Category: News

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.

[1] See Kristen Hite & Heather McPherron, National Environmental Policy Act: An Overview, Cong. Rsch. Serv. (June 26, 2025) https://www.congress.gov/crs-product/IF12560.

[2] 42 U.S.C. § 4332(C) (2023).

[3] Id. § 4336(b)(1).

[4] Kristen Hite, Cong. Rsch. Serv., IF11932, National Environmental Policy Act: Judicial Review and Remedies, (2025).

[5] See id.

[6] Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 605 US 168, 172 (2025).

[7] 23 U.S.C. § 101 et seq. (2021).

[8] 42 U.S.C. § 4370m-6(a) (2021).

[9] Id.

[10] Hite & McPherron, supra note 1.

[11] Id.

[12] Unleashing American Energy, Exec. Order No. 14154, 90 Fed. Reg. 8353, 8355 (2025).

[13] Hite & McPherron, supra note 1.

[14] Unleashing American Energy, supra note 12.

[15] Comite Dialogo Ambiental, Inc. v. FEMA, No. 3:24-CV-01145-JAG, at 1 (D.P.R.  2025) (https://biologicaldiversity.org/programs/energy-justice/pdfs/Opinion-Requiring-an-EIS-on-Renewable-Energy-Alternatives-in-Puerto-Rico.pdf).

[16] Id. at 12.

[17] Id. at 4.

[18] Id. at 6.

[19] Id. at 11.

[20] Id.

[21] Id.

[22] Id.

[23] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

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.

[1] See, e.g., Marc Levy, As electric bills rise, evidence mounts that data centers share the blame, NBC Bay Area (Aug. 11, 2025, 7:13 AM) https://www.nbcbayarea.com/news/national-international/electric-bills-rise-data-centers/3931622/ (noting that 70% of last year’s increase in electricity cost was due to data center demand); see also Emma Penrod, Residential electricity rates up 6.6% over last year as gas prices rise, Utility Dive (Sept. 19, 2025), https://www.utilitydive.com/news/electricity-rates-bills-affordability-cap/759977/ (suggesting that increased demand and rising natural gas prices may be why utilities are proposing rate increases).

[2] Penrod, supra note 1.

[3] Id.

[4] Dan Gearino, Which States Are Getting Hit Hardest by Electricity Price Increases?, Inside Climate News (Sept. 25, 2025) https://insideclimatenews.org/news/25092025/inside-clean-energy-electricity-rate-hikes-by-state/.

[5] Id.

[6] Rachel Reed, How data centers may lead to higher electricity bills, Harv. L. Today (Sept. 3, 2025) https://hls.harvard.edu/today/how-data-centers-may-lead-to-higher-electricity-bills/.

[7]E.g., Lalit Batra, et al., Rising Current: America’s growing electricity demand 4 (2025), https://www.icf.com/-/media/files/icf/reports/2025/energy-demand-report-icf-2025_report.pdf?rev=c87f111ab97f481a8fe3d3148a372f7f (finding that U.S. electricity demand may grow by 25% by 2030 and 78% by 2050).

[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”).

[9] Eliza Martin & Ari Peskoe, Extracting Profits from the Public: How Utility Ratepayers Are Paying for Big Tech’s Power, Harv. Elec. L. Initiative 6 (2025), https://eelp.law.harvard.edu/wp-content/uploads/2025/03/Harvard-ELI-Extracting-Profits-from-the-Public.pdf.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 7 (explaining that a utility’s preferred rate includes a “revenue requirement” to earn a profit and cover operating expenses).

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 15.

[19] Union of Concerned Scientists, Connection Costs: Loophole Costs Customers Over $4 Billion to Connect Data Centers to Power Grid 2 (2025), https://www.ucs.org/sites/default/files/2025-09/PJM%20Data%20Center%20Issue%20Brief%20-%20Sep%202025.pdf; Martin & Peskoe, supra note 9 at 15.

[20] Union of Concerned Scientists, supra note 19.

[21] Id.

[22] See id. (noting that residential consumers only require low-voltage transmission).

[23] Id.

[24] Id. at 6.

[25] Id. at 4.

[26] Territory Served, PJM  https://www.pjm.com/about-pjm/who-we-are/territory-served (last visited Oct. 14, 2025).

[27] Ethan Howland, FERC approves PJM’s $5.1B cost-share plan for transmission to be built by Dominion, others, Utility Dive (Apr. 10, 2024) [hereinafter FERC approves PJM plan], https://www.utilitydive.com/news/ferc-pjm-cost-allocation-transmission-rtep-maryland-virginia/712768/.

[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).

[29] Id.

[30] Ethan Howland, Customers in 7 PJM states paid $4.4B for data center transmission in 2024: report, Utility Dive (Oct. 1, 2025) [hereinafter Customers paid $4.4B in 7 PJM states], https://www.utilitydive.com/news/pjm-data-center-transmission-costs-ratepayers/761579/.

[31] Ethan Howland, Maryland ratepayer advocate urges FERC to reject PJM’s $5.1B transmission cost allocation plan, Utility Dive (Feb. 14, 2024) [hereinafter Maryland urges FERC to reject PJM plan], https://www.utilitydive.com/news/maryland-ratepayer-advocate-ferc-pjm-rtep-transmissision-cost-virginia-data-center/707338/.

[32] Customers paid $4.4B in 7 PJM states, supra note 30.

[33] Id.; Martin & Peskoe, supra note 9 at 16.

[34] Id.

[35] Id. at 17.

[36] Martin & Peskoe, supra note 9 at 17.

[37] Id.

[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).

[39] Reed, supra note 6.

[40] Martin & Peskoe, supra note 9 at 12.

[41] Id. at 13.

[42] Id.

[43] Id.

[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).

[45] Shelby Green, Key decisions loom in Florida Power and Light’s historic bid to raise rates by $10 billion, Energy & Pol’y Inst. (Sept. 15, 2025), https://energyandpolicy.org/key-decisions-loom-in-fpl-historic-bid-to-raise-rates/#h-florida-power-and-light-proposes-to-shift-significant-costs-onto-everyday-floridians (explaining that FPL changed their bid last-minute from $10 billion increase to a $6.9 billion increase).

[46] Id.

[47] Id.

[48] Id.

[49] Dan Gearino, Consumers (and a Utility) Get a Win in Ohio, While Data Centers Take the Loss, Inside Climate News (July 17, 2025), https://insideclimatenews.org/news/17072025/inside-clean-energy-ohio-data-centers-penalties/.

[50] Id.

[51] Shannon Heckt, Dominion proposes higher utility rates, new rate class for data centers, Va. Mercury (Sept. 3, 2025, 11:20 AM),  https://virginiamercury.com/2025/09/03/dominion-proposes-higher-utility-rates-new-rate-class-for-data-centers/.

[52] Id.

[53] Id.

[54] Id.

[55] H.D. 3546, 83d Leg. Assemb., Reg. Sess. (Or. 2025); Or. Legislature, Power Act: Protecting Oregonians With Energy Responsibility (2025), https://www.oregonlegislature.gov/marsh/Documents/POWER-Act_One-Pager_3-5-25.pdf?utm_.com.

[56] Id.

[57] Id.

[58] S.B. 6, 89th Leg., Reg. Sess. (Tex. 2025); David Chernicoff, Texas Senate Bill 6: A Bellwether On How States May Approach Data Center Energy Use, Data Center Frontier (July 2, 2025), https://www.datacenterfrontier.com/energy/article/55298872/texas-senate-bill-6-a-bellwether-on-how-states-may-approach-data-center-energy-use.

[59] Id.

[60] Id.

[61] S.B. 57, 2025-2026 Leg., Reg. Sess. (Ca. 2025).

[62]  Martin & Peskoe, supra note 9 at 17.

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)).

[2] Safe Drinking Water Act, 42 U.S.C. § 300h(b).

[3] Id.

[4] Id.

[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”).

[9] Id.

[10] USGS, Water Resources and Shale Gas/Oil Production in the Appalachian Basin (OFR 2013-1137).

[11] U.S. EPA, supra note 8.

[12] Id.

[13] Id.

[14] Marcellus Shale Coal., Recommended Practices: Site Planning, Development and Restoration 7 (2012), https://marcelluscoalition.org/wp-content/uploads/2012/04/Site-Planning-Development-and-Restoration.pdf (listing surface disturbances for well pads, access roads, central impoundments, and pipelines, and recommending erosion and sediment controls).

[15] U.S. Env’t Prot. Agency, Erosion and Sediment Control from Energy Extraction Sites, EPA/600/R-18/041 (2018).

[16] Id.

[17] Martina Angela Caretta et al., Flooding Hazard and Vulnerability: The 2016 West Virginia Floods, 3 Frontiers in Water, 5 (June 2021).

[18] Id.

[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.

[20] Id.

[21] Paul F. Ziemkiewicz et al., Evolution of water chemistry during Marcellus Shale gas development, 134 Chemosphere, 224, 226 (Sept. 2015).

[22] National Weather Service, July 2022 Significant River/Flash Flood in Southeastern Kentucky Summary (2023), https://www.weather.gov/media/publications/assessments/July_2022_Significant_River_Flash_Flood_SE_KY.pdf.

[23]Id.

[24] Ky. Rev. Stat. Ann. . §§ 353.500–353.720.

[25] Halliburton, Fracking, and the N.C. Public Records Act, SmithEnv’t Blog (May 3, 2013), https://www.smithenvironment.com/halliburton-fracking-and-the-n-c-public-records-act/.

[26] Id.

[27] Id.

[28] 42 U.S.C. § 300h(b).

[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).

[31] Id.

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.

[1] Vt. Animal Cruelty Task Force, Report to Vermont House and Senate Judiciary Committees 23 (2016), https://legislature.vermont.gov/assets/Legislative-Reports/ACTF-Report-to-Judiciary-2016-FINAL.pdf.

[2] Id. at 22–24.

[3] Id. at 23.

[4] Vt. Stat. Ann. tit. 13, § 351a (2024).

[5] See In re SM Farms Shop, LLC, 2025 VT 33, ¶ 10 (“[O]ur primary goal is to give effect to the legislative intent.”).

[6] Tit. 13, § 352(3).

[7] Id.

[8] Id. § 351(13)(C) (emphasis added).

[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] See In 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.”).

[12] See Id. ¶ 31.

[13] Minimize, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/minimize (last visited Oct. 21, 2025).

[14] Minimum, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/minimum (last visited Oct. 21, 2025).

[15] See e.g. In re Appeal of Shaw, 2008 VT 29 (analyzing whether tower’s visibility “minimized” as required by zoning ordinance).

[16] Id. ¶ 14–17.

[17] U.S. Dep’t of Agric., Dairy Cattle Management Practices in the United States, 2014, at 4 (2016), https://www.aphis.usda.gov/sites/default/files/dairy14_dr_parti_1.pdf.

[18] Id. at 160, 165 (20% of non-lactating “dry” cows and 42% of lactating “wet” cows).

[19] Id. at 159, 163.

[20] Annabelle Beaver et al., The Welfare of Dairy Cattle Housed in Tiestalls Compared to Less-Restrictive Housing Types: A Systematic Review, 104 J. Dairy Sci. 9383, 9406 (2021), https://www.sciencedirect.com/science/article/pii/S0022030221007177?ref=cra_js_challenge&fr=RR-1.

[21] Id. at 9401, 9406.

[22] Emily Fread, Transitioning From a Tie Stall to a Freestall, PennState Extension, https://extension.psu.edu/transitioning-from-a-tie-stall-to-a-freestall (last updated Aug. 15, 2024).

[23] Beaver, supra note 20, at 9392.

Border Patrol for Biodiversity: The Global Fight Against Invasive Alien Species
By Katherine Cantor

What comes to mind when you think of international trade? Is it wealthy businessmen and crowded shipyards? A lesser-known threat lurks: countries trade more than goods, they trade invasive species. Humans bringing non-native species into new lands is not new.[1] However, international trade has allowed these invasive alien species to lead ecosystem-altering sieges on foreign lands.[2] Much of the trade in invasive species is unintentional: they sneak across borders as secret seeds, parasites, or stuck on soil.[3] The main pathway for invasive alien species into new countries is through horticulture and the nursery trade, sometimes intentionally.[4]

Invasive alien species (IAS) are species brought to a new place by humans, which allows them to overcome barriers the native species face.[5] Unfortunately, this allows IAS to wreak havoc on native ecosystems.[6] IAS result in monetary harm through changes in nutrient cycling, hydrology, and the ecosystem’s ability to deal with disturbances.[7] Introduction of IAS also leads to significant extinctions. Since the 17^th century, “invasive alien species played a significant part ‘in nearly 40% of all animal extinctions’” with known causes.[8] This problem is especially widespread in America. Even disregarding overseas territories, the U.S. has some of the highest amounts of IAS worldwide.[9] Invasive species in the international markets are problematic, so what is being done?

International Regulations on Invasive Alien Species

There are many international treaties relevant to IAS.[10] The primary treaty is the Convention on Biological Diversity (CBD). The CBD states that countries should “[p]revent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.”[11] Unfortunately, while the U.S. signed the CBD, they did not ratify it.[12] The International Plant Protection Convention (IPPC) governs “pests”—species that are injurious to plants.[13] It also governs “quarantine pests”—pests that pose an economic threat to the introduced area.[14] The IPPC also developed International Phytosanitary Measures (IPMs), which set rules preventing the spread of pests in international trade.[15] Because the CBD, IPPC, and IPMs are all international, cooperation across countries and various levels of government is imperative. To aid international cooperation, the IPPC introduced an EPhyto program, where countries can electronically send and receive messages and phytosanitary certificates.[16] 127 countries have adopted the EPhyto program.[17] Under the CBD and IPPC, countries have taken the reigns and established their own regimes to protect against IAS.

Case Studies: What Other Countries Are Doing

America operates a host of programs fighting IAS under the IPPC.[18] The main American program carrying out the IPPC is the Animal and Plant Health Inspection Service’s Plant Protection and Quarantine program (APHIS-PPQ).[19] The APHIS-PPQ works to safeguard “against the entry, establishment, and spread of economically and environmentally significant pests.”[20] America is also a part of NAPPO, the North American Plant Protection Organization.[21] Under both the IPPC and NAPPO, the APHIS-PPQ developed their own set of International Phytosanitary Standards (IPS).[22] One specific IPS aims to prevent IAS from hitching a ride in on imported plants. Under that rationale, the NAPPO implemented a regional phytosanitary measure requiring plant-growers to ensure containment and control of possible pests.[23] This measure poses issues: what constitutes non-compliance and how the standard is enforced are both ambiguous.[24] Working internationally to prevent IAS, America also implemented the International Forestry Cooperation Act.[25] This Act allows support to non-U.S. forests through “prevention and control of insects, diseases, and other damaging agents.”[26] While America has many IAS regulations, the issue has not been diminished.[27]

Across the world, Viwa Island of Fiji is a success story in eradicating IAS.[28] This effort was congruent with the Fijian National Biodiversity Action Plan passed under the CBD.[29] The Action Plan notes concerns with IAS and states that it’s a priority for landowners to “use, manage, or eradicate species” that threaten biodiversity.[30] The Viwa Island plan originally started with the intent to eradicate poisonous and invasive cane toads.[31] After hearing community concerns, the project shifted to feral dogs, cats, and rats.[32] Community members were trained and “involved in all decisions and . . . engaged in the full range of management activities.”[33] Because community members were able to choose the IAS most disruptive to them, they were incredibly engaged.[34] Because of their engagement, all chosen species were completely eradicated.[35] The community has since cited increases in native lizards, birds, and crop yields.[36] Importantly, local communities now have the knowledge and skills to support biodiversity and manage IAS.

The goal of these international laws should be preventing IAS from being transported, rapid detection, and efficient eradication.[37] This necessitates global cooperation and enforcement of current laws. There are also moral questions raised in eradicating IAS that laws have not tackled.[38] While many regulations exist, the problem persists.

[1] Philip E. Hulme, Unwelcome exchange: International trade as a direct and indirect driver of biological invasions worldwide, 4 One Earth 666, 666 (2021).

[2] Id.

[3] Id.

[4] Anna J. Turbelin et al., Mapping the global state of invasive alien species: patterns of invasion and policy responses, 26 Glob. Ecology & Biogeography 78, 78 (2016).

[5] Id.

[6] Petr Pyšek et al., Scientists’ warning on invasive alien species, 95 Biological Revs. 1511, 1512 (2020).

[7] Id.

[8] Vito De Lucia, Bare Nature. The Biopolitical Logic of the International Regulation of Invasive Alien Species, 31 J. Envt’l L. 109, 110 (2019).

[9] Turbelin, supra note 4, at 83.

[10] Id. at 87–88.

[11] Convention on Biological Diversity art. 8(h), June 5, 1992, 1760 U.N.T.S. 79.

[12] List of Parties, Convention on Biological Diversity, https://www.cbd.int/information/parties.shtml. (last visited Oct. 9, 2025).

[13] International Plant Protection Convention, art. 2, Dec. 6, 1951, 4 U.S.T. 1791, 150 U.N.T.S. 67. (2d ed., 2024, at 2–3).

[14] Id.

[15] Adopted Standards (IPSMs), Int’l Plant Prot. Convention, https://www.ippc.int/en/core-activities/standards-setting/ispms/ (last visited Jan. 20, 2026).

[16] IPPC ePhyto Solution, Four Years In, United Nations International Computing Centre (Mar. 15, 2022), https://www.unicc.org/news/2022/03/15/ippc-ephyto-solution-four-years-in/.

[17] Member countries of the Central Asia Regional Economic Cooperation on the road to adopting the IPPC ePhyto Solution, International Plant Protection Convention (Oct. 9, 2023), https://www.ippc.int/en/news/member-countries-of-the-central-asia-regional-economic-cooperation-on-the-road-to-adopting-the-ippc-ephyto-solution/.

[18] International and Regional Plant Health Standards, U.S. Dep’t of Agric., Animal & Plant Health Inspection Serv., https://www.aphis.usda.gov/international-standards/plant-health-standards. (last modified July 30, 2025).

[19] Id.

[20] Plant Protection & Quarantine, U.S. Dep’t of Agric., Animal & Plant Health Inspection Serv., https://www.aphis.usda.gov/plant-protection-quarantine (last modified Sept. 30, 2025).

[21] International and Regional Plant Health Standards, supra note 18.

[22] Id.

[23] Secretariat of the North American Plant Protection Organization, RSPM 24 Integrated Pest Risk Management Measures for the Importation of Plants for Planting into NAPPO Member Countries 6–7 (2013).

[24] Id. at 10–11.

[25] 16 U.S.C. § 4501(b)(1)(D).

[26] Id.

[27] Turbelin, supra note 4, at 83.

[28] Sypmosia, A “Community” Approach to Invasive Species Management: Some Pacific Case Studies, Managing Vertebrate Invasive Species: Proc. of the USDA Nat’l Wildlife Rsch. Ctr. Symp. 29, 31 (2007).

[29] Fiji‟s Actions on IAS, Bioinvasion and Global Environmental Governance: The Transnational Policy Network on Invasive Alien Species 1, 2 https://www.cbd.int/invasive/doc/legislation/Fiji.pdf.

[30] Government of Vanuatu, National Biodiversity Conservation Strategy 21 (1999).

[31] Id.

[32] Id.

[33] Id.

[34] Id. at 32.

[35] Id.

[36] Id.

[37] Pyšek, supra note 6, at 1522.

[38] See Lucia, supra note 8, at 112.