Category: 2025

Psilocybin-Assisted Therapy in the Green Mountain State 

 Written by Kathryn Keener and Diana Csank 

Cannabis laws are loosening, and recent legislative measures in some U.S. states and local governments indicate increased receptivity around psilocybin use, too. For example, in Vermont, beginning in 2018 individuals 21 years of age and older could legally possess an ounce or less of cannabis or two mature plants. And in May 2024, Governor Phil Scott signed S.114, which created the Psychedelic Therapy Advisory Group (PTAG).  

 The PTAG is comprised of medical professionals tasked with reviewing studies about the impact of psychedelics on mental health and advising whether Vermont should implement a psychedelic-assisted therapy program. The PTAG opted to study psilocybin specifically—rather than psychedelics broadly—because there exists comparatively more research aimed at understanding how psilocybin could be used to improve mental health and treat addiction.   

While in their final report the PTAG did not recommend Vermont establish any programming, members indicated “curiosity and hope for the potential strong application of the research on psychedelics as medicines and therapy.” PTAG member Dr. Rick Barnett, Psy.D., who specializes in addiction therapy and co-founded the Psychedelic Society of Vermont, avoids overstating the case for psilocybin-assisted therapy—noting that there remain many unknowns—but when interviewed said, “Keeping psilocybin criminalized is becoming more and more preposterous.” 

*** 

From a federal standpoint, cannabis—commonly known as marijuana—and psilocybin—commonly known as magic mushrooms—are illegal. Both became classified Schedule I substances when President Nixon signed the Controlled Substance Act into law in 1970. Schedule I status is reserved for substances with “no currently accepted medical use and a high potential for abuse.” While a recent proposed rule would reclassify cannabis to Schedule III, no such consideration has been extended to psilocybin. 

 But Indigenous Peoples have long employed psilocybin in medicinal and ceremonial contexts. In contrast to our Westernized approach, many Indigenous groups embrace naturally occurring psychedelics as sacred plant teachers; these teachers are animate beings—with whom humans can be in relationship—rather than inanimate drugs. Engagement with Indigenous researchers and communities as the psychedelic renaissance unfolds will be paramount to avoiding “biocolonialism” and “biopiracy.”   

As the term “psychedelic renaissance” suggests, even within a Western framework, psychedelic-assisted therapy is not new. During the 1950s and early 1960s, therapists administered psychedelics, including psilocybin, to complement psychotherapy targeted at mood disorders and addiction. A number of factors contributed to the mid-1960s decline of psychedelic-assisted therapy studies, including tighter regulations from the Food & Drug Administration (FDA) following the Thalidomide tragedy; the difficulty of creating studies that incorporate placebo effectively; the Sandoz Company halting production of the lab-produced compound used in trials; and the oft-cited Nixon administration’s war on drugs. 

Today, cannabis is poised for rescheduling. Drug law experts also expect eventual rescheduling of psilocybin, but it remains to be seen how long the process will take. Drug law expert Robert Mikos surmises psilocybin will follow a rescheduling path like that of cannabis, though he notes that public support around psilocybin use, as compared to cannabis, is more limited.   

Because it currently retains Schedule I status, psilocybin is subjected to strict regulatory burdens when it comes to conducting clinical trials. And clinical trials are expensive. As Hadas Alterman, Esq., founding partner at Plant Medicine Law Group and former Director of Communications & Policy at American Psychedelic Practitioners Association, explains,  

 “FDA clinical trials cost hundreds of millions of dollars. And if a drug manufacturer is going to invest hundreds of millions of dollars in the new drug approval process, they need to be able to see a return on their investment. Not only is this cost ultimately externalized onto the patients, but the dynamic creates bad pre-market incentives, which is one of the things delaying access now.”   

Alterman suggests short-term therapies, like MDMA-Assisted Therapy, are disadvantaged when compared to pharmaceuticals prescribed for extended use, like SSRIs. “There are so many hurdles to access lifesaving treatment,” Alterman laments. 

 Despite the difficulties around receiving approval and funding for studies, researchers at leading institutions believe that psilocybin—like cannabis—may be a viable, low-risk treatment for a range of ailments. For example, a 2022 Johns Hopkins study revealed that psilocybin-assisted treatment produced substantial antidepressant effects for participants with major depressive disorder. Multiple studies suggest psilocybin-assisted therapy appears a useful method for alleviating end-of-life anxiety in terminally ill cancer patients. Other disorders under consideration for psilocybin-assisted treatment include anorexia nervosa, post-traumatic stress disorder, obsessive compulsive disorder, and addictions.  

 Lauren Alderfer, PhD., a Vermont resident, award-winning international mindfulness educator, and the author of Mindful Microdosing, advocates for legal access to psilocybin-assisted therapy. For Alderfer and her husband, a lifelong humanitarian who is contending with Alzheimer’s, the impact of microdosing has been significant. “My husband sleeps better, is more cogent, and experiences greater well-being as a result of microdosing.” Additionally, Alderfer credits psilocybin with helping her maintain patience and well-being while providing care for her husband. The couple perceives ensuring legal access to psilocybin is an ethical imperative. “Demand is rising,” Alderfer says; “Let’s help pave the way.”  

*** 

 Recently, some locales have spearheaded psilocybin reform irrespective of federal guidelines.  

For example, in 2022 Coloradans voted in favor of Proposition 122, which decriminalizes psilocybin, dimethyltryptamine (DMT), ibogaine, and mescaline. Also, several cities—Ann Arbor, Berkeley, and Somerville and Cambridge, Massachusetts, to name a few—have decriminalized use of psilocybin, meaning the substance is still prohibited but that penalties, when they exist, are civil in nature and less severe than criminal sanctions. Notably, citizens residing in our Nation’s capital voted to decriminalize adult use in 2020, making psilocybin “among the lowest law enforcement priorities for the District of Columbia.” 

As for therapeutic programming, Oregon was the first state to develop a framework where patients can experience psilocybin-assisted therapy in state-licensed healing centers. Oregon’s Proposition 109—the Psilocybin Services Act—passed in 2020 and centers began offering their services in the summer of 2023. But in Oregon, psilocybin-assisted therapy remains difficult to access and expensive.  

As Dr. Rick Barnett, Psy.D., explains, “A well-curated psychedelic experience involves preparation, time for the patient to establish rapport with the person serving the medicine, and good follow-up care.” Hadas Alterman, Esq. concurs: “Therapy takes hours and hours and hours. There’s preparation; five therapy sessions—each eight hours long; and integration afterward. Plus, the industry standard is to involve two different guides.” Alterman proposes that centers could reduce costs by transitioning from offering individual therapy sessions to facilitating group therapy. “The economics are tricky,” Alterman says. 

 *** 

In their final report, the PTAG remarked on the challenge of evaluating new legal frameworks and determining what is likely to be successful in Vermont. Some members of the PTAG communicated misgivings about delaying access to psilocybin-assisted therapy given the pervasiveness of mental malaise and addiction in Vermont and nationally. Despite failing to reach consensus about recommended programming, however, the PTAG showed interest in continuing to meet and expanding membership.  

“To say psilocybin is going to come along and be this game-changing thing . . . I don’t think we know what works in these different paradigms,” Dr. Rick Barnett states. “But it’s really promising as another tool to peel back some of the layers of the psyche for change.” 

Ultimately, the PTAG final report is not binding on the Vermont legislature. But if the PTAG recommendations are any indication, psilocybin use is one instance where the Brave Little State will proceed cautiously.  

Author Bios 

Kathryn Keener is a 3L J.D. student at Vermont Law and Graduate School. She is a clinician at the Environmental Justice Clinic, student ambassador, member of the Native American Law Student Association, and one of the 2024-2025 Symposium Editors for the Vermont Journal of Environmental Law. Kathryn extends sincere thanks to interviewees Lauren Alderfer, PhD., Dr. Rick Barnett, Psy.D., and Hadas Alterman, Esq. for sharing their time and expertise. Kathryn is also grateful for Professor Diana Csank’s encouragement and guidance in writing about what was once a taboo legal topic that is gaining purchase in the mainstream. 

Diana Csank is an Assistant Professor in the Vermont Law and Graduate School Environmental Advocacy Clinic. A graduate of Stanford University and Tulane University Law School, where she was a student-clinician in the Environmental Law Clinic, Diana has more than fifteen years of environmental, energy, and litigation experience. For more than seven years, Diana was a Staff Attorney at the Sierra Club, where she directed challenges to fossil-fuel power-plant permitting in five southern and mid-Atlantic states, coordinated challenges to fossil-gas pipeline projects in proceedings at the Federal Energy Regulatory Commission, and handled interventions in state rate cases at public utility commissions in support of the clean energy transition. Diana previously held legal positions at the White House Council and Environmental Quality during the Obama Administration, where she helped supervise the Council’s cohorts of law clerks. Before attending law school, Diana worked on green building issues for the New York City Economic Development Corporation.  

Unseen and Unprotected: The Ongoing Struggle of Climate Refugees in the United States 

by Isaiah Gonzales and Professor Siu Tip Lam 

I. Introduction 

As climate change accelerates, environmental disasters will leave millions homeless. Recent projections from the World Bank estimate that by 2050, over 216 million people could be displaced by climate-related events. This looming crisis raises critical questions about legal recognition for climate refugees under U.S. asylum law, and the broader international community’s responsibilities. It also raises the need for the United States to develop a robust climate refugee resettlement plan, as these are not unique occurrences, but rather our new reality.  

The urgency of this topic stems from COP27 agreement, which established a framework for addressing loss and damage associated with the adverse impacts of climate change, reflecting a growing global acknowledgment of the plight of those displaced by environmental factors. Extreme weather events like Hurricanes Helene and Milton are becoming more frequent and severe. With legal protections remaining inadequate, the need for a robust legal framework to support climate refugees has never been more pressing. It is time the United States, as historically the largest emitter of greenhouse gases, investigates ways it can support those displaced by environmental destruction caused by climate change.  

II. Factual Background

A. Historical Background of Climate Change

The scientific consensus on climate change is undeniable. According to the Intergovernmental Panel on Climate Change (IPCC), human activities have significantly warmed our planet, leading to profound changes in the Earth’s systems. Our own actions have ultimately caused the demise and destruction of homelands, from islands in the Pacific Ocean to Florida.  

Recent catastrophic events illustrate this urgency. Unprecedented flooding in Barbados and Brazil in May 2024 displaced thousands, while floods in Pakistan in 2022 displaced approximately 8 million people. These events are not isolated occurrences, but rather serve as a clear look into our future and the increasing displacement of peoples by natural disasters.  

 B. History of Asylum Law in the United States

U.S. asylum law has evolved since the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. The Refugee Act of 1980 incorporated international standards into U.S. law, offering protection to individuals facing persecution based on specific grounds and increased the amount of refugee visas. Directly responding to the aftermath of the Vietnam War and the urgent need for comprehensive refugee protection, Congress enacted the Refugee Act of 1980 to address the humanitarian crisis overwhelming Asia. Through the codification of asylum law in the Immigration and Nationality Act (INA), Congress defined refugee as a person who “is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  

 C. Cruz Galicia v. Garland: First Circuit Denial of Climate Refugee Status

The narrowly defined “refugee” in the INA does not provide any protections to people displaced by ongoing environmental disasters. The recent case of Cruz Galicia v. Garland, 106 F.4th 141 (1st Cir. 2024), underscores the limitations of U.S. asylum law regarding climate refugees. In Cruz Galicia v. Garland, the First Circuit Court upheld the denial of asylum for individuals fleeing environmental disasters, asserting that environmental degradation does not equate to persecution as defined by the INA. Respondent, Mr. Cruz Galicia, cited droughts and severe storms in Guatemala as reasons for his family’s flight, highlighting a gap in current legal protections. While Mr. Cruz Galicia’s claim does not rise to the level necessary to meet the standard for an asylum claim, it serves as a pivotal moment and demonstrates a need for a special climate refugee immigrant status in our immigration system. Ultimately, the First Circuit’s decision demonstrates that the antiquated U.S. immigration asylum legal framework does not account for the realities of climate change. Individuals like Mr. Cruz Galicia have little to no protection from the destruction of their homelands by climate change. 

 D. Case Study: Climate Displacement in New Zealand

Courts in other countries implementing the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol have similarly rejected claims for asylum on the basis that climate refugee is not a protected category. A recent case out of New Zealand illustrates the urgency of addressing the issue of climate refugees on humanitarian grounds. In 2014, a family from Tuvalu sought refugee status in New Zealand because rising sea levels threatened their home. Although their claim was ultimately rejected, they were granted residency on humanitarian grounds, illuminating the complexities of legal recognition for climate-displaced individuals. This case highlights the necessity for the international community to formalize a legal framework to address climate-induced displacement. By securing global commitment, countries can ensure humanitarian aid for climate refugees and prevent similar situations in the future. 

III. Legal Background 

Thus, the central question remains for immigration advocates and stakeholders within our immigration system—what can the U.S. do to address this looming climate crisis? As described above, the current immigration framework, specifically Section 208 of the INA, 8 U.S.C. § 1158, provides asylum protection for persons who fear returning to their home because of past or future persecution based on their race, religion, nationality, political opinion, or membership within a particular social group. This demonstrates that climate refugees fit nowhere within the statutory framework of the INA, leaving them vulnerable to removal to their home countries that have been destroyed by climate change. 

 A. International Response

Several countries are beginning to recognize the plight of climate refugees. In May 2022, Argentina launched a three-year humanitarian visa program for individuals from Mexico, Central America, and the Caribbean displaced by sudden climate disasters. This initiative allows those forced to leave their homes due to hurricanes, floods, extreme rainfall, earthquakes, and tsunamis to secure initial residence, with the option to apply for permanent status while receiving community support for integration. The European Union is also researching and discussing ways in which they can codify a special visa category for climate refugees, but have fallen short of providing a foundational plan.  

 More importantly, the Paris Agreement commits the 195 signatory nations to combatting climate change through economic and political means. This historic agreement demonstrates a pledge to protecting vulnerable populations, including climate migrants. It states that “[a]cknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights,…rights of… migrants.”  

Additionally, Article 8 of the agreement addresses the adverse impacts of climate change by calling for cooperation to avert, minimize and address the associated loss and damage. To that effect, the 2022 COP27 in Dubai reached an agreement to create a loss and damage fund for vulnerable countries affected by climate disasters. As the world’s leading polluter and a signatory to the Paris Agreement, the U.S. should commit to addressing the climate refugee humanitarian crisis within our immigration system.

IV. Analysis

A. Potential Legal Frameworks for Protection

To address these challenges, the U.S. should look to international agreements, like the Paris Agreement and the COP27 framework on loss and damages, to bolster protections for displaced persons. The U.S. could consider amending the INA to include climate refugees and establishing a visa category for climate refugees similar to the one set up in Argentina. This could involve incorporating language such as “a well-founded fear of displacement due to climate change.” Congress must amend immigration laws now, as it did in 1980, to ensure protection for climate refugees and address the urgent humanitarian need. 

 

The United States’ formal recognition of climate refugees is a crucial step toward addressing this ongoing issue. Some members of Congress have already introduced legislation to address the climate refugee crisis. Ahead of the 2023 COP28, Senator Edward Markey of Massachusetts and several other senators, including Senator Bernie Sanders, introduced the Climate Displaced Persons Act to create a U.S. resettlement pathway for climate refugees. Just as other non-immigrant visas are codified in the INA, Congress must implement a climate refugee visa to protect vulnerable communities and remain committed to its promise to the Paris Agreement. 

V. Conclusion

It is crucial for U.S. law to explicitly recognize climate displacement as legitimate grounds for asylum or humanitarian protection under the INA. Strengthening international cooperation through treaties and bolstering existing frameworks, including those established at COP27, is necessary to tackle the realities of the climate crisis. Ultimately, the global community must act on its moral obligation to protect those most vulnerable to the impacts of climate change. As climate change continues to reshape our world, the legal frameworks governing refugee status must evolve to ensure that no one is left behind in the struggle for survival. The urgency of the situation cannot be overstated—we must act now to create a safer, more just future for all.   

Author Bios  

Isaiah Gonzales, a third-year law student, is a passionate advocate for immigration rights, inspired by his heritage as a descendant of Mexican immigrants. His goal of becoming an Immigration Judge reflects his commitment to justice in the immigration system. In the summer of 2024, he interned with the Vermont Asylum Assistance Project (VAAP), gaining valuable experience in asylum law and discussing migration patterns in an NBC interview. Isaiah also serves as the Student Bar Association (SBA) President for the 2024-2025 academic year, making history as the first Latino in this role. He previously co-chaired the Latin American and Caribbean Law Students Association (LALSA) and is a Symposium Editor for the Vermont Journal of Environmental Law, helping organize the “Climate Justice, LIVE!” symposium. As a Student Ambassador and Co-Chair of the Diversity Admissions Subcommittee, he promotes representation in the legal field. 

Professor Siu Tip Lam is the Director of the U.S.-Asia Partnerships for Environmental Law at Vermont Law & Graduate School. She came to Vermont Law & Graduate School from the Massachusetts Attorney General Office, where she was an assistant attorney general in the Environmental Protection Division for 11 years. During her tenure there, she enforced state environmental laws and litigated throughout the Massachusetts court system, including the Massachusetts Supreme Judicial Court. Prior to that, she practiced law with the Boston firm of Brown, Rudnick, Freed & Gesmer as a litigation associate. She graduated from Harvard-Radcliffe College with a bachelor’s degree in East Asian Studies and received her JD from Northeastern University Law School. She speaks Mandarin Chinese and Cantonese and came to the United States from Hong Kong as a child. 

AI Is Mining More Than Data 

 by Hadley Chance and Mia Montoya Hammersley 

Artificial Intelligence (AI) has crept into the everyday lives of tech users. Google attached “generative AI” to its search function in mid-2024; Siri has been embedded in the iPhone since 2011; ChatGPT, popular in education and business settings, was released to the public in 2022. As this tool becomes more commonplace, we need to change our perspective of “convenience.” AI does not exist in the ether, but as a physical machine that requires space, components, and resources, leading to the degradation of human rights and the planet. As the field of AI grows, its impacts can be traced backwards in the supply chain, starting with mining operations for critical minerals required to build the hardware. The run for critical materials in the U.S. and abroad is going to have harsh impacts on the environment and grim implications for environmental justice.  

AI is hardware merging with software. To simplify and understand the process, an overview of hardware is necessary. In short, AI needs semiconductors, which are made out of substances that have a specific level of conductivity to support AI’s functions, with the highest mineral demand on copper. If AI continues to grow as a tech industry, the demand for copper will increase by one million metric tons by 2030 and by 3.4 million tons a year by 2050. 

The Department of Energy has classified copper as a critical material. Critical materials are materials that have been designated as necessary to the “functioning of modern society.” Materials are added to the list because of potential risk to their supply chain. As AI use increases, the supply is likely to dwindle, enforcing copper’s status as a critical material. Some critics estimate that copper demand will double with the AI boom, where there is already a global copper shortage.  

 Along with the listing of copper as a critical material, the Biden Administration made a concerted effort to secure a foothold for the United States in the critical materials and minerals industry. The administration’s goal, met by investing more than $17 million in domestic mining projects, is to make the U.S. a major supplier of these minerals. The U.S. is the fifth largest producer of copper in the world, following Chile, Peru, China, and the Democratic Republic of Congo. At fifth place, the U.S. accounts for 6% of the world’s copper supply. Trying to bolster domestic growth, we are likely to see more and more proposed copper mines nation-wide.  

This should give us pause. Copper mining in the U.S. frequently takes the form of open pits, where copper is extracted close to the surface. This method can use chemicals to leech the desired minerals out of ore or, alternatively, explosive materials and drilling are used to reach the minerals. Open pits often drill below the water table, which can lead to water contamination. This leeching process, where the chemicals are injected into ore and left to seep into the material, leads to a slurry of dissolved copper and radionucleotides, including dangerous compounds like sulfuric acid. One of the byproducts of this process is concentrated radioactive materials, known as Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM). Populations who live near sites storing and producing TENORM can experience direct gamma radiation, inhalation of contaminated dust, inhalation of downwind radon, ingestion of contaminated well water, ingestion of food contaminated by well water, and ingestion of food contaminated by dust deposition. As of August 2024, the Environmental Protection Agency (EPA) is investigating regulating TENORM, but no regulations have been made.  

The byproducts of copper mining have entered and severely impacted water ways, farmland, wildlife, and community health. According to one report, 92% of water treatment systems failed, leading to ground water contamination from acid and metals.  

When the demand for copper skyrockets, we see more proposed mines. One example is the proposed Resolution Copper mine in Superior, Arizona. Arizona produces 65% of the country’s copper and is home to ten (soon to be twelve) copper mines. The land Resolution Copper is planning to drill, called Oak Flat, or Chi’chil Biłdagoteel in Western Apache, was held as a national forest within the Tonto National Forest. It was conveyed to Resolution Copper as a land swap under the National Defense Authorization Act of 2015.  

Before it was a national forest, and for time immemorial, Oak Flat has been a sacred place for several Tribes, including the San Carlos Apache. The land has been used for religious rites such as ceremonies, to gather medicine, and to pray. Resolution Copper is currently awaiting their Record of Decision per the National Environmental Policy Act (NEPA). Copper production has not yet begun. An Indigenous organization, Apache Stronghold, filed a lawsuit against the government in an attempt to reverse the land swap. This case was filed both on the grounds of violations of the Religious Freedom Restoration Act and of an 1852 Treaty, where Oak Flat was set aside for the Apache. The potential destruction of Oak Flat provides one example of the continued consequences of mining on Tribes’ ancestral territories. In addition to treaty violations and destruction of cultural resources, Tribal consultation is neglected and desecrated. 

Resolution Copper, too, is impacting water supply in Arizona. The mine is pumping more than 600 gallons of groundwater per minute to reach the copper deposits far below the water table. The mine is about an hour by car from Phoenix, where home construction was halted due to ground water supply concerns. Like many mines supported by the Biden critical minerals and materials policy, Resolution Copper stands to over-consume water in arid areas of the country. For a similar example, but with Lithium, check out Rhyolite Ridge in Nevada. 

Copper mining is but one facet of environmental impacts of AI. There are several more considerations. AI, once built and functioning, is housed in large remote servers. As of 2023, these servers demand about 1-1.5% of the world’s electricity. Electricity consumption from these servers may surpass electricity consumed by some small countries. The function of electrical grids where these servers are housed, like Northern Virginia, will be put at risk, and so will their infrastructure. To put into perspective how much more energy intensive AI is, one Google search (without Gemini’s interference) will use one-tenth the electricity as one with an AI generated response. Areas supporting AI hubs are beginning to feel the increased energy demand. AI infrastructure is projected to consume more water than Denmark. AI uses water in two ways—onsite server cooling and offsite electricity generation. The water consumed does not include the water necessary for AI physical production.  

Additionally, AI has a mounting waste footprint. By the year 2030, AI is projected to produce an extra 5,000 tons of E-waste. E-waste is waste from electrical equipment and have hazardous and toxic elements which negatively affect people and the environment. For AI, E-waste comes from the data servers (GPUs, CPUs, memory storage devices) using energy. Also, the servers become outdated rapidly because of the speed at which the AI industry is developing.  

Most of this ends up in landfills in poorer countries across the globe. Low-income workers typically handle these hazardous and toxic E-waste materials without any protective gear. The Basel Convention, an international treaty dedicated to controlling hazardous waste disposal, mandates that developed nations no longer dump hazardous waste, including E-waste, on poorer countries. The United States has not ratified the treaty—the only developed nation not to do so.  

As we move into a new Presidential administration, it is likely that Trump will reaffirm commitments to critical materials. Domestic mining will likely grow to satiate the demands of AI and other tech. According to some studies, six large copper mines will need to open a year to meet growing copper demands. Some positives as AI grows—there have been movements both nationally and internationally to moderate the environmental impacts of AI. In the U.S., a bill has been introduced to require the EPA to study environmental impacts of AI. Abroad, UNESCO has created its Recommendations about the Ethics of Artificial Intelligence, which include provisions about environmental impacts of AI. We don’t know where this winding road of AI is going, but we need to be aware of what consequences will arise from rapid, unchecked development.  

 Author Bios 

Hadley Chance (they/them) is a 3L at Vermont Law and Graduate School. They are a senior staff editor on Vermont Law Review. They grew up outside of Philadelphia, but went to the College of Charleston, where they began to be interested in Environmental Justice. They were the co-chair of the Environmental Justice Law Society their 2L year and have been on the E-Board of Alliance, the LGBTQ+ law student group, for the past two years. They also spent the last year with Professor Montoya Hammersley in the Environmental Justice Clinic. Hadley hopes to continue this advocacy work after graduation. When not in school, they enjoy the outdoors and playing tabletop games.  

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. 

 

Superfund Me: A High-Level Overview of Climate Change Superfund Bills 

 Written by Erin Evans and Dayna Smith 

 Recent state-level “Climate Superfund” legislation seeks to hold climate polluters liable and shift climate change legal policies from simply adaptive and preventive policies to ones demanding payback by top contributors. The Superfund legislation model is not a new concept. However, states have recently adopted the framework to demand justice for climate pollution. Multiple states have considered Climate Superfund legislation, and two have enacted it, paving the way for more states to follow. This article gives a brief historical overview of federal Superfund, a high-level report of state-level Climate Superfund bills, and an outlook on possible legal questions that may arise in the future as more legislation like this emerges.  

A Brief History of Federal Superfund Legislation 

In 1980, Congress enacted The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), more commonly known as Superfund. This monumental piece of legislation constructed a new tax on chemical and petroleum industries. It also provided broader Federal authority to respond directly to “releases or threatened releases of hazardous substances that may endanger public health or the environment.” CERCLA dictated requirements for closed and abandoned hazardous waste sites, including providing for the liability of people responsible for the hazardous waste and establishing a fund for cleanup if there was no identifiable responsible party. The law authorized specifically two categories of response actions by the government: short-term removals to address a prompt release of a hazardous substance; and long-term response actions to permanently reduce releases of hazardous substances, pollutants, or contaminants. Significantly, CERCLA imposes liability on parties responsible for the presence of hazardous substances at a Superfund site. Liability can either be retroactive, joint and several, or strict. 

CERCLA has been a powerful tool to hold polluters responsible. For example, a 2021 United States Supreme Court decision in Territory of Guam v. United States allowed Guam to proceed with a cost-recovery claim against the U.S. Navy stemming from a toxic waste and ammunition disposal site. The specific issue before the Court was whether a consent decree under the Clean Water Act (CWA) could trigger the three-year statute of limitations under CERCLA. The EPA had sued Guam in 2002 under the CWA, and the parties entered a consent decree whereby Guam paid penalties and shouldered the costs of containing and closing the disposal site. In 2017, Guam filed suit against the United States under CERCLA, arguing it was a potentially responsible party (PRP) who should foot some of the clean-up bill. The Court, in a rare unanimous decision, rejected the federal government’s argument that the statute of limitations period had run, and held that a non-CERCLA settlement does not settle CERCLA liability or trigger the statute of limitations.  

This decision in Territory of Guam v. United States revived Guam’s cost recovery claim against the United States Navy for its share of a $160 million cleanup bill. It also potentially opens the door to other contribution claims against polluters, demonstrating CERCLA’s continuing role in making polluters pay. The power of CERCLA is that a polluter can be responsible, even if they did not do anything out of their ordinary course of business to cause the pollution. And, with more state-level, CERCLA-esque legislation on the rise, polluters may have to reach into their pockets more often.  

State-Level Superfund Efforts 

In 2024, several states, including Vermont and New York, have enacted Climate Change Superfund legislation, which would require major pollution contributors, including large fossil-fuel producers and refiners, to pay for hundreds of billions of dollars’ worth of state-level climate adaptation infrastructure. Other states—including Massachusetts, Maryland, California, and Minnesota—are pushing for similar legislation, however Vermont and New York are the only states that have passed bills thus far. These bills are modeled after CERCLA, seeking to impose liability on major polluters.  

In May 2024, Vermont enacted the first law of its kind requiring fossil-fuel companies to pay for a portion of the costs of climate-change-fueled weather disasters that have plagued the State. Lawmakers “hope the landmark policy will force the biggest fossil-fuel companies in the world to compensate Vermont for damage wrought by climate change,” enforcing the longstanding “principle that the polluter pays.” Widespread support bolstered the bill after Vermont suffered catastrophic flooding in 2023. The 2023 floods resulted in $500 million in damage claims made to the Federal Emergency Management Agency (FEMA)—more than double the amount of financial damages caused by Tropical Storme Irene in 2011. The enactment of S.259, the Climate Superfund Act, marks “a new era in the effort to hold the world’s largest polluters responsible for the mess they have made.”  

Modeled after CERCLA, the law empowers Vermont’s Attorney General to mandate payments from large sources of climate change pollution, including companies like ExxonMobil and Shell, for their share of climate change costs within the State. Using emissions data from 1995 to 2024, the payment amounts will be apportioned based on the impact each company’s products had on climate change. The specific companies and the precise amounts allocated to each company will be determined based on calculations of the degree that they directly contributed to weather disasters in Vermont, and how much money those events cost the State. The payments collected under the Vermont Climate Superfund Act will then provide funding for climate change adaptation projects in the State, “including nature-based solutions and flood protections, upgrading stormwater drainage systems, making proactive upgrades to roads, bridges, railroads, and transit systems, and more.”  

New York is also paving the way for these landmark bills. In June 2024, New York legislators passed another historic bill that would force fossil-fuel companies to pay for costs associated with climate change.  

The Climate Change Superfund Act (S.02129) would require the largest fossil-fuel companies to pay a total of $75 billion over a 25-year period in $3 billion increments. One of the bill’s key sponsors, New York Senator Liz Krueger, noted that this $3 billion figure will not even suffice the annual costs of adaptation and mitigation that New York currently pays. The Climate Change Superfund Act currently awaits signature by New York Governor Kathy Hochul, one of 144 bills currently in the Governor’s office.  

Possible Future Legal Questions and Issues 

These landmark legislative actions almost certainly will induce legal challenges and disputes from these large fossil-fuel companies. Currently, more than 30 state and local governments have sued the oil industry, with some of the lawsuits drawing on climate change attribution science to hold fossil-fuel companies liable for climate change and its disastrous effects. 

For example, in State of Rhode Island v. Chevron, Rhode Island sued fossil-fuel companies for causing climate change impacts that adversely affected the State. The State relied on several tort law theories: public nuisance, strict liability for failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, and impairment of the Public Trust Resources State Environmental Rights Act. The State asked for compensatory damages, equitable relief, abatement of nuisances, punitive damages, disgorgement of profits, and associated costs of attorneys’ fees.  

The fossil-fuel companies moved to dismiss the action for lack of personal jurisdiction due to insufficient contacts within the State of Rhode Island. But on April 28, 2023, the Rhode Island Superior Court granted the State’s motion to conduct jurisdictional discovery related to three narrow issues: the defendants’ fossil-fuel related business activity within the State during the times stipulated in the complaint; defendants’ marketing and promotion of fossil-fuel products to Rhode Island consumers; and defendants’ historical knowledge of climate change impacts in the State during that time period. This is a significant advancement of this case, signaling the court’s interest in how defendants have potentially impacted Rhode Island.  

Many of these large fossil-fuel companies are fighting the existing lawsuits, and now the new Climate Superfund laws, while publicly trying to cast doubt on attribution science. Attribution science plays a significant part of the allocation of damages for existing Climate Superfund bills, particularly since the laws do not depend on any proof of wrongdoing—companies are liable because pollution is part of their operation. The American Petroleum Institute (API) has already signaled its challenge to attribution science within the Vermont Climate Superfund Act: “With respect to impact attribution from source emissions, it seems obvious that those who drafted this legislation are aware of the difficulties of establishing a conclusive link between anthropogenic climate change and alleged injuries to Vermont.” Yet, despite public condemnation, analysts predict that the primary legal challenge to Climate Superfund legislation will not be based on attribution science, as courts generally give legislatures discretion to use the best available science in crafting laws.  

Instead, oil companies are probably weighing their options, though API has already signaled some potential legal challenges. We may see preemptive challenges to Climate Superfund laws on constitutional grounds, such as a due process violation. In essence, companies would argue that the laws are punishing them for engaging in a lawful economic activity. CERCLA faced similar arguments which were resolved against the companies in the U.S. Supreme Court based on existing precedent. It is not clear whether that CERCLA precedent would apply to the state laws, though. There is also a possible question of whether the federal CERCLA legislation preempts the state versions.  

Alternatively, companies may wait to see if the states send a bill and then not pay it. Then, it is up to the state to pursue legal action under their pertinent Climate Superfund law to seek recovery. Regardless of the means, legal analysts do not expect fossil fuel companies to pay states without a fight.  

Looking Ahead 

Because many fossil-fuel companies will likely challenge state Climate Superfund laws, there is a potentially rocky road ahead for the states leading the charge. However, the legal landscape for this area of the law promises to change and adapt over time as more states consider and pass Climate Superfund legislation. Several states have already seen some success in pursuing legal recourse against fossil-fuel companies, and Climate Superfund laws have the potential to be another extremely powerful tool in the toolbelt. So, will other states finally exclaim Superfund me and demand justice?  

Author Bios 

Erin Evans is a third-year J.D. student at Vermont Law & Graduate School from Dallas, Texas. Erin received her undergraduate degree from Texas Tech University, majoring in Honors Arts & Letters with a Pre-Law focus, and graduating with Highest Honors. While at Vermont Law & Graduate School, she has been involved as a Staff Editor for the Vermont Journal of Environmental Law (VJEL), a Production Editor for VJEL, and a Moot Court Advisory Board (MCAB) member.  

Professor Dayna Smith an Associate Professor of Law and Associate Director of the Academic Success Program at Vermont Law & Graduate School. She is the faculty advisor for the Vermont Journal of Environmental Law. Before working at Vermont Law & Graduate School, Professor Smith was an associate at a firm focused on toxic tort litigation, and worked at the University of Illinois College of Law International and Graduate Programs Office. While in law school, Professor Smith was the Editor-in-Chief of the Vermont Journal of Environmental Law. 

The Urgent Need for Stricter PFAS Regulations to Safeguard Water Quality and Public Health 

 Written by Ashton Danneels and Christophe Courchesne 

 Per- and polyfluoroalkyl substances (PFAS), often referred to as “forever chemicals,” are increasingly making headlines due to their persistence in the environment and their harmful health effects. To address this problem, the Environmental Protection Agency (EPA) has finalized a suite of important regulations. In April of 2024, the EPA introduced new Maximum Contaminant Levels (MCLs) for PFAS in drinking water, signaling a critical regulatory shift. And in May of 2024, two types of PFAS are now classified as Hazardous Substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Together, these measures are a good start to address the pervasive PFAS contamination holistically, from drinking water safety to remediation of polluted sites around the country. Yet stricter PFAS regulations are still needed, both at the federal and state level, to protect public health and address widespread contamination. 

 Why Are Federal Regulations Necessary to Regulate PFAS?

PFAS are a group of synthetic chemicals widely used since the 1950s in industrial processes and consumer products. They are used to make non-stick cookware, water resistant fabrics, firefighting foam, and various types of food packaging. PFAS are characterized by their strong carbon-fluorine bonds which make them extremely durable. The chemicals are resistant to heat, water, and oil. These properties contribute to the reason they are so persistent in the environment and in the bodies of living organisms. These properties earned them the nickname of “forever chemicals,” since they are largely indestructible. Over time, PFAS bioaccumulate in living organisms, so they are particularly dangerous when they contaminate drinking water. Once believed to be harmless, PFAS are in fact unsafe and are increasingly linked to various health issues, including cancer, thyroid disease, and immune system disorders, making it imperative for regulators to take aggressive action. 

EPA’s new regulations, discussed below, are a step in the right direction, but many environmental advocates and public health officials argue that stricter, more comprehensive regulations are still necessary.  

 Brief Overview of Important Federal Regulations Under the Biden-Harris Administration  

Under the Biden-Harris administration, numerous actions have been taken to regulate PFAS. Importantly, EPA has issued a final rule under the Safe Drinking Water Act (SDWA) to address six PFAS chemicals present in drinking water. This rule sets enforceable drinking water standards and provides a mechanism for updates as new information becomes available. Maximum Contaminant Levels are the highest permissible concentration of a contaminant in drinking water; the standards are determined by balancing the health protection with the cost of the water treatment. 

Another significant measure was EPA’s designation of two PFAS substances—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under CERCLA, commonly known as Superfund. This designation provides a tool to hold polluters accountable and enables cost recovery and enforcement actions to address PFOA and PFOS releases. 

The administration also took steps under the Toxic Substances Control Act (TSCA) by issuing a Significant New Use Rule (SNUR) to prevent the resumed manufacture or processing of hundreds of inactive PFAS without a rigorous, upfront EPA safety review. Additionally, EPA issued SNURs to ensure that existing protections imposed on PFAS manufacturers under TSCA’s New Chemicals Program are broadly applicable to all future manufacturers and processors of these chemicals. 

Lastly, the administration has prioritized funding the nation’s water infrastructure through the Bipartisan Infrastructure Law (BIL). Of the funds allocated by the BIL, $9 billion are dedicated to assisting communities and water systems impacted by PFAS and other emerging contaminants. Additional federal funds are also available to support progress in addressing PFAS. 

 Looking Forward: The Case for Regulating PFAS Under the Clean Water Act  

PFAS contamination extends beyond just drinking water. These chemicals are routinely found in surface waters, groundwater, and soil. Federal laws like the Clean Water Act (CWA) should include PFAS-specific regulations. The CWA’s primary goal is to maintain and restore the chemical, physical, and biological integrity of the nation’s waters. This regulatory strategy is consistent with the efforts of the PFAS Strategic Roadmap. Specifically, EPA provided guidance on how to use the National Pollutant Discharge Elimination System (NPDES) program as a tool to regulate point sources that discharge PFAS into waters of the United States.  

Explicitly including PFAS in the CWA would allow EPA to regulate discharges of these toxic chemicals from industrial facilities and other point sources that release PFAS into water bodies. This would be an essential step in addressing the widespread contamination of rivers, lakes, and streams across the country. By incorporating PFAS into the list of pollutants regulated under the CWA’s NPDES permit program, industries are required to limit their PFAS emissions into navigable waters. This limitation would reduce the environmental spread of these chemicals and would be help protect ecosystems, wildlife, and human health, particularly in communities dependent on these water sources. 

 Looking Forward: The Case for Regulating PFAS As a Chemical Class, not a Chemical-by-Chemical Basis 

 Similarly, the SDWA plays an important role in ensuring that public water systems meet health-based standards for contaminants. EPA’s recent MCL for PFAS in drinking water set levels for six PFAS chemicals. While a step in the right direction, there are nearly 15,000 types of these synthetic chemicals present in drinking water. Broader inclusion of PFAS past the six chemicals included in this MCL could ensure that public water systems nationwide are uniformly required to monitor, filter, and reduce PFAS contamination. If PFAS were regulated as a class, the SDWA rule would be more comprehensive, close existing gaps, and prevent piecemeal regulation. 

Regulating PFAS under both the CWA and SDWA would create a more complete framework for addressing PFAS contamination at multiple points in the water cycle—before it enters drinking water supplies and after it reaches water systems. This dual approach ensures that PFAS are not only removed from drinking water but also prevented from contaminating surface and groundwater sources in the first place. 

 Regulation as an Environmental Justice Imperative 

 Communities already grappling with environmental inequities, such as Flint, Michigan, and Wilmington, North Carolina, are more likely to be continuously exposed to contaminated water. Stronger enforcement of PFAS regulations by both the EPA and state agencies is crucial to protect at-risk residents of these communities. Without regulation, PFAS contamination will continue to disproportionately harm communities lacking the resources to implement expensive filtration systems or other remediation measures. It is essential for the federal government to not only set strict limits, but also to provide funding and technical support to help states comply. 

PFAS contamination disproportionately affects low-income and rural communities that often rely on local groundwater and those municipal water systems with limited resources. In these areas, the risk of exposure to dangerous levels of PFAS is higher, and without federal oversight, the burden of contamination could persist for years. For instance, rural water systems may lack the resources for the advanced filtration technology required to remove PFAS efficiently. Adding to the financial pressures, rural systems typically do not have enough customers where they can feasibly spread the rate increases to make up for the testing and treatment upgrades that are needed. A study found PFAS in the bodies of 97% of Americans tested; there is a growing demand for clearer guidance on remediation techniques and more robust funding sources to help under-resourced communities upgrade their water infrastructure.  

What’s Next for PFAS Regulation? 

 The new MCLs are just the beginning of what will likely be a long regulatory journey. Environmental groups are pushing for PFAS to be regulated as a class of chemicals rather than on a substance-by-substance basis, which could significantly broaden the scope of regulatory oversight. If this happens, it could lead to even stricter limits and increased pressure on industries to find safer alternatives to PFAS-based products. 

There are concerns that the Biden-Harris efforts to regulate PFAS could be repealed under the second Trump administration. The Trump campaign deregulatory posture suggests a hostility to incurring the costs of protecting public health from PFAS, especially when the cost of removing PFAS from tap water could reach $3.2 billion annually. Project 2025, the Heritage Foundation’s policy blueprint for the next Republican administration, pledges to dismantle regulations, make EPA more receptive to industry-backed science, and defund significant research into toxic chemical exposure. And the courts may play a deregulatory role going forward as well; chemical companies have already filed lawsuits challenging the new MCL regulation. 

Instead of abandoning protective regulations, EPA and state agencies must work together to enforce the new MCLs and other PFAS rules while exploring further regulatory options. The urgency of the PFAS crisis cannot be overstated, and failing to act could leave millions of Americans exposed to dangerous levels of contamination for years to come. To truly protect public health and ensure environmental justice, EPA must continue to set strict, enforceable standards that reflect the latest scientific understanding of PFAS’s dangers.  

Author Bios 

Ashton Danneels is a third-year student at Vermont Law and Graduate School studying for a J.D. and Master of Environmental Law and Policy from Albuquerque, New Mexico. She is a senior staff member of the Vermont Journal of Environmental Law. She hopes to work in toxics policy and regulation following law school with a focus on PFAS and water quality. 

Christophe Courchesne is the Director of the Environmental Advocacy Clinic, Interim Director of the Environmental Law Center, and an Associate Professor of Law. Before joining Vermont Law and Graduate School in 2022, he was senior leader at the Massachusetts Attorney General’s Office, leading work on the climate crisis, federal policy, environmental and racial justice, and clean energy. Professor Courchesne previously worked as an advocate at the Conservation Law Foundation and as a senior environmental associate at a large Boston law firm. He has been admitted to practice in Massachusetts, New Hampshire, Vermont and various federal courts. 

 

Stuck in the Weeds: How the Next Farm Bill Impacts the Environment  

Written by Andrew Hockenberry & Emma Scott 

Plant sequoias. 

Say that your main crop is the forest 

that you did not plant, 

that you will not live to harvest. 

Say that the leaves are harvested 

when they have rotted into the mold. 

Call that profit.  

 – Wendell Berry  

This excerpt comes from Wendell Berry’s 1973 poem titled, Manifesto: The Mad Farmer Liberation Front. Over 50 years later, the idea of farmers planting trees is not so “mad.” Instead, one might refer to agroforestry as “climate-smart” agriculture. The United States Department of Agriculture (USDA) considers agroforestry a climate-smart agricultural practice. Through the Inflation Reduction Act (IRA), the USDA pays farmers to implement practices like planting trees to sequester carbon. Congress limited these funds to support only climate-smart practices. With the sun-close-to-setting on the IRA and no word from Congress on a new Farm Bill, it is unclear whether Congress will continue funding climate-smart agriculture with IRA funds. Instead, Congress could remove the “climate-smart” requirement and expand the funding for current Farm Bill conservation practices that do not necessarily have a clear impact on emissions or sequestration. Even when many of those practices, in the face of climate change, might seem . . . “mad.”  

This Article provides an overview of where the 2024 Farm Bill got “stuck in the weeds” regarding conservation spending. First, the Article will introduce the Conservation title of the Farm Bill. Next, it will discuss the IRA and the $19.5 billion in the IRA marked for conservation in agriculture. Then, it will cover the back and forth of the current Farm Bill negotiations and the proposals from different parties. Finally, the Article will end by giving an update on the impacts of the 2024 elections and the forecast for a new Farm Bill.  

Conservation in the Farm Bill  

In 1935, Congress passed the Soil Conservation and Domestic Allotment Act, declaring soil erosion a “menace to the national welfare.” Three years later, Congress wove soil conservation into the Agriculture Adjustment Act of 1938—one of the earliest versions of the Farm Bill. The emphasis on soil conservation in the Farm Bill ebbed and flowed throughout its early renditions. However, Congress established a Conservation title in the 1985 Farm Bill, which implemented “conservation compliance” requirements conditioning farmer eligibility for specific programs on adherence to minimum conservation measures. 

A decade later, in 1996, Congress authorized the first version of the Environmental Quality Incentives Program (EQIP)—USDA’s flagship conservation program for “working lands.” Through EQIP, the Natural Resource Conservation Service (NRCS) provides financial assistance to producers via reimbursements—or cost sharing—for practice adoption and implementation. In order to receive benefits, producers must implement the conservation practice(s) according to an EQIP plan developed with NRCS that identifies the appropriate conservation practice to address a specific land resource concern. Congress has modified and reauthorized EQIP in every subsequent Farm Bill. Most recently, the 2018 Farm Bill expanded EQIP, steadily increasing its annual budget from $1.75 billion in FY2019 to over $2 billion in FY2023. 

However, environmentalists often criticize EQIP for awarding funding to practices that do not reduce greenhouse gas emissions, sequester carbon, or build climate resilience. These critiques are not without merit. In 2020, over 11% of the funding went to Concentrated Animal Feeding Operations (CAFOs). CAFOs directly contribute to the climate crisis through methane and nitrous oxide emissions. They also pollute the air and water, particularly through animal manure and manure management, making it difficult to see why they would receive any conservation funding through the Farm Bill.  

On the other hand, given CAFOs’ prevalence in our food system, funding to strengthen waste storage facilities may be wise. One of the significant environmental risks associated with CAFOs is waste runoff. Typically, CAFOs store waste in open lagoons. These lagoons seep waste into the groundwater and are vulnerable to overflow with heavy rain and flooding events, which happen more frequently with climate change. Although giving EQIP funds to CAFOs does not contribute to climate change mitigation, one could argue that it is a necessary climate adaptation strategy.   

Agriculture and The Inflation Reduction Act 

In 2022, President Biden signed the IRA into law after it passed through Congress, mainly along party lines. The IRA added $19.5 billion over five years to support conservation in agriculture. Congress designated about half of that money to the EQIP program. However, Congress also narrowed the requirements for these specific EQIP funds, stating that IRA money is available only if the Secretary of Agriculture “determines [the practice] directly improve soil carbon, reduce nitrogen losses, or reduce, capture, avoid, or sequester carbon dioxide, methane, or nitrous oxide emissions, associated with agricultural production.” 

The NRCS interprets this legislative directive to mean “climate-smart” agricultural practices. It defines “climate-smart” practices as those reducing greenhouse gas emissions, sequestering carbon, and building climate resilience. These practices are not new, but rather build on practices already employed by farmers. Through climate-smart funding in the IRA, the NRCS now pays farmers for practices like no/low-till, nutrient management, and cover-cropping.  

While the NRCS approach is statutorily mandated in the IRA to be narrower than the existing EQIP programs, it casts a wide net. In 2024, the NRCS expanded its list to 57 practices it considers “climate-smart agriculture and forestry” (CSAF). Despite the legislative directive, some practices on the list do not directly sequester carbon. The NRCS explains its list expansion as necessary to “facilitate the management or function of a CSAF activity.” Some see this as a good strategy because it encourages a broader range of farmers to take smaller steps, which ultimately leads to significant changes. Others, however, believe NRCS’s expansive strategy does not create change fast enough.  

Amidst this debate, scientific uncertainty remains about which practices are the climate-smartest—i.e., which practices sequester more carbon and which reduce more greenhouse gas emissions. For example, planting trees pulls carbon from the atmosphere and, thus, may have a more significant (or measurable) climate mitigation impact than no-till or planting cover crops, which simply keeps carbon stored in the soil. Evaluating these practices is quite challenging. For example, one study identified and collected 378 different indicators of climate-smart practices. Moreover, farmers in some areas might be unable to employ the practices that have the most significant impact. In the face of such adversity, the NRCS has continued to cast a wide net. 

The Sticking Points 

The IRA’s funding expires in 2026, and the 2018 Farm Bill’s funding expired in 2023, though Congress authorized continuing support for another year through a continuing resolution. The sticking point in the Conservation title, and a principal hold-up of the bill, boils down to whether Congress should continue to fund the IRA EQIP program with “climate-smart” guard rails. Alternatively, Congress could roll the IRA dollars into the Farm Bill Conservation title, which offers funding for a broader range of agricultural practices that may not be so climate-smart.  

The debate over what to do with these funds tracks along party lines. Representative Glenn Thompson (R-PA), Chair of the House Agriculture Committee, supported removing the climate-smart requirement in the House Agriculture Committee draft Farm Bill. Thompson, along with other House and Senate Republicans, argues that the climate-smart requirements add needless hoops for farmers to jump through. On the other side of the debate, the Senate Agriculture Committee Chair, Debbie Stabenow (D-MI), considers the climate-smart requirements essential for resolving Farm Bill negotiations.  

2024 Election Impacts on the New Farm Bill 

In the wake of the November elections, Republicans walked away with a trifecta of victories. Next year, Republicans will control the House (5 seats), the Senate (6 seats), and the White House. Many on the right want to roll back IRA money through a budget reconciliation bill. But with the IRA benefiting many states with Republican leadership, we could see some of that money woven into existing Farm Bill programs—with climate-smart guard rails off, of course. On the other side of the aisle, Democrats have introduced Farm Bill text, including the climate-smart guard rails for the EQIP program. While bipartisan support is needed to pass the Farm Bill, Republicans know that if they hold out through this lame-duck session, they can lead negotiations next year and even achieve some of their goals through budget reconciliation. Unlike the Farm Bill, budget reconciliation can pass the House and Senate with a simple majority vote. Thus, budget reconciliation will be just as important to USDA conservation spending as the Farm Bill, which will likely see another extension before the end of 2024.  

Author Bios 

Andrew Hockenberry is a 3L at Vermont Law and Graduate School. He is a senior staff editor on Vermont Law Review. At VLGS, he is working towards earning a J.D. and a Masters in Food and Agricultural Law and Policy. He attended undergraduate at the University of Louisville, earning a B.S. in Applied Geography. After undergrad, he spent three years working with produce production in Louisville, KY and then moved to Chicago to teach urban agriculture. He continued to work in gardening and produce production. Currently, he is a member of the National Food Law Student Network Executive Board and a member of VLGS’s Food and Agriculture Law Society. After law school, he hopes to continue to help strengthen the connections and coalitions bringing meaningful change to our food system. 

Emma Scott is an Associate Professor and the Director of the Food and Agriculture Clinic at VLGS. Her work focuses on food system workers and food system policy at the federal, state, and local level. Previously she served as the Associate Director of the HLS Food Law and Policy Clinic (FLPC) and a Lecturer on Law at Harvard Law School. At FLPC, Emma primarily led FLPC’s advocacy on farm bill policy, food system workers, and improvement of USDA programs and services. She was the Supervising Attorney for the Mississippi Delta Project and led FLPC’s partnerships in the Mississippi Delta region. Prior to joining FLPC, Emma served as an Attorney-Fellow at California Rural Legal Assistance Foundation in the Labor and Civil Rights Litigation Unit (supported by Justice Catalyst). At CRLAF, Emma’s practice focused on group representation of workers from immigrant communities in employment litigation, with an emphasis on farmworkers and the H-2A visa program. Before that, Emma clerked on the U.S. District Court for the Eastern District of California for the Hon. John A. Mendez for two years, assuming the position and responsibilities of Senior Law Clerk in her second year. She received her B.S. in Social Sciences, magna cum laude, with a concentration in Cross-Cultural Studies and International Development, from California Polytechnic State University, San Luis Obispo, and her J.D., cum laude, from Harvard Law School. 

 

Biogas’ Toxic Relationship with CAFOs: How Reliance on this Fuel Source Engenders Harmful Animal Farming Practices 

Written by Alex Hume and Delcianna Winders 

Spanning roughly 2.5-million years, the Pleistocene epoch demarcated a significant point of Earth’s geologic history in which vast frozen tundras blanketed the globe. This epoch also saw major changes in the evolution of our early hominid ancestors, eventually becoming the more recognizable form of homo sapiens. Our ancestors survived the (possibly) “nasty, brutish, and short” lives they had during the Ice Age and emerged into the world of the Holocene. This period saw the advent of developments key to human culture, society, and history. Among the many human innovations, agriculture and the domestication of “farm animals” (dogs were domesticated a few thousand years earlier) are near the top when it comes to impact on humanity as a whole. 

Fast forward about 10,000 years, and modern agriculture is almost unrecognizable from whence it came. Animal farming can be a lucrative endeavor due to ever-increasing need for food. To maximize profit from this, some entities try to utilize all the farm space they have. Animal farms of this nature are known as concentrated animal feeding operations (CAFOs), or factory farms, and are places where animals are confined in tight spaces to maximize food production at the cost of animal well-being. Officially, the Environmental Protection Agency (EPA) defines a CAFO as an animal feeding operation where a specific number of animals are kept indoors for at least 45 days a year and crops are not sustained during growing seasons. CAFOs are regulatorily categorized as large, medium, or small. For example, if the animal feeding operation has 1,000 or more cows, then it would be a large CAFO. Due to the large number of animals in relatively small areas, CAFOs present a multitude of problems. Both animal and environment advocates have filed many lawsuits in this area, some of which have sought stricter regulation of CAFOs.  

In 2017, several groups filed suit against the EPA for promulgating a rule to exempt CAFOs’ emissions from reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). CERCLA defines certain pollutants as particularly harmful, including ammonia and hydrogen sulfide. As animal waste breaks down, it releases these (and many other) gases, which can be harmful in concentrated amounts. The court ultimately sided with the environmental groups and held that this rule was unreasonable and vacated it. But this win was unfortunately short-lived, as the 2018 Farm Bill overturned the court’s ruling. While CAFO problems each warrant their own in-depth analysis, this article focuses on the emergent issue of biogas, also known as factory-farm gas, and how CAFOs engender this problem to the detriment of the environment. 

CAFOs present many issues that can actually be perceived: the overcrowded and poor living conditions of the animals, routine mutilations without anesthesia, and general harm to the surrounding land and communities, which are disproportionately comprised of people of color. There are also legal issues associated with CAFOs, such as the EPA failing to require Clean Water Act (CWA) and Clean Air Act (CAA) permits. Biogas is also incredibly harmful but is often overlooked due to its non-obvious nature. Biogas is produced as a byproduct of animal waste and is created when anaerobic bacteria consume biomass. Biomass is an organic compound that is derived from plants and animals and was used extensively in the past as a reliable fuel source and is still relied on in some parts of the world. Biogas is mostly comprised of methane and carbon dioxide, which are harmful gases that contribute to climate change. Despite this, fuel generated with biogas is considered a renewable form of energy due to the fact that it attempts to harness these gases. It can either be used directly after being digested by the bacteria, or can be treated via different methods and turned into biomethane. Because of this additional step, only a small percent of biogas is converted into biomethane, despite the fact that biomethane has more applications. Europe currently produces the most biogas, and the European Union (EU) plans to further increase its biogas use in the hopes of reducing fossil fuel reliance. While the EU touts the necessity of increasing biogas, doing so could lead to adverse effects on the environment, especially if they obtain their biogas through CAFOs. It would also lead to more harm being done to animals who produce the biogas on CAFOs. This interest in biogas is not unique to Europe, however, as evidenced by California’s Low Carbon Fuel Standard law (LCFS). 

California enacted its LCFS to combat greenhouse gases (GHGs) being released into the atmosphere. GHGs and climate change are arguably the most pressing issues that plague humanity. However, the issue with California’s law is that it further entrenches environmentally-harmful CAFOs by enticing residents to turn to alternative fuel sources, such as biogas and biomethane. Additionally, it theoretically makes the CAFO industry more profitable for entities who have the ability to benefit from it, such as CAFOs, energy companies, and investors. Due to this increased reliance on biogas, these aforementioned entities could start to propagate more CAFOs to increase their biogas output. More CAFOs means more inhumane treatment of animals, and more pollutants being produced. 

CAFOs can produce a harmful amount of toxins that find their way into the air, ground, and water. CAFO waste releases 168 gases into the atmosphere, which negatively impacts the overall environment and especially environmental justice communities living near CAFOs. Currently, the CAA’s fugitive emissions rule exempts CAFOs’ emissions from being adequately stymied, and right to farm laws protect many CAFOs from being sued for nuisance. This makes it difficult, if not impossible, to seek remedy in the courts. When animal waste is not cared for, it can easily leech into the ground, resulting in contaminants being released into groundwater, in violation of the CWA. Additionally, some CAFOs discharge directly into rivers, creeks, and other bodies of water that are considered “waters of the United States.” This too violates the CWA. CAFOs produce 335 million tons of animal waste every year in the United States, and increased reliance on biogas could result in even more waste being produced and subsequently discharged into water bodies.  

While these environmental concerns affect everyone, it should be noted that some communities face a disparate impact from CAFOs. Environmental justice is an incredibly important aspect of environmental law that unfortunately does not always get enough attention. It is a body of law that is concerned with ensuring all people, regardless of race, socioeconomic status, and nationality are protected from a harmful environment. Despite legislative attempts to guarantee a healthy living environment for all, there are still plenty of examples in the United States where people of color are overlooked, and CAFOs exemplify this. In North Carolina, for example, thousands of CAFOs were built in areas that are predominately black. To reiterate, CAFOs present many environmental concerns, especially for those who live in close proximity to them. Air, soil, and water quality are generally negatively impacted by nearby CAFOs. Residents are then subjected to these adverse environmental conditions, and oftentimes may not have the means of being able to escape them. 

Biogas presents a novel way of dealing with an issue that has plagued humanity for a long time. Burning biogas attempts to utilize these harmful gases that have historically just been released into the atmosphere where they have deleterious effects on the environment. While it may seem like harnessing biogas in this manner results in the majority of it being burned as fuel, some studies have found that the majority of biogas still escapes into the atmosphere. Even if this system were more efficient, this is still just treating one of the symptoms of the overall problem as opposed to treating the problem itself. CAFOs produce an abundance of biogas and are a serious problem today. They mistreat and abuse animals in a plethora of ways, which is often overlooked, especially if it is framed in a way that highlights the use of biogas as a renewable resource while ignoring the harms done to animals. If laws and policies continue to pass that further shield CAFOs from repercussions and make them more profitable, it will likely result in CAFOs becoming more prevalent. This will increase the overall use of biogas, but will directly result in more animal suffering. In an ideal world, CAFOs would not be allowed to continue to operate in the manner they do. While this is unlikely to happen anytime soon, measures should be taken to ensure they do not proliferate and harm the environment even more than they already do, and the government certainly should not be incentivizing it. Burning biogas as fuel should at best be seen as a last resort reserved for combating the harms resulting from CAFOs, not an incentive that promotes the creation of new CAFOs. 

Author Bios 

Alex Hume is currently a 3L at Vermont Law and Graduate School. He is the Senior Articles Editor on the Vermont Journal of Environmental Law. He intends to use what he has learned at law school to advocate for positive change in environmental law, specifically focusing on water quality and endangered species. He has interned with the United States Fish and Wildlife Service and the Philadelphia Law Department. Outside of law school, Alex enjoys reading fantasy books, hiking with friends in the beautiful Vermont outdoors, and cooking various cuisines. 

 Delcianna J. Winders is an associate professor of law and Director of the Animal Law and Policy Institute at VLGS. Professor Winders founded and directed the world’s first farmed animal advocacy clinic while teaching at Lewis and Clark Law School. She also served as Vice President and Deputy General Counsel at the PETA Foundation, was the first Academic Fellow of the Harvard Animal Law & Policy Program, and was a visiting scholar at the Elisabeth Haub School of Law at Pace University. Her work has appeared in many law reviews across the country, as well as in the popular press. She received her JD from NYU School of Law, where she was awarded the Vanderbilt Medal for outstanding contributions to the law school, named as a Robert McKay Scholar, and served as the Senior Notes Editor of the NYU Law Review. 

Home Sales and Water Levels are On The Rise in Flood Zones 

Written by Abigail Bailey and Dr. Guanchi Zhang 

Sea levels are rising in the United States, and so are home sales in flood zones. Although some buyers enter flood zone transactions happily with their eyes open wide, many are manipulated into a financial burden under the guise of an investment. Instead of protecting vulnerable buyers, the government is often the seller and beneficiary. Both the emotional and financial loss of homes destroyed by sea level rise increasingly falls on those least able to tolerate it. 

There are primarily two types of people buying houses in flood zones. The first category is wealthy, older individuals who imagine that they will not live long enough to see flood damage become a problem. These people generally want to live out their golden years in the coastal home of their dreams. In historically desirable areas like the Isle of Palms and the Florida Keys, home values stay high as this category of older people continue to buy homes that come on the market. As the occupants pass away and the land floods, the market may crash for this type of home. In the meantime, wealthy older people keep buying coastal houses at high rates, and the property values stay high.  

The second category is more troubling. Low-income buyers are increasingly purchasing homes in flood zones. Income and education disparities, cultural and language barriers, and climate change collide in an unfortunate way in the flood zones that lack palm trees and azure seas. Government programs intended to protect disadvantaged people in these areas instead pull them into the trap. There are many ways this issue is compounded. 

Income and education disparities drive people to buy homes in flood zones. Unless the flood zone area has been historically desirable, repeated flooding will decrease the property value. At the same time, people in flood zones must buy flood insurance, which can range from $350 to $10,000 per year. Homeowners in a flood zones are often required to purchase this insurance from the government and get a U.S. Department of Housing and Urban Development (HUD)-backed mortgage. When a homeowner cannot afford the flood insurance along with a mortgage and any flood damage repairs, the houses are foreclosed and sold at foreclosure sales below market value. Foreclosure sale prices are attractive to low-income families striving for homeownership. The process of selling houses below market value without disclosing the full cost of ownership, then foreclosing the homes and repeating the process, places homes in flood zones in a feedback loop until their eventual destruction. The repetition comes at the expense of low-income families striving to improve their circumstances. 

Instead of preventing unfair home sales to low-income families, the federal government often acts as the seller in these transactions. HUD disproportionately sells homes in flood zones. Between 2017 and 2020, HUD sold houses in official flood zones at 75 times the rate of houses outside flood zones. HUD even sells homes in neighborhoods the city has marked for buyouts and evacuation. HUD justifies this by claiming their duty is to sell houses in their inventory and preserve neighborhood character, a nonsensical idea in a neighborhood marked for destruction.  

HUD and other sellers rarely disclose the full extent of costs associated with owning a house in a flood zone. Many buyers do not realize they need to purchase flood insurance until they have committed too deeply to the transaction to back out. Some states require mandatory disclosures for certain risk factors in real-estate transactions. Generally, sellers are advised to disclose anything that might be a risk factor, even when uncertain if disclosure is required. Despite this, many states do not require adequate (or any) disclosures regarding flood zones and flood risks. Mandatory disclosures remain inadequate for both private sellers and HUD. 

That said, the burden on sellers to obtain and disclose relevant information about their homes is high. Sellers may not be able to bear the full cost of determining whether their home is, or will soon be, in a flood zone. Not all sellers in flood zones attempt to pull wool over the eyes of a disadvantaged buyer. Not all sellers in flood zones are even aware of the risks to their property. Establishing an unfettered disclosure requirement for sellers or establishing an unfettered right of action to sue for buyers would likely only lead to deadlock in the housing market. It is unfair for either the private buyer or the private seller to bear the entire cost of flooding.  

HUD, however, is not a private seller, but a government agency created to benefit the people. HUD still fails to disclose the full risk of flooding in its property sales. HUD defends its actions by claiming that any person can get adequate descriptions of flood zone risks on the Federal Emergency Management Agency (FEMA) website. Likewise, states often do not require mandatory disclosures of flood zone information in private sales because the information is publicly available. This is where a disparity in sophistication becomes relevant. A less sophisticated buyer may not realize they need to investigate the flood risks for their home. A basic home inspection is not likely to explain the full extent of flood risks. Some guides provide advice on how to research the true flood risk of your property but the process is not straightforward. Even if a buyer can get a full picture of the costs and risks associated with flooding in their home, flooding factors are likely to change and get worse over time.  

Disparity of income and education is compounded by language and cultural barriers. People who struggle to understand English may not be given a real estate contract in their native language. They also may struggle to navigate research on English language and American government websites like FEMA and are unlikely to have the resources to hire an agent to research for them. Some immigrant communities are likely to be debt-averse, wishing to buy homes in cash. These individuals are more likely to buy inexpensive homes to avoid a mortgage.  

Homeownership is a part of the ‘American Dream’ and deeply engrained in American society. Homeownership helps accumulate generational wealth. But houses in flood zones defy this assumption. Homeownership in flood zones leads to expenses that outweigh the financial benefits, because of flood insurance, water damage, and other difficulties. The home cannot be passed down through generations because it will ultimately be destroyed by flooding. Both private sellers with a high level of sophistication and the federal government realize that homes in flood zones are a liability, rather than an investment. Increasingly, these homes are sold off, so that the cost of their loss is borne by those least able to afford it.  

It is difficult to find solutions to adapt the real estate market system to flood zone areas. Increased burdens on the sellers to disclose information and increased burdens on buyers to prove their ability to afford the cost of the houses seem like attractive solutions at first glance. Although requiring clear warnings about flood risks and costs in real estate transactions would be helpful to reverse this trend, the issue must be handled carefully. Neither private buyers nor private sellers always have the means to bear the entire cost of flood damage. Fear of bearing the cost may lead to both buyers and sellers halting their sales. Additionally, as the federal government points out, increased requirements for buyers to prove their ability to afford houses in flood zones might lead to redlining and unfair exclusion along racial and socioeconomic lines. In a housing crisis, all are loath to restrict more areas of inexpensive housing. The answer is not to refuse access to these areas for low-income communities, but to ensure that the cost of the loss is not borne by poor and disadvantaged communities. If anything, communities and people in flood zones are performing a public service, by occupying houses that are, from time-to-time, damaged or unlivable. People performing a public service should not also bear the costs of property loss due to flooding.  

Author Bios 

Abigail Bailey is a 3L student at Vermont Law and Graduate School, intending to pursue a career in Environmental Law. Abigail grew up in New Hampshire and studied in New England but now lives in South Carolina. Abigail is currently an intern at the South Carolina Department of Environmental Services Bureau of Coastal Management and a senior staff member on the Vermont Journal of Environmental Law. Besides being a J.D. candidate, Abigail holds a B.S. in Biology from Plymouth State University, an A.A. from Bard College at Simon’s Rock, and a certificate of completion from the Williams-Mystic Coastal Studies program out of Mystic, Connecticut.  

Dr. Guanchi Zhang is an assistant professor of law at Vermont Law and Graduate School, specializing in property law, state and local government law, as well as planning and land use law. Guanchi’s research explores critical urban institutions and their impact on growth and inequality in contemporary cities. His work has appeared in journals including Political Geography, Law and Social Sciences, and Public Law Study, and won a paper award from the American Association of Geographers. He also contributes to the Fairbank Center for Chinese Studies blog at Harvard University. He holds an SJD from Harvard Law School, where he was awarded the F.Y. Chang Fellowship, Dean’s Scholar Prize, and Harvard Certificate of Distinction in Teaching. He received an LLM, an LLB, and a B.Econ. from Peking University in China, Beijing