-Based Solutions

The International Implementation panel will scrutinize the diverse definitions and applications of nature-based solutions on an international scale to address climate change. By examining the various approaches and policies adopted by different countries, the symposium aims to lay the groundwork for developing universal best practices for the betterment of our planet.

Moderator: Professor Yanmei Lin, Deputy Director, U.S.-Asia Partnership for Environmental Law, VLGS

Panelists:

Margot Clarvis, Head of Nature Based Solutions, C-Quest Capital

Deandrade Fabiano, Chair, IUCN World Commission

Zhiyu Huang, Associate Professor, Law School of Nanchang University, China

Indigenous Peoples Contributions to Climate Solutions Panel: Honoring Indigenous Wisdom

In many instances, nature-based solutions derive their success from the effective incorporation of Indigenous knowledge. This panel recognizes the indispensable role of Indigenous communities in ensuring the long-term sustainability of nature-based solution initiatives. The panel advocates for empowering Indigenous communities to lead decision-making processes, acknowledging their deep-rooted wisdom as a cornerstone of effective climate solutions.

Moderator: Mia Montoya Hammersley, Director of the Environmental Justice Clinic, VLGS

Panelists:

Missy Crow, Southeast Regional Representative, Indigenous Environmental Network

Rebecca Jim, Founder, Local Environmental Action Demanded (L.E.A.D) Agency

Earl Hatley: Co-Founder and President, Local Environmental Action Demanded (L.E.A.D.) Agency

Vickie Sutton, VLGS: Founding Member of the National Congress of American Indians, Policy Advisory Board

Biodiversity Panel: Safeguarding Diversity for Climate Resilience

The Biodiversity panel will delve into the pivotal role that preserving biodiversity plays in the fight against climate change. Biodiversity is not merely an element of ecosystems, but an indispensable component of nature-based solutions projects’ long-term viability. Considering the alarming exponential loss of species, the symposium will underscore the urgency of conserving as many species as possible to strengthen our collective capacity to combat climate change.

Moderator: Professor Delcianna Winders, Director, Animal Law and Policy Institute, VLGS

Panelists:

Jamey Fidel, JD/MSEL’01, General Counsel and Forest & Wildlife Program Director, Vermont National Resources Council

Mackenzie Landa, LLM’16, Policy Advisor, U.S. Department of the Interior

Jennifer Rubis, Indigenous People Specialist, Green Climate Fund

Amy Sheldon, Vermont State Representative for Addison County

Blue Carbon Panel: Unleashing Ocean and Coastal Ecosystem Restoration

The Blue Carbon panel will focus on the many benefits of ocean and coastal ecosystem restoration, shedding light on the broad range of advantages beyond climate change mitigation. The discussion includes insight into how legal frameworks can create a variety of restoration projects that have far-reaching benefits for both humanity and ecosystem health.

Moderator: Pat Parentau, Professor Emeritus, VLGS

Panelists:

Dr. Adam Orford, Assistant Professor at the University of Georgia School of Law

Cymie Payne, Associate Professor, Rutgers University

Mark Ram, Lecturer, Department of Biology, Faculty of Natural Sciences, University of Guyana, South America

Anastasia Telesetsky, Professor of Law, California Polytechnic State University

Presentations Between Panels: Bringing Nature-Based Solutions to Life

The symposium will also host speakers for short presentations between panels:

Creating Just Transition in Agriculture: the 10 Agroecology Principles

Ilinca Johnson: JD’26

Wetland Function of Chadwick Meadows in Sutton, New Hampshire

Alexander Simoneau MFALP’24

A Vision for Community Based, Collaborative, and Sustainable Farming

White River Land Collaborative

How Municipalities Can Utilize Nature Based Solutions for Flood Resilience

Christina Ramsey JD/MCEP’25 and Ashton Danneels JD/MELP’25, Staff Editor, VJEL

In addition, there will be a silent auction fundraiser running throughout the duration of the symposium. Proceeds will benefit the VLGS Animal Law Society and the White River Land Collaborative. Winners will be announced after the final panel.

The Vermont Journal of Environmental Law’s symposium promises to be an influential event. The symposium will bring together thought leaders, experts, and advocates from diverse fields to explore innovative approaches for addressing climate change, restoring ecosystems, and tackling societal challenges. Through these panel discussions, attendees will gain valuable insights into the pressing issues of our time and contribute to forging a sustainable path forward using nature-based solutions.

Event Details:

Date: Saturday, November 18

Time: 8 a.m. registration and opening remarks, panels begin 9 a.m. to 5 p.m. ET

Location: Chase Community Center

Livestream: Available at https://vermontlaw.edu/vjel-2023

For a full schedule of the Symposium, visit the Vermont Journal of Environmental Law’s Symposium page: https://vjel.vermontlaw.edu/fall-2023-symposium.

Questions?

For inquiries, please contact: nbssymposium@vermontlaw.edu

Or reach out to Jennifer Bass at JenniferBass@vermontlaw.edu or Katlyn Schafer at KatlynSchafer@vermontlaw.edu

For more about the Vermont Journal of Environmental Law, read our About page.