2026 – Vermont Journal of Environmental Law

NEPA Without CEQ: Environmental Review Under Trump and Seven County
Written by Benjamin Behimer and Christophe Courchesne

Introduction

Long a cornerstone of federal environmental law, the National Environmental Policy Act of 1969 (NEPA) has been the target of a series of judicial and executive attacks in 2025. Below, we provide a brief description and history of NEPA, including legislative history, before examining how the 2025 rescission of CEQ’s government-wide regulations and the Supreme Court’s decision in Seven County reshape the practical future of NEPA litigation.

I. NEPA and Congressional Intent

NEPA passed with overwhelming support in both chambers of Congress in 1969 and was signed into law by President Richard Nixon on January 1, 1970.[1] Congress set out NEPA’s purpose, inter alia, in Section 101:

[I]t is the continuing policy of the Federal Government . . . to use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.[2]

Congress also recognized that there had been no uniform national policy or guidance for managing the environment and its natural resources.[3] It indicated that one purpose of NEPA was to provide this policy.[4]

Section 102 implemented “action-forcing procedures” to ensure that the policy goals in Section 101 were met.[5] Congress directed that all other federal laws should be interpreted and applied in accordance with Section 102 “to the fullest extent possible.”[6] It also required all agencies of the Federal Government to prepare a “detailed statement,” i.e., an environmental impact statement (EIS), for all “major Federal [sic] actions significantly affecting the quality of the human environment.”[7] The House’s Conference Report provided a succinct summary of the elements that were to be considered in an EIS:

[T]he environmental impact of the proposed action, any adverse environmental effects which can not [sic] be avoided should the proposal be adopted, alternatives to the proposed action, the relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved.[8]

In practice, agencies do not undertake EISs for most projects. If the agency responsible for drafting the EIS is uncertain whether the major federal action[9] will significantly affect the environment, it will prepare an environmental assessment (EA).[10] An EA has less stringent requirements than an EIS and is significantly shorter.[11] A common conclusion of an EA, a finding of no significant impact (FONSI), is the endpoint of the process.[12] Depending on whether the agency finds that its action will have significant environmental effects, it will prepare either a FONSI or an EIS.[13] If the agency determines that there will be no significant environmental effects, it will issue a FONSI that explains its reasoning for finding no significant impacts.[14] If it finds that the project will have significant effects, it will prepare a full EIS.[15]

II. “Purely Procedural”

In the early years following NEPA’s enactment, the U.S. Court of Appeals for the D.C. Circuit established that NEPA is primarily a procedural statute.[16] Although the court did not completely foreclose the possibility that a court could reverse an agency’s substantive decision, there has never been a successful challenge of an agency’s substantive decision under NEPA.[17] In other words, NEPA requires agencies to study the environmental consequences of their proposals through a prescribed process that includes substantial public involvement but does not dictate what agencies ultimately do. The statute reflects Congress’s insistence that agencies carefully consider the environmental values articulated in the law, without imposing those values on every decision.

In May 2025, the Supreme Court issued its most recent NEPA decision, Seven County Infrastructure Coalition v. Eagle County, confirming that NEPA is “purely procedural” and “‘does not mandate particular results, but simply describes the necessary process’ for an agency’s environmental review of a project.”[18] The Court further stated that in determining whether an “agency action was arbitrary and capricious[19] due to a deficiency in an EIS,” the reviewing court may only review whether “the agency has addressed environmental consequences and feasible alternatives as to the relevant project”—not whether the agency’s decision to move forward with the project was the “correct” one.[20] Seven County’s other key holdings are discussed below.[21]

III. The Council on Environmental Quality

NEPA Section 202 established the Council on Environmental Quality (CEQ).[22] The CEQ’s statutory purpose is to advise the president by compiling information to help determine whether NEPA’s policy goals are being met and to recommend national policies that further NEPA’s goals, as set out in Section 101.[23] Notably, NEPA was not the direct source of CEQ’s authority to create and enact NEPA regulations. Instead, CEQ’s authority to create NEPA regulations has historically been grounded in an executive order issued by President Jimmy Carter in 1977.[24] Pursuant to Carter’s executive order, CEQ promulgated final NEPA implementing regulations on November 29, 1978, to “accomplish three principal aims: to reduce paperwork, to reduce delays, and to produce better decisions.”[25]

Aside from technical changes and an amendment to one provision in 1986, CEQ’s NEPA implementing regulations remained unchanged for 40 years.[26] President Trump broke this streak in 2017 when he issued an executive order directing CEQ to identify and propose changes to the regulations.[27] CEQ proposed regulations and, after notice and comment, these updated regulations were adopted in 2020.[28] These changes were reversed shortly thereafter under President Biden in two phases—the first in 2022,[29] and the second in 2024.[30] In the background sections of both the 2022 and 2024 CEQ final rules, CEQ emphasized the important role its regulations have played in realizing NEPA’s purposes:

[T]he NEPA regulations reflected CEQ’s interpretation of the statutory text and Congressional intent, expertise developed through issuing and revising the CEQ guidelines and advising Federal agencies on their implementation of NEPA, initial interpretations of the courts, and Federal agency experience implementing NEPA. The 1978 regulations reflected the fundamental principles of informed and science-based decision making, transparency, and public engagement Congress established in NEPA.[31]

All seemed well again until, in 2024, a panel of the D.C. Circuit held in Marin Audubon, sua sponte, that all CEQ NEPA regulations were ultra vires.[32] Without engaging with the nearly half-century of experience of the regulations or receiving briefing from the parties, the court’s reasoning was simple and superficial: under separation-of-powers principles, the executive cannot create laws through an executive order.[33] In other words, because CEQ’s rulemaking authority stemmed from an executive order rather than legislation, CEQ’s regulations are not legally enforceable. Marin Audubon was the perfect opening for President Trump to take CEQ’s regulations off the books.

IV. Executive Order 14154 and the Rescission of CEQ’s NEPA Regulations

On January 20, 2025, President Trump issued Executive Order 14154: Unleashing American Energy.[34] A lengthy read, the Order begins by setting out background and policy goals: namely, that the U.S. is rich in natural resources and that it is the policy of the U.S. to remove as many regulations as possible to extract those resources.[35] Specifically, Trump ordered an “immediate review” of all agency actions that might impose an “undue burden” on domestic energy resource development.[36] He revoked Carter’s executive order authorizing CEQ to issue NEPA regulations and directed the CEQ Chairman to propose rescinding CEQ’s NEPA regulations and to provide “guidance on implementing the National Environmental Policy Act.”[37]

CEQ issued an interim final rule on February 25, 2025, rescinding its NEPA regulations and requesting public comments.[38] It delayed the rule’s implementation until April 11, 2025.[39] Although CEQ’s authority for issuing an interim final rule under the APA’s “good cause” exemption was certainly questionable under the circumstances, it was ultimately not challenged, likely due to the D.C. Circuit’s determination that CEQ’s NEPA regulations were ultra vires.[40]

Despite CEQ’s rescission of its NEPA regulations, there is still binding and nonbinding authority that agencies and NEPA practitioners can rely on. The first place to look is NEPA itself. Caselaw and binding agency-specific NEPA regulations (i.e., agency rules that do not constitute nonbinding guidance) are also applicable. Agency regulations themselves are now also in transition, as agencies work to implement CEQ’s directive to modify their rules to expedite permitting;[41] some agencies have moved to rescind their own procedures altogether.[42] Regarding nonbinding guidance, CEQ published a memorandum on September 29, 2025, in which it recommended that agencies voluntarily rely on its rescinded NEPA regulations.[43] It also discussed and urged agencies to keep in mind the Supreme Court’s decision in Seven County, which it correctly described as a “landmark decision.”[44]

V. The Supreme Court’s Seven County Decision: Deference

In Seven County, the Court reversed the U.S. Court of Appeals for the D.C. Circuit’s holding that the U. S. Surface Transportation Board’s EIS—which considered the environmental effects of an 88-mile railroad line construction project to connect the oil-rich Uinta Basin to a national rail network—was inadequate.[45] The Court’s reasoning was twofold: first, the D.C. Circuit “did not afford the Board the substantial judicial deference” that NEPA requires;[46] second, contrary to the D.C. Circuit’s holding, NEPA did not require the Board to address the upstream or downstream environmental effects of the project.[47]

Regarding the “substantial judicial deference” that NEPA requires, the Court held that NEPA is “purely procedural,”[48] and that “[t]he bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.”[49] The Court reasoned that agencies, not courts, should “determine whether and to what extent to prepare an EIS . . . ” because agencies better understand the relevant facts of projects under their authority.[50] The Court further emphasized that courts should defer to agencies “so long as [the agency’s decision] fall[s] within a broad zone of reasonableness.”[51]

Regarding the Court’s holding that agencies need not consider the upstream or downstream environmental effects of the project, the Court stated that substantial deference should also be afforded to agencies regarding the scope of the environmental effects to be addressed.[52] In Seven County, the Board determined in its EIS that the possible upstream environmental effects of building the rail line—namely, a potential increase in oil drilling in the Uinta Basin—fell outside the scope of its EIS because the Board would not have authority over potential future oil drilling projects in the Basin, and any environmental effects from future drilling projects were speculative and attenuated from the rail line project.[53] The Board similarly reasoned that the possible downstream environmental effects of the project—namely, that oil from the Uinta Basin would be transported to refineries elsewhere in the U.S.—fell outside the scope of its EIS because the Board would not have authority to regulate the oil refining process, and it would be difficult to identify which refineries to analyze in the EIS.[54]

The Court held that the Board’s decision not to analyze the upstream or downstream effects of the rail line project should have been afforded substantial deference, and that “when the effects of an agency action arise from a separate project—for example, a possible future project or one that is geographically distinct from the project at hand—NEPA does not require the agency to evaluate the effects of that separate project.”[55] Ultimately, the Court’s holding that agencies need not analyze the environmental effects of projects separate in time or place from the current project relied on the reasoning that such projects break the proximate chain of causation between the environmental effects of such projects and the project under review.[56]

The Court emphasized that through this decision, it was making a “course correction”[57] to bring what it deemed “overly intrusive (and unpredictable)” judicial review in NEPA cases back to NEPA’s statutory language.[58] In this regard, Seven County—empowering agencies to disregard NEPA’s statutory values—is in arguable contradiction with the Court’s recent decisions scaling back agency authority.[59] In describing the required level of judicial deference to agency decision making, the Court quoted Baltimore Gas: “[b]lack-letter administrative law instructs that when an agency makes those kinds of speculative assessments or predictive or scientific judgments, and decides what qualifies as significant or feasible or the like, a reviewing court must be at its ‘most deferential.’”[60] But what was the Court referring to when it wrote “those kinds”?

By “those kinds of speculative assessments or predictive or scientific judgments,” the Court was attempting to draw a broad category of agency decisions that, if speculative, predictive, or scientific, should be deferred to. However, the Court misapplied the language from Baltimore Gas. The Court in Baltimore Gas was referring specifically to situations in which the agency is making decisions at the frontiers of science[61]: “a reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.”[62]

Despite its holding that NEPA’s bedrock principle is deference, the Seven County decision failed to correctly distinguish between agency decisions that are made at the frontiers of science—such as the Nuclear Regulatory Commission’s decision regarding long-term nuclear waste storage in Baltimore Gas[63]—from those decisions that are more common or more easily understood. Whether courts will be sympathetic to this distinction remains to be seen.

What’s Next for NEPA?

NEPA was one of the first comprehensive federal environmental statutes, in which Congress recognized that “each person has a responsibility to contribute to the preservation and enhancement of the environment.”[64] Although NEPA is “purely procedural,”[65] it was enacted with the hope that, by following NEPA’s required procedures, agencies would consider the significant environmental effects of their actions.[66] That aspiration has never been more under threat, and the statute’s roles as a sentinel and a bulwark against environmental degradation will depend on how advocates, agencies, and courts navigate the coming years of disputes in the new world of NEPA implementation under Trump and Seven County.

Author Bio:
Ben Behimer is the Senior Managing Editor of the Vermont Law Review for Volume 50 at Vermont Law and Graduate School. His interests focus on environmental and energy law, and he wrote this piece drawing on his work with Vermont Law and Graduate School’s Environmental Advocacy Clinic, where he has worked on NEPA-related litigation. He thanks Professor Christophe Courchesne for his guidance and feedback on this piece.

[1] National Environmental Policy Act, BALLOTPEDIA, https://ballotpedia.org/National_Environmental_Policy_Act (last visited Dec. 21, 2025) (see sidebar on right).

[2] 42 U.S.C. § 4331(a) (emphasis added). Section 101 also lists more specific policy goals, such as assuring a safe and healthful environment for all Americans and recognizing that “each person has a responsibility to contribute to the preservation and enhancement of the environment.” Id. § 4331(b)(2), (c).

[3] S. Rep. No. 91-296, at 8 (1969).

[4] Id.

[5] Id. at 19.

[6] 42 U.S.C. § 4332.

[7] Id. § 4332(C).

[8] H.R. Rep. No. 91-765 (1969).

[9] The phrase “major federal actions” has been construed broadly, such that it is easier to describe what does not constitute a major federal action than to describe what does: “[m]ajor federal actions do not include nonfederal actions with ‘no or minimal federal funding,’ federally funded actions where the agency lacks oversight or control over the subsequent use of the funds, or other circumstances where the federal agency ‘does not exercise sufficient control’ over the outcome of the project.” Kristen Hite & Heather McPherron, Cong. Rsch. Serv., IF12560, National Environmental Policy Act: An Overview 1 (2025).

[10] National Environmental Policy Act Review Process, EPA, https://www.epa.gov/nepa/national-environmental-policy-act-review-process (last updated Apr. 11, 2025).

[11] See Kristen Hite, supra note 9, at 2 tbl. 1 (2023) (comparing EA and EIS requirements).

[12] National Environmental Policy Act Review Process, supra note 10.

[13] Id.

[14] Id.

[15] Id.

[16] Calvert Cliffs’ Coordinating Comm., Inc. v. U. S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).

[17] Id. at 1115 (stating that courts “probably” could not reverse a substantive decision on the merits).

[18] Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 145 S. Ct. 1497, 1510 (2025) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)).

[19] NEPA challenges are typically brought under section 706 of the Administrative Procedure Act because NEPA itself does create a cause of action. Eli Dourado, Much More Than You Ever Wanted to Know About NEPA, The Ctr. for Growth & Opportunity (Oct. 20, 2022), https://www.thecgo.org/benchmark/much-more-than-you-ever-wanted-to-know-about-nepa/. APA § 706 requires that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

[20] Seven Cnty, 145 S. Ct. at 1511.

[21] See infra Part V.

[22] 42 U.S.C. § 4342.

[23] 42 U.S.C. § 4344.

[24] Exec. Order No. 11991, 42 Fed. Reg. 26967 (1977).

[25] National Environmental Policy Act—Regulations, 43 Fed. Reg. 55978, 55978 (Nov. 29, 1978).

[26] National Environmental Policy Act Implementing Regulations Revisions Phase 2, 89 Fed. Reg. 35442, 35446 (May 1, 2024).

[27] Id.

[28] Id.

[29] National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23453 (Apr. 20, 2022).

[30] National Environmental Policy Act Implementing Regulations Revisions Phase 2, 89 Fed. Reg. 35442 (May 1, 2024).

[31] Id. at 35446 (emphasis added).

[32] Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902, 908 (D.C. Cir. 2024).

[33] Id. at 908.

[34] Exec. Order No. 14154, 90 Fed. Reg. 8353 (Jan. 20, 2025).

[35] Id. at 8353–54

[36] Id. at 8354.

[37] Id. at 8355.

[38] Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10610, 10612 (Feb. 25, 2025).

[39] Id.

[40] Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902, 908 (D.C. Cir. 2024). The APA allows agencies to dispense with “notice and public procedure” if it determines them to be “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). CEQ stated in its interim final rule that “the need to meet the deadlines in E.O. 14154 and to avoid agency confusion given the recent vacatur of CEQ’s 2024 Rule” made notice and comment impracticable and unnecessary. Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10610, 10614 (Feb. 25, 2025). It is well established in administrative law that the need to meet a deadline cannot, in itself, satisfy the good cause exemption. United States v. Gould, 568 F.3d 459, 480 (4th Cir. 2009) (“strict congressionally imposed deadlines, without more, by no means warrant invocation of the good cause exception”). Additionally, CEQ’s reasoning that “agency confusion” renders notice and comment unnecessary would be unlikely to satisfy the good cause exemption. United States v. Valverde, 628 F.3d 1159, 1166 (9th Cir. 2010) (“If ‘good cause’ could be satisfied by an Agency’s assertion that ‘normal procedures were not followed because of the need to provide immediate guidance and information[,] . . . then an exception to the notice requirement would be created that would swallow the rule’”) (quoting Zhang v. Slattery, 55 F.3d 732, 746 (2d Cir. 1995)).

[41] Council on Env’t Quality, Exec. Off. of the President, Memorandum for Heads of Federal Departments and Agencies, Implementation of the National Environmental Policy Act 1 (Feb. 19, 2025).

[42] For example, the USDA and DoD rescinded most NEPA regulations of the agencies under their purview in favor of more general, department-wide regulations. Federal Agencies Roll Out New NEPA Regulations, Greenberg Traurig (July 10, 2025), https://www.gtlaw.com/en/insights/2025/7/federal-agencies-roll-out-new-nepa-regulations; National Environmental Policy Act, 90 Fed. Reg. 29632, 29632 (July 3, 2025) (publishing an interim final rule and request for comments rescinding USDA’s NEPA regulations); Department of Defense Implementation of the National Environmental Policy Act, 90 Fed. Reg. 27857, 27857 (June 30, 2025) (providing notice that the Army, Navy, and Air Force are rescinding their NEPA regulations). Other agencies have taken different approaches; for instance, the DoI rescinded most of its NEPA regulations, but stated in its interim final rule that it would maintain most of its NEPA procedures in a Handbook separate from the Federal Register. Brandon Tuck et al., The New NEPA: Federal Agencies Overhaul Procedures for Environmental Reviews, Vinson & Elkins (July 11, 2025), https://www.velaw.com/insights/the-new-nepa-federal-agencies-overhaul-procedures-for-environmental-reviews/; National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 29498, 29498 (July 3, 2025).

[43] Council on Env’t Quality, Exec. Off. of the President, Memorandum for Heads of Federal Departments and Agencies, Implementation of the National Environmental Policy Act 3 (Sept. 29, 2025).

[44] Id. at 5.

[45] Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 145 S. Ct. 1497, 1507–08 (2025).

[46] Id. at 1508.

[47] Id.

[48] Id. at 1510.

[49] Id. at 1515.

[50] Id. at 1512.

[51] Id. at 1513.

[52] Id. at 1512.

[53] Id. at 1508–09.

[54] Id. The Court stated that the identity of refineries would depend on the refineries’ ability and willingness to receive oil from the Uinta Basin. Id. at 1509.

[55] Id. at 1515.

[56] Id. at 1516–17.

[57] Id. at 1514.

[58] Id. at 1513–14.

[59] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority . . . . ”).

[60] Seven Cnty., 145 S. Ct. at 1512 (quoting Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)).

[61] Balt. Gas & Elec. Co., 462 U.S. at 103.

[62] Id. (emphasis added).

[63] Id. at 102.

[64] 42 U.S.C. § 4331(c).

[65] Seven Cnty., 145 S. Ct. at 1510.

[66] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts . . . [and] ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.”).

The Night the Lights Will Go Out in Georgia: Regulatory Action Is Needed to Protect Communities From Footing the Bill of Data Centers’ Energy Demands
Written by Cassidy McMann and Dr. Guanchi Zhang

Data centers are proliferating across the country, fueled primarily by the recent Artificial Intelligence (AI) boom. Georgia has emerged as the fastest-growing hub for data center development. Although advocates for data centers tout benefits, such as tax revenue and jobs, data centers come with serious tradeoffs, like high energy demand. Data centers strain the electric grid, necessitating utility companies to build new infrastructure necessary to meet the surging demand. However, the cost of doing so is often passed onto residential consumers. Communities in Georgia are currently facing this issue. Georgia serves as an example of the importance of being cautious and mindful of data center development to protect residents against the economic burdens imposed by data centers. Regulators in Georgia, and in other states, need to take action now because it is not a matter of if a data center comes to your community, but when.

Georgia’s Data Center Industry

Data centers enable many modern digital services, such as cloud computing, online transactions, streaming, and AI applications.[1] The largest of data centers can contain 5,000 or more computer servers to support these technological services.[2] However, these servers take up large swaths of space; the size of a data center can range anywhere from 20,000 to over a million square feet, ranging from mid-sized to hyperscale.[3] Currently, there is between 4,000 to 6,000 data centers in the U.S.[4] In Georgia, the exact number also varies, but 97 data centers have been confirmed.[5] Georgia’s data center industry is booming, with data center construction increasing in Metro Atlanta by 76% in just the past year.[6] Data center developers are attracted to Georgia because it has two of the biggest fiber network routes in the nation along with a reliable grid.[7] The state’s lucrative tax breaks also attract tech companies looking to build data centers. Georgia’s sales and use tax exemption is expected to waive about $296 million in tax revenue.[8] Meanwhile, some local governments approved “hundreds of millions in property tax savings” to entice developers earlier this year.[9] For example, Fulton County’s Development Authority approved a $75 million tax break over ten years for Microsoft’s proposed data center campus in Union City.[10] Data center opponents question the necessity of such tax breaks considering the tech companies receiving them already rake in millions, or even billions, of dollars in revenue each year.[11] Microsoft alone earned “$212 billion in sales revenue and [had] a net income of $72.4 billion” for 2023.[12]

Data Centers’ Energy Demand

Data centers’ servers need electricity to operate and cooling systems to prevent overheating.[13] AI especially demands copious amounts of electricity because “advanced machine learning models require massive computational power for training and inference.”[14] For example, a ChatGPT search uses ten times the amount of energy than a Google search request.[15] In 2023, data centers accounted for more than 4% of U.S. electricity, and estimates suggest that number could increase to 12% by 2028.[16] Georgia is no different. In late 2023, to meet the increasing energy demand stemming from data centers, Georgia Power, the state’s largest utility,[17] “filed an updated Integrated Resource Plan (IRP), which projected a 6,600 megawatt (MW) increase in annual load demand by 2030.”[18] To compare, Georgia Power’s request to the state’s Public Service Commission (PSC) to add capacity to the grid was a mere 400 MW in 2022.[19] This sharp jump in load demand demonstrates just how quickly data centers are popping up in Georgia and how they are already impacting the state’s electricity needs.

Georgia Power’s request rose even higher in 2025 when the utility giant requested the PSC “to add 10,000 megawatts to its power generation fleet in the next five years.”[20] However, the PSC shared that bills for residential customers could go up by $20 or more if Georgia Power’s request is approved.[21] Evidence shows that Georgia Power’s “aggressive forecasts have [previously] overestimated electricity demand from data centers,” so the utility could be overbuilding for electricity that is not needed.[22] The PSC can act as an important check on utility companies like Georgia Power by deciding what kind of electricity a company puts on the grid and who pays for it.[23] For example, this past summer the regulatory body voted to freeze Georgia Power’s base rates through 2028.[24] The PSC will either approve or deny Georgia Power’s robust buildout by the end of 2025.[25]

Georgians’ electricity bills are already high and have been rising.[26] Between 2023 and 2025 the PSC granted six rate hikes for Georgia Power customers, causing the average residential bill to rise by $43 per month, or $516 per year.[27] Electricity use by data centers is significantly higher than previously expected and is a “key driver for near-term regional load growth.”[28] Data centers’ high energy demand strain the electric grid, in turn forcing utilities to build additional infrastructure.[29] These costly infrastructure upgrades are passed onto ratepayers, including residential customers.[30] Moreover, data centers encourage fossil fuel plants to remain open. For example, Mississippi Power’s Plant Daniel was “scheduled to retire its coal units in 2027,” until Georgia Power decided to purchased 750 MW from the plant.[31] In Georgia, Plant Scherer, a coal power plant owned by Georgia Power, was originally set to close in 2028.[32] However, the plant is now remaining open indefinitely to help support the increasing energy demand from data centers.[33] Furthermore, Georgia Power wants almost 60% of its requested 10,000 MW “to come from new or existing natural gas plants.”[34] Research shows that electrical load growth from data centers could “induce more near-term CO₂ emissions” due to a reliance on existing coal- and gas-fired plants.[35]

Georgia’s Current Policy Framework

Data centers’ attraction to Georgia can be tied back to a 2018 law that created a sales tax break for equipment, “enabled a tax credit for job creation, and created a local property tax abatement.”[36] In 2024, the Georgia legislature passed a bill that would “suspend the exemptions,” but Governor Brian Kemp vetoed the bill, citing how it would “ ‘undermine investments’ ” and “ ‘inhibit infrastructure and job development.’ ”[37] A bill that would require data centers to share where it is going to be built, its estimated water and electricity use, and estimated sound level in order to receive state tax incentives also failed this year.[38] However, Georgia does require data centers to “submit an annual report detailing financial data such as job creation, payroll, and tax-deductible investments;” they are not required to report energy demands or use.[39] In November, the Georgia Department of Community Affairs (DCA) adopted new rules that require proposals for data centers be subject to state review.[40] The DCA expanded the definition of what is considered “development of regional impact” to now include data centers.[41] DCA oversees Developments of Regional Impact (DRIs), which “are large-scale developments that are likely to have regional effects beyond” the locality where they are located.[42] The DCA also responded to disagreement at the local level over how to treat data centers by creating a new “technological facilities” category.[43] However, these new state rules are not binding. The DRI process is intended to allow the public to review and comment on a proposed development.[44] Local decision-making authority is not limited by the DRI process or the DCA.[45] If a local community wishes to support or oppose a DRI, they may do so unrestricted.[46]

Data Centers Face Resistance At The Local Level

Some counties and cities in Georgia have responded to accelerating data center development by putting in place moratoriums and even outright bans. For example, the Atlanta City Council passed legislation “prohibiting construction near MARTA metro stations and along the Beltline.”[47] But there are some counties that openly welcome data centers. For example, Bartow County, which already houses various industrial manufacturing facilities, welcomed one data center and there is a second currently being built.[48] The county administrator cited the tax revenue that data centers rake in and the subsequent benefit of reducing tax burdens on residents as the reasons for welcoming these facilities into the community.[49] Counties that do have moratoriums have cited the need to update their local commercial and industrial zoning codes since neither even include the term ‘data center.’[50] Others acted in response to residents’ concerns over “electromagnetic fields and water supplies.”[51] These moratoriums signal that those counties will likely have ordinances addressing data centers once the moratorium is over.[52] The priorities of ordinances vary, with some only creating noise restrictions and the requirement of a buffer zone, and others requiring closed loop water usage.[53] However, there are a few pending ordinances that place restrictions on energy usage.[54]

With a moratorium currently in place until June, 2026, DeKalb County is working on drafting an ordinance that would restrict data centers to industrial areas and generally require a developer to first secure a special land-use permit.[55] The County seeks to protect the community from any potentially significant land, energy, and water consumption impacts.[56] At its core, the ordinance “will add data centers as a use in industrial areas and regulate their location, design, and provide supplemental review standards.”[57] The proposed ordinance rewards data centers that offset at least 45% of the facility’s total energy usage with renewables by allowing them to be built at most 150 feet higher.[58] A Noise Impact Assessment would also be required as part of the permitting process along with a Water Consumption and Sustainability Plan.[59] Importantly, the Water Consumption and Sustainability Plan must “demonstrate that the water usage shall not significantly strain DeKalb County’s water supply.”[60] The proposed ordinance also demands an Energy Consumption and Sustainability Plan.[61] That plan must include the “estimated energy load before construction and the daily operational load once constructed.”[62] Moreover, the Energy Consumption and Sustainability Plan shall outline “strategies for mitigating strain on local power infrastructure,” “[p]roposed improvements or alternatives to minimize the need for additional transmission lines,” and “[t]he use of sustainable alternatives for on-site water or power generation.”[63] Interestingly, the proposed ordinance incentivizes the redevelopment of existing industrial sites for data centers by not requiring a special land use permit “for the redevelopment, reuse, renovation, or reconstruction of a site.”[64]

Lumpkin County already has an ordinance in place addressing data centers. The ordinance requires an “annual independent audit” about a facility’s energy usage.[65] A water usage plan that demonstrates “the sustainability of water withdrawal from wells and its impact on the local aquifer or public water supplies” is required as part of the permitting application.[66] The ordinance also puts restrictions on noise, limiting daytime noise to 60 dBA and below and nighttime noise to 50 dBA beyond the property line.[67] If a facility exceeds these noise limitations, the County has discretion to require a noise reduction barrier or device be installed, however it is not an automatic requirement.[68] Looking at DeKalb and Lumpkin Counties’ ordinances, it is clear that some localities are creating stricter requirements than others. Although DeKalb’s ordinance is only a draft, it is more detailed and offers more protection than Lumpkin’s. The varying degrees of ordinances demonstrates how local communities in Georgia are uniquely addressing data center proliferation.

What We Can Learn From Georgia

As an emerging epicenter of data center development, Georgia has the potential to lead data center regulation, which could influence other states. Many counties in the state have already taken up this task by enacting moratoriums on data center development and passing ordinances that explicitly address data centers. Community leaders and government officials are increasingly faced with pushback from residents who do not want a data center in their community, and who are concerned about the impacts such a facility would have on their natural resources and electrical bill.[69] Resistance to data centers has quickly become the newest example of NIMBYism.[70] That is why it is important for communities to get ahead of the data center boom by drafting ordinances and passing moratoriums prior to the proposal of a data center. Having an ordinance or regulation already in place could reduce the pressure on local governments when it comes time to consider a data center permitting application. Establishing rules ahead of time may also lead to a more detailed and well-thought out end product. In turn, this could result in stronger protections for communities.

Georgia also demonstrates the importance of freezing utility rates for consumers. Although Georgia PSC’s current base utility rate freezes for Georgia Power are short sighted—only lasting until 2028—it shows a commitment to protecting residential customers from footing the bill for data center fueled grid infrastructure.[71] However, Georgia Power’s current plan for meeting anticipated MW demand relies heavily on fossil fuel-powered plants. This is why ordinances, like DeKalb County’s draft ordinance, are critical in incentivizing the use of renewable energy by data centers. There is no question that data centers are here to stay. States and local governments need to adapt and prepare for the data center boom by adopting ordinances and regulations that will prevent utility companies from passing the cost of grid buildout to residential consumers and will encourage the use of renewables for powering data centers.

Author Bio:
Cassidy McMann is a third-year joint J.D. and Master of Climate & Environmental Policy student from Highland, New York. Cassidy received her B.S. in Environmental Studies with a focus in Policy, Planning, and Law from SUNY College of Environmental Science and Forestry. She serves as the Technology Editor for the Vermont Journal of Environmental Law and is a 3L Senator for VLGS’s Environmental Law Society. Cassidy chose to pursue this topic after hearing the stories of residents from across the country fighting against data center proliferation in their communities. After law school, Cassidy hopes to use the knowledge and skills she’s gained to promote the enforcement of our environmental protection laws and regulations.

[1] Terry Nguyen & Ben Green, What Happens When Data Centers Come to Town? 3 (2025).

[2] Mary Ellen Klas, NIMBYs Are Coming for the Data Centers AI Needs, Bloomberg UK (Aug. 20, 2025), https://www.bloomberg.com/opinion/articles/2025-08-20/ai-and-crypto-data-centers-are-nimbys-new-target.

[3] J. Thomas Perdue, Why Are So Many Data Centers Popping Up In Georgia, Ga. Pub. Pol’y Found. (May 8, 2025), https://www.georgiapolicy.org/news/why-are-so-many-data-centers-popping-up-in-georgia/.

[4] The exact number of data centers located in the U.S. varies by source. The lack of clear knowledge of just how many data centers there are in the country or any given state demonstrate the lack of transparency that surrounds data centers. Data centers worldwide by country 2025, statista, https://www.statista.com/statistics/1228433/data-centers-worldwide-by-country/?srsltid=AfmBOool6SMis8Df9DxSEISuK4K94Om-BM-lkL0oe-FNQ34KS6P02HAt (last visited Nov. 22, 2025) (4,165 data centers); United States of America Data Center Market Overview, Cloudscene, https://cloudscene.com/market/data-centers-in-united-states/all (last visited Nov. 22, 2025) (5427 data centers); USA Data Centers, Data Center Map, https://www.datacentermap.com/usa/ (last visited Nov. 22, 2025) (4214 data centers).

[5] Data Centers: Transparency Makes Good Neighbors, Science for Georgia, https://scienceforgeorgia.org/knowledge-base1/data-centers-big-power-small-jobs/ (last visited Nov. 22, 2025).

[6] Mary Romano et al., The Resource-Draining Origins of Our AI Assistants: Potential Policy Solutions to the Unregulated Growth of Georgia’s Data Center Industry, 26 J. Sci. Pol’y & Governance, June 2025, at 3.

[7] Id. at 1–2.

[8] Zachary Hansen, Atlanta Was Primed For the Data Center Boom. All It Took Was A Spark, The Atlantia Journal-Constitution (June 18, 2025), https://www.ajc.com/news/2025/06/atlanta-was-primed-for-the-data-center-boom-all-it-took-was-a-spark/.

[9] Id.

[10] Zachary Hansen, Fulton Board Approves $75M Tax Break For Microsoft Data Center, The Atlanta Journal-Constitution (June, 25, 2024) https://www.ajc.com/news/business/fulton-board-approves-75m-tax-break-for-microsoft-data-center/Q3K2XGXZD5DGRJUPUB3ENQGB4A/.

[11] Id.

[12] Id.

[13] J. Thomas Perdue, supra note 3.

[14] Nyguen & Green, supra note 1, at 4.

[15] Id.

[16] Id. at 5.

[17] About Us, Georgia Power, https://www.selectgeorgia.com/about-us/our-company/# (last visited Nov. 26, 2025).

[18] Romano et al., supra note 6, at 4.

[19] Kristi E. Swartz, Georgia Power says answer to state’s data center surge is more natural gas, The Atlanta Journal-Constitution, https://www.ajc.com/business/2025/10/georgia-power-says-answer-to-states-data-center-surge-is-more-natural-gas/.

[20] Kristi E. Swartz & Drew Kann, Analysts warn Georgia Power bills will rise if PSC approves data center buildout, AJC (Nov. 24, 2025) https://www.ajc.com/business/2025/11/analysts-warn-georgia-power-bills-will-rise-if-psc-approves-data-center-buildout/ (“For comparison, each of the four nuclear reactors at Plant Vogtle near Augusta provides roughly 1,100 megawatts.”).

[21] Id.

[22] Id.

[23] Swartz & Kann, supra note 20.

[24] Id.

[25] Id.

[26] See Chauncey Alcorn, Why Electricity Rates In Georgia Rose $516 Per Year On Average, Capital B Atlanta (May 19, 2025), https://atlanta.capitalbnews.org/georgia-psc-election-2024-energy-costs/.

[27] Id.

[28] EPRI, Powering Data Centers: U.S. Energy System and Emission Impacts of Growing Loads 25 (2024).

[29] Nyguen & Green, supra note 1, at 3.

[30] Id.

[31] Id. at 11.

[32] Drew Kann & Zachary Hansen, Why Big Tech Sees Georgia Farland As Ripe For Data Centers, The Atlanta Journal-Constitution (Dec. 5, 2025), https://www.ajc.com/business/2025/12/why-big-tech-sees-georgia-farmland-as-ripe-for-data-centers/.

[33] Id.

[34] Swartz, supra note 19.

[35] EPRI, supra note 28, at 5.

[36] Kala Hunter, How Georgia Became The ‘Wild West’ Of Data Centers. Is Transparency on the Horizon?, Ledger-Enquirer, https://www.ledger-enquirer.com/news/environment/article312041943.html (Sept. 15, 2025).

[37] Id.

[38] Id.

[39] Romano et al., supra note 6, at 4 (citing O.C.G.A § 560-12-2-.117).

[40] Mary Landers, Georgia Board Approves New Review Process For Large Data Centers, Ga. Recorder (Nov. 21, 2025), https://georgiarecorder.com/2025/11/21/georgia-board-approves-new-review-process-for-large-data-centers/.

[41] Id.

[42] Ga. Dep’t of Cmty. Affs., Synopsis of Rules Regarding the Developments of Regional Impact Process (2025).

[43] Landers, supra note 38.

[44] Id.

[45] Id.

[46] Id.

[47] Romano et al., supra note 6, at 5.

[48] Id

[49] Id

[50] Hunter, supra note 36.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Zoe Seiler, Dekalb County’s Proposed Data Center Regulations Explained, Decaturish (Dec. 16, 2025), https://www.decaturish.com/business/dekalb-countys-proposed-data-center-regulations-explained/article_08689a5c-1342-421c-8b09-17c1f773febb.html.

[56] Data Center Text Amendment, DeKalb Cnty. Ga., https://engagedekalb.dekalbcountyga.gov/data-center-text-amendment (last visited Dec. 18, 2025).

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Lumpkin Cnty. Ga., Mun. Code art. IV chpt. 9 (2025), https://library.municode.com/ga/lumpkin_county/codes/code_of_ordinances?nodeId=PTIICOOR_CH27LAUSPEZO_ARTIVACRECOUSAP_CH9COCE_S27-4.9.1DE.

[66] Id.

[67] Id.

[68] Id.

[69] Zachary Hansen, As Data Centers Grow Larger, So Does Pushback Across Georgia, The Atlanta Journal-Constitution (June 18, 2025), https://www.ajc.com/news/2025/06/as-data-centers-grow-larger-so-does-pushback-across-georgia/.

[70] Id.

[71] Ga. Pub. Serv. Comm’n, 2025 Data Center Fact Sheet (2025).

Rage Against the Wind: The Markets Won’t Do What the OBBB Tells Them
Written by Emily Dwight and Professor Mark James

On his first day back in office President Donald Trump declared a “national energy emergency,” claiming the United States faces “a precariously inadequate and intermittent energy supply” threatening national security.[1] Six months later, he signed the “One Big Beautiful Bill Act” [2] (OBBB), fundamentally restructuring renewable energy tax incentives passed in the Inflation Reduction Act.[3]

There is only one problem: the emergency does not exist. Fossil fuel production reached record levels under the previous administration, grid reliability metrics contradict claims of systemic instability, and independent assessments found no evidence of a supply crisis.[4] As Columbia Law School scholars observed, “evidence suggests that current energy supply and price conditions simply do not constitute a national emergency.”[5]

The legal foundation for this emergency declaration is equally precarious. The Supreme Court warned in Biden v. Nebraska that emergency authority “does not empower the President to take actions free from statutory limitations.”[6] Legal scholars have categorized statutory emergency authorities, finding that many contain “specific statutory criteria or descriptions of ‘emergency’ circumstances which suggest that the declared energy emergency may not qualify.”[7] Even where agencies possess broader discretion, actions taken under a manufactured emergency could face “arbitrary and capricious” challenges under the Administrative Procedure Act.[8] Declaring an emergency, as the Columbia analysis noted, “regardless of fanfare and spectacle, does not give President Trump carte blanche to pursue his energy policy” when no true emergency exists.[9]

This disconnect raises a fundamental question: for what purpose? The OBBB imposes substantial costs on renewable energy development—wind and solar are the only sources that can be deployed at scale in the next few years—while failing to address genuine energy security concerns or reduce overall energy costs. The question is not whether we need more energy; we clearly do. The question is what resources can be deployed fastest and cheapest to meet surging demand. By every objective measure, that answer is renewable energy with battery storage, not new coal plants or extended operation of aging fossil infrastructure.

Perhaps the answer lies not in policy analysis but personal obsession. President Trump’s opposition to wind turbines predates his presidency by nearly two decades. Since 2006, he has waged a personal crusade against offshore wind development near his Aberdeen golf course in Scotland, filing multiple lawsuits claiming the turbines would destroy the property’s aesthetic value.[10] He lost every legal challenge, with UK courts ultimately ruling in 2015 that the project could proceed.[11] His objections were never grounded in energy policy analysis or grid reliability concerns—they were about the view from his golf course. His personal grievance has become America’s energy policy.

Like Cervantes’ knight-errant tilting at windmills, imagining them to be giants, the administration wages war against wind turbines while genuine challenges go unaddressed. The OBBB represents modern energy policy quixotism—an ideologically driven crusade against market forces, technological progress, and economic reality. The markets will not do what the OBBB tells them to.

American Energy Policy After the OBBB

The OBBB terminates tax credits for wind and solar projects placed in service after December 31, 2027, with a narrow exception for facilities beginning construction by July 4, 2026.[12] This compressed timeline creates extraordinary pressure: wind and solar projects starting construction in 2025 must be operational by 2029; those beginning after 2025 but before July 4, 2026 must achieve commercial operation by 2030; any project starting after that cutoff must be online by 2027—an incredibly short timeframe for utility-scale development.[13]

The IRA provided a decade-long framework that encouraged billions in capital commitments for manufacturing facilities, supply chain investments, and project development pipelines. The OBBB shattered that certainty overnight. Under the Inflation Reduction Act, technology-neutral clean energy tax credits were available for projects beginning construction through 2032, with a phaseout schedule extending into the late 2030s.[14]

The OBBB abandons technology neutrality for selective intervention that reveals the administration’s true targets. Energy storage, hydropower, and geothermal facilities retain credits phasing out in 2034. Fuel cell property gains a flat 30% credit without emissions requirements. Nuclear facilities receive enhanced credits through energy community bonuses.[15] This isn’t technology neutrality; it is energy favoritism. The “All of the Above” strategy has been replaced with the nightclub policy of “Yes, You, But Not You.”

The OBBB piles on more obstacles to the rapid deployment of solar and battery storage with the introduction of extraordinarily complex Foreign Entity of Concern (FEOC) provisions requiring applicants for the technology-neutral tax credits to demonstrate that their projects avoid prohibited “material assistance” from specified foreign entities.[16] The thresholds vary significantly by technology and year: wind and solar facilities beginning construction in 2026 must show that at least 40% of total direct costs come from non-FEOC sources, rising to 60% by 2030.[17] Battery storage projects face even higher thresholds—55% in 2026, escalating to 75% by 2030.[18] Solar energy components sold in 2026 must demonstrate 50% non-FEOC content, increasing to 85% by 2030.[19]

For technologies containing dozens of components manufactured across multiple countries, this demands supply chain visibility multiple tiers back through manufacturing processes. Industry analysts estimate compliance costs could add 15-25% to project development expenses, rendering marginal projects uneconomic even if credits remain technically available.[20]

A Multi-Front Assault: Beyond Tax Credits

The OBBB’s tax credit terminations represent only one front in a comprehensive, government-wide campaign. against renewable energy. Administrative actions have erected barriers potentially more devastating than loss of tax credit.

In August 2025, Interior Secretary Doug Burgum signed Secretarial Order 3438 requiring all wind and solar projects on federal lands to meet a “capacity density” threshold—essentially mandating that renewables generate as much energy per acre as nuclear or gas plants.[21] Since an advanced nuclear plant generates approximately 33.17 megawatts per acre while an offshore wind farm generates 0.006 megawatts per acre—a difference of 5,500 times—this standard functionally prohibits new wind and solar development on federal lands.[22] The comparison ignores fundamental differences in how these technologies operate: baseload plants run continuously at rated capacity, while variable renewables produce power when wind blows or sun shines.

Burgum’s order also requires his personal approval for all wind and solar projects on federal lands and waters through an “elevated review” process.[23] About 10% of new solar capacity under development sits on federal lands, along with critical transmission infrastructure.[24] Analysts have warned these projects “could be delayed or canceled if Burgum does not issue permits.”[25] The personal approval requirement creates a bottleneck where a single political appointee can effectively veto projects based on ideological preferences.

The constant attacks on offshore wind have the makings of a modern day Don Quixote tale. Even when repelled, the administration doubles down and comes back. On January 20, 2025, President Trump issued an executive order withdrawing all Outer Continental Shelf areas from new offshore wind leasing and imposing a moratorium on federal approvals pending “comprehensive review” with no timeline.[26] The order directs the Interior Secretary to assess “the ecological, economic, and environmental necessity of terminating or amending” of existing leases.[27] The administration has used this authority aggressively. In August 2025, it halted construction on Revolution Wind, an 80% complete project off Rhode Island, citing vague “national security concerns, before a temporary restraining order was issued that allowed construction to proceed.”[28] In November, BOEM received approval to remand a key permit issued to SouthCoast Wind.[29] On December 8^th, a Massachusetts federal court judge ruled that the indefinite moratorium on federal approvals, imposed in the January 20^th executive order, was arbitrary and capricious.[30] On December 22, 2025, the Department of the Interior issued stop-work orders for all five offshore wind projects currently under construction, citing again “national security concerns” argument that was unsuccessful against Revolution Wind.[31] Some of the paused projects were partially complete and already delivering electricity to the grid while another was expected to connect in the first quarter of 2026.[32]

The Department of Transportation’s withdrawal of $679 million in federal grants for port infrastructure supporting offshore wind construction at twelve different ports from California to Virginia.[33] Humboldt Bay, California lost over $426 million that would have transformed a struggling former timber port into a renewable energy hub.[34] Secretary Sean Duffy justified cancellations claiming “wasteful wind projects are using resources that could otherwise go towards revitalizing America’s maritime industry.”[35]

The cumulative impact is staggering. The Solar Energy Industries Association reports that over 500 solar and storage projects totaling 116 gigawatts—more than half of all power capacity planned through 2030—face political threats including permitting delays, grant cancellations, and regulatory uncertainty.[36] This includes 73 GW of solar and 43 GW of storage without all necessary permits. Eighteen states have over 50% of their planned generation capacity at risk, including Texas (which alone accounts for nearly 40% of at-risk projects), Virginia, Arizona, and Nevada.[37] Three of the top five affected states voted for President Trump in 2024.[38]

The Real Emergency: Meeting Soaring Electricity Demand

The reliability and affordability crises used to justify the emergency declaration crumbles under scrutiny. The administration’s framing blames the windmills for problems caused by aging coal plants reaching end-of-life. The North American Electric Reliability Corporation (NERC) identified regional capacity concerns but pointed to “planned thermal generation retirements” as the “primary contributing factor”—not renewable energy additions.[39] NERC specifically noted risks of “supply shortfalls” during late summer when “solar output diminishes earlier in the day”—a temporal mismatch that energy storage and transmission expansion could address.[40]

Decisions to keep aging coal plants online exacerbate rather than correct the problem. The Trump administration’s Executive Order on “Reinvigorating America’s Beautiful Clean Coal Industry” claims that “clean coal resources will be critical to meeting the rise in electricity demand due to the resurgence of domestic manufacturing.”[41] Yet a DOE emergency order, using its Federal Power Act Section 202(c) authority, keeping Michigan’s Campbell coal plant operating–when it was scheduled to retire 15 years before the end of its planned lifespan because it was uneconomic–encapsulates the disconnect between this rhetoric and reality.[42] The administration is addressing symptoms rather than causes, defend obsolete infrastructure rather than enable new resources. It treats planned retirement of aging fossil fuel plants as an “emergency” while accelerating termination of tax credits supporting technologies that could actually address capacity needs, all in service of “beautiful clean coal.”[43] Keeping the Campbell plant online cost ratepayers an extra $80 million between May 23 and September 30, 2025, more than $600,000/day.[44] If the DOE mandates that all the fossil fuel plants that are scheduled to retire by the end of 2028 remain online, costs to ratepayers could $3 billion per year.[45]

The administration is fighting physics and the passage of time in its efforts to bring back coal. Coal-fired electricity generation is a sector living on borrowed time. Competing technologies have gotten cheaper while coal has gotten more expensive. When the Bureau of Land Management held an auction for coal leases, it got one bid at less than a penny per ton. The BLM suspended two planned coal lease auctions.[46] The chivalrous-minded Don Quixote found similar results in his fight to return to the past. The future has made its decision about coal.

Yet an actual emergency looms: exploding electricity demand. Electricity consumption could grow 15-20% by 2030, driven by data centers, artificial intelligence, electric vehicles, and manufacturing reshoring.[47] Meeting this growth requires deploying new generation capacity at unprecedented speed—precisely when the administration is blocking the only technologies capable of rapid deployment.

The OBBB’s approach is predicated upon a fundamental logical flaw. The only technologies capable of rapid deployment at scale are solar and energy storage. Solar projects can be operational in 18-24 months; storage in 12-18 months. New natural gas combined-cycle plants require 3-4 years to construct, while turbine manufacturers now face wait times of 5-7 years for major equipment.[48] Nuclear plants require a minimum of 7-10 years to build, and that is the most optimistic timeline. Coal plants are not being built. Attacking the fastest-deployable resources while facing unprecedented demand surge exemplifies ideology triumphing over practical necessity.

The economics strongly favor renewables. Utility-scale solar now averages $24-$38 per megawatt-hour; onshore wind costs $24-$50/MWh.[49] New combined-cycle gas plants cost $45-$75/MWh, while maintaining aging coal plants can cost $80-$120/MWh when including environmental compliance.[50] Keeping uneconomic coal plants operational through emergency orders doesn’t make them economically viable—it simply forces ratepayers to subsidize more expensive generation when cheaper alternatives exist.[51]

American Competitiveness in the Global Energy Transition

The world that U.S. energy policy is trying to save exists only in the past. While the administration wages its crusade against wind and solar, the global energy transition accelerates.[52] China controls approximately 80% of global solar manufacturing, 60% of wind turbine production, and 75% of battery cell manufacturing—shares resulting from deliberate industrial policy spanning two decades.[53]

The OBBB’s immediate competitive damage stems from policy whiplash. The Inflation Reduction Act created a framework expected to persist for a decade, providing certainty for multi-billion-dollar capital commitments.[54] Companies made decisions to locate manufacturing facilities in the United States based on that expected stability. International competitors operating with stable policy frameworks gain decisive advantages: they can plan confidently for decades, while U.S. competitors face biennial policy uncertainties tied to election cycles.

Policy uncertainty increases risk-adjusted capital costs, making marginal projects uneconomic. Solar factories cost billions and take years to build; wind turbine manufacturing requires specialized facilities; battery gigafactories represent even larger investments. The Union of Concerned Scientists estimates the OBBB could result in “$150-200 billion in lost manufacturing investment over the next decade.”[55] This represents not just lost economic activity but foregone jobs, diminished technological capabilities, and reduced ability to compete in what will be one of the dominant industries of the 21st century.

The fundamental error in the OBBB’s logic is believing that U.S. policy choices can alter global energy trajectories. The transition will continue—driven by cost competitiveness, technology progress, and strategic positioning—whether or not America participates.[56] Solar and wind are the cheapest forms of new electricity generation in most markets worldwide. Battery costs continue declining on predictable learning curves. Countries pursuing energy independence increasingly choose renewables over imported fossil fuels. The question isn’t “will the energy transition happen?” but “will American workers, companies, and communities benefit from it?” Like Don Quixote inability to accept that the age of chivalry had ended, the OBBB imagines it can resurrect an energy system that market forces have rendered obsolete.

Energy Affordability: Understanding the True Drivers

The persistent claim that renewable energy increases consumer costs does not hold. Lawrence Berkeley National Laboratory’s comprehensive analysis reveals that transmission and distribution infrastructure investments account for roughly 60% of rate growth over the past two decades, while generation costs including renewable integration contributed only 20-25% of rate increases.[57] The expensive components are the poles, wires, transformers, and substations—infrastructure needing upgrading regardless of generation source as equipment ages.

LBNL analysis reveals that in regions with significant renewable additions, wholesale electricity prices have declined due to the near-zero marginal cost of wind and solar generation. This “merit order effect” means renewables push higher-cost fossil fuel generation out of the dispatch order, reducing average wholesale prices.[58]

Understanding electricity costs requires distinguishing between rates and bills. Electricity rates measure price per kilowatt-hour; bills reflect total monthly cost, which equals rates multiplied by consumption. Bills can remain stable as rates increase if consumption decreases through energy efficiency improvements.[59] California has high rates (28 cents/kWh) but average monthly bills of $128, only slightly above the national average of $121, because per-capita consumption is among the nation’s lowest at 550 kWh monthly versus 877 kWh nationally.[60] Conversely, Louisiana has low rates (11 cents/kWh) but bills exceeding $135 due to high consumption from inefficient housing.[61] States with high renewable penetration don’t systematically have higher bills—they have different rate structures reflecting different infrastructure investment choices.

Critical Infrastructure Bottlenecks

Transmission infrastructure represents perhaps the most critical constraint. Building new transmission requires multi-state approvals, faces intense local opposition, involves complex cost allocation disputes, which combine to produce decades-long development timelines. Recent analysis reveals transmission investment runs at only $20-25 billion annually when $50-60 billion is required to support projected load growth and renewable integration.[62] Achieving 80-90% clean electricity by 2035 would require expanding transmission capacity by roughly 60%, representing hundreds of billions in investment.[63]

FERC Order 1920, issued in May 2024 with further clarifications in Orders 1920-A and 1920-B, is the most significant transmission planning reform in over a decade.[64] The order requires regional transmission planning to consider long-term needs over 20-year horizons and near-term reliability.[65] It mandates evaluation of transmission benefits for reliability, economic efficiency, and state public policy requirements.[66] Critically, Order 1920 establishes default cost allocation methodologies that should streamline planning processes by reducing disputes over who pays for new transmission infrastructure.[67] While implementation will take years, the framework could accelerate development of critical transmission projects within regional planning organizations.

A growing bottleneck does exist in getting resources connected to the grid. Over 2,600 gigawatts of generation capacity (95% renewable or storage), representing more than two times the size of the current U.S. generation fleet, sits in interconnection queues, with average wait times exceeding five years.[68] This backlog reflects fundamental dysfunction in how new generation connects to the grid. Projects that should take 2-3 years from application to operation routinely take 5-7 years or longer.

FERC Order 2023 attempts to reform dysfunctional interconnection processes through cluster studies processing multiple projects simultaneously and financial readiness requirements ensuring projects have secured financing before entering queues.[69] However, clearing accumulated backlogs will take years. FERC’s ongoing Notice of Proposed Rulemaking, in response to on DOE’s proposal directing it to standardize large-load interconnection rules. could reduce stress on the grid by clarifying the current, unclear large load interconnection process, including co-location and cost allocation rules.[70] Utilities that have implemented data center tariffs have seen considerable reductions in their interconnection requests as speculative projects have withdrawn.[71] Establishing clear cost allocation frameworks for these large loads will reduce the speculative behavior driving up connection requests and slowing development of generation projects intending to deliver power to the grid.

Meanwhile, Congress advances parallel efforts that could inadvertently undermine the administration’s anti-renewable agenda. The Simplifying Permitting to Enable Energy Development (SPEED) Act, which passed the House on December 18th, would codify key holdings from Seven County Infrastructure Coalition v. Bureau of Land Management.[72] The act would streamline NEPA review timelines and limiting opportunities for litigation delays.[73] Proponents frame the legislation as facilitating fossil fuel development, but the reforms would benefit any infrastructure project—including renewables. Given that solar and wind projects have 2–4-year development timelines compared to 7–10 years for new nuclear or coal plants, accelerated permitting would disproportionately advantage the very technologies the administration seeks to disadvantage. However, the SPEED Act faces a difficult path in the Senate over the Trump Administration’s attacks on offshore wind and renewables on federal lands.[74]

Conclusion: When Markets Won’t Follow Orders

The One Big Beautiful Bill imposes real, measurable costs visible across multiple dimensions. The purported benefits remain stubbornly elusive. The declared emergency was manufactured from mischaracterized data. Consumer electricity bills won’t meaningfully decline—rates are driven primarily by infrastructure investment, not generation costs, and the cheapest new generation, the resource that can reduce costs, is the resource being attacked. Energy security isn’t enhanced by reducing domestic renewable deployment while the U.S. remains a net energy exporter. Grid reliability problems aren’t solved by blocking the fastest-deployable generation capacity when actual emergencies involve surging demand requiring rapid capacity additions.

The OBBB puts a heavy thumb on the scale, explicitly advantaging fossil fuels while disadvantaging renewables through tax policy, administrative action, and regulatory barriers. But thumbs on scales don’t tip the scales of global energy transformation any more than Quixote’s lance could topple windmills. The transition will continue—driven by cost competitiveness, technological progress, and international competition. The markets will not do what the OBBB tells them. Solar and wind keep getting cheaper; batteries keep improving; countries keep choosing energy independence through domestic resources over continued import dependence.

The question facing American policy is whether the United States leads this transition, capturing economic benefits and shaping its direction, or lags while other nations seize opportunities American policy foolishly rejects.

The energy system we had is gone. We cannot resurrect it through policy alone. The economics have fundamentally changed—renewables are now the cheapest new generation in most markets. The physics have changed— technology is getting better and cheaper. The weather has changed – climate impacts are making extreme weather events more frequent, stressing grids designed for historical patterns. The politics have changed—renewable energy deployment creates jobs that cannot be offshored, lowers costs for consumers, and generates tax revenue for rural communities.

The path forward requires addressing the constraints this article has documented: transmission infrastructure that connects resources to demand centers, interconnection reforms that allow projects to reach operation in reasonable timeframes, and permitting streamlining as exemplified by the SPEED Act. There are additional challenges that this analysis has not fully explored—grid modernization enabling integration of distributed resources, market designs that properly value flexibility and resilience, workforce development programs, and mechanisms ensuring that American workers and rural communities benefit from the energy transition rather than being left behind. Changing our energy system is hard enough without having to overcome the pursuit of a system that no longer exists.

Cervantes’ knight-errant eventually recognized his delusions, acknowledging on his deathbed that he had been mad. The question is whether American energy policy will reach a similar recognition before opportunities are irretrievably lost—or whether the administration will persist in its crusade against wind turbines while the rest of the world moves forward. When the administration eventually confronts the actual emergency—meeting surging electricity demand in a climate-constrained world—it will discover that ideology cannot substitute for the resources it spent years attacking. By then, the opportunities squandered, and advantages ceded, may be irretrievable.

Author Bio:

Emily Dwight, a dual J.D. and MERL student at Vermont Law and Graduate School, serves as the Administrative Editor for Vermont Law Review Vol. 50 and Vermont Journal of Environmental Law Vol. 27. Emily is particularly interested in the legal frameworks governing the transmission system and the evolution of energy production. She looks forward to applying her background in energy regulation as an associate in Sidley Austin LLP’s Energy Practice following graduation.

[1] Exec. Order No. 14156, Declaring a National Energy Emergency, 90 Fed. Reg. 7537 (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/declaring-a-national-energy-emergency/.

[2] One Big Beautiful Bill Act, H.R. 1, 119th Cong. (2025) (enacted July 4, 2025).

[3] Inflation Reduction Act of 2022, Pub. L. No. 117-169, 136 Stat. 1828 (2022).

[4] U.S. Energy Info. Admin., U.S. Fossil Fuel Production Reached Record High in 2023 (2024), https://www.eia.gov/todayinenergy/detail.php?id=65445.

[5] Olivia Guarna & Michael Burger, Demystifying President Trump’s “National Energy Emergency” and the Scope of Emergency Authority, Climate Law Blog (Feb. 14, 2025), https://blogs.law.columbia.edu/climatechange/2025/02/14/demystifying-president-trumps-national-energy-emergency-and-the-scope-of-emergency-authority/.

[6] Biden v. Nebraska, 143 S. Ct. 2355, 2373 (2023).

[7] Guarna & Burger, supra note 5.

[8] 5 U.S.C. § 706(2)(A).

[9] Guarna & Burger, supra note 5.

[10] Kevin Keane and Aimee Stanton, How Trump’s loathing for wind turbines started with a Scottish court battle, BBC, July 29, 2025, https://www.bbc.com/news/articles/c15l3knp4xyo.

[11] Id.

[12] H.R. 1, § 4101 (amending 26 U.S.C. §§ 45Y, 48E).

[13] Id.

[14] Inflation Reduction Act of 2022, Pub. L. No. 117-169, §§ 13101-13902, 136 Stat. 1818 (2022) (codified in scattered sections of 26 U.S.C.).

[15] H.R. 1, § 4103 (amending 26 U.S.C. § 45Y to add nuclear energy community bonus credit).

[16] H.R. 1, § 4105 (adding new 26 U.S.C. § 48F establishing Foreign Entity of Concern restrictions).

[17] Hagai Zaifman et al., The “One Big Beautiful Bill” Act – Navigating the New Energy Landscape, Sidley Austin LLP (July 15, 2025), https://www.sidley.com/en/insights/newsupdates/2025/07/the-one-big-beautiful-bill-act-navigating-the-new-energy-landscape; see also Martin et al., Working Through The FEOC Maze, Norton Rose Fulbright – Project Finance News, July 8, 2025, https://www.projectfinance.law/publications/2025/july/working-through-the-feoc-maze/.

[18] Id.

[19] Id.

[20] Natl. Renewable Energy Lab., Foreign Entity of Concern Compliance Cost Analysis 28, NREL/TP-6A40-87234 (2025).

[21] U.S. Dep’t of the Interior, Secretary’s Order No. 3438, Managing Federal Energy Resources and Protecting the Environment (Aug. 1, 2025), https://www.doi.gov/document-library/secretary-order/so-3438-managing-federal-energy-resources-and-protecting.

[22] Id. (comparing advanced nuclear plant output of 33.17 MW/acre to offshore wind farm output of 0.006 MW/acre).

[23] Matthew Daly, Interior Secretary Burgum Must Personally Approve All Wind and Solar Projects, A New Order Says, Associated Press (July 17, 2025), https://apnews.com/article/burgum-trump-wind-solar-clean-energy-5f496ccc8b409edad853b35cc40728fb.

[24] Id.

[25] Id.

[26] Memorandum on Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects, 90 Fed. Reg. 6,985 (Jan. 20, 2025).

[27] Id. at § 1.

[28] Clare Fieseler, Trump admin halts construction of nearly finished offshore wind farm, Canary Media, (Aug. 24, 2025), https://www.canarymedia.com/articles/offshore-wind/trump-admin-halts-construction-of-nearly-finished-offshore-wind-farm.

[29] Miriam Wasser, In Latest Anti-Wind Action, Trump Administration Moves to Revoke SouthCoast Wind Permit, WBUR (Sept. 19, 2025), https://www.wbur.org/news/2025/09/19/southcoast-wind-permit-seek-to-revoked-trump. For an updated offshore wind tracker, see Anastasia E. Lennon, Our offshore wind tracker: What’s new with wind projects off Massachusetts and beyond?, The New Bedford Light, (Updated Dec. 4, 2025), https://newbedfordlight.org/offshore-wind-tracker-whats-happening-to-massachusetts-projects/.

[30] Johan Sheridan, Judge overturns Trump order in favor of NY’s offshore wind, NEXSTAR News10.com (Dec. 9, 2025), https://www.news10.com/capitol/judge-strikes-down-wind-permit-pause/.

[31] Press Release, U.S. Dep’t of the Interior, The Trump Administration Protects U.S. National Security by Pausing Offshore Wind Leases, (Dec. 22, 2025), https://www.doi.gov/pressreleases/trump-administration-protects-us-national-security-pausing-offshore-wind-leases.

[32] Clare Fieseler, ‘Bonkers’ DOI Letter Halts All Five In-Progress Offshore Wind Farms, Canary Media (Dec. 22, 2025), https://www.canarymedia.com/articles/offshore-wind/bonkers-doi-letter-halts-all-five-in-progress-offshore-wind-farms.

[33] U.S. Dep’t of Transp., Trump’s Transportation Secretary Sean P. Duffy Terminates and Withdraws $679 Million in Funding for Offshore Wind Projects at Ports (Aug. 29, 2025), https://www.transportation.gov/briefing-room/trumps-transportation-secretary-sean-p-duffy-terminates-and-withdraws-679-million.

[34] Id.

[35] Solar Energy Indus. Ass’n, American Energy Under Threat: Political Attacks Threaten Half of All Planned Power in the U.S. (Nov. 2025).

[36] Id.

[37] Id.

[38] Id.

[39] N. Am. Elec. Reliability Corp., 2025 Summer Reliability Assessment 18 (May 2025).

[40] Id. at 19.

[41] Exec. Order No. 14261, Reinvigorating America’s Beautiful Clean Coal Industry, 90 C.F.R 15517 (2025), https://www.govinfo.gov/content/pkg/FR-2025-04-14/pdf/2025-06380.pdf.

[42] U.S. Dep’t of Energy, Energy Secretary Issues Emergency Order to Secure Grid Reliability Ahead of Summer Months (May 23, 2025), https://www.energy.gov/articles/energy-secretary-issues-emergency-order-secure-grid-reliability-ahead-summer-months.

[43] Exec. Order No. 14261, Reinvigorating America’s Beautiful Clean Coal Industry, 90 C.F.R 15517 (2025), https://www.govinfo.gov/content/pkg/FR-2025-04-14/pdf/2025-06380.pdf.

[44] Marianne Lavelle, Trump’s Order to Keep Michigan Coal Plant Running Has Cost $80 Million So Far, Inside Climate News, (Oct. 31, 2025), https://insideclimatenews.org/news/31102025/michigan-campbell-coal-plant-operation-has-cost-80-million/.

[45] Michael Goggin, The Cost of Federal Mandates to Retain Fossil-Burning Power Plants, 7, Grid Strategies LLC, On Behalf of Earthjustice, Environmental Defense Fund, Natural Resource Defense Council and Sierra Club (2025).

[46] US postpones Wyoming coal lease sale after disappointing Montana auction, Reuters, Oct. 9, 2025, https://www.reuters.com/business/energy/us-postpones-wyoming-coal-lease-sale-after-disappointing-montana-auction-2025-10-08/.

[47] Grid Strategies LLC, National Load Growth Report: 2024 Edition (2024).

[48] Diana DiGangi, Gas turbine manufacturers expand capacity, but order backlog could prove stubborn, Utility Dive, (Sept. 5, 2025), https://www.utilitydive.com/news/mitsubishi-gas-turbine-manufacturing-capacity-expansion-supply-demand/759371/.

[49] Lazard, Levelized Cost of Energy Analysis – Version 18.0 (2025).

[50] Lazard, Levelized Cost of Energy Analysis – Version 18.0 (2025).

[51] Jeff St. John, Forcing Dirty Power Plants to Stay Open Would Cost Americans Billions, Canary Media (Aug. 14, 2025), https://www.canarymedia.com/articles/policy-regulation/forcing-dirty-power-plants-to-stay-open-would-cost-americans-billions.

[52] The European Union pursues carbon neutrality with policy consistency that attracts long-term investment. See European Commission, The European Green Deal, COM(2019) 640 final (Dec. 11, 2019), https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en. India, Middle Eastern nations, and Southeast Asian countries increasingly view renewables as paths to energy access and economic development. See International Energy Agency, India Energy Outlook 2024 87 (2024); Joseph S. Nye et al., The New Geopolitics of Energy, Ctr. for Strategic & Int’l Studies 45 (2024).

[53] International Energy Agency, World Energy Investment 2024 45-48 (2024), https://www.iea.org/reports/world-energy-investment-2024.

[54] Inflation Reduction Act, Pub. L. No. 117–169, 136 Stat. 1818 (2022).

[55] Wood Mackenzie, US Clean Energy Manufacturing Post-OBBB (Sept. 15, 2025). See also, Clean Investment Monitor: Q2 2025 Update, Rhodium Group (August 28, 2025), https://cdn.prod.website-files.com/64e31ae6c5fd44b10ff405a7/68b07af49e0e4b1538c493d6_Clean%20Investment%20Monitor%20Q2%202025%20Update.pdf.

[56] Lazard, Levelized Cost of Energy Analysis – Version 17.0 9-12 (2024); International Energy Agency, World Energy Outlook 2024 112 (2024).

[57] Galen Barbose et al., Lawrence Berkeley Nat’l Lab., Retail Electricity Rates, Bills, and Price Trends: 2024 Edition (Oct. 2025).

[58] Id. at 42–48.

[59] Ryan Wiser et al., Renewable Energy and Retail Electricity Prices, Lawrence Berkeley Natl. Lab., LBNL-2001432, at 18 (2024).

[60] U.S. Energy Info. Admin., State Energy Data System (SEDS): 2024 (2024), https://www.eia.gov/state/seds/.

[61] Id.

[62] Press Release, Americans for a Clean Energy Grid, New Report Reveals U.S. Transmission Buildout Lagging Far Behind National Needs (Updated July 23, 2025), https://www.cleanenergygrid.org/new-report-reveals-u-s-transmission-buildout-lagging-far-behind-national-needs/.

[63] Princeton Univ. ZERO Lab, Net-Zero America: Potential Pathways, Infrastructure, and Impacts 87 (2023); Edison Elec. Inst., Transmission Investment Report 2024 15 (2024).

[64] Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection, Order No. 1920, 187 FERC ¶ 61,068 (2024), order on reh’g, Order No. 1920-A, 189 FERC ¶ 61,049 (2024), order on reh’g, Order No. 1920-B FERC ¶ 61,043 (2025).

[65] Id.

[66] Id.

[67] Id.

[68] Joseph Rand et al., Queued Up: Characteristics of Power Plants Seeking Transmission Interconnection as of the End of 2023, Lawrence Berkeley Natl. Lab., LBNL-2001540, at 8-12 (2024).

[69] Improvements to Generator Interconnection Procedures and Agreements, Order No. 2023, 184 FERC ¶ 61,054 (2023).

[70] Letter from Chris Wright, Sec’y of Energy, to David Rosner, Chairman, FERC, Re: Secretary of Energy’s Direction that the Federal Energy Regulatory Commission Initiate Rulemaking Procedures and Proposal Regarding the Interconnection of Large Loads Pursuant to the Secretary’s Authority Under Section 403 of the Department of Energy Organization Act (Oct. 23, 2025), https://www.energy.gov/sites/default/files/2025-10/403%20Large%20Loads%20Letter.pdf.

[71] Notice of Proposed Rulemaking, Large Load Interconnection, FERC Docket No. RM25-4-000 (issued Jan. 16, 2025); see also Emma Penrod, Large load tariffs could streamline interconnection by shrinking queues: Enverus, Utility Dive, (Dec. 18, 2025), https://www.utilitydive.com/news/large-load-tariffs-could-streamline-interconnection-by-shrinking-queues-en/808190/.

[72] H.R.4776 – 119th Congress (2025-2026): SPEED Act, H.R.4776, 119th Cong. (2025). See also Seven County Infrastructure Coalition v. Bureau of Land Management, 145 S. Ct. 1497 (2025).

[73] H.R.4776 – 119th Congress (2025-2026): SPEED Act, H.R.4776, 119th Cong. (2025).

[74] Ethan Howland, Why the SPEED Act may slow down after passing the House, Utility Dive, (Dec. 22, 2025), https://www.utilitydive.com/news/senate-permitting-reform-speed-act/808471/.

Rescinding the Endangerment Finding
Written by Kelli Cigelnik and Professor Pat Parenteau

I. Introduction: A High-Stakes Reversal

On December 15, 2009, the EPA issued a final ruling on six greenhouse gases (GHGs) that endanger public health and public welfare under Section 202(a) of the Clean Air Act.[1] The EPA also concluded that these combined emissions from motor vehicles contribute to air pollution which endangers public health and welfare under Section 202(a) of the Clean Air Act.[2] This is otherwise known as the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (2009 Endangerment Finding).

On August 1, 2025, Administrator Zeldin and the EPA proposed to rescind the 2009 Endangerment Finding.[3] The rescission of the 2009 Endangerment Finding raises two pivotal legal questions that strike at the foundation of EPA’s authority and responsibility on climate regulation. First, the EPA is signaling it may no longer view GHGs as pollutants within the Clean Air Act’s scope. Second, even if the EPA did have authority to regulate GHGs, regulating U.S. emissions has a negligible global impact.

II. Quick Background: Massachusetts v. EPA and the History of the Finding

The EPA promulgated the 2009 Endangerment Finding in response to the landmark decision in Massachusetts v. EPA.[4] In Massachusetts, the Supreme Court held that greenhouse gases are “air pollutants” under the Clean Air Act.[5] Thus, the EPA has authority under the Clean Air Act to regulate these air pollutants, such as motor vehicle emissions.[6] In addition, the Court explicitly stated that once the EPA makes the Endangerment Finding, it must regulate all sources that cause or contribute to the endangerment and cannot refuse to regulate such sources based on policy reasons outside of the statute.[7]

Following Massachusetts, the EPA conducted an extensive scientific and legal review that culminated in the 2009 Endangerment and Cause or Contribute Finding.[8] In that rulemaking, the agency found that six well-mixed GHGs collectively threaten public health and welfare by driving global climate change, and that emissions from new motor vehicles contribute to this pollution.[9] The Endangerment Finding forms the legal foundation for subsequent federal climate regulations. Every major climate rule since, including vehicle emission standards, power plant performance standards, and stationary source permitting, has relied on the 2009 Endangerment Finding as its statutory predicate.[10] Without it, the EPA’s authority to regulate GHGs under the Clean Air Act would effectively collapse.

III. Was Massachusetts v EPA Wrongly Decided?
a. Zeldin’s Theory

In the Reconsideration of the 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards (Rescission of the Endangerment Finding), the EPA proposes to rescind all GHG emission standards under Section 202(a), stating that it “no longer believes that we have the statutory authority and record basis required to maintain this novel and transformative regulatory program.”[11] It asserts that the Clean Air Act was designed for local and regional air pollution, not for global phenomena like climate change.[12] This interpretation narrows the statutory definition of “air pollutant” by emphasizing that even if GHGs fit within the Clean Air Act-wide definition, the EPA is not required—or even authorized—to regulate them under Section 202(a) absent a clear causal link to local air pollution harms.

Although the proposal stops short of directly overruling Massachusetts, it frames the 2009 Endangerment Finding as inconsistent with the Supreme Court’s later major-questions doctrine cases.[13] In effect, the EPA is inviting a re-examination of Massachusetts’s holding that GHGs are “air pollutants” under the Clean Air Act.[14] Under Zeldin, the EPA now takes the position that there is a geographical limitation on its authority to regulate pollution coming from outside the United States.[15]

Ultimately, the EPA is stressing the historical context: the Clean Air Act has traditionally addressed localized pollutants that cause direct, measurable harm through regional exposure.[16] This is unlike GHGs, which operate on a global scale. Further, the EPA claims that analyzing global climate effects under Section 202(a) exceeds the intelligible principle required for delegation, suggesting that Congress never meant the statute to encompass GHGs at all.[17]

b. Legal Obstacles

Despite the EPA’s attempt to reinterpret its authority, Massachusetts remains binding precedent. Only the Supreme Court can overturn that ruling, which squarely held that greenhouse gases qualify as “air pollutants” under the Clean Air Act.[18] Therefore, as long as Massachusetts stands, the EPA cannot unilaterally declare that GHGs fall outside the Clean Air Act’s scope.

Furthermore, the Clean Air Act’s text is written in deliberately broad terms. Section 302(g) defines “air pollutant” expansively as “any air pollution agent or combination of such agents,” a definition that comfortably encompasses carbon dioxide and other greenhouse gases.[19] Even if the EPA advances a narrower interpretation of Section 202(a), courts will likely view that reading as inconsistent with both statutory text and controlling precedent.[20]

Under the Supreme Court’s State Farm decision, the EPA’s authority to rescind a prior finding is not unlimited. The agency must acknowledge its change in position, offer a “reasoned explanation,” and demonstrate that the prior interpretation was legally or factually flawed.[21] The current proposal cites “new legal and scientific developments” and shifting policy priorities, but these justifications appear largely ideological rather than evidentiary.[22]

Comments from organizations such as the Natural Resources Defense Council (NRDC) have emphasized that the EPA has not presented robust new scientific evidence to undermine the 2009 Endangerment Finding’s conclusions.[23] Instead, the agency questions the reliability of prior assessments while acknowledging ongoing uncertainties.[24] Without concrete data demonstrating that the earlier record was erroneous or unworkable, a rescission would likely be deemed “arbitrary and capricious” under the Administrative Procedure Act.[25] In short, the EPA faces substantial legal barriers to reversing course without a fresh factual foundation or a change in the governing law.

c. Broader Implications

A rescission of the 2009 Endangerment Finding would constitute a fundamental retraction of federal authority over GHG regulation. By asserting that GHGs fall outside the scope of the Clean Air Act, the EPA would remove the major statutory authority for reducing the emissions that are driving climate change. Such a position would create a regulatory void, displacing federal uniformity with a fragmented system of state-level initiatives and inconsistent standards. If the Supreme Court were to agree with this new interpretation and either reverse or modify Massachusetts it would mean that future administrations could not revive the regulations without congressional action.

Beyond constitutional limits, the reversal would destabilize longstanding reliance interests. Industry actors, states, and environmental organizations have structured regulatory frameworks and investments on the expectation of continued federal oversight. Abrupt withdrawal would erode those expectations and diminish regulatory coherence.

IV. Can EPA Decline to Regulate Emissions it Considers Insignificant on a Global Scale?
a. The De Minimis Argument

Even if the EPA were to concede that it retains statutory authority under Massachusetts, Administrator Zeldin’s proposal argues that regulating GHG emissions would have an inconsequential effect on global climate outcomes.[26] Under this theory, U.S. emissions represent too small a fraction of total global output to warrant costly domestic regulation.[27] The agency thus characterizes GHG regulation as de minimis—a trivial exercise unlikely to produce meaningful environmental benefits.

Zeldin frames this rationale as a pragmatic and economically responsible approach. By his account, Congress did not design the Clean Air Act to impose significant costs on American industries for symbolic or negligible global gains.[28] Instead, the EPA claims that effective climate action requires multilateral coordination beyond the Clean Air Act’s jurisdictional reach.[29] In policy terms, the proposal recasts climate regulation as a matter of foreign affairs and international competitiveness, rather than environmental protection per se.

b. The Legal Problem

The Clean Air Act does not contain a de minimis exception to regulation of emissions that “may reasonably be anticipated to endanger public health or welfare.”[30] Once that determination is made, the Clean Air Act obligates the EPA to regulate; it does not permit the agency to weigh other policy considerations or cost-effectiveness of its actions in deciding whether regulation is warranted.[31]

The Supreme Court has repeatedly rejected attempts by agencies to read economic or policy discretion into clear statutory commands. In Whitman v. American Trucking Associations, the Court held that the EPA may not consider cost in setting National Ambient Air Quality Standards, emphasizing that where Congress speaks in mandatory public health terms, policy tradeoffs are foreclosed.[32] The Massachusetts decision further reinforced that the EPA cannot decline to regulate based on a policy judgment “divorced from the statutory text.”[33] The Court explicitly rejected the argument that EPA could consider the need for international cooperation as a reason not to regulate domestic emissions.[34]

By invoking a de minimis rationale, the EPA effectively reintroduces policy discretion that Congress and the courts have explicitly denied. Even if U.S. emissions represent a small portion of global totals, the statute requires regulation once an endangerment finding exists.[35] The Clean Air Act is built on cumulative control: local, sectoral, and incremental actions that collectively reduce overall pollution burdens.[36] To decline regulation on the ground that the problem is global is to nullify the Clean Air Act’s preventive purpose.

The proposal’s factual premise is equally flawed. While U.S. emissions account for roughly 13% of global totals, they remain the second-largest national source of greenhouse gases.[37] Regulatory rollback by such a major emitter undermines international climate cooperation and slows technological progress across industries. Moreover, because atmospheric GHGs are well-mixed globally, emissions reductions in any one country have measurable, albeit distributed, impacts on global concentrations.[38] Dismissing U.S. actions as insignificant ignores this cumulative effect and discounts the leadership role historically played by the U.S. in driving global standards.

The EPA’s reasoning also conflicts with its own prior findings. The 2009 Endangerment Finding, supported by extensive peer-reviewed research, recognized that global climate change is a collective-action problem that requires incremental domestic steps.[39] To now claim that individual contributions are “too small to matter” not only contradicts that scientific consensus but also violates the principle that agencies must provide a reasoned explanation when departing from prior determinations.

c. Paradigm Shift

The de minimis approach represents more than a statutory reinterpretation; it reflects a philosophical shift from prevention to abdication. Congress designed the Clean Air Act as a forward-looking statute—its thresholds are intentionally protective, operating before harm becomes irreversible. Decades ago, the D.C. Circuit Court of Appeals affirmed the EPA’s authority to regulate based on a precautionary standard, holding that the EPA could act when there was a “significant risk of harm” even without absolute scientific certainty.[40] By redefining the statute as ineffectual-by-design, the EPA transforms a preventive framework into a reactive one. This shift signals a retreat from science-based policymaking and an embrace of political convenience disguised as statutory fidelity.

Critics, including environmental organizations and several state attorney generals, argue that the EPA’s reasoning mirrors broader efforts to delegitimize environmental governance under the “major questions” doctrine.[41] This would transform every significant regulatory initiative into a presumptive overreach contrary to the Court’s admonition that the major question doctrine was to be used in “extraordinary cases.”[42] In doing so, the agency risks hollowing out the very administrative capacity Congress created to address emerging environmental harms.

V. Procedural Vulnerabilities

Beyond its substantive weaknesses, the rescission proposal is procedurally vulnerable. Under the State Farm standard, agencies must provide a reasoned explanation for any change in policy and support that shift with evidence showing that the prior determination was either erroneous or unworkable.[43] Here, the EPA offers neither.

The proposal lacks a comprehensive Regulatory Impact Analysis or any comparable peer-reviewed assessment demonstrating that prior findings were invalid. The agency relies instead on vague references to “new legal and scientific developments” without citing any concrete data or authoritative studies that contradict the 2009 record.[44] This omission is critical: because the original finding rested on extensive scientific consensus and interagency review, rescission requires an equally rigorous evidentiary showing.

For its challenge to the robust scientific evidence supporting the 2009 Endangerment Finding the proposal relies on a report produced by the Climate Working Group consisting of five scientists hand-picked by Christopher Wright, the Secretary of Energy, and widely regarded as climate skeptics.[45] In a decision by the US District Court for Massachusetts, Senior Judge Wiliam Young ruled that group was likely formed in violation of the Federal Advisory Committee Act, a ruling that the Department of Justice has chosen not to appeal.[46] Judge Young subsequently ordered the government to produce all of the records relating to the work of the Climate Working Group, and reserved judgment on whether EPA should be prohibited from considering the group’s report.[47]

Moreover, the absence of an independent Science Advisory Board review—customary for major environmental rulemakings—further undermines the rule’s legitimacy.[48] The proposal’s procedural shortcuts signal a foregone policy conclusion rather than a genuine reevaluation.

Legal challenges are inevitable. Under Section 307(b) of the Clean Air Act, all petitions for review of nationally applicable EPA actions are filed directly in the D.C. Circuit.[49] The D.C. Circuit has historically applied State Farm’s “hard look” review with particular rigor in environmental cases.[50] Plaintiffs such as the NRDC, Environmental Defense Fund, and several states (including California and New York) are likely to argue the rescission is both arbitrary and capricious and contrary to law.[51]

If the court agrees, it could vacate the rescission and remand the rule to the agency, which would potentially reinstate the 2009 Endangerment Finding by default. Such a decision would reaffirm the procedural guardrails that prevent agencies from overturning major regulatory frameworks on ideological grounds.

VI. What’s at Stake
a. Immediate Regulatory Consequences

Once finalized, the rescission of the 2009 Endangerment Finding would immediately nullify the EPA’s authority to regulate greenhouse gas emissions from motor vehicles—the so-called “tailpipe rules.”[52] Emissions from powerplants and vehicles account for over half of total GHG emissions in the U.S.[53] These rules have driven the largest reductions in GHG emissions of any federal program, providing the legal and policy foundation for both mobile and stationary source controls.[54] Their repeal would also set the stage for invalidating power plant performance standards under Section 111 of the Clean Air Act.[55] Together, vehicle and power plant regulations cover more than half of total U.S. emissions.[56] The collapse of these programs would therefore represent a structural dismantling of the nation’s core climate policy architecture.

The loss of the Endangerment Finding would also unravel the broader regulatory ecosystem built upon it. Agencies, states, and private actors have invested in compliance frameworks, emissions tracking systems, and renewable energy markets on the assumption of ongoing federal oversight.[57] Its rescission would create a legal vacuum by displacing federal uniformity with a patchwork of state-level initiatives and voluntary corporate programs. This fragmentation would undermine predictability and increase litigation risk for industry, while diminishing overall climate progress.

b. Long-Term Legal Ramifications

Should the Supreme Court affirm that the EPA lacks authority to regulate GHGs under the Clean Air Act, the consequences would extend beyond current rulemakings. A future administration could not simply reinstate the Endangerment Finding or adopt analogous regulations without new congressional authorization.[58] Such a ruling would therefore codify a permanent limitation on federal climate authority, reshaping environmental law for decades.

The decision would also reverberate through the expanding field of climate liability litigation. Oil and gas companies currently argue that federal law preempts state-law tort claims under the displacement doctrine recognized in American Electric Power v. Connecticut.[59] If the EPA now disclaims authority to regulate GHGs, those preemption arguments would collapse, potentially reviving federal common law and strengthening state and municipal claims for climate damages. In short, the rescission could simultaneously erode federal regulatory capacity while exposing industry to expanded judicial liability.

c. Broader Constitutional Implications

At a constitutional level, the rescission tests the limits of executive power to reinterpret long-standing statutory mandates.[60] By rejecting the 2009 Finding without a change in law or fact, the EPA would effectively amend the scope of the Clean Air Act through administrative fiat.[61] This raises profound separation-of-powers concerns: whether an agency may nullify judicial precedent and statutory purpose by mere reinterpretation.[62] The outcome of ensuing litigation will thus define the balance between political discretion and legal constraint within the administrative state.

VII. Conclusion

The proposed rescission of the Endangerment Finding is far more than a policy reversal. It is a constitutional and scientific reckoning. It challenges the resilience of statutory interpretation, the legitimacy of evidence-based rulemaking, and the integrity of the administrative process itself. If courts uphold the rescission, the EPA’s capacity to address climate change under existing law will evaporate, leaving regulation to the fragmented discretion of states and private markets. The Clean Air Act’s role as a comprehensive framework for national air quality protection would be irreparably narrowed.

If, however, the courts reject the rescission, the ruling would reaffirm that administrative agencies cannot discard binding precedent or established science to suit transient political agendas. Upholding Massachusetts v. EPA would preserve the principle that evidence, not ideology, governs environmental law. It would confirm that the Clean Air Act’s broad language and preventive purpose remain vital tools for addressing modern environmental crises.

Ultimately, the fate of the 2009 Endangerment Finding will shape not only the trajectory of U.S. climate policy but also the boundaries of lawful governance in an era where global problems demand enduring legal commitments.

Author Bio:
Kelli Cigelnik is a dual Juris Doctorate and Masters of Climate and Environmental Policy student at Vermont Law and Graduate School. She serves as Editor-in-Chief for Vermont Law Review Vol. 50 and Vermont Journal of Environmental Law Vol. 27. Kelli went to undergraduate at the University of Illinois at Urbana-Champaign, receiving degrees in Integrative Biology and Political Science, with a minor in Earth, Society, and Environmental Sustainability and a concentration in Civic Engagement. She has always been fascinated with how the biological sciences interacts with law and policy. Kelli spent last summer working at the Office of the Illinois Attorney General in its Environmental Bureau. She hopes to continue this work in the environmental sphere after graduation from VLGS.

[1] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009).

[2] Id.

[3] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288 (proposed Aug. 1, 2025).

[4] 549 U.S. 497 (2007).

[5] Id. at 532.

[6] Id.

[7] Id. at 534.

[8] Greenhouse Gas Endangerment Finding Timeline, U.S. Env’t Prot. Agency, https://www.epa.gov/climate-change/greenhouse-gas-endangerment-finding-timeline (last updated Oct. 8, 2025).

[9] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009). The six gases are: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride. The EPA found that these gases are “well mixed” in the atmosphere meaning their concentration is roughly the same everywhere, regardless of where they were emitted, and they collectively contribute to climate change.

[10] See id. at 66,538; Reconsideration of the Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,299, 36,306 (Aug. 1, 2025).

[11] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,298 (proposed Aug. 1, 2025).

[12] Id.

[13] Id. at 36,305; See, e.g., West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (holding that Congress did not grant the EPA in Section 111(d) of the Clean Air Act the authority to set emission caps based on shifting generation from fossil fuels to renewables); King v. Burwell, 576 U.S. 473, 485-86 (2015) (involving a question of deep “economic and political significance”); Util. Air Regul. Grp. v. EPA, 473 U.S. 302, 324 (2014) (noting that Congress should “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).

[14] Massachusetts v. EPA, 549 U.S. 497, 532 (2007).

[15] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36312 (proposed Aug. 1, 2025) (stating that “[t]he CAA does not authorize the EPA to regulate international sources of emissions”).

[16] Id. at 36,301.

[17] Id.

[18] Massachusetts, 549 U.S. at 532.

[19] 42 U.S.C. § 7602(g).

[20] Id.

[21] See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (holding that an agency must provide a “reasoned analysis” for changing its decision on a regulation); FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009) (explaining that an agency need only merely prove that its new policy is “permissible” and that there are good reasons for it).

[22] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,296 (proposed Aug. 1, 2025); see Memorandum from Lee Zeldin, Administrator, Environmental Protection Agency, to Russell Vought, Director, Office of Management and Budget (Feb. 19, 2025).

[23] See NRDC, Comments on Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288 (proposed Aug. 1, 2025).

[24] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,299 (proposed Aug. 1, 2025).

[25] 5 U.S.C. § 706(2)(A).

[26] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,304 (proposed Aug. 1, 2025).

[27] Id. at 36,304, 36,311.

[28] Id. at 36,311.

[29] Id. at 36,301-02, 36,299.

[30] 42 U.S.C. § 7521(a)(1).

[31] See id.; Massachusetts v. EPA, 549 U.S. 497, 533 (2007) (“Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”); see also Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 465–71 (2001) (reinforcing the idea that the EPA cannot consider cost when setting standards under the Clean Air Act unless Congress explicitly authorizes it); Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,507 (Dec. 15, 2009).

[32] Whitman, 531 U.S. at 465–71.

[33] Massachusetts, 549 U.S. at 532.

[34] Id. at 523–25, 526.

[35] Id. at 532–33.

[36] 42 U.S.C. §§ 7401(a)(3)–(4), 7401(b)(1).

[37] See Pierre Friedlingstein et al., Global Carbon Budget 2023, 15 Earth Sys. Sci. Data 5301, 5304-05 (2023); Hannah Ritchie et al., CO₂ and Greenhouse Gas Emissions: United States: CO2 Country Profile, Our World in Data, https://ourworldindata.org/co2/country/united-states (last visited Dec. 7, 2025).

[38] Hannah Ritchie et al., CO₂ and Greenhouse Gas Emissions: United States: CO2 Country Profile, Our World in Data, https://ourworldindata.org/co2/country/united-states (last visited Dec. 7, 2025).

[39] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66, 543 (Dec. 15, 2009).

[40] Ethyl Corp. v. EPA, 541 F.2d 1, 23–24 (D.C. Cir. 1976).

[41] NRDC, Comments on Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288 (proposed Aug. 1, 2025), at 50–51, 61, 74 (arguing the EPA’s invocation of the major questions doctrine distorts the separation of powers and undermines congressional and judicially affirmed environmental authority).

[42] West Virginia v. EPA, 142 S. Ct. 2587, 2608, 2609 (2022).

[43] Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”); Id. at 43 (describing the “hard look” doctrine).

[44] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,310 (proposed Aug. 1, 2025) (claiming “ongoing uncertainties in relevant scientific data and analyses”). The EPA briefly references a “Draft Regulatory Impact Analysis” (EPA-420-D-25-002, July 2025) but provides no substantive discussion or findings from it within the rulemaking record itself. Id. at 36,326. This superficial mention contrasts sharply with the extensive cost-benefit and peer-review documentation that accompanied the 2009 Endangerment Finding. The Draft Regulatory Impact Analysis is a brief, roughly 30-page document, which is far shorter than the hundreds of pages typical of a substantive EPA regulatory impact analysis, such as the 2009 Endangerment Finding’s 200-plus-page Technical Support Document. It includes no quantified estimates of costs or benefits, no sensitivity or uncertainty analysis, and no modeling of the economic, health, or environmental consequences of rescission. Lacking peer-reviewed sources or interagency review, it largely reiterates the policy rationale already presented in the Federal Register notice. In short, the document is procedural and narrative rather than a genuine, data-driven economic or scientific analysis. Compare U.S. Env’t Prot. Agency, Draft Regulatory Impact Analysis for the Reconsideration of the Endangerment Finding (EPA-420-D-25-003, July 2025) with U.S. Env’t Prot. Agency, Technical Support Document for Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (EPA-HQ-OAR-2009-0171, Dec. 7, 2009). The EPA will have to rely on a final Regulatory Impact Analysis before issuing a final ruling on rescinding the endangerment finding. The final Regulatory Impact Analysis must still contain data-driven economic and scientific analysis.

[45] A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, Dep’t of Energy (2025). The National Academy of Scientists issued a scathing critique of this report and concluded that “the evidence for current and future harm to human health and welfare created by human-caused greenhouse gases is beyond scientific dispute.” Effects of Human-Caused Greenhouse Gas Emissions on U.S. Climate, Health, and Welfare, Nat’l Academies of Scis., Eng’g, and Med. (2025).

[46] Env’t Def. Fund, Inc. v. Wright, 1:25-cv-12249-WGY (D. MA. Sep. 17, 2025).

[47] See Lesley Clark, Judge Orders DOE to Release Records on Climate Working Group, Politico: E&E News (Dec. 9, 2025), https://www.eenews.net/articles/judge-orders-doe-to-release-records-on-climate-working-group/.

[48] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,296 (proposed Aug. 1, 2025).

[49] 42 U.S.C. § 7607(b)(1).

[50] State Farm, 463 U.S. at 43.

[51] See 5 U.S.C. § 706 (laying out the scope of review for the Administrative Procedure Act).

[52] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,298 (proposed Aug. 1, 2025); 42 U.S.C. § 7521(a)(1).

[53] What Are the Main Sources of US Greenhouse Gas Emissions?, USAFacts: Env’t, https://usafacts.org/articles/what-are-the-main-sources-of-us-greenhouse-gas-emissions/ (last updated Oct. 1, 2025).

[54] See U.S. Env’t Prot. Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2022, at 2-13, ES-6 (Apr. 2024); see also Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,517 (Dec. 15, 2009); Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (Clean Power Plan), 80 Fed. Reg. 64,662, 64,672 (Aug. 3, 2015).

[55] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,298 (proposed Aug. 1, 2025).

[56] See U.S. Env’t Prot. Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2022, at ES-6 (Apr. 2024) (showing that transportation accounted for 37.4% of CO2 emissions from fossil fuel combustion and that industrial CO2 emissions accounted for 26.3% of CO2 emissions from fossil fuel combustion).

[57] See Andrew S. Coghlan, Cong. Rsch. Serv., LSB11320, EPA To Revisit Greenhouse Gas Endangerment Finding 1 (2025).

[58] See id.; see also Greenhouse Gas Endangerment Finding, Env’t & Energy L. Program, Harv. L. Sch., https://eelp.law.harvard.edu/tracker/greenhouse-gas-endangerment-finding/ (last updated Sept. 17, 2025).

[59] 564 U.S. 410, 423 (2011).

[60] Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 42–44 (1983) (explaining that an agency must supply a reasoned explanation for rescinding prior policy); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009) (acknowledging that changing course requires acknowledging and justifying the change).

[61] Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)); Massachusetts v. EPA, 549 U.S. 497, 528-35 & n.26 (2007) (rejecting Chevron deference because the statute is clear that GHGs are “air pollutants”).

[62] West Virginia v. EPA, 142 S. Ct. 2587, 2609–11 (2022) (describing how clear-statement rules protects separation of powers where agencies claim transformative authority).

Environmental Destruction Through Deregulation
Written by Eric Grimes and Rachel Westrate

In the decades since the first federal environmental statutes were passed, generations of people have worked to prevent and mitigate environmental harms. Yet, the second Trump Administration has prioritized dismantling environmental initiatives. From day one, the Trump Administration began stripping environmental protections by targeting past executive orders, agency officials, regulatory rulemaking, and international agreements.[1] In spite of growing public health and environmental concerns, the President has showed no signs of slowing down.

This article explores the Trump Administration’s environmental deregulatory agenda, which is causing immediate environmental harm and will create long lasting difficulty in the government’s ability to protect the environment. First, this article will give a brief history of pivotal federal environmental protections. Second, it will address some of the key protections the Trump Administration has removed or plans to remove and the tactics the Administration has used for deregulation. Last, we will turn to what this deregulation means for the future of environmental regulation and potential avenues for mitigating further harm.

I. The Brief and (Mostly) Bipartisan History of Environmental Regulation

Starting with federal pollution controls in the late 1940s, environmental legislation has long been the corner stone of environmental protection in the United States.[2] The passage of the Federal Water Pollution Control Act in 1948, which was amended in 1972 and again in 1977 to then become the Clean Water Act (CWA), and the Clean Air Act (CAA) in 1963, marked the beginning of federal regulation for the benefit of environmental health. In the years that followed, many more regulatory acts were passed focused on the protection or control of wilderness, wildlife, emissions, waste disposal, contaminates, and more.[3] Among those acts was the 1964 Wilderness Act, the 1969 National Environmental Policy Act (NEPA), and 1970 act creating the Environmental Protection Agency (EPA), each of which have been instrumental in the protection of key parts of our environment.[4] As the United States environmental movement gained traction, conservation become a priority, leading to the passage of the Endangered Species Act in 1973, the Resource Conservation and Recovery Act (RCRA) in 1976, the National Energy Conservation Policy Act in 1978, and the Fish and Wildlife Conservation Act in 1980.[5] All of these original statutes were passed with bipartisan support – in fact, six of the eleven were signed by Republican Presidents and 10 were passed with at least a 2/3 majority in the House and/or Senate with some being almost unanimous.[6] The Environmental Protection Agency, after all, was created under President Richard Nixon.[7]

As transboundary environmental issues, such as the depletion of the ozone layer and climate change, began to rise in the global consciousness in the late 1980s and 90s, the United States worked with international partners to address these harms. These international initiatives, supported by U.S. involvement, culminated in the Montreal Protocol in 1987, which was key in reversing ozone depletion, and the United Nations Framework Convention on Climate Change in 1992, which has worked to slow and reverse climate change and its resulting harms.[8] United States environmental legislation and regulation shifted to focus on international solutions, with bipartisan support to pass the 1987 Global Climate Protection Act; 1990 Clean Air Amendments to implement the Montreal Protocol; and the 1990 Global Change Research Act.

Due to the complexity of environmental issues and the continually changing science that must inform environmental protection, Congress specifically designed federal environmental statutes to be regulatory in nature and delegate authority to pass environmental regulations to agencies. Agencies are typically made up of experts in the sectors which they are charged with regulating. Additionally, in order to implement new, change old, or remove regulations, the Administrative Procedure Act (APA) requires agencies to receive public comment on their proposed action. This process allows scientists, industries, and the general public to comment on rules, contribute to the research supporting them, and inform the agency on the likely impacts to them. With this information, agency experts are able to make regulatory decisions based on a wide range of information and perspectives. Some of the most notable regulatory successes have been those created under the CAA, which have decreased certain air pollutants by 78 percent since 1970; those create under the CWA, which prevents 700 billion pounds of pollutant from entering our waters each year; and those supporting the Endangered Species Act, which have been credited with saving 99 percent of listed species from extinction.[9] Each of the acts, initiatives, and policies mentioned above has, largely through regulatory action, successfully improved aspects of the environment and contributed to an improved quality of life from the individual to global scale.

However, in the past 20 years, the United States has seen the politicization of the environment and the technical agencies which protect it.[10] A clear manifestation of this shift in environmental perspective is the Paris Climate Agreement, a widely accepted international agreement intended to combat the impacts of climate change on a global scale. In the 10 years since the Paris Agreement was signed, the United States has entered the Agreement under Democratic Administrations and been withdrawn from it under both the first and second Trump Administrations.[11] Another representation of the polarized climate has been the increased use of the Congressional Review Act (CRA) which allows Congress, through a simple majority vote in each chamber and signature from the President, to invalidate agency rules before they go into effect.[12] Since the passage of the CRA in 1996, 16 of the 20 times the Act has been used were during Trump’s first presidency in which the President and the Republican controlled Congress repealed many Obama-era regulations.[13] In order to avoid repeal of major regulations, the Biden Administration passed many of its key regulations at the beginning of Biden’s term, beginning a norm of passing large quantities of regulations early in a presidential term.[14] With this divide being the widest and most hostile it has ever been, the Trump Administration has made anti-environmental policy a key priority of its agenda.

II. Trump’s Deregulatory Tools and Environmental Targets

The second Trump Administration has taken this politicalization of environmental regulations to a new level. Even with President Trump’s short time back in office, the Administration has slashed far too many environmental regulations to cover one article. Several of these actions have captured national attention: the reconsideration of the greenhouse gas “endangerment” finding which allows EPA to regulate climate pollution; the recission of the Roadless Rule which protects our National Forests; and the dismemberment of the Council on Environmental Quality and rescission of all National Environmental Policy Act regulations, just to name a few.[15] While this article will mostly focus on deregulatory action within the EPA, Trump’s deregulatory agenda goes beyond the landmark regulations, and far deeper into the administrative state.

Just over a month after President Trump appointment him, EPA Administrator Lee Zeldin made “the largest deregulatory announcement in U.S. history”.[16] In pursuing his goal of “driving a dagger into the heart of the climate change religion,” Administrator Zeldin announced 31 planned administrative actions.[17] Among those actions is the planned “reconsideration” of many fossil fuel power plant regulations including air pollution standards, toxics standards, wastewater standards, and greenhouse gas reporting requirements; “reconsideration” of the Endangerment Finding and its resulting regulations and actions; redirection of enforcement resources; and the termination of many Biden-Harris programs and policies aimed at supporting clean energy development and environmental justice.[18] Time has shown that “reconsideration” means the rollback and/or removal of all of these regulations.[19] These actions will allow coal, oil, and gas industries to emit levels of pollution not seen for decades, and result in the contamination of the environment and the endangerment of human health.

In support of his deregulatory agenda, President Trump and Administrator Zeldin have expanded their tactics and begun relying on tools outside the normal rescind and revise process mandated by the APA. Below are several of those tools, and how they are being used to weaken environmental regulations.

Traditional Deregulation: Through traditional APA processes, President Trump and Administrator Zeldin have begun deregulatory action on many environmental regulations. One of their primary targets is the Mercury and Air Toxic Standards (MATS) which regulates hazardous air pollutants emitted from coal- and oil-fired power plants.[20] Mercury, a main regulated pollutant in the MATS, exposure can be extremely harmful to the environment and the brain functions and development of people and animals, especially children and pregnant women.[21] The Biden-era regulation, proposed in 2024, would have resulted in an over 65% reduction in toxic metal emissions, over $300 million in public health benefits, and reductions in other harmful air pollutants such as particulate matter and nitrous oxides.[22] Under a new EPA proposed rule, certain portion of the MATS will be repealed or revised to loosen the requirements on coal- and oil-fired power plants and allow them to significantly increased their emission of mercury and other pollutants.[23] The EPA is required to receive, consider, and respond to public comment on proposals; however, the EPA is allowed to weigh all information and its priorities as it sees fit. While a final rule has not been produced yet, any repeal or revisions to the MATS providing power plants greater leniency in their mercury emissions will have a direct impact on public health and the environment.

The Courts: The Trump Administration is using the judicial system to provide justification for deregulatory actions and encouraging courts to allow a bypass of typical administrative procedure. With the U.S. Supreme Court having not only a strong conservative majority, but three Trump appointed Justices, the Administration has been able to take advantage of and encourage further anti-regulation court decisions. Using a recent Supreme Court decision24] as support, the Trump Administration has pushed Administrator Zeldin to revise the definition of what are considered “waters of the United States” (WOTUS) and therefore subject to regulation under the CWA.[25] The new EPA rule will narrow the definition of WOTUS such that the new definition would only protect an estimated 19 percent of currently mapped wetlands.[26] This new rule will leave waters that had historical been protected by the CWA act vulnerable to degradation and pollution for years to come.[27]

The Trump Administration has also worked to weaponize lower federal courts. On September 11, 2025, the EPA filed a motion in the District of Columbia Circuit Court requesting they vacate Biden-era regulatory standards on four per- and polyfluoroalkyl substances (PFAS).[28] PFAS are manufactured chemicals that can be found in drinking water and many other products that can be harmful to reproductive health, developmental health, increase cancer risk, and cause many more harms.[29] Not only is the request to vacate PFAS standards a clear attempt to bypass the rulemaking process, but it would allow many harmful chemicals into our drinking water without regulation.[30] With deregulation coming from the very institution meant to uphold public protections, the harm of deregulatory action is imminent.

Defunding: Another avenue the Administration has used to implement its deregulatory agenda is defunding programs. A key example of this tactic is the freezing and withholding of tax incentives and grant monies provided from the Inflation Reduction Act (IRA).[31] Without access to the incentives provided in the IRA, many projects and programs focused on the bolstering of solar and reduction of greenhouse gases to meet stricter regulations will have to cease work or be abandoned entirely not to mention the impacts of removing benefits to individuals and families.[32]

Administrator Zeldin has also used defunding as a form of deregulation by making significant reductions in staff and budget of programs. Since Trump took office in January 2025, nearly 4,000 employees have either left or been laid-off from the EPA removing up a quarter of its workforce.[33] In July 2025, Administrator Zeldin boasted a “savings” of $748.8 million through staff reductions and budget cuts.[34] The most recent Trump Administration budget proposals clearly indicate the President’s intention to deregulate environmental protections.[35] Among the many funding cuts requested in the budget proposal, the Administration is requesting an appalling 54% reduction in funding to the EPA.[36] If this extreme a reduction in funding were to be approved, the EPA would have no choice but to operate at a fraction of its former capacity. Without sufficient staff, the EPA will have severely limited capacity hindering its ability to adequately regulate and enforce environmental protections. Through Administrator Zeldin’s defunding initiatives, the EPA will have limited resources and personnel to competently conduct its work and protect the environment.

The Administration’s direct deregulation, court supported efforts, and defunding discussed here make up a small portion of the harm the Administration has done in the EPA and an even smaller portion of the Administration’s efforts government-wide. With all these harms to be felt from just a portion of the Trump Administration’s deregulatory agenda in the EPA, the United States wide impacts from President Trump’s deregulatory agenda are likely to be exorbitant.

III. What’s Next

While the impacts of Trump’s environmental deregulation will be seen immediately with more polluted air, water, and land, the effects of this Administration on the ability of regulatory agencies to do their jobs will be long lasting. In the Trump Administration’s efforts to “cut waste,” the Administration has caused numerous agency employees to leave either through termination or encouraging their departure.[37] The New York Times estimates that around 300,000 federal workers will have permanently left the federal government by the end of 2025.[38] With a reduced work force, federal agencies will have a majorly reduced compacity to carry out their work. This leads to reduced research to inform regulation, ability to propose rules and comply with regulatory processes, and ability to enforce the regulations in place thereby minimizing the regulatory power of the agencies.

However, those outside the federal government are still fighting for environmental protection. Many states and environmental groups have filed lawsuits against the Trump Administration or government agencies to challenges regulatory repeals or ensure the federal government is carrying out its duty.[39] Many organizations and individuals have submitted comments on proposed regulatory rules.[40] Others, such as the Environmental & Energy Law Program at Harvard Law School and the Sabin Center for Climate Change Law at Columbia Law School, have made efforts to track the deregulatory efforts.[41] Each of these efforts and others will be essential, especially for the durations of the Trump Administration, to slow and/or block the environmental deregulatory agenda.

Conclusion

The Trump Administration is attacking environmental regulation on all fronts. From emissions and pollution to conservation and preservation to environmental consideration and enforcement, the Trump Administration has made clear its intention to rollback and remove as many environmental protections as it can. Without these regulatory protections, our environment and communities will once again be vulnerable to the harms that environmental regulations have worked to prevent. With the second Trump Administration only just beginning, the danger will only grow and the harms expand. The importance to protect the regulations that have long protected us has never been greater.

Author Bio:
Eric Grimes is a third-year law student at Vermont Law and Graduate School. Eric is a Managing Editor for Vermont Law Review Vol. 50 and Vermont Journal of Environmental Law Vol. 27.

[1] Memorandum on Regulatory Freeze Pending Review, 90 Fed. Reg. 8249 (Jan. 28, 2025); Exec. Order No. 14,148, 90 Fed. Reg. 8237 (Jan. 28, 2025); Exec. Order No. 14,162, 90 Fed. Reg. 8455 (Jan. 30, 2025).

[2] A Timeline of Major US Environmental Milestones, Apex AP (Dec. 1, 2022), https://apexcos.com/blog/a-timeline-of-major-us-environmental-milestones.

[3] Id.

[4] Id.

[5] Id.

[6] Nat’l Archives & Recs. Admin., S. 2770, Federal Water Pollution Control Act Amendments of 1972, U.S. Capitol Visitor Center, https://www.visitthecapitol.gov/artifact/s-2770-federal-water-pollution-control-act-amendments-1972 (last visited Dec. 21, 2025); H.R.3199 – Clean Water Act of 1977: All Actions, Congress.gov (Dec. 12, 1977) https://www.congress.gov/bill/95th-congress/house-bill/3199/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D; Jeffrey A. Joens, Clean Air Act of 1963, EBSCO (2023), https://www.ebsco.com/research-starters/law/clean-air-act-1963; Wilderness Act, Ballotpedia, https://ballotpedia.org/Wilderness_Act (last visited Dec. 21, 2025); National Environmental Policy Act, Ballotpedia, https://ballotpedia.org/National_Environmental_Policy_Act (last visited Dec. 21, 2025); Congressional Quarterly, Congress Accepts Four Executive Reorganization Plans, 26 CQ Almanac 1970 (1971), http://library.cqpress.com/cqalmanac/cqal70-1293675; S.1983 – Endangered Species Act of 1973: All Actions, Congress.gov (Dec. 20, 1973), https://www.congress.gov/bill/93rd-congress/senate-bill/1983/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D; S.2150 – Resource Conservation and Recovery Act of 1976: All Actions, Congress.gov (June 30, 1976), https://www.congress.gov/bill/94th-congress/senate-bill/2150/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D; H.R.5037 – National Energy Conservation Policy Act: All Actions, Congress.gov (Oct. 14, 1978), https://www.congress.gov/bill/95th-congress/house-bill/5037/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D; H.R.3292 – An Act to Assist the States in Developing Fish and Wildlife Conservation Plans and Actions, and For Other Purposes: All Actions, Congress.gov (Sep. 29, 1980), https://www.congress.gov/bill/96th-congress/house-bill/3292/all-actions.

[7] The Origins of EPA, U.S. Env’t Prot. Agency (Nov. 6, 2025), https://www.epa.gov/history/origins-epa.

[8] About Montreal Protocol, UN Environment Programme, https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol (last visited Dec. 21, 2025); The Paris Agreement, United Nations Climate Change, https://unfccc.int/process-and-meetings/the-paris-agreement (last visited Dec. 21, 2025).

[9] Progress Cleaning the Air and Improving People’s Health, U.S. Env’t Prot. Agency (Mar. 19, 2025), https://www.epa.gov/clean-air-act-overview/progress-cleaning-air-and-improving-peoples-health; Clean Water Act, National Wildlife Federation, https://www.nwf.org/Our-Work/Waters/Clean-Water-Act (last visited Dec. 21, 2025); Celebrating 50 Years of Success in Wildlife Conservation, U.S. Dep’t Interior (Feb. 13, 2023), https://www.doi.gov/blog/endangered-species-act-celebrating-50-years-success-wildlife-conservation.

[10] E. Keith Smith, M. Julia Bognar & Adam P. Mayer, Polarisation of Climate and Environmental attitudes in the United States, 1973–2022, npj Climate Action 3, 2 (Jan. 10, 2024).

[11] Environmental & Energy Law Program, Regulatory Tracker: Paris Climate Agreement, Harv. L. Sch. (Jan. 20, 2025), https://eelp.law.harvard.edu/tracker/paris-climate-agreement.

[12] What is the congressional Review Act?, Cal. Evn’t Voters (May 28, 2025), https://envirovoters.org/what-is-the-congressional-review-act.

[13] Zhoudan Xie et al., 2024 Regulatory Year in Review: Ten Important Regulatory Developments 2 (Geo. Wash. Regul. Stud. Ctr., Jan. 15, 2025), https://regulatorystudies.columbian.gwu.edu/2024-regulatory-year-review.

[14] Id.

[15] EPA Releases Proposal to Rescind Obama–Era Endangerment Finding, Regulations that Paved the Way for Electric Vehicle Mandates, U.S. Env’t Prot. Agency (July 29, 2025), https://www.epa.gov/newsreleases/epa-releases-proposal-rescind-obama-era-endangerment-finding-regulations-paved-way; Secretary Rollins Rescinds Roadless Rule, Eliminating Impediment to Responsible Forest Management, U.S. Dep’t Agric. (June 23, 2025), https://www.usda.gov/about-usda/news/press-releases/2025/06/23/secretary-rollins-rescinds-roadless-rule-eliminating-impediment-responsible-forest-management; Exec. Order No. 14,154, 90 Fed. Reg. 8353 (Jan. 29, 2025).

[16] EPA Launches Biggest Deregulatory Action in U.S. History, U.S. Env’t Prot. Agency (Mar. 12, 2025), https://www.epa.gov/newsreleases/epa-launches-biggest-deregulatory-action-us-history.

[17] Id.

[18] Id.

[19] Id.

[20] Mercury and Air Toxics Standards, U.S. Env’t Prot. Agency (July 30, 2025), https://www.epa.gov/stationary-sources-air-pollution/mercury-and-air-toxics-standards.

[21] U.S Env’t Prot. Agency, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards (2011); National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9304 (Feb. 16, 2012) (to be codified at 40 C.F.R. pts 60, 63).

[22] Biden–Harris Administration Finalizes Suite of Standards to Reduce Pollution from Fossil Fuel–Fired Power Plants, U.S. Env’t Prot. Agency (Apr. 25, 2024), https://perma.cc/EJ2G-UEK6.

[23] National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units, 90 Fed. Reg. 25535 (June 17, 2025) (to be codified at 40 C.F.R. pt. 63).

[24] Sacket v. EPA, 598 U.S. 651 (2023).

[25] EPA & Army Corps Unveil Clear, Durable WOTUS Proposal, U.S. Env’t Prot. Agency (Nov. 17, 2025), https://www.epa.gov/newsreleases/epa-army-corps-unveil-clear-durable-wotus-proposal.

[26] Daniel Swenson, Proposed Update to Definition of WOTUS: Will Federally Regulated Wetlands Continue to Shrink?, Env’t Sci. Assocs. (Dec. 8, 2025), https://esassoc.com/news-and-ideas/2025/12/proposed-update-to-definition-of-wotus-will-federally-regulated-wetlands-continue-to-shrink.

[27] Updated Definition of “Waters of the United States,” 90 Fed. Reg. 52498, 52499 (Nov. 20, 2025) (to be codified at 40 C.F.R. pt. 120).

[28] Environmental & Energy Law Program, Regulatory Tracker: PFAS in Drinking Water, Harv. L. Sch. (Sep. 11, 2025), https://eelp.law.harvard.edu/tracker/paris-climate-agreement.https://eelp.law.harvard.edu/tracker/pfas-in-drinking-water/; Betsy Southerland, EPA Moves to Roll Back PFAS Drinking Water Protections, Leaving Americans Exposed to Toxic Chemicals at the Tap, Env’t Prot. Network (Sep. 12, 2025), https://www.environmentalprotectionnetwork.org/20251209_pfas-rollback.

[29] Our Current Understanding of the Human Health and Environmental Risks of PFAS, U.S. Env’t Prot. Agency (Nov. 5, 2025), https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas.

[30] Per- and Polyfluoroalkyl Substances (PFAS): Final PFAS National Primary Drinking Water Regulation, U.S. Env’t Prot. Agency (Dec. 4, 2025), https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas.

[31] To learn more about the withholding of these funds, see the full article on the impacts of the One Big Beautiful Bill written by Emily Dwight.

[32] U.S. Climate Policy Resource Center: Inflation Reduction Act Tax Credits and Rebates, World Res. Inst., https://www.wri.org/us-climate-policy-implementation/tax-credits-rebates (last visited Dec. 21, 2025).

[33] EPA Announces Reduction in Force, Reorganization Efforts to Save Taxpayers Nearly Three–Quarters of a Billion Dollars, U.S. Env’t Prot. Agency (July 18, 2025), https://www.epa.gov/newsreleases/epa-announces-reduction-force-reorganization-efforts-save-taxpayers-nearly-three.

[34] Id.

[35] U.S. Executive Office of the President, Letter on the Major Discretionary Funding Changes Recommended by President Trump (May 2, 2025).

[36] U.S. Env’t Prot. Agency, FY 2026 EPA Budget in Brief (2025); Drew Friedman, Some Agencies Face Significant Budget Cuts Under House Appropriations Package, Fed. News Network (July 16, 2025), https://federalnewsnetwork.com/budget/2025/07/some-agencies-face-significant-budget-cuts-under-house-appropriations-package.

[37] Eileen Sullivan, Year Will End With 300,000 Fewer Federal Workers, Trump Official Says, NY Times (Aug. 22, 2025), https://www.nytimes.com/2025/08/22/us/politics/trump-federal-workers.html.

[38] Id.

[39] Air Alliance Houston, et al., v. Donald Trump, No. 1:25-cv-01852 (D.D.C. June 12, 2025) (challenging the repeals to Mercury and Air Toxics Standards); Texas Env’t Just. Advoc. Servs., et al. v. Donald Trump, et al., No. 25-03745 (D.D.C. Oct. 22, 2025) (challenging Ethylene Oxide Emissions Standards exemptions granted by the Trump Administration).

[40] Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; CCR Management Extension Rule; Withdrawal of Direct Final Rule, 90 Fed. Reg. 42708 (Sep. 4, 2025) (to be codified at 40 C.F.R. pt. 257) (rescinding a EPA regulation due to receipt of adverse comments); Env’t Prot. Agency, Public Comment on Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, Regulations.gov (Sep. 22, 2025), https://www.regulations.gov/document/EPA-HQ-OAR-2025-0194-0093/comment.

[41]Environmental & Energy Law Program, Regulatory Tracker, Harv. L. Sch., https://eelp.law.harvard.edu/tracker-type/regulatory-tracker/?_title=mercury (last visited Dec. 21, 2025); Sabin Center for Climate Change Law, Climate Deregulation Tracker, Colum. L. Sch., https://climate.law.columbia.edu/climate-deregulation-tracker (last visited Dec. 21, 2025).

Superfund Climate Acts Under Threat: Implications for States
Written by Emily Karwacki and Professor Kirt Mayland

What is a Climate Superfund Act?

Vermont made history in 2024 when it enacted the first of its kind Climate Superfund Act (the Vermont Act).[1] New York quickly followed suit (the New York Act; together with the Vermont Act, the “Acts”).[2] The Acts draw inspiration from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) passed by Congress in 1980.[3] CERCLA, sometimes known as the Superfund law, requires entities (referred to as potentially responsible parties) that own or owned contaminated facilities or sites, or generated, disposed, treated, or transported hazardous wastes to pay to clean up the resulting contamination. To some extent, the Acts treat greenhouse gasses (GHGs)[4] emitted into the atmosphere as one large spill of hazardous waste. CERCLA holds such parties strictly, and jointly and severally liable, sometimes retroactively.[5] The Acts similarly operate under strict liability[6] theories, potentially avoiding some of the attribution complications in some of the past and current climate change litigation.[7] The Acts hold responsible parties liable for the cost of the damage their emissions have caused to the states generally and impose a fee on the responsible parties to be put into a “climate superfund” to be used for various adaptation projects.[8]

Frameworks like this are commonly referred to as Polluter Pays.[9] Essentially, the Polluter Pays principle, means that “the polluter should be charged with the cost of whatever pollution prevention and control measures are determined by the public authorities, whether preventive measures, restoration, or a combination of both.”[10] While the principle does not necessarily mandate bringing pollution levels down, it does not exclude that option but leaves the judgement of what an acceptable state of the environment is to public authorities.[11]

The Vermont Act requires responsible parties, defined as entities or successors in interest who extracted or refined fossil fuels, to pay for the damages from their past actions. The fines go towards climate change adaptation in Vermont with no monetary cap.[12] The Vermont Act limits responsibility to those parties that emitted more than one billion metric tons of covered GHG emissions to the atmosphere from the period of 1995–2025,[13] equivalent to approximately 33 million metric tons of GHG emissions per year. The New York Act defines responsible parties similarly and requires such entities to pay for the state’s climate change adaptation costs for damage to the state attributed to their emissions but is for the period running from 2000 to 2024 and sets a monetary cap of $75 billion.[14]

The Acts both have the purpose of requiring responsible parties to pay for the damage their products have caused under strict liability.[15] The Acts will use the funds gathered to pay for climate adaptation projects.[16] While it will take years to determine adaptation costs and responsible party apportionment under the Vermont Act, the New York Act sets a limit on such costs and prioritizes faster distribution of money to the state for adaptation projects. Such projects could include nature-based solutions such as maintaining floodplains and natural riverine corridors, as well as engineered solutions such as upgrading roads, bridges, stormwater drainages, and the electrical grid, or for residents’ medical care for climate-related illness or injury.[17] Importantly, neither Act attempts to make sweeping efforts to mitigate or regulate the future emission of GHGs from activities of responsible parties or restrict fossil fuel use or extraction.[18]

Why are Vermont and New York’s Climate Superfund Acts being Challenged?

The American Petroleum Institute (the “API”) and the United States Chamber of Commerce (the “Chamber”), potentially prematurely, sued the state of Vermont in late 2024 in the District Court of Vermont challenging the Vermont Act.[19] A coalition of 24 states intervened in the litigation in May of 2025.[20] Similarly, in early 2025 the West Virginia Coal Association, the Gas and Oil Association of West Virginia, America’s Coal Associations, and a coalition of 22 states sued the state of New York in the Northern District of New York challenging the New York Act.[21] In February 2025, the Chamber, the API, the National Mining Association, and the Business Council of New York filed suit against New York in the Southern District of New York;[22] and in May the Department of Justice and the Environmental Protection Agency (EPA) filed a separate suit against New York in the Southern District.[23]

The complaints raise similar issues involving federal preemption under the Supremacy Clause, the Dormant Commerce Clause, the Commerce Clause, and the Due Process Clause of the Fourteenth Amendment.[24] West Virginia’s Attorney General claims the Vermont Act would “fine America’s coal, oil and natural gas suppliers into oblivion.”[25] Other state parties similarly argue Vermont is enjoying the benefits of affordable fuel while penalizing the entities who help produce that fuel.[26] So far, one group has filed an amicus brief in the Vermont and New York cases and two groups have filed a motion to intervene in the Vermont cases while six groups have filed motions to intervene in the New York cases.[27] In the Vermont cases, for instance, a group of economists filed an amicus brief arguing, among other things, that the one-time fee imposed by the Act only represents a fraction of a typical fossil fuel company’s annual profits and will have no impact, like a carbon tax, on future production or costs to the state or consumers.[28] Outside arguments on both sides are likely to continue as the cases proceed through their respective courts and generate more attention.

Almost immediately following the issuance of Executive Order 14260, “Protecting American Energy from State Overreach,” the Trump administration sued Vermont and New York challenging the Acts.[29] The Trump administration complaints are nearly identical to the earlier claims and allege the Acts are preempted by the Clean Air Act, violate the Due Process and Commerce Clauses, are impermissibly retroactive, and interfere with foreign affairs.[30] President Trump’s administration sued New York and Vermont the day after preemptively suing Hawai’i and Michigan to block liability suits the states had yet to file against fossil fuel companies.[31] The speed with which the administration’s cases were brought and the extent of arguments against the Acts could indicate the administration’s concern that these Acts could be effective in requiring fossil fuel companies to pay for the damage their products have caused where other efforts have fallen short.[32]

What’s Next?

The plaintiffs argue, among other things, that regardless of their stated objectives these Acts are attempting to mitigate GHG emissions on a national level or at least will have the effect of doing so, and that power lies exclusively in the Clean Air Act. This argument is based primarily on the Supreme Court’s decision in American Electric Power v. Connecticut[33] where the Court dismissed a common law nuisance claim seeking to limit emissions of a utility’s power plants because, among other reasons, state common law was displaced by the Clean Air Act.[34] A federal appeals court later looked to this ruling and applied it to monetary damage claims for climate change based on federal common law.[35]

The federal government also heavily relies on City of New York v. Chevron where the Second Circuit dismissed a case from New York City seeking damages against fossil fuel companies for climate change-related harms reaffirming EPA’s authority to regulate domestic greenhouse gas emissions.[36] It is not clear how the courts will treat these novel Acts and whether they will view them as an end-around attempt by New York and Vermont to mitigate GHG emissions. On their face, the Acts do not do so. Rather, they punish past actions over a limited period of time and focus on cost recovery and adaption, not mitigation or emissions regulation.

Further muddying the waters, EPA recently proposed repealing the endangerment finding, meaning GHGs would no longer be regulated under the Clean Air Act as a danger to public health or welfare, and, thus, EPA would no longer be obligated to regulate them.[37] If the repeal is successful, the effect of it on the Acts and the various other climate change related lawsuits, remains to be seen. If EPA is no longer obligated to regulate GHGs, a principal argument of the fossil fuel companies and some courts regarding federal preemption in this area would seemingly no longer apply. Regardless, the Acts’ focus on past actions and adaptation funding may make it easier for New York and Vermont to survive the federal preemption challenges.

The Acts, however, are novel and not perfectly analogous to the federal law of CERCLA, and GHGs are different than the traditional pollutants regulated under CERCLA. The Acts face similar constitutional challenges to those CERCLA has, for the most part, warded off successfully; in particular, challenges to the Acts’ retroactivity, strict liability, and interstate commerce effects. These challenges could very well be decided by a Supreme Court reluctant to accept state attempts to address the consequences of climate change.

If the various cases challenging the Acts are ultimately dismissed, Vermont and New York can start receiving funds for climate change adaptation projects within the next decade. If, however, the Acts are struck down, the states will continue to struggle for federal aid in this area. The federal government has slashed funding for agencies like the Federal Emergency Management Agency (FEMA) that help states recover from natural disasters and extreme weather events.[38] Further, in states like Vermont and New York where residents already face high taxes and costs of living, it would be challenging for the states to raise funding for climate change adaptation projects by increasing taxes and further burdening its residents.[39] Without federal assistance and funding, it’s difficult to imagine how states will cope and recover after more frequent and intense storms and natural disasters in the future.[40]

Conclusion

States need outside funding to be able to adapt to and address the extreme negative effects of climate change largely caused by the emission of GHGs, much of it from fossil fueled electric generation or transportation.[41] The Acts provide a process to secure funding from those industries that should be held accountable. The world seems to be on track to blow through its climate change goals,[42] so resiliency and adaptation need to be prioritized and funded immediately. The Acts represent a responsible, limited, and fair way to do this.

Author Bio:
Emily is a third-year law student at VLGS with a concentration in international and comparative law. She is actively involved in the Environmental and Environmental Justice law societies on campus and is working towards a career that incorporates environmental justice principles at every level. She has a background in molecular biology and aims to be a middleperson between scientists and communities experiencing environmental damage on the ground and decisionmakers who may never have faced such difficulties.

[1] Climate Superfund Cost Recovery Program, 10 V.S.A. § 596–599; Karen Zraick, New ‘Climate Superfund’ Laws Face Widening Legal Challenges, N.Y. Times (May 2, 2025), https://www.nytimes.com/2025/05/02/climate/climate-superfund-law-vermont-new-york-lawsuits.html.

[2] Climate Change Adaptation Cost Recovery Program, N.Y. Env’t Conserv. L. § 76-0103 (2025).

[3] Sarah McGovern, The Future of Climate Superfund Laws, 55 Envt’l. L. Rep. 10493, 10495 (2025).

[4] In New York, “greenhouse gas” means “carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, and any other substance emitted into the air that may be reasonably anticipated to cause or contribute to anthropogenic climate change.” N.Y. Env’t Conserv. L. § 75-0101(7) (2025). In Vermont, “greenhouse gas” means any chemical or physical substance “emitted into the air and that the Secretary may reasonably anticipate to cause or contribute to climate change, including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.” 10 V.S.A. § 552(11).

[5] 42 U.S.C. § 9601.

[6] Strict liability refers to the existence of liability regardless of the liable party’s intent or mental state when they did the act. The justification generally is that the party causing harm does so while enriching themselves and are thus in the best position to bear the loss. Alexandra B. Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims, 39 Wake Forest L. Rev. 903, 907 (2004).

[7] See e.g. City of N.Y. v. Chevron Corp., 993 F.3d 81, 97 (2d Cir. 2021).

[8] 10 V.S.A. § 598; N.Y. Env’t Conserv. L. § 76-0103 (LexisNexis 2025).

[9] Organization for Economic Co-operation and Development, The Polluter Pays Principle 6 (2008).

[10] Id.

[11] Id. at 15.

[12] 10 V.S.A. § 596.

[13] Id.

[14] N.Y. Env’t Conserv. L. § 76-0101 (2025).

[15] 10 V.S.A. § 597; N.Y. Env’t Conserv. L. § 76-0103 (2025).

[16] 10 V.S.A. § 596; N.Y. CLS ECL § 76-0101.

[17] Id.

[18] Austyn Gaffney, State and nonprofits ask federal courts to dismiss lawsuits against Climate Superfund Act, vtdigger (Aug. 22, 2025 at 04:08 pm ET), https://vtdigger.org/2025/08/22/state-and-nonprofits-ask-federal-courts-to-dismiss-lawsuits-against-climate-superfund-act/; McGovern supra note 3.

[19] Complaint, Chamber of Com. v. Moore, No. 2:24-cv-01513 (D. Vt. filed Dec. 30, 2024).

[20] Complaint in Intervention, Chamber of Com. v. Moore, No. 2:24-cv-01513 (D. Vt. filed May 7, 2025).

[21] Complaint, West Virginia v. James, No. 1:25-cv-00168 (N.D.N.Y. filed Feb. 6, 2025).

[22] Complaint, Chamber of Com. v. New York, 1:25-cv-01738 (S.D.N.Y. filed Feb. 28, 2025).

[23] Complaint, United States v. New York, 1:25-cv-03656 (S.D.N.Y. filed May 1, 2025).

[24] Complaint in Intervention, Chamber of Com. v. Moore, No. 2:24-cv-01513 ¶¶ 2, 6-11 (D. Vt. filed May 1, 2025); Complaint, West Virginia v. James, No. 1:25-cv-00168 ¶¶ 4, 5, 8, 11-16 (N.D.N.Y. filed Feb. 6, 2025); Complaint, United States v. New York, 1:25-cv-03656 ¶¶ 6-7 (S.D.N.Y. filed May 1, 2025); Complaint, Chamber of Com. v. New York, 1:25-cv-01738 ¶¶ 7-12 (S.D.N.Y. filed Feb. 28, 2025).

[25] Karen Zraick, New ‘Climate Superfund’ Laws Face Widening Legal Challenges, N.Y. Times (May 2, 2025), https://www.nytimes.com/2025/05/02/climate/climate-superfund-law-vermont-new-york-lawsuits.html.

[26] Id.

[27] United States v. Vermont, Sabin Center for Climate Change Law, https://www.climatecasechart.com/collections/united-states-v-vermont_e88e (last visited Dec. 21, 2025); Chamber of Commerce of the United States v. Moore, Sabin Center for Climate Change Law, https://www.climatecasechart.com/document/chamber-of-commerce-of-the-united-states-of-america-v-moore_d9a1?q=climate+superfund+act (last visited Dec. 21, 2025); United States v. New York, Sabin Center for Climate Change Law, https://www.climatecasechart.com/document/united-states-v-new-york_e0ca?q=climate+superfund+act (last visited Dec. 21, 2025).

[28] Gaffney, supra note 18.

[29] Nina Sablan, Trump Joins the Opposition to Vermont’s Climate Superfund Act, Calling it “Burdensome’ and “Ideologically Motivated’, Inside Climate News (June 27, 2025), https://insideclimatenews.org/news/27062025/trump-administration-tries-to-stop-vermont-climate-superfund-act//.

[30] See Complaint, United States v. New York, No. 1:25-cv-03656 ¶¶ 6-7 (S.D.N.Y. filed May 1, 2025); Complaint, United States v. Vermont, No. 2:25-cv-463 ¶¶ 32-36 (D. Vt. filed May 1, 2025).

[31] Sablan, supra note 29.

[32] See e.g. City of N.Y., 993 F.3d.

[33] 564 U.S. 410, 427 (2011).

[34] Id. at 426.

[35] Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).

[36] City of N.Y., 993 F.3d at 100.

[37] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36288.

[38] Sarah Labowitz & Debbra Goh, Get Rid of FEMA? Some States Will hurt More Than Others, Carnegie Endowment for Int’l Peace (Mar. 6, 2025), https://carnegieendowment.org/emissary/2025/03/fema-disaster-recovery-budget-cuts-state-impact?lang=en.

[39] Sablan, supra note 29.

[40] Labowitz & Goh, supra note 38.

[41] Labowitz & Goh, supra note 38; Causes and Effects of Climate Change, United Nations, https://www.un.org/en/climatechange/science/causes-effects-climate-change (last visited Dec. 21, 2025).

[42] The world is likely to exceed a key global warming target soon. Now what?, UN environment programme (Nov. 5, 2025), https://www.unep.org/news-and-stories/story/world-likely-exceed-key-global-warming-target-soon-now-what.

Balancing the Conservation Checkbook: How the Federal Government is Quietly Risking America’s Soil
Written by Julia Wickham and Professor Jonathan Coppess

“It’s about the money” – Art Cullen[1]

I. Introduction: Production at High Cost

American agricultural policy has long struggled to balance short-term economic concerns for farmers with long-term environmental investments. The Upper Midwest is facing a nitrate challenge[2]—Iowa is ranked #2 in the nation in cancer rates.[3] Modern agricultural production methods have increased threats to biodiversity and soil erosion.[4] Meanwhile, agriculture is responsible for 25% of net greenhouse gas emissions in some states.[5] Investing in agricultural conservation is the best path forward. The recent recission of Inflation Reduction Act (IRA) funding, increasing incentives to prioritize production and large payouts to producers, along with an uncertain future for crucial programs is alarming for the future of agricultural conservation. This article articulates the interplay between United States Department of Agriculture (USDA) funding and disappearing investments in conservation programs as one of the most pressing environmental issues of 2026.

II. The Cost of Prioritizing Production over Environmental Protection

Environmental stewardship is sacrificed when farmers are given incentives to plant more. In the 1920s, an economic boost during World War I drove farmers in the Great Plains to adopt intensive cultivation methods, pulverizing topsoil.[6] Producers responded to the subsequent economic depression by plowing marginal land, abandoning conservation investments, and pushing production to offset collapsed prices culminating in a Dust Bowl.[7]

Just a generation later, in the 1970s, American crop lands were again losing millions of acres to severe soil erosion from overproduction and dropping conservation practices.[8] Rising global demands following a temporary embargo on soybeans from the Nixon Administration contributed to a spike in crop prices.[9] The Secretary of Agriculture’s infamous push to farmers to “get big or get out” encouraged more land to be put into production from “fence row to fence row.”[10] Together, the 1920s and the 1970s have demonstrated that when producers expand to maximize production, the fallout is not just increased bankruptcies and lost farms, but also land degradation.[11]

Emerging from these twin crises, was the landmark Food Security Act of 1985 (FSA).[12] As part of the FSA, Congress enacted the landmark Conservation Reserve Program (CRP) to remove environmentally sensitive land out of production and implement resource conserving practices for 10 or more years.[13] And it was a massive hit. For example, in 2017, it was estimated that 521 million pounds of nitrogen and 103 pounds of phosphorus were conserved in the soil compared to landed that was cropped.[14] That same year, it was estimated that CRP enhanced water quality by reducing sedimentation by 192 million tons.[15] In the years following the creation of CRP, Congress established other conservation programs to reward environmental stewardship.[16] These programs were major investments in agricultural prosperity. By incentivizing and prioritizing environmental stewardship, Congress aimed to prevent not only another boom-and-bust cycle in agricultural markets, but also in environmental health.

The durability of this investment depends on stable funding especially in times of climate crisis. Recently, while conservation funding has increased overall, it has lost out in relations to ad hoc funding and incentives to plow environmentally sensitive land. The combination emergency funding in recent years through the Commodity Credit Corporation (CCC), the restructuring of baseline funding through the One Big Beautiful Bill Act (OB3), and the wavering support of crucial conservation programs, such as CRP, is undermining decades of environmental investment to finance short term economic and political needs.[17]

A. The Conservation Reserve Program (CRP)

CRP is the largest, federal private-land retirement program in the United States, and it has demonstrated numerous positive environmental benefits including reduced soil erosion; water quality improvements through vegetative cover, buffer strips, and reduced fertilizer application; and wildlife population improvement from increased habitat.[18] By 1990, enrollment in CRP exceeded 32.5 million acres, and it was estimated in 1995 to have saved nearly 700 million tons of soil each year on the acres enrolled.[19] That year, the head of the Natural Resource Conservation Service (NRCS) told the Senate Agricultural Committee “we have yet to hear a negative about CRP.”[20]

Budgetary and spending concerns have repeatedly challenged CRP.[21] In 1995, farm bill reauthorization had been pulled into a massive budget reconciliation fight, spearheaded by a Republican controlled Congress focused on federal budget discipline and debt.[22] The following year, Congress revised the program to receive mandatory funding from the Commodity Credit Corporation (CCC).[23] This effectively continued CRP funding without having to revisit appropriations battles to find the 2 billion per year.[24] However, since its enactment, Congress has over time limited the amount of acres that may be enrolled in CRP.[25]

B. The Commodity Credit Corporation (CCC)

Two funding mechanisms exists for the farm bill: appropriations and mandatory.[26] The CCC allows for funding without appropriations in advance.[27] The CCC has served as a mandatory funding mechanism for agricultural programs since 1933.[28] It is wholly-government owned and managed by the USDA.[29] The CCC has a permanent, indefinite borrowing authority of $30 billion from the U.S. Treasury.[30] The majority of its activities are authorized through omnibus farm bills.[31] However, under Section 5 authority, the CCC allows the Secretary of Agriculture a high-level of discretion to carry out many broad operations to support U.S. agriculture.[32] During the first Trump Administration, the total amount authorized by USDA through CCC for a trade aid package, was valued at about $28 billion.[33] This was more than any previous individual discretionary uses of CCC.[34] These 2018 and 2019 trade aid packages provided direct and indirect assistance to farmers affected by “trade damage” from retaliatory tariffs.[35] This Section 5 action brought the CCC so close to its borrowing limit, that it was only through congressional action the CCC borrowing authority was restored before funding for conservation programs went dry.[36]

Again, under the current Trump Administration, the USDA recently announced $12 billion from the CCC for “Farmer Bridge Assistance” payments to provide emergency relief after tariffs have raised concerns in the farm economy.[37] These payments are expected to be released in February 2026.[38] This is nearly one-third of the authorized spending budget of the CCC, which means programs authorized by the farm bill relying on funding from the CCC are, again, deprioritized.[39] In addition, Congress expedited $10 billion in direct economic assistance to farmers in March 2025.[40] All these ad hoc payments are tied to planted acres, which place tough planting decisions on farmers who are incentivized to plant rather than conserve because there is not the same volume of funding.

III. Short-Term Fixes May Have Long Term Environmental Costs

The last decade has seen unprecedented swings in federal conservation investments. The Inflation Reduction Act’s (IRA) historic infusion of conservation investment followed by the OB3’s repurposing and recission of that funding has been tumultuous and confusing. Separately, Congress has continued CRP in each of the 2018 farm bill extensions.[41] Although, Congress has reauthorized other conservation programs through 2031, it has failed to do so for CRP.[42] As a result, this major conservation program faces substantial uncertainty.

A. The One Big Beautiful Bill: Reallocating and Rescinding Inflation Reduction Act Funds

In 2022, the IRA contained an unprecedented investment in conservation programs.[43] For decades, Congress has expanded its investment in agricultural conservation policies .[44] The IRA appropriated an additional $18 billion until 2031 to various programs.[45] The Reconciliation Farm Bill, contained within the OB3, rescinded unobligated IRA funds to four conservation programs and repurposed them with the effect of adding them to the permanent farm bill baseline.[46]Although this is a short term win for environmentalist, ultimately, conservation programs will lose $1.8 billion over the next ten years.[47] Further, the OB3 did not retain the IRA “climate smart” guardrails.[48] These activities included agricultural practices that reduce greenhouse gas emissions, sequester carbon, and build climate resilience.[49]

B. Encouraging Production in High-Risk Areas

The OB3 nearly $60 billion investment in farm subsidy programs, including crop insurance, “dwarfs” the reallocation of conservation funding.[50] This larger investment in crop insurance encourages production of high-risk crops in environmentally sensitive areas, and it is contrary to a future of safeguarding vital natural resources.[51] While more conservation funding will be available in the long term, the changes to crop insurance programs over the same period of time are setting a daunting precedent of rewarding more production in higher risk areas, resulting in greater soil erosion and possibility of nitrogen leeching to groundwater, surface water, and estuaries.[52]

C. CRP and Its Uncertain Future

Perhaps one of the largest harbingers of lapsed environmental investment is the uncertain future of CRP. Previous farm bills have now reduced the enrollment cap from 32 million acres to 24 million acres.[53] Because Congress did not include CRP in the IRA, CRP received no supplemental funding. When the 2018 farm bill expired in 2023, technically CRP’s authority did as well.[54] However, as part of legislation re-opening the federal government, Congress extended CRP until September of 2026.[55] These annual extensions of CRP are troublesome for two reasons. First, the uncertainty may cause landowners and farmers to plow eligible acres. Second, this could make it easier for Congress to shift funding away from the program, a fate similar to the Conservation Stewardship Program (CSP).

CSP is a pivotal program that offers direct payments to farmers in return for implementing conservation on the farm.[56] Congress first authorized CSP in the 2022 farm bill without limits on funding or acres that could be enrolled.[57] In 2008, Congress implemented a limit on acreage, but it authorized an increase each subsequent year.[58] Then in 2018, Congress ended the acreage cap and moved to a funding cap.[59] This drastically reduced the funding, and it made the program more difficult to use, and thus, much more ineffective.[60] This eventually created a “self-defeating” program where fewer funds meant fewer farmers could receive assistance which reduced the support for the program.[61] If CRP were to follow in the footsteps of CSP, it would be detrimental to our ecosystem, and rural economies, to take sensitive lands out of conservation and back into production.

IV. Conclusion

Congress should have learned from the 1920s and 1970s that when agricultural policy plows ahead with short-term production boosts at the expense of land stewardship, the environmental consequences are devastating. Not only should Congress follow through on conservation funding, but federal policies should also build on nearly a century’s worth of momentum. Agricultural conservation is at a pivotal moment. Massive ad hoc payments to farmers while over-insurance of high risk areas and crops, coupled with uncertainty for CRP, is risking our investment in agricultural conservation at a critical time. In addition, small and very long term increases in funding from the OB3 are not an effective or reasonable counterweight to increasing environmental threats.

Author Bio:
Julia Wickham is a third-year law student at Vermont Law and Graduate School, graduating in May 2026 with a J.D. She is the Senior Articles Editor of the Vermont Journal of Environmental Law Volume 27.

[1] Editors Notebook, Storm Lake Times Pilot (Jan. 7, 2025), https://www.stormlake.com/stories/time-to-make-some-noise-about-cancer-in-iowa,123004.

[2] Kristi Marohn, Minnesota Public Radio News, Southeast Minnesota Struggles for Common Ground on Nitrate Pollution as Health Worries Rise, (Oct. 31, 2023), https://www.mprnews.org/story/2023/10/31/does-nitrate-in-southeast-minnesotas-water-present-a-public-health-crisis; Jonathan Coppess et al., A Menace Reconsidered, Part 4: Losing Nitrogen, farmdoc daily (Apr. 18, 2024), https://farmdocdaily.illinois.edu/2024/04/a-menace-reconsidered-part-4-losing-nitrogen.html.

[3] Nina B. Elkadi, Sentient Health (Mar. 14, 2025), What’s Driving Iowa’s Outlier Cancer Rate? It’s Complicated, https://sentientmedia.org/what-is-driving-iowas-cancer-rate/; see Art Cullen, Time to Make Some Noise About Cancer in Iowa, Storm Lake Times Pilot (Jan. 7, 2025), https://www.stormlake.com/stories/time-to-make-some-noise-about-cancer-in-iowa,123004 (“We will continue to grow corn out our ears to feed those hogs and hens no matter how much nitrate drains into the Raccoon River, one of the most endangered in America.”).

[4] See generally World Wildlife Fund (Sept. 26, 2024), 2024 Plowprint Report, https://files.worldwildlife.org/wwfcmsprod/files/Publication/file/8mq6fdcmt4_PlowprintReport_2024_FINAL.pdf; see also Brent J. Dalzell, Topography and Land Use Impact Erosion and Soil Organic Carbon Burial over Decadal Timescales, 218 CATENA (2022), https://www.sciencedirect.com/science/article/abs/pii/S0341816222005641#preview-section-introduction.

[5] Minnesota Pollution Control Agency, Greenhouse gas emissions in Minnesota 2005-2022: Report to the legislature (2025).

[6] Jonathan Coppess, Between Soil & Society: Legislative history and Political Development of Farm Bill Conservation Policy 42 (2024).

[7] Id.

[8] Id. at 145 (“In 1974 and 1975, for example, Iowa experienced its worst soil erosion in twenty-five years, with some fields losing as many as fifty tons of topsoil per acre.”).

[9] Jonathan Coppess & Otto Doering, History & Tough Reality: When Payments Do More Harm Than Good, Consider Other Options, farmdoc daily (Sept. 25, 2025), https://farmdocdaily.illinois.edu/2025/09/history-tough-reality-when-payments-do-more-harm-than-good-consider-other-options.html.

[10] Kevin C. Rigdon, Stop the Planting! The 1985 Farm Bill, Conservation Compliance, and America’s Agricultural Conservation Failure, 16 Drake J. of Agric. L. 488, 489 (2012).

[11]Jonathan Coppess & Otto Doering, History & Tough Reality: When Payments Do More Harm Than Good, Consider Other Options, farmdoc daily (Sept. 25, 2025), https://farmdocdaily.illinois.edu/2025/09/history-tough-reality-when-payments-do-more-harm-than-good-consider-other-options.html.

[12] Food Security Act of 1985, Pub. L. No. 99-198, 99 Stat. 1354 (1985); see Jonathan Coppess, Between Soil & Society: Legislative history and Political Development of Farm Bill Conservation Policy 153 (2024).

[13] Megan Stubbs, Cong. Rsch. Serv, R42783, Conservation Reserve Program (CRP): Status and Issues, 1 (2017).

[14] Env’t Benefits of the US Conservation Rsrv. Program 2017, US Dept. of Agric. (2017).

[15] Id.

[16] See generally Megan Stubbs, Cong. Rsch. Serv., R40763, Agricultural Conservation: A Guide to Programs (2022).

[17] Pub. L. No. 119-21, 139 Stat. 72 (2025).

[18] Megan Stubbs, Cong. Rsch. Serv., R42783, Conservation Reserve Program (CRP): Status and Issues, 1 (2017).

[19] Jonathan Coppess, Between Soil & Society: Legislative history and Political Development of Farm Bill Conservation Policy 178 (2024).

[20] Id. at 42.

[21] Id. at 179.

[22] Id.

[23] Id. at 179.

[24] Megan Stubbs, Cong. Rsch. Serv., R42783, Conservation Reserve Program (CRP): Status and Issues, 1 (2017).

[25] Id.

[26] Renee Johnson & Jim Monke, Cong. Rsch. Serv., IF 12047, Farm Bill Primer: Background and Status, 1 (2024).

[27] Megan Stubbs, Cong. Rsch. Serv., R44606, The Commodity Credit Corporation (CCC) (2025).

[28] U.S. Dept. of Agric., About the Commodity Credit Corporation, https://www.usda.gov/farming-and-ranching/resources-small-and-mid-sized-farmers/commodity-credit-corporation (last visited Dec. 3, 2025); see 15 U.S.C. § 714 (2000).

[29] Id.

[30] Megan Stubbs, Cong. Rsch. Serv., R44606, The Commodity Credit Corporation (CCC), 7 (2025).

[31] Id. at 2.

[32] 15 U.S.C. § 714c.

[33] Stephanie Rosch, Cong. Rsch. Serv., IF11289, Farm Policy: Comparison of 2018 and 2019 Market Facilitation Programs, 1 (2019); U.S. Gov’t Accountability Off., GAO-22-104259, USDA Market Facilitation Program: Oversight of Future Supplemental Assistance to Farmers Could Be Improved (2022).

[34] Id.

[35] Id.

[36] See e.g., Letter from Sen. Debbie Stabenow et al. to Sonny Perdue, Secretary of Agriculture, (Nov. 12, 2019), https://www.agriculture.senate.gov/mfp-letter; Letter from Sen. John Hoeven et al. to Nancy Pelosi, Speaker of the U.S. House of Representatives, (Sept. 17, 2019), https://republicans-agriculture.house.gov/UploadedFiles/CCC_Letter.pdf.

[37] U.S. Dep’t Agric., Press Release: Trump Administration Announces $12 Billion Farmer Bridge Payments for American Farmers Impacted by Unfair Market Disruptions (2025); Eric Katz, USDA transfers $13B into ‘slush fund’ for future tariff relief, Gov. Exec. ( Oct. 30, 2025), https://www.govexec.com/management/2025/10/usda-transfers-13b-slush-fund-future-tariff-relief/409198/.

[38] Id.

[39] Id.

[40] U.S. Dep’t Agric., Press Release: USDA Expediting $10 Billion in Direct Economic Assistance to Agricultural Producers (2025).

[41] Megan Stubbs, Cong. Rsch. Serv., IF13114, Agricultural Conservation After Enactment of the FY2025 Budget Reconciliation Law (P.L. 119-21), 1 (2025).

[42] Id.

[43] Inflation Reduction Act, Pub. L. No. 117-69, 136 Stat. 1818 (2022).

[44] See generally Megan Stubbs, Cong. Rsch. Serv., R40763, Agricultural Conservation: A Guide to Programs (2022).

[45] Kelsi Bracmort et al., Cong. Rsch. Serv., IN11978, Inflation Reduction Act: Agricultural Conservation and Credit, Renewable Energy, and Forestry, 1 (2022).

[46] P.L. 119-21, Section 10601.

[47] Jonathan Coppess, The Reconciliation Farm Bill: Is Conservation a Silver Lining?, farmdoc daily (Sept. 11, 2025), https://farmdocdaily.illinois.edu/2025/09/the-reconciliation-farm-bill-is-conservation-a-silver-lining.html.

[48] Andrew Hockenberry & Emma Scott, Stuck in the Weeds: How the Next Farm Bill Impacts the Environment, Vt. J. Env. L. (2025), https://vjel.vermontlaw.edu/top-ten/2025-top-ten/2024/12/stuck-in-the-weeds-how-the-next-farm-bill-impacts-the-environment/.

[49]Megan Stubbs, Cong. Rsch. Serv., IF13114, Agricultural Conservation After Enactment of the FY2025 Budget Reconciliation Law (P.L. 119-21), 1 (2025).

[50] Jonathan Coppess, The Reconciliation Farm Bill: Is Conservation a Silver Lining?, farmdoc daily (Sept. 11, 2025), https://farmdocdaily.illinois.edu/2025/09/the-reconciliation-farm-bill-is-conservation-a-silver-lining.html.

[51] See Ruben N. Lubowski et al., USDA Econ. Res. Serv., Environmental Effects of Agricultural Land-Use Change: The Role of Economics and Policy 47 (2006) (“The increase in insurance subsidies appears to have had the largest effect for low-productivity and certain environmentally sensitive land.”).

[52] Id.

[53] Megan Stubbs, Cong. Rsch. Serv., R42783, Conservation Reserve Program (CRP): Status and Issues, 1 (2017).

[54] Id.

[55] Rachel Cramer, Congress extends critical Farm Bill for a third time. It’s a relief for farmers, but raises concerns, KCUR NPR (Nov. 17, 2025), https://www.kcur.org/environment-agriculture/2025-11-17/farm-bill-extended-crp.

[56] Jonathan Coppess, Between Soil & Society: Legislative history and Political Development of Farm Bill Conservation Policy 190 (2024).

[57] Id.

[58] Jonathan Coppess, The Incredible Shrinking of the Conservation Stewardship Program, farmdoc daily (Oct. 12, 2023), https://farmdocdaily.illinois.edu/2023/10/the-incredible-shrinking-of-the-conservation-stewardship-program.html.

[59] Id.

[60] Lisa Held, Republican Plans for Ag Policy May Bring Big Changes to Farm Country, Civil Eats (July 22, 2024), https://civileats.com/2024/07/22/republican-plans-for-ag-policy-may-bring-big-changes-to-farm-country/.

[61] Id.

Roads Not Taken: The Trump Administration’s Roadless Rule Reversal
Written by Drew Collins and Professor Ross Jones

For over two decades the Roadless Area Conservation Rule protected 58.5 million acres of national forest land in 39 different states.^[1] The Roadless Rule prohibits road construction, road reconstruction, and timber harvesting in these areas.^[2] Lands protected by the Rule include 80,000 acres in Vermont’s Green Mountain National Forest.^[3] However, the Roadless Rule is now subject to reversal through massive deregulation efforts made by the Trump Administration to disempower the Forest Service.^[4] This article will discuss the history and purpose of the Roadless Rule before jumping into the Trump Administration’s rescission of the Rule, public response, and the future of the Rule.

History of the Roadless Rules:

The Roadless Rule originated from decades of unsustainable logging practices that resulted in an $8.5 billion deficit in road maintenance.^[5] Unsustainable logging required the construction of extensive forest road networks to access remote timber stands. These roads were costly to build, often poorly engineered, and left the Forest Service responsible for long-term upkeep after timber revenues declined.[6]

After World War II, the Forest Service entered the business of large-scale logging.^[7] Timber production surged nationwide to fuel the post-war boom.^[8] By the 1980s, annual harvests peaked at more than 12 billion board feet.^[9] This level of production continued through the Clinton Administration, until Mike Dombeck, the Former Chief of the U.S. Forest Service, declared a temporary moratorium on new road construction in roadless areas in 1999.^[10] Dombeck recognized this level of production was unsustainable, prompting a shift toward a new, ecosystem-based approach to forest management. In response to the moratorium, President Bill Clinton instructed the Forest Service to begin rulemaking to protect our forests.^[11]

The Final Rule was promulgated in 2001 after two nationwide efforts to inventory roadless areas for their wilderness potential.^[12] Many of the tracts targeted for protection lay high in watersheds, where soils were thin and highly prone to erosion.^[13 ^] Other tracts protected were already contentious sites for proposed timber sales.^[14] The agency received over 1.8 million public comments on the proposed rule, most of which were in support of the rule or wanted to further expand its protections.^[15]

Since its promulgation, the Roadless Rule survived several attempts to truncate it, particularly from the Bush Administration.^[16] Despite these challenges, the Rule remained successful in conserving natural habitat and water quality.

Purpose of the Roadless Rule:

The United States Department of Agriculture (USDA) is the agency responsible for managing the National Forest System’s resources “to sustain the health, diversity, and productivity of the nation’s forests and grasslands to meet the needs of present and future generations.”^[17] The Roadless Rule furthers these efforts by conserving forests, preserving water quality, and protecting habitats of endangered species.

As mentioned, the conservation benefits of the Roadless Rule stem from preserving forested areas and preventing large-scale logging.^[18] However, the Rule also indirectly mitigates the effects of climate change. Currently, forests in the nation’s roadless areas are estimated to contain 445 million tons of sequestered carbon.[19] Many roadless areas contain the nation’s old-growth forests.^[20] Old-growth forests are “areas [that] absorb and store climate-warming carbon dioxide at a large scale”.^[21] These forests are prime examples of carbon sinks, areas on the earth that remove more carbon dioxide from the atmosphere than they produce. Carbon sinks are crucial to combatting climate change because they absorb vast amounts of atmospheric carbon dioxide, slowing global warming.^[22]

The Rule preserves water quality by limiting development near headwaters that provide much of the nation with freshwater.^[23] Over 60 million Americans rely on water sources originating from national forests.^[24] As droughts intensify, preserving water sources in these areas becomes even more critical. Logging and construction degrade freshwater streams by increasing erosion and removing the natural filtration provided by trees and vegetation.^[25]

By preserving large, unfragmented tracts of land, the Rule protects habitats for many species, including threatened and endangered species.^[26] The Defenders of Wildlife, a conservation nonprofit, estimates the Roadless Rule protects over 220 different species listed under the Endangered Species Act.[27] The presence of roads can fragment habitats and have potential to disrupt migration patterns for some species.^[28] Additionally, salmon and trout rely on undammed, unlogged streams for their very survival. As a result, some of the most productive fisheries in the country are found in roadless forest lands.^[29]

The Rule also promotes the outdoor recreation industry. In 2023, the outdoor recreation industry generated $1.2 trillion of goods and services in the U.S. This represents 2.3 percent of the nation’s GDP and 3.1 percent of all jobs.^[30] Roadless areas protect 11,337 climbing routes, 1,000 whitewater paddling runs, and more than 43,826 miles of trails, including 20,298 miles of mountain biking trails.^[31] Without the Roadless Rule, these areas would be subject to development or logging operations.

The USDAs Plan to Reverse the Roadless Rule:

The Trump Administration’s Secretary of Agriculture, Brooke Rollins, announced plans to rescind the Roadless Rule in June 2025.[32] This plan aligns with three executive orders passed by the President in Spring 2025.^[33] Executive Order 14192 titled “Unleashing Prosperity Through Deregulation”, directs the executive branch to “alleviate unnecessary regulatory burdens placed on the American people.”^[34] Secretary Rollins argued the Roadless Rule is unnecessary, describing it as an “outdated administrative rule” that undermines the Forest Service’s duty “to sustain the health, diversity, and productivity of the nation’s forests and grasslands.”^[35]

The USDA also justifies recession of the Rule by conformance with Executive Order 14225, titled “Immediate Expansion of American Timber Production”.^[36] This Executive Order directs the Chief of the United States Forest Service to strategize ways to improve the speed of approving forestry projects and set targets for timber production.^[37] Rescission of the Roadless Rule would lift the prohibition on timber harvesting across nearly 59 million acres of the National Forest System, aligning the agency’s regulatory framework with the Executive Order’s directive to expand timber production.^[38]

Finally, President Trump issued Executive Order 14308, titled “Empowering Commonsense Wildfire Prevention and Response”, directing the Secretary of Agriculture to make wildfire programs more efficient.^[39] Over 25 million acres of land protected by the Roadless Rule is categorized as “high or very high risk of wildfire”.^[40] Secretary Rollins claims rescission of the Roadless Rule will reduce wildfire risk in high risk areas because land will be managed at the local forest level, which will provide greater flexibility to take action against fires.^[41]

Opposition to the Rescission and Agency Response:

The USDA opened a 22 day truncated comment period for their rescission of the Roadless Rule starting on August 29, 2025.^[42] During this time, more than 600,000 Americans commented on the proposed rescission, demonstrating substantial public concern for the Rule’s withdrawal.^[43] The Center for Western Priorities, a conservation group, completed an analysis of comments and found that 99 percent of commenters disfavored rescission of the Rule.^[44] In a day and age when Americans can’t agree on much, such overwhelming consensus underscores the public’s strong commitment to preserving roadless protections. It’s worth mentioning when Mike Dombeck first promulgated the Roadless Rule in 2001, the Rule drew over 1.8 million comments with 90 percent approval.^[45] Based on these statistics, it’s fair to suggest Americans prefer the Rule in place, but does near-unanimous discontent mean the USDA will reverse course? The short answer is probably not.

The overwhelming public opposition for rescission of the Rule does automatically stop the rulemaking process. However, under the Administrative Procedures Act (APA), the USDA must address the major issues raised by commenters, explain why it disagrees, and provide evidence for that reasoning.^[46] An unreasoned decision exposes the agency to potential litigation under the APA. If the agency cannot provide evidence to support its decision to rescind the Rule, then the rescission may be considered an arbitrary and capricious abuse of agency discretion and overturned in the court system.^[47] Public comment alone is not enough to overturn an agency rulemaking, but it can certainly increase pressure on the agency to provide a reasoned explanation and the opportunity for a successful challenge under judicial scrutiny.

What’s Next? The Future of the Roadless Rule:

The USDA must undertake more administrative steps before promulgating a Final Rule. At the end of August 2025, the USDA published a notice in the Federal Register to prepare an Environmental Impact Statement (EIS).^[48] An agency must prepare an EIS when it undertakes a major federal action significantly affecting the quality of the human environment in accordance with the National Environmental Policy Act.^[49] The EIS is expected in March 2026; it will address the potential environmental impacts of the rescission, alternatives to the decision, and possible mitigation measures.^[50] If the EIS identifies significant adverse impacts or practicable alternatives, the USDA may be required to modify the proposed action or provide additional justification for proceeding. After the EIS is complete, the agency will promulgate a Final Rule based on their findings. The Final Rule is expected in late 2026.^[51]

As the USDA moves towards rescinding the Roadless Rule, millions of acres of habitat, critical watersheds, carbon-rich old-growth forests, and countless recreation opportunities are at stake. The future of the Roadless Rule will test how the Trump Administration balances ecological stewardship, public participation, and administrative discretion. Whichever route the USDA pursues will represent a pivotal moment for the nation’s national forest lands and the importance of conservation as a pillar of the USDAs mandate.

Author Bio:
Drew Collins is a third-year law student at Vermont Law and Graduate School and serves as an Articles Editor for the Vermont Journal of Environmental Law. He intends to pursue a career in business law and family law following graduation. Drew holds a B.A. in Philosophy, Political Science, and Economics from Denison University. Outside of his academic and professional pursuits, he enjoys skiing, mountain biking, and spending time outdoors. These interests directly inspired the focus of this piece.

^[1] Juliet Grable, Trump Wants to Rescind the Roadless Rule. What Does That Mean?, Sierra (Jul. 27, 2025), https://www.sierraclub.org/Sierra/roadless-rule-trump-wants-rescind-what-does-that-mean.

^[2] Id; See Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 3244 (Jan. 12, 2001).

^[3] Grable, supra note 1.

^[4] See Special Areas; Roadless Area Conservation; National Forest System Lands, 90 Fed. Reg. 42179 (Aug. 29, 2025); see also Press Release, U.S. Dept. of Agric., Secretary Rollins Rescinds Roadless Rule, Eliminating Impediment to Responsible Forest Management (Jun. 23, 2025).

^[5] Grable, supra note 1.

[6] Road Woes at the Forest Service, Taxpayers for Common Sense (Mar. 29, 2002), https://www.taxpayer.net/article/road-woes-at-the-forest-service/.

^[7] Grable, supra note 1.

^[8] Id.

^[9] Id.

^[10] Regarding the Promulgation of Regulations Concerning Roadless Areas Within the National Forest System, Hearing before Subcomm. on Forests and Pub. Lands Mgmt. Comm. on Energy and Nat. Res. U.S. S., 106th Cong. (1999) (statement of Mike Dombeck, Chief of U.S. Forest Serv.).

^[11] Grable, supra note 1.

^[12] Id.

^[13] Id.

^[14] Id.

^[15] Id.

^[16] Id; see Press Release, The PEW Charitable Trusts, Statement on the Bush Administration’s Plan to Remove Protections for Idaho’s Roadless Areas (Dec. 20, 2007); see also Timeline of the Roadless Rule, Earthjustice (Aug. 27, 2025), https://earthjustice.org/feature/timeline-of-the-roadless-rule.

^[17] Meet the Forest Service, U.S. Dept. of Agric., https://www.fs.usda.gov/about-agency/meet-forest-service (last visited Nov. 23, 2025); see Mission Areas, U.S. Dept. of Agric., https://www.usda.gov/about-usda/general-information/mission-areas (last visited Nov. 23, 2025).

^[18] Roadless Areas, U.S. Dept. of Agric., https://www.fs.usda.gov/managing-land/planning/roadless (last visited Nov. 23, 2025).

[19] DellaSala et. al., Hope in an Era of Climate Change: Roadless Areas in National Forests 5 (2011).

^[20] Adel Alamo, What is the Roadless Rule and Why is it Important?, Dogwood All. (Aug. 10, 2025), https://dogwoodalliance.org/2025/08/what-is-the-roadless-rule/#:~:text=Why%20is%20the%20Roadless%20Rule,%2C%20fires%2C%20and%20strong%20storms.

^[21] Id.

^[22] What is a Carbon Sink?, ClientEarth (Dec. 22, 2020), https://www.clientearth.org/latest/news/what-is-a-carbon-sink/.

^[23] Grable, supra note 1.

^[24] Id.

^[25] Id.

^[26] Alamo, supra note 20.

[27] USDA Moves to Repeal Roadless Rule, Reigniting Fight for Public Lands, Defs. of Wildlife (Aug. 27, 2025), https://defenders.org/newsroom/usda-moves-repeal-roadless-rule-reigniting-fight-public-lands.

^[28] Id.

^[29] Grable, supra note 1.

^[30] Alamo, supra note 20.

^[31] Id.

[32] See Press Release, U.S. Dept. of Agric., Secretary Rollins Rescinds Roadless Rule, Eliminating Impediment to Responsible Forest Management (Jun. 23, 2025).

^[33] Id.

^[34] Exec. Order No. 14192, 90 Fed. Reg. 9065 (Jan. 31, 2025).

^[35] See Press Release, U.S. Dept. of Agric., Secretary Rollins Rescinds Roadless Rule, Eliminating Impediment to Responsible Forest Management (Jun. 23, 2025); see Mission Areas, U.S. Dept. of Agric., https://www.usda.gov/about-usda/general-information/mission-areas (last visited Nov. 23, 2025).

^[36] Exec. Order No. 14225, 90 Fed Reg. 11365 (Mar. 6, 2025).

^[37] Id. at § 2.

^[38] Grable, supra note 1.

^[39] Exec. Order No. 14308, 90 Fed Reg. 26175 (Jun. 18, 2025).

^[40] See Press Release, U.S. Dept. of Agric., Secretary Rollins Rescinds Roadless Rule, Eliminating Impediment to Responsible Forest Management (Jun. 23, 2025).

^[41] Id.

^[42] See id.; Special Areas; Roadless Area Conservation; National Forest System Lands, 90 Fed. Reg. 42179 (Aug. 29, 2025).

^[43] Special Areas; Roadless Area Conservation; National Forest System Lands, 90 Fed. Reg. 42179 (Aug. 29, 2025) (noting receipt of 625,931 public comments); Comment analysis finds over 99% opposition to repealing 2001 Roadless Rule, Ctr. For Western Priorities, https://westernpriorities.org/2025/09/comment-analysis-finds-over-99-opposition-to-repealing-2001-roadless-rule/ (last updated Sep. 23, 2025).

^[44] Comment analysis finds over 99% opposition to repealing 2001 Roadless Rule, Ctr. For Western Priorities, https://westernpriorities.org/2025/09/comment-analysis-finds-over-99-opposition-to-repealing-2001-roadless-rule/ (last updated Sep. 23, 2025).

^[45] Milton Brown, Public Support For Roadless Rule Is Nearly Unanimous, Sierra News Online (Oct. 3, 2025), https://sierranewsonline.com/public-support-for-roadless-rule-is-nearly-unanimous/#:~:text=The%20Roadless%20Rule%2C%20a%20federal%20rule%20that,comments%20opposed%20the%20rescission%20of%20the%20rule.

^[46] 5 U.S.C. § 553(c).

^[47] 5 U.S.C. § 706(2).

^[48] Special Areas; Roadless Area Conservation; National Forest System Lands, 90 Fed. Reg. 42179 (Aug. 29, 2025).

^[49] 42 U.S.C § 4332(c).

^[50] Special Areas; Roadless Area Conservation; National Forest System Lands, 90 Fed. Reg. 42179 (Aug. 29, 2025); 42 U.S.C § 4332(c)(i–iii).

^[51] Special Areas; Roadless Area Conservation; National Forest System Lands, 90 Fed. Reg. 42179 (Aug. 29, 2025).

Climate Negotiation and Litigation with the International Court of Justice and Inter-American Court of Human Rights’ 2025 Advisory Opinions
Written by Ilinca Johnson and Professor Beatrice Hamilton

In the past year, both the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR) released Advisory Opinions articulating norms, rights, and obligations of citizens and States in the climate crisis. The ICJ articulates a comprehensive framework of customary obligations—including the prevention of significant harm, a due diligence standard, and cooperation—while the IACtHR applies parallel principles to protect human rights in the climate emergency. Both opinions accelerate action, narrow debate, and harmonize human rights with environmental rights and duties in ways that impact both climate negotiations and litigation. While the ICJ shapes the global standard and broad climate norms, the IACtHR adds specificity to rights and obligations that could be compelling for bringing suit in the American States. The following discussion begins with the ICJ’s Advisory Opinion focusing on the potential effects of the Opinion on climate negotiations and diplomacy through cooperation of States and a due diligence standard for action. Next, an overview and discussion of the IACtHR’s Advisory Opinion reflects particularly on the accountability of governments and corporations, as well as how climate litigation and negotiations may be advanced following this Opinion.

I. The International Court of Justice Advisory Opinion on the Obligations of States in Respect of Climate Change (2025)

The ICJ’s 2025 Advisory Opinion on the Obligations of States in Respect of Climate Change^[1] (AO or Opinion) emerges as one of the most significant developments in climate diplomacy and negotiations since the Paris Agreement.

While the Opinion is non-binding, the Opinion shifts what is largely considered a treaty-centric legal regime to one that is governed in combination with, and informed by, customary international law. In its findings, the Court reaffirmed that climate law, generally considered the lex specialis, does not displace the application of international law,^[2] with an emphasis on the applicability of the duty to prevent significant environmental harm.^[3]

The Court further concluded that the principles of sustainable development, common but differentiated responsibilities and respective capabilities, equity, intergenerational equity, and the precautionary principle are applicable as guiding principles for the interpretation and application of the most directly relevant legal rules.^[4] States, therefore, remain bound by customary obligations, including the obligation to prevent significant transboundary harm,^[5] to exercise due diligence,^[6] and to cooperate^[7] regardless of their status as parties to specific climate treaties.

1. The AO in Climate Diplomacy

By anchoring State obligations in customary international law and clarifying that responsibility for climate harm may be attributed to States^[8], the Court transforms climate diplomacy, largely considered political and aspirational, to one that engages with legal questions of compliance, attribution of damage, and reparation. In doing so, the Opinion alters the strategic landscape in which States negotiate, cooperate, and set their commitments from a paradigm where soft-law and ambiguity serve to overcome differences and build consensus. The Opinion narrows the permissible range of political compromises by requiring that negotiators translate legal obligations into operational multilateral mechanisms. In doing so, the Court establishes a legal baseline capable of affecting the Nationally Determined Contributions (NDCs) of States and diplomatic compromises, the diversion from which could lead to legal challenges.

2. Customary Obligations in International Law: Due Diligence, Equity and Differentiation

By confirming the applicability of the customary principles, the Court reshapes the obligations of States in relation to climate change and limits the ability of States to negotiate the terms of climate-related treaties. The AO’s articulation of due diligence sets out how States must integrate science,^[9] assess risk,^[10] and consult in good faith^[11] when activities pose significant transboundary risks. The court articulated that the standard of due diligence must be exercised according to the best available science and State capabilities.^[12] By doing so, the Opinion positions the Intergovernmental Panel on Climate Change (IPCC) not just as an informative entity in relation to quality science, but also as a benchmark for legal evaluation,^[13] and confirms the normative power of COP decisions when decisions express agreement in substance between the parties regarding the interpretation of the relevant treaty,^[14] shifting decisions relating to the 1.5°C goal from political instruments to having legal consequences. The Court also expressed the view that COP decisions may also be relevant for identifying customary international law, insofar as they reflect State practice and if they express an opinio juris of States.^[15]

The due diligence standard in the context of climate change requires that regulatory mitigation mechanisms that are necessary for the prevention of significant harm to the climate system be established.^[16] The Court also treats adaptation as part of the due diligence standard.^[17] States, therefore, should assess climate impacts and vulnerabilities,^[18] and adopt regulatory measures,^[19] representing a shift from discretionary adaptation policies to a legal requirement. The Court also found that the duty to prevent significant harm to the environment is not confined to direct cross-border harm, but rather applies to global environmental concerns and therefore to the climate system and other parts of the environment,^[20] widening the scope of responsibility.

Further, the Opinion expands the scope of State obligations in relation to their domestic emissions to include due diligence.^[21] Importantly, beyond its climate litigation potential, States can no longer treat the regulation of private actors as a domestic matter, as it now falls under the ambit of international legal obligations., strengthening both regulation and oversight. Nonetheless, while the Court articulates States’ due diligence obligations, it does not set specific thresholds, maintaining a margin of flexibility and discretion. The Court, however, recognized that the standard of due diligence may become more demanding in the light of new scientific or technological knowledge.^[22]

The applicability of the precautionary principle as an interpretive guiding principle means that where risks are foreseeable, States must act even in the face of scientific uncertainty.^[23] This raises the bar for risk assessments, planning, regulatory measures and NDCs.

Cooperation is also recognized as a customary obligation rather than as a diplomatic and political tool. The Court highlights that the duty to cooperate is an obligation of conduct, the fulfillment of which is assessed against a standard of due diligence.^[24] COP negotiations, therefore, would need to consider finance,^[25] technology transfer,^[26] capacity building,^[27] and where appropriate develop regional adaptation measures^[28] as legal requirements, preceding flexibilities in treaty texts.

Of significance is the Court’s treatment of mitigation ambitions and, in particular, its finding that aggregate NDCs must be compatible with the 1.5°C goal,^[29] which the court considered as the parties’ agreed primary temperature goal for limiting the global average temperature increase and the scientifically based consensus under the Paris Agreement.^[30] Recognition of the 1.5°C as a threshold removes the flexibility afforded to States under Article 2(1)(a) of the Paris Agreement to hold the increase in global average temperature to well below 2°C and pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.^[31]

The grounding of climate obligations in international human rights law, linking climate action to the right to life, health, and a healthy environment,^[32] further broadens the grounds for challenging States’ climate actions. Consequently, it is likely that rights-based climate claims will increase in numbers as well as diversify. Recognition of the relevance of intergenerational equity^[33] to States’ climate obligations affords the principle a normative effect.

3. State Responsibility, Causation, and Reparation for Climate Harm

Significantly, the Court expressed the view that States may incur responsibility for internationally wrongful acts in relation to breach of obligations of climate treaties and for loss and damage arising from the adverse effects of climate change under the rules of state responsibility under customary international law,^[34] such as the failure of a State to regulate emissions of GHGs under its due diligence obligation.^[35]

The factual questions relating to attribution and apportionment can be resolved on a case-by-case basis.^[36] The Court concludes that although the causal link between the wrongful acts or omissions of a State and the harm arising from climate change is more tenuous than in the case of local sources of pollution, this does not mean that the identification of a causal link is impossible in the climate change context. Rather, it merely means that the causal link needs to be conducted through an in concreto assessment.^[37] By articulating responsibility this way, the Court shifted from the ‘but-for’ causation test to a probable causation that is assessed according to scientific information that “may provide the necessary evidence to assess the probability and seriousness of possible harm.”^[38] This also means that as due diligence becomes more stringent as new scientific knowledge emerges,^[39] the scope and nature of claims may widen.

The Court confirms that a breach of climate-related obligations triggers the law of State Responsibility, including obligations of cessation and non-repetition, as well as full reparation, including restitution, compensation, and/or satisfaction. The Court also notes that breaches of States’ obligations do not affect the continued duty of the responsible State to perform the obligation breached.^[40]

4. Effects on Diplomacy and Negotiations

The Opinion can be seen as strengthening climate action while focusing and potentially minimizing the negotiations process. Bodansky and Biniaz, however, highlight that climate negotiations have long been characterized by carefully crafted language, ambiguity as compromise, and soft law.^[41] They argue that the Opinion may have unintended consequences for global climate diplomacy by undermining its historical reliance on flexible drafting techniques to achieve consensus by enabling parties to champion ambitions while preserving national priorities.^[42] Shifting the focus from consensus building to legal contestation reduces the level of ambiguity permissible and undermines cooperation.^[43]

They further point out that the 1.5°C as the benchmark is inconsistent with Article 2(1)(a) of the Paris Agreement, which uses softer wording^[44] and that the shifting from discretionary pledges to commitments with a science-based legal benchmark (1.5°C) limit State discretion. They suggest that shifting soft-law NDC ambitions to hard obligations may make States reticent to establish more ambitious language or adopt ambitious NDCs, if such language might subsequently acquire legal enforceability.^[45] Creating a legal baseline may also prompt the insertion of reservations or non-prejudicial clauses into COP decisions, undermining the impact and legal force of the AO.^[46] Nonetheless, as Bodansky and Biniaz also suggest:

[T]he AO’s expansive interpretation of international law may more than compensate for whatever incremental progress might be lost in an international process they consider inadequate, even in the best of circumstances, for delivering sufficient climate action. After all, many of those who sought an advisory opinion likely did so, at least in part, out of frustration with diplomacy’s slow pace and consensus-driven compromises.^[47]

The authors suggest that the ICJ’s AO does not displace the role of diplomacy, but rather it reshapes it. What was once viewed as matters of voluntary cooperation, now must be understood through the lens of legal responsibility and factored into decision making. The Opinion catalyzes the judicialization of climate governance. As diplomatic efforts fall short in delivering outcomes, courts and tribunals may become sources for norm development, although this presents the risk of fragmentation in the interpretation of States’ climate obligations by regional courts and human rights bodies. Ultimately, the AO represents the emergence of a hybrid system, in which climate obligations can evolve through both adjudication and political means.

II. The Inter-American Court of Human Rights Advisory Opinion (AO-32/25)

The Inter-American Court of Human Rights (IACtHR) Advisory Opinion (AO or AO-32/25) and the ICJ’s opinion are mutually reinforcing persuasive legal authorities. Significantly, AO 32/25 may especially have impacts on climate litigation in the Americas. On January 9, 2023,^[48] the Republic of Chile and the Republic of Colombia requested an IACtHR AO regarding State climate emergency obligations individually, collectively, and from its causes to consequences as related to human rights norms.^[49] The IACtHR’s AO addressed three questions. First, Chile and Colombia asked the IACtHR to define the scope and measures American states need to take in the climate emergency to fulfill substantive human rights obligations under the American Convention.^[50] The second question asked the same regarding the procedural rights, noting especially the right to access information, participate, and access justice.^[51] The third and final question regarded the scope of obligations American states owe groups that face discrimination during the climate emergency—namely, “environmental defenders, women, Indigenous Peoples, Afro-descendant and peasant-farmer communities,” among other vulnerable peoples.^[52]

The IACtHR requested briefs, testimony, and feedback relevant to the request.^[53] The IACtHR Climate Emergency and Human Rights Opinion interprets the American Convention on Human Rights of 1969,^[54] the American Declaration of the Rights and Duties of Man of 1948,^[55] and the “Protocol of San Salvador” also known as the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988.^[56] The Court used over a hundred sources of international legal and scientific authority to come to its conclusions.^[57] The Court described the climate emergency as part of the “triple planetary crisis” of climate change, pollution, and biodiversity loss, which “‘threatens the well-being and survival of millions of people throughout the world.’”^[58] After a detailed legal and factual reasoning, the IACtHR declared twenty obligations in its ensuing Opinion.^[59]

1. Implications for Climate Litigation in the Americas

Many of the Court’s rulings and articulations on rights within the climate emergency reflect growing trends in climate litigation within the Americas and broader global context. AO-32/25 may bolster further legal actions now. The following three sections focus on AO areas (1) in corporate responsibility, where the IACtHR may not have entirely successfully articulated rights for climate litigation needs in respect to government and corporate frameworks, (2) in rights of nature, where the IACtHR may have created significant legal persuasive authority for rights of nature litigation, and (3) how AO-32/25 furthers climate negotiations internationally.

A. AO-32/25 and Climate Litigation on Government and Corporate Responsibility

The IACtHR ruled that States have general obligations to respect human rights and freedoms within the climate emergency—and with an enhanced due diligence standard^[60] that should be incorporated into American States’ domestic legal frameworks.^[61] The Court further clarifies the substantive rights that need to be protected from the extreme weather caused by climate emergency include “rights to life, personal integrity, health, private and family life, property and housing, freedom of residence and movement, water and food, work and social security, [and] culture and education.”^[62] The Court noted there are no excuses for compromising democracy,^[63] allowing preventable third-party harm, or delaying because of a lack of full scientific certainty in addressing climate change.^[64] Indeed, human rights culturally, socially, economically, and environmentally should advance, not devolve, during the climate emergency.^[65]

Corporate responsibility and state government obligations in relation to business were not entirely clear in the IACtHR Advisory Opinion. As part of the stated right to a healthy climate, the Court ruled that State legal obligations encompass preventable human rights violations by corporate and third parties.^[66] As part of this, the Court recommended aligning with the “United Nations Guiding Principles on Business [(UNGPs)] and Human Rights and the most recent developments in international and comparative law.”^[67] Notably, the UNGPs are best serving Western business models and culture; they do not necessarily easily transferable to developing parts of the world that face human rights violations by these same extractive Western businesses.^[68] Perhaps the recommendation to adhere to these guidelines should have been tailored to take inspiration from rather than assuming this would be the correct authority for businesses and peoples across the Americas.^[69]

The IACtHR did not articulate accountability by corporations and remedies for victims of corporate human rights violations as deeply as the Court could have based on climate litigation trends globally and within the Americas. 2025 climate litigation trends suggest significant focus by injured parties on government and corporate frameworks.^[70] Such litigation challenges the focus of country and company-wide economic, social, and governmental strategies more deeply than AO-32/25.^[71] Relatedly, novel “Turning-off-the-tap” climate cases focused on the investments of financial institutions in fossil fuels and climate solutions show the building scrutiny into how major powers use money to advance or slow climate-related progress for humanity.^[72] The IACtHR’s rulings may aid in legal persuasion in the Americas in continuing such litigation, but the lack of financial legal instruments in the opinion may not wholly reflect current trends in climate action.

B. AO-32/25 Favorably Encourages Rights of Nature Litigation

However, the articulation of certain rights by the IACtHR could bolster types of climate litigation in the Americas previously unseen. As the IACtHR notes, the rights of nature are increasingly being recognized in national and subnational capacities across the Americas, particularly in the Global South.^[73] In a four-to-three decision, the IACtHR recognized the rights of nature, furthering protections for the “long-term integrity and functionality of the ecosystems” through legal tools that help states address the “triple planetary crisis” before damage is irreversible.^[74]

According to the IACtHR, the interdependence of humanity with all other life within ecosystems creates a norm of jus cogens to not conduct ourselves in a way that creates irreversible harm.^[75] A jus cogens norm is a “peremptory principle of international law that is nonderogable, non-negotiable, and universally binding on all States, regardless of [a States’] consent.”^[76] The IACtHR found that there is a right to a healthy environment.^[77] Then, the Court recognized a healthy climate is a right necessary for the wellbeing of present and future generations and Nature; the wellbeing of all three are inseparably linked together and fundamental to advancing human rights.^[78]

Rights of nature litigation is underway in the Americas. Just on September 30, 2025, several organizations filed a lawsuit on behalf of Californian whales arguing for their rights to prevent fossil fuel project development in the Gulf of California, the “Aquarium of the World” under Mexico’s General Wildlife Law.^[79] This is building on other litigation happening in Mexico for rights of nature preceding the IACtHR opinion, including a Mayan human rights defender case brought on behalf of Melipona bees on the Yucatan Peninsula.^[80] The IACtHR’s articulated authority on rights of nature may be used as a persuasive authority to grant legal rights to animals.

Global South climate litigation grew overall in the past year. Enforcement and compensatory actions for domestic climate damages brought by Global South governments totaled 56% of all cases brought in 2024.^[81] Both the United States and Brazil are top climate litigators globally.^[82] Four polluter pays litigations in Brazil were brought against individuals responsible for climate damages based upon carbon dioxide emissions caused by their rainforest destruction.^[83] Studies show that the socio-legal capacity of country institutions enables climate litigation to be brought there, which aligns with the IACtHR’s findings on the importance of democratic and human rights as they interact with the climate emergency.^[84] Going forward, many of the rights articulate in AO-32/25 could enable further litigation for human rights in the climate emergency. The Sabin Center notes that articulating climate and human rights obligations could “reshape interpretations of climate obligations under international law and spark new litigation.”^[85]

C. Shaping Climate Diplomacy and Negotiations

The IACtHR opinion complements the ICJ opinion in narrowing climate debates—and prioritizing key issues at threat of being undervalued or overlooked. These include the role of science, corporate responsibility, and protection of human rights defenders often targeted for their work. In certain American States like the United States of America, AO-32/25 makes clear to political leaders that hemming and hawing on climate change is an affront to human rights and threatens the wellbeing and freedoms of their people.^[86] Opinions like these bolster the legal strength of advocates of human rights and citizens within the climate emergency and add pressure to those who need to actively protect citizens against the adverse impacts of the climate emergency.

Author Bio:
Ilinca Johnson is a 3L student at Vermont Law and Graduate School. She is a senior staff editor and fall symposium editor on the Vermont Law Review. She has a B.S. in Marine Sciences and a B.A. in Human Rights from the University of Connecticut. She has a particular focus on international environmental law and green finance. Ilinca has clerked with the Coconino County Superior Court in Flagstaff, AZ and worked on Maine shellfish restoration permitting as a research associate with the National Sea Grant Law Center.

^[1] Obligations of States in Respect of Climate Change (Request for Advisory Opinion), Advisory Opinion, 2025 I.C.J. 187 (July 23).

^[2] Id. ¶¶ 162–71.

^[3] Id. ¶¶ 132-39.

^[4] Id. ¶¶ 161, 172.

^[5] Id. ¶¶ 132–39.

^[6] Id. ¶ 280.

^[7] Id. ¶¶ 140–142, 218, 301–02.

^[8] Id. ¶¶ 429, 437.

^[9] Id. ¶¶ 283, 293.

^[10] Id. ¶¶ 297, 298.

^[11] Id. ¶ 299.

^[12] Id. ¶¶ 283, 290, 292, 345–49.

^[13]“In this regard, reports by the IPCC constitute comprehensive and authoritative restatements of the best available science about climate change at the time of their publication.” Id. ¶ 284.; see also id. ¶¶ 74, 77–83.

^[14] Id. ¶ 184.

^[15] Id. ¶ 288.

^[16] Id. ¶ 282.

^[17] Id. ¶ 282.

^[18] Id. ¶ 257.

^[19] Id. ¶¶ 281-83.

^[20] Id. ¶ 134.

^[21] Id. ¶ 252.

^[22] Id. ¶ 284.

^[23] Id. ¶¶ 180, 293.

^[24] Id. ¶ 218.

^[25] Id. ¶¶ 212, 264–66.

^[26] Id. ¶¶ 212–13.

^[27] Id. ¶¶ 266–67.

^[28] Id. ¶ 210.

^[29] Id. ¶ 245.

^[30] Id. ¶¶ 222–24.

^[31] Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104, Art. 2(1)(a).

^[32] I.C.J., supra note 1, ¶¶ 377–79, 391–93.

^[33] Id. ¶¶ 155–57.

^[34] Id. ¶ 420.

^[35] Id. ¶ 444.

^[36] Id. ¶ 432.

^[37] Id. ¶ 438.

^[38] Id. ¶ 283.

^[39] Id. ¶ 284.

^[40] Id. ¶ 445.

^[41] Daniel Bodansky and Susan Biniaz, The ICJ’s Advisory Opinion on Climate Change: Does It Throw a Wrench into the Negotiator’s Toolbox of Diplomatic Problem-Solving Techniques? EJIL: Talk! (Sept. 23, 2025), https://www.ejiltalk.org/the-icjs-advisory-opinion-on-climate-change-does-it-throw-a-wrench-into-the-negotiators-toolbox-of-diplomatic-problem-solving-techniques/.

^[42] Id.

^[43] Id.

^[44] Id.

^[45] Id.

^[46] Id.

^[47] Id.

^[48] Maria Antonia Tigre, Maxim Bönnemann and Korey Silverman-Roati, A Blueprint for Rights-Based Climate Action: The Inter-American Court of Human Rights’ Advisory Opinion on the Climate Emergency, Climate L: Sabin Ctr blog (July 8, 2025), https://blogs.law.columbia.edu/climatechange/2025/07/08/a-blueprint-for-rights-based-climate-action-the-inter-american-court-of-human-rights-advisory-opinion-on-the-climate-emergency/.

^[49] Climate Emergency and Human Rights (Interpretation and scope of Articles 1(1), 2, 4(1), 5(1), 8, 11(2), 13, 17(1), 19, 21, 22, 23, 25 and 26 of the American Convention on Human Rights; 1, 2, 3, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador,” and I, II, IV, V, VI, VII, VIII, XI, XII, XIII, XIV, XVI, XVIII, XX, XXIII, and XXVII, of the American Declaration of the Rights and Duties of Man), Advisory Opinion AO-32/25, Inter-Am. Ct. H.R. (ser. A) No. 32, ¶¶ 2, 28 (May 29, 2025) (“Climate Emergency and Human Rights Advisory Opinion”) (“Our two countries face the ongoing challenge of addressing the consequences of the climate emergency, including the increasing occurrence of droughts, floods, landslides and fires. These phenomena underscore the urgent need for a response grounded in the principles of equity, justice, cooperation and sustainability, with a human rights-based framework”).

^[50] Id. ¶ 28.

^[51] Id.

^[52] Id.

^[53] Id. ¶ 7–12.

^[54] American Convention on Human Rights Adopted at the Inter-American Specialized Conference on Human Rights, (Nov. 22, 1969), 1144 U.N.T.S., No. 17955.

^[55] American Declaration on the Rights and Duties of Man, E/CN 4/122 (May 2, 1948), Ninth International Conference of American States, Organization of American States.

^[56] “Protocol of San Salvador,” Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: Protocol of San Salvador (1988).

^[57] Climate Emergency and Human Rights Advisory Opinion, supra note 49, ¶ 38.

^[58] Id. ¶ 42.

^[59] Id. at VII. Opinion.

^[60] Id. at VII. Opinion (3) (unanimous); see id. ¶¶ 219, 231–37.

^[61] Id. at VII. Opinion (5) (unanimous); see id. ¶¶ 238–43.

^[62] Id. at VII. Opinion (12); see also id. ¶¶ 384–91,400–57.

^[63] Id. ¶ 214 (citing to Principle 10 of the Rio Declaration encouraging concerned citizens to participate).

^[64] Id. ¶¶ 226–30; see also id. ¶ 231.

^[65] Id. at VII. Opinion (4).; see id. ¶ 368 (citing to Article 1 of the Protocol of San Salvador and Articles 2 and 26 of the American Convention); see also id. ¶ 243 (“Obtaining the necessary resources to respond to the climate emerges should not compromise the right of individuals and peoples. . .”).

^[66] Id. at VII. Opinion (10); see also id. ¶¶323–51 (adopt regulations to mitigate greenhouse gas emissions “based on human rights” including for corporate actors); id. ¶¶ 352–57 (“adopting mitigation supervision and monitoring measures”); id. ¶¶ 358–63 (determine “climate-related impact on projects and activities”).

^[67] Id.

^[68] Business and Human Rights: Adopting the “Smart Mix,” OHCHR (Dec. 6, 2024), https://www.ohchr.org/en/stories/2024/12/business-and-human-rights-adopting-smart-mix#:~:text=Global%20value%20chains,at%20US%20apparel%20retailer%20Cotopaxi.

^[69] Particularly when those States receiving the brunt end of multinational corporate (MNC) treatment may not be the same State where those MNCs are domiciled. Timothy J. Killeen, Global Markets and Their Effects on Resource Exploitation in the Pan Amazon, Mongabay (May 21, 2024), https://news.mongabay.com/2024/05/global-markets-and-their-effects-on-resource-exploitation-in-the-pan-amazon/.

^[70] Joana Setzer & Catherine Higham, Global Trends in Climate Litigation: 2025 Snapshot, Sabin Ctr. for Climate Change L. 24 (2025).

^[71] Id.

^[72] Id.

^[73] Climate Emergency and Human Rights Advisory Opinion, supra note 49, ¶ 286.

^[74] Id. at VII. Opinion (7), ¶¶ 279–86.

^[75] Id. at VII. Opinion (8); see id. ¶¶ 287–94 (“[T]he obligation to preserve our common ecosystem, as a precondition to the enjoyment of other rights that have already been identified as fundamental, are of peremptory importance and are, therefore, of a jus cogens nature”).

^[76] Climate Emergency as a Human Right: Decoding the IACtHR’s Groundbreaking Advisory Opinion, EARTH.ORG (July 17, 2025), https://earth.org/understanding-the-iacthrs-advisory-opinion-on-the-climate-emergency-and-human-rights-and-its-implications/.

^[77] Id. at VII. Opinion (11) (unanimous).; see id. ¶¶ 364–76.

^[78] Id. at VII. Opinion (10); see id. ¶¶ 298–316.

^[79] Gulf of California Whales Sue for Their Right to a Livable Habitat, Mex. News Daily (Oct. 13, 2025), https://mexiconewsdaily.com/news/gulf-of-california-whales-legal-right/.

^[80] Id.

^[81] Setzer & Highman, supra note 70, at 3, 13.

^[82] Id. at 3.

^[83] Id. at 6.

^[84] Id. at 15.; Climate Emergency and Human Rights Advisory Opinion, supra note 49, at VII. Opinion (1); see also id. ¶ 205 (providing the Court’s definition of “resilience”); id. at ¶ 596 (differentiated protection is “necessary to guarantee real equality in the enjoyment of rights in the context of the climate emergency”).

^[85] Setzer & Highman, supra note 70, at 3.

^[86] Upasan Kahtri, What a Historic Inter-American Court Ruling Means for Global Climate Justice, CIEL (Nov. 6, 2025), https://www.ciel.org/unpacking-the-inter-american-court-ao/.

Ending Suburban Sprawl As A Climate Solution: New Paths Forward For Sustainable Development[1]
Written by Joseph Lepak and Professor Dayna Smith

The current housing crisis represents both an opportunity and a danger for the environmental movement.[2] Housing availability and affordability are major drivers of the crisis so far.[3] Analysts predict some relief in the housing market in 2026, but there are still questions of availability, particularly in the rental space.[4] This year marks a time of positive indicators, but housing continues to be a hot-button, bipartisan issue. It is also inextricably linked to the environment as zoning determines where we live. The push for low-density spaced-out homes encourages a higher cost and emission lifestyle through car-dependency, one of the driving causes of climate change, while also decreasing availability driving up housing prices.

With the need for new homes, some would opt to promote additional development, taking the opportunity to deregulate environmental protection. Others, in reaction, opt to entrench the status quo of preserving environmental at the cost of new development. Neither approach truly balances environmental protection or human needs, creating a gridlock that maintains an unsustainable economic system. Instead, the path forward lies in sustainable zoning reform. This blog will first explore how environmentally harmful sprawl is by examining the impacts of suburbia. Next, this blog will examine current zoning reforms and how well they balance development and environmental interests. Finally, it will recommend a path forward: states should take initiative to avoid sprawl through substantive statewide policies rather than traditional zoning. Specifically, states should designate “developed areas” to focus development while implementing stricter restrictions in “non-development areas.”

Density and Environmentalism

To understand why density is beneficial to the environment, it is easier to start with why sprawl is environmentally harmful. The major problems with suburban sprawl are the inefficient use of resources and land.[5] Nearly 70% of Americans currently live in single-family homes with an average area per person of ~784 square feet.[6] This is an increase from the 1970s when 41% of Americans lived in homes with ~556 square feet.[7] However, since then, the United States’s population has grown by nearly 130 million, meaning more land and resources must be expended to house the growing population.[8] This has often resulted in destruction or alteration of natural spaces in favor of development as more land has to be used per person.[9]

Looking specifically at the resources involved, single-family homes require more materials because of the growing space-per-person metrics. These materials must be extracted and transported to building sites. Which increases the environmental impact per person if more resources are needed and sprawl increases travel time.[10] Furthermore, modern home construction heavily relies on fossil fuel products in the home, further increasing emissions.[11] To be clear, denser housing has increased emission costs in the upfront construction of larger buildings, but uses less material per person which results in fewer overall emissions per person.[12]

Additionally, larger individual homes need more energy for heating and cooling.[13] The energy needed scales with the amount of open space that has to be warmed or cooled.[14] The best way to reduce this kind of energy costs is to build homes with less open spaces (smaller and less rooms) or take advantage of natural heating and cooling.[15] Denser buildings are able to provide smaller spaces with more efficient land use. Additionally, denser buildings have a further advantage that shared utilities can be upgraded with energy efficient appliances in a cost-effective manner (for example, hot water heaters), unlike single-family homes.[16]

Moving to suburbia’s broader impact: land use planning. Specifically, suburban development relies on sprawl and car-dependency. Car-dependence forces car travel to be the main means of transportation, accelerating emissions as individuals must drive everywhere. Strikingly, a suburbanite’s carbon footprint can be 2-4 times higher than an urbanite, depending on commuting distance and access to public transit.[17] Car dependency also increases resource use by requiring the buildout of extensive road infrastructure and car-dependent zones, “stroads,” which are commercial areas only accessible via car.[18] This car dependent infrastructure is expensive and encourages an unsustainable lifestyle that requires continuous consumption of land and fossil fuels.[19] Society subconsciously recognizes car dependency as inefficient as seem with commuter rail networks: trains built to reduce commuter pressure despite continuous publication how one more lane will solve traffic and not widespread train adoption.[20]

Dense development aims to solve these problems by concentrating populations to reduce the resources needed per person for building and transportation.[21] The independence from cars by planning around transit means less resources have to be poured into infrastructure.[22] For example, if the same amount of people living on ten miles of suburban roads could be concentrated onto one mile, nine miles of road, piping, and cables could be saved.[23] The number of people makes transit more cost-effective, and, if mixed-use is allowed, a person may not need a car depending on how close they live, shop, and work to transit. The reduced car and material usage directly reduces emissions produced.[24] For municipalities needing to address housing shortages, allowing density creates more homes (less space per person) while costing less (only needing to build one road versus ten), a cost-efficient bargain.[25]

Recent State Zoning Reforms

Given the ongoing housing crisis, many state and local governments are examining and reforming their zoning and development laws. These reforms are ongoing, but as we enter 2026, they have become important models of the path towards sustainable housing development.

In general, three categories of zoning reform stand out: (1) land use deregulation, (2) environmental deregulation, and (3) targeted change. An example, land use deregulation is single-family home bans, removing limits on how land can be used, but also includes restrictions on invasive site plan reviews and aesthetic codes. Environmental deregulation reduces environmental protection or quality of review for cheaper expediency in building. Finally, targeted changes are about achieving a specific goal rather than general liberalization, like allowing development in specific areas. Many reforms involve a mix of all three categories.

In 2018 Minneapolis was the first city in the United States to ban single-family-only zoning.[26] As part of its 2040 plan, Minneapolis upzoned all previously single-family zones (70% of the city) to include duplexes and triplexes (land use deregulation).[27] Additionally, Minneapolis allowed the construction of three-six story buildings around transit stops, eliminated off-street parking minimums, created set-asides for new apartment buildings, and increased housing subsidies (targeted changes).[28] However, backlash and lawsuits left Minneapolis’s 2040 plan’s future uncertain, with opponents claiming the upzoning would result in environmental harm and disruption of neighborhoods.[29] This reflects the need for education about density, as the density ban would not have reduced sewage usage, since the same number of people would live in the region. Instead, density would make it easier for Minneapolis to service sewage needs.

Despite the backlash, other states have used Minneapolis as an example. Oregon passed similar legislation to Minneapolis, allowing duplexes, triplexes, and fourplexes in 2019, and eliminating minimum parking requirements in 2023.[30] Oregon has gone further through a wave of statewide zoning, where Oregon has overridden local building and zoning codes that prohibit these kinds of development and allowing lot subdivision.[31] Similarly, in 2021, California eliminated single-family zoning by allowing duplexes and accessory dwelling units of up to four units on select single-family lots; however, limits applicability mean only ~40,000 out of ~7.5 million single-family home lots qualify, calling into question this impact.[32] In a similar manner, many single-family home “bans,” have not lived to up Minneapolis’s breadth or Oregon’s continued commitment. Maine for example “banned single-family zoning” by allowing accessory dwelling units.[33] Single-family home bans are not really bans as single-family homes can still be built, rather it is reclassifying single-family zoning as low-density zoning. Other jurisdictions are expanding this “low-density development” zoning.[34]

Similarly, states have been encouraging transit-oriented development, a form of targeted change zoning reform. Transit-oriented development is an urban planning policy that concentrates density around transit centers (subways, commuter rail, and buses, etc.) and allows mixed residential and commercial development.[35] Rather than banning single family zoning, transit-oriented development reclassifies zones around transit centers, allowing denser or mixed-use development by right or special permit. A good example of transit-oriented development is Massachusetts’s MBTA Communities Act.[36] The law requires municipalities to zone the half mile around Massachusetts Bay Transit Authority commuter rail, subway, ferry, and bus stations (defined as larger facilities) as a new zoning district.[37] This newly zoned district will allow, by-right, multi-family housing with a minimum density of 15 units per acre, subject to environmental regulations under Massachusetts law, with no age restrictions, and be suitable for children.[38] Like with the single-family home bans, Massachusetts’s Act was challenged in court but was upheld.[39] Massachusetts is now ensuring all municipalities comply with the Act’s requirements.

Lastly, some states have applied a mix of all three types of reform. For example, Vermont recently passed widespread housing and environmental reform legislation: Act 181 and the HOME Act. In 1970 Vermont passed Act 250, which required new development to be subject to extensive criteria focused on preventing environmental impact and mitigating social need.[40] Act 250’s restrictions are praised as being responsible for Vermont not being overtaken by sprawl, but criticized as creating its current housing crisis which affects Vermont’s long-term economic health.[41] Vermont responded to this critiques through a combination of land use deregulation and environmental deregulation. The HOME Act, passed in 2023, legalized duplexes and other low-density multi-family units statewide and exempted multi-family housing projects within designated developed areas from Act 250 review.[42] Vermont limited the environmental impact by deregulating land use to areas already affected by human development.

Act 181, in 2024, built off the HOME Act’s momentum by reforming Act 250 directly. Rather than triggering Act 250’s criteria based on project size, Act 181 established three tiers of review based on project location.[43] Currently, projects located in designated downtowns and villages will operate under newer lighter scrutiny rules compared to pre-Act 181. In contrast, new development, especially roads, in undeveloped areas, will have higher scrutiny rules compared to pre-Act 181.[44] Act 181’s tiers balance development by encouraging it in affected areas, but discourage in pristine habitat through regulatory costs, rather than impose a general regulatory cost on all development.

Vermont’s reforms demonstrate a path for states to use a combination of zoning reforms to encourage sustainable development. Vermont balances the need for more housing[45] with environmental protection by strengthening barriers in undeveloped areas, contrasting with other states’ reforms. The transit-oriented development MBTA Communities Act only changed land uses around transit centers and still requires the same level of environmental review.[46] Similarly, single-family home bans do not reduce environmental protection, and, overall, denser development is more environmentally friendly.

However, simply because people can build does not mean they will, leading to tensions between environmental sustainability and social justice. California, for example, has responded by reducing the oversight of CEQA, mostly for projects supporting denser development, in conjunction with its single-family home bans. This has prompted concerns that the environment is being sacrificed for decreased regulatory costs, as California is allowing duplexes in new sprawl, not true density.[47] Vermont’s Act 181 addresses these concerns by reducing regulatory costs for development in already developed areas, while increasing them in undeveloped areas. If regulation discourages development, then developers will be less inclined to build in undisturbed land and instead be incentivized to build on already developed and disturbed land through reduced regulation.[48] Vermont’s policies refocuses environmental law to be about protecting the natural world and ensuring quality of life for people in developed areas where natural habitat is gone, rather than being a regulatory cost.

The Path Forward

Suburban sprawl has had a significant impact on the environment. The destruction of undeveloped habitat, resource-intensive building practices, and high car dependence are hallmarks of sprawl. In contrast, denser development minimizes environmental destruction. While denser housing still has impacts, those impacts are concentrated, maintaining larger swaths of undeveloped lands. Failing to develop, though, is not an option, as many Americans struggle with housing costs and availability. Many state and local governments have acted, but the question remains whether developers will follow the model established by Minneapolis, Oregon, and Massachusetts. For example, Oregon has seen mixed result with a real estate agency publishing materials noting how a previously upzoned community saw 20 non-single-family homes built compared to 200 single-family homes since 1980.[49] Yet, recent data shows how “missing middle” housing has become the most built form of housing in Portland.[50] But concerns that only land use deregulation would not lead to development is has led California to slash environmental regulations, and could inspire other states.

Vermont offers a model for a better path forward. Vermont’s Act 181 shifted the regulatory burden from being universal to geographically targeted, with greater restrictions on undeveloped areas and reduced restrictions on already developed areas. The key to this reform is the shifting regulatory costs from being equal between developed and undeveloped land, to asymmetric to balance development and environmental interests. Following Vermont’s model, states looking to balance development and the environment should tailor regulations between developed and undeveloped areas. Undeveloped area regulations should focus on limiting impacts and disruption to natural habitat. Developed area regulation should focus on limiting environmental impact to humans, like air and noise pollution, and considering sustainability, like social services and transit access. States will have to enforce these regulations through statewide schemes, designating developed-undeveloped regionally and ensuring adequate notice for regulations and oversight (Vermont for example has established an Act 250 Commission and specialist environmental courts). These policies will be controversial and must be implemented with broad consensus to avoid resentment between those in development areas and in non-development areas.[51] But as the housing market continues to shift and housing continues to be a key issue in 2026, it is critical to start effective reforms now. Through education and outreach, reforms can encourage environmentally friendly development in a way that can both encourage social justice and sustainability.

Author Bio:
Joseph Lepak is a dual J.D. and MERL student at Vermont Law and Graduate School with plans to graduate in May of 2026. Joseph serves as a Symposium Editor for Vermont Journal of Environmental Law Vol. 27.

[1] Photo by Kamil Ślusarczyk on Unsplash.

[2] Chris Gunster, Why Is The Housing Market Down And Will It Rebound?, Forbes (Aug. 1, 2025), https://www.forbes.com/sites/chrisgunster/2025/08/01/why-is-the-housing-market-down-and-will-it-rebound/.

[3] Id.

[4] Mark Huffman, Here are the predictions for the housing market in 2026, ConsumerAffairs (Dec. 2, 2025), https://www.consumeraffairs.com/news/here-are-the-predictions-for-the-housing-market-in-2026-120225.html.

[5] Megumi Tamura & Joseph W. Kane, It’s not just cities—suburbs and exurbs need to adopt and implement climate plans too, Brookings (Apr. 26, 2023), https://www.brookings.edu/articles/its-not-just-cities-suburbs-and-exurbs-need-to-adopt-and-implement-climate-plans-too/.

[6] Residential Buildings Factsheet, Ctr. for Sustainable Sys. Univ. Mich. (Nov. 26, 2025), https://css.umich.edu/publications/factsheets/built-environment/residential-buildings-factsheet.

[7] Id.

[8] Historical Population Change Data (1910-2020), U.S. Census Bureau (Apr. 26, 2021), https://www.census.gov/data/tables/time-series/dec/popchange-data-text.html.

[9] Qiang Ren et al., Impacts of global urban expansion on natural habitats undermine the 2050 vision for biodiversity, 190 Res., Conservation and Recycling 106834 (2023).

[10] Chris Magwood et. al., The Hidden Climate Impact of Residential Construction, RMI (Nov. 26, 2025), https://rmi.org/insight/hidden-climate-impact-of-residential-construction/.

[11] New Residential Construction Carbon Emissions, U.S. Department of Energy (Nov. 26, 2025), https://docs.nrel.gov/docs/fy23osti/83049.pdf.

[12] Alessio Miatto et al., Correlation Between Building Size and Material Intensity in Residential Buildings, 197 Res., Conservation and Recycling 107093 (2021).

[13] Use of energy explained Energy use in homes, U.S. Energy Information Administration (Dec. 18, 2023), https://www.eia.gov/energyexplained/use-of-energy/homes.php.

[14] See André Stephan & Robert H. Crawford, The Relationship Between House Size and Life Cycle Energy Demand: Implications for Energy Efficiency Regulations for Buildings, 116 Energy 1158 (2016).

[15] Residential Buildings Factsheet, Ctr. for Sustainable Sys. Univ. Mich. (Nov. 26, 2025), https://css.umich.edu/publications/factsheets/built-environment/residential-buildings-factsheet.

[16] Id.

[17] Stephen Hudson, This map shows how low-density sprawl makes climate change worse, Greater Greater Washington (May 2, 2022), https://ggwash.org/view/84816/this-map-shows-how-low-density-sprawl-makes-climate-change-worse.

[18] James R. Hagerty, ‘Stroads’ Aren’t Streets. They Aren’t Roads. And They Don’t Work, Wall Street Journal (May 15, 2024), https://www.wsj.com/business/logistics/stroads-street-road-problems-fixes-9a04863c?st=g0a5pn9xt6wycy3&reflink=desktopwebshare_permalink.

[19] Bejamin Schneider, CityLab University: Induced Demand, Bloomberg (Sept. 6, 2018), https://www.bloomberg.com/news/articles/2018-09-06/traffic-jam-blame-induced-demand.

[20] Oliver Wyman, Forget Ride-Hailing. Rail Is A City’s Most Cost-Effective, Least-Polluting Transport, Forbes (Sept. 24, 2019), https://www.forbes.com/sites/oliverwyman/2019/09/24/forget-ride-hailing-rail-is-a-citys-most-cost-effective-least-polluting-transport/.

[21] Christi Nakajima, Five Key Components to Include in State Transit-Oriented Development Laws, ACEEE (Oct. 31, 2025), https://www.aceee.org/blog-post/2025/10/five-key-components-include-state-transit-oriented-development-laws.

[22] Gilles Duranton & Diego Puga, The Economics of Density, Nat. Bureau Econ. Rsch. (2020).

[23] Charles Marohn, How Much Does a Mile of Road Actually Cost?, Strong Towns (Feb. 27, 2025), https://www.strongtowns.org/journal/2020-1-27-how-much-does-a-mile-of-road-actually-cost.

[24] The Most Detailed Map of Auto Emissions in America – The New York Times.

[25] Drew DeSilver, A look at the state of affordable housing in the U.S., Pew Research Center (Oct. 25, 2024), https://www.pewresearch.org/short-reads/2024/10/25/a-look-at-the-state-of-affordable-housing-in-the-us/.

[26] Richard D. Kahlenberg, How Minneapolis Ended Single-Family Zoning, The Century Foundation (Oct. 24, 2019), https://tcf.org/content/report/minneapolis-ended-single-family-zoning/.

[27] Id.

[28] Id.

[29] Nick Longworth, Minneapolis 2040 plan won’t be reviewed by Minnesota Supreme Court, Fox 9 (August 21, 2024), https://www.fox9.com/news/minneapolis-2040-plan-minnesota-supreme-court.

[30] Eliminating Single-Family Zoning and Parking Minimums in Oregon, Bipartisan Policy Center (Sept. 26, 2023), https://bipartisanpolicy.org/article/eliminating-single-family-zoning-and-parking-minimums-in-oregon/.

[31] Michael Andersen, Oregon Decides It Was a Mistake to Let Cities Ban Homes, Sightline Institute (July 28, 2025), https://www.sightline.org/2025/07/28/oregon-decides-it-was-a-mistake-to-let-cities-ban-homes/.

[32] Manuela Tobias, California’s housing crisis: How much difference will a new zoning law make?, Cal Matters, https://calmatters.org/housing/2021/08/california-housing-crisis-zoning-bill/.

[33] Jacqueline Weaver, Communities mostly in compliance with new Maine housing law as deadline comes and goes, News Center Maine, https://www.newscentermaine.com/article/news/local/housing/maine-housing-law-deadline/97-154218e1-33de-4524-81c3-24280735c508.

[34] David Gutman, WA House passes bill banning single-family zoning, The Seattle Times (Mar. 7, 2023), https://www.seattletimes.com/seattle-news/politics/wa-house-passes-bill-banning-single-family-zoning/; Andrea Swalec, Alexandria votes to end single-family-only zoning, NBC WASHINGTON (Nov. 29, 2023), https://www.nbcwashington.com/news/local/alexandria-votes-to-end-single-family-only-zoning/3482030/.

[35] Trevor Mathia, Transit Oriented Developments, ALLIANCE FOR INNOVATION AND INFRASTRUCTURE (Nov. 19, 2025), https://www.aii.org/transit-oriented-developments/.

[36] Mass. Gen. Laws ch. 40a, § 3A (2025).

[37] Id.

[38] Id.

[39] Judge turns back unfunded mandate challenge to MBTA housing law | WBUR News

[40] 10 VSA Chapter 151

[41] Chris Lisinski, Judge turns back unfunded mandate challenge to MBTA housing law, wbur (June 9, 2025), https://www.wbur.org/news/2025/06/09/mbta-communities-act-unfunded-mandate-suit-tossed.

[42] Lola Duffort, Phil Scott signs ‘HOME’ bill, legalizing duplexes statewide and tweaking Act 250, vtdigger (June 5, 2023), https://vtdigger.org/2023/06/05/phil-scott-signs-home-bill-legalizing-duplexes-statewide-and-tweaking-act-250/.

[43] 2024 Legislative Revisions Affecting Community Planning and Revitalization, Department of Housing and Community Development (July 9, 2024), https://outside.vermont.gov/agency/ACCD/ACCD_Web_Docs/CD/CPR/Resources-and-Rules/CPR-DHCD-LegislativeSummary_2024.pdf?_gl=1*1jmchww*_ga*MzA0NTU5NTg2LjE3NDkwNDQxNjc.*_ga_V9WQH77KLW*czE3NjM5MjE3NzUkbzIyJGcxJHQxNzYzOTIyMTE1JGo0MCRsMCRoMA.

[44] Carly Berlin, With veto override, Act 250 reform bill becomes law, Vermont Public (June 17, 2024), https://www.vermontpublic.org/local-news/2024-06-17/with-veto-override-act-250-reform-bill-becomes-law.

[45] Leslie Black-Plumeau, Why Vermont needs 30,000-40,000 more homes, Vermont Housing Finance Agency (Apr. 3, 2023), https://vhfa.org/news/blog/why-vermont-needs-30000-40000-more-homes.

[46] Mass. Gen. Laws ch. 40a, § 3A (2025).

[47] Caroline Guibert Chase et al., Effective Immediately: CEQA Reform Legislation, NATIONAL LAW REVIEW (July 2, 2025), https://natlawreview.com/article/effective-immediately-ceqa-reform-legislation; Anne Cottrell & Liz Alessio, California environmental law nearly killed a childcare facility in our community. Enough is enough, SAN FRANCISCO CHRONICLE (May 27, 2025), https://www.sfchronicle.com/opinion/openforum/article/california-ceqa-reform-20342916.php; Camille von Kaenel, California is about to roll back a landmark environmental law, POLITCO (June 30, 2025), https://www.politico.com/news/2025/06/30/california-landmark-environmental-ceqa-housing-00434678.

[48] Paul Emrath, Government Regulation in the Price of a New Home: 2021, NATIONAL ASSOCIATION OF HOME BUILDERS (2021), https://www.nahb.org/-/media/NAHB/news-and-economics/docs/housing-economics-plus/special-studies/2021/special-study-government-regulation-in-the-price-of-a-new-home-may-2021.pdf.

[49] The End of Portland Single Family Zoning, Stephen Fitzmaurice Team (Nov. 11, 2025), https://realestateagentpdx.com/the-end-of-portland-single-family-zoning/15783.

[50] Portland sees significant production in middle housing resulting from recently adopted zoning changes, Portland (Feb. 4, 2025), https://www.portland.gov/bps/planning/rip2/news/2025/2/4/portland-sees-significant-production-middle-housing-resulting.

[51] Scott Beyer, Portland’s Urban Growth Boundary: A Driver of Suburban Sprawl, Forbes (Mar. 29, 2017), https://www.forbes.com/sites/scottbeyer/2017/03/29/portlands-urban-growth-boundary-a-driver-of-suburban-sprawl/.