A Comparison of the Biden and Trump Administration’s Energy Policy and Coal Leasing in the Powder River Basin

by Drew Collins

The 2024 election of President Trump brings rapid changes in the ways America will get its energy. President Trump clearly expressed his intentions to unleash American energy during his second administration. These intentions will undoubtedly affect the Powder River Basin (“PRB”), an area which President Biden banned from new coal leasingin 2024. To better picture the future of coal leasing in the PRB, it’s crucial to understand the PRB’s economic and environmental significance as well as the policies used to manage the PRB under the Biden Administration.

Significance of the Powder River Basin

The PRB is significant because it is a major source of U.S. coal, a major source of jobs across Wyoming, and a major source of potential pollution. The PRB is the largest reserve of coal in the country accounting for over 40 percentof the nation’s coal supply. The PRB makes Wyoming the nation’s largest coal producer. The PRB is home to the world’s largest deposits of low-sulfur subbituminous coal. Low-sulfur subbituminous coal is special because it is cleaner than regular coal, and its low sulfur contents lead to lower emissions levels.

Additionally, coal extraction in the PRB provides around six thousand direct mining jobs alongside 14 thousand indirect jobs. Indirect jobs are often associated with equipment manufacturing, transportation, and local retail. The coal industry provides some of the only meaningful employment in the rural areas where the PRB is located. Further, coal extraction supports five different Wyoming counties’ tax bases, with funding being directed towards schools, infrastructure, and other public services. However, Wyoming’s coal industry has struggled recently to find West Coastcities who have not banned coal generated energy. This struggle alongside President Biden’s ban on new leases in the PRB leaves many Wyoming residents fearful of impacts on their jobs and tax base.

Lastly, the PRB is significant because of its massive potential for emissions and pollution. Energy development in the PRB is responsible for nearly 15 percent of total U.S. carbon pollution, making it the largest single source of carbon dioxide pollution in the country. On top of emissions, strip mining techniques used in the PRB disrupt the habitats and migration patterns of local animal species such as the Sage-Grouse. Strip mining also negatively affects local air and water quality.

The significance of the PRB should not be understated. From these examples, it is clear changes in the management of the PRB could have major effects on U.S. energy generation, local economies, and the environment.

Biden Administration Energy Policies

Before the Trump Administration, President Biden subsidized American clean energy generation through the “Investing in America” initiative and the passing of the Inflation Reduction Act (“IRA”). The Biden Administration took steps to end non-renewable energy generation by regulating coal power plants emissions and increasing taxation on the oil industry. These regulations were significant because they signaled the curtailing of conventional energysources used for generation in America.

In furtherance of these initiatives, the Biden Administration banned new coal leasing in Wyoming’s PRB. President Biden’s ban recognized the market has shifted away from coal as an energy source to sources that are cheaper and cleaner. In other words, this ban is saving tax dollars from being invested into an industry that’s operating in a long-term decline. It is important to note that this ban does not prohibit coal extraction from existing leases in the PRB, but rather bans new leases for coal extraction. Considering the significance of the PRB, President Biden’s ban on new leases will likely have negative impacts on local Wyoming job markets. However, the ban could also save taxpayers billions of dollars from lost revenue and pollution damages (assuming social cost of carbon between $60 and $70).

Trump Administration Energy Policies

Not surprisingly, the current Trump Administration has a starkly different approach to energy policy than the Biden Administration. President Trump emphasizes U.S. energy dominance and security over renewables and clean technology. President Trump’s policies aim to achieve energy dominance primarily by subsidizing and deregulating the U.S. Oil and Coal Industries, while restricting the development of renewables such as wind energy. President Trump also plans to expand oil and gas extraction on public lands.

In the mere months since President Trump was elected to office, he and his Secretary of Interior, Doug Burgum, considered leasing in the PRB alongside other coal developments across Wyoming. In early February 2025, Burgum released orders that seek to review and revise a list of polarizing land plans consistent with President Trump’s goal to unleash American energy. These orders include a review of the BLM’s Buffalo, Wyoming field office which is responsible for management of the PRB.

However, the PRB and other multi-use public lands are managed based on an established Resource Management Plan (“RMP”). As it stands, the President does not have explicit authority to undo a RMP. In general, to overturn a current RMP, a substitute must be already prepared. RMPs are typically completed by the relevant federal agency with authority and take much time and detail to complete (sometimes up to 1,000 pages).

Considering President Trump’s lack of authority and time to complete a new RMP, it seems unlikely that he will be able to overturn President Biden’s ban of new leases in the PRB without some litigation. Although President Trump’s energy objectives in the PRB are clear, his means to reaching those objectives are murky at best. The future of the PRB and Biden’s ban on new coal leases is uncertain. The current Trump administration has already made strides for increased energy extraction in Wyoming, but the legality of these actions will likely face scrutiny by the court.

Triumphing Over Terror: The Fight for Environmental Justice Under a New Regime

by Kelly Bell

Not even one full day into his second term, President Donald Trump attacked environmental justice. Immediately slashed Biden-era executive orders protecting disadvantaged, low-income, and minority communities included Justice40 and America’s Commitment to Environmental Justice. Announcements continued on further rollbacks, and then, on Feb. 6, Environmental Protection Agency (EPA) announced the leave of 168 employees, all of whom worked for the Office of Environmental Justice and External Civil Rights. That same day, the Office of Environmental Justice was also eliminated from the Department of Justice.

Funding freezes now block over $19 billion in EPA funding. In the not-so-distant past, EPA had a budget of $2.8 billion for the Environmental and Climate Justice Program alone. All over the country, communities facing environmental injustice no longer know if the funding promised to them will arrive. This loss of executive and agency support directly harms Americans. Without funding, federally-available information, and federal support, the already-uphill battle for environmental justice just got steeper. However, the fight was never easy, and now, hope cannot be lost.

States must now more than ever consider implementing their own environmental justice programs for the welfare of vulnerable residents. Vermont’s Environmental Justice Law, for example, created two committees that focus on ensuring environmental justice in the actions of State agencies. One step further that Vermont and other states should and must consider in the wake of the collapsing federal protections is providing state grants specifically to address environmental injustice within their borders. These state grants could be provided to communities, community organizations, or nonprofits in the areas. Vermont gives Community Development grants. Adding a separate initiative for environmental justice community grants tides over the loss of the federal support.

We will unfortunately not see states take as drastic an action as needed to protect these communities, and some states will not take any actions at all. President Biden’s administration faced state backlash from environmental justice initiatives. Louisiana is one state from which we will not see environmental justice support. The state’s 85-mile ‘Cancer Alley’ is a hotspot desperately needing environmental justice; minority communities disproportionally face the significant health effects impacting the region. In reaction to Biden’s initiatives, however, Louisiana refused to acknowledge or claim any significance on this racial disparity.

Nonprofits––both legal and community-founded––will need to keep the dreams of environmental justice alive by stepping up and filling the gaps left by states. The Southern Environmental Law Center, for example, explicitly called for protecting the federal funding already promised to communities suffering from environmental injustice. The Michigan Sierra Club made a statement regarding its priorities to safeguard communities, as did Earthjustice. During President Trump’s first term in office, nonprofits were able to keep environmental justice alive through tireless activism.

Community nonprofits and organizers, burdened once again with a fight their government should be handling for them, carry the heaviest loads. Often on the ground, in the moment, and dealing with the environmental injustice firsthand, community activists have a long fight ahead. The director of a Louisiana nonprofit faces downsizing but plans to keep up the fight as best as possible (though this is a clear example of how deep the work will get in these states supporting Trump’s rollbacks on environmental justice). The steps forward for directors in these situations seem grim, but possibilities exist. Grassroots organizing, making due without the federal grants, may not give way to much progress, but it another way to minimize the harm of the stripped protections. The Strategic Concepts in Organizing and Policy Education, for example, works to promote education about environmental justice impacting the local community and aid in community projects.

In conclusion, President Trump’s environmental justice rollbacks will harm vulnerable communities. States should step up and fight for their communities, but many agree with the rollbacks and will allow these changes without a fight. Legal nonprofits have and will continue fighting, but much of the work in keeping the communities running will fall on residents and local organizations themselves. Instead of embracing fear, remember: in times where we only have each other, unity is our strength.

With Global Fishing Fleets, Justice Walks the Plank

By Ilinca Johnson

What happens when poorly regulated fishery harvest practices lead industry to exploit vulnerable, impoverished communities? Global Fishing Fleets (“GFFs”) are large-scale industrial operations sustained by harmful fishery subsidiesprovided by their respective governments. The largest fleets are maintained by China, Japan, South Korea, Russia, and theUnited States. GFF operations keep the cost of seafood low for consumers around the globe by raising numerous other costs that marine ecosystems, the climate, and marginalized communities bear instead. Most alarming is how GFFs promote modern-day slavery. The current state of GFFs calls for great reform to prevent resource exploitation and protect vulnerable communities globally.

Working in the theory of Environmental Justice, scholars “tend to cast a broad net to allow consideration of how exploitative relationships between industrial actors and marginalized communities, including workers, transcend into peoples’ everyday lives.” In this current case, the exploitative practices of GFFs unsustainably harvest from marine ecosystems while simultaneously violating the human rights of vulnerable communities, demonstrating the intersection of environmental and social injustices.

Environmentally, industrial fishing has severely depleted fish stocks. In the past few decades, GFFs have tripled the number of over-harvested stocks of fish through illegal, unreported, or unregulated fishing (IUU). Today, one out of every five fish is caught IUU. Approximately 27 million tons of marine life – including an estimated 300,000 whales and dolphins—are caught and discarded as bycatch each year.

GFFs often illegally harvest in protected areas or the territorial waters of developing nations with weaker regulatory systems. GFFs avoid detection through falsifying reports, deactivating transponders, and transshipments. Transshipments move catch between vessels at sea to large “reefer” ships. These reefers have huge onboard freezers where legal and illegal fish alike mix, hiding their original source. Overfishing threatens the survival of iconic and ecologically important species including the bluefin tuna, cod, and numerous shark species, damaging marine ecosystems and devastating local indigenous communities reliant on subsistence fishing.

GFFs also contribute significant carbon emissions. Since the 1950s, greenhouse gas emissions have more than quadrupled due to unsustainable fishing practices. Today, fleets must expend more energy to maintain catch levels, going further and further from their coastlines in search of enough fish. Now, it takes twice as much effort to harvest the same number of fish as in the 1950s. The loss in fish populations disrupts blue carbon sequestration in the deep ocean, contributing even more carbon dioxide emissions to the atmosphere.

Beyond environmental destruction, GFFs notoriously exploit labor. An estimated one-third of these fleets engage in forced labor, particularly in South Asia, where trafficked workers from Myanmar, Cambodia, Thailand, and Bangladesh then endure inhumane conditions. Many are lured by deceptive job offers, only to have their passports confiscated.

These people then face months to years of twenty-hour workdays without pay while sleeping in a concentration-style bunk room and given largely non-nutritious meals. Supported by reefers and supply ships, a ship crew could be at sea for years. Reports indicate widespread torture, forced confinement, and even the murder of laborers. Between 2019 and 2020, at least 30 Indonesian workers died on Chinese fishing vessels. Today, potentially half a million migrants remain enslaved in Thailand’s shrimp industry. Additionally, Uyghurs and North Koreans are documented as working under forced labor conditions in Chinese seafood processing plants directly supplying global markets.

The exploitation of forced labor is deeply tied to overfishing. Some studies suggest the use of forced labor is a direct response to the diminished populations of fish in the ocean. By aggressively reducing expenditure on crew by utilizing human trafficking, Global Fishing Fleets save money and can provide cheap seafood to the world.

Western consumer markets, particularly in the U.S. and EU, inadvertently fuel these abuses by prioritizing cheap seafood over ethical sourcing. Major retailers such as Walmart, Tesco, and Costco sell shrimp produced through slave labor in Thailand. Currently, it is virtually impossible to trace the opaque supply chains within the global shrimp industry, though efforts are being made. The U.S. alone accounts for 14% of global seafood imports, with an estimated average potential slavery risk of 3.1 kg (~6.8 lb) of seafood per tonne consumed. That risk is 17 times higher than seafood from domestic fishery sources.

To address these injustices, urgent action is needed. Governments and industry leaders must prioritize human rights and environmental sustainability by implementing stronger labor regulations, increasing supply chain transparency, banning harmful subsidies, and ending or closely managing transshipment practices. Closing the high seas to fishing and investing in small-scale, equitable fisheries would help restore fish populations, create more equitable access to highly migratory species like tuna. Most importantly, adopting such measures would protect both the environment and vulnerable communities globally, leading to a more secure future for millions. Without reform, continued overexploitation deepens economic and social inequalities that threaten global food security, the livelihoods of millions, and the long-term health of marine ecosystems.

The time for change is now—ensuring ethical, sustainable fishing practices is essential for both people and the oceans.

Published: Volume 26, Issue 2 of the Vermont Journal of Environmental Law

By VJEL

January 23, 2025

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 26, Issue 2. This issue delves into a variety of timely issues including the environmental justice implications of flood insurance policies, challenges that policies funding clean energy efforts face, and hazardous waste dumping.

VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 26, Issue 2 Publication or by accessing our Current Volume from the navigation header.

Articles:

First, “Navigating the Green Path: The Greenhouse Gas Reduction Fund and the Hurdles to Deploying Federal Funds” by Brian Farnen and Max Mrus unpacks the complexities of the GGRF, the largest U.S. investment in clean energy, shedding light on its potential, challenges, and impacts on equity and inclusion.

Next, Christine Paul’s “The Toxic Divide: International Waste Dumping and the Fight for Environmental Equity” dives deep into the exploitation of developing countries through hazardous waste dumping. This compelling piece examines systemic failings and offers bold solutions to tackle eco-racism and enforce international accountability.

Lastly, “Come Home or High Water: How National Flood Insurance Requirements Are Creating Redlining 2.0” by Savannah Collins uncovers how outdated flood policies deepen systemic inequities in the face of climate change. Her sweeping analysis reveals how federal programs inadvertently trap vulnerable communities in harm’s way while offering innovative legal and policy solutions to promote climate resilience.

Rejecting False Solutions: The Inflation Reduction Act and the Fight for a Just Energy Transition

By Savannah Collins and Mia Montoya Hammersley

In 2024, scientists confirmed that, for the first time, the world had crossed the threshold of 1.5 degrees Celsius of warming for a full twelve months, placing us on a pathway to deadlier and more intense climate change impacts. While the transition to renewable energy is more urgent than ever, it is crucial to recognize corporate greenwashing and push back against false solutions in order to ensure that the disproportionate harms perpetuated by the fossil fuel economy do not continue. In the United States, the Inflation Reduction Act (IRA) has included unprecedented funding and support for projects marketed as renewable energy development. However, certain purported solutions have been met with resistance by frontline communities and experts alike.

The Just Transition is the idea that a healthy economy and clean environment can—and should—co-exist. Furthermore, this transition “should not cost workers or community residents their health, environment, jobs, or economic assets.” In the past ten years, especially, the United States has recognized the need to transition the U.S. economy away from being reliant on fossil fuels and into renewable energy. While this is an exciting time of movement toward a healthier world, the old pathways of injustice under the fossil fuel economy are finding new life in the renewable energy transition. Several examples of the perpetuation of these old pathways and examples of greenwashing are discussed in this article.

Carbon Capture

The Inflation Reduction Act (IRA) was passed in 2022 and is touted as the largest investment in combatting climate change in United States history. The IRA created an extensive tax credit program as one of the many provisions meant to aid in the battle against the climate crisis. However, these tax credits also benefit industries selling false solutions, without offering affected communities a seat at the table.

For example, among the false solutions funded by the IRA are tax credits for carbon capture and storage facilities. Carbon capture and storage “removes carbon dioxide from highly concentrated point sources like power plants.” In fact, “[t]oday’s largest carbon capture projects only remove a few seconds’ worth of our yearly greenhouse gas emissions.” Additionally, these carbon capture and storage facilities consume excessive amounts of energy by using fossil fuels to power the technology, largely defeating the purpose. This captured carbon dioxide is typically then used for fracking. Furthermore, transporting carbon dioxide can be extremely dangerous. For example, in 2020 in Satartia, Mississippi, a carbon dioxide pipeline ruptured, hospitalizing at least 45 people. While emergency services were called to the scene to provide aid for the poisoned, the leaked carbon dioxide caused engines to stop, slowing the emergency response.

One function of the IRA tax credit scheme is to allow taxpayers, typically industry, to sell back captured carbon dioxide using equipment that was in place before the enactment of the Bipartisan Budget Act of 2018. If these taxpayers do not use this captured carbon as an injectant for fracking, they are eligible to receive $20 per metric ton. If they do use the captured carbon for fracking, the compensation decreases to $10 per metric ton. If the capture equipment was installed after the Bipartisan Budget Act of 2018, then the price the carbon sells for is $17 per metric ton. For direct air capture facilities in service after 2022, the amount increases from $17 to $36 per metric ton. Carbon pricing schemes like this one continue to fund and incentivize fossil fuel uses such as fracking, creating a false sense of progress without addressing the root causes of climate change.

Disproportionate Impacts to Tribal Lands

Indigenous Peoples have long been on the frontlines of fossil fuel development; however, today, more than 75% of the lithium, copper, and nickel reserves and resources in the U.S., categorized as “critical minerals” that are necessary for the renewable energy transition, are within 35 miles of Tribes’ reservation lands. This is bringing new conflicts and extractive industries to Tribes’ doorsteps. Following an extremely expedited process under the first Trump Administration, Lithium Nevada Corporation began construction on the Thacker Pass Lithium Mine in 2023 after repeated attempts by Indigenous Tribes and environmental organizations to stop the mine. However, because the site is considered to be integral to creating a domestic supply of lithium batteries for electric vehicles, corporate and governmental interests have combined to continue extraction on Tribal lands in the name of domestic progress during the Biden Administration.

Nuclear reactors, often touted as an important energy source in the clean energy transition, also disproportionately impact Tribal lands. For example, in response to the nuclear arms race of the Cold War, from 1944 to 1986, 30 million tons of uranium were mined from Navajo land based on leases with the Navajo Nation. Uranium mining has led to uranium levels “at least five times greater than safe drinking water standards” allow. The people of the Navajo Nation have faced three generations of health issues due to these improperly handled mines. Potential health effects from uranium contamination include lung cancer, bone cancer, and impaired kidney function from drinking contaminated water.

Given these continued impacts to Tribal lands and communities, adequate Tribal consultation is crucial to a Just Transition. Tribes are not a monolith in their support or opposition to green energy projects, and each Tribe will have unique needs and considerations. A Just Transition for Tribal Nations inherently values self-determination, which includes the right to support resources extraction efforts occurring within their ancestral lands, but not being exploited in the process.

For example, some Tribes who have in-demand resources on the reservation or ancestral lands may want to build their economic base to better support their people. Navajo Nation, for example, has historically utilized the mines on their lands to generate revenue for the Tribe. These funds support programs, departments, and services for the Tribe. However, with the global transition away from the coal industry, the Navajo Nation has focused on being part of the clean energy transition. Current Navajo President Buu Nygren has made “ownership or equity in projects developed on the nation” one of his main priorities.

Benefit Sharing

Fundamental to the Just Transition is “redressing past harms and creating new relationships of power for the future.” Rooted in a history of labor rights movements, the people of Appalachia are also stakeholders for a Just Transition. Appalachia and the Appalachian people have been exploited—for their natural resources and labor—for generations. The major industries in the area, such as fracking and coal mining, are extremely dangerous and have historically benefited people and companies from outside of the region. The Inflation Reduction Act gives credits for taxes levied against them to industries engaging in renewable electricity production in “energy community” sites. An “energy community” includes areas found across Appalachia where 25% or greater of the local tax revenues are related to the extraction, processing, transport, or storage of coal. Additionally, companies can receive tax credits for renewable electricity produced on the site of former coal mines or coal-fired electric generators. Industry can clearly benefit from the IRA tax credits, but there is no language explaining how fence-line communities themselves will benefit.

Rather than mandating community input and benefits sharing, the IRA provides tax breaks and tax credits to encourage the creation of green energy projects, without recognizing the impacts we will see like those in Satartia, Mississippi. A Just Transition requires coalition work between environmentalist, environmental justice organizations, and labor groups. Focusing solely on global climate change without prioritization of its effect on local communities will likely lead to the same harms those communities have faced under the fossil fuel economy.

Author Bios

Savannah Collins is a third-year law and Master of Climate and Environmental Policy student. She is also the Environmental Justice Managing Editor for the Vermont Journal of Environmental Law. During her time at Vermont Law and Graduate School, she has had the privilege to work with frontline and fence-line communities, as well as Tribal nations in their pursuit of climate and environmental justice. She looks forward to working in the legal field to recognize where we have made mistakes and help to shape a fairer and more just world in the face of the climate crisis.

Mia Montoya Hammersley is the Director of the Environmental Justice Clinic and an Assistant Professor of Law. She is a member of the Piro-Manso-Tiwa Indian Tribe, Pueblo of San Juan de Guadalupe, and a Yoeme (Yaqui) descendant. In her work, Mia has represented conservation organizations in protecting land from extractive industries, Tribes in defending and asserting their land and water rights, and communities experiencing disproportionate environmental health harms. Her chapter, “The Water-Energy Nexus and Environmental Justice: the Missing Link Between Water Rights and Energy Production on Tribal Lands” was published in the UA Press Series, Indigenous Environmental Justice, in 2020. In 2021, she was a recipient of the Young, Gifted, and Green 40 Under 40 Award by Black Millennials for Flint for her work in the field of environmental justice.

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.

Volume 25 Issue 4 cover featuring an old canoe on a lily pad lake and tall grasses in the sunrise

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.