2022 TOP 10 BLOG

Up Next for Infrastructure: All Eyes on Federal Agencies

VJEL Staff Editor: Sandra Santiago

In response to the climate crisis, and its impacts on the United States, Congress passed the Infrastructure Investment and Jobs Act (IIJA), H.R. 3684, on November 05, 2021. President Biden signed the bill into law on November 15, 2021. As we watch the implementation of the IIJA in 2022, it is critical to focus on how federal agencies execute the responsibilities assigned to them in the new law. We should also watch how different states spend – or don’t spend – the federal funds allocated to them. Below, we discuss the equitable distribution of federal funds using the Weatherization Assistance Program, as recently reauthorized by the IIJA, as an example and identify measures available to help shape state spending of federal funds to ensure equitable distribution.

As passed, the IIJA provides a historic investment in clean transportation, water, and power infrastructure. In contrast to most prior policy efforts to promote clean energy, the IIJA includes a focus on investment in underserved communities, evident in provisions like the reauthorized funding for the Weatherization Assistance Program (WAP). The WAP is a federal program run by the Department of Energy (DOE) for low-income households. The IIJA includes the highest amount of funding for the WAP program since its creation in 1977, allocating $3,500,000,000 for distribution by the Secretary of Energy for fiscal year 2022.

Household energy costs and burdens

The average annual household energy-cost in the United States ranges widely, from $930 to $4,700 per household. Disparities in energy-cost are particularly stark on Indian reservations compared to surrounding areas. In Minnesota, for instance, the annual average is $1,780, while the White Earth Reservation average is $4,100. This disparity is common across the country.

High energy-costs lead to high “energy burden”: the percentage of a household’s income that is spent on energy. Low-income households spend approximately 10% more of their annual income on energy-cost than other households. High energy burdens are typically associated with deteriorated housing stock, which are disproportionately occupied by low-income households. Outsized energy burdens also affect a household’s ability to secure other necessities. A 2015 survey showed that in 2014, 33% of people did not buy food and 27.5% had to forego filling prescriptions in order to pay their energy bills. Typically, a household qualifies for weatherization if their household is at or below 200% of the Federal Poverty Level Income Guidelines. WAPs help reduce energy burden through cost-effective building by making shell improvements such as insulation and air sealing, HVAC systems, and lighting.

WAP funding

For over forty years, the WAP has worked with the State Energy Program (SEP) to weatherize homes in all 50 states, Native American Tribes, and U.S. territories. The SEP establishes plans and strategies to achieve state-led energy goals and priorities. States play a prominent role in administering WAP programs, tailored to each state’s resources.

Congress initially authorized WAP under Title IV of the Energy Conservation and Production Act (ECPA). Section 414 of ECPA requires that WAP funding be distributed “among low-income persons.” The ECPA also factors in the “number of dwelling units to be weatherized, the climate conditions in the state [or territory], the type of weatherization work to be done, and other factors as the DOE may determine necessary.” The Code of Federal Regulations directs the DOE to allocate funding for each state from the sums appropriated. Continued program funding is subject to DOE policy changes.

In 1995 the DOE changed the WAP formula allocation to ensure a more equitable distribution directed by the State Energy Efficiency Programs Improvement Act of 1990. Prior to 1995, the DOE essentially provided equal funding to all 50 states (with the exception of Alaska, which received more due to high heating costs). In constrast, the current formula considers the share of the U.S. low-income population within that area and the energy needed to heat or cool a building when the temperature is below or above 65 degrees Fahrenheit.

The only WAP restriction that Congress sets out in the IIJA is that “50 percent is used to make grants to States and Indian Tribes,” while the other “50 percent is used to award grants to eligible entities.” The DOE maintains oversight of implementation through the requirement that States and Indian Tribes “submit to the Secretary … a plan” to receive annual funding. The plan “shall describe the criteria and methods that will be used by the State or Indian Tribe to award grants to eligible entities… and describe the proposed funding distributions and recipients of grants to be provided by the State or Indian Tribe.”

Flawed and inequitable distribution of WAP funds

Despite what looks like a lot of funding, WAP funds have not reached most eligible families. In 2009, DOE found that 95% of the eligible homes were not weatherized. From 2010 to 2020, Minnesota received $98.4 million and weatherized 10,657 homes; and Arizona received $19.7 million and has weatherized 2,280 homes. There are clear are discrepancies in the amount of weatherization done, and the apparent efficiency of weatherization dollars spent, across jurisdictions.

Historically, funds for tribes are distributed at the state level creating barriers for tribes and inconsistency in funding. Maine, for example, dictates that tribe members “shall receive benefits equivalent to the assistance provided to other low-income persons within Maine.” However, the five tribes within Maine receive 3% of Grantee’s DOE grant award. As of 2010, 500 tribal members’ homes in Minnesota qualified for weatherization.Yet, Minnesota only weatherizes 20 homes a year. The Seminole Tribe in Florida indicated that weatherization funds was a priority in a 2011 Housing Needs Report. To help reduce energy cost among reservations WAP must change how funding is allocated.

The IIJA takes an important step in asserting Congress’ intentions for infrastructure spending and addressing climate change. Given President Biden’s coincident focus on climate, energy, and equity, we would expect to see programs like the WAP improve in establishing equitable implementation and distribution of funds. As a funding authorization, it primarily provides power to executive agencies to set regulations and conditions on spending. Heavy reliance on executive implementation creates risk when it comes to ensuring the IIJA achieves its outcomes. Federal agencies reflect the agenda of the current presidential administration, which can result in shifting policies as administrations change and set different priorities. This should be a red flag for federally funded agency programs that have already largely failed to adequately achieve the intended results, like the WAP. For instance, Native Americans living on reservations still have the highest energy burden under the old WAP. Many states have failed to address these burdens through equitable distribution of WAP funding. On the other hand, giving agency rulemaking power provides opportunities for formal community engagement that may be more accessible than trying to directly influence congresspeople during the legislative process. The current WAP allocation formula can be changed through the rulemaking process.

Looking Ahead

As the WAP demonstrates, the efficacy of well-intentioned, congressionally authorized federal spending programs hinges on strong, consistent, and equitable agency implementation. Given that so many of the aims of the IIJA will depend on implementation by federal agencies, we will need to look for transparency tools to ensure that the new infrastructure law achieves its goals in 2022.

President Biden’s recent complementary efforts, such as the Justice40 Initiative, are helpful in this regard. The Justice40 initiative sets out “a plan to deliver 40% of the overall benefits of climate investments to disadvantaged communities and inform equitable research, development, and deployment.” The Justice40 initiative establishes an Economic Justice Screening Tool to achieve the 40% distribution. This screening tool provides information to agencies about disadvantaged communities and helps inform their work. By having more information, agencies can better direct aid to those who need it the most and have been underserved in the past.

Agency monitoring systems are an important tool for tracking the implementation of the IIJA, in particular. The WAP monitoring system requires state grantees to submit a comprehensive monitoring plan annually to continue receiving funding. A well-implemented monitoring system can highlight issues in the system, leading to quicker adjustments.

We should also see a rise in pilot programs. Justice40 identifies 21 priority programs within nine agencies for immediate action. The Justice40 pilot program initiatives help agencies with a more equitable implementation of IIJA by directing agencies to develop engagement plans such as nation-to-nation consultations with Tribes. Agencies are also directed to identify and avoid barriers that affect disadvantaged communities. Most importantly, Justice40 directs agencies to establish a minimum threshold in program guidelines and to describe legislative changes required to advance the initiative.

President Biden and his party had to push hard to get the IIJA through Congress, getting over the finish line with concessions and a very close vote. Now, all eyes turn to what the President will do with what he got; ultimately it will be up to his Administration to get results. In 2022, we’ll watch to see how the executive branch delivers on the promises of 2021.

2022 TOP 10 BLOG

Running Dry: An Emptying Hourglass on Biden’s Climate Goals

VJEL Staff Editor: Adam Washburne

Faculty Member: Kevin Jones

Introduction

Four individual petitions for certiorari (cert) were consolidated and granted writ of cert on Friday, Oct. 29, 2021. Each of the four petitions were considered by the Supreme Court for several suspense-filled months leading up to the Court’s late October 2021 conference. These petitions challenge the EPA’s authority to regulate greenhouse gas (GHG) emissions, especially CO2, from electricity-generating coal-fired power plants. Each petition was filed in response to D.C.’s Circuit Court decision in Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021). In the American Lung Association case the circuit court vacated the EPA’s Affordable Clean Energy (ACE) rule. In doing so, the court created a blank canvas for the Biden-era EPA to draft a new emissions reduction rule. As of November 29, 2021 Michael Regan, the new EPA administrator, has yet to release any such new rule. Regardless, arguments are expected to begin in Summer, 2022.

The extent of the EPA’s authority and responsibility to regulate GHGs has been challenged since the agency’s inception in 1970. But after the Supreme Court’s decision in Massachusetts v. EPA (2007) the agency has had judicial precedent from the highest Court supporting the agency’s authority and mandating the agency’s responsibilities in regulating GHG emissions (including but not limited to CO2). In American Lung Association, the D.C. Circuit Court upheld the Massachusetts precedent. However, this case now finds itself in front of a more conservative-leaning Supreme Court. Therefore, as we head into this litigation, the looming question for the future landscape of environmental law is how the current Supreme Court will rule, regarding the authority and responsibilities of the EPA in regulating emissions from stationary sources (especially existing coal-fired electric generating power plants) going forward.

American Lung Association v. EPA vacated the Trump-era ACE rule and appeared to give the Biden-era EPA a blank canvas to draft a new emissions reduction rule

Under conservative presidential administrations the EPA has traditionally sought to shrink the scope of its authority and mandate. Conservative EPA administrators have traditionally asserted what the agency cannot do. In October 2020, conservative EPA administrator Andrew Wheeler took the same position in American Lung Association v. EPA. Wheeler’s EPA defended the self-imposed limitations within the Trump-era Affordable Clean Energy (ACE) rule. This 2019 rule effectively repealed the Obama-era EPA’s 2015 Clean Power Plan (CPP). The EPA’s 2019 ACE rule asserted that the agency’s ability to regulate CO2 emissions from electricity-generating coal-fired power plants was limited to strictly on-site emissions reduction solutions. The conservative EPA deemed that these “fence-line” reduction solutions or heat-rate improvements (technological upgrades/enhancements to older coal-fired power plants) were the best system of emissions reduction (BSER).

Wheeler’s EPA argued that the language of 42 U.S.C.S § 7411 (“Section 111”), within the Clean Air Act did not grant the agency authority to regulate GHG emissions through off-site or generation shifting emissions reduction solutions. Off-site solutions were the hallmark of the 2015 Obama-era CPP. Through both on-site and off-site solutions the CPP aimed to shift the production of electricity toward the energy sources with the lowest emissions and away from sources with the highest emissions (chiefly coal-fired power plants). By enforcing generation shifting the 2015 CPP sought to prioritize cleaner energy sources and deprioritize dirty energy sources.

The D.C. Circuit Court held in favor or vacating the 2019 ACE rule. The circuit court ruled that the underlying EPA interpretation of the statutory language of Section 111 did not include any on-site specific caveats to the EPA’s ability to determine the BSER. The circuit court asserted that Section 111 demanded that the EPA determine the BSER without such fence-line limitations. The court clarified that the statute’s BSER test included: “the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements.” The circuit court reasoned that this language required the EPA to consider more than merely on-site solutions suggested in the ACE rule.

With no new rule in place, the EPA again faces litigation. As a result, the petitions for cert that have been granted seem to be targeted at the language from the CPP and the general authority of the EPA as delegated from Congress. This is an unprecedented Supreme Court case dynamic where the Court has no Biden-era EPA rule or regulation to interpret.

The Supreme Court will consider four questions presented from a combination of conservative states and coal companies

There are four separate petitions that the Supreme Court consolidated into one case. Each petition, accepted by the Court, telegraphs some of the substance that we can expect to see within the arguments of the petitioners’ brief. This Supreme Court case will be referred to as West Virginia v. EPA (West Virginia first to file petition for cert after the American Lung Association decision). Let’s look at each of the four petitions chronologically, as they were filed with the Court.

I. West Virginia

This petition begins by subtly attacking the statutory authority granted to the EPA, referring to empowering-statute Section 111(d) as an “ancillary provision” of the Clean Air Act. This petition challenges whether Congress acted “constitutionally” when it gave the agency authority to issue “significant rules.” This petition challenges the EPA’s authority to “unilaterally decarbonize[e] virtually any sector of the economy.” This petition characterizes the EPA’s regulatory authority as too broad and far-reaching. This petition telegraphs West Virginia’s anticipated argument by using language of “constitutional” authority.

Petitioners appear to be preparing for a non-delegation doctrine argument. This kind of argument would challenge Congress’s ability to delegate its legislative powers to the EPA as an executive agency. This is a very large scale and difficult argument to mount. If petitioners lodge this argument they can expect push-back from the Supreme Court, since the non-delegation doctrine was expressly rejected by the Supreme Court in Whitman v. American Trucking Ass’n (2001) (challenging the EPA’s authority under the Clean Air Act). However, this does not mean that petitioners cannot present this argument with the hope of overturning this part of Whitman. It goes without saying that current Court makeup is more conservative than the Whitman Court. Ultimately, a non-delegation doctrine argument is a “can-of-worms” which would create far more new issues for the Court than it would potentially solve (beyond just the EPA).

II. North American Coal Corp.

The second petition challenges the extent of the agency’s power to determine the BSER. This petition challenges off-site solutions such as generation shifting by characterizing them broadly as “industry-wide systems such as cap-and-trade.” With this language the petitioners overarching challenge begins to take shape: agency overreach by the EPA. Unfortunately for petitioners, in attacking cap-and-trade schemes they are attacking previously successful programs that the EPA has implemented. Historically, the EPA has used cap-and-trade schemes to control GHGs with great success (see: cap and trade successfully reducing SO2 emissions to remediate acid rain).

Additionally, the off-site solutions that this petition targets seem to be from the Obama-era Clean Power Plan. The problem for petitioners here is that President Biden has publicly stated that his administration will not return to the Clean Power Plan. This portion of the petitioners’ argument appears to be “shadow boxing” with issues that are no longer or not yet relevant (especially not while the EPA has yet to draft a new emissions reduction plan).

III. North Dakota

The third petition challenges whether the EPA can “promulgate regulations for existing stationary sources that require states to apply binding nationwide ‘performance standards’ at a generation-sector-wide level.” This petition focuses on states’ authority in the determination and implementation of the EPA’s BSER. This argument challenges the EPA’s rule-making process, specifically as it relates to the role of the states in the process. Petitioners will likely argue that the EPA is operating unilaterally and outside of the scope of Section 111’s “cooperative-federalism” mandate. But the Clean Air Act clearly carves out space for states and private coal companies to pursue the specific means by which they implement the BSER set by the EPA. After seeing this petition, the EPA should be able to sidestep this argument altogether by simply incorporating language into their new rule, incorporating state input and assistance in determining and implementing the agency’s updated BSER.

The weakest part of this petition’s argument is almost too obvious: the EPA has not yet drafted a new rule to replace ACE (as of November 27, 2021). Until the EPA releases a rule, there is little-to-nothing in this question presented for the Court to decide. The Court could reemphasize the importance of cooperative federalism and provide guidance on what the EPA could not include in their new rule. But this kind of opinion would surely be equivalent to an advisory opinion, which we know the Court has had a long history of refusing to provide.

IV. Westmoreland Mining Holdings, LLC

The fourth and final petition in this consolidated case was granted only in part. The accepted portion uses the language of the major questions doctrine to challenge the EPA’s ability to regulate matters of “vast political and economic significance as whether and how to restructure the nation’s energy system.” The major question doctrine challenge was dealt with and settled already by the D.C. Circuit Court. The D.C. circuit ruled that regulating GHG emissions from power plants throughout the country falls “squarely within the EPA’s wheelhouse.” The court found that the EPA’s authority was supported both by Congress (in Section 111) and by the Court (in Mass. V. EPA).

Perhaps the most interesting thing about this particular petition is the rejected portion. The Supreme Court refused to grant cert for the question of whether 42 U.S.C.S. § 7412 (“Section 112”)—which already regulates emissions of coal-fired power plants for mercury gas emissions—would displace the EPA’s authority to regulate CO2 emissions from those same coal-fired plants. This partially omitted question may be positive sign. If the Court is not willing to consider the narrow issue of limiting the EPA’s Section 111 authority in light of current Section 112 regulations then it may take a more historically supported approach to interpreting the EPA’s Section 111 authority as challenged by some of the petitioners’ more cumbersome arguments.

Conclusion – A case without a rule to go on, the future of environmental protections

The most interesting thing about this upcoming case is that the Court granted cert at a time when the EPA does not have a stationary source emissions reduction rule in place. After the ACE rule was vacated by the D.C. Circuit Court’s decision, the Court is left with no rule to analyze. The Court could issue an opinion against a possible future rule. But this would be tantamount to building a “straw man” argument. This would be a dangerous and short-sighted precedent, even for this conservative Court.

The underlying theme of these consolidated petitions is agency overreach. Petitioners appear to be preparing to argue that off-site emissions reductions have too far reaching an effect on the overall energy industry and the economy for the EPA to be able to regulate beyond the fence-line. The language in these petitions should signal the EPA to prepare for a major questions doctrine and a non-delegation doctrine challenge to their authority. The roadmap to defend against these challenges is laid out by the court in American Lung Association’s case. In the past, the Court has upheld judicial precedent nullifying arguments based on these tenuous doctrines. But no matter how the EPA defends against these challenges, the big picture for the agency is its core mandate to protect our environment. The EPA should remind the Court that potential short-term economic reactions should be weighed properly against the imminent long-term health repercussions facing our planet and ourselves, without effective EPA regulations.

2022 TOP 10 BLOG

Beyond the Fence-line: SCOTUS Grants Petitions Challenging EPA’s Authority to Regulate Coal-fired Emissions

VJEL Staff Editor: Kevin McElfresh

Faculty Member: Patrick Parenteau

Introduction

American Lung Association v. EPA vacated the Trump-era ACE rule and appeared to give the Biden-era EPA a blank canvas to draft a new emissions reduction rule

The Supreme Court will consider four questions presented from a combination of conservative states and coal companies

I. West Virginia

II. North American Coal Corp.

III. North Dakota

IV. Westmoreland Mining Holdings, LLC

Conclusion – A case without a rule to go on, the future of environmental protections

2022 TOP 10 BLOG

The United Nations Food Systems Summit: the Milestone, the Fallout, and Looking Ahead

VJEL Staff Editor: Mackenzie Bindas

Faculty Member: Laurie Beyranevand

While the food system has not often been prioritized by policymakers in discussions related to climate change, we are beginning to see signs of change. Experts have acknowledged that even if emissions from fossil fuels were eliminated completely, global food system emissions could prevent the world from meeting the Paris Agreement’s goal to hold global warming below 1.5 or 2 C. Currently, agriculture accounts for half of all global methane emissions with a significant percentage coming from livestock production. Food waste — an unnecessary contributor to emissions – contributes 8-10% of global anthropogenic emissions. The food system is also severely impacted by climate change – its adverse effects directly impact food production, distribution, food quality and safety, and consumption creating pressure on land and water resources. Compounded by the impacts of the COVID-19 pandemic, the global food system is in crisis.

Until recently, international platforms rarely included the food systems on their agendas. If they did, the focus was on isolated aspects of food and agricultural production. Following the 2015 Paris Agreement, there was a distinct focus on stabilizing the food system, addressing food security and hunger, and mitigating the harmful impacts of climate change. International organizations and policymakers across the globe have begun to recognize the importance of developing policies to both mitigate and adapt to climate change to ensure a sustainable food supply. This is clearly demonstrated by the fact that the United Nations held the first-ever UN Food Systems Summit (UNFSS) in September 2021 as part of a “Decade of Action” to achieve the UN’s Sustainable Development Goals (SDGs). The Summit focused specifically on the food system given its fragility, tremendous impact on human life, and nexus to so many of the SDGs. In the lead up to the UNFSS, national governments engaged in integrated food systems dialogues across agencies, departments, and stakeholder groups to identify key challenges and create national policies for sustainable food systems. The UNFSS was severely criticized for failing to provide stakeholders with an inclusive and democratic platform, however, one major outcome of the Summit is the raised profile of the food system in policy conversations related to climate and the global urgency for comprehensive policymaking. UN Secretary-General António Guterres said it best, “UNFSS leads the way to food systems that can drive the global recover…For people. For the planet. And for prosperity.”

UN Secretary-General António Guterres said it best, “UNFSS leads the way to food systems that can drive the global recovery in three different ways. For people. For the planet. And for prosperity.” UNFSS was announced in 2019 by Guterres stating the threat to food systems is increasing and it is time to address these issues. The Summit was promoted as the “people’s” Summit, meaning everyone can participate, like civil society, small businesses, and farmers. The Summit was meant to share the progress towards achieving the SDG’s by showing the connection of food systems to global challenges.

At the UNFSS, countries announced their commitments to improve their food system and gain progress in achieving SDGs. Domestically, the United States’ committed $10 billion to “systems level change” to address the needs of those most vulnerable. Additionally, US leaders updated the Global Food Security Strategy, which presents an integrated whole-of-government strategy and agency-specific implementation plan, and launched the Global Coalition on Sustainable Productivity Growth for Food Security and Resource Conservation which requires members to commit to sustainable growth using a “holistic approach that considers impacts and tradeoffs among multiple objectives, including as appropriate, objectives related to food security, nutrition, food affordability, farmer and farm worker incomes, climate change adaptation and mitigation, and resource conservation.” While overarching commitments and strategies are not the same as laws and policies, they pave the way for coordinated, strategic, and holistic planning for the food system that may ultimately be formalized into enforceable laws and regulations.

Other countries have made similar commitments which, if implemented, could result in significant climate impacts. The Summit is part of a larger global trend that signals a fundamental shift in governance toward strategic consideration of food system challenges with responses informed by impacted stakeholders and targeted at holistic consideration of the impacts and tradeoffs associated with solutions which can ultimately serve as pathways to sustainable food systems.

2022 TOP 10 BLOG

Biden’s 30×30 Executive Order: Challenges and Prospects for Natural Resource Conservation

VJEL Staff Editor: Daniel Lee

Faculty Member: Hillary Hoffman

On January 27, 2021, President Biden announced an ambitious but somewhat ill-defined plan to conserve one-third of the nation’s land and waters by 2030. The conservation plan is found in section 216 of the “Executive Order on Tackling the Climate Crisis at Home and Abroad.” As the world begins to experience the dire consequences of climate change and the denigration of natural resources, conservation of natural lands and waters will help remove carbon from the atmosphere and preserve biodiversity for future generations. The plan’s primary goal has received overwhelming support from various legislators, local leaders, and conservation groups, as well as the expected backlash from conservative state governors and the oil, gas, and mining industries. The “30×30,” as this plan has become known, is undoubtedly an essential element of the Biden-Harris Administration’s “whole-of-government” approach to combatting climate change. However, it almost raises more legal questions than it answers so far. Even though the United States may have a greater percentage of conserved land than most nations through national parks, state parks, national monuments, wilderness areas, and municipal parks, they are not enough to get us to the 30% mark targeted by this plan. In short, it will require a more significant conservation effort than current U.S. laws require, and even allow, in some cases.

The primary challenge becomes finding additional land and waters to include. That requires defining what constitutes “conserved” land and waters. Currently, all that the January 27 Executive Order accomplishes is tasking Executive Agencies with gathering information for which lands and waters could be applicable and collecting input from stakeholders on how to achieve the 30×30 goal. A preliminary follow-up report issued by the Departments of Commerce, Interior, Agriculture, and the President’s Council on Environmental Quality, Conserving and Restoring America the Beautiful, further muddles the definition of conservation. The preliminary report suggests that voluntary efforts to conserve land and water, both public and private, would still allow farming, hunting, fishing, and other recreational activities with the potential to degrade natural resources on these conserved lands and waters. One might deduce from this context that conservation means merely preventing oil and gas drilling, coal-fired power plants, and shopping malls from being constructed on designated lands or in designated waters. However, the limited rollout of the plan so far suggests that lands burdened by fairly extractive—and high carbon-emitting activities like livestock grazing on public lands—will be included. The wide range of permissive activities on conserved lands and in conserved waters may incentivize more stakeholders to participate voluntarily. Still, such egregious allowances seem to miss the mark of proper conservation.

Another unexplained but obvious legal challenge to implementing 30×30 is the series of existing laws that allow (and sometimes incentivize) carbon-heavy extractive activities, in addition to laws and policies that allow (or even encourage) green development such as wind farms. On public lands, various statutes allow private entities to extract minerals like oil and gas, uranium, coal, and rare-earth minerals, and for some minerals, legally safeguard those acquired rights. These extraction activities would immediately render those lands ineligible for inclusion in the 30×30 plan unless the Secretaries of Interior or Agriculture withdrew them in advance of the designation. These statutes protect timber harvesting and mineral development of national forest lands and public domain lands are protected. In some cases, even highly protected public lands — which would likely be included as “conserved” — may contain private inholdings of mineral-rich lands. Such lands would have to be carefully surveyed, withdrawn, and monitored to ensure that they remain conserved within the plan’s definition.

There are also conflicts of authority that remain obvious and open questions after reviewing the preliminary 30×30 plan. There is no one-size-fits-all approach to categorizing tribal lands. Many tribes depend on revenue from oil and gas leasing and other mineral development to fund critical education programs, health care, and provide social services for their members. While the assumption might be that tribal lands will be a natural fit for inclusion in 30×30, this is not a safe assumption to make across all tribal lands. The Conservation Plan also calls for limits on fishing and endorses the construction of off-shore wind farms. The United States must reconcile these goals with tribal treaty rights and other treaty obligations it has made regarding access to and use of off-shore waters.

Looking Forward

In the coming months, it will be critical for the Biden-Harris Administration to explain the role of the various federal agencies in reaching the 30×30 goals and any incentives that may be used to encourage states and private landowners to contribute. There are some less voluntary, existing mechanisms for the federal government to increase its land base, like eminent domain, if necessary to meet the goals of 30×30. There will be a financial and even political cost of going that route, however. The plan would also benefit from greater clarity on quantifying the lands and waters it seeks to conserve. Will the conserved areas be fluid or incremental? Meaning that once a land or water is declared to be conserved, will it stay that way? Or is there potential to swap out conserved areas for others should it be necessary for an already conserved area to come out of conservation? Further, the plan should iterate how currently conserved lands and waters factor into the measurement to guide how these lands can and cannot be used or developed.

The 30×30 Plan has great potential in the fight against climate change and conserving of biodiversity in the United States. It will be vital for the Biden-Harris Administration to complete the initial lands and waters survey quickly and move forward with concrete steps to achieve these laudable goals. This is primarily because of the legal reforms, bureaucracy, and politics that may be necessary to reach the 30% mark. Not to mention the political climate leading up to the 2022 congressional midterm elections, when the President may lose some support in one or both houses of Congress. The clock is ticking.

2022 TOP 10 BLOG

Ecocide: Can The International Criminal Court Hold Polluters Accountable For Mass Environmental Destruction?

VJEL Staff Editor: Rajeev Venkat

Faculty Member: Emily Spiegel

Anthropocentric climate change and pollution are the most pressing issues of our time. As global temperatures continue to rise, ecosystems across the globe face existential environmental disasters. The Stop Ecocide Foundation and an Independent Expert Panel comprised of twelve lawyers from around the world have proposed a bold solution to confront the urgent crisis. The proposal is to make “ecocide”—mass environmental destruction—an international crime enforceable by the International Criminal Court (ICC). The Rome Statute, the founding treaty of the ICC, currently enumerates genocide, war crimes, crimes against humanity, and crimes of aggression as violations of international criminal law. The Stop Ecocide Foundation seeks to amend the Rome statute to incorporate ecocide among these international crimes.

The proposed language defines ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” The statute’s definition would represent a “historic shift” in the ICC’s jurisdiction from exclusively human-centered crimes to include crimes against other species and the environment itself. In pushing for this shift, the Stop Ecocide Foundation revitalizes efforts dating back over fifty years to make ecocide an internationally recognized crime.

History of Ecocide

The concept of ecocide emerged during the Vietnam War. The term was first coined in 1970 by American biologist Arthur W. Galston to condemn the widespread harm caused by the United States’ use of “Agent Orange” in the Vietnam War. Agent Orange was a powerful herbicide used by the U.S. military to destroy forest cover and crops. The U.S. military sprayed 20 million gallons of Agent Orange and various herbicides over South Vietnam between 1962 and 1972. The herbicides destroyed five million acres of forest—nearly the size of Massachusetts—and also destroyed 500 thousand acres of crops. Hundreds of tree species and between twenty and ninety million cubic meters of timber were destroyed. As mass defoliation decimated forest cover, heavy rains caused soil depletion and erosion. This led to the growth of invasive grass species that further hampered forest regeneration. Despite reforestation efforts throughout the decades, Vietnam has yet to reach pre-war levels of forest cover.

In 1972, Swedish Prime Minister Olof Palme referred to the Vietnam War as “ecocide” in his opening speech at the United Nations Stockholm Conference on the Human Environment. Professor Richard Falk at Princeton University would be the first to propose the crime of ecocide formally one year later. In Professor Falk’s proposal, he stated that “the pursuit of ecological quality requires international guidelines and procedures for cooperation and enforcement . . .” However, efforts to bring about such international standards stagnated. In 1985, a UN sub-commission rejected the addition of ecocide to the Genocide Convention. In 1991, the International Law Commission rejected the addition of ecocide as an independent crime. Throughout the 1990s, some countries—including Vietnam, Russia, and many former Soviet states—implemented domestic ecocide laws. However, a body capable of enforcing international law has yet to recognize ecocide as a crime.

The International Criminal Court

The passage of the Rome statute established the ICC in 2002. Today, 123 countries are parties to the Rome statute. The ICC has the power to launch investigations into alleged violations of its recognized international crimes. The ICC can even investigate nonmember countries with the authorization of the UN Security Council. Once the ICC opens an investigation, the prosecutor can collect evidence, issue summons, and issue arrest warrants. Unlike the International Court of Justice, which only sees disputes between states, the ICC has the power to prosecute individuals. However, the ICC’s jurisdiction is limited to only when national legal systems are “unwilling or unable” to try a case.

To expand the ICC’s jurisdiction to include ecocide, ICC member states must amend the Rome Statute. The amendment process is a considerable hurdle. First, one of the 123 member states will have to submit a definition to the United Nations’ Secretary-General. Second, the proposal must be voted on by a majority of ICC members. Third, once a final text is agreed upon, two-thirds of member states must vote in favor. Finally, once the vote is ratified, states may enforce its terms a year later. Ecocide will become a criminal offense in member states if this process is fulfilled.

Can the ICC Effectively Mitigate Environmental Disaster by Prosecuting Ecocide?

The Stop Ecocide Foundation’s proposal seems to have garnered mixed reactions. On the one hand, the inclusion of ecocide into the Rome statute offers a venue for private individuals to be held accountable for mass environmental damage. ICC prosecutors will have the power to open investigations and collect evidence of such wrongdoings. The ICC can try individuals such as CEOs, corporate executives, and members of states who are responsible for environmental crimes. The threat of being investigated for ecocide may serve as a practical deterrence to such high-profile individuals. Furthermore, including ecocide as an international crime akin to genocide would represent a powerful cultural shift that affirms a global commitment to protecting our common ecosystems.

However, some question the efficacy of the Stop Ecocide Foundation’s proposal. The world’s leading polluters (the United States, Russia, China, and India) are not court members and remain outside its jurisdiction. These states may choose not to cooperate with ICC enforcement of ecocide. Moreover, the ICC’s inability to try corporations may prove particularly ineffective in combatting the modern driver of environmental disaster—climate change—because environmental harms caused by greenhouse gas emissions are delayed and far-reaching. This makes causation difficult to legally prove, and this difficulty is significantly magnified when attempting to attribute causation to an individual’s decisions instead of the larger corporate entity. Just 100 companies have been the source of more than 70% of greenhouse gas emissions since 1988. The ICC’s jurisdiction may be too limited to meet the urgency of climate catastrophe. Furthermore, some also criticize the ICC as an institution that persecutes and demonizes the global south. Out of the forty individuals the ICC has indicted, all are from African countries. Many reasonably fear that this pattern would continue in the enforcement of ecocide.

Looking Forward

For now, the ICC has yet to take up the ecocide proposal. Increasing public pressure and upcoming environmental litigation in 2022, however, may motivate the ICC to consider the proposal. For example, youth activists in Portugal have filed suit in the European Court of Human Rights against 33 EU states for insufficient government action on climate change. Additionally, just weeks before COP26, Austrian environmental group AllRise filed suit in the ICC against Brazilian President Jair Bolsonaro for destruction of the Amazon. AllRise will have to argue that Bolsonaro’s environmental destruction constitutes a crime against humanity until the Rome Statute recognizes ecocide.

The Stop Ecocide Foundation has a long and complex process ahead to incorporate ecocide into the Rome statute. Hopefully, this proposal will invigorate public and legal interest to create an international accountability mechanism for those causing mass environmental destruction. Ecocide as an international crime may be the bold solution necessary to deter acts that impend the looming global environmental crises.

2022 TOP 10 BLOG

Environmental and Economic Equity in the Electric Vehicle Revolution

VJEL Staff Editor: Apryl Larkin

Faculty Member: Jenny Carter

For too long environmental justice has collided with energy production and consumption with noxious and devastating results. Energy in the transportation sector is no different. Low-income, indigenous populations, and communities of color live closest to and bear a disproportionate impact from polluting petroleum refineries, freight and bus centers, and high traffic corridors. The impacts of climate change will also hit these communities the hardest, which is caused, in large part, by the transportation sector.

Added all together, a swift transition to electric vehicles and renewable energy can help remedy these inequities while moving the United States closer to its greenhouse gas reduction goals. This must include electrification of multiple modes of transportation, including passenger cars, buses, and light and heavy-duty trucks. This article looks at one part of the transportation equation: the need for equity in making electric vehicles (EVs) more affordable and charging infrastructure more accessible in densely populated urban areas and for lower-income populations.

For the past three years, 2% of vehicles sold in the U.S. were electric. Looking ahead, President Biden’s goals, as identified in his Clean Cars and Trucks Executive Order, the Build Back Better Framework, and the American Jobs Plan, seek to change the equation. The President’s aim for 2030 is for half of all new cars sold to be electric and 500,000 public charging stations installed nationwide. These plans seek to move the ball on environmental justice by dedicating funding for various projects, including cleaning up the transportation sector in disadvantaged communities.

Climate and Public Health Consequences Worst for Disadvantaged and Vulnerable Communities

Switching from conventional gasoline vehicles to electric vehicles can help communities of color and other vulnerable populations by being an important part of global climate change solutions and by directly reducing dangerous air pollution in their communities.

Climate Impacts

In the US, climate change is increasing extreme and deadly heat, floods, droughts, and wildfires. The Congressionally mandated Fourth National Climate Assessment confirms what common sense should tell us: Risks are often highest for those that are already vulnerable, including low-income communities, some communities of color, children, and the elderly. Climate change threatens to exacerbate existing social and economic inequalities that result in higher exposure and sensitivity to extreme weather and climate-related events and other changes.

Global movement to electric vehicles will cause a significant reduction in greenhouse gas emissions and help vulnerable populations. In terms of the U.S.’s contribution, the numbers tell the story. According to the Environmental Protection Agency and the US Department of Energy, the transportation sector is the highest emitter of greenhouse gas emissions at 29% of all emissions; with passenger cars, trucks, SUVs, and minivans contributing more than half of that total. After considering the greenhouse gases emitted when generating the vehicle’s electricity, the average electric vehicle using a nationwide energy mix is responsible for roughly two-thirds fewer emissions than a conventional one.

Air Pollution Impacts

In addition to climate benefits, electric vehicles reduce other air pollutants that cause more immediate and direct health threats to low-income and communities of color. Vehicles are responsible for smog, particulate pollution, volatile organic compounds (VOCs), carbon monoxide, and air toxics such as benzene, formaldehyde, and diesel particulate matter. These pollutants cause or can aggravate serious health problems such as lung damage, asthma, cardiovascular disease, cancer, birth defects and even premature death. In a study of the Northeast and Mid-Atlantic, the Union of Concerned Scientists found communities of color breathe 66% more air pollution from cars, trucks, and buses than white residents.

Affordability – Existing Tax Credits Discriminate Against Low-Income Individuals

For lower-income populations who drive to take part in the EV revolution and to access EV air quality benefits, purchasing an EV must cost no more than a conventional vehicle and there must be ready access to chargers.

Tax Credits vs. Point-of-Sale Rebates Car and charger purchasing incentives will play a critical role in accelerating EV adoption. Current federal incentives have had a limited impact on increasing EV adoption because they are only available to those wealthy enough to take advantage of them and only apply to new vehicles, not used. As often happens with the federal tax code, the tax break has gone to those who need it least and has been withheld from those who need it most.

The Internal Revenue Code provides up to a $1,000 “non-refundable” tax credit for purchasing and installing a residential charger and up to $7,500 “non-refundable” tax credit for purchasing a new EV based on battery size and whether the manufacturer still qualifies for the credit. But, to take full advantage of either credit, you must: (1) have sufficient tax liability, and (2) be financially secure enough to wait until the following year when you file your taxes to get your refund. For example, if you only owe $1,500 in federal taxes the year you bought a new car, your tax credit will only be $1,500, and you cannot carry over the difference to reduce your taxes the following tax year. And, if you purchase a vehicle early in the calendar year, you may have to wait an entire year to receive the credit.

States like New York, Massachusetts, California and Vermont have already adopted EV point of sale rebates. Changing the federal law to allow these rebates for EVs and chargers regardless of tax liability would increase equity in access and eliminate the tax credit waiting game.

New Cars vs. Used

Changing the current law to a point-of-sale rebate will make a big difference for those lucky enough to be in the new car market but still will not help the vast majority of car buyers who purchase used vehicles. The sale of used cars outpaces new car sales by almost 3:1. To be truly equitable and ensure the country transitions as quickly as possible, Congress must adopt a point-of-sale rebate program for used cars as well.

States like California and Vermont are leading the way with programs like California’s Clean Cars 4 All Scrap and Replace Program and Vermont’s MileageSmart. These programs assist lower-income people to trade in old, high-polluting vehicles for low or zero-emission emitting vehicles. California provides up to $9,500 to purchase a new or used EV, and Vermont provides up to $5,000 for used EVs.

Charging Infrastructure Build-Out Must be Convenient and Widely Available

The other side of the electric vehicle coin is ensuring widely available charging infrastructure. It is imperative that charging is easily and equitably accessible so that those living in apartment buildings and rental units can charge just as easily as those with a garage and/or with more financial means to install a charger. There are currently a meager 52,000 public charging stations around 120,000 charging ports in the United States, and they are concentrated primarily on the East and West coasts. President Biden’s American Jobs Plan, announced in March 2021, set the benchmark for 500,000 public electric vehicle chargers by 2030.

Momentum is building. Last month, Congress passed, and the President signed, the $1.2 trillion Infrastructure Investment and Jobs Act. It contains only half of Biden’s $15 billion request for charging infrastructure and electric vehicle public transportation but prioritizes low-and moderate-income neighborhoods to receive grant funding and earmarks on additional $2 billion for disadvantaged communities.

Other positive developments at the state and local levels include cities like Atlanta which requires charging infrastructure as part of the permitting process for new housing and commercial developments; and some utilities, like those in Vermont, are providing discounted or free chargers as part of their GHG emission reduction and demand side management targets, and reduced electric rates for EV charging during off-peak electric demand.

What’s on the Horizon

The first thing to watch will be to see if the Senate can muster the votes needed to pass the Build Back Better Bill, also known as the Budget Reconciliation Bill. It passed the House last month and would increase the maximum incentive for a new EV to $12,500 and turn it into a refundable tax credit that is structured similar to a point-of-sale rebate. It also contains a much smaller, but nonetheless welcome, point-of-sale refund of up to $2,500 for used vehicles. To ensure the incentives are going to those who need them, it places income caps and sales price caps on both new and used incentives. It also includes additional funding for EV charging and educational outreach to underserved communities.

While Congress takes the first critical steps to address the climate and equity challenge no experts expect the Infrastructure Act and the Build Back Better Bill, if passed, to get us to the EV finish line. But it is highly unlikely Congress will do any more in the near term.

In the meantime, keep an eye on state and local government and utility efforts. Because most of the funding from these bills will be distributed to states, it is these entities that will be largely determining how effectively the dollars will be spent and whether they achieve the objective of making progress toward closing the environmental and economic equity gaps.

2022 TOP 10 BLOG

The National Flood Insurance Program and the Growing Cost of Natural Disasters in the Era of Climate Change

VJEL Staff Editor: Cameron Briggs Ramos

Faculty Member: John Echeverria

Introduction

Accelerating climate change due to the accumulation of greenhouse gases in the atmosphere magnifies both the severity and financial costs of natural disasters, particularly flooding. This trend poses a major challenge for the National Flood Insurance Program, a U.S. government program designed to ensure that citizens gain access to the flood insurance they need and can afford while also reducing the vulnerability of properties and communities to flooding over the long-term. In the year ahead, it will be interesting to watch the Biden administration’s effort to perform this difficult balancing act with the launch of the new “Risk Rating 2.0” program.

The Rising Tide of Disasters

Higher global temperatures are being reflected in warmer ocean waters, which in turn are increasing the frequency and severity of storm events. Climate change also increases precipitation variability in general, with more rainfall occurring in fewer, high-intensity events. Increased rates of precipitation, in particular in the Midwest and Eastern United States, are projected to lead to more frequent and more severe flooding in the years ahead.

In coastal areas, rising sea levels exacerbate the vulnerability of individual homes and communities to severe storms and flooding attributable to climate change. The National Oceanic and Atmospheric Administration (NOAA) that global sea level rose 0.14 inches per year between 2006 and 2015 and that in 2020 global sea level reached 3.6 inches above the level in 1993. Eastern coastline communities face a 400%–1,100% increase in hightide flooding days due to the rise in global sea level. Storm surges building on top of these high tides pose a particular threat to these coastal communities, which comprises 40% of the total population in the contiguous United States.

The United States is already experiencing more severe—and more costly— storm events. In 2020, there was a record-breaking number of 22 natural disasters in the United States, inflicting a total cost of $99 billion. In 2021, 18 separate climate disasters have occurred, with 4 of these events being catastrophic hurricanes and tropical storms. While the number of events this year has not superseded those in 2020, the cost of these separate disasters has already surpassed the costs of the 2020 disasters. So far in 2021, post-disaster costs have amounted to $104.8 billion. Two of the costliest storms in the United States over the last decade were Superstorm Sandy in 2012 and Hurricane Harvey in 2017. The World Meteorological Organization estimated that economic losses inflicted by Superstorm Sandy totaled $54.47 billion and $96.94 billion for Hurricane Harvey.

In accord with these estimates of the overall costs of recent storms, the number and size of insurance claims filed under the National Flood Insurance program have increased dramatically. In recent years, the cost of insurance payouts has greatly exceeded the amount received in insurance premiums. As a result, FEMA has accumulated a debt to the U.S. Treasury of over $20 billion as of 2021, despite Congress having canceled $16 billion in previous FEMA debt in October 2017.

The NFIP Framework

Congress created the National Flood Insurance Program in 1968 based on the perception that private insurers were unable and/or unwilling to offer policy coverage to owners of flood-prone properties. At the same time, conscious even then of the rising costs of disaster relief, Congress sought to use the “carrot” of federally-backed insurance to induce property owners and local governments to improve resilience in the face of flood risk and thereby lower federal disaster relief costs in the long run. The program, including determinations of insurance costs, is managed by the Federal Emergency Management Agency (FEMA), which oversees a network of approximately 50 private insurance companies that directly market insurance policies to the public. FEMA prepares and periodically updates flood maps that delineate coastal and riverine areas subject to the risk of flooding and help homeowners understand the risk of flooding. While participation in the NFIP is voluntary, flood insurance is generally required if a person wishes to secure a mortgage to purchase a structure in a mapped floodplain.

Some critics of the NFIP have argued that FEMA has not set insurance rates at a high enough level to reflect the risk associated with occupying flood-prone land or to allow the federal government to cover the costs of payouts under the flood insurance policies. In 2012, in response to these concerns, and with strong support from many environmentalists and advocates of “free market” solutions to environmental problems, Congress enacted the Biggert-Waters Flood Insurance Reform Act, which directed FEMA to raise insurance rates to actuarially sound levels. This legislation quickly generated a firestorm of political protests from coastal property owners who faced very rapidly escalating insurance premiums. In addition, critics of the legislation contended that the steep increases in premiums placed a particularly severe and unfair burden on low- and moderate-income families.

In response to these concerns, in 2014, Congress adopted the Homeowner Flood Insurance Affordability Act (HFIAA), which rolled back most of the major provisions of the 2012 legislation. The HFIAA extended grandparented rates to certain long-established flood plain uses and directed FEMA to create an affordability framework to ensure that flood insurance remained affordable.

Over the ensuing years, Congress has engaged in an extended debate over how to accomplish a comprehensive reform of the NFIP to make the program financially self-sustaining, resolve the affordability problem, and address the new challenges posed by the increased risk of flooding due to climate change. So far, these efforts have come to naught. Since 2017, Congress has enacted 17 stop-gap reauthorizations of the NFIP, and the next deadline for reauthorization is looming on December 3, 2021.

Looking Forward

In the absence of comprehensive legislative reform, the Biden administration is currently focusing on improving agency implementation of the existing NFIP. In response to the Homeowner Flood Insurance Affordability Act’s mandate to FEMA to create an “affordability framework,” in 2018, FEMA published “An Affordability Framework for the National Flood Insurance Program” with three elements: (1) improving communication to policyholders and potential NFIP participants; (2) developing targeted assistance to policyholders based on their financial status; and (3) examining community work that mitigates flood insurance costs. To carry out the goal of assisting low-and-moderate income families, the “Build Back Better” agenda currently before Congress proposes spending $208 million to assist low-income individuals in purchasing flood insurance and an additional $150 million to help low-income individuals implement flood risk mitigation plans.

The Biden administration is also in the process of rolling out a new NFIP risk-assessment initiative labeled “Risk Rating 2.0.” The Risk Rating 2.0 assessment relies on new technology to assess relative flood risk based on a number of variables such as flood frequency, possible flood types, and property characteristics. Relevant property characteristics include the property’s distance to water, the property’s elevation, and the cost of rebuilding the property. The hope is that this intensive analysis of risk factors will generate premium rates that more accurately and fairly reflect flood risks at different locations. At the same time, the Risk Rating 2.0 initiative recognizes the potential impacts of rate increases on families and will work within the current statutory requirement that premium increases do not surpass 18% per year. In addition, premium discounts will be offered to policyholders in communities participating in the Community Rating System, which encourages communities to adopt effective community floodplain management practices to mitigate flood risks. Premiums discounts will also be offered to policyholders who implement mitigation tools on their properties, such as elevating structures. Rates generated by the Risk Rating 2.0 Initiative applied to new policies starting on October 1, 2021 and will apply to remaining policies being renewed on or after April 1, 2022.

Whether these initiatives will effectively make insurance more widely available, encourage insurance rates that are sounder from an actuarial perspective, and help contain long-term disaster relief costs remains to be seen. As climate-related natural disasters become more frequent, the need for the federal government to support opportunities for individual property owners and communities to build resilience will become ever more critical.

2022 TOP 10 BLOG

State by State: Setting Farmed Animal Welfare Standards

VJEL Staff Editor: Bailey Soderberg

Faculty Member: Pamela Vesilind

2022 is set to be a landmark year for the animal welfare movement in the United States. Both Massachusetts and California are attempting new regulations that could affect the quality of life for pigs, calves, and hens across the country. Each state passed citizen-initiated ballot measures that take effect on January 1, 2022, impacting the use of cruel confinement methods like gestation crates for breeding sows, battery cages for laying hens, and veal crates for calves. However, looming legal challenges and legislative delays threaten the adoption of these animal welfare regulations.

Ballot Initiatives

In 2016, Massachusetts voters approved Question 3. As an indirect initiated state statute, Question 3 required proponents to gather a certain amount of citizen signatures in support before the statute was sent to legislature, and further signatures were required to place the measure on the ballot after legislative review. The resulting law prohibits confinement of an egg-laying hen, breeding sow, or veal calf in a space that “prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely.” A controversial provision requires all shelled eggs, whole pork, and whole veal sold in Massachusetts to meet this space requirement, whether produced in-state or out-of-state. Business owners must rely in good faith on a written certification (or guarantee of compliance) by a supplier or face a civil penalty up to $1,000 for each violation.

Massachusetts’ confinement standards mirror those in a 2008 California ballot initiative, Proposition 2. In 2018, Proposition 2 was amended by Proposition 12. As of 2015, California law prohibited the sale of shelled eggs produced in facilities that do not meet minimum space requirements; this was extended to liquid eggs in 2020. Restrictions on the sale of veal from crated calves also began in 2020. Sales restrictions on whole pork, requiring the most significant industry alterations, will be effective on January 1, 2022. This mandate spotlights a split in the pork industry. It favors Cargill, Inc., which phased out sow gestation crating in company-owned and contract farms by early 2015. Smithfield Foods, the U.S. division of China-based WH-Group, made limited progress in converting to group housing. But Tyson Foods and Seaboard Farms resisted, even defying pressure from shareholders.

For decades, animal advocates campaigned to end cruel farming practices like gestation crates, battery cages, and veal crates. Since 2008, a dozen other states have phased out one or more of these industry practices. California and Massachusetts were first to support the production standards by banning the in-state sale of non-complying products. Washington joined in 2019, phasing out battery cages and prohibiting egg sales from those facilities in 2024. With the exception of California’s $1 billion U.S. egg industry, in-state space requirements do not significantly impact the agricultural sector in Massachusetts and California because most of their pork, veal, and eggs are imported from other states.

Environmental Impacts

Improved standards in animal agriculture are crucial to the health of animals, humans, and the environment, especially considering concentrated animal feeding operations (CAFOs) produce most animal products in the United States. With the COVID-19 pandemic continuing into 2022, zoonotic diseases pose an ongoing threat to humans and animals. CAFOs threaten to foster the next pandemic, confining thousands of animals in industrial buildings. High stress, injuries, and waste buildup weaken their immune systems, creating a perfect environment for pathogens to travel rapidly and replicate efficiently. Moreover, close confinement and concentration of animals contaminates surrounding water, soil, and air. Large-scale livestock operations create excessive waste, often used as fertilizer in nearby fields or stored on the premises. Soils become overloaded, causing buildups of nutrients like nitrates that seep into surface and groundwater. Runoff from rain spreads waste even farther, with phosphorous fostering harmful algal blooms in lakes and oceans. Beyond methane emitted from animals themselves, animal waste releases damaging amounts of ammonia into the air.

Legal Challenges

Food and agriculture corporations challenged state animal welfare regulations alleging Dormant Commerce Clause (“DCC”) violations. The DCC doctrine is a court-made test inferred from Congress’s Article I, Section 8 authority to “regulate Commerce… among the several states.” Over time, courts developed an implied prohibition against state laws that “substantially burden interstate commerce” or regulate out-of-state producers differently from in-state producers. The common test, from Pike v. Bruce Church, Inc., balances state interests served by non-discriminatory state laws against the law’s burden on interstate commerce.

Animal agriculture associations and farming states have resorted to the courts, attempting to defeat welfare standards they argue are impermissibly coercive. Some challenges failed on procedural grounds, like lack of personal jurisdiction and subject matter jurisdiction. In Indiana v. Massachusetts and Missouri v. California, state plaintiffs attempted to invoke the Supreme Court’s original jurisdiction to evaluate a DCC challenge. At the direction of the Supreme Court, Solicitor General Noel Francisco filed a brief on behalf of the United States for both the Massachusetts case and the California case, emphasizing that the Supreme Court only grants original jurisdiction for cases or controversies between states in rare circumstances. The Supreme Court declined the plaintiffs’ motions in both cases in 2018 and 2019.

In Iowa Pork Producers Association v. Bonta, the plaintiff claimed California’s sale ban on non-compliant pork violates the DCC, due process, and equal protection, among other provisions. The suit failed because the pork producers sued in Iowa. To assert authority over a non-resident defendant, a court must establish personal jurisdiction, requiring a party have minimum contacts with the forum that comport with “fair play and substantial justice.” The federal district court in Iowa found that California did not intentionally pass Proposition 12 to harm Iowa, the law was not aimed at Iowa, and the brunt of the harm would not affect Iowa. Ultimately, minimum contacts did not exist to justify exercising personal jurisdiction over California.

So far, only two cases against the sale bans cleared procedural hurdles and proceeded to the merits of a DCC challenge. In North American Meat Institute v. Becerra, the U.S. District Court for the Central District of California denied North American Meat Institute’s (“NAMI”) motion to preliminarily enjoin California’s veal and pork sales laws from taking effect after determining NAMI failed to show a likelihood of success on the merits. The court decided Proposition 12 is not discriminatory because it does not have a discriminatory purpose or effect and treats in-state and out-of-state producers equally. Further, the court was skeptical of NAMI’s claim that California is impermissibly imposing its own animal production standards on industries in other states—called “extraterritorial regulation.” The court decided the plaintiff’s claims were “ultimately a complaint about the cost of complying with Proposition 12’s requirements.” The regulations change only how meat is produced, not where the meat is produced. On appeal, the Ninth Circuit Court of Appeals affirmed. In 2021, the Supreme Court denied certiorari.

The Ninth Circuit also reviewed a pork industry challenge against Proposition 12 in National Pork Producers Council v. Ross. The court addressed the National Pork Producers Council’s (“NPPC”) main argument of impermissible extraterritorial regulation, determining that states “may require out-of-state producers to meet burdensome requirements” without infringing on the DCC. While the court acknowledged cost increases might occur, it determined costs incurred by production changes do not substantially burden interstate commerce. “Proposition 12 will have dramatic upstream effects and require pervasive changes to the pork production industry nationwide,” but NPPC failed to state a violation of the DCC. NPPC appealed to the Supreme Court, which is likely to consider the petition before the end of 2021.

Beyond litigative efforts, members of the pork industry lobbied for delays. In October 2021, the Massachusetts House passed a bill to update the 2016 Question 3 ballot initiative with specific square-foot measurements. The amendment would also delay implementation of the regulations specifically related to the sale of pork. If the Senate supports the bill, the provision instating a pork sale ban would be delayed until 2023. Estimates indicate less than 4% of pork producers are currently in compliance and prepared for the original January 2022 deadline.

Despite ample notice and multiple years to update facilities, animal agriculture industry members resisted change and challenged regulations in courts. Now, instead of working on compliance, producers are taking advantage of the pandemic, global supply chain delays, and price inflations to justify their reluctance to adhere to new animal welfare standards.

Looking Forward

Environmentalists often overlook animal suffering in favor of environmental topics centered around human interests. To improve the environment effectively, we must address the environmental and ethical implications of exploiting farmed animals. While measures imposed by the sale bans may provide incremental improvements, their value lies in the potential to define future state action in regulating food systems and animal welfare. Ballot measures could help citizens take charge of decision-making and push environmental or animal interests to form laws. The survival of Proposition 12 and Question 3 could solidify the use of voter initiatives to determine food and animal law policies that reflect the changing values of our society.

2022 TOP 10 BLOG

Tracking the Biden Administration’s Whole-of-Government Approach to Equity and Environmental Justice

VJEL Staff Editor: Zachary Handelman

Faculty Member: Amy Laura Cahn

In his first week in office, President Biden issued several executive orders directed at undoing the Trump Administration’s environmental policies and ensuring that federal decisions advance equity, civil rights, racial justice, and equal opportunities for all. One order, E.O. 13985, creates the first federal whole-of-government equity agenda and directs federal agencies to implement equity concerns into their administrative actions. Another order, E.O. 14008, outlines a government-wide plan to tackle the climate crisis. These two orders aim to fundamentally transform the federal government’s approach to equity and environmental justice. This whole-of-government approach includes directing an unprecedented number of resources towards communities subject to historic neglect, disinvestment, and discrimination by the government and private entities. Given the interconnectedness of equity and environmental justice, these two orders will likely have an overlapping impact on federal agencies, particularly the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA). It will be essential to monitor how these agencies and the White House coordinate and implement their ambitious mandates heading into year two of the Biden Administration.

Overview of Executive Orders 13985 and 14008

E.O. 13985 directs federal agencies to review their programs and policies to determine whether they perpetuate systemic barriers to underserved communities. The E.O. mandates the advancement of equity for “People of Color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” By January 20, 2022, each agency must complete a plan to address the systemic barriers to these affected communities. This planning process shall involve meaningful consultation and engagement with members of those communities. Ultimately, this January 20 deadline will reveal the concrete policy and program changes that each agency will take to advance equity for People of Color and other underserved communities.

E.O. 14008 addresses a broad range of climate policies and initiatives with a focus on environmental justice. This order amends the Clinton era E.O. 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations). E.O. 12898 was widely recognized at the time for bringing attention to the environmental justice movement. However, it has since been criticized by Environmental Justice advocates for its lack of substantive requirements and enforcement by federal agencies. E.O. 14008 revises E.O. 12898 to establish environmental justice performance metrics and annual performance scorecards. These revisions are intended to hold agencies accountable for meeting the goals and requirements of Biden’s executive orders.

E.O. 14008 also created two important government initiatives: Justice40 and the Climate and Economic Justice Screening Tool. The Justice40 initiative directs 40% of federal investments to flow to disadvantaged communities. The Climate and Economic Justice Screening Tool will be a geospatial map that identifies and highlights disadvantaged communities to support the allocation of federal funds to these communities. Taken together, Executive Orders 13985 and 14008 address important, overlapping issues facing People of Color and other underserved communities. They set ambitious goals that will require serious investment, but still leave a lot of unanswered questions for agencies and the public.

Equity and Environmental Justice in the USDA and EPA

It will be important to monitor how the EPA and USDA implement their mandates under Executive Orders 13985 and 14008. These two agencies have particularly complex histories with racism and discrimination. BIPOC (Black, Indigenous, and People of Color) farmers have long received a significantly lower share of USDA benefits and services than white farmers, while disproportionately suffering from the adverse environmental health impacts of the agriculture industry. Meanwhile, BIPOC neighborhoods have long borne the brunt of disproportionate environmental burdens, unprotected by existing environmental laws. For decades, EPA has failed to comply with its duties under Title VI of the Civil Rights Act and E.O. 12898 by persistently declining to investigate complaints of civil-rights violations in communities of color.

Climate change will only exacerbate the challenges facing underserved communities. Whether these two agencies can rewrite these narratives, while addressing the need for climate action, will require a systematic transformation that endures long after the Biden Administration. While Biden’s executive orders set the stage for this kind of shift, it will be up to each agency to assess their unique needs, goals, and capabilities.

Federal agencies have taken different approaches to address equity and systemic barriers under E.O. 13985. In June of 2021, the USDA issued a more general Request for Information (RFI) for public input on advancing racial justice and equity within the agency. The RFI indicates that the USDA is establishing a Racial Equity Commission to gather public input and identify barriers that People of Color face in accessing USDA programs. On October 7, 2021, USDA published a fact sheet listing its equity accomplishments since the inception of Biden’s executive orders. This list includes multiple initiatives to use COVID-19 relief funds to support socially disadvantaged farmworkers.

However, some of USDA’s efforts might be impacted by a legal grey area regarding agency actions that provide aid to socially disadvantaged groups. In February 2021, Congress passed the Emergency Relief for Farmers of Color Act which directed USDA to forgive the debts of socially disadvantaged farmers—defined as having been “subjected to racial or ethnic prejudice.” The law currently faces 13 lawsuits by white farmers across the country challenging the law as relying on a race-based classification. The lawsuits will determine the future of this monumental piece of legislation, and the USDA will have to wait to administer the program’s funds until the courts resolve the lawsuits. Because race is such an essential factor in equity and environmental justice issues, the lawsuits may have ramifications beyond this one USDA program. Any actions taken pursuant to Executive Orders 13985 and 14008 may be subject to similar constitutional challenges. The USDA still has a long way to go to remedy the effects of past discrimination and 2022 should provide more guidance on how the agency intends to integrate equity and environmental justice into its programs and policies.

The EPA has more experience in administering environmental justice initiatives due to its central role in administering E.O. 12898, but has still struggled to integrate environmental justice across the agency and government. Moreover, under the Trump administration, the EPA was severely curtailed by budget cuts, internal politics, and efforts to undermine environmental justice initiatives. With this backdrop in mind, it will be important to monitor EPA’s progress on these issues during the Biden Administration.

Since January, EPA has stepped up its initiatives related to equity and environmental justice. EPA continues to roll back Trump era rules and regulations, while promulgating new regulations to address PFAS and other toxic pollutants and directing funds to environmental justice communities. The agency also recently concluded a public comment period on its FY 2022-2026 Strategic Plan. This plan includes several performance goals and strategies related to advancing environmental justice and civil rights. Most recently, EPA Administrator Regan completed a week-long “Journey to Justice” tour to hear firsthand from residents of historically marginalized communities in Mississippi, Louisiana, and Texas.

EPA and USDA’s complicated histories with environmental justice leave many questions yet to be answered. Given the expansive reach of E.O. 13985, how will EPA and USDA determine which communities fall under the definitions of underserved and disadvantaged communities? How will current litigation impact strong action on equity? Will the actions of the prior administration affect the agencies’ abilities to address these issues before the next election? Answers to these questions should become clearer in January once the EPA, USDA, and other agencies publish their racial equity plans under E.O. 13985.

Looking Forward for 2022

2021 began by welcoming a new presidential administration to the White House. This change in administration may be looked back on as ushering in a new era of federal action on climate and equity. President Biden’s executive orders set the stage for a whole-of-government approach to addressing the needs of underserved and overburdened communities. 2022 will be even more important, as agencies are directed to begin implementing programs and policies according to these executive orders. At this time, many questions remain to be answered. Will agency actions which factor historic racial discrimination be subject to constitutional constraints? Will agencies have sufficient enforcement authority and resources to enact their programs and policies? Will People of Color and other underserved communities have the power and opportunity to shape how policy impacts their lived experiences? This coming year will provide the public with a better understanding of how effective the federal government will be at addressing equity and environmental justice under the Biden administration.