Ecoperspectives – Vermont Journal of Environmental Law

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

By Stuart Silverman

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

Background

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

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

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

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

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

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

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

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

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

The Supreme Court’s Decision

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

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

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

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

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

Balancing Environmental Protection with Economic Development: The Greenland Mining Dilemma

By Suhana Roy

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

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

Environmental vs. Economic Interests

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

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

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

Legal and Financial Repercussions

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

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

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

Global Demand for Rare-Earth Minerals

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

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

Conclusion

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

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

War Fuels Ecocide: How Militarism Drives Environmental Destruction

By Kaya Mark

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

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

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

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

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

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

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

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

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

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

All dollar amounts are in USD.

Climate Change and World Conflict: A Crucial Juncture

By Ian Lopez

As the world approaches a critical juncture on climate and energy policies in the face of accelerating global warming, policymakers face difficult choices. Yet, over the past five years, global conflict continues to produce new and pressing concerns for policymakers. Rather than considering these developments separately, they should be understood as intertwined; while not directly correlated, they greatly influence one another. Understanding this dynamic can prepare policymakers and help influence international policy. The unexpected shockwaves of international conflict, both present and potential, might be weathered better with an understanding of how these processes influence one another.

Chicken or the Egg: Which Influences Which?

Anthropogenic climate change is a relatively recent phenomenon; but war, unfortunately, has been a constant of human civilization for as long as history is recorded. Though conflict remains largely motivated by political and cultural movements, resources and scarcity are often top motivators. Due to the rise of concerns over resource scarcity, rapid global productivity, and climate shifts due to climate change, a hot area of scholarly debate focuses on whether concerns like resource scarcity, rapid global productivity, and climate shifts due to climate change increase conflict. The results are a tentative yes, but leading scholars stress that the relationship is not one of direct causation. Rather, climate change heightens certain stressors which can be part of the reason for conflict to begin; and even this is more often regional than between nations. For example, climate change might make droughts or flooding more frequent, displacing large populations, leading to conflict. Likewise, out-of-control resource extraction can devastate ecosystems, leading again to instability and conflict. Some far more direct examples of climate-induced conflict exist, such as the Kyrgyzstan-Tajikistan border clashes during 2021-22, in which a dispute over a climate-impacted, rain deprived reservoir that fed critical agriculture was the main source of dispute. Substantial academic attention has also focused on the role of climate-induced drought, water scarcity, and its relation to crop failures and food shortages which contributed to the Syrian civil war, and the war in Darfur, Sudan. But these examples are rare; whether they are indicative of wider trends is hard to ascertain. More obvious is the devastating impacts of war on energy, commerce, and land, which in turn exacerbate the effects of climate change. An IPCC report on Human Security in 2018highlighted the cause-effect relationship between conflicts and environmental degradation, for example.

In any case, energy and resources are implicated in nearly every conflict today, including the Russo-Ukraine war. This makes a compelling case for climate change influencing conflict in a small but distinct way. When authoritarians consider the state of their country 10, 30, or 50 years from now, will an attractive chunk of arable, productive land across their border seem that much more tempting? They are preparing for a climate-pressed future, and so should we. This dispassionate cost-benefit calculus is undoubtedly influenced by the way climate change will benefit and disadvantage certain regions of the world.

Preparedness for a Climate-Conflict Linked Future

Policymakers must prepare for a world in which the calculus of conflict is changing. This necessitates a recognition that the motives and factors affecting conflict are shifting. The United Nations has already taken the first and most important step, in recognizing the existence of this pattern. Climate change’s most direct contribution to conflict is in the form of destabilization and forced migration away from regions that become unproductive and unlivable. The worldwide pattern of human migration is already deeply troubling and remains a major flashpoint of international politics. Migration naturally brings groups once separated by borders into conflict and already has contributed to the resurgence of right-wing politics in Europe. With climate change accelerating mass migrations, the future instability and damage that will result is likely to be significant. As such, awareness of climate change’s accelerating influence on these developments needs to be a top area of study; the United States should take the United Nation’s example in incorporating the climate-conflict relationship into foreign policy deliberations.

Part of the way for policymakers and leaders to prepare for and prevent conflict is to address their root causes through diplomacy or aid. However, the prospect of foreign aid from the perspective of the United States is in doubt under the current administration, to say the least. The pausing of foreign aid to numerous nations—particularly those under strong climate pressures in the coming decades—carries noteworthy implications for the climate-conflict relationship. Such aid represents our investment in global security, not just in health and food security, but also global stability. Scarcity, depravation, and uncertainty lead to the kind of political and economic instability which is the most potent indicator of imminent conflict. With these factors in mind, international policy—which has already begun to take note of this trend—must further adapt to the climate-conflict dynamic. Preparedness for this trend will not only help avoid the worst consequences. It will allow us to start considering potential solutions, such as foreign aid schemes, migratory and asylum agreements, and more, that will require substantial transnational cooperation.

A Comparison of the Biden and Trump Administration’s Energy Policy and Coal Leasing in the Powder River Basin

by Drew Collins

The 2024 election of President Trump brings rapid changes in the ways America will get its energy. President Trump clearly expressed his intentions to unleash American energy during his second administration. These intentions will undoubtedly affect the Powder River Basin (“PRB”), an area which President Biden banned from new coal leasingin 2024. To better picture the future of coal leasing in the PRB, it’s crucial to understand the PRB’s economic and environmental significance as well as the policies used to manage the PRB under the Biden Administration.

Significance of the Powder River Basin

The PRB is significant because it is a major source of U.S. coal, a major source of jobs across Wyoming, and a major source of potential pollution. The PRB is the largest reserve of coal in the country accounting for over 40 percentof the nation’s coal supply. The PRB makes Wyoming the nation’s largest coal producer. The PRB is home to the world’s largest deposits of low-sulfur subbituminous coal. Low-sulfur subbituminous coal is special because it is cleaner than regular coal, and its low sulfur contents lead to lower emissions levels.

Additionally, coal extraction in the PRB provides around six thousand direct mining jobs alongside 14 thousand indirect jobs. Indirect jobs are often associated with equipment manufacturing, transportation, and local retail. The coal industry provides some of the only meaningful employment in the rural areas where the PRB is located. Further, coal extraction supports five different Wyoming counties’ tax bases, with funding being directed towards schools, infrastructure, and other public services. However, Wyoming’s coal industry has struggled recently to find West Coastcities who have not banned coal generated energy. This struggle alongside President Biden’s ban on new leases in the PRB leaves many Wyoming residents fearful of impacts on their jobs and tax base.

Lastly, the PRB is significant because of its massive potential for emissions and pollution. Energy development in the PRB is responsible for nearly 15 percent of total U.S. carbon pollution, making it the largest single source of carbon dioxide pollution in the country. On top of emissions, strip mining techniques used in the PRB disrupt the habitats and migration patterns of local animal species such as the Sage-Grouse. Strip mining also negatively affects local air and water quality.

The significance of the PRB should not be understated. From these examples, it is clear changes in the management of the PRB could have major effects on U.S. energy generation, local economies, and the environment.

Biden Administration Energy Policies

Before the Trump Administration, President Biden subsidized American clean energy generation through the “Investing in America” initiative and the passing of the Inflation Reduction Act (“IRA”). The Biden Administration took steps to end non-renewable energy generation by regulating coal power plants emissions and increasing taxation on the oil industry. These regulations were significant because they signaled the curtailing of conventional energysources used for generation in America.

In furtherance of these initiatives, the Biden Administration banned new coal leasing in Wyoming’s PRB. President Biden’s ban recognized the market has shifted away from coal as an energy source to sources that are cheaper and cleaner. In other words, this ban is saving tax dollars from being invested into an industry that’s operating in a long-term decline. It is important to note that this ban does not prohibit coal extraction from existing leases in the PRB, but rather bans new leases for coal extraction. Considering the significance of the PRB, President Biden’s ban on new leases will likely have negative impacts on local Wyoming job markets. However, the ban could also save taxpayers billions of dollars from lost revenue and pollution damages (assuming social cost of carbon between $60 and $70).

Trump Administration Energy Policies

Not surprisingly, the current Trump Administration has a starkly different approach to energy policy than the Biden Administration. President Trump emphasizes U.S. energy dominance and security over renewables and clean technology. President Trump’s policies aim to achieve energy dominance primarily by subsidizing and deregulating the U.S. Oil and Coal Industries, while restricting the development of renewables such as wind energy. President Trump also plans to expand oil and gas extraction on public lands.

In the mere months since President Trump was elected to office, he and his Secretary of Interior, Doug Burgum, considered leasing in the PRB alongside other coal developments across Wyoming. In early February 2025, Burgum released orders that seek to review and revise a list of polarizing land plans consistent with President Trump’s goal to unleash American energy. These orders include a review of the BLM’s Buffalo, Wyoming field office which is responsible for management of the PRB.

However, the PRB and other multi-use public lands are managed based on an established Resource Management Plan (“RMP”). As it stands, the President does not have explicit authority to undo a RMP. In general, to overturn a current RMP, a substitute must be already prepared. RMPs are typically completed by the relevant federal agency with authority and take much time and detail to complete (sometimes up to 1,000 pages).

Considering President Trump’s lack of authority and time to complete a new RMP, it seems unlikely that he will be able to overturn President Biden’s ban of new leases in the PRB without some litigation. Although President Trump’s energy objectives in the PRB are clear, his means to reaching those objectives are murky at best. The future of the PRB and Biden’s ban on new coal leases is uncertain. The current Trump administration has already made strides for increased energy extraction in Wyoming, but the legality of these actions will likely face scrutiny by the court.

Supplement to: THE TOXIC DIVIDE: INTERNATIONAL WASTE DUMPING AND THE FIGHT FOR ENVIRONMENTAL EQUITY

By Christine Paul

This blog is a supplement to an original article published by Vermont Journal of Environmental Law, Vol. 26 Issue 2. You can find the original piece here.

The environmental landscape continues to evolve as research sheds light on the complexities of international toxic waste disposal and its disproportionate impacts on developing nations. The article explored the frameworks established by the Bamako, Basel, and Stockholm Conventions to regulate transboundary hazardous waste movement and highlighted case studies from Nigeria, Côte d’Ivoire, and Haiti.

This short supplement expands upon the original research addressing newly identified intersections between environmental justice and toxic waste disposal, focusing on Haiti. It examines the implications of the 2010 earthquake on toxic waste management, and how the nation’s ongoing political crisis exacerbates the challenges of waste regulation.

By providing these additional perspectives, this supplement deepens the analysis of systemic inequities by global waste practices and contextualizes the environmental and human health impacts within historically marginalized communities.

Underlying vulnerabilities in Haiti such as poor governance, lack of sound infrastructure and technical capacities, and corruption provide the baseline for inconsistent or nonexistent environmental laws and regulation. The flagrant lack of regulation promotes widespread deforestation, leaves infrastructure vulnerable to frequent natural disasters, and results in unorganized waste disposal.[1]

Illegal hazardous waste imports have been on the back burner as Haitian officials prioritize responses to natural disasters and other climate-related harms.[2] For example, on January 12, 2010, an earthquake struck Haiti near Port-au-Prince in a catastrophic event, affecting approximately 3.5 million people.[3] Reports estimate 220,000 individuals died, 300,000 homes were destroyed, and over 1.5 million were displaced.[4] To date, a significant portion of the population remain displaced after the catastrophic disaster. [5]

Some argue that Haiti’s current poor environmental management results from a lack of sufficiently developed environmental policy and responsible government institutions that fail to enact meaningful change.[6] The majority of environmental regulations were formulated through the twentieth century.[7] Reportedly, more than a hundred laws, orders, and decrees were promulgated up until 1995 dealing with various aspects of the environment.[8] In 1998, the Haitian Collective for the Protection of the Environment and Sustainable Development produced a compilation of two hundred legal texts on the environment.[9]

An example of a modern environmental law regulated by the Ministry of the Environment is the law of September 21, 2017 (the Law), which replaces the Decree of March 3, 1981 (the Decree).[10] The Decree recognized the “first national framework specifically addressing the issue of solid waste management in the country.”[11] This decree also created the Metropolitan Solid Waste Collection Service (MSWCS), the first state institution in charge of waste management.[12] As of 2022, the law emphasizes solid, medical, and high-toxicity waste without providing precise definitions for those terms.[13] Waste management remains problematic even after the law’s promulgation.[14] For example, the MSWCS lacks the manpower and supporting regulations to ensure that waste is appropriately disposed.[15]

History shows that decades of ineffective environmental regulation, coupled with the country’s socio-political climate, has greatly exacerbated Haiti’s tenuous environmental scheme.[16] This is why Haiti must establish a regulatory body that responsibly implements, executes, and enforces environmental laws and regulations; or transform the Ministry of the Environment into a force that effectively addresses the country’s many environmental woes. The Haitian government and relevant stakeholders must prioritize these issues and others affecting the Haitian people and the environment.

Footnotes:

[1] Richener Noël, Governance and environmental degradation in Haiti, in 12 Humanitarian Aid on the Move 1, 8–11 (2023), https://www.urd.org/wp-content/uploads/2019/04/URD_HEM_12_EN.pdf.

[2] UN summit puts global spotlight on land degradation, UNEP (Dec. 2, 2024), https://www.unep.org/news-and-stories/story/un-summit-puts-global-spotlight-land-degradation; See also Global response to drought takes center stage at UN land conference in Riyadh, United Nations Convention to Combat Desertification (Dec. 3, 2024), https://www.unccd.int/news-stories/press-releases/global-response-drought-takes-center-stage-un-land-conference-riyadh.

[3] Francois Pierre-Louis, Earthquakes, Nongovernmental Organizations, and Governance in Haiti, 42 J. of Black Stud. 186, 187 (2011).

[4] Id.

[5] Robin Whitlock, Dealing with the Aftermath of a Disaster—Hazardous Materials, Rubble, and Ashes, The Earth and I (Dec. 13, 2024), https://www.theearthandi.org/post/dealing-with-the-aftermath-of-a-disaster-hazardous-materials-rubble-and-ashes; See also Juliette Benet, Behind the numbers: the shadow of 2010’s earthquake still looms large in Haiti, Internal Displacement Monitoring Ctr. (Jan. 13, 2020), https://www.internal-displacement.org/expert-analysis/behind-the-numbers-the-shadow-of-2010s-earthquake-still-looms-large-in-haiti/.

[6] Glenn R. Smucker et al., Environmental Vulnerability in Haiti: Findings and Recommendations 68 (U.S. Agency for Int’l Dev., 2007).

[7] Association Haitienne de Droit de l’Environnement et al., Republic of Haiti, United Nations Universal Periodic Rev. (Oct. 3, 2011), https://www.ohchr.org/sites/default/files/lib-docs/HRBodies/UPR/Documents/session12/HT/JS5-JointSubmission5-eng.pdf?utm.

[8] Id.

[9] Id.

[10] Mickens Mathieu, Spotlight on the law of September 21, 2017: to better address the challenges of the solid waste management system in Haiti, UNDP Haiti (Mar. 22, 2022), https://www.undp.org/fr/haiti/blog/spotlight-law-september-21-2017-better-address-challenges-solid-waste-management-system-haiti.

[11] Mathieu, supra note 10.

[12] Id.

[13] Id.

[14] Waste Management, International Trade Administration (2024) https://www.trade.gov/country-commercial-guides/haiti-waste-management#.

[15] Mickens Mathieu, A Focus on Informal Solid Waste Collectors in Haiti: Key Players but Neglected Actors, UNDP Haiti (Mar. 17, 2022), https://www.undp.org/fr/haiti/blog/focus-informal-solid-waste-collectors-haiti-key-players-neglected-actors.

[16] Marcelin LH, Cela T, Shultz JM. Haiti and the politics of governance and community responses to Hurricane Matthew, Disaster Health. 2016 Nov 22;3(4):151–161.

About the Author:

Christine Paul is a Class of 2023 Presidential Management Fellow. She holds a J.D. from Vermont Law and Graduate School and a B.S. in Biology from St. John’s University. Christine is dedicated to environmental law and justice, and thanks Professor Catherine Fregosi and Christine Ryan for their invaluable support while writing.

With Global Fishing Fleets, Justice Walks the Plank

By Ilinca Johnson

What happens when poorly regulated fishery harvest practices lead industry to exploit vulnerable, impoverished communities? Global Fishing Fleets (“GFFs”) are large-scale industrial operations sustained by harmful fishery subsidiesprovided by their respective governments. The largest fleets are maintained by China, Japan, South Korea, Russia, and theUnited States. GFF operations keep the cost of seafood low for consumers around the globe by raising numerous other costs that marine ecosystems, the climate, and marginalized communities bear instead. Most alarming is how GFFs promote modern-day slavery. The current state of GFFs calls for great reform to prevent resource exploitation and protect vulnerable communities globally.

Working in the theory of Environmental Justice, scholars “tend to cast a broad net to allow consideration of how exploitative relationships between industrial actors and marginalized communities, including workers, transcend into peoples’ everyday lives.” In this current case, the exploitative practices of GFFs unsustainably harvest from marine ecosystems while simultaneously violating the human rights of vulnerable communities, demonstrating the intersection of environmental and social injustices.

Environmentally, industrial fishing has severely depleted fish stocks. In the past few decades, GFFs have tripled the number of over-harvested stocks of fish through illegal, unreported, or unregulated fishing (IUU). Today, one out of every five fish is caught IUU. Approximately 27 million tons of marine life – including an estimated 300,000 whales and dolphins—are caught and discarded as bycatch each year.

GFFs often illegally harvest in protected areas or the territorial waters of developing nations with weaker regulatory systems. GFFs avoid detection through falsifying reports, deactivating transponders, and transshipments. Transshipments move catch between vessels at sea to large “reefer” ships. These reefers have huge onboard freezers where legal and illegal fish alike mix, hiding their original source. Overfishing threatens the survival of iconic and ecologically important species including the bluefin tuna, cod, and numerous shark species, damaging marine ecosystems and devastating local indigenous communities reliant on subsistence fishing.

GFFs also contribute significant carbon emissions. Since the 1950s, greenhouse gas emissions have more than quadrupled due to unsustainable fishing practices. Today, fleets must expend more energy to maintain catch levels, going further and further from their coastlines in search of enough fish. Now, it takes twice as much effort to harvest the same number of fish as in the 1950s. The loss in fish populations disrupts blue carbon sequestration in the deep ocean, contributing even more carbon dioxide emissions to the atmosphere.

Beyond environmental destruction, GFFs notoriously exploit labor. An estimated one-third of these fleets engage in forced labor, particularly in South Asia, where trafficked workers from Myanmar, Cambodia, Thailand, and Bangladesh then endure inhumane conditions. Many are lured by deceptive job offers, only to have their passports confiscated.

These people then face months to years of twenty-hour workdays without pay while sleeping in a concentration-style bunk room and given largely non-nutritious meals. Supported by reefers and supply ships, a ship crew could be at sea for years. Reports indicate widespread torture, forced confinement, and even the murder of laborers. Between 2019 and 2020, at least 30 Indonesian workers died on Chinese fishing vessels. Today, potentially half a million migrants remain enslaved in Thailand’s shrimp industry. Additionally, Uyghurs and North Koreans are documented as working under forced labor conditions in Chinese seafood processing plants directly supplying global markets.

The exploitation of forced labor is deeply tied to overfishing. Some studies suggest the use of forced labor is a direct response to the diminished populations of fish in the ocean. By aggressively reducing expenditure on crew by utilizing human trafficking, Global Fishing Fleets save money and can provide cheap seafood to the world.

Western consumer markets, particularly in the U.S. and EU, inadvertently fuel these abuses by prioritizing cheap seafood over ethical sourcing. Major retailers such as Walmart, Tesco, and Costco sell shrimp produced through slave labor in Thailand. Currently, it is virtually impossible to trace the opaque supply chains within the global shrimp industry, though efforts are being made. The U.S. alone accounts for 14% of global seafood imports, with an estimated average potential slavery risk of 3.1 kg (~6.8 lb) of seafood per tonne consumed. That risk is 17 times higher than seafood from domestic fishery sources.

To address these injustices, urgent action is needed. Governments and industry leaders must prioritize human rights and environmental sustainability by implementing stronger labor regulations, increasing supply chain transparency, banning harmful subsidies, and ending or closely managing transshipment practices. Closing the high seas to fishing and investing in small-scale, equitable fisheries would help restore fish populations, create more equitable access to highly migratory species like tuna. Most importantly, adopting such measures would protect both the environment and vulnerable communities globally, leading to a more secure future for millions. Without reform, continued overexploitation deepens economic and social inequalities that threaten global food security, the livelihoods of millions, and the long-term health of marine ecosystems.

The time for change is now—ensuring ethical, sustainable fishing practices is essential for both people and the oceans.

The Substitution Effect: Could Reducing Fossil Fuel Sales Truly Have No Impact?

By Shekhar Pathak

“Climate change is an extremely complex and difficult issue. It crosses jurisdictional boundaries, is rapidly worsening and has the potential to cause unprecedented loss and damage.”

–Winkelmann CJ, Glazebrook and Ellen France JJ

Imagine, a large paper company, aware that its logging practices contribute to deforestation and increased carbon emissions, argues that it should not be held liable for these environmental impacts, because if it ceased operations, other firms would take over the same logging areas, leading to no net reduction in emissions. A Dutch appellate court (“Court”) reflected similar reasoning in a recent ruling concerning Shell’s climate obligations. Globally, temperature increases, driven by greenhouse gas (“GHG”) emissions, reach 0.8°C above pre-industrial levels but specifically rise above those levels by 1.7°C in the Netherlands. The Court overturned a landmark ruling that had required Shell, whose energy sales in 2023 were 91% derived from major GHG sources, to reduce its carbon emissions by 45% by 2030. The Court acknowledged Shell’s significant duty of care in mitigating climate change, given its century-long dominance in the fossil fuel market. However, regarding Scope 3 emissions, the Court rejected Shell’s claim that it had limited influence on demand-side factors, but accepted its supply-side argument. It also agreed with the substitution argument, noting that reducing Shell’s fossil fuel sales would not lower overall CO2 emissions, as other suppliers would step in to fill the gap, leaving global emissions unchanged. Nonetheless, the Court ruled that Milieudefensie et al. lacked sufficient legal interest under Article 3:303 of the Dutch Civil Code (“DCC”) to impose a Scope 3 reduction obligation on Shell.

However, as observed, the Court’s reasoning—claiming that reducing Shell’s fossil fuel sales would not lead to a net reduction in CO2 emissions—is flawed on two significant grounds: First, it overlooks the inherently collective nature of climate change, where individual actions cumulatively contribute to global emissions. Further, while Shell and similar carbon producers may not have specific obligations to future generations, the court acknowledged their general duty to avoid jeopardising future living conditions. Second, the Court’s reliance on the ‘but-for’ test in assessing sufficient interest under Article 3:303 DCC implies that since granting the claim would not directly benefit the claimant, there is no legal interest. While this test is effective for assessing discrete causation, it fails to account for complexity, as seen in Gloucester Resources, where it proves problematic for systemic issues like attributing specific climate-related events to individual emitters. And, by focusing solely on whether harm would have occurred without Shell’s actions, the court overlooked the shared responsibility for climate change, making it nearly impossible to prove, on the balance of probabilities, that Shell’s actions were the direct cause of the harm.

The challenge of proving causation in climate-related cases is evident globally. In the Native Village of Kivalina, an Alaskan Inupiat village sued 24 companies for nuisance, alleging their emissions contributed to coastal destruction. Similarly, in Luciano, a Peruvian farmer claimed a corporate defendant’s emissions caused glacier melting, leading to significant mitigation costs. In Smith, the plaintiff alleged public nuisance, negligence, and breach of duty against corporate emitters. In all these cases, plaintiffs failed to establish the requisite causal link for climate change-related harm, reflecting the inherent difficulty in attributing specific damages to individual emitters. Moreover, its rigidity not merely applies to climate change but also to toxic torts, as seen in Fairchild, Barker, Sienkiewicz and Sindell as well as to emotional harms, as highlighted in Shorey, and Calascione, which have similarly struggled with conventional approaches to legal causation.

The observations made in the above case laws suggest, that the core difficulty in applying the traditional causation test, specifically in climate change litigation, lies in the following: First, a plaintiff faces difficulty in proving the direct, causal link required by the test between their harm and the defendant’s actions. In this case, the judge considered emissions from other third-party emitters, which, in the absence of Shell’s contributions, merge indistinguishably, interact, and ultimately, through complex natural processes, contribute climate change. This makes it impossible to establish a clear causal chain from one emission source to specific damage. Second, given that everyone contributes to emissions, Shell is just one of more than seven billion emitters. The plaintiff cannot establish, on the balance of probabilities, that the harm would not happen in the absence of the defendant’s emissions. It is more likely that the harm occurred because of the actions of other emitters. However, in reality, Shell’s emissions, alongside those of other corporations, contribute to a harmful set of factors. Reducing Shell’s emissions would still mitigate the overall damage, even if other contributors remain active.

Therefore, the court should adopt a more flexible approach, such as the ‘extended but-for test’ proposed by Professor Jane Stapleton, considering the complexities of environmental protection. This test identifies a factor as causal if it positively contributes to the mechanism causing harm, even if it is not independently sufficient. For example, a defendant who negligently pushes a car over a cliff alongside others remains a cause, even if the act could have occurred without their involvement. The UK Supreme Court’s decision in Financial Conduct Authority reiterated this departure from the strict ‘but-for’ test. In addressing business losses caused by COVID-19 restrictions, the Court held that an insured peril could be considered a cause of loss, even if it was neither necessary nor sufficient alone, as long as it contributed alongside other factors. This approach recognises the limitations of the rigid traditional test and provides a more adaptable framework for addressing causation in complex, systemic scenarios, such as determining the liability of giant emitter corporations like Shell.

The Climate Is Changing in the United States: Preserving Environmental Interests in a New Administration

By Eric Grimes

President Trump made his intentions for United States environmental interests clear within hours of his inauguration. Among the slew of executive orders President Trump passed on his first day in office was an order withdrawing the United States from the Paris Agreement, another authorizing unlimited oil drilling, and another gutting green initiatives across the country. Few people in the world today do not believe climate change and the health of the environment are extremely prominent issues requiring immediate and extensive action. Unfortunately, the President and his administration seem to be among the group of people uninterested and unwilling to act. While the President’s policies do not look good for the United States’ environment, hope for its protection can still be found elsewhere. President Trump has attacked many environmental issues, but this post will focus on the initiatives surrounding the Paris Agreement. Many initiatives outside of the Federal government aim to mitigate the President’s environmental policies.

When President Trump was elected for a second term, many hoped he would reverse his stance from his first termand allow the United States to stay in the Paris Agreement. The Agreement focuses on keeping global warming below a 2 degrees Celsius increase from global temperature in 1990. The 2-degree level is largely understood to be a temperature at which there will be severe climate change impacts. Unfortunately, President Trump has felt that goal does not align with his policy interests. Luckily, between the initiatives established after the President’s first withdrawal and a substantial number of pessimists (or possibly realists?) concerned with his second withdrawal, avenues have been made to uphold the U.S. obligations to the Paris Agreement without Trump.

The most prominent representation of hope for Pro-Paris interests is the U.S. Climate Alliance. The U.S. Climate Alliance is a coalition of state governors interested in upholding the United States obligations under the Paris Agreement in their states. The representative states make up over 50% of the United States population and economy. The U.S. Climate Alliance allowed states to fight back against President Trump’s first withdrawal from the Paris Agreement. After the first withdrawal, the U.S. Climate Alliance was responsible for extensive climate legislation and regulations. Some of the resulting statutes passed included the Vermont Global Warming Solutions Act of 2020, which held Vermont to even stronger goals than the Paris Agreement, and the 2017 Climate Change Scoping Plan Update, which created an extensive plan for California to achieve its climate goals. When President Biden rejoined the Paris Agreement after taking office, the U.S. Climate Alliance slowed down its activity. However, on the same day as President Trump’s recent withdrawal from the Paris Agreement, the U.S. Climate Alliance made a public statement about upholding the United States’ pledge to the Agreement.

The current political turmoil in the United States has created a shift toward greater localization of action. The U.S. Climate Alliance is a perfect example of localizing action to address climate change. State governments might not have the reach or the resources that the federal government possesses, but they have the drive and support to address change where they can. Situations like these can sometimes even encourage states–such as Vermont, California, Hawai’i, and New York–to create stronger goals and legislation to address climate change than the federal government can or would implement. On top of state-specific action, local governments, organizations, and companies have started to take action to support the fight against climate change. America Is All In, a joint declaration of over 5,000 organizations committed to upholding the obligations of the Paris Agreement, is a prominent example of companies joining the fight against climate change. The coalition includes many influential companies such as Microsoft, which recently entered into an agreement to directly support the Paris Agreement.

While the United States may have left the Paris Agreement, hope can still be found in the shift to localized efforts. President Trump’s efforts to disrupt climate action in the United States may be successful at the federal level, but the path forward is clear for state and local governments, companies and organizations, and people and communities. Climate change must be addressed through all available avenues. For issues as pressing as climate change, action cannot be put off till the next administration.

Environmental Attorneys Push Vermont to Take CAFOs Seriously

By Julia Wickham

Americans eat meat. And lots of it. To satisfy consumer demand, land use needs, and workforce availability, concentrated animal feeding operations (“CAFOs”) are the predominate means of livestock production in the United States. Recently, a coalition of environmental groups brought suit against the EPA for their lack of Clean Water Act (“CWA”) oversight surrounding CAFOs. For example, Iowa has 4,025 “large” CAFOs according to the EPA. Iowa Department of Natural Resources considered over half of Iowa’s lakes, reservoirs, rivers and streams impaired. Iowans fear their climb to second place for highest cancer incidents in the nation correlates to the density of large animal operations and runoff infiltrating the water.

Yet, one of the most recent EPA interventions of CAFO pollution is in Vermont–home to only 37 “large” CAFOs. In September, the EPA ordered Vermont to control pollution from CAFOs and adhere to the CWA. The lax state regulations allow CAFOs to dump phosphorus into waterways, resulting in water quality issues such as cyanobacteria blooms in Lake Champlain. At first glance, EPA’s investigation and mandate regarding Vermont’s agricultural pollution seems misplaced given the relatively small number of CAFOs in the state. However, this federal scrutiny is clearer when considering Vermont’s status as home to one of the nation’s leading environmental law schools, which trains attorneys to advocate for stronger environmental oversight.

Starting in 2008, a Vermont Law School Clinic filed a petition asking the EPA to withdraw approval for the Vermont Agency of Natural Resources (ANR) to administer the National Pollutant Discharge Elimination System (NPDES) under the Clean Water Act. Vermont Law School cited numerous concerns with how ANR issued and enforced discharge permits to prevent water pollution. In response, EPA issued a 2013 Corrective Action Plan calling on ANR to improve various aspects of its NPDES program. However, nearly ten years later, the Conservation Law Foundation, Vermont Natural Resources Council and the Lake Champlain Committee filed a petition with the EPA voicing similar concerns to Vermont Law School’s 2008 petition. In response, the EPA launched another investigation and released the most recent demand letter in September 2023, requiring Vermont to change how the state regulates farms—specifically CAFOs.

Currently, Vermont law divides jurisdiction over agricultural water quality between ANR and the Agency of Agriculture, Food, and Markets (“AAFAM”). The agencies have attempted to manage the division of jurisdiction through Memoranda of Understandings (“MOUs”), dating back to the 1990s, updated in 2009, and again in 2017. In their most recent letter to ANR, the EPA determined this current division of responsibilities to be “preventing Vermont from adequately addressing agricultural water quality.”

Vice President of the Conservation Law Foundation (“CLF), Elena Mihaly, graduated Vermont Law School in 2013 with a J.D. and Masters in Environmental Law and Policy. In the investigation prior to submitting the formal 2022 petition to the EPA, Mihaly reported that CLF found glaring oversights from both ANR and AAFAM, including examples of email feuds over which agency had jurisdiction.

In December 2024, ANR sent a proposal for agency restructuring to the EPA. This would create a new permitting process for Vermont farmers overseen by ANR instead of initial inspections done by AAFAM with referrals to ANR. If the proposal is accepted by EPA, both agencies will participate in on-farm inspections, but ANR will take the lead. This 2025 Legislative Session, Vermont Legislators could provide more funding for state agency staff or draft legislative fixes for the overlapping delegation of authority.

The EPA’s focus on Vermont’s regulation of CAFOs may surprise others in states like Iowa where confinement barns dot the landscape, and there is 1 Iowan for every 7.3 hogs. However, Midwestern states have not fostered generations of environmental attorneys and advocates at their law schools. It has taken repeated attempts over nearly two decades to address the gaps in enforcement and oversight of the CWA in agricultural pollution in Vermont. However, because of Vermont Law School alumni and the Vermont Law School Clinic, Vermont is one step closer to having cleaner water. Vermont provides a framework demonstrating how a law school, dedicated to public service can push for change—if any young lawyers are looking to make some noise, Iowa’s wide open.