Published: Volume 25, Issue 3 of the Vermont Journal of Environmental Law
By VJEL
April 4, 2024
The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 3. Issue 3 features two Articles and one student Note. Professor Mary Christina Wood’s article proposes Regional Frameworks to organize land-based, natural climate solutions for atmospheric carbon drawdown, emphasizing the need for global collaboration and financing. Professor Anastasia Telesetsky’s Article advocates for a communitarian approach to nature-based solutions (NBS), arguing that an economic rationale alone may dilute the effectiveness of NBS projects. The Article further suggests implementing an “ecological education and service” model akin to jury duty to foster public engagement. Finally, Elizabeth Beairsto’s Note discusses strategies for states to align a clean energy transition with equity and justice principles, highlighting legislative changes and offering recommendations for facilitating a just transition. VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 3 Publication or accessing our Volume 25 Publications from the navigation header.
Professor Wood’s Article proposes Regional Frameworks aimed at organizing the land-based, natural climate solutions (NCS) necessary to meet humanity’s need to reduce excess carbon in the atmosphere. The Article first explains the scientific need for atmospheric carbon drawdown. It then introduces a meta-strategy for catalyzing drawdowns worldwide by implementing an interlocking, “three-gear” approach comprised of (1) developing Regional Atmospheric Recovery Frameworks; (2) financing those Frameworks; and (3) organizing Regional Sky Trusts to carry out drawdown projects. The Article then outlines which components the Regional Frameworks should include and discusses significant stakeholders and contributors before summarizing ongoing efforts to develop such a framework in the Pacific Northwest region of the United States. Professor Wood concludes by proposing the establishment of Regional Atmospheric Recovery Institutes to sustain efforts at implementing NCS in a globally comprehensive and collaborative way.
Professor Telesetsky’s Article summarizes the concept of nature-based solutions (NBS) and attempts to provide a novel solution to increase public engagement in NBS work. The Article begins by exploring the variety of ways in which NBS are characterized and then explains why that expansiveness of that definition dilutes the potential for effective financing of true NBS projects. In particular, the Article argues that NBS should not operate on a predominantly economic rationale but should instead incorporate communitarian principles of solidarity and “care ethics.” Professor Telesetsky concludes by outlining one potential approach for approaching NBS in a communitarian way: by implementing an “ecological education and service” mechanism of community participation modeled after the practice of jury duty.
By Elizabeth Beairsto: 3L at Vermont Law and Graduate School and VJEL’s Public Relations Editor.
Elizabeth Beairsto’s Note seeks to outline strategies for states to harmonize newfound opportunities to advance the clean energy transition with their ongoing obligations to uphold overarching principles of equity and justice. The Note begins by describing the complex energy “trilemma” of energy security, affordability, and environmental sustainability. Against this backdrop, it then describes the ways in which the legislative framework created by the Inflation Reduction Act of 2022 and Infrastructure Investment and Jobs Act of 2021 altered the clean energy landscape by providing novel opportunities for implementing clean energy. The Note concludes by summarizing certain strategies that states may undertake as they seek to develop legislation that helps facilitate the necessary just transition.
VJEL would like to thank the authors for their submissions, as well as the Editorial Staff for their hard work to produce Volume 25, Issue 3. Their contributions continue to add exemplary and accessible work to the environmental law field.
Vermont Journal of Environmental Law
Vermont Law & Graduate School
164 Chelsea Street | P.O. Box 96 South Royalton, VT 05068 vjel@vermontlaw.edu
February 12, 2024
Dear Students, Faculty, and Members of the Environmental Legal Community,
The Vermont Journal of Environmental Law (VJEL) is thrilled to announce our tenth-annual White River Environmental Law Writing Competition. This Competition aims to encourage academics nationwide to contribute their voices and insights to the ongoing debates and conversations within the environmental law community. The annual writing Competition supports VJEL’s mission to provide the legal community with premier scholarship in environmental law.
All submissions must be in Word format and be emailed to ArticlesVJEL@vermontlaw.edu with the subject line: “White River Submission” by 5:00 PM EST on Monday, March 18, 2024. The submission must include a cover page that includes your name, address, phone number, email address, law school, and year of graduation to ensure anonymity and impartiality for the judging process. Do not include your name or any other personal information in any other part of your submission. The winning author will be notified in Spring 2024 and will receive a $1,000 cash prize along with a publication offer from VJEL. At the discretion of our senior editors, additional entries may receive publication offers.
Please share these Competition details with any current ABA-accredited J.D., LL.M., or Masters student(s) that may be interested.* Any questions regarding the Competition may be directed to VJEL@vermontlaw.edu and/or MonicaNerz@vermontlaw.edu. For general questions about VJEL, please visit our website at https://vjel.vermontlaw.edu/.
*Please note that current VJEL and Vermont Law Review Staff Editor Notes are not eligible for submission. However, Staff Editors may submit works other than their Note. Senior Staff may apply with their Note or any other work.
All of us at the Vermont Journal of Environmental Law look forward to reading your submissions!
Sincerely,
Monica Nerz
Editor-in-Chief, Vol. 25
Vermont Journal of Environmental Law
VJEL Newsroom
Published: Volume 25, Issue 2 of the Vermont Journal of Environmental Law
By VJEL
January 3, 2024
The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 2. Issue 2 features one two Articles and one student Note ranging from land use issues in small-scale agriculture through the western United States; to applying Vermont’s Environmental Justice Act to Tennessee; and finally, land use regulation in Vermont’s outdoor industry. VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 2 Publication or by accessing our Volume 25 Publications from the navigation header.
Several western regions, including Teton County, Wyoming, face challenges of meeting food demands via small-scale agriculture. By having vast swaths of public land, available land for local agriculture is limited. Mountain ranges and forests make food importation difficult, especially during winter months. All the while tourism demands for food continue to grow. This Article focuses on legal frameworks to empower local or regional food supplies in western states, using Teton County, Wyoming, and its Conservation District as a case study for feasibility with its unique conditions.
To tackle these problems, Romsa et al. propose small-scale agriculture to not only limit further development on private lands, but also produce food for local communitiesall the while supporting local farmers. But policy planning is lacking in Teton County. Instead, the authors analyzed three existing land use planning and regulatory frameworks that could supplement this development:
The Jackson/Teton County Comprehensive Plan
The Teton County land development regulations (LDRs)
The Town of Jackson LDRs.
For each policy framework, the authors first analyze where small-scale agriculture could be supported or challenged. The authors then highlight how other communities have used their own comprehensive plans for small-scale agriculture. For each regulatory framework, the authors give their recommendations as to how the frameworks may better support agricultural production.
Romsa et al. conclude by finding that the Jackson/Teton County Comprehensive plan would need a new chapter or amendments to existing chapters to better support small-scale agriculture. For the Teton County and Town of Jackson LDRs, they would need to incorporate a more expansive definition of “agriculture.” This would allow for agriculture in more zoning districts coupled with additional policy and regulatory tools such as Planned Resort Zones and Planned Unit Development Zones. Last, Teton County could find support in these revisions from other communities that have used similar strategies and the growing support from local residents.
In 2022, Vermont enacted the Environmental Justice Act. Vermont’s EJ Act includes impact analyses, community engagement, and an online mapping tool centered around environmental effects on certain groups of citizens. This Article focuses on key points for a potential environmental justice bill drafted in the Tennessee legislature, using Vermont’s Environmental Justice Act as a model. The federal government, much like Vermont, has been looking at legislative and regulatory action to address EJ concerns, including many programs created by the U.S. Environmental Protection Agency (EPA).
The author first looks at federal initiatives to address EJ concerns through legislation, executive orders, and agency indicatives by the EPA. Following that, Eshleman provides background to Vermont’s EJ Act, noting that it is more comprehensive than the EPA’s recognition and emphasis of fairness and equity in government decision-making. Additionally, Vermont offers more classes such as race, color, income, and English language proficiency.
Following the analysis of federal and Vermont initiatives, the author then details Tennessee’s background, which does not currently have any EJ legislation, with only minimal mentions of EJ perspectives from the Tennessee Department of Environment and Conservation. Tennessee boasts a much larger and more diverse population than Vermont, many of which work in agriculture and who have been historically discriminated against, which was only worsened by Trump-era policies that encouraged non-citizen deportations. In addition, much of the lower-income population is among these diverse groups. Diverse and poor groups are more vulnerable to poor water quality and flooding after large rain events, while redlined communities suffer the most from the effects of climate change.
From there, Eshleman discusses how Tennessee can implement and adapt a similar bill for the state. She focuses on addressing pollution, agriculture, community engagement, and improving language access, all to secure greater protections than Title VI of the federal Civil Rights Act of 1964 in Tennessee. Eshleman concludes that Vermont’s Act is not perfect, and would need modification, especially for identifying focus populations and implementations of impact analyses. But nonetheless, she explains, Vermont’s Act would theoretically work if implemented in Tennessee if disparities within the state are better identifiedfirst starting with defining what “environmental justice” is.
By Taylor Scott Berkley: 3L at Vermont Law and Graduate School and VJEL’s Senior Articles Editor.
Focusing on ski area development, Berkley proposes a constitutional analysis of federal takings doctrine under Act 250, a comprehensive environmental law focused on land use and development that has far-ranging regulations and restrictions. Berkley highlights the contrasting nature of competing interests: state consistency over local control, economic growth against ecological preservation, and entrenched interests against emerging needs.
Berkley first begins by looking back at the historical and ecological roles of land-use regulations in Vermont, as well as some context behind takings jurisprudence, all while focusing on the unique need for the state’s regulation and renewal. Following the background discussion, this Note moves into how Act 250 interplays with the Takings Clause of the Fifth Amendment and the Vermont Constitution, analyzing legal decisions between the two frameworks by the state’s supreme court.
The author concludes by stating that with the growing environmental-focused climate amongst Vermonters, the courts are likely to hear more takings challenges to Act 250. Thus, calling for more specificity in regulations to reduce friction between private land rights and state regulations.
VJEL would like to thank the authors for their submissions, as well as the Editorial Staff for their hard work to produce Volume 25, Issue 2. Their contributions continue to add exemplary and accessible work to the environmental law field.
VJEL Newsroom
Announcing VJEL’s 2024 Top 10 Environmental Watch List
By VJEL
December 18, 2023
The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of its 2024 Top 10 Environmental Watch List. VJEL Staff Editors work closely with a faculty member or subject-matter expert to select a topic based on what is considered within the “Top 10” most pressing environmental law issues for the upcoming year and to propose creative solutions for those problems. This year’s list includes a diverse array of topics, from concerns over our energy and transportation infrastructure; housing and land conservation; international and local climate change; food security and contamination; and water quality of our world’s oceans.
The number of wildfires each year is increasing, which cost billions of dollars in damage and take hundreds of lives. Many of these fires begin because of power grid failuresyet power utilities neglect to update the grids, as many regulators reject plans because they are “gold plating,” or only making “improvements” strictly for profit rather than truly upgrading the grid, in order to charge customers higher rates. But energy regulation does not have to take this form, instead, states are adopting “performance-based regulation” that instead compensates utilities for making targeted outcomes to enhance grid performance, rather than the traditional rate-of-return structure charged to customers.
By: Margaret Chafouleas and VJEL Editor-in-Chief Monica Nerz
In the United States, over 91 percent of households have at least one vehicle, and the daily American life relies on these vehicles. But these vehicles are killing our planet. Not only are vehicles the number one emitter of greenhouse gas emissions, but car accidents are also the leading cause of death for those aged 1-54 in the country. Unfortunately, transportation lobbying is preventing meaningful change. Recent legislation, such as the Infrastructure and Investment Jobs Act (IIJA) helped create some changes and added funding to transportation upgrades, however it still is not enough, as the law still reinforces the car-centric culture. Instead, the U.S. should focus on shifting its policies away from individual cars, and more to mass transit, walkable and bikeable cities, and doing more to increase road safety.
By: Laura Arboleda Bowie and South Royalton Legal Clinic Attorney Chester Harper
Renewable energy storage, such as solar, wind, and battery storage waiting to interconnect to major grids total more than what is currently generated on the nation’s gridyet they still await a lengthy review and permitting process by the Federal Energy Regulatory Commission (FERC). Because of this backlog, FERC promulgated Order 2023 – RM22-14-000 to speed up this process. Key points to the rule include changing the process from a “first-come, first-serve” to a “first-ready, first-served cluster study process”; speeding up the interconnection queue processing by loosening procedural costs and deadlines; and incorporating technological advancements in the interconnection process. Despite the positives, there are some concerns that Regional Transmission Organizations (RTOs), who manage about 60 percent of the U.S. electric power supply, and other independent system operators, may impose steep tariff provisions to recover the costs related to interconnection study penalties previously issued by the old rule or whether utilities can even come into compliance with the new rule within 90 days. Nonetheless, the new rule is a step in the right direction to a greener path towards 80 percent clean energy by 2030.
Under Article 14 of the Paris Agreement, parties must share an assessment of their implementation of the Agreement, known as the “Global Stocktake” (GST)the first of which took place at this year’s recent COP28 in Dubai, United Arab Emirates. While many had high hopes, there was a common theme: parties need laws that work while considering the practical concerns of individuals on the ground to implement the Paris Agreement’s goals. Currently, the global community is only reducing emissions by 15-30 percent, so the GST synthesis report created further recommendations ahead of COP28. Such recommendations include further implementing domestic policy, focusing more on mitigation and adaptation measures, and achieving all of these in a just manner, leaving no one behind. With this new information, parties have another five years to adequately respond to achieve Paris goals.
By: Nathaniel Launer and VT State Senator Kesha Ram Hinsdale
Rural states and communities are trying to balance housing concerns with land conservation, including Vermont. In June, the state passed two important pieces of legislation, the Housing Opportunities Made for Everyone (HOME) Act, which amends planning and permitting requirements to address the housing crisis, and the Community Resilience and Biodiversity Protection Act (CRBPA) to conserve one-third of Vermont’s land by 2030, and half by 2050. Naturally, these two Acts come into contention, but they both require cooperation by various agencies to achieve both goals. But each of these have their own costs and benefits from conserving land, addressing the housing crisis, and environmental concerns. Through the state’s environmental justice policy, however, Vermont can create a path that balances the two programs in a just manner that also protects Vermont’s wild lands.
By: Alexander Arroyo and Professor Laurie Beyranevand
We all need to eat to survive, but is there a “right” to food? In Maine, it is. Maine passed a constitutional amendment in 2021, called the “Right to Food” amendment, to address the high amount of food insecurity and users of state and federal food assistance programs that are vulnerable to political shifts, funding, and increasing disruptions to food systems caused by climate change. But despite producing enough food to support its 1.3 million residents, much of the local food supply is shipped outside the state or consumed by correctional facilities and schools, while importing most of the food used to feed the general population. The amendment promotes individuals to grow crops, raise livestock, and forage and huntdespite the ever-growing threat by industrial agriculture and corporatization to take over local farms and food systems. Nonetheless, this is a critical first step for Maine to address its fight against hunger in a just and resilient manner and serves as a guide for the rest of the nation.
Nuclear power provides 10 percent of the world’s energy and can be pivotal in helping countries achieve net-zero emissionsbut lack of safe and effective permanent solutions to nuclear waste are roadblocks to further developing energy generation. Adding to this is the volatility of Japanese nuclear reactors, which are susceptible to earthquakes, flooding, and other natural disasters, which could lead to disastrous nuclear meltdowns, as well as emergency response introducing nuclear waste into the world’s oceans. Since the Fukushima Daiichi Nuclear Power Plant disaster in 2011, Japan had been “treating” the collected wastewater to remove radionuclides (except tritium, a radioactive hydrogen isotope that is near impossible to remove). But concerns are growing over whether tritium and other contaminants in the water could have global impacts to fish and other marine species. Japan has an international obligation not to pollute the ocean, but classifying this water as “treated” raises many health and legal questions that need swift assessment and action.
By: Hannah Weisgerber and Professor Christophe Courchesne
In 2011, Vermont experienced devastating flooding after Hurricane Irene, and in 2023, torrential downpours inundated the state in floodwaters after an unusually wet season. Both resulted in lost lives, damaged communities long after the events, and severe environmental degradation. And these events are becoming more common across the country. In response, states are developing flood resiliency plans, including the Enhancing Flood Resiliency of Vermont State Lands plan. But legal structures are lacking in land planning and such projects can be significant time and financial investments. But since Hurricane Irene, Vermont reacted by cities purchasing properties in flood zones; rebuilding infrastructure like roads, bridges, and culverts; increased publication of educational materials and outreach through public websites; and encouraged municipalities to take initiative to address flood resilience. Even with these lofty goals, the state still fell short, including no mention of flood resiliency in its Acceptable Management Practices and no established conservation targets for state lands and hydrologic resource zones. This comes as a stalemate between prioritizing forests as working forests for logging or for conservation.
Wildfires pose new risks to communities that they did not previously during pre-Columbian North America, as indigenous cultures had a regular cycle of controlled burns to remove any buildup of highly flammable organic matter. Instead, governments spend billions on fire suppressionthough this is changing amidst the growing number of large crown fires in the Western United States, like the Camp Fire in Northern California in 2018, to instead conduct over 50 million acres of controlled burns by the U.S. Forest Service (USFS). Indigenous cultures became keystone species to managing healthy ecosystems with controlled burns, but this clashed with settlers’ views of property ownership. Now, some indigenous tribes are working cooperatively with local governments to bring back controlled burnsbut this is not enough. Despite the growing recognition of these traditional fire practices, their widespread use is almost nonexistent, even with USFS’s goal to create a safer fire regime for Americans.
By: Hanna Walker and Environmental Justice Clinic Director and Professor Mia Montoya Hammersley
Plastic is present in nearly every aspect of our lives: food packaging, clothing, and cosmetic products, to name a few. Each year, over 400 million tons of plastic ends up in landfills, water bodies, and the environment, and this amount could triple by 2060. Despite the sheer volume of plastics, recycling is not enough to reduce waste, especially as oil-rich nations continue to push for more production. Plastic pollution is so prolific that the United Nations is in the midst of drafting a new global agreement addressing it. As plastics accumulate in the environment, they break down into smaller pieces called microplastics, which can enter the human body in ways most could not imagine, such as chopping vegetables on plastic cutting boards, twisting the cap off and drinking from a soda or water bottle, or drinking from contaminated water suppliesmost commonly found in environmental justice communities. These plastics act as inhibitors for beneficial bacterial growth in our digestive system and are endocrine disruptors that interfere with the body’s natural hormones for growth, reproduction, metabolism, sleep, and stress response. Addressing plastics has occurred at all political levels, from cities, states, to the federal government, all at varying degrees, however more efforts are needed to address the large volume of plastic in our daily lives, including the upcoming UN treaty and domestic policies.
VJEL would like to thank the faculty members and co-authors for their expertise and assistance to the Staff Editors during the drafting process to produce the 2024 Top 10 Environmental Watch List. Their contributions continue to add to exemplary and accessible work to the environmental law field.
VJEL Newsroom
Published: Volume 25, Issue 1 of the Vermont Journal of Environmental Law
By VJEL
November 8, 2023
The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 1. Issue 1 features two Articles and two Student Notes, ranging from concerns of fast fashion and its contribution to microplastics in the environment; international self-determination in the context of climate change; risk communication using the East Palestine train wreck as a case study; and the captivity of orcas. VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 1 Publication or accessing our Volume 25 Publications from the navigation header.
What if your clothing is leaving little trails of plastic everywhere it has been? Emma Ross examines the regulation of the global fast fashion supply chain with respect to the accumulation of microplastics in the environment.
She surveys the existing legal framework, concluding that it is entirely insufficient for addressing fashion retailers’ contributions to microplastics pollution. We may focus on the packaging that our clothing comes in, but what about the pollution that comes from our clothes themselves? Ross gives us a backstory of how the fashion industry emerged, and why it continues to stay where it is. She dives into issues such as globalization and the need to remain profitable, which means driving production costs down.
From there she pivots to what changes are being made, and specifically which changes are helpful. Ross goes on to summarize management guidelines such as extended producer responsibility (EPR) and closed-loop supply chains (CLSCs) before asserting that incorporating facets of both concepts into federal legislation would provide the most concise and effective solution.
There exists an ongoing discussion of whether the “right to self-determination” provides oppressed peoples with the ability to secede under international law. Udell takes the right to self-determination analysis further by applying the increasingly severe climate-related impacts to support an argument under that theory.
Udell gives us a background of the history of self-determination and its traditionally opposing viewpoints for maintaining stable nations. He provides counters to these viewpoints, and describes why this shift in thinking is necessary due to the impacts of climate change.
Under such a theory, the author explains, oppressed peoples would argue that their human rights have been sufficiently violated to justify their secession from a parent state. Udell concludes by noting several notable developments arising from the nexus of human rights and the environment that could benefit those pursuing secession under international law. This includes the potential recognition of ecocide as a crime under the Rome Statute of the International Criminal Court, the growing rights-of-nature movement, and the United Nation’s recent recognition of the human right to a healthy environment. With this, Udell calls on future scholarship to further examine these ecocentric legal shifts and how they can represent feasible avenues for those oppressed.
By Lindsay Matheos: 3L at City University of New York School of Law.
Examining the February 2023 train derailment in East Palestine, Ohio, this Note suggests that inherent gaps exit in the regulatory framework governing communications of risk.
This Note highlights the role of East Palestine as a “railside” community in America’s Rust Belt, asserting that such communication failures are only one aspect of a broader trend of failures to meaningfully include Rust Belt communities in the political process. Historically, Matheos argues, most political agendas have largely ignored the Rust Belt, and the events in Ohio show exactly that.
Matheos then examines how gaps in the existing federal risk communications framework make Rust Belt communities more susceptible than others to failures in communication. Additionally, these failures in communication serve as a symbol of the neglect East Palestine has faced, leaving this area under-resourced and ill-prepared. Matheos concludes by proposing several recommendations, including increased corporate responsibility, as part of a composite strategy for filling these regulatory gaps.
By Nicholas Govostes: 3L at VLGS, Articles Editor for VJEL, and Winner of Volume 24’s Note competition.
Tokitae the Orca spent over fifty years in captivity before she passed away in August of 2023. To put a stop to this, “seaside sanctuaries” could be a solution for re-homing marine mammals currently living in captivity. Various legal hurdles exist that prevent seaside sanctuaries.
Govostes’s Note addresses ongoing attempts to re-home marine mammals, both successful and unsuccessful. He guides us through federal statutes that a solution like seaside sanctuaries would have to navigate including the Endangered Species Act, Marine Mammal Protection Act, and Animal Welfare Act.
This Note considers pertinent policy implications of such solutions, including increasing public opposition to the housing of marine mammals in captivity, while also highlighting the opinions of Indigenous communities in the United States. Govostes concludes by proposing a host of variably robust legal and policy-based solutions.
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 1. Their contributions continue to add exemplary and accessible work to the environmental law field.
VJEL Newsroom
Call for Student Presenters for VJEL’s 2023 Symposium: We’re Bringing Nature Back (Nov. 18th)
By VJEL
October 1, 2023
VLGS Students:
Do you have past experiences or interests in Nature-Based Solutions (NBS)? The Vermont Journal of Environmental Law (VJEL) is looking for students to present their NBS projects at the 2023 Nature-Based Solutions Symposium. Come present your NBS projects! This event will be held on campus on Saturday, November 18th, 2023. In between panel sessions, VJEL will host student presentations.
What are Nature-Based Solutions? These solutions involve conserving, restoring, or better managing ecosystems to remove CO2 from the atmosphere. Examples of nature-based solutions include: reforestation, restorative agricultural practices, conserving wetlands, and the like.
Presentation Length: 10 minutes
How to Apply: Send an email to nbssymposium@vermontlaw.edu with a brief description of your presentation idea and how it applies to NBS.
Applicants will be selected on the following criteria:
Relevance to the Symposium theme
Variety of projects
How far along the applicant is in their project
There is no limit on what projects apply. For example, you can present a Clinic project, independent project, or work-related project.
