Category: Ecoperspectives

Cruelty for Me but Not for Thee: How Vermont’s Animal Cruelty Laws Could Protect Farmed Animals
By Anthony Corradi

Complaints of animal cruelty in Vermont rarely result in a change to an animal’s status. Voluntary compliance or enforcement via civil or criminal penalties only occur in 21% and 1.3% of cases respectively.[1] There are many reasons for this, including the fragmentation of the law’s enforcement and lack of knowledge as to what constitutes a violation.[2] Cases involving livestock and poultry are even rarer given the deference afforded to accredited animal husbandry practices.[3] Despite these challenges, an analysis of Vermont’s animal cruelty statute shows that Vermont can—and should—enforce a provision of the law to inhibit several common methods of farmed animal confinement.

The Vermont Legislature wrote the animal cruelty statute with the broad purpose of “prevent[ing] cruelty to animals.”[4] Correspondingly, the State should interpret and enforce the law to respect its breadth.[5] The statute states that one commits criminal cruelty when one “[t]ies, tethers, or restrains . . . livestock, in a manner that is inhumane or is detrimental to its welfare.”[6] This provision further exempts “[l]ivestock and poultry husbandry practices.”[7] However, in defining this term, the legislature did not simply defer to common or accepted industry practices. Instead, a three-part conjunctive test requires, in part, that farmers raise animals consistent with “husbandry practices that minimize pain and suffering.”[8] This language creates a powerful exception (to the exception) for farmed animals.

The State need not prove that farmers tying or restraining animals intended to act in a manner detrimental to the animal’s welfare. In State v. Gadreault, the Vermont Supreme Court held that this provision creates a strict liability offense.[9] Thus, Vermont only needs to show that a farmer has voluntarily tied or restrained an animal in a manner that causes harm.[10]

Further, because husbandry practices must minimize pain and suffering to be exempt from the cruelty statute imposes a real limit on acceptable farming techniques.[11] Since the legislature did not define “minimize,” we start with the dictionary definition.[12] The dictionary defines “minimize” as: “to reduce or keep to a minimum,”[13] where “minimum” means “the least quantity . . . possible.”[14] While some may interpret these definitions as only requiring a nominal reduction in pain and suffering, a straight reading requires farmers to take non-cost prohibitive measures to eliminate pain and suffering at any cost. The Vermont Supreme Court has not resolved this ambiguity in the context of the animal cruelty statute, as it has done in other statutes.[15] In those cases, the Court has generally taken the middle route, holding that one meets a mandate to “minimize” when a fact-intensive inquiry shows evidence of reasonable and concrete steps taken to mitigate negative effects.[16]

Accordingly, Vermont could use its current animal cruelty law to prevent several types of on-farm confinement such as battery cages and veal crates. Of special relevance to dairy-loving Vermont, though, is the “tie stall.” Tie stalls are a housing scheme in which farmers confine a cow to a narrow stall by a neck collar and chain.[17] Numbers for Vermont alone are unavailable, but as of 2014 between 20% and 42% of cows were kept in tie stalls in the eastern U.S.[18] These are likely conservative estimates for Vermont as the data also showed tie stall usage increased as herd size decreased.[19]

In a potential criminal or civil enforcement action, the State would need to show that confining a cow in a tie stall is a voluntary act done in a manner that is detrimental to the cow’s welfare. Of course, farmers choose to use tie stalls, and thus the voluntary requirement would generally be irrelevant. The question of the cow’s welfare is only slightly more difficult. Farmers can point to certain benefits of tie stall use that are incidental to a lack of outdoor freedom—such as the reduced prevalence of foot lesions.[20] Conversely, the negative effects of tie stalls are more numerous and arguably more severe. Harmful outcomes include disrupted natural lying behaviors, increased physiological stress levels and injury rates, and decreased emotional states.[21] As farmers and governments alike have concluded from similar observations and data, tie stalls are almost certainly more detrimental to cows’ welfare than not.[22]

Harmful or not, however, tie stalls are an accredited animal husbandry convention. Thus, Vermont would still need to show that the customary livestock practice exception should not apply. Here, the exception is void if the farmers using tie stalls have not taken reasonable actions to mitigate cows’ pain and suffering. Considering the statute’s broad purpose, the State could likely show that any act short of replacing tie stalls with free housing is unreasonable. Even if not, farmers would have to submit evidence of concrete steps taken to reduce the harm of tie stalls. Though less desirable than an outright exclusion, this would still reduce extended or permanent tie stall use as outdoor access is the clearest way to reduce negative outcomes.[23]

The State’s inaction on farmed animal cruelty is not solely due to a lack of legal authority. To the contrary, the Vermont Legislature and Supreme Court has made it clear that the law applies to farmers who do not take reasonable steps to reduce harm. This surely implicates the use of objectively detrimental practices like tie stalls, veal crates, or battery cages without further mitigating action. As a result, Vermont’s prosecutors and courts have a powerful tool—should they choose to utilize it—that could improve the lives of vast numbers of animals.

[1] Vt. Animal Cruelty Task Force, Report to Vermont House and Senate Judiciary Committees 23 (2016), https://legislature.vermont.gov/assets/Legislative-Reports/ACTF-Report-to-Judiciary-2016-FINAL.pdf.

[2] Id. at 22–24.

[3] Id. at 23.

[4] Vt. Stat. Ann. tit. 13, § 351a (2024).

[5] See In re SM Farms Shop, LLC, 2025 VT 33, ¶ 10 (“[O]ur primary goal is to give effect to the legislative intent.”).

[6] Tit. 13, § 352(3).

[7] Id.

[8] Id. § 351(13)(C) (emphasis added).

[9] 171 Vt. 534, 536 (2000) (concluding strict liability offense since punishment not severe and provision lacking intent element other provisions include).

[10] Id. at 537, (holding that “the restraint need only be detrimental” and “the perpetrator’s actions be voluntary”).

[11] See In re SM Farms Shop, LLC, 2025 VT 33, ¶ 10 (“[W]e presume that language is inserted advisedly and that the Legislature did not intend to create surplusage.”).

[12] See Id. ¶ 31.

[13] Minimize, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/minimize (last visited Oct. 21, 2025).

[14] Minimum, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/minimum (last visited Oct. 21, 2025).

[15] See e.g. In re Appeal of Shaw, 2008 VT 29 (analyzing whether tower’s visibility “minimized” as required by zoning ordinance).

[16] Id. ¶ 14–17.

[17] U.S. Dep’t of Agric., Dairy Cattle Management Practices in the United States, 2014, at 4 (2016), https://www.aphis.usda.gov/sites/default/files/dairy14_dr_parti_1.pdf.

[18] Id. at 160, 165 (20% of non-lactating “dry” cows and 42% of lactating “wet” cows).

[19] Id. at 159, 163.

[20] Annabelle Beaver et al., The Welfare of Dairy Cattle Housed in Tiestalls Compared to Less-Restrictive Housing Types: A Systematic Review, 104 J. Dairy Sci. 9383, 9406 (2021), https://www.sciencedirect.com/science/article/pii/S0022030221007177?ref=cra_js_challenge&fr=RR-1.

[21] Id. at 9401, 9406.

[22] Emily Fread, Transitioning From a Tie Stall to a Freestall, PennState Extension, https://extension.psu.edu/transitioning-from-a-tie-stall-to-a-freestall (last updated Aug. 15, 2024).

[23] Beaver, supra note 20, at 9392.

Border Patrol for Biodiversity: The Global Fight Against Invasive Alien Species
By Katherine Cantor

What comes to mind when you think of international trade? Is it wealthy businessmen and crowded shipyards? A lesser-known threat lurks: countries trade more than goods, they trade invasive species. Humans bringing non-native species into new lands is not new.[1] However, international trade has allowed these invasive alien species to lead ecosystem-altering sieges on foreign lands.[2] Much of the trade in invasive species is unintentional: they sneak across borders as secret seeds, parasites, or stuck on soil.[3] The main pathway for invasive alien species into new countries is through horticulture and the nursery trade, sometimes intentionally.[4]

Invasive alien species (IAS) are species brought to a new place by humans, which allows them to overcome barriers the native species face.[5] Unfortunately, this allows IAS to wreak havoc on native ecosystems.[6] IAS result in monetary harm through changes in nutrient cycling, hydrology, and the ecosystem’s ability to deal with disturbances.[7] Introduction of IAS also leads to significant extinctions. Since the 17^th century, “invasive alien species played a significant part ‘in nearly 40% of all animal extinctions’” with known causes.[8] This problem is especially widespread in America. Even disregarding overseas territories, the U.S. has some of the highest amounts of IAS worldwide.[9] Invasive species in the international markets are problematic, so what is being done?

International Regulations on Invasive Alien Species

There are many international treaties relevant to IAS.[10] The primary treaty is the Convention on Biological Diversity (CBD). The CBD states that countries should “[p]revent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.”[11] Unfortunately, while the U.S. signed the CBD, they did not ratify it.[12] The International Plant Protection Convention (IPPC) governs “pests”—species that are injurious to plants.[13] It also governs “quarantine pests”—pests that pose an economic threat to the introduced area.[14] The IPPC also developed International Phytosanitary Measures (IPMs), which set rules preventing the spread of pests in international trade.[15] Because the CBD, IPPC, and IPMs are all international, cooperation across countries and various levels of government is imperative. To aid international cooperation, the IPPC introduced an EPhyto program, where countries can electronically send and receive messages and phytosanitary certificates.[16] 127 countries have adopted the EPhyto program.[17] Under the CBD and IPPC, countries have taken the reigns and established their own regimes to protect against IAS.

Case Studies: What Other Countries Are Doing

America operates a host of programs fighting IAS under the IPPC.[18] The main American program carrying out the IPPC is the Animal and Plant Health Inspection Service’s Plant Protection and Quarantine program (APHIS-PPQ).[19] The APHIS-PPQ works to safeguard “against the entry, establishment, and spread of economically and environmentally significant pests.”[20] America is also a part of NAPPO, the North American Plant Protection Organization.[21] Under both the IPPC and NAPPO, the APHIS-PPQ developed their own set of International Phytosanitary Standards (IPS).[22] One specific IPS aims to prevent IAS from hitching a ride in on imported plants. Under that rationale, the NAPPO implemented a regional phytosanitary measure requiring plant-growers to ensure containment and control of possible pests.[23] This measure poses issues: what constitutes non-compliance and how the standard is enforced are both ambiguous.[24] Working internationally to prevent IAS, America also implemented the International Forestry Cooperation Act.[25] This Act allows support to non-U.S. forests through “prevention and control of insects, diseases, and other damaging agents.”[26] While America has many IAS regulations, the issue has not been diminished.[27]

Across the world, Viwa Island of Fiji is a success story in eradicating IAS.[28] This effort was congruent with the Fijian National Biodiversity Action Plan passed under the CBD.[29] The Action Plan notes concerns with IAS and states that it’s a priority for landowners to “use, manage, or eradicate species” that threaten biodiversity.[30] The Viwa Island plan originally started with the intent to eradicate poisonous and invasive cane toads.[31] After hearing community concerns, the project shifted to feral dogs, cats, and rats.[32] Community members were trained and “involved in all decisions and . . . engaged in the full range of management activities.”[33] Because community members were able to choose the IAS most disruptive to them, they were incredibly engaged.[34] Because of their engagement, all chosen species were completely eradicated.[35] The community has since cited increases in native lizards, birds, and crop yields.[36] Importantly, local communities now have the knowledge and skills to support biodiversity and manage IAS.

The goal of these international laws should be preventing IAS from being transported, rapid detection, and efficient eradication.[37] This necessitates global cooperation and enforcement of current laws. There are also moral questions raised in eradicating IAS that laws have not tackled.[38] While many regulations exist, the problem persists.

[1] Philip E. Hulme, Unwelcome exchange: International trade as a direct and indirect driver of biological invasions worldwide, 4 One Earth 666, 666 (2021).

[2] Id.

[3] Id.

[4] Anna J. Turbelin et al., Mapping the global state of invasive alien species: patterns of invasion and policy responses, 26 Glob. Ecology & Biogeography 78, 78 (2016).

[5] Id.

[6] Petr Pyšek et al., Scientists’ warning on invasive alien species, 95 Biological Revs. 1511, 1512 (2020).

[7] Id.

[8] Vito De Lucia, Bare Nature. The Biopolitical Logic of the International Regulation of Invasive Alien Species, 31 J. Envt’l L. 109, 110 (2019).

[9] Turbelin, supra note 4, at 83.

[10] Id. at 87–88.

[11] Convention on Biological Diversity art. 8(h), June 5, 1992, 1760 U.N.T.S. 79.

[12] List of Parties, Convention on Biological Diversity, https://www.cbd.int/information/parties.shtml. (last visited Oct. 9, 2025).

[13] International Plant Protection Convention, art. 2, Dec. 6, 1951, 4 U.S.T. 1791, 150 U.N.T.S. 67. (2d ed., 2024, at 2–3).

[14] Id.

[15] Adopted Standards (IPSMs), Int’l Plant Prot. Convention, https://www.ippc.int/en/core-activities/standards-setting/ispms/ (last visited Jan. 20, 2026).

[16] IPPC ePhyto Solution, Four Years In, United Nations International Computing Centre (Mar. 15, 2022), https://www.unicc.org/news/2022/03/15/ippc-ephyto-solution-four-years-in/.

[17] Member countries of the Central Asia Regional Economic Cooperation on the road to adopting the IPPC ePhyto Solution, International Plant Protection Convention (Oct. 9, 2023), https://www.ippc.int/en/news/member-countries-of-the-central-asia-regional-economic-cooperation-on-the-road-to-adopting-the-ippc-ephyto-solution/.

[18] International and Regional Plant Health Standards, U.S. Dep’t of Agric., Animal & Plant Health Inspection Serv., https://www.aphis.usda.gov/international-standards/plant-health-standards. (last modified July 30, 2025).

[19] Id.

[20] Plant Protection & Quarantine, U.S. Dep’t of Agric., Animal & Plant Health Inspection Serv., https://www.aphis.usda.gov/plant-protection-quarantine (last modified Sept. 30, 2025).

[21] International and Regional Plant Health Standards, supra note 18.

[22] Id.

[23] Secretariat of the North American Plant Protection Organization, RSPM 24 Integrated Pest Risk Management Measures for the Importation of Plants for Planting into NAPPO Member Countries 6–7 (2013).

[24] Id. at 10–11.

[25] 16 U.S.C. § 4501(b)(1)(D).

[26] Id.

[27] Turbelin, supra note 4, at 83.

[28] Sypmosia, A “Community” Approach to Invasive Species Management: Some Pacific Case Studies, Managing Vertebrate Invasive Species: Proc. of the USDA Nat’l Wildlife Rsch. Ctr. Symp. 29, 31 (2007).

[29] Fiji‟s Actions on IAS, Bioinvasion and Global Environmental Governance: The Transnational Policy Network on Invasive Alien Species 1, 2 https://www.cbd.int/invasive/doc/legislation/Fiji.pdf.

[30] Government of Vanuatu, National Biodiversity Conservation Strategy 21 (1999).

[31] Id.

[32] Id.

[33] Id.

[34] Id. at 32.

[35] Id.

[36] Id.

[37] Pyšek, supra note 6, at 1522.

[38] See Lucia, supra note 8, at 112.

All Politics is Local: Vermont Municipalities Can and Should Take the Lead in Driving Vermont to Achieve Energy Goals
By Aidan Sitler

The Vermont State legislature has made it easier for thermal energy networks to emerge as a viable option for clean heating and cooling in the State. The State set goals to lower energy costs and reduce greenhouse gas emissions in the Global Warming Solutions Act.^[1] Currently, Vermont is expected to fall short of attaining these goals.^[2] One of the best pathways for Vermont to achieve the target set in the Act is for towns to lead the efforts and establish municipally owned thermal energy networks.

Why Thermal Energy Networks?
Thermal energy networks “use a shared network of water-filled pipes that transfer heat in and out of buildings.”^[3] Thermal heating and cooling systems work by exchanging heat with the constant temperature below Earth’s surface to regulate the temperature inside the buildings.^[4] Thermal energy networks use a heat pump connected to the underground network of pipes. ^[5] The pipe’s water stores heat regulated by the in-building pumps.^[6] The pumps regulate heat as a sink to absorb excess heat during the summer months, and act as a heat source during the colder winter months.^[7] The more buildings connected to the same network, the more efficient the exchange and stronger the system.^[8] Thermal energy networks can replace traditional heat methods that rely on fossil fuels, such as natural gas, and traditional cooling methods that rely on inefficient air conditioning.^[9] In addition to replacing these methods entirely, thermal energy networks can co-exist with traditional heating and cooling methods as a way to supplement the majority of the energy needed to run them.^[10] Local municipalities benefit from the build-to-scale model for outfitting neighborhoods and existing infrastructure with thermal energy networks.^[11]

Why Local Municipalities?
The design and scale of thermal energy networks are what make them ideal for local municipalities to implement and control. Traditionally, in Vermont, any entity wanting to establish a thermal energy network would have to obtain a certificate of public good.^[12] The Vermont Public Utility Commission requires a certificate of public good to begin construction.^[13] Obtaining a certificate is a lengthy application process that requires many procedural obstacles, reducing a project’s chance of success.^[14] Because thermal energy networks are a way of distributing heat among citizens, they would normally be subject to the control and regulations of the public utility commission.^[15]

Recently, Vermont enacted Act 142, which changed regulations surrounding public utilities.^[16] A major change in the Act is that local municipalities no longer require a certificate of public good or permission from the public utility commission to establish and operate a thermal energy network.^[17] The Act now allows municipalities to “have the authority to construct, operate, set rates for, finance, and use eminent domain for thermal energy networks . . . .”^[18] This change creates opportunities for municipalities in Vermont to greenlight construction on thermal energy networks. The benefits from the Act for the municipalities include foregoing the application process and regulation from the public utility commission. The benefits from the Act for the citizens come in the form of reduced rates, energy efficiency, and having a voice in their energy needs.

Rate decreases for users in a thermal energy network are reflected in the efficiency of the system. As the network becomes more efficient, the municipality will be able to save on energy costs. These savings can then be passed down as lower rates for every user of the network. Thermal energy networks can also ensure fixed rates for users as they are not subject to traditional fluctuations in cost.[19] These fluctuations occur from the natural gas global market, supply chain, or fuel transportation fees.^[20] Instead, thermal energy networks rely on local resources to effectuate heating and cooling.^[21]

Citizens will also have opportunities to go directly to the town with concerns and feedback on how their thermal energy network is functioning. This creates a more local, hands-on experience for users of the energy networks in voicing their needs. Inclusion is important for creating an equitable energy system, which is more difficult to do when citizens must navigate the public utility structure.^[22] The local management of the thermal energy networks allows for a greater ease of access and accountability in the operations.

For Vermont to get back on track and achieve its goals of lowering energy costs and reducing its greenhouse gas emissions, there needs to be a greater push at the local level. Municipalities are in a unique position to be the best fit owners of a thermal energy network, both within the logistical and regulatory frameworks surrounding the networks. It is time for Vermont towns to take advantage of this new exemption and begin implementing thermal energy networks to address the energy concerns in the State.

^[1] 10 V.S.A § 578(a).

^[2] Austyn Gaffney, State concludes Vermont is failing to meet its carbon reduction targets, vtdigger, (July 22, 2025), https://vtdigger.org/2025/07/22/state-concludes-vermont-is-failing-to-meet-its-carbon-reduction-targets/.

^[3] Thermal Energy Networks, BDC, (Sep. 15, 2025), https://buildingdecarb.org/resource-library/tens.

^[4] Geothermal Heat Pumps, U.S. Dep’t of Energy, (Sept. 16, 2025), https://www.energy.gov/energysaver/geothermal-heat-pumps.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] Reyna Cohen et al., Understanding Thermal Energy Networks, Cornell Univ. (2024), https://www.ilr.cornell.edu/sites/default/files-d8/2024-12/understanding-thermal-energy-networks.pdf.

^[9] Id. at 16.

^[10] Id. at 12.

^[11] Id. at 15.

^[12] 30 V.S.A. § 248(a)(2)(B).

^[13] Certificate of Public Good, VEPP, (Sept. 15, 2025), https://vermontstandardoffer.com/standard-offer/request-for-proposals/certificate-of-public-good/.

^[14] Id.

^[15] Reyna Cohen et al., Understanding Thermal Energy Networks, Cornell Univ. (2024), https://www.ilr.cornell.edu/sites/default/files-d8/2024-12/understanding-thermal-energy-networks.pdf.

^[16] 30 V.S.A. § 231(d).

^[17] Id.

^[18] Id.

[19] Cohen et al., supra note 15.

^[20] Id. at 12.

^[21] Id.

^[22] Certificate of Public Good, supra note 13.

Moving Backwards: EPA Aims to Repeal Greenhouse Gas Emission Standards for Power Sector
By Matthew Allen

On June 11, 2025, the U.S. Environmental Protection Agency (EPA) proposed to repeal greenhouse gas (GHG) emission standards for fossil-fuel-fired power plants. GHG standards act in direct accordance with the Clean Air Act (CAA).[1] The Supreme Court granted EPA this power after it held in Massachusetts v. EPA that the CAA authorizes EPA to regulate GHG emissions.[2] CAA requires standards for emissions of air pollutants from stationary sources like power plants.[3] EPA Administrator Lee Zeldin indicates this proposal would provide more reliable energy supply and drive down costs which would benefit U.S. citizens.[4] Eliminating GHG emission standards would not only violate the CAA, but would be a direct contradiction to what the EPA seeks to protect.

Administrator Zeldin’s reasoning is no more than a showing for public appeal. EPA proposal looks to neglect years of scientific data, research, and positive changes the CAA has helped to promote. Deregulating GHG emissions could create long lasting environmental and public impacts, reversing decades of effort.[5] This proposal leans more toward corporate and production convenience rather than focusing on EPA’s mission of protection and sustainability.[6] Although the proposal has been submitted, EPA ought to look back at its roots and prevent this injustice from continuing.

EPA is looking to cut the red tape burdening energy production for facilities. Actions like this proposal draw concern for quality of public health and future climate issues. Mary Rice and Amruta Nori-Sarma, Professors of Environmental Health at Harvard University School of Public Health addressed concerns on the long-term effects of deregulating GHG emissions.[7] Greenhouse gases like carbon dioxide (CO₂) and other toxic substances released expose harmful pollutants to the public, especially for children and the elderly.[8]

Not only are short-term air pollution effects of concern, so are long-term climate impacts. GHGs are linked to increased temperatures, more frequent and severe wildfires, and severe weather patterns.[9] Emissions from GHGs like CO₂, methane, and nitrous oxide from burning of fossil fuels and other production are the primary drivers of climate change.[10] Like some health professionals, American Public Health Association (APHA) strongly opposes EPA’s decision for these rollbacks.[11] APHA argues “these rules are especially important, as they would bring environmental and climate justice to historically disadvantaged communities, which face the greatest exposure to pollution from the power sector.”[12] Many private and public organizations have joined in opposition to these rollbacks including, U.S. Climate Alliance, Sabin Center, Health Care Without Harm.[13] All of which have expressed how the repeal of these standards can cause significant harm.[14]

Under the CAA, the Administrator shall include  sources that contributes significantly to air pollution resulting in possible endangerment to public health or welfare.[15] In Massachusetts v. EPA, the Court originally only refers to motor vehicles or “moving” sources as a necessary regulated issue.[16] That holding addresses key distinctions that relied upon statutory interpretation of the CAA. Under CAA, a pollutant must reasonably be anticipated to endanger public health or welfare.[17] EPA argues that GHG emissions from fossil-fuel-fired power plants do not contribute to dangerous air pollution.[18] EPA also proposes that it is the responsibility of the agency to prove the emissions are dangerous prior to issuing regulations.[19]

Removing the regulation standards opens the door for power plants to emit anything and everything they want without accountability. EPA estimates this proposal would save over $15 billion on regulatory costs over the course of two decades.[20] Not only does EPA believe GHG emissions play a little part in climate change, the proposal does not address any future public health concerns of these rollbacks.[21] A repeal of emission standards would constitute a clear violation of CAA. [22] New or previously existing facilities would no longer be enforced to regulate their emissions.[23]

EPA’s proposal is based on a new scientific and economic framework that contradicts the Endangerment Finding codified in 2009.[24] The Endangerment Finding states that regulation must be prescribed for any motor vehicle that emits air pollutants. The Endangerment Finding also states that regulations can be set if emissions contribute to the endangerment of public welfare.[25] EPA’s proposal to remove  the Endangerment Finding is supported by the Department of Energy, where multiple scientists challenged the validity of the climate crisis.[26] The scientists claim that models and experience suggest that CO₂ “might be less damaging economically than commonly believed, and excessive mitigation policies could prove more detrimental” to economic and environmental safety.[27] The authors of the Greenhouse Gas Emissions Review exhibit skeptic ideology regarding climate change.[28] An administrative push towards less regulatory restrictions and skepticism of climate change could play a major role on why the EPA is utilizing this report. Regardless, the objective to repeal the Endangerment Finding directly correlates to GHG emissions under CAA. A rollback of these necessary standards could cause legal and environmental uproar.

EPA challenges the established authority under CAA to set emission standards. EPA establishes the standard of performance which creates a standard that reflects the “degree of emission limitation.”[29] Subsequently, this standard represents the best system of emission reduction and monitoring to prevent poor quality of health and environmental impacts. Even with emission standards in place, facilities are still meeting energy requirements.[30] This standard directly correlates with the administrative power to enforce the regulations.[31] EPA’s proposal wishes to reshape the meaning of standard of performance to allow EPA more leeway with emissions regulations.[32] In turn, the administration is attempting to remove current authority established within CAA that authorizes EPA to establish emission standards. EPA’s argument stems from seeking to eliminate regulatory roadblocks that prohibit efficiency.[33] While this action may streamline regulatory process, the proposal creates an open market for facilities to ignore previous standards. GHG emission standards established a sense of responsibility for emitters to protect the environment and public welfare. This proposal could negate years of challenging work and corporate accountability.

CAA stands as the foundational element to authorize EPA to regulate emissions from stationery and mobile sources. This aligns with the protection of public health and welfare.[34] EPA should not look at flawed science or misrepresentations of foundational statutes. EPA should focus on sustainability and not jeopardizing the safety of the community. Courts should continue to act against rash decisions, like this proposal, which deregulate key initiatives instead of protecting our environment.

[1] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).

[2] Massachusetts v. EPA, 549 U.S. 497, 521 (2007).

[3] 42 U.S.C. § 7411(a)(3).

[4] EPA, Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power Plants (July 10, 2025), https://www.epa.gov/stationary-sources-air-pollution/greenhouse-gas-standards-and-guidelines-fossil-fuel-fired-power.

[5] Karen Feldscher, Trump Administration Plans to Roll Back EPA Regulations Could Harm Health, Harvard T.H. Chan Sch. of Pub. Health (Sept. 16, 2025), https://hsph.harvard.edu/news/trump-administration-plans-to-roll-back-epa-regulations-could-harm-health/.

[6] EPA, Our Mission and What We Do (Jul. 23, 2025) https://www.epa.gov/aboutepa/our-mission-and-what-we-do.

[7] Feldscher, supra note 5.

[8] Id.

[9] Id.

[10] See Hannah Ritchie et al., CO₂ and Greenhouse Gas Emissions, Our World in Data  https://ourworldindata.org/co2-and-greenhouse-gas-emissions (last visited Sept. 17, 2025)

[11] See Rolling Back EPA Regulations Will Hurt Communities Across the Nation, American Pub. Health Ass’n (Mar 13, 2025), https://www.apha.org/news-and-media/news-releases/apha-news-releases/rolling-back-epa-regulations-will-hurt-communities-across-the-nation.

[12] Id.

[13] See also EPA Power Plant Rollback Sparks Opposition from Health, Faith, Business, State, and Local Leaders, AMERICA IS ALL IN (Aug. 8, 2025), https://www.americaisallin.com/epa-power-plant-rollback-sparks-opposition-health-faith-business-state-and-local-leaders.

[14] Id.

[15] 42 U.S.C § 7411(b)(1)(A).

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

[17] 42 U.S.C § 7411(b)(1)(A).

[18] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).

[19] Id.

[20] Id.

[21] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).

[22] 42 U.S.C § 7411.

[23] 42 U.S.C § 7411(d)(1).

[24] Eric Waeckerlin et al., EPA Proposes Rescission of Power Plant GHG Standards Under Clean Air Act Section 111, GreenbergTraurig (June 16, 2025), https://www.gtlaw.com/en/insights/2025/6/epa-proposes-rescission-of-power-plant-ghg-standards-under-clean-air-act-section-111.

[25] 42 U.S.C § 7521(a)(1).

[26] Department of Energy Issues Report Evaluating Impact of Greenhouse Gasses on U.S. Climate, Invites Public Comment, U.S. Dep’t of Energy (July 29, 2025), https://www.energy.gov/articles/department-energy-issues-report-evaluating-impact-greenhouse-gasses-us-climate-invites.

[27] Climate Working Group, A Critical Rev. of Impacts of Greenhouse Gas Emissions on the U.S. Climate U.S. Dep’t. of Energy x, ix (2025).

[28] Id.

[29] 42 U.S.C. § 7411(a)(1).

[30] Id.

[31] 42 U.S.C. § 7413(1).

[32] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60).

[33] Id.

[34] 42 U.S.C. § 7411(b)(1)(A).

Withdrawing from the UN Climate Negotiations: Cascading Mistakes from the Trump Administration
By Rachel Westrate

No one was particularly shocked when one of President Trump’s first acts upon returning to office on January 20, 2025 was to sign an executive order directing the State Department to withdraw from the Paris Agreement on climate change. After all, Trump pulled out of the Agreement during his first term, only for the United States to re-join the Agreement under the leadership of President Joe Biden in 2021. Now, a new January 7, 2026 Presidential Memorandum demands the U.S. withdraw from the parent treaty of the Paris Agreement—the United Nations Framework Convention on Climate Change (UNFCCC)—as well as 30 other United Nations entities and 35 non-U.N. organizations.

Withdrawal from the UNFCCC will make the United States the only U.N. member state that does not participate in the international climate treaty. For those who care about the health of our planet, U.S. foreign relations, or general international order, this move is deeply troubling. It is unsurprising that this Administration would take such drastic measures to prevent the United States from participating in the international climate conversation. But it is also a profoundly un-strategic move by the Trump Administration, given both their keen interest in international energy trends and ongoing domestic litigation against state climate laws.

This blog will provide a brief background on the international climate regime, summarize the legal speculations around the U.S. withdrawal from the UNFCCC, and discuss the implications for Trump’s international and domestic priorities.

Background: the UNFCCC & International Climate Negotiations

The United States was the first industrialized country and the fourth country overall to join the UNFCCC, after ratification by the Senate and signature by Republican President George H.W. Bush. As the first and still the most significant multinational climate treaty, the UNFCCC establishes the framework under which countries cooperate to address climate change. That framework entails an annual Conferences of the Parties (COPs) where UNFCCC member states negotiate “legal instruments” or “protocols” to help achieve the UNFCCC’s goal of stabilizing greenhouse gas concentrations in our atmosphere.

Countries have negotiated and adopted two main instruments under the UNFCCC: the 1997 Kyoto Protocol and the 2015 Paris Agreement. The United States signed the Kyoto Protocol in 1998. But the Senate never ratified that treaty, because it called for binding emissions reductions in developed countries without imposing similar obligations on developing countries (the Byrd-Hagel Resolution expressing the Senate’s distaste for Kyoto passed with a vote of 95 – 0). As soon as it became clear that the U.S., the largest annual emitter of greenhouse gases at the time, would not ratify the Kyoto Protocol, negotiations began anew under the UNFCCC to work toward an agreement that would be more universally accepted.

The result was the Paris Agreement. Paris, unlike Kyoto, does not mandate emission cuts from any country. Instead, it establishes a cooperative framework under which countries work together to limit warming to under 2 degrees Celsius by creating and submitting plans to reduce national greenhouse gas emissions (called Nationally Determined Contributions, or NDCs). Parties to the Paris Agreement must also submit annual reports on their greenhouse gas emissions. Aside from those reporting obligations, though, the Paris Agreement is an entirely voluntary instrument, relying on bottom-up, domestic action within countries to address climate change—an evolution from the top-down, mandatory emissions reductions required under the Kyoto Protocol. 195 member countries to the UNFCCC adopted the Paris Agreement in 2015, and President Obama used his executive authority to ratify the Agreement on behalf of the United States in 2016.

President Trump withdrew from the Paris Agreement upon taking office, with the U.S. withdrawal becoming effective in 2020. The U.S. then rejoined under President Biden in 2021, only to deposit a notice of withdrawal from the Paris Agreement with the Office of the U.N. Secretary General on January 27, 2025, shortly into Trump’s second term. The U.S. withdrawal will become effective one year from that date, on January 27, 2026. (For a full timeline and guide, see NRDC’s Paris Climate Agreement: Everything You Need to Know).

Legal Implications of Withdrawing from the UNFCCC

While a President can unilaterally withdraw from the Paris Agreement (given that President Obama unilaterally entered it in 2016), it is a matter of legal debate whether the same is true of the UNFCCC. During the last Trump Administration, legal scholars built a body of work exploring this question. Professor Harold Koh published a 2018 essay arguing the President does not have the authority to unilaterally terminate or withdraw from any international agreement. Professor Jean Galbraith argued in a law review article that if a President unilaterally withdraws from a Senate-ratified treaty, the action does not negate the Senate’s initial advice and consent, and a future President could unilaterally rejoin the same treaty without seeking Senate re-authorization. But there is no Supreme Court precedent on unilateral withdrawal or rejoining of Senate-ratified treaties, and so the question remains up for debate.

This time around, the climate legal community has been quick to opine on whether or not the President can withdraw from the Framework Convention without consulting Congress and what withdrawal might mean for U.S. participation under a more climate-friendly future administration. Former U.S. climate negotiator Sue Biniaz and Professor Galbraith explained the international and domestic process of withdraw and reiterated their theory of rejoining without additional Senate consent. Carbon Brief collected experts’ thoughts on withdrawal, rejoining, and practical changes to the climate negotiations absent U.S. participation, detailing the legal uncertainty of the move and analogizing to other international organizations the U.S. has left and rejoined. Law Professor Dan Farber suggested that the U.S. may not even need to be a party to the UNFCCC to play a role in the Paris Agreement. The Executive Secretary of the UNFCCC issued a statement on Thursday, January 8^th noting that “the doors remain open for the US to reenter in the future”—but what that looks like legally is anyone’s guess.

We have yet to see if any litigation will be filed against the Trump Administration for this latest action—and whether any potential litigation may provide us with a definitive answer.

International Implications

By withdrawing from Paris, the United States will no longer be required to submit an NDC, nor will it submit yearly reports on domestic emissions (although, despite the withdrawal not officially occurring until 2026, the Trump Administration failed to submit the data in 2025). U.S. funding to the international climate organizations has ceased, including the UNFCCC and the Green Climate Fund (GCF).

But the U.S. withdrawal also means it can no longer participate in negotiations as a party and does not have the right to vote, which in turn means the U.S. will no longer have a say on topics that seem central to the Trump Administration’s policy agenda. In recent years, multinational climate negotiations have increasingly seen calls for an international roadmap to phase out fossil fuels, which would jeopardize the Administration’s goal of exporting domestic fossil fuels. The U.S. has already used its influence in other spheres to weaken environmental language coming out of the U.N., and it seems strange the Administration is willing to so easily give up the opportunity to thwart international climate progress.

Pulling out of the UNFCCC also means that future decisions and agreements will not reflect the interests or priorities of the United States—and are likely to be more heavily influenced by other big players. That includes China, which is rapidly expanding its global influence and renewable energy markets, and the European Union, which usually favors a more top-down, regulatory approach to addressing climate change in comparison to U.S.-favored market-based, voluntary approaches (for evidence of the U.S.-EU tension, see recently released State Department papers detailing the lead up to the Paris summit).

But what is bad for the Trump Administration could well be good for people and the planet. The lack of the presence of the United States, and particularly the Trump Administration, could leave room for more innovation and progress in the climate talks, as U.S. positions (in both Republican and Democratic Administrations) against mandatory emissions reductions, climate finance contributions, and phase-out of fossil fuel subsidies have frustrated negotiations in the past. While deep divides remain among countries party to the UNFCCC and the Paris Agreement, the power vacuum left by the U.S. may create an opportunity for new players and alliances to support ideas that would have previously been considered dead on arrival.

The folly of the Trump Administration and the potential for new movement in the climate negotiations, however, are unlikely to outweigh the staggering loss of the U.S. withdrawing from the UNFCCC. A climate process without the largest historical emitter of greenhouse gases, the second largest current emitter of GHGs, and the world’s largest economy can only achieve so much when climate change is a collective action problem. And while the international climate negotiations process will not break down without the participation of the U.S., the country has been a major player for the last thirty years and often a broker of compromise.

Beyond this Administration, if decisions and agreements coming out of the COPs are not reflective of U.S. priorities and political landscape, it may also make it more difficult for the U.S. to rejoin in the future. President Obama was able to unilaterally join the Paris Agreement because domestic legislation and authority already existed to allow the country to comply with obligations under the agreement—and U.S. negotiators worked to design the agreement with this in mind. Even in the final hours of the negotiations over the Paris Agreement, State Department lawyers had to lobby for a one-word change that threatened the U.S.’s ability to support the outcome. Without U.S. input and pressure, it is possible for the negotiations to produce outcomes that even a climate-friendly Administration would be unable to rejoin without action from the Congress.

Domestic Implications: Inconsistencies in Ongoing Litigation

Perhaps especially cofounding is the Trump Administration’s decision to withdraw from the UNFCCC while relying on U.S. membership in the organization to justify ongoing domestic litigation against state climate laws. Both Vermont and New York passed climate superfund acts in 2024, which require payments from entities that emitted large amounts of greenhouse gases in the past several decades to help pay for climate adaptation projects in the states. On May 1, 2025, the United States of America and the United States Environmental Protection Agency filed suit against Vermont and New York, claiming (among other things) that the climate superfund laws are preempted by the federal government’s foreign affairs power.

The basis for the lawsuits overall is fundamentally flawed, given that the climate superfund laws do not regulate greenhouse gas emissions, states have both a right and responsibility to protect their citizens and environment, and both the UNFCCC and Paris Agreement support subnational action. But putting aside the Trump Administration’s mischaracterization of the laws and misunderstanding of national and international law, withdrawing from the UNFCCC fatally undermines their arguments that the federal government’s participation in the UNFCCC is what preempts states from acting on climate.

In its complaint against Vermont, the United States argues that “[b]y adopting the Framework Convention, the federal government undertook to formulate foreign policy” on greenhouse gases. It characterizes Trump’s decision to withdraw from the Paris Agreement as a foreign policy decision because Trump wants to “put the interests of the American people first in negotiating the terms of any future treaty to implement the” UNFCCC. The Vermont Act, the brief claims, “interferes with… the United States’ participation in the” UNFCCC. In a subsequent brief, the Department of Justice also argues that state climate superfund statutes conflict with the 1987 Global Climate Protection Act, in which Congress directed the President to “‘work towards multilateral agreements’ on greenhouse gas emissions.”

By withdrawing from the UNFCCC, the Trump Administration has pulled the rug out from under those arguments. The Administration has ensured that the United States will not be negotiating any future treaty to implement the UNFCCC or to carry out its obligations under the Global Climate Protection Act. By abdicating its role in formulating the American climate policy, the Trump Administration may well have cleared the way for states to fill the void.

The news from January 7^th is, without a doubt, a major setback for the international climate negotiations. But it is also, as U.N. climate chief Simon Steill said, a “colossal own goal” for the United States and the Trump Administration in their quest to influence international and domestic climate priorities in the coming years.

Justice and Equity in Community Forestry: An Enigmatic Dogma?
By Aayush Gautam[1]

In 1987, the Brutland Commission offered the world a new vision with the report “Our Common Future”: a development that meets present needs without compromising the future.[2] This gave rise to a new domain of developmental approach, the concept of “Sustainable Development”, which gained global prominence in the early 1990s.[3] With this came a wave of participatory natural resource management, an ethos grounded in local empowerment and ecological sustainability. Around the globe, countries began embracing models that placed communities as a frontier of development and environmental stewardship.

Nepal, a readily accepting nation for the global initiatives, rode this global wave with legal acceptance in the forestry sector giving legality to the Community Forestry (CF), which later became one of the most acclaimed environmental governance models in the country.[4] However, community-based forest management in Nepal had already taken root in earlier decades, under state-led programs such as Panchayat Forest and Panchayat Protected Forest under the legal provision of Forest Act, 1961.[5] While these earlier models were framed under the centralized Panchayat governance structure, they offered a glimpse of local involvement in forest care and use.

By the early 1990s, this evolved into a nationwide movement. Community Forests, now legally recognized and supported by formal policies, became one of the most acclaimed environmental governance models in the country. Fast forward to today, over 23,000 Community Forestry User Groups (CFUGs) manage approximately 2.58 million hectares, accounting for more than 36% of Nepal’s forest area.[6]

Community Forests: Beyond the canopy

The journey of CFs is, by many measures, a success story. Did CFs help reestablish depleted forest cover that had been lost in the 1970s and 80s? Yes. Did they support livelihoods and reduce dependency on state-managed resources? Yes. Did they strengthen local relationships and collective action? Yes. Did they inject value into local economies and into the national economy as a whole? Yes. But as in most complex social endeavors, bold “Yes” or “No” answers rarely capture the full picture. There is often a blurry line between the two sides of yes and no.

For example, while community forestry successfully restored forest cover, a critical examination is required: : What is the actual meaning of forest restoration? Is it just the visual recovery of the tree stands and increased forest cover? Or the regeneration of a healthy, functional forest ecosystem? Much of Nepal’s CF’s success has focused on reestablishing lost forest cover, but issues of monoculture plantation, the growing threat of wildfires, biodiversity loss of often ignored flora and fauna cast doubt on the ecological robustness of this restoration. Similarly, CFs were initially established to meet local sustenance needs, especially in Nepal’s mid-hills, where fuelwood was essential for cooking. But has CF governance evolved to meet the changing aspirations of communities whose energy needs, economic goals, and demographic dynamics have shifted? Theat remains an unreached terrain of answered geography.

However, caution to the readers, this article does not aim to glorify the pessimistic views presented to downplay CF’s notable achievements. Romanticizing or vilifying the participatory model misses the nuances of interpretation. The goal of this piece is to reflect honestly upon the scenario, on the dimensions of social justice and equity, which often remain buried beneath the roots of a tall standing forest canopy.

Story of the Musahar Community Forest[7]

The Musahar Community Forest is located at the confluence of Khairmara and Madiya river in Ward No. 10 of Bardibas Municipality, Mahottari district. With an area of 36 Hectares, it serves as a vital resource for its users, which provides both ecological benefits and livelihood opportunities. During the early 1980s, local communities from Gausala (south of the forest) felled the forest trees for agricultural purposes, starting a feud with the forest authorities. In the early 1990s, the forest was covered with overgrown bushes, which were cleared by the Musahar community and subsequently planted with fruit trees. Mangoes, jackfruit, citrus, and litchi trees were introduced in about 14 hectares of land. “Each of the 37 households planted 32 fruit trees in the forest completing almost 2000 fruit trees plantation in 1996” – says Dev Narayan Yadav and Ramchandra Sada.

The sale of mangoes through contracts brought an annual average income of almost 0.5 million (all financial figures written in Nepali rupees, NRS). The community already have provided assistance of almost 2 million in social and infrastructure development initiatives like roads, electricity, drinking water, and hospitals. “We were providing monthly salary of 49 thousand to four teachers of Musahar and Yadav community in the nearby school” – says one of the members in the meeting of the user groups. The hand-over of the community forest soon became a transformative initiative in enhancing both ecological and social well-being.

Nonetheless, things gradually took an unprecedented turn. Tensions began to rise among and within the community once lucrative income from the mangoes sales became apparent. Initially managed by the marginalized Musahar and Tamang communities, the CF soon faced demand for inclusion from communities like Koiri, Yadav, and Mahato households. These disputes led to divisions among community members, fueled by historical grievances and socio-political dynamics. “Whenever the meetings were held, disputes arose, and after that, forest officials stopped attending the meetings” – says Ram Babu Mahato in the user group meeting.

Internal tensions, coupled with allegations of financial mismanagement, also made Mangoes’ contract inconsistent and on the brink of closure. Total earnings from the sales were overshadowed by the Secretary of the committee, with significant amount left unrecorded and unaccounted for. This exacerbated mistrust among users. Consequently, the financial discrepancy is being watched by the Commission for the Investigation of Abuse of Authority (CIAA), the bank account has been frozen, and the salaries of the teachers have not been paid for five months. The forest’s exemplary transformation to the community-managed resource spectacle devolved into a state of stalemate and governance fiasco.

Reflection and Conclusion

The issue in the Musahar CF is not an isolated case. It is a reflection, sometimes a warning, of deeper structural issues in community forests across Nepal. Power asymmetries, weak institutional safeguards, and selective participation often overshadow the ideals.

One of the female CFUG secretaries in Kavrepalanchowk district of central mid-hill region says, “I’m in the committee just as a mud statue. They tell me to sign a decision or a cheque, so I do. I don’t know what they do or how they do it. They say nothing will happen.” In the name of obligatory representation, it is a symbolic inclusion, a common practice across many CFUGs. We cannot deny that the “pseudo-participation” seen here is not mirrored in countless community-based forest governance, where decisions are made behind the back and marginalized voices are reduced to a mere signatory.

If Nepal’s community forestry model is to thrive ecologically and ethically, it must go beyond the practice of merely planting trees and sharing resources based on legal provisions. It must redistribute power, recognize structural inequalities, and represent all voices fairly, especially those of the marginalized ones. Because in the end, a community forest is more than just a patch of trees. It is a social contract, and its health depends as much on its canopies as on the justice rooted beneath it.

[1] Aayush Gautam is a forestry researcher working at the intersection of forest science, governance, and forest-based enterprise development in Nepal. He holds a Master of Science in Forestry (Gold Medalist) from Tribhuvan University and has a background in applied research, policy analysis, and field-based forest management.

[2] See Our Common Future, Rep. Of the World Comm’n on Env’t and Dev., U.N. Doc. A/42/427 (1987).

[3] . History of SD, Sustainable Development Commission, https://www.sd-commission.org.uk/pages/history_sd.html (last visited Oct. 5, 2025).

[4] Forrest Act, 2049 of 1993; see also G. C. Dhruba Bijaya, et.al., Community Forestry And Livelihood In Nepal: A Review, The Journal of Animal & Plant Sciences (2016), https://www.thejaps.org.pk/docs/v-26-01/01.pdf.

[5] Pramod Ghimire & Uchita Lamichhane, Community Based Forest Management In Nepal: Current Status, Successes and Challenges, Grassroots Journal of Natural Resources (June 20, 2020), https://www.researchgate.net/publication/342501024_Community_Based_Forest_Management_in_Nepal_Current_Status_Successes_and_Challenges.

[6] Nepal’s Community Forest Groups: Incubators of Democracy, Community Conservation (July 2, 2025), https://communityconservation.org/nepals-community-forest-groups-incubators-of-democracy/; see also Hari Krishna Laudari, et.al., Community forestry in a changing context: A perspective from Nepal’s mid-hill, 138 Land Use Policy (Mar. 2024), https://www.sciencedirect.com/science/article/pii/S0264837723004842.

[7] Some assertions are from the Author’s experience during a field visit to the Musahar Community Forest. The field visit was conducted in June 2025 and involved direct observation, participation in user group meetings, and discussions with community forest user group members and local residents. The following account draws on these field interactions and community testimonies.

Can You Dig It? Artificial Pond Construction in Vermont
By Dane Whitman

“What I have observed of the pond is no less true in ethics. It is the law of average.”[1]

In 1901, the Harvard Law Review published an article stating, “[a]lthough comparatively little has as yet been written about the law of ponds, the decisions are hopelessly confused.”[2] One could argue that, since then, ponds continue to attract relatively little attention in the field of environmental law. Rather than perform an extensive review of the “law of ponds” (previously attempted by Samuel Warren and Louis Brandeis in the 1889 edition of Harvard Law Review),[3]  this blog post will explore a narrower topic: artificial pond construction in Vermont.

Vermont is home to “hundreds of small ponds, many of which provide a great habitat for plants, animals, and people.”[4] Satellite images over Vermont (such as the title image) reveal a landscape sprinkled with countless kidney-bean-shaped pockets of water seemingly unconnected to natural waterways.[5] Are these pools the result of lawless backwoods excavations? Or are backyard ponds evidence of Vermonters exercising their property rights to improve the local ecosystem? An overview of Vermont’s legal landscape suggests that there are both environmental opportunities and considerable risks regarding artificial ponds.

One example of a Vermont homestead utilizing artificial ponds for environmental benefits is Whole Systems Research Farm in the Mad River Valley.[6] The farm’s owner, Ben Falk, excavated a pond that catches rainwater and snowmelt from the upper portions of the property and then irrigates a series of terraced rice paddies.[7] The pond serves as a “bathroom” for his domestic ducks, and therefore the pond water irrigating the rice paddies is “rich in nutrients.”[8] The two small paddies are scaled for subsistence farming, producing enough rice “to satisfy the grain needs of a family of four.”[9]

Amy Siedl, a biologist and lecturer at the University of Vermont, has cited Falk’s farm as a model for climate adaptation.[10] Seidl has suggested that, given the Northeast’s increasing precipitation from climate change, artificial pond systems such as Falk’s are well-suited to capture rain from these events.[11] For example, Falk’s rice crop “thrives” during historic rain events, such as Hurricane Irene, whereas many of Vermont’s corn farmers have struggled with increasingly wet soil conditions.[12]

The remarkable potential of these artificial ponds begs the question: are they legal? Most prudent property owners might be intimidated by the prospect of renting an excavator and breaking ground without performing due diligence. Fortunately, Vermont regulators provide guidance (often accompanied by disclaimers of liability) for property owners to dig ponds that are structurally safe and environmentally sound.

To some extent, Vermont law supports property owners to construct artificial ponds. For example, Vermont’s statutes expressly allow property owners to stock and harvest fish from “artificial ponds.”[13] This requires, however, that “the sources of water supply for such pond are entirely upon his or her premises or that fish do not have access to such pond from waters not under his or her control . . . .”[14] In essence, this statute facilitates backyard fish farming, also known as “aquaculture.”[15]

Vermont’s administrative agencies also provide ample guidance for property owners who wish to excavate and manage artificial ponds on their property. Some of this guidance is practical, ranging from siting considerations; water supply needs; various depth requirements for fish versus waterfowl; which kinds of ponds require engineering consultation; and even a directory of excavation contractors.[16] The State also points potential pond owners to information regarding the best fish to stock, a list of native plants to prevent erosion, methods to maintain water quality for swimming, and how to optimize bird watching potential.[17]

While state resources appear to enable (if not encourage) pond construction, these materials also carry a strong dose of caution. Any pond “capable of impounding more than 500,000 cubic feet of water” will essentially constitute a dam requiring approval by the Department of Environmental Conservation.[18] For some perspective, a person could cover an acre of land with an 11-foot deep pond and still be shy of 500,000 cubic feet of water.[19] The Department explains, however, that even dams for small backyard ponds “are significant structures that can have major public safety and environmental implications.”[20] A variety of local, state, and federal laws can affect dam ownership, and more information can be found on Vermont’s Dam Safety Program website.[21]

Based on the specifics of a project, a suite of other regulatory entitles may also have a stake in your pond construction. Any construction that impacts a stream may require a stream alteration permit with Vermont’s River Management Program.[22] Any pond work that comes within fifty feet of a wetland may require a permit through Vermont’s Wetlands Program.[23] Other considerations include rare, threatened, and endangered species; fish and wildlife; local zoning bylaws; Vermont’s Act 250; historic or archaeological significance; and Vermont’s water quality standards.[24]

Of course, a great variety of tort and property law claims could also involve a pond. One illustrative case dates back to 1909, when a plaintiff successfully argued that mosquitos breeding behind a newly constructed dam caused him and his family to contract malaria.[25] While this was a Georgia case, the court’s words of wisdom apply to any Vermonter hoping to stay a good neighbor while constructing a new pond:

[I]n the construction of dams and in the backing of water they must choose their sites with due regard to the surroundings. They are not authorized to maintain stagnant ponds, polluted pools of water, or places in which mosquitoes breed, in unusual numbers to the endangering of the health of surrounding communities.[26]

Artificial ponds may provide an immediate opportunity for Vermont’s property owners to enhance biodiversity, climate resiliency, and land productivity on a hyper-local scale. Property owners should, however, perform due diligence to mitigate any potential environmental, public health, or safety issues associated with pond construction and maintenance. Nonetheless, it may be well worth the effort to hear choruses of frogs singing through the night; to watch birds inspecting the shoreline; or to ponder over schools of fish—all thriving because somebody dug a hole in the right place.

[1] Henry David Thoreau, Walden 188 (1854).

[2] Note, Rights in Public Ponds, 15 Harv. L. Rev. 68, 68 (1901).

[3] See generally Samuel D. Warren & Louis D. Brandeis, The Law of Ponds, 3 Harv. L. Rev. 1 (1889).

[4] Private Ponds, Agency of Nat. Res. Dep’t. of Env’t. Conservation, https://dec.vermont.gov/watershed/lakes-ponds/private-ponds (last visited Sept. 17, 2025).

[5] Image Credit: Google Earth, Airbus, (Apr. 20, 2025).

[6] Whole Systems Research Farm, Whole Systems Design, https://www.wholesystemsdesign.com/project-wsd-research-farm (last visited Sept. 17, 2025).

[7] Adam Regn Arvidson, Post-oil Groceries, 101 Landscape Architecture Mag. 54, 54 (2011).

[8] Id.

[9] Id.

[10] Audrey Clark, Facing Climate Change: Collapse or adaptation? Biologist Says Humans Can Adjust to Warmer World, vtdigger, (June 30, 2013), https://vtdigger.org/2013/06/30/facing-climate-change-collapse-or-adaptation-biologist-says-humans-can-adjust-to-warmer-world/.

[11] Id.

[12] Id.

[13] 10 V.S.A. § 5210.

[14] Id.

[15] George Devault, Small Scale Backyard Fish Farming, MOTHER EARTH NEWS, (Dec. 30, 2023), https://www.motherearthnews.com/homesteading-and-livestock/backyard-fish-farming-zmaz06amzwar/.

[16] Agency of Nat. Res. Dep’t of Env’t Conservation Water Quality Div., Vermont Pond Construction Guidelines (2006), https://anrweb.vt.gov/PubDocs/DEC/WSMD/Lakes/Docs/lp_pond-construction.pdf.

[17] Private Ponds – Pond Construction, Agency of Nat. Res. Dep’t of Env’t Conservation, https://dec.vermont.gov/watershed/lakes-ponds/private-ponds/private-ponds-pond-construction (last visited Sept. 17, 2025).

[18] 10 V.S.A. § 5210.

[19] Agency of Nat. Res., supra note 17.

[20] Private Ponds: What You Should Know About Constructing a Pond Or Dam, Agency of Nat. Res. Dep’t of Env’t. Conservation https://dec.vermont.gov/sites/dec/files/wsm/lakes/Ponds/Constructing%20a%20Private%20Pond%20Update.pdf (last visited Sept. 17, 2025).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Towaliga Power Co. v. Sims, 65 S.E. 844, 845 (Ga. Ct. App. 1909).

[26] Id.

 

Making it Personal: The Role of Wrongful Death Lawsuits in Climate Change Litigation
By Grace McGuire

Climate change litigation involves many players but follows a familiar script. Plaintiffs stake a variety of injuries on rising sea levels, loss of biodiversity, and the increased global temperatures that stem from man-made climate change.[1] Landmark decisions like Massachusetts v. EPA have sharpened claimant’s ability to hold regulatory agencies accountable for setting strict standards on greenhouse gas emissions.[2] States and municipalities have followed suit, asserting state-law claims against individual fossil fuel companies to retrieve funding for climate mitigation and adaptation.[3] More recently, investigative journalism has ushered in a “second wave” of climate litigation.[4] With an arsenal of evidence revealing fossil fuel companies knew of the climate disasters they were creating, plaintiffs may find redress under state statutes that protect against false representation.[5]

A plaintiff in Washington State recently brought a claim for wrongful death using this framework. On May 29, 2025, Leon filed suit in the Superior Court of Washington for King County.[6] She seeks to hold six companies responsible for the death of her mother, Juliana Leon, who died from heat stroke while driving in an unairconditioned car during the 2021 Pacific Northwest heat dome.[7] Leon claims fossil fuel giants ExxonMobil, Chevron, Shell, and others “knew that a growing scientific consensus linked the continued proliferation of their fossil fuel products to ‘severe’ consequences.”[8] According to Leon, the companies’ failure to publicly link their products to global effects like heat domes is the proximate cause of her mother’s death.[9] Leon requests compensatory damages, a jury trial, and the equitable relief of a public education campaign designed to “rectify Defendant’s decades of misinformation.”[10] But, the plaintiff does not ask the court to enjoin defendants from halting or regulating any fossil fuel activities.[11]

Wrongful death suits are rare in climate litigation.[12] This scarcity stems from the significant hurdle plaintiffs face in proving greenhouse-gas emissions caused tangible harm.[13] The merit of wrongful death lawsuits may lie instead in public shock-value and potential to generate state lawmaking. These suits also represent the first wave of climate-based tort law, which may mature into a framework with judicially manageable.[14]

From the Washington Court’s perspective, Leon’s claim presents several barriers. Defendant oil companies will argue that Leon’s complaint falls outside the “zone of interest” or is otherwise too attenuated to proceed.[15] In evaluating standing, the Washington Court might look to neighboring states for support. In 2024, the Montana Supreme Court upheld a finding that plaintiffs’ injuries from inadequate state regulation of greenhouse gas emissions were “fairly traceable” to the results of climate change.[16]  Importantly, the Montana State Constitution provides for a statutory right to a “clean and healthful environment.”[17] The Montana Supreme Court used this constitutional right to find that the plaintiffs had standing.[18] In contrast, Leon’s complaint seeks relief under RCW 4.20.010, Washington’s wrongful death statute.[19] The statute provides for the “economic and noneconomic damages sustained by the beneficiaries . . .[w]hen the death of a person is caused by the wrongful act, neglect, or default of another person . . . .”[20] Accordingly, the Washington Court must decide whether the death of Misti Leon is within the “zone of interest to be protected or regulated” by the wrongful death statute.[21]

Is the failure of fossil fuel companies to disclose the negative effects of their products within the scope of Washington’s wrongful death statute? Unlike the constitutional right to a clean environment in Montana, the wrongful death statute turns on ambiguous terms, such as “wrongful act” and “neglect.”[22] But, the Court may “relax [the standing] requirements when a matter of substantial public importance would otherwise evade review.”[23] The Court may be hesitant to grant standing considering the challenging motions sure to follow.[24]

The next hurdle for Leon’s claim lies in the Washington court’s application of the wrongful death statute. The Washington Supreme Court states that a wrongful death claim must have a “subsisting cause of action” before it accrues upon the decedent’s death.[25] It follows that Leon must prove her mother had a cause of action against the fossil fuel companies during her lifetime. Leon’s complaint provides a litany of deceptive behavior but does not allege that her mother had an ongoing claim against the companies.[26]

Considering this factual deficiency, Leon’s claim may not survive on the merits. So, why bring it in the first place? For one, lawsuits like Leon’s get the nation talking. The death of a mother driving home during an outrageous heat episode asks readers to consider how severe weather pattern shifts may affect our loved ones. Widely broadcasted wrongful death suits encourage state legislatures to consider laws that protect citizens against the effects of climate change. Montana’s state constitution is proof that states can draft laws providing environmental rights to citizens. While wrongful death suits may not fit squarely within state jurisprudence today, it is certain that climate-change tort litigation represents a continuing innovation in climate change jurisprudence.[27] Regardless of what the Washington Court may decide, Leon’s lawsuit has not gone unnoticed.

1 Charleston Sues 24 Fossil Fuel Companies for Costs of Surviving Climate Change, CHARLESTON Sc (Sept. 9, 2020), https://www.charleston-sc.gov/CivicAlerts.aspx?AID=885&ARC=1720.

2 549 U.S. 497 (2007).

3 Katarina Resar Krasulova, The Unlikely Renaissance of Federal Common Law in the Second Wave of Climate Change Litigation, 13 ARIZ. J. ENV’T. L. & POL’Y 72, 75 (2022).

4 Id.

5 Id.

6 Matt Simons, Oil Companies Face First-Ever Wrongful Death Lawsuit Over Climate Change, COURTHOUSE NEWS SERV. (May 29, 2025), https://www.courthousenews.com/oil-companies-face-first-ever-wrongful-death-%20lawsuit-over-climate-change/.

7 Id.

8 Complaint at 1, Leon v. Exxon, No. 25-2-15986-8 (filed May 29, 2025).

9 Id.

10 Id. at 77.

11 Id.

12 Simons, supra note 6.

13 Krasulova, supra note 3, at 121-22.

14 Id.

15 See Wash. State Hous. Fin. Comm‘n v. Nat’l Homebuyers Fund, Inc., 193 Wash.2d 704, 711-12 (2019) (providing the two-part standing test in Washington state).

16 Held v. Montana, 560 P.3d 1235, 1261 (Mont. 2024).

17 MONT. CONST. art. II, § 3.

18 Held, 560 P.3d 1235, 1261.

19 Complaint at 71, Leon v. Exxon, No. 25-2-15986-8 (filed May 29, 2025).

20 WASH. REV. CODE § 4.20.010 (2019).

21 Grant County Fire Protection Dist. No. 5 v. Moses Lake, 145 Wash.2d at 702, 713 (2002) (quoting Save a Valuable Env’t v. City of Bothell, 89 Wash.2d 862, 866, (1978)).

22 WASH. REV. CODE § 4.20.010 (2019).

23 Wash. State Hous. Fin. Comm‘n v. Nat’l Homebuyers Fund, Inc., 193 Wash.2d 704, 712 (2019).

24 See Larson v. Snohomish County, 499 P.3d 957, 970 (Wash. Ct. App. 2021)(finding a 12(b)(6) motion to dismiss for lack of standing is the appropriate procedure when “it appears beyond doubt that the plaintiff can prove no set of facts consistent with the complaint that would entitle him or her to relief”).

25 Deggs v. Asbestos Corp. Ltd., 186 Wash.2d 716, 732 (2016).

26 Complaint at 3, Leon v. Exxon, No. 25-2-15986-8 (filed May 29, 2025).

27 Krasulova, supra note 3 at 121-22.

The Electric Vehicle Revolution: Powering an Equitable Transition
By Lakshita Dey

Electric vehicles (EVs) are powering a transformative revolution, paving the way for a cleaner, greener future. EVs offer a significant environmental advantage by eliminating the reliance on fossil fuels, but their widespread adoption faces challenges related to high costs and limited accessibility.[1] As society pushes for these technological advancements, two critical legal questions arise: are incentives working as intended, and are the benefits of these incentives distributed equitably across income groups?

Governments are accelerating EV adoption by providing tax credits and rebates, as they recognize the need to curb greenhouse gas emissions and foster a clean energy future.[2] The Inflation Reduction Act (IRA) extends tax credits for new and used EV purchases through 2032, offers credit for commercial EVs, and revives credits for charging infrastructure.[3] The IRA has demonstrated the government’s commitment to the EV transition, which has significantly boosted the market by reassuring consumers and businesses.[4] Automakers are responding by announcing massive investments in EV production.[5]

Despite these legislative efforts and progressive market shifts, equity challenges remain. The price of an EV presents a hurdle for many families. Even though the average price of an EV is falling, it is still notably higher than the price of a gas-powered car.[6] This economic reality highlights a fundamental issue of deep-seated financial barriers which hinder equitable access.  By their very nature, tax credits only benefit those with sufficient tax liability to claim them, which means that many of these incentives provide little to no direct benefit for low-income families. Consequently, the cost of EV ownership remains a financial burden, even with governmental assistance.

Beyond the purchase price, EV infrastructure presents another barrier to fair access. Owning an EV comes with the challenge of charging. Uneven geographic distribution of public charging stations furthers the lack of accessibility. Research consistently shows that residents of low-income and minority neighborhoods have significantly less access to reliable public charging stations.[7] This inequitable distribution creates “charging deserts,” making EV ownership impractical for those without consistent home charging.[8]

Solving these challenges requires an approach that addresses both the upfront costs of EVs and the inequity of charging infrastructure. Federal bills provide grants to companies that prioritize projects in rural areas and low-to-moderate-income communities.[9]  Point-of-sale rebates can solve the issue of the current tax credit model benefiting only those with sufficient tax liability.[10] This approach is more equitable because it offers a direct, immediate discount at the time of purchase, making the financial benefit accessible to all households, regardless of their tax burden. For instance, the HOMES rebate program allows for a point-of-sale rebate that provides an immediate discount on the EV’s price at the dealership, eliminating tax return[11] This shift represents a significant improvement in legislation and policy, directly addressing a key barrier to equitable access.

Alongside tax rebates, holistic strategies are essential to ensure an equitable EV transition. For example, California’s “Clean Cars 4 All” program addresses two major issues: it promotes access to clean transportation and improves local air quality by getting old, high-polluting vehicles off the road.[12] The program provides significant incentives for low-income residents who trade in their gas-powered cars for cleaner options.[13] This targeted approach promotes equitable access while also directly improving local air quality in disadvantaged communities.

Another crucial strategy is implementing community-based solutions. Specifically, EV car-sharing services provide on-demand access to electric vehicles without the burden of full ownership, insurance, or maintenance.[14] Likewise, investing in and electrifying public transportation directly benefits low-income communities by improving local air quality and providing a clean, affordable alternative to personal vehicle ownership.[15] By combining these diverse strategies, policymakers and communities can achieve a truly sustainable future, ensuring that the benefits of the EV revolution are accessible to all, not just a privileged few.

While community-based solutions are vital, they cannot succeed without an extensive upgrade to charging infrastructure. The success of the EV revolution also depends on closing the charging infrastructure gap. Federal and state governments should continue to prioritize the deployment of affordable and publicly accessible charging stations in low-income neighborhoods and rural areas.[16] To offset profitability issues, charging manufacturers can be incentivized to accept a longer return on investment for charging stations that may not be immediately profitable through tax rebates.[17] Furthermore, the state legislature could also create a subsidized charging card payment for lower-income residents to access public chargers.[18] The solution is not just about individual car ownership; it’s about providing access to clean mobility.

The legal and policy challenges of EVs demand a holistic approach that acknowledges the economic and infrastructural barriers. While the IRA and subsequent statutes represent a commitment to EV transition, achieving equitable access depends on continued legislative and community efforts. This means not just more incentives, but effective ones that are accessible and wide-reaching. Only then can the ongoing EV revolution be truly transformative, with benefits that reach everyone.

[1] C. M. Costa et al., Electrical Vehicles: To What Extent Are Environmentally Friendly and Cost Effective? – Comparative Study by European Countries, 151 Renewable and Sustainable Energy Rev.s 111548, 111550 (2021).

[2] S.P Holland et al., Decarbonizing the US Passenger Vehicle Fleet: Evidence from State and Federal Policies, 100 J. Env’t. Econ. & Mgmt. 102293, 3700-3701 (2020).

[3]  26 U.S.C. §§ 25E, 30C, 30D, 45W (2021).

[4] Id.

[5]  The “One Big Beautiful Bill Act” (OBBBA) significantly undermines equitable EV adoption by prematurely repealing core federal consumer tax credits, including I.R.C. § 30D and I.R.C. § 25E. These incentives were terminated for EVs acquitted after September 30, 2025, accelerating their sunset by up to seven years. One Big Beautiful Bill Act (OBBBA), Pub. L. No. 119-21, 139 Stat. 1 (2025). Consequently, the OBBBA ensures that EV ownership remains primarily limited to high-income consumers, directly contradicting the distributional equity goals of the IRA. Energy Innovation, The One Big Beautiful Bill Act and Other Federal Repeals Will Crash America’s EV Market, https://energyinnovation.org/podcast/the-one-big-beautiful-bill-act-and-other-federal-repeals-will-crash-americas-ev-market/ (last visited Oct. 6, 2025); Ctr. for Am. Progress, The Implementation Timeline of the One Big Beautiful Bill Act (July 29, 2025), https://www.americanprogress.org/article/the-implementation-timeline-of-the-one-big-beautiful-bill-act/ (last visited Oct. 6, 2025).

[6] Lucas Woodley et al., Electric vehicle pricing and battery costs: A misaligned Assumption?, arXiv 2403.00458, at 2 (2025), https://arxiv.org/pdf/2403.00458.

[7] See Emma Hopkins et al., Can the equitable roll out of electric vehicle charging infrastructure be achieved?, 182 Renewable & Sustainable Energy Rev. (2023).

[8] Andrew Cruden, ‘Watering’ the EV Charging Deserts and Leaving No-one Behind?, FEVER (Apr. 9, 2025), https://www.fever-ev.ac.uk/news/watering-the-ev-charging-deserts-and-leaving-no-one-behind.

[9] 23 U.S.C. § 151 (2024).

[10] Laura Roberson et al., Not All Subsidies Are Equal: Measuring Preferences for Electric Vehicle Financial Incentives, 17 Env’t. Rsch. Letters 6 (2022).

[11] 42 U.S.C.S. § 18795(a) (2022).

[12] Gregory Pierce et al., Procedural Equity in Implementing California’s Clean Cars 4 All Program, UCLA Reports 5 (2021).

[13] Id. at 4.

[14] See Morgan Rose, Electric Vehicle Car-Sharing and Secondhand Market Development in Frontline Communities in California and Europe: A Perspective through the Lens of Long-term Land Use Planning (2022).

[15] Id. at 6.

[16] Hana Creger, Clean Mobility Equity: A Playbook – Lessons from California’s Clean Transportation Programs, Greenlining Inst. (Mar. 25, 2021), https://greenlining.org/publications/clean-mobility-transportation-equity-report/.

[17] Rose, supra note 14, at 20

[18] Id.

A Power Grab: The Future of Federal Leadership in Energy Transmission Regulation
By Daniela Ricardo

In a recent onslaught of executive orders, the Trump Administration has made clear that energy is a priority.[1] Energy demand is skyrocketing, and the United States is scrambling to keep up.[2] One key factor is energy transmission. The United States’ transmission infrastructure is outdated, and it is not being built fast enough to meet projected demand.[3] Some scholars point to the decentralization of transmission regulation as the culprit.[4] Traditionally, states keep most of the siting and permitting powers of transmission lines and the federal government regulates what occurs between the states and things that concern customers.[5] A more centralized system of regulation could help resolve decongestion. Regardless of whether this is true, recent legislation and executive orders point towards the federal government having more power—but how will the government use that power?

Out of Steam: Transmission and Grid Congestion
The Department of Energy (DOE) has estimated that we need to build 5,000 miles of transmission a year to maintain grid reliability and to keep energy costs stable.[6] When there are not enough transmission lines to support the energy an area needs, it causes grid congestion.[7] Grid congestion results in higher energy prices for the end-use consumer.[8] In 2022, one report estimates that congestion costs totaled $20.8 billion.[9] In 2024, the United States built 334 miles of transmission.[10] Part of the problem with building new transmission lines is how decentralized the system is.[11] Essentially, there are too many cooks in the kitchen.

The federal government has the power to regulate rates and services of interstate transmission of electricity and wholesale electricity.[12] States, on the other hand, have the power to regulate their own electricity generation and retain control over siting and permitting.[13] The Federal Energy Regulatory Commission (FERC) makes sure that “all rates and charges made, demanded, or received by any public utility for or in connection with transmission or sale of electric energy . . . [is] just and reasonable.”[14] Entities such as regional transmission organizations (RTOs) or independent system operators (ISOs) manage wholesale electricity markets within their region.[15] FERC oversees these organizations (except for Texas’s Electric Reliability Council) to “ensure reliability and access to the electric grid.”[16] FERC and state level agencies also oversee areas without these kinds of organizations, which are managed by utilities.[17]

A Power Struggle: FERC and Legislation
In 2024, FERC issued Order No. 1920 to improve regional electric transmission planning and cost allocation.[18] The order requires each transmission planning region to partake in long-term planning for both transmission planning and generator interconnection.[19] While there is an indisputable need for more transmission infrastructure in the United States, many utilities and states argue that FERC’s order is overreaching. In a consolidated case against FERC, utilities and states challenged FERC, accusing it of not addressing “legitimate requirements under the [Federal Power Act] like ensuring just and reasonable rates or reliability.”[20] They also claim that FERC’s plan is broader in scope than what Congress has authorized.[21] If the plaintiffs succeed, FERC’s mission will be derailed. A recent Third Circuit decision, however, sided with FERC’s vision.[22]

In Transource Pennsylvania v. DeFrank, the Circuit Court affirmed the lower court’s decision that the Pennsylvania Public Utility Commission (PUC) could not deny Transource’s application to build new electricity transmission lines because it “posed an obstacle to federal objectives.”[23] The federal objective in this case is relieving regional grid congestion.[24] However, the PUC benefits from grid congestion; the congestion means higher energy costs for Maryland, Virginia, West Virginia, and the District of Columbia, and lower costs for Pennsylvania. Less grid congestion would alleviate some states’ energy costs while increasing Pennsylvania’s energy costs.[25] PJM Interconnection, the RTO in the region, approved Transource’s plan without considering this factor in its cost-benefit analysis.[26] When the PUC received Transource’s siting application, it accounted for Pennsylvania’s increased energy costs in a separate cost-benefit analysis and rejected the application.[27] It also determined that the new plan was not needed.[28] The courts held that the PUC could not use a different metric to reject the application.[29] Because FERC had deemed the new transmission lines would help relieve grid congestion, which could “adversely affect customers,” the courts sided with Transource.[30]

Some think that the Third Circuit’s recent decision could push states into cooperating with FERC.[31] After all, when FERC revised Order 1920, it required transmission owners to involve states in long term planning.[32] Recent executive orders paint a different picture.

The Lights are on, but Nobody’s Home: Federal Energy Policy
Despite the federal government’s increasing power in transmission regulation, federal energy policy does not reflect a cohesive vision. In “Strengthening the Reliability and Security of the United States Electric Grid,” President Trump directed the Secretary of Energy to evaluate the energy grid and to develop a protocol that analyzes resource adequacy and expedites orders under Section 202(c) of the Federal Power Act.[33] This section of the Federal Power Act applies only in the short term, however.[34] The Department of Energy’s subsequent report identified a supply shortfall.[35] Despite there being upwards of 2,000 GW worth of energy in the interconnection queue, the report estimates that only 209 GW will be connected by 2030.[36] The report subsequently received criticism for making far reaching assumptions and for “overlooking state and RTO planning tools.”[37]

The Trump Administration’s recent actions do not reflect a prioritization of energy.[38] Several executive orders are expressly hostile to clean energy.[39] DOE recently rescinded a $4.9 billion conditional loan into the Grain Belt Express, a transmission line which plans to transport electricity generated by wind farms.[40] This conflicts with the Trump Administration’s explicit energy policy. Why cancel a loan for a transmission project when there is an energy crisis? The Trump Administration’s energy policy doesn’t prioritize transmission infrastructure. If the U.S. is a resource shortfall and grid congestion is increasing, undercutting transmission projects is counterintuitive. Even though the federal government’s power over transmission energy is increasing, a lack of cohesion in energy policy implies that the federal government will not wield this power effectively.

[1] Declaring a National Energy Emergency, 90 Fed. Reg. 8433 (Jan. 29, 2025); Unleashing American Energy, 90 Fed. Reg. 8353 (Jan. 29, 2025).

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

[3] Id.

[4] Josiah Neely & Devin Hartman, State Permitting Challenges: Electric Transmission, Real Sol. (July 30, 2024), https://www.rstreet.org/commentary/state-permitting-challenges-electric-transmission/.

[5] Fed’l Energy Regul. Comm’n, Energy Markets (2025).

[6] New Report Reveals U.S. Transmission Buildout Lagging Far Behind National Needs, supra note 2.

[7] Doying et al., Transmission Congestion Costs Rise Again in U.S. RTOs, Grid Strategies 2 (2023), https://gridstrategiesllc.com/wp-content/uploads/2023/07/GS_Transmission-Congestion-Costs-in-the-U.S.-RTOs1.pdf.

[8] Id.

[9] Id.

[10] Id.

[11] Josiah Neely & Devin Hartman, State Permitting Challenges: Electric Transmission, Real Sol. (July 30, 2024), https://www.rstreet.org/commentary/state-permitting-challenges-electric-transmission/.

[12] 16 U.S.C. § 824(b)(1).

[13] Id.; Josiah Neely & Devin Hartman, supra note 11.

[14] 16 U.S.C. § 824(b)(1).

[15] Fed’l Energy Regul. Comm’n, Energy Markets (2025).

[16] Id.

[17] Id.

[18] Fed’l Energy Regul. Comm’n, Explainer on the Transmission Planning and Cost Allocation Final Rule (2025).

[19] Id.

[20] Keith Goldberg, FERC Faces 4th Circ. Heat Over Grid Policy Revamp, LAW360 (Sept. 2, 2025, 5:53 PM), https://www.law360.com/articles/2382886/ferc-faces-4th-circ-heat-over-grid-policy-revamp.

[21] Id.

[22] Keith Goldberg, 3rd Circ.’s Grid-Planning Ruling Will Coax States To Play Ball, LAW360 (Sept. 8, 2025, 9:38 PM), https://www.law360.com/articles/2385199/3rd-circ-s-grid-planning-ruling-will-coax-states-to-play-ball.

[23] Transource Pennsylvania, LLC v. DeFrank et al., No. 24-1045, 2025 WL 2554133, at *1 (3d. Cir. Sept. 5, 2025).

[24] Id. at *7.

[25] Id.

[26] Id. at *8.

[27] Id.

[28] Id.

[29] Id. at *16.

[30] Id. at *1, *6.

[31] Keith Goldberg, supra note 22.

[32] Id.

[33] Strengthening the Reliability and Security of the United States Electric Grid, 90 Fed. Reg. 15521 (Apr. 14, 2025).

[34] U.S. Dep’t of Energy, DOE’s Use of Federal Power Act Emergency Authority (2025).

[35] U.S. Dep’t of Energy, Resource Adequacy Report: Evaluating the Reliability and Security of the United States Electric Grid (2025).

[36] Kelsey Koenig & Mike Haugh, DOE’s Resource Adequacy Report: A Recipe for Policy Failure, Advanced Energy Persp. (Aug. 19, 2025, 3:00 PM), https://blog.advancedenergyunited.org/doe-resource-adequacy-report.

[37] Id.

[38] Id.; Herman K. Trablish, Trump Executive Order Threatens Transmission, Interconnection Initiatives: Former FERC Commissioners, Utility Dive (Mar. 26, 2025), https://www.utilitydive.com/news/trump-executive-order-agency-independence-ferc-transmission-interconnection-initiatives/742356/.

[39] Lutz et al., The Trump Administration and Congress’ Attacks on Wind Power Are Killing Thousands of Jobs and Risk Thousands More, Ctr. for Am. Progress (Jul. 24, 2025), https://www.americanprogress.org/article/the-trump-administration-and-congress-attacks-on-wind-power-are-killing-thousands-of-jobs-and-risk-thousands-more/.

[40] U.S. Dep’t of Energy, Department of Energy Terminates Taxpayer-Funded Financial Assistance for Grain Belt Express (2025); Jason Hancock, Feds cancel $4.9 billion loan for Grain Belt Express transmission line project, Mo. Indep. (July 23, 2025, 12:23 PM), https://missouriindependent.com/briefs/feds-cancel-4-9-billion-loan-for-grain-belt-express-transmission-line-project/.