News – Vermont Journal of Environmental Law

Riccardo Savi, Photograph of a Humpback whale jumping, in Riccardo Savi: Vanishing Ecosystems.

On the Chopping Block: Trump Administration Moves to Rescind ESA Regulations Protecting Imperiled Species

The U.S. Supreme Court heralded the Endangered Species Act (ESA or Act) as “the most comprehensive legislation for the preservation of endangered species enacted by any nation.” As set forth by Congress, the ESA’s primary purpose is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . .”

One of the central operative provisions of the Act is its prohibition on the “take” of listed species. The statute defines “take” broadly as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The activities that rise to the level of a “take” are not further defined by statute. But the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), the agencies Congress tasked with implementing the ESA, have promulgated regulations defining some of them.

Shaped by Rule: Regulatory Framing of “Harm”

In 1975—half a century ago, and less than two years after President Richard Nixon signed the ESA into law—the FWS promulgated a regulation defining “harm” to include “significant” habitat “modification or degradation” that “actually injures or kills wildlife” by “significantly” impairing “essential behavioral patterns,” including “breeding, feeding or sheltering.” The agency retained this language when it refined the definition in 1981 and the definition has remained constant ever since. In 1999 NMFS followed suit, promulgating a virtually identical regulatory definition of “harm.” The agency underscored that formalizing this definition was “not a change in existing law” and was intended to “provide[] clear notification to the public that habitat modification or degradation may harm listed species and, therefore, constitutes a take under the ESA,” and to “ensur[e] consistency between NMFS and the Fish and Wildlife Service.”

Recognizing the very real threat of injury and death that habitat modification or degradation poses to imperiled species makes good sense. Indeed, habitat destruction is by far the number one threat to imperiled species—posing a greater risk than all other threats combined.

But industry does not like anything that threatens its bottom line, and the Endangered Species Act is no exception.

Challenged and Upheld: The Supreme Court Solidifies the “Harm” Definition

Not long after the FWS promulgated its regulatory definition of harm, the timber industry challenged it in court. The case, Babbit v. Sweet Home Chapter of Communities for a Great Oregon, went all the way to the U.S. Supreme Court, which rejected the industry’s challenge and upheld the agency’s regulatory definition using all the standard tools of statutory interpretation—plain language, linguistic canons, purpose, and legislative history.

First, looking to plain meaning, the Court found that the regulatory definition was consistent with the “ordinary understanding of the word ‘harm,’” which is defined as “‘to cause hurt or damage to: injure.’” As the Court explained, “that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.”

In response to the logging industry’s contention that “harm” should be limited to “direct applications of force against protected species,” the Court explained that “the dictionary definition does not include the word ‘directly’ or suggest in any way that only direct or willful action that leads to injury constitutes ‘harm.’” Moreover, the Court added, the rule against surplusage—the linguistic canon providing that no word or phrase in a statute should be interpreted as redundant or meaningless—supported the regulatory definition, because “unless the statutory term ‘harm’ encompasses indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words that [the ESA] uses to define ‘take.’”

The Court further noted that this plain language reading is consistent with the broad primary purpose of the ESA—again, “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Indeed, the Court explained, interpreting “harm” to not include indirect injuries arising from habitat destruction would, for example, give carte blanche to drain a pond, even where it was known that doing so “would actually result in the extinction of a listed species by destroying its habitat.”

In addition, the Court explained that the FWS’s definition was supported by the ESA’s legislative history: “The Senate Report stressed that ‘“[t]ake” is defined . . . in the broadest possible manner to include every conceivable way in which a person can “take” or attempt to “take” any fish or wildlife.’” And “[t]he House Report stated that ‘the broadest possible terms’ were used to define restrictions on takings” and that it included both intentional and unintentional actions. For example, the House Report explained, the Act’s definition of “take” could “prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.” In response to the suggestion that this definition was too broad the Court recognized that “harm” would need to be foreseeable to fall within the ESA’s prohibitions.

Thus, for decades, with the blessing of the Supreme Court, the ESA has been interpreted to prohibit not just directly killing or injuring a member of a listed species but also doing so indirectly through habitat modification or degradation when that death or injury is foreseeable. Since being upheld by the U.S. Supreme Court thirty years ago, this regulatory definition has remained in place and protected species from the number one threat they face: habitat loss. It is a huge reason that the Act has “saved more than 99% of species under its protection.”

On the Chopping Block: A Proposed Rescission to the Definition of “Harm”

Now, all of that is on the chopping block. In a self-described “deregulatory action,” the Trump administration recently proposed rescinding the regulatory definition of “harm,” bizarrely describing that definition—which, again, the U.S. Supreme Court upheld—as “legally incorrect.”

The government’s reasoning does not even rise to the level of specious, and the real reasons for the proposed rescission are clear: to “relieve[]” businesses of “costs” and “burden[s].” Just as interpreting “harm” to not include indirect injuries arising from habitat destruction would give carte blanche to drain a pond even where it was known that doing so “would actually result in the extinction of a listed species by destroying its habitat,” so too would it give industry complete freedom to kill and injure imperiled species. Loggers would have carte blanche to kill and injure imperiled animals like red-cockaded woodpeckers and Northern spotted owls by cutting down old growth forests. Oil companies would have carte blanche to engage in drilling that foreseeably injures and kills imperiled species like polar bears, numerous whales—including the few dozen surviving critically endangered Rice’s whales—and many, many more species.

And that is precisely the point.

President Trump has made clear, including in day-one executive orders, his intent to override longstanding environmental laws, including the ESA, to expedite the extraction of oil and gas at all costs, including species extinction—a cost that Congress and the Supreme Court have described as “incalculable.”

But the law does not allow such recklessness. As the Supreme Court explained in its first ESA case, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’” None of that has changed.

Comments on the proposal can be submitted on regulations.gov and are due by May 19, 2025.

Published: Volume 26, Issue 3 of the Vermont Journal of Environmental Law

By VJEL
Spring 2025

The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 26, Issue 3. This Issue brings together critical scholarship at the intersection of law, environment, and justice—offering bold and timely insights into climate litigation, valuation of environmental harms, and federal conservation strategies.

VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 26, Issue 3 Publication or by accessing our Current Volume from the navigation header.

Articles:

First, Dayna Smith’s “The Ripple Effect: Examining Judicial Activism in Two Landmark Climate Cases” explores the influence of judicial decisions on global climate litigation. Analyzing Massachusetts v. EPA and Urgenda Foundation v. Netherlands, Smith illustrates how courts can serve as powerful catalysts in advancing environmental governance through judicial activism.

Next, “To His Dog, Every Man Is Napoleon: Using Contingent Valuation to Bridge the Gap Between Environmental Nonuse Damages and Companion Animal Damages” by Dawson Vandervort presents an innovative interdisciplinary argument for applying contingent valuation methodologies to quantify nonmarket harms. Vandervort’s piece highlights how legal frameworks can better reflect the social value of companion animals and environmental resources.

Finally, Wesley Peebles offers a compelling regional focus in “Longleaf Pine Restoration: Leveraging Federal Legal Mechanisms for Landscape Conservation Across the Southeast.” This article examines the tools available for large-scale ecological restoration and conservation, highlighting the longleaf pine as a case study in cross-jurisdictional environmental collaboration.

An Old-Fashioned Disease Still Poses Modern-Day Threats in Coal Country

By Savannah Collins

Hello, everyone! This is Savannah Collins, the VJEL Volume 26 Environmental Justice Editor, and this is my final post in this position. It has been an absolute honor and privilege to be part of this year’s editorial board and working on environmental justice issues at such a critical time. When I first began this position, I wanted to highlight environmental justice organizations who are on the ground, doing the hard work. I’ve been extremely fortunate to have a wonderful group of contributors this year and the opportunity to speak during the devastation following Hurricane Helene. Now, as a final send off, I would like to highlight an organization near and dear to my heart who I hope reminds you of what we are working for: our fellow person.

In September of 2024, I spoke with Mary Varson Cromer, the Deputy Director of the Appalachian Citizens’ Law Center (ACLC). The ACLC is a nonprofit law firm focused on providing justice for coal miners and those living in the coal fields of Appalachia. Founded on the needs of coal miners, ACLC has adopted a community lawyering approach grounded in a just transition. Mentioned in other posts on The Beacon, a just transition is the notion of making sure the same people are not harmed by new forms of energy we transition to as we move away from a fossil fuel economy. In the case of Appalachia, this looks like ensuring mines that were developed using mountaintop removal are properly rehabilitated, water sources are not completely depleted, and those who worked in the mines have a new place of employment as the mines shut down. It also looks like making sure miners with occupational diseases receive the benefits they were promised.

Coal mining has led to the plundering and exploitation of Appalachia. Miners have often been subjected to extremely dangerous conditions. Historically, they were exploited through the use of company towns and forced to stay in debt to the very companies using them for their labor. These horrendous conditions culminated in many armed battles with the company owners and even the federal government, including the infamous multi-ethnic strike in 1921 that led to the Battle of Blair Mountain. This battle was the origin of the term “redneck”—referring to the red bandanas signaling who were striking miners.

Today, the occupational hazards of coal mining have remained; however, the jobs have dried up quickly as the mines have closed. Due to the lower levels of available coal from centuries of mining, it now takes much more digging to find any usable coal, stirring up great amounts of silica. This increase has directly led to greater rates of black lung at younger ages and with more serious implications. Black lung, also known as Coal Miner’s Pneumoconiosis, is a latent and progressive disease where a buildup of silica in the lungs causes extensive scarring, making it more difficult to breathe. Individuals with black lung essentially are facing a death sentence simply because their work is so hazardous.

ACLC, in partnership with Black Lung Associations across Appalachia, have gone to Congress multiple times on behalf of black lung sufferers to ensure their federal benefits remain intact. In 2019, 150 miners went to Washington, D.C., to speak with lawmakers and make sure their benefits did not sunset. This action was successful.

Benefits for these occupational diseases are critical when the jobs for renewable energy often do not employ the current labor force in an area. Instead, experts are brought in to run the job sites, leaving hard working people like these coal miners struggling to find a job. There was some progress under the Biden administration’s Inflation Reduction Act, working in partnership with agreements involving the United Mine Workers of America, have been trying to link former miners with renewable energy jobs. This work has largely been put on pause with the Unleashing American Energy executive order under the current Trump administration.

Now, more than ever, it is critical to support the work of ACLC and Black Lung Associations. On April 8, 2025, the Mine Safety and Health Administration paused enforcement of the Silica Rule which requires mine operators to “update their respiratory protection programs and…obtain additional respirators.” Without rules enforcing respiratory mine safety, the effects of black lung only increase. Additionally, the National Institute of Occupational Health and Safety was closed in April of 2025, stopping black lung screenings

Wasting Time: The Undoing of a Two-Year Septic Improvement Agreement Between the Department of Justice and the State of Alabama

By Aamore Richards

The Trump administrations recent approach to Diversity, Equity, and Inclusion has posed a threat to environmental justice everywhere. Earlier this year, President Trump issued an executive order eliminating Diversity Equity and Inclusion initiatives from the foreign service, declaring them to be illegal and “immoral” discrimination programs. While it may appear that President Trump’s anti-DEI initiatives are limited to hiring protocols, the ideological premise behind this decision undermines the longstanding principals of environmental justice. At the front end of these environmental justice rollbacks is the state of Alabama.

Lowndes County, Alabama is a predominantly Black county with nearly 73% of residents being African American. In June of 2023, the Alabama Department of Public Health issued a press release detailing the issues with septic systems in Lowndes County. Septic systems serve the purpose of treating and disposing household wastewater in residences disconnected from a centralized sewer system. A properly functioning septic system should prevent sewage from backing up into homes, and therefore ease public health and sanitation concerns for community members. In Lowndes County, the septic systems are not designed or installed to work with Lowndes County Black Belt soil, a dark-fertile clay soil whose thickness makes it difficult for tradition septic systems to function. As a result, raw sewage from residents’ toilets have been washing up into their yards where children play. The incompatibility between the soil and system is leading to improper drainage of wastewater from homes—raising potential health concerns for residents from the exposure to raw sewage.

In 2023, to reconcile the sewage issue faced by Lowndes County residents, the Departments of Justice and Health and Human Services under the Biden administration reached a groundbreaking agreement with the Alabama Department of Public Health. This exclusive legal agreement between the Department of Justice and Alabama Department of Public Health sought to “protect Black and low-income residents of Lowndes County” who: cannot pay to put in a functioning septic system, cannot afford to fix one, or are not on a municipal sanitation system.

In April 2025, the Trump administration abruptly reneged on this agreement. The Department of Justice has cited this decision as an expansion of President Trump’s executive orders forbidding federal agencies to perpetuate diversity, equity, and inclusion initiatives. The silent rationale from the Trump administration appears to be that the agreement between the Department of Justice and Alabama Department of Public Health, fits within the scope of Diversity, Equity, and Inclusion, by trying to be inclusive of low income and Black Lowndes County residents in subsidizing their inability to afford proper septic systems.

The consequences of the Department of Justice’s drawback from the agreement are clear. Black and low-income residents who have not already received support in fixing or installing a compatible septic system in their homes will continue to be plagued by washed-up raw sewage. This contact with raw sewage may deteriorate the quality of health of Lowndes County residents by exposing citizens to harmful microorganisms which cause illness.

The question on everyone’s mind is can they do this? Can the federal government breach a contract with a state agency? How might the State of Alabama proceed to fill a Department of Justice-sized vacancy in their support plan for their residents? What are the legal options remaining for the state to pursue?

The state of Alabama has two options. First, formulating defenses against the Department of Justice’s abandonment of their agreement. One option the state could consider is pursuing legal action against the Department of Justic in a civil suit for breach of contract. Damages received could be used by the state to supplement the costs of continuing to provide residents assistance with installing proper septic systems. The second, and most important focus of the Alabama Department of Public Health should be to take proactive measures to limit the impact health and disease on residents from the exposure to raw sewage. One way the County can do this is by providing a pop-up health truck offering regular checkups and care to potentially exposed low-income residents. By providing health care access assistance, the County can directly monitor and work to prevent the consequences of the failing septic systems.

The Department of Justice’s betrayal of Lowndes County residents is all the more reason why environmental agreements and initiatives ought not to be left to the whims of presidential administrations changes but engraved in the fabric of law. The County may consider filing suit against the federal government for breach of contract or for the County’s economic losses in beginning to facilitate the program. Costs may include any purchases of systems and contracting of employees to work on the implementation and installment of suitable septic systems. If successfully, the County may request the government fulfill its obligations or request compensation which can be used for the County to facilitate the program on its own.

State Greenwashing Litigation: California Taking Steps Forward as Federal Enforcement Wanes

By Matthew McGovern

On September 23, 2024, the Attorney General of California sued ExxonMobil (“Exxon”) and its subsidiaries, alleging violations of misleading advertisement, misleading environmental marketing, and unfair competition laws. The misleading environmental marketing (“greenwashing”) claim focuses on Exxon’s involvement in promoting forms of recycling as a viable solution to the plastic waste crisis, while knowing that recycling would never work at scale. California’s allegations hold weight, and other states with similar laws should look to engage in similar litigation to target petrochemical companies for their involvement in this campaign.

The Landscape of Greenwashing Litigation

Individuals and regulatory actors now can target major companies for greenwashing. Most claims involve major corporations that deceitfully indicate that their product has environmental benefits through general advertisement campaigns. The Federal Trade Commission (“FTC”) published “Green Guides” that outline what constitutes unfair or deceptive environmental marketing as well as the possible defenses. Key to the Exxon case is section 260.12, which focuses on recyclable claims. The guides were first published in 1992 and have been continually updated since. The FTC enforces the “Green Guides” under the FTC Act, and usually end up entering a cease-and-desist against the violator.

The Exxon case represents a pivotal change in the scope of greenwashing litigation, which typically focuses on carbon emissions, instead of recycling. California has a specific statute to target greenwashing claims, which gives explicit statutory authority to the “Green Guides.” Businesses are not allowed to make general environment benefit claims, conveying that an item has no negative environmental impact. Corporate insights demonstrate the increasing liability risk greenwashing entails due to ambitious claims like California’s here against Exxon.

California’s Claims

California alleges that Exxon, the largest oil and gas company in the United States, and its predecessors utilized a systematic propaganda campaign over the past half-century to promote recycling. California chronicles the different public relations campaigns that Exxon and its predecessors employed. While promoting this campaign, Exxon has continually increased their production of single-use plastics, exacerbating the plastic waste crisis further. California noted in their complaint that Exxon produced an absurd amount, “roughly equivalent to two trillion single-use plastic cups in [2021] alone.” The complaint differentiates between “mechanical recycling,” which is the conventional form, and “advanced recycling,” in which chemicals break down plastics to molecular levels which can be created into new plastics.

Initially, the plastic producers used tactics to convince the public that mechanical recycling was the correct response to plastic pollution. They first turned toward “mechanical recycling” as the solution, shifting blame from the producers to the consumers. In 2017, the plastic producers even began to blame China for plastic pollution when a Chinese policy stopped plastic waste from being imported. California alleges that Exxon used a three-part strategy to deal with the negative public sentiment in the 1980s and 1990s: (1) spread deceptive information regarding the efficiency of recycling, (2) investments in short-term recycling projects, promising feasibility on a larger scale, and (3) divesting from recycling and continuing to produce more plastics. As data began to emerge demonstrating the inefficiencies of mechanical recycling, Exxon shifted toward promoting “advanced recycling.” However, this process has clear inefficiencies as well, as most of the end product is not usable plastic.

Exxon used every medium available in conjunction with their recycling campaign. They even tried to mislead educators and students, “A scientist from Exxon met with more than 2,000 students and other community members to teach the students that plastic packaging is better for the environment than other materials.” California also alleges that Exxon’s deceptive market practices shift costs to the taxpayer, as States grappling with regulatory schemes are forced to confront the plastic waste problem. Exxon is holding up the litigation’s progression through various procedural methods, but the case was just remanded back to state court.

Inspiration for other States

States should follow in California’s footsteps and initiate litigation under the same rationale. Over the past half-century petrochemical companies have capitalized on the normalization of single-use plastics, while effectuating the plastic waste crisis. Maine, Rhode Island, and Michigan have adopted most, if not all, of “Green Guides” into their laws. The advertising campaign that Exxon promoted was nationwide, as well as the harms resulting from production of single-use plastics.

Landmark litigation, like the Exxon case, publicizes judicial relief and spur debates regarding environmental concerns. Disseminating information like the inefficiency of recycling can create public knowledge leading to advocacy for a truly viable solution. As entities are forced to deal with the effects of climate change, judicial action can act as a safeguard from a corporation’s misrepresentation during their transition to attempting to reach net-zero.

U.S. Supreme Court Narrowly Construes Permitting Program Under the Clean Water Act, Limiting EPA’s Authority

By Stuart Silverman

On March 4, 2025, in City and County of San Francisco v. Environmental Protection Agency (“City and County of San Francisco”), the Supreme Court ruled in a 5-4 decision that the U. S. Environmental Protection Agency (“EPA”) acted without statutory authority for the regulation of water pollution under the Clean Water Act (“CWA” or “the Act”). In its decision, the Court construed the 2019 CWA water discharge permit issued for the City and County of San Francisco as imposing extra-legal permit requirements for the control of water pollutants. Those requirements were contrary to the effluent limitations approach mandated by Congress when it enacted the Act. In so ruling, the Court reversed the Ninth Circuit.

Background

Federal involvement in regulating water quality has a long history, stretching back to 1948 when Congress passed the Federal Water Pollution Control Act (“FWPCA”). Under that statute, amended numerous times, the federal role in water quality grew through the years. Its basic approach was to identify a body of water with substandard water quality. To prove an entity was responsible for the pollution, EPA worked backwards, to hold a particular entity responsible. This approach proved to be unworkable, particularly when it came to enforcement efforts. EPA v. California ex rel. State Water Resources Control Bd.

Thus, in 1972, Congress enacted the CWA which exemplified a new framework for the federal water quality program for entities discharging pollutants into the waters of the United States. The CWA was a stark departure from its predecessor federal program to control water pollution. The infirmities evident under prior law motivated Congress to put in place a new regulatory regime, a fundamentally different approach, to control water pollution. EPA v. California ex rel. State Water Resources Control Bd.

Specifically, under section 1342 of the Act, Congress mandated a new permit requirement under the “National Pollutant Discharge Elimination System,” (“NPDES”) that imposes “effluent limitations” for pollutants and other conditions on “point sources” of water discharges. The effluent limitations imposed on entities are established under section 301 of the Act. Effluent limitations are defined under section 1362(11) of the Act to limit the “quantities, rates, and concentrations of chemical, physical, biological, and other constituents.”

Aside from effluent limitations, permits can impose certain best practices, or narrative conditions. These include, for example, testing, record-keeping, and reporting with which the permittee must comply. Permit violations can lead to the imposition of hefty monetary civil penalties and criminal liability.

As explained by the Supreme Court in EPA v. California ex rel. State Water Resources Control Bd. (“California“), the CWA distinguishes between water quality standards, applicable for navigable waters, and effluent limitations which impose restrictions for discharges from point sources into those waters. The Court in California distinguished between the regulatory regime that existed prior to the CWA, and the one that Congress enacted in 1972. Under prior federal law, individual discharges of pollutants into navigable waters were regulated by water quality standards. Individual entities were liable whose discharge caused or contributed to the reduction of the quality of navigable waters below the established water quality standards. As the Court explained, it was determined that, in practice, this scheme was not effective. This was so since prior law focused on overall quality of navigable waters which, by statutory design, made it difficult to enforce standards that individual polluters were required to meet. Thus, enforcement occurred only after a waterbody was “overpolluted.” At that point, it was difficult for enforcement authorities to pinpoint exactly which party was responsible for the pollution. This “backward-looking” policy regime was discredited.

Under the CWA, water quality standards for waterbodies are relegated a central role. The Act requires EPA to set water quality standards. These standards act as guides in setting effluent limitations in NPDES permits. Taken together, under the CWA, water quality standards and effluent limitations have different yet complementary roles. Significantly, where an NPDES permitholder is in conformance with the effluent conditions in the permit, then the permitholder is deemed in compliance, and not subject to enforcement proceedings. Under this approach, a permitholder is given a “permit shield” under section 1342(k) of the Act. This is so even where the effluent discharges, in conformance with the permit, are discharged into navigable waters already in violation of existing water quality standards.

In City and County of San Francisco, the matter under review before the Supreme Court involved the City and County of San Francisco’s combined wastewater treatment facility, the “Oceanside facility,” that processes both wastewater and stormwater. On occasion, because of heavy precipitation, a combination of wastewater and stormwater exceeds the capacity of the treatment facility. This results in discharges of untreated water, including raw sewage, into the Pacific Ocean.

Other municipalities have combined wastewater treatment facilities that have untreated discharges during heavy precipitation similar to San Francisco’s Oceanside facility. To address this, the EPA in 1994 adopted a policy. This policy established a two-phase permitting process. It specified minimum controls, and the development and implementation of a long-term plan. In 2000, Congress incorporated the policy into law under section 1342(q)(1).

In 2019, a renewed permit was approved for the Oceanside facility. For the first time, two new separate requirements were imposed, known as “end-result” requirements. Specifically, the permit prohibited the treatment facility from making any discharge that “contribute[s] to a violation of any applicable water quality standard” for receiving waters. The other requirement states that the city cannot perform any treatment or make any discharge that “create[s] pollution, contamination, or nuisance” as defined by the California Water Code. This permit was approved by the California Regional Water Quality Control Board and EPA. The “end-result” requirements were challenged in the litigation as contrary to law, and the subject of review by the Supreme Court.

The Supreme Court’s Decision

The central inquiry before the Supreme Court was section 1311(b)(1) of the Act. The Court parsed the text of that section, considering its context and the history of the CWA. The majority opinion explained that section 1311(b)(1), subparagraphs (A) and (B) require compliance with effluent limitations set forth in an NPDES permit, based on what can be achieved using specified technologies. When technology-based limitations are not sufficient, then an NPDES permit can also include water quality-based limitations under subparagraph (C) of section 1311(b)(1). The Court made clear that no interpretation of subparagraphs (A) and (B) under section 1311(b)(1) supported imposition of “end-result” requirements in a permit. As to subparagraph (C) of section 1311(b)(1), the Court read the text as mandating “any more stringent limitations” necessary to “meet” or “implement” certain water quality or treatment standards imposed under federal or state law. The text of subparagraph (C) speaks of a “limitation.” The Court emphasized that limitations under subparagraph (C) may be imposed in numerical and non-numerical (narrative) form. The Court construed the term “limitation” as a “restriction or restraint imposed from without, as by law.” This contrasts with language that directs a permittee to meet an end result that must be achieved, with the permittee to figure out the means to accomplish this. That latter proffered interpretation does not pertain to imposing a limitation that comes from without by law, which, in the Court’s view, is the purpose of subparagraph (C). The Court thus rejected imposing “end-result” permit requirements under subparagraph (C) as favored by the government permit issuing authority.

The Supreme Court emphasized that imposing “end-result” permit requirements would be directly contrary to the underlying purpose of the CWA, to discard the ineffectual regime under the FWPCA, and impose permit requirements on polluting point sources. Thus, the majority opinion held that the federal and state permitting authorities exceeded statutory authority in the issuance of the 2019 permit governing the city’s combined wastewater treatment system at the Oceanside facility.

The Supreme Court rejected a reading of the CWA that would allow an “end-result” approach on another ground, the permit shield under section 1342(k). The Court explained that the permit shield deems a permittee in compliance with the CWA if it conforms to the terms of the permit issued to it. Any reading of the CWA that embraces an “end-result” view would thwart the finality of the permit and the protections Congress intended to afford a permittee through the permit shield. The dire implications arising from “end-result” permitting were spelled out by the Court. A permittee could “diligently implement” the specific identifiable terms of the permit, yet be exposed to liability for any drop in water quality in its receiving waters. The harshness of this result would be magnified where there are discharges from more than one source, with no way to attribute, or apportion, the decreased water quality to a particular entity. The Court referred to this as the “multi-discharger” problem.

Justice Barrett filed an opinion dissenting in part, in which Justices Sotomayor, Kagan and Jackson joined. They took issue with the majority view that the government permitting authorities lacked statutory authority under section 311(b)(1)(C) to impose “end-result” limitations.

About the Author: Stuart Silverman is a licensed attorney in Washington, D.C. He was an attorney with the U.S. Department of Health and Human Services, Office of the General Counsel, and the Office of the Inspector General for the District of Columbia Government, Medicaid Fraud Control Unit. Mr. Silverman was previously associated with the law firm Greenberg Traurig. He has written numerous articles and appeared on panels at conferences addressing a wide range of topics on health care law. Early in his career, he was an attorney with the U.S. Environmental Protection Agency.

Whose World is This?

By Nakyshia Fralin

In “The World Is Yours,” Nas raps about being “out for dead presidents to represent [him].” While layered with meaning, there’s a message that sticks out to those like me—the chase for money is the answer to life’s problems. It’s a mantra I’ve heard since my childhood, the belief that the world becomes ours when we get those “dead presidents.”

I, like Nas, grew up in a community chained by poverty. A community that is still chained by poverty. My family still lives in neighborhoods next to factories, flooded streets, and barren landscapes. No trees. No healthy food options. An environment that denies its inhabitants basic necessities: clean air, clean water, healthy food, or even a simple park bench.

Pollution is not just some byproduct for the greater advancement of our Nation. It is asthma, heart disease, and cancer to my community. Flooding is not just some byproduct of a bad storm. It destroys homes, poisons drinking water, and leaves many with anxiety and depression. Lack of trees shouldn’t be taken lightly either. It makes the air worse, the heat unbearable, and the flooding inevitable. Lack of healthy food options adding obesity, poor health, poor academic performance, and shortened lives to this deadly cycle.

This is what is known as environmental injustice. Something, I thought I could escape. Yet, that isn’t the case.

Don’t get me wrong—money matters. There is a clear link between poverty and environmental injustice. This understanding was (is) the dominating narrative; however, new research shows something much more devastating.

Environmental injustice follows race, no matter what the socioeconomic status is. A 2025 study revealed that Black communities face significantly higher pollution exposure at every income level when compared to white communities. Whether we are in the city, the suburbs, or rural areas, the burden is the same. In fact, Black families making between $50,000-$60,000 a year, on average live in neighborhoods more polluted than white families making less than $10,000 a year. The conclusion, here, is clear: if environmental injustice follows race then many of those that suffer from its effect do so because of their proximity to Black communities.

The Trump Administration cutting environmental justice initiatives is not to be taken lightly. They have cut $192 billionfrom projects aimed at sustainable housing, water infrastructure, climate and clean energy projects. My hometown, Wichita, Kansas, lost $10 million in funding for environmental justice. This is leaving organizations nationwide from San Diego to New Orleans to Minneapolis without essential funding.

I think of environmental injustice as patient 0. It’s poisonous touch disrupting the balance of tranquility leading to disproportionate health disparities, crime rates, joblessness, and violence in Black communities. Leaving families, like mine, caught in an unbreakable cycle. A cycle that money alone wont fix.

Now more than ever, we need: political action, community engagement, mass education, transparency, and environmental justice organizations. And most importantly, we need unity. Environmental injustice is not the byproduct of poverty; it’s the byproduct of institutional racism.

This vicious cycle has left people of color on the frontline of the climate crisis. Yet, when these effects happen, these communities receive less reinvestment compared to white communities. Environmental injustice is not color-blind and won’t be fixed by income equality. It requires intentional, race-conscious action.

If we don’t then—Whose World is This?

From Pollution Catastrophe to a Just and Equitable Future

By Christian Patierno

The armpit of America (as out-of-staters often refer to it), New Jersey, is working to shed this distasteful reputation with its recent groundbreaking environmental justice legislation. Some critics argue that environmental justice and job creation are incompatible, but New Jersey demonstrates that they can coexist. The two are not mutually exclusive; effective environmental regulations that protect disadvantaged communities can coexist with job preservation and creation. Despite its polluted reputation, New Jersey is making strides to create a better reality for all.

As a native New Jerseyan, I can say it is a beautiful state. Unfortunately, there are failures in the state’s environmental quality. One of the most well-known examples is the failure of the Passaic River, which was once one of the most toxically polluted rivers in the U.S. Years of manufacturing and poor disposal methods left toxins like dioxin, mercury, and PCBs, including byproducts of Agent Orange, in the sediment. This pollution, resulting from poor land-use management, negatively affects vulnerable, often immigrant populations and permeates many populated cities and towns, including my own. And New Jersey’s pollution calamity isn’t limited to rivers; ozone pollution is among the worst in the nation. According to the American Lung Association, all counties in New Jersey except for one fell into metropolitan areas that ranked among the twenty-five worst for ozone pollution. New Jersey has lived up to its reputation as a massive landfill. Of 846 landfill sites, 830 have been closed and are no longer accepting waste; however, many toxins remain and may contribute to New Jersey’s high ozone levels. Finally, driving home the pollution problem, New Jersey has the most Superfund sites in the nation, with 115 sites listed on the EPA’s National Priorities List. These sites are areas where hazardous waste has been improperly managed and are now eligible for federal clean-up funding. However, the effects of the states’ pollution are not felt equally.

The effects of these toxic pollutants are compounded by the fact that New Jersey has the highest population density of any state, resulting in increased exposure to these pollutants. They have disproportionately impacted minority communities. Many of the state’s polluted sites are clustered around major cities like Jersey City, Newark, Trenton, and Atlantic City, all of which have predominantly African American and other minority populations. Studies conducted in New Jersey indicate that many residents believe the government is not doing enough to regulate. They’ve also shown that African Americans are more likely to live in neighborhoods with poor environment and living conditions “which can limit physical activity and contribute to higher rates of premature mortality and morbidity.” This pollution can also devalue properties, create unsafe conditions, and lead to inadequate services in response. However, recent legislation has brought hope to these communities, which have been disproportionately affected by years of pollution and environmental neglect.

This legislation is underwhelmingly referred to as New Jersey’s Environmental Justice Law. However, its effects are far from underwhelming and are instead trailblazing. The law, passed by Governor Phil Murphy in 2020, requires the New Jersey Department of Environmental Protection (DEP) to evaluate the environmental and health impacts on overburdened communities (OBCs) when reviewing applications for new facilities. It directs the DEP to reject applications for new facilities that cannot be shown to avoid disproportionate impacts on OBCs or serve the public interest. An “overburdened community” is defined as any community in which “1. at least 35 percent of the households qualify as low-income households; 2. at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; 3. or at least 40 percent of the households have limited English proficiency.” Notably, this legislation is the first of its kind in the country. It aims to provide all residents, regardless of income, race, ethnicity, or national origin, with a healthy environment to live and raise a family.

However, there’s always a “but”. Critics argue that this law, and others like it, could threaten the economy, especially in the communities it aims to protect. Ray Cantor of the NJBIA stated the rule “misses the mark by only focusing on presumed negative impacts” and doesn’t consider benefits like jobs that facilities bring. Cantor warns that communities could lose opportunities for economic development if permit decisions are made based on “the number stressors on paper , versus actual stressors.” This isn’t specific only to New Jersey; the same arguments are present at the federal level. In West Virginia v. EPA, the Supreme Court limited the EPA’s authority to regulate power plant emissions, justified by the idea that strict EPA regulations might threaten the viability of fossil fuel generation and give the EPA too much power over associated future jobs and revenue. In seeking to be shielded from regulation, the fossil fuel industry often cites the impact on revenue and potential job losses. However, justifying this by citing potential future job and revenue losses is not entirely accurate regarding environmental justice-based regulation; such regulation can support both the environment and the economy.

On a national level, the Inflation Reduction Act has led to billions being invested in clean energy and climate resilience. The Inflation Reduction Act, at the same time, while it works to combat pollution, has generated numerous new jobs. Examples include BlueOval SK, a subsidiary of Ford funded by the IRA, which will build battery manufacturing plants and create 7,500 new jobs near disadvantaged communities. Another employer, ChargerHelp! is training thousands of maintenance technicians from disadvantaged communities to support EV expansion. Yet another, BlocPower, installs low-infrastructure Wi-Fi networks and other electric technologies in low-income neighborhoods. Under the IRA, it also makes certain tax rebates available to customers. EJ policies are not holding these businesses back; they are helping them. Companies are learning to align with federal and state initiatives and secure funding to support communities in need. Environmental attorney Matthew Karmel notes that even in New Jersey, where regulations are stringent, companies are taking proactive measures, engaging with the community, conducting risk assessments, and considering the proximity of EJ communities when evaluating a project.

The New Jersey Environmental Justice Law is not anti-economy; it’s meant to protect disadvantaged communities. The law requires companies to demonstrate that they cannot avoid disproportionate impacts on disadvantaged communities, and if they cannot, they must take additional measures to protect those communities facing greater burdens. This is more than strict permitting; it gives a voice to disadvantaged communities. It helps demonstrate that environmental regulation can have a positive impact on economic growth and that growth doesn’t need to harm public health, especially in disadvantaged communities, while providing good access to jobs.

New Jersey is taking a strong stance with its law, even if a new facility would greatly boost the economy. If it negatively impacts a disadvantaged community, the project should and will be dead in the water, or, I suppose, the Passaic. For a long time, disadvantaged communities in New Jersey have been subjected to pollution by companies that disregarded their health. The law seeks to strike a balance between the two, favoring disadvantaged communities and their health while also providing jobs. One of the most polluted states is making progress. If New Jersey can do it, so can others.

Balancing Environmental Protection with Economic Development: The Greenland Mining Dilemma

By Suhana Roy

“The principle of sustainable development is a principle of international law that reconciles the right to development with the need to protect the environment.”- Christopher Weeramantry, former Vice President of the International Court of Justice (ICJ)

Greenland’s recent decision to halt uranium mining over environmental concerns ignites a significant legal dispute, underscoring the intricate balance between environmental protection and economic development. Energy Transition Minerals (ETM) is seeking either the right to exploit the Kvanefjeld site or compensation of up to $11.5 billion, nearly ten times Greenland’s annual budget. This case highlights the fundamental tension between a nation’s sovereign right to regulate environmental matters and the economic interests of corporate investors.

Environmental vs. Economic Interests

The Kvanefjeld project in southern Greenland is known for its large rare-earth and uranium deposits. These resources offer great economic potential, but environmental issues have been front and center. Those fears of toxic waste contaminating drinking water and harming the area’s agriculture, especially sheep farming, underpin opposition to the mining activity.

Greenland has a long and troubled history with mining pollution, with remnants of lead and zinc mines from the 1970s still contaminating the environment. The local ecosystem, vital for Inuit hunter-gatherers who rely on seals, whales, and other marine life, remains at risk. Recognizing these concerns, Greenland’s 2021 elections became widely known as the “mining election,” where the Inuit Ataqatigiit party campaigned against uranium mining. Upon taking power, the government fulfilled its promise by passing legislation banning uranium extraction, effectively halting the Kvanefjeld project. While celebrated as a victory for environmental and public health, this decision led to a legal dispute with Energy Transition Minerals (ETM), which argues that the mining ban constitutes expropriation and is demanding compensation of up to $11.5 billion. This case exemplifies the growing tensions between sovereign environmental regulations and corporate economic interests, a conflict frequently adjudicated in international arbitration tribunals, where damages for similar disputes have reached staggering amounts.

Greenland’s uranium mining ban is part of a worldwide trend of governments choosing environmental sustainability over short-sighted economic incentives. Yet, jurisprudence of environmental law offers structured mechanisms to resolve such trade-offs. One principle of sustainable development as found in Vellore Citizens’ Welfare Forum v. Union of India (1996)is that the costs of economic growth cannot be externalized to the environment. The Greenland government’s decision aligns with this principle, reinforcing that economic interests must be balanced with long-term ecological sustainability.

Legal and Financial Repercussions

ETM’s legal action uses of the investor-state dispute settlement (ISDS) system, which lets corporations sue countries over actions they believe hurt their profits. Originally intended, as the name suggests, to protect investments in politically unstable nations, this mechanism has morphed into a tool for corporations to challenge national policies (including environmental protections) in international arbitration tribunals against sovereign nations. The abortion ban cases are just the most recent in a long string of environmentally-driven lawsuits running in 2000, such as Vattenfall v. Germany, when a Swedish energy company sued Germany over its nuclear phase-out, showing how environmental policies can create massive financial liabilities for states.

Economic costs notwithstanding, the precautionary principle applied in cases like Pfizer Animal Health v. Council of the European Union (2002) undergirds Greenland’s ban on uranium mining. The principle is that uncertainty in scientific evidence does not justify a delay in measures to protect the environment. Greenland’s policy, which is intended to prevent potential environmental disasters indirectly, is a clear example of this principle in practice.

ETM’s lawsuit also reminds us of the old adage that “the polluter pays”. This principle gained prevalence (by and large) in the Indian Council for Enviro-Legal Action v. Union of India (1996) case where industries were held accountable for damages to the environment. Instead of compensating corporations for lost profits, legal frameworks should balance those rights with requirements for corporations to internalize costs associated with environmental degradation and contribute to restoration.

Global Demand for Rare-Earth Minerals

The global shift towards clean energy technologies escalates the demand for rare-earth minerals. Over the past five years, the market for minerals vital to electric vehicles, wind turbines, and solar panels reached $320 billion. Specifically, demand for lithium tripled, cobalt increased by 70%, and nickel increased by 40% from 2017 to 2022.

Greenland’s Kvanefjeld project holds one of the world’s largest undeveloped deposits of rare-earth minerals and uranium, positioning it as a potential key player in the global supply chain for these essential resources. However, the ethical considerations of sourcing these materials must be addressed through rigorous Environmental Impact Assessments (EIA), as required under laws like the National Environmental Policy Act (NEPA) in the United States. Courts in Brazil and India mandate strict environmental reviews before approving industrial projects, ensuring that economic development does not come at the expense of ecological destruction.

Conclusion

Greenland’s predicament highlights the complex interplay between environmental stewardship and economic development. As the world transitions to cleaner energy sources, the demand for rare-earth minerals will continue to rise, intensifying the need for responsible and ethical mining practices. By integrating sustainable development, precautionary action, polluter pays principles, and mandatory EIAs, legal frameworks can ensure that economic opportunities do not come at the expense of environmental integrity and social justice.

As seen in landmark environmental law cases worldwide, governments can and should implement robust policies to mitigate the adverse effects of economic interests while upholding environmental protections. The Greenland mining dispute will serve as a critical test of how nations navigate these conflicts in an era of increasing ecological awareness and economic globalization.

War Fuels Ecocide: How Militarism Drives Environmental Destruction

By Kaya Mark

If you asked most people how they feel about war, the odds are they would say war is bad. Yet, when we talk about the military, 60% of Americans* say it has a positive effect. Adults under 30 are the only age group in which a larger share of people say the military has a more negative impact than a positive one (53% compared to 43%). Where does our perception of the military stem from?

The military-industrial complex, a term that President Eisenhower famously introduced to the American public in 1961, refers to the relationship between the military and the defense industry, and their influence on the United States’ highly militarized society. The U.S. is the largest military spender in the world, spending over $800 billion in 2023 alone. This is roughly the equivalent of $2000 per American. U.S. defense is expected to reach 1.07 trillion dollars by 2034. Unlike the wars happening in Gaza, Ukraine, Sudan, and Myanmar, the United States is not independently involved in any active, armed conflicts. So why does the Pentagon’s budget comprise of over half our federal discretionary budget?

Some argue war is costly, and I would agree. Not only is the mass genocide of human life atrocious, but all life suffers its consequences; the environmental impact of war is “indiscriminate and far-reaching,” and impacts future generations, as well as current ones. Militaries clear forests and vegetation for training purposes and actively during war to force local populations to leave. Military lands cover between 1–6% of the globe’s land surface.

We cannot ignore militarism and its effects on the environment. Military activities and trainings create emissions, disrupt landscapes and marine habitats, create air, soil, light, and noise pollution, and more. The physical disruption to natural environments impacts local habitats and their inhabitants–– both human and non-human. Unsurprisingly, according to a 2018 study, wildlife populations are more stable during peacetime and decline during war.

Some argue environmental destruction is an “explicit military tactic.” During the Vietnam War, the U.S. military sprayed chemicals and bombed areas to deny cover and land to opposition forces. For nearly a decade, U.S. military forces sprayed nearly 19 million gallons of herbicides (often called Agent Orange) in Vietnam. Today, both Vietnam and its people suffer the devastating consequences of Agent Orange: cancer; birth defects; soil, water, and air pollution, and more. Ecocide, a term popularized during the Vietnam War, is used to describe the intentional, unlawful destruction of the natural environment by deliberate or negligent human action. With ecocide, there is a substantial likelihood of severe and/or long-term damage to the environment, such as those seen with Agent Orange and the U.S. military’s use of chemical weapons.

Similar tactics have been and are still used by militaries throughout the globe. Ukraine accused Russia of using white phosphorus and riot control agents during the war. Video footage shows Israeli military firing white phosphorus-filled artillery in Gaza and Lebanon. The U.S.’s previous use of nuclear devices in the Marshall Islands and atomic bombs during World War II also resulted in major environmental and human damages. The use of “modern machine guns, heavy artillery, and chemical weapons” has major impacts on the environment. Among the most cited environmental effects of war include deforestation, soil erosion, and biodiversity loss.

In addition, military emissions contribute to nearly 5.5% of global greenhouse gas emissions––double the amount coming from aviation and shipping. War fuels the climate crisis and gas (and other dirty fossil fuels) fuel war. In 2023, the DOD distributed 79.5 million barrels of oil––valued at $13.3 billion––to the U.S. military defenses and its contractors.

The environmental damage post-war also brings huge devastation to communities and the environment. The war in Gaza has already cost over $56.4 billion in damage to the environment, with costs to clear landmines and unexploded ordnance expected to eventually cost $34.6 billion. Today, 40 million tons of rubble, including human remains, asbestos, and other hazardous materials and unexploded ordnance flood Gaza’s landscape.

I’m not sharing this to state the obvious: war is bad, but rather to call attention to the need to demilitarize. The United States cannot ignore the devastating effects of militarism, both within our own country and throughout the globe. Various movies and television shows continue to romanticize the military, causing Americans to believe militarization is necessary. Yet, movies like Top Gun are often funded by the Pentagon as pro-military propaganda. What they don’t show are the devastating aftermaths of war, the environmental consequences of military action, and the long-lasting contributions to the climate crises and our environment. When we romanticize the military, we do a disservice to our country and to the future generations that will continue after us. It’s time to demilitarize our nation and recognize that war fuels ecocide.

*Please note that I use the term Americans to describe North American people residing in the United States.

All dollar amounts are in USD.