The Jones Act: Turbulent Times for American Energy Policy By Aidan Sitler
Congress enacted the Merchant Marine Act of 1920 in the aftermath of World War One.[1] The Jones Act is found in section 27 of the Merchant Marine Act, and it includes protectionist provisions regarding the shipment of goods between U.S. domestic points.[2] The Jones Act requires that merchandise “transported by water within the United States,” be shipped on vessels owned, operated and built by Americans.[3] The Act was codified in part “to ensure a ready supply of ships and mariners in case of war . . . .”[4] It was also enacted to stimulate the American shipping industry and to create more domestic jobs throughout the shipping supply chain.[5] Although Congress originally passed the Act to protect American interests, today it harms the American energy industry and curbs the growth of domestic energy independence.
Currently, the United States relies heavily on the fossil fuel industry for its domestic electricity generation.[6] More than 50% of the U.S. energy generation comes from coal or gas plants.[7] Despite the sustained reliance on fossil fuels, renewable energies have grown from less than 5% of U.S. energy generation fifteen years ago, to over 20% in 2024.[8] Renewables rose at an unprecedented rate as new technology advanced and allowed for greater production and implementation from wind and solar alike.[9] Despite the growth of the renewable sector, offshore wind developments have stalled while utility-scale solar and onshore wind projects continue to flourish.[10]
As of 2021, only two offshore wind facilities were operating in the U.S., with a modest combined total of seven turbines.[11] Together the two wind facilities generate 42 megawatts of electricity capacity.[12] The current generating capacity of offshore wind is minor compared to the U.S grid’s 1300-gigawatt nameplate capacity.[13] This means that the offshore wind facilities presently provide less than one percent of the entire electricity for U.S. grid.[14] But the US Department of Energy estimates that offshore wind has the potential to produce three times the electrical capacity of the current U.S. grid.[15] This potential energy output would help the U.S. transition from carbon-emitting coal and gas plants to a complete clean-energy-sustained grid. Offshore wind development would also help create more stable domestic resources for America’s electricity production.
As interests of global security and resource scarcity continue to shape energy policy, America can focus on expanding domestic energy production. Right now, the U.S. still relies heavily on the global supply chain for imports of natural gas.[16] Canadian pipelines and large shipments of liquefied natural gas primarily accomplish this.[17] As global conflicts such as Russia’s war in Ukraine continue, resource availability and stability can impact the global supply chain and harm America’s economic interests.[18] To limit exposure to the instability of the global supply chain, and to reduce the amount of carbon emissions, offshore wind facility materials should be waived from the Jones Act to help increase America’s energy independence.
An offshore wind facility can take anywhere from seven to eleven years to become fully operational.[19] In contrast, an onshore wind facility can be completed in about half the time.[20] The obstacles facing offshore wind facility developments are both the nature of where they are built, and the current regulations which add additional time and cost constraints to the process. While not much can change the difficult nature of building wind facilities in the ocean, the regulations that impede the building process can be altered. A major regulatory obstacle for offshore wind facilities is the Jones Act. Because the Jones Act requires American made ships to transport merchandise in U.S. waters, the development of offshore wind facilities falls under this category.[21]
The wind facilities are subject to the Jones Act because the pieces of the turbines are shipped from the U.S. port to the point of installation off the U.S. coast.[22] Because companies ship goods between two U.S. points, they are required to adhere to the guidelines of the Jones Act. The primary problem wind production facilities have when conforming to the Jones Act is that there is not an adequate supply of capable U.S. vessels.[23] The U.S. lacks the proper ships to ferry the parts and cranes needed for the construction process.[24] The construction process requires massive parts of the turbine to be hauled off the ship by an onboard crane, and U.S. vessels equipped for this process number in the single digits.[25] Companies now ship turbine related goods from Canadian ports to circumvent falling under the Jones Act.[26] This workaround adds to the total project costs and development time.[27]
Instead of requiring companies to add project time, shipping costs, and increased dealings with foreign ports, the Jones Act should be waived to advance U.S. energy expansion. In the past, the Jones Act has been waived for vessels transporting goods to help Americans during natural disasters.[28] The Department of Homeland Security has the authority to issue waivers for merchandise.[29] In this case, Homeland Security should waive offshore wind merchandise from the Jones Act provisions to help increase America’s energy independence. This waiver would allow a quicker production timeline of offshore wind facilities, and greater growth towards U.S. energy independence. The Act was originally enacted to protect American interests yet is now acting as an obstacle to U.S. energy independence. It would be within the spirit of the Act to help create more American energy security and independence through the growth and development of U.S. owned wind facilities.
[1] Merchant Marine Act of 1920, Pub. L. No. 66-261, 41 Stat. 988 (1920). See also Will Kenton, Understanding the Jones Act: Key Facts, History, and Economic Impact, Investopedia (Aug. 27, 2025), https://www.investopedia.com/terms/j/jonesact.asp.
Stand Your Ground: Environmental Advocates Fights Alligator Alcatraz for NEPA Violations By Matthew Allen
On June 27, 2025, two nonprofit organizations filed suit against state and federal agencies and officials for violations under National Environmental Policy Act (NEPA).[1] This suit arises from the construction of Alligator Alcatraz, an immigration detention center located in southern Florida. Friends of the Everglades (Friends) and Center for Biological Diversity’s (CBD) complaint argues that the U.S. Department of Homeland Security (DHS) failed to complete necessary environmental review before undergoing construction.[2] NEPA promotes efforts to prevent damage to the environment while encouraging productive harmony between man and the environment.[3] Additionally, NEPA requires completion of a necessary report illustrating foreseeable environmental effects based off the proposed action.[4] Filed in the Southern District of Florida, Judge Kathleen Williams ruled in favor of the plaintiffs, clinching a pivotal ruling for environmental groups.
Under federal orders, the Florida Division of Emergency Management (FDEM) took control of the Dade-Collier Training and Transition Airport (TNT).[5] FDEM altered TNT into a mass migrant detention and deportation camp.[6] This federal order, along with construction activities, took place in less than an eight-day span.[7] Friends and CBD interpleaded because of the sensitive location of TNT. The TNT is located within the Big Cypress National Preserve,[8] designated as “an area of critical concern.”[9] Further, TNT is located near the Everglades National Park and historic Everglades. The state legislature established the Big Cypress Area to protect the natural resources and beauty of Florida.[10] Construction of a detention center within this area creates risk of harming local wetlands, wildlife, as well as air and water quality.[11] Due to this threat, the Miccosukee Indian Tribe of Florida (Miccosukee Tribe) intervened as plaintiffs.[12] The Miccosukee Tribe has strong ties to the land and the construction of Alligator Alcatraz poses a significant threat to their food and water supply.[13] The suit requested injunctive relief to stop construction further than what had already been completed.
On August 21, 2025, the District Court ruled in favor of Friends, CBD, and Miccosukee Tribe, finding construction of Alligator Alcatraz violated NEPA standards.[14] Friends and CBD indicated this is a “landmark victory” for those who believe the environment should be protected.[15] NEPA, enacted in 1970, establishes a system for state and federal agencies to find the most beneficial uses of the environment without degradation.[16] Prior to the construction of federal buildings, an environmental impact report must be completed.[17] This report provides reasonably foreseeable effects, elements that could not be avoided, a range of alternatives including negative impacts, and short-to-long term property uses.[18] It is the responsibility of the federal agency to ensure the integrity of scientific discussion and analysis within the assessment.[19] Without this necessary analysis, it is a guessing game how construction of certain facilities can impact the environment.
As the court reviewed the Plaintiffs’ complaint, Defendants failed to establish compelling arguments as to why they did not complete the necessary reports. The possible environmental impacts of this facility are subject to federal control, whereas the Defendant’s argue that Alligator Alcatraz is strictly a state project.[20] The Plaintiffs argue that the Defendants failed to “obtain critical information of the TNT site . . . failure to obtain critical information from the site’s owner . . . and process regarding the facilities construction and operations.”[21] Overall, the Plaintiffs’ argument stems from a lack of accountability and proper procedural steps not completed by the Defendants.[22] The District Court agreed with multiple aspects of the Plaintiffs’ NEPA claim.
NEPA provides clear instructions to which documents are necessary prior to construction of a facility like Alligator Alcatraz.[23] The Plaintiffs argue that this is a project comprised of “systematic and connected agency decisions.”[24] NEPA requires coordination between state and federal agencies, especially for a federally funded project taking place within a specific state jurisdiction.[25] NEPA requires that any “major Federal action significantly affecting the quality of the human environment” be preceded by an environmental impact statement (EIS) to balance impacts of objectives and benefits.[26] A NEPA claim requires the Plaintiff to show that construction of the facility involves (1) a final agency action, (2) a major federal action, and (3) without Defendants conducting a compliant EIS.[27] The District Court capitalizes on the Defendant’s argument that Alligator Alcatraz is not the embodiment of federal issues, therefore NEPA is not the supervising authority. The District Court is not fooled by this argument. Testimony and evidence provided by the Plaintiffs show the facility is operated under a federal agency, funded by federal money, and ultimately deals with federal issues.[28]
Finally, the District Court looks towards potential irreparable injuries to be suffered from the NEPA violation.[29] An injury is irreparable only if it cannot be undone through monetary remedies.[30] The Plaintiffs back their argument with notions of potentially damaged wetlands, endangered species, runoff and water discharge, light, noise, and traffic issues.[31] Plaintiffs provide an extensive amount of support for these notions. Construction of 800,000 square feet of paved area, fencing, lighting, noise, fueling systems, and car traffic will create substantial and irreparable harm to the area.[32] The Defendants attempt to say that all these issues balance out with equity and public interest. Balance of equities and public interest must be weighed when granting preliminary injunctive relief.[33] Immigration is a significant national interest. The Defendants attempt to “humanize” this ongoing issue by stating “as the swell of people seeking refuge and opportunities in our nation steadily increases, the government is under a corresponding pressure to respond and regulate.”[34] What their argument fails to address, is the lack of awareness to NEPA protocols. While the court recognizes that there is public interest, it does not outweigh the evidence provided by the Plaintiffs.[35]
Although there will certainly be an appeal, the masterclass the Southern District of Florida approach provided is exceptional. In difficult times when environmental laws are overlooked for government efficiency, now more than ever it is necessary to step up. The holding by Judge Williams shuts down any notion for the Defendants to skirt by. NEPA will always stand as the foundational point for environmental law. With this ruling, it provides environmental advocates hope for a push for conservation over quick development. The Defendant’s irrational judgment will hopefully prove as a lesson learned: that no matter the public policy being pushed, there are necessary environmental guidelines.
[1] Complaint at 2, Friends of the Everglades, Inc. v. Noem (S.D. Fla. June 27, 2025) (No. 1:25-cv-22896).
Rights of Nature as an Alienating Step Towards Better Environmental Laws By Brett Davis
Humanity continues failing to adequately protect world’s ecosystems despite years stewarding for the environment.[1] This failure poses devastating consequences to individuals, societies, and the world.[2] Nothing here is new; humankind has been aware of the cost of neglecting nature for thousands of years.[3] But this awareness has an anthropocentric tint in the modern age, which has informed environmental responses. To combat environmental failures that human-centered approaches bring, the “Rights of Nature” movement has emerged.[4] The movement attempts to redefine environmentalism to make nature a key player.[5] This blog will explore this attempt and provide a Marxist critique of a rights-centered approach to environmental law.
The Rights of Nature movement seeks to end the reductive view that nature is a mere sum of its parts.[6] The old Enlightenment view establishes humans as the environment’s master.[7] This mastery, paired with the idea of the wholly rational human, guided the law to treat nature as a tool for human needs.[8] During the late 20th century, industrial nations began adopting a stewardship approach, placing humans as nature’s protectors.[9] While more environmentally conscious, stewardship has still failed to protect Earth’s ecosystems.[10] The problem is that humans are still the masters of nature, and stewardship still reduces nature to human-defined values. Thus, the Rights of Nature focuses on establishing rights for nature itself¾rights that are defendable in court.[11]
Defendable rights take a legally human form. Recently, New Zealand’s Taranaki Maunga (or Mount Taranaki) was recognized as a legal person.[12] Taranaki joins a list of natural features with personhood in the New Zealand, a world leader in the Rights of Nature.[13] The hope is personhood will help to conserve and restore traditional Māori uses.[14] Members of Māori iwi will be “the face and voice” of Taranaki Maunga and will oversee the rights, powers, duties, responsibilities, and liabilities of the mountain.[15] Using a group of trustees representing a natural personhood is a common approach under the Rights of Nature.[16]
The personhood these trustees protect is one Marxism has long critiqued. Marx critiqued rights as separating individuals from their community.[17] The purely Marxist understanding is that the bourgeoisie favored individual rights undermine the proletariat’s interests in a unified class.[18] Now, modern theorists have expanded the alienating effect of individualism to anti-colonialism, feminism, and more.[19] The root issue of all these movements is clear: rights alienate people and deny the intersectionality arising from human issues.
Rights of Nature are no different than these human rights¾rights alienate nature from itself. Rights establish each actor in a system as distinct, manageable, and understandable. Each piece of nature may receive personhood and subsequent rights,[20] but nature is not a series of distinct persons. This tension, between nature’s reality and right’s unreality, poses serious strains on the framework’s solvency. How do a river’s rights relate to those of a migratory species that occasionally calls the river home? Both entities are simply together in nature. Enlightenment rationalism does not clearly apply to such interconnected systems. Nature does not prioritize one part of itself over another. Proscribing rights to nature creates environmental components as competitive agents in a larger rights system.
In the competitive system, rights act as “trumps,” some rights taking priority over others.[21] A priority of rights leads to balancing, an already contentious point in environmental policymaking.[22] Any current American political issue—freedom of speech, privacy, pro-choice, racial and wealth inequality—highlights the impasse of people’s rights against each other and the state. Nature’s components will just be a new agent in the constant balancing of rights.
This balancing goes to Marx’s concern.[23] How does nature, a collective, integral, and abstract entity, compete with individual rights? How can a river assert a right over the people who use the river for their livelihoods? This is the same problem. No person functions absent of nature, and nature is not complete absent people. Nature’s rights create a nonexistent antagonism: what is best for nature is contrary to what is best for people. And this conflict is the very goal of Rights for Nature, to create a system for nature to “fight” for itself.[24]
The Rights of Nature aim for conflict in the current system, contrasting the utopian ends of Marxism. Supplying nature with the right to defend itself allows for a better functioning status quo. Namely, personhood allows environmental claims a way around typically difficult standing challenges.[25] Additionally, Rights of Nature can help quell the anthropocentric views on the environment prevalent in the West.[26] In these ways, the movement is a steppingstone to better evaluating nature’s importance. But a steppingstone is not an end.
We must ask whether a system of rights that has led to such devastating environmental catastrophes is the system that will truly be able to represent nature. Rights fix nature into the enlightenment system; it does not radically redefine how we approach problems. We live in a world where human rights abuses are still ubiquitous, even in democratic societies.[27] The Marxist critique is one way to explain these failures, and how the Rights of Nature might fall into the same historical struggle. But understanding rights power to alienate right holders underscores the frameworks shortcomings in uniting and caring for nature. The Rights of Nature do not supply the ends for environmental response but are simply a possibly misguided step towards equitable ends.
[1] Sandra Díaz, et al. The Global Assessment Report on Biodiversity and Ecosystem Services, XIV (Eduardo S. Brondízio et al. eds, IPBES, 2019).
[6] Niels Hoek, et al., Implementing Rights of Nature: An EU Natureship to Address Anthropocentrism in Environmental Law, 19 Utrecht L. Rev. 72, 74 (2023).
[19]Seegenerally Vasuki Nesiah, The Ground Beneath Her Feet: “Third World” Feminisms, 4 J. Int’l Women’s Stud. 30 (2003); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 Stan. L. Rev. 1241 (1991); Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 (2001).
[27]See generally Human Rights Watch, World Report 2024: Events of 2023 (2024).
Spent Nuclear Fuel Storage: Coming to an Oil Field Near You! By Jules Mule
In Nuclear Regulatory Commission v. Texas, the Supreme Court held that only parties to the Nuclear Regulatory Commission’s (NRC’s) licensing proceedings are entitled to judicial review of the licensing decision.[1] This case comes to the Court after respondents Texas and Fasken Land and Minerals challenged the NRC’s statutory authority to license a private-off-site-spent-nuclear-fuel-storage-facility in West Texas. However, the Court did not decide the case on the merits. Instead, it simply held that Texas and Fasken were not parties to the NRC’s licensing proceedings and are not entitled to judicial review. The Court should not have awarded the NRC undue control over judicial review of its licensing proceedings. More importantly, the Court should not have left such a significant regulatory question open for future litigation.
The United States began commercial nuclear power production in the 1950s after the enactment of the Atomic Energy Act of 1954 (AEA).[2] Nuclear reactors use enriched uranium to generate electricity and create waste known as spent nuclear fuel (SNF). Originally, SNF was reprocessed to extract weapons-grade plutonium for warheads. Eventually, nuclear proliferation concerns in the 1970s led President Ford to halt commercial reprocessing. However, continual generation without reprocessing meant many reactors were already approaching maximum capacity for on-site SNF storage by the 80s. Congress then enacted the Nuclear Waste Policy Act of 1982 (NWPA) which designated Yucca Mountain, Nevada as the nation’s single, permanent SNF repository. Public backlash, however, has killed nearly all federal support. SNF is still mostly stored on-site, but this is unsustainable, as many nuclear reactors are quickly approaching the end of their lifecycles. Now private, off-site storage is gaining federal support.
In 2018, Interim Storage Partners (ISP) applied for a license with the NRC to develop an SNF storage facility in West Texas.[3] Fasken Land and Minerals (Fasken) operates oil and gas wells in West Texas and petitioned to intervene in the licensing proceedings.[4] The NRC denied the petition because Fasken failed “to show that a genuine dispute exists.”[5] Fasken challenged the denial in the D.C. Circuit, but the court upheld the NRC’s decision.[6] Fasken did not petition the Supreme Court for certiorari, and the NRC license proceedings continued.[7] In 2020, the NRC issued a draft environmental impact statement (EIS) and awaited public comments.[8] Among the many commenters were Fasken and a government agency representing the state of Texas.[9] Both raised environmental and public safety concerns, which the NRC considered in their final EIS.[10] The NRC then granted ISP the license to develop the storage facility in 2021.[11]
Following this, Texas and Fasken sued the NRC in the Fifth Circuit.[12] They claimed the NRC lacked the statutory authority to license private off-site SNF storage facilities.[13] The Fifth Circuit agreed, and vacated ISP’s license.[14] The NRC petitioned the Supreme Court for certiorari, and the Court granted cert in 2024.[15]
In a 6–3 opinion delivered by Justice Kavanaugh, the Court held that Texas and Fasken were not entitled to judicial review under the Hobbs Act.[16] The Court reasoned that neither met the AEA’s requirement to qualify as “part[ies] aggrieved” to the proceedings.[17] The one and only requirement is that the NRC must grant a prior petition to intervene the proceedings.[18] If the NRC denies the petition, as in this case, the would-be intervenors cannot seek judicial review in court.[19] Texas did not petition to intervene, and Fasken’s petition was denied and subsequently dispatched by the D.C. Circuit.[20] Therefore, neither was entitled to judicial review on the proceedings. The Fifth Circuit’s decision was reversed and remanded without a ruling on the merits.[21] However, the Court did offer five pages of commentary suggesting the NRC does have statutory authority to license private-storage facilities under the AEA.[22]
Regarding the jurisdictional issue, the Court should have held that Texas and Fasken were entitled to judicial review. Under the Hobbs Act, a “party aggrieved” by a licensing order is entitled to judicial review of the proceedings.[23] The Court relied on § 2239 of the AEA to determine who qualifies as a party to NRC licensing proceedings: “In any proceeding . . . for the granting . . . of any license . . . the Commission shall grant a hearing upon request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.”[24] The Court narrowly interpreted this language to mean that party status is only awarded if the NRC grants the hearing.[25] The NRC codified this interpretation, and the strict criteria for admittance, in 10 C.F.R. § 2.309(f).[26] However, the more obvious interpretation is that both granting the hearing and awarding party status are separately at the NRC’s discretion. Nevertheless, the Court upheld the NRC’s stricter interpretation, citing only to a 1990 D.C. Circuit case for support.[27]
The case is not very supportive. The issue centers around how § 2.309(f) interacts with an older late-filing rule.[28] Further, the circuit court relies on the now defunct Chevron deference.[29] Ultimately, the Court’s unjustifiably narrow reading of the AEA lends the NRC too much control over judicial review. Left unchecked, the agency can simply deny anyone that requests a hearing and remain unobstructed on the licensing proceedings. As the dissent put it: “Allowing agencies to decide who can challenge their work in court is like letting the fox guard the henhouse.”[30]
Accordingly, the Court should have decided this case on the merits. The dissent offered am alternative method to achieving party status under the Hobbs Act (i.e. commenting on an EIS).[31] Regardless of the method used, the open question is more worthy of discussion: Does the NRC have the statutory authority to license private SNF storage facilities? The Court could not stay silent on the matter after all, delivering five pages of unauthoritative dicta.[32] Oddly enough, the Court again based its argument on a less-than-supportive D.C. Circuit case it claims upheld NRC regulations.[33] In 1980, the NRC promulgated regulations under the AEA that allow it to license private off-site storage facilities.[34] And in 2004, the D.C. Circuit in Bullcreek v. NRC conceded that “the AEA does not specifically refer to the storage or disposal of spent nuclear fuel. . . .”[35] Rather, the authority is implicit, predicated on the decades of historical deference to the NRC.[36]
Unable to point towards any explicit authority in the AEA, the D.C. Circuit and this Court both resort to an even earlier case: Pacific Gas & Electric Company v State Energy Resources Conservation & Development Commission (PG&E).[37] Unfortunately, the most authoritative quote in the entire case is mere recognition: “the NRC has promulgated detailed regulations governing storage and disposal away from the reactor.”[38] The regulations were unchallenged; the case was about licensing reactors, not storage facilities. Even together, these two cases hardly amount to a substantial judgment on the statutory authority of the NRC’s private storage licensing practices. In Bullcreek, the petitioner “conceded at oral argument [that] the NRC had authority under the AEA to regulate private away-from-reactor storage facilities.”[39] And in PG&E, the Court made no mention of private vs. federally-owned storage facilities. It’s likely that the recently enacted NWPA that would soon establish a permanent federally-owned storage site was fresh on the Court’s mind. While recognition of the NRC’s authority over private storage facilities under the AEA is longstanding, the authority is implicit at best and has never been directly challenged. Avoiding judgment on the merits keeps the question open to future litigation and enables unnecessary confusion in the nuclear industry.
Regardless, the Court’s lengthy dicta suggests it would likely uphold the NRC’s statutory authority in any future challenge. Ultimately, the NRC is the obvious choice for regulating private storage. Congress should simply revise the AEA to match the NRC’s existing regulations.
[36]Id. (“[T]he NRC has promulgated detailed regulations governing storage and disposal away from the reactor.”); NRC v. Texas, 605 U.S. 665, 683 (2025).
[37] Pac. Gas & Elec. V. St. Energy Resources Conserv., 461 U.S. 190 (1983); NRC, 605 U.S. at 683-84; Bullcreek, 359 F.3d at 538.
A Critique of the Louisiana v. Biden Decision By Max Oechsner
A coalition of Republican-led states and oil and gas industry groups was handed a win in the latest legal battle over drilling in the Outer Continental Shelf (OCS).[1] The ruling in Louisiana v. Biden will allow renewed drilling in the OCS, the offshore land surrounding the continental United States.[2] The ruling, however, overly relied on former presidents’ actions and misinterpreted the act that governs the OCS. Not only was it poorly decided, but the ruling will have irreversible consequences on the climate crisis.
Background on the Controversy
The OCS is roughly comprised of the submerged lands off the coast of the continental United States.[3] President Biden, at the very end of his term, withdrew the OCS from potential oil and gas leasing.[4] The President did this through two Withdrawal Memoranda (hereinafter memoranda), one addressing the coast of Alaska, and the other addressing the East Coast, West Coast, and the Gulf of Mexico.[5] Biden’s memoranda stated that the withdrawal was “for a period of time without specific expiration.”[6] The plaintiffs, comprised of Louisiana, Alabama, Alaska, Georgia, and Mississippi, the American Petroleum Institute, and the Gulf Energy Alliance, quickly filed suit.[7]
The plaintiffs filed suit in federal court three days before Trump took office.[8] They challenged the memoranda under the U.S. Constitution and the Outer Continental Shelf Lands Act (OCSLA).[9] The plaintiffs argued that § 12(a) of OCSLA violated the U.S. Constitution, therefore making the memoranda unlawful.[10] They also argued the memoranda were unlawful because they exceeded the scope of the President’s authority under § 12(a).[11]
The day that Trump took office, he issued an executive order that rescinded the memoranda.[12] A month later, a coalition of environmental groups filed suit to challenge his rescission order.[13] The challenge to Trump’s order is still awaiting a decision. Meanwhile, the Louisiana District Court decided the Biden case.[14] In this ruling, the Court first sidestepped the question of whether OCSLA is constitutional by giving deference to Congress.[15] The Court then ruled that President Biden exceeded his authority under OCSLA.[16]
The Flaws in the Court’s Decision
The Biden court had several flaws in its analysis. Its decision rested primarily on two strains of reasoning: how former presidents have used § 12(a) of OCSLA and the text of § 12(a) itself. The court also failed to properly consider the context of § 12(a).
The court first erred in its analysis of the text of § 12(a). Section 12(a) provides that “the President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”[17] The court read the text as “encouraging an ongoing duty to revisit and amend regulations.”[18] In support of this reading, the court reasons that “it is generally accepted that in the absence of a specific statutory limitation, an [executive actor] has the inherent authority to reconsider its decisions.”[19] However, the text only grants the power of withdrawal.[20] It does not grant the power to rescind a withdrawal.[21] When a statute does not grant the president a power, the president cannot exercise that power.[22] The Supreme Court, in Youngstown Sheet v. Sawyer, clarified this critical rule of constitutional law:
It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.[23]
The application of this rule gives the president power to withdraw land, but not to rescind it. Therefore, the president should not be required to specify the future time at which a subsequent president may reconsider the withdrawal.
The court also errs in its reasoning that “presidential interpretations of their limited authority under § 12(a) support a [limited] reading.”[24] However, courts should not use presidential decisions as persuasive or binding authority.[25] Therefore, the court should not have looked to how earlier presidents seem to have interpreted OCSLA.
Finally, the context of § 12(a) was not adequately considered. In 2019, the Alaska District Court decided nearly the same issue in League of Conservation Voters v. Trump.[26] In that case, several environmental groups challenged Trump’s executive order rescinding an Obama-era withdrawal of the OCS.[27] Therefore, the court decided an inverse issue: whether the president had the authority under § 12(a) of the OCSLA to rescind a withdrawal. In their decision, the court took into consideration the context of OCSLA.[28] A major point in the analysis focused on the contrast between § 8 and § 12.[29] They interpreted § 8 to be “promoting leasing” and § 12 to be “entirely protective.”[30] Ultimately, they found that OCSLA did not give a president the power to rescind a withdrawal.[31] Therefore, the contrast in the structure lends to the idea that § 12 only grants protective withdrawal power.
Conclusion
The decision in Louisiana v. Biden represents a significant misreading of both the text and the intent of the Outer Continental Shelf Lands Act. By grounding its reasoning in the practices of past presidents and stretching the language of § 12(a), the court undermined the intent of Congress. The ruling not only weakens the President’s ability to safeguard ecologically vital offshore lands, but it also opens the door to unchecked executive reversals that erode the stability of environmental governance. Ultimately, Louisiana v. Biden stands as a cautionary example of judicial overreach—one that prioritizes political expediency and economic interests over statutory fidelity and the urgent need to confront the climate crisis.
[25]Sawyer, 343 U.S. at 604 (“No authority that has since been given to the President can by any fair process of statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments.”).
[26] League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013, 1025 (D. Alaska 2019), vacated and remanded sub nom. League of Conservation Voters v. Biden, 843 F. App’x 937 (9th Cir. 2021).
Housing vs. Sustainability: Vermont Governor Passes Executive Order 06-25, Easing Building Energy Efficiency Standards By Diamond McAllister
Vermont Governor Phil Scott issued Executive Order 06-25 (EO) on September 17, 2025.[1] EO 06-25 is titled “Promoting Housing Construction and Rehabilitation.”[2] It aims to improve housing access in Vermont by streamlining development, supporting affordability, incentivizing developers, coordinating state agencies, and reducing regulatory barriers.[3] Meanwhile, Vermont’s environmental goals, codified at 10 V.S.A. § 578, require the state to significantly reduce greenhouse gas emissions.[4] Governor Scott’s EO highlights the tension between Vermont’s statutory climate commitments and the state’s efforts to accelerate housing development.[5] This tension raises questions about whether easing energy efficiency standards undermines Vermont’s legally binding environmental goals.[6] The EO marks a clear departure from the state’s codified mission to reduce greenhouse gas emissions.
I. Stated Purpose of the Executive Order
According to the 2024 Vermont Housing Needs Assessment, Vermont faces a longstanding housing deficit.[7] Most Vermont homes remain unaffordable to the majority of Vermonters.[8] The Governor spends over three pages of the EO justifying prioritizing rapid housing expansion over strict energy efficiency standards as a response to this housing issue.[9] The Governor cites strict energy efficiency rules as slowing the pace of housing development. [10] Specifically, he claims that the 2024 building energy efficiency standards increase construction costs and make housing less affordable for Vermonters.[11]
For several years, Vermont has faced a pressing housing shortage, with the Governor estimating Vermont needs 40,000 new homes by 2030 to adequately meet the state’s housing needs.[12] Vermont is not on track to meet this demand.[13] The EO streamlines permitting, accelerates project approval, and suspends heightened energy efficiency standards in an attempt to address the shortage.[14] However, by acting while the General Assembly is out of session, the Governor demonstrates tensions between urgent housing needs and statutory commitments.
The Governor listed the housing crisis, failed attempts to address it, and the need for accelerated executive action as the rationale for the EO.[15] He acknowledges legislative efforts to address Vermont’s housing crisis but notes that they have been insufficient.[16] Thus, he argues that the executive branch must use its authority to tackle the state’s critical housing shortage.[17] He calls this approach accelerated executive action.[18] This urgency operates within a broader legal framework that binds Vermont to ambitious climate goals.
II. Vermont’s Climate Framework and Energy Efficiency Standards
The Vermont Global Warming Solutions Act of 2020 (GWSA), codified at 10 V.S.A. § 578, establishes Vermont’s climate goals as legally binding mandates.[19] The statute obligates Vermont to reduce greenhouse gas pollution 26% below 2005 levels by 2025.[20] It also requires emissions to reduce a further 40% below 1990 levels by 2030 and 80% by 2050.[21] The GWSA aims to help Vermonters prepare for negative climate change effects.[22] Increasing energy efficiency across sectors plays a crucial role in reaching climate goals because improved energy efficiency reduces emissions.[23] Specifically, “[i]ncreased energy efficiency can reduce industrial carbon emissions by up to 34% in many sectors.”[24]
The EO’s reinstatement of the 2020 energy efficiency standards rolls back prior efficiency requirements.[25] It shifts the focus from long-term energy efficiency to immediate housing expansion.[26] Efficiency Vermont (a nonprofit focused on transitioning Vermont to cleaner and more affordable energy solutions) has demonstrated key differences between the 2020 and 2024 residential building energy efficiency standards.[27] Among these substantial differences are heavier insulation requirements, stricter energy efficiency standards, required electric vehicle charging provisions, solar-ready zone requirements, mandatory airtightness testing, and more stringent overall performance requirements.[28] The 2020 energy efficiency standard reinstatement thus lowers Vermont’s energy efficiency requirements.[29] The reinstatement sets the stage for expanding housing at the expense of energy efficiency.
III. Expansion of Housing vs. Energy Efficiency
EO 06-25 embodies a deliberate trade-off between two objectives: promoting faster housing development and risking slower progress on energy efficiency.[30] This trade-off is evident throughout the EO, particularly in its framing of the 2024 residential building energy efficiency standards as “regulatory barriers.”[31] The EO reinstates the 2020 standards, giving builders the option to choose between the 2020 and 2024 standards.[32]
Conclusion
Will this rollback prevent Vermont from achieving its codified greenhouse gas reduction goals? The answer is still unclear. The EO, however, marks a clear departure from the state’s mission under the GWSA to reduce emissions. The question now is whether Vermont can expand housing and maintain strong energy standards at the same time. Ultimately, the state must balance its immediate housing needs with its long-term, legally binding climate commitments.
Preserving Our Playground: The Significance of State Stewardship By Maddy Barney
Land conservation is a consistent bipartisan priority in America.[1] Conservation brings ideologies together because of widespread historical support for maintaining public lands for all to enjoy.[2] Outdoor recreationists represent important stakeholders in land conservation by consistently using public lands.[3] Outdoor recreation and land conservation go hand in hand.[4] “Protecting . . . [and] defending public lands is especially important to the outdoor recreation community.”[5] Almost a third of the nation’s land is held by the United States’ government entities and most public land is managed for “conservation, recreation, and education.”[6] Given the influence the government exercises over public lands, it is of critical importance that lands open for recreation are managed and created intentionally.[7] Balancing dual goals of public recreation and conservation can raise substantial challenges, but successful projects bring generational benefits.[8]
I. Challenges Balancing Outdoor Recreation and Land Conservation
Although land conservation directly supports outdoor recreation, projects must incorporate sustainable goals to prevent disrupting the delicate environmental balance.[9] Land conserved for outdoor recreation can raise several challenges.[10] There is limited public awareness on the conflict between conservation and recreation—especially when introducing high volumes of people into outdoor spaces.[11] Visitors to protected areas can degrade local “vegetation, soil, water, wildlife, and cultural resources.”[12] Negative effects vary by site and activity.[13] Effects from recreationists are “not readily apparent to the individual” but are considered by land managers daily.[14]
Land managers must overcome significant hurdles governing conserved areas and balancing diverse interests.[15] Land managers face a lack of funding, threats of energy development leases, overcrowding, and climate change impacts.[16] Generally, ecological data that guides informed decision making is lacking.[17] The lack of necessary data makes it especially difficult for public agencies to defend their management decisions under scrutiny.[18] Lastly, public agencies have limited resources to manage public lands, with 75% of land managers citing inadequate funding.[19] Conservation management challenges due to a lack of resources were exacerbated this year given the federal government’s mass firing of park employees and continual attacks on land conservation.[20]
II. Who’s making land conservation decisions anyway?
The federal government has long prioritized land conservation.[21] Conservation stems back to “colonial-era policies” focused on extraction rather than protection.[22] Additionally, “conservation areas were historically established as ways to rid land of its indigenous inhabitants.”[23] Western expansion and the early establishment of national parks put land into the hands of the centralized government.[24] As extraction continued, conservation concerns arose, and President Roosevelt created the U.S. Forest Service, which established 230 million acres of public land.[25] The public’s awareness of environmental concerns steadily grew, making space for the first Earth Day in 1970.[26] During this pro-conservation period, President Reagan’s terms “marked a growing polarization” in American politics. But still, public land protection remained a bipartisan goal.[27] Congress continued enacting widely supported conservation legislation and started adjusting management practices to better meet modern protection objectives, including recreation and biodiversity.[28] President Trump, despite approving the passage of the Great American Outdoors Act, attempts to change the public lands rhetoric and threatens the classification of “conservation” as a valid land use.[29]
When the federal government threatens public lands, states must take action.[30] States can continue preserving conservation areas despite federal priorities straying.[31] Luckily, local municipalities majorly control land use decisions anyway.[32] States delegate authority to individual municipalities through enacting legislation “that empowers land use decision making to individual towns or cities.”[33] Since the seminal case Euclid, zoning has evolved from regulating the construction and location of buildings to involve more attenuated goals such as land conservation, sustainable development, and affordable housing developments.[34] States and their municipalities are in strong positions to set specific conservation goals that best serve the health, safety, and welfare of its residents through outdoor recreation.[35] Despite federal reform to conservation, there are opportunities to effectively conserve land at the local level. Outdoor recreation represents but one strategy opening the door to new and improved state-led conservation projects.[36]
III. Vermont’s Model State Conservation Project
A special conservation project is coming to fruition in Vermont, aligning the interests of outdoor recreationists and conservationists alike. Vermont is implementing ne of the largest conservation projects in the Northeast to date—the “Velomont.”[37] The Velomont is a huge trail connection project designed to improve local land conservation and encourage outdoor recreation.[38] The Green Mountain State’s expansive conservation project “will represent the largest hut-supported trail network in the U.S.” and conserve 214,000 unprotected acres of land.[39] The Velomont represents a massive collaboration between nonprofit organizations, state agencies, and private landowners.[40] This is not just a concept—the vision arose in 2016 and official planning began in 2023.[41] The “Velomont Vision Plan” lays out numerous goals that guide decision making on the statewide effort.[42]
The Velomont project is a model for intentional land conservation.[43] The Velomont addresses concerns from competing interests while outlining the benefits of such a massive project.[44] Outdoor recreation was a primary motivator of the Velomont. The ancillary motivators of protecting migratory wildlife corridors, boosting economic activity in small rural towns, and promoting public health are just as significant for the State of Vermont.[45] Additionally, this trail connection project creates a contiguous tract of conserved land the length of the state.[46] Generally, the distribution of conserved land is a result of convenience rather than strategic planning.[47] The Velomont represents a methodical approach to conservation that will benefit future generations of people and biodiversity.[48] States should follow Vermont’s lead by intentionally linking outdoor recreation with land use to create new opportunities for recreation and ecological protection in contiguous strips of conserved land. The Velomont Vision Plan even lays out the process for state organizations to develop similar projects.[49]
IV. Why Should States Follow Vermont’s Lead?
Despite challenges with local land conservation and federal cuts to conservation initiatives, it remains a valid interest to prioritize. Outdoor recreation is a primary use of public lands and a major contributor to the U.S. economy.[50] Public lands are the foundation of America’s $1.2 trillion outdoor recreation industry, which “accounted for 2.2 percent of the nation’s gross domestic product” in 2017.[51] Despite numerous economic benefits accompanying outdoor recreation, conservation efforts also encourage healthy populations and environments.[52] The current American reality, however, is that “less than half of people in the United States live within half a mile of a park.”[53] Inequitable access to public lands can be addressed through local and state initiatives. A well-designed, accessible conservation area offers endless benefits.[54] Individuals recreating outdoors experience lower cortisol levels, healthier heart functions, decreased likelihood of developing depression, and a closer connection to the community.[55] In addition to health benefits, green spaces have been shown to encourage social interaction in communal spaces.[56]
In 2024, 81 million people recreated on public lands.[57] The millions of people visiting public lands contributed to the local economy and connected with the community.[58] Outdoor enthusiasts may not align themselves on issues pertaining to how land is used, but all agree that access to conserved land is a necessity.[59] The ultimate goal of protecting everyone’s right to recreate on public lands requires collective action. Conservation issues can result in alignment because American land conservation is an “inherently bipartisan issue.”[60]
Conclusion
State conservation projects are crucial to protect public lands during this period in American politics. Conservation projects can receive widespread support among voters.[61] Outdoor recreation is an excellent strategy to advocate for conserving tracts of land.[62] Recreationists are rallying for threats to America’s public lands—public comments on recission of the roadless rule alone, which protect remaining truly wild places, reached 625,749.[63] The latest attack on public lands comes from President Trump’s attempt to de-recognize conservation as a valid land use.[64] Dissembling an inherently American ideal of protecting wild places for current and future generations is an issue that abridges ideological divides.[65] Hunters, fishers, mountain-bikers, hikers, and off-roaders all share a common interest in maintaining access to conserved areas despite ideological disagreements.
Moving forward, state legislators should genuinely consider similar projects to the Velomont that blend outdoor recreation and land conservation intentionally. There are efficient strategies to manage land conservation that states can utilize to minimize negative impacts to the environment.[66] Indigenous communities have extensive knowledge of “wildlife migration patterns, seasonal changes, and ecosystem balance” to develop community centered conservation.[67] States can adopt “strict carrying capacities” on recreation areas to prevent overcrowding and erosion.[68] Land conserved for outdoor recreation must include community engagement and careful planning to protect access for current and future generations.[69]
[2] Kate Wall, the nature of conservation is inherently bipartisan, IFAW (Dec. 15, 2020), https://www.ifaw.org/people/opinions/conservation-bipartisan; John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341, 343 (2022) (“Americans of all persuasions have come to agree on the importance of protecting [public] lands.”).
[3] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No. 11 (Nov. 14, 2019).
[6] John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341, 341 (2022) (“[I]ndustrial uses like mining, drilling, and large-scale commercial logging take place on a relatively small proportion of Forest Service and BLM lands.”).
[8] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No. 11 (Nov. 14, 2019).
[11]Id.; Roger L. Moore & Beverly L. Driver, Introduction to Outdoor Recreation: Providing and Managing Natural Resource Based Opportunities 209 (Venture Publishing 2005).
[12] Jeffery L. Marion, Impacts to Wildlife: Managing Visitors and Resources to Protect Wildlife, Interagency Visitor Use Mgmt. Council, Nat’l Park Serv. (March 2019).
[13] Roger L. Moore & Beverly L. Driver, Introduction to Outdoor Recreation: Providing and Managing Natural Resource Based Opportunities, 214 (Venture Publishing 2005); See Sierra Forest Legacy, Off-road Vehicles, https://www.sierraforestlegacy.org/FC_FireForestEcology/TFH_OHV.php (last visited Oct. 10, 2025) (outlining substantial negative impacts from off-road vehicles).
[14] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No. 11 (Nov. 14, 2019).
[17] Sarah L. Thomas & Sarah E. Reed, Entrenched ties between outdoor recreation and conservation pose challenges for sustainable land management, 14 Env’t Rsch. Letters, No.11 (Nov. 14, 2019).
[21]See generally John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341 (2022) (“[P]oliticians have time and time again joined hands regardless of political party to hold and protect more lands in U.S. ownership.”).
[27] John Leshy, American Public Lands: A Sketch of Their Political History and Future Challenges, 62 Nat. Res. J. 341, 352 (2022) (“Reagan signed legislation adding more than eight million acres to the national wilderness system, the largest addition in any single year since the Wilderness Act.”).
[29] Great American Outdoors Act, Pub. L. No. 116-152, 134 Stat. 682 (2020) (establishing dedicated funds for use by National Parks and Public Lands); Great American Outdoors Act, U.S. Dep’t of the Interior, https://www.doi.gov/gaoa (last visited Oct. 10, 2025) (describing the Great American Outdoors Act as necessary to address overdue maintenance needs); Rescission of Conservation and Landscape Health Rule, 90 Fed. Reg. 43990 (Sept. 11, 2025) (to be codified at 43 C.F.R. pts. 1600, 6100).
[46] Compass Vermont, U.S. Forest Service Approves 72-Miles for the Velomont Bike Trail in Vermont (Sept. 4, 2025), https://www.compassvermont.com/p/us-forest-service-approves-72-miles; L. Claire Powers et al., Reconnecting stranded public lands is a win-win for conservation and people, 270 Biological Conservation June 2022 at 109557 (connecting conserved land use projects benefit both wildlife and people).
[47] L. Claire Powers et al., supra note 46 (outlining the negative aspects of “checkerboarded” nature of private and public land parcels).
[56]Id.; Viniece Jennings & Omoshalewa Bamkole, The Relationship between Social Cohesion and Urban Green Space: An Avenue for Health Promotion, 16 Int. J. Env’t Res. Public Health 452 (2019).
[68] Moore & Driver, supra note 66 (introducing formula to calculate carrying capacity based on acreage, trail mileage, and vulnerability of the system).
When Agencies Overlook the Environment, NEPA Speaks Up By Gustavo Concepcion-Cordero
More than 55 years after its enactment, the National Environmental Policy Act (NEPA) is still a valuable tool for environmental advocates.[1] NEPA requires federal agencies to consider if there are reasonably foreseeable environmental impacts of proposed major federal actions.[2] An agency will have to issue an Environmental Impact Statement (EIS) if it finds that its proposed action has a reasonably foreseeable significant effect on the quality of the human environment.[3] Environmental advocates regularly bring suits when they believe an agency failed to prepare an EIS or a conduct a proper EIS.[4] One common outcome when a court finds that the agency did not comply with NEPA is to issue an injunction and order the agency to prepare a proper EIS.[5] While courts have described NEPA as a purely procedural statute, federal agencies must comply with its environmentally conscious provisions.[6]
In recent years, however, Congress has made certain NEPA challenges more difficult to pursue. In 2015 Congress approved the Fixing America’s Surface Transportation Act (FAST Act).[7] The Act contains certain provisions affecting some NEPA claims.[8] Under the FAST Act, parties seeking to bring a NEPA claim must submit a comment during the agency’s environmental review period and these claims are subject to a two-year statute of limitations.[9]
NEPA also created the Council on Environmental Quality (CEQ) with the purpose of, among other duties, assisting and advising the President on certain environmental matters, including NEPA implementation.[10] For almost 50 years, the CEQ promulgated government-wide regulations for other agencies to follow when implementing NEPA, but the current administration has taken actions to reduce the CEQ’s power.[11] As a part of his first day executive orders, the President reduced the regulatory power of the CEQ to implement NEPA regulations.[12] By April the CEQ was forced to rescind all of its NEPA regulations.[13]
The President may seek to expedite and simplify the permitting process, but this cannot come at the expense of our environment.[14] NEPA is part of the rule of law and agencies are still subject to judicial review when they fail to properly consider the reasonably foreseeable environmental impacts of their actions. Environmental advocates are not giving up, nor should they.
Recently, a group of advocates in Puerto Rico obtained a partial summary judgment in their favor against the Federal Emergency Management Agency (FEMA).[15] FEMA is currently working on projects to rebuild Puerto Rico’s power grid, following the devastating impacts of Hurricane Maria in 2017.[16] These projects will have a substantial impact on the citizens of Puerto Rico, as it has been reported that FEMA will spend billions of dollars on the repairs.[17] The suit, filed by the Center for Biological Diversity and eight Puerto Rican community groups, highlights how FEMA failed both to consider renewable energy sources in its plans and to prepare an EIS.[18]
The court found there would be significant impacts to human life in Puerto Rico and an EIS should have been prepared.[19] The court proceeded to explain how the agency’s decision will affect the vast majority of Puerto Rico. First, continued reliance on the existing energy infrastructure will affect public health and safety considering the frequent power outages caused by the aging infrastructure.[20] Second, the projects will likely affect park lands, ecologically critical areas, and protected species considering how transmission lines run through some of these areas.[21] Finally, it could establish a harmful precedent for future actions: if FEMA funding continues to be used for fossil fuel-based infrastructure, it is unlikely that Puerto Rico will have the resources to pursue renewable energy alternatives in the near future.[22]
What FEMA’s ultimate EIS may look like is yet to be seen, but they are required to go back and consider renewable energy alternatives for Puerto Rico and the environmental impacts of their proposals. Hopefully, FEMA will propose and pursue a project that is good for the environment and the people of Puerto Rico. However, as the Supreme Court has stated: “NEPA merely prohibits uninformed—rather than unwise—agency action.”[23] While this statement can be disheartening, it’s still a powerful one. Uninformed agency action is still prohibited, and courts are willing to hold agencies accountable.
The role of NEPA may seem small, but it can play a crucial role in federal decision making. The federal government engages a significant number of major federal actions; the least it can do is consider reasonably foreseeable environmental impacts of its actions. Especially when noncompliance may significantly affect the quality of human life. After all, complying with procedural statutes is an essential part of government integrity.
[23] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
Data Centers are Increasing Utility Rates—What are States Doing About it? By Daniela Ricardo
Data Centers are Increasing Electricity Consumption and Everyone Else is Paying For It Utility bills are rising because of data centers.[1] Residential rates are up 6.6% since 2023.[2] Additionally, more than 100 utilities have either raised or proposed higher rates for a total increase of 67 billion dollars.[3] These rising prices are due to increased demand,[4] namely from data centers.[5] In 2023, 4.4% of the electricity consumed in the United States was consumed by data centers.[6] This percentage is only projected to increase.[7] Data centers increase utility rates because they require expensive updates to the grid, which existing ratemaking allows to be shifted to residential consumers.[8]
Residential consumers end up paying for part of data centers’ electricity consumption in addition to paying for data centers’ infrastructure needs. To understand how residential consumers end up paying for data centers’ power consumption, understanding utility ratemaking is essential. Utilities are monopolies.[9] Most are investor-owned and for-profit.[10] Because electricity is an essential service and the industry is shielded from competition, utilities must be regulated.[11] Public utility commissions (PUCs) make sure utilities charge justifiable rates through rate cases.[12] PUCs use the “cost causation” principle to examine whether consumer rates correspond to the costs utilities incur in providing electricity to like consumers.[13] Utilities propose their preferred rates based on their own analyses and records.[14] Part of this proposal includes dividing the cost of operating expenses and profit among customers with similar infrastructure requirements.[15] These groups are called “ratepayer classes.”[16] For each ratepayer class, utilities propose different tariffs to standardize what they pay.[17] Because the cost-causation principle is flexible, all ratepayers can be made to pay for all transmission costs.[18]
Traditional cost distribution shifts the cost of updating the grid for data centers onto residential consumers.[19] The increase in electricity demand requires high-voltage transmission infrastructure.[20] Residential consumers, however, require low-voltage systems.[21] Therefore, data centers require transmission that residential consumers do not require.[22] However, utility-planned transmission is paid for by the customers within their territory.[23] Because the Federal Energy Regulatory Commission (FERC) does not require utilities to keep transmission connection costs separate from other transmission costs, utilities do not differentiate the costs incurred from data centers from that of other consumers.[24] Hence, all consumers within a utility territory pay for all transmission costs regardless of whether they benefit from it.[25]
PJM Interconnection, a regional transmission organization (RTO) monitoring utilities in thirteen states and the District of Colombia, exemplifies how traditional cost distribution has operated in the modern sphere.[26] In 2023, PJM approved a $5.1 billion cost-share plan for transmission costs.[27] PJM assigns transmission costs based on each utilities’ share of power demand and share of benefits.[28] When PJM allocates costs to each PUC, each PUC allocates costs based on ratepayer classes.[29] Over half of the cost incurred in this case was attributed to Virginia’s data centers.[30] Ratepayers in other states argued that they should not be made to pay for transmission when Virginia alone would realize the economic benefits.[31] Because it is presumed that all ratepayers benefit from transmission proportional to their energy consumption, FERC dismissed the economic benefit argument,[32] and approved the plan.[33] In Maryland and Virginia, residential ratepayers paid for more than half of the transmission costs.[34] Unless utilities require data centers to pay for transmission up-front, residential ratepayers will end up paying for it.
When utilities do not make data centers pay for transmission costs up front, they run the risk of building unnecessary transmission.[35] Ratepayers could be on the hook for transmission costs even when a data center does not connect to the grid.[36] Utilities build transmission anticipating the large load, but when it does not come ratepayers still have to pay for it.[37] Most data centers do not pay for transmission up-front.[38] Instead, they sign contracts with utilities behind closed doors.[39]
Traditional ratemaking allows data centers and utilities to shift costs onto residential consumers through special contracts or favorable tariffs. Because data centers are large consumers, they negotiate with utilities directly.[40] Utilities offer data centers lower rates to entice them into building in that utility’s service area.[41] As opposed to ratemaking, these private contracts have little opportunity for public participation and review.[42] The process is not transparent and is isolated from other ratepayers.[43] Furthermore, these contracts incentivize utilities to increase rates for residential consumers in the next ratemaking case.[44] Utility tariffs can function similarly. For example, Florida Power and Light (FPL) recently proposed a rate hike of $10 billion.[45] In a revised settlement, FPL walked back plans to create a new tariff for data centers which would have required data centers to pay 65% higher rates.[46] Instead, data centers under a certain size would save 50% off their base bills.[47] The increase in residential rates directly contrasts data centers’ savings.[48]
Are State Laws Protecting Residential Ratepayers? Several states have sought to address a major risk data centers pose to ratepayers—building too much transmission. In Ohio, data centers must pay penalties if they commit to using a certain amount of electricity and do not do so.[49] Data centers must pay 85% of the capacity they committed to for twelve years unless they give three years’ notice.[50] In Virginia, Dominion Energy has proposed both a rate increase and an exit fee for large load consumers.[51] It would require large load consumers to sign a fourteen-year contract.[52] If they withdraw early or do not build the facility, the consumer will still have to pay for their proposed energy costs.[53] Additionally, the consumer would have to pay a certain percentage of demand charges for transmission, distribution, and generation.[54] Oregon’s Power Act creates a new rate class for large energy users.[55] Oregon requires large energy users to sign contracts for at least ten years.[56] Large energy users are also required to pay for a minimum amount of energy and an extra fee if they exceed the maximum amount of energy projected.[57] To address potential burdens on residential ratepayers, Texas takes a slightly different approach.[58] Texas requires large energy users to pay for infrastructure costs.[59] It also requires large energy users to disconnect during emergencies and register backup generators.[60] In California, a new law requires the California Public Utilities Commission to conduct a study on the effects of data centers on ratepayers.[61]
While state-level legislation is progressing, the trend towards penalizing data centers falling short of commitments does not address major issues in traditional ratemaking. Unless data centers pay for transmission costs up-front, residential ratepayers will foot the bill. Furthermore, states with a lot of data centers are incentivized not to require data centers to pay for transmission upgrades up-front under current cost distribution methods.[62] If the RTO a state is in apportions costs by energy consumption among all states in the region, the state incurring those costs benefits the most. If that state required data centers to pay for transmission costs up-front, data centers would look elsewhere. On the other hand, requiring a data center to pay for energy it committed to using simply makes sure a utility gets paid. Either way, residential ratepayers are still on the hook for the cost of connecting data centers to the grid. Texas’ law requiring data centers to pay for costs up-front addresses this issue. Another way of addressing this issue would be changing how the cost causation principle works. If residential ratepayers are not using it, they should not pay for it.
[8]E.g., Ivan Penn & Karen Weise, Big Tech’s A.I. Data Centers Are Driving Up Electricity Bills For Everyone, N.Y. Times (Aug. 14, 2024), https://www.nytimes.com/2025/08/14/business/energy-environment/ai-data-centers-electricity-costs.html (“recent reports expect data centers will require expensive upgrades to the electric grid, a cost that will be shared with residents”); see Levy, supra note 1 (“[U]nless utilities negotiate higher specialized rates, other ratepayer classes . . . are likely paying for data center power needs”).
[28] Martin & Peskoe, supra note 9 at 15 (explaining that PJM assigns transmission costs based on each utilities’ share of power demand and share of benefits).
[38] Union of Concerned Scientists, supra note 19 at 5 (explaining that only large load customers paid for transmission connection costs up-front or directly in only 5% of cases in 2024).
[44]Id. (describing a FERC audit’s discovery of Duke Energy’s plan to “shift the cost of the discount” of a data center to other ratepayers by raising their rates).
Lewis Ritchie pulls a kayak through floodwater after delivering groceries to his father-in-law on July 28, 2022 outside Jackson in Breathitt County. (Photo by Michael Swensen/Getty Images).
Fracking The Hills: The Legal Exemption Flooding Appalachia By Kathryn Stapleton
The Appalachian Mountain region has long endured frequent and devastating floods. From the shale-rich hills of West Virginia to the hollers of eastern Kentucky and the Blue Ridge Mountains of western North Carolina, communities have repeatedly witnessed creeks overflowing and valleys drowning in mud and debris. While climate change has intensified annual rainfall, another, less visible factor is compounding the crisis: the Halliburton Loophole. This exemption from federal regulations on hydraulic fracturing allows companies to inject millions of gallons of fluid underground with minimal oversight, further destabilizing the region’s already fragile hydrology and escalating the risk of catastrophic flooding.
The Halliburton Loophole: What It Is and How It Came to Be
The Halliburton Loophole was created by the Energy Policy Act of 2005, which amended the Safe Drinking Water Act (SDWA) to exempt most hydraulic fracturing operations from the Underground Injection Control (UIC)program.[1] The UIC program was originally established to regulate underground fluid injection and safeguard underground sources of drinking water (USDWs).[2] Prior to 2005, the Environmental Protection Agency (EPA) had the authority to require permits, conduct testing, and monitor subsurface injections, including those involving fracking fluids.[3]
This changed with the 2005 amendment, heavily supported by Vice President Dick Cheney, a former Halliburton CEO, and redefined “underground injection” to exclude “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations.”[4] Consequently, the EPA lost its authority to regulate the chemical makeup, injection pressures, or long-term impacts of fracking fluids.[5] Oversight now largely rests with state agencies, which in Appalachia are frequently underfunded, understaffed, and subject to political pressures.[6] The result is a fragmented regulatory system that leaves watersheds vulnerable to contamination, slope instability, and hydrologic alteration.
Connecting Fracking to Flooding: Hydrology in Hills
At first glance, fracking and flooding seem unrelated—one occurs deep underground, the other unfolds on the surface. Yet in the Appalachian Mountains, the two are deeply connected. The region’s folded shale, fractured sandstone, and legacy coal seams create natural pathways for groundwater flow. When millions of gallons of high-pressure fluid are injected into these formations, underground water movement is disrupted, potentially opening new fractures or reactivating dormant ones.[7] Without the SDWA’s UIC permitting requirements, these subsurface changes frequently go undocumented, leaving regulators unaware of dangerous buildups in groundwater pressure.[8]
When heavy rains arrive—and in Appalachia, they always do—these modified subsurface pathways amplify runoff.[9] Water that once seeped gradually into the ground may now be channeled directly to streams through fractures, raising discharge rates and peak flood levels.[10] The EPA’s 2016 assessment of hydraulic fracturing impacts found that these subsurface changes can “create or enhance hydraulic connections between deep formations and near-surface aquifers.”[11] In some instances, fracking fluids and brine have migrated upward through abandoned wells or faults, contaminating both groundwater and surface water sources.[12]
Surface disturbance further heightens the risk.[13] Fracking operations require clearing land for well pads, access roads, and retention ponds, which are often on steep, sensitive slopes.[14] These impervious surfaces limit infiltration and accelerate stormwater runoff.[15] When heavy rains pound barren hillsides, erosion worsens, stream channels become clogged with sediment, and flash floods grow even more destructive.[16]
West Virginia: Ground Zero for Legal and Hydrologic Failure
Nowhere are these dynamics clearer than in West Virginia. The 2016 West Virginia floods, which killed 23 people and caused over $1 billion in damage, were exacerbated by deforestation, slope development, and poorly regulated energy infrastructure.[17] Researchers have since argued that hydraulic fracturing and related industrial activity amplified runoff in already-fragile watersheds.[18]
A U.S. Geological Survey (USGS) study in the Monongahela River Basin found that stress-relief fractures—naturally occurring cracks in the bedrock—act as important groundwater pathways and are highly sensitive to changes in underground pressure caused by human activity.[19] Even deep injection activity can alter groundwater discharge patterns that sustain valley streams.[20] Research also shows that areas near shale-gas wells exhibit elevated groundwater pressures and disrupted base-flow dynamics, highlighting the connection between subsurface fluid injection and surface-water response.[21] These findings demonstrate how the Halliburton Loophole’s regulatory gap hinders the hydrologic review necessary to anticipate and prevent flood impacts.
Kentucky: Landslides, Injection, and the 2022 Floods
In eastern Kentucky, where steep terrain and shale formations intersect with intensive energy extraction, the effects of deregulation have been equally severe. The July 2022 floods killed more than 40 people and devastated entire communities.[22] Although extreme rainfall triggered the disaster, post-event analysis revealed that widespread landslides and debris flows were linked to saturated, fractured slopes already destabilized by mining and drilling.[23]
Kentucky’s oil and gas statutes lack robust requirements for cumulative hydrologic impact assessment or subsurface injection monitoring.[24] Because the Halliburton Loophole preempts federal UIC oversight, the EPA cannot require operators to model how injection pressures might interact with groundwater or slope stability. The result is a self-reinforcing cycle: weak regulation leads to altered hydrology, which amplifies natural hazards in already vulnerable mountain communities.
North Carolina: A Lesson in Prevention
Unlike its neighbors, North Carolina has so far avoided widespread fracking. In 2013, the state’s Mining and Energy Commission proposed rules to require chemical disclosure for hydraulic-fracturing fluids, but the effort was weakened by lobbying from industry groups citing trade secret protections.[25] Legal challenges and political shifts delayed comprehensive regulation, leaving the state with only partial transparency requirements.[26] If the Halliburton Loophole persists, any future expansion of fracking in North Carolina will likely proceed without essential hydrologic safeguards or baseline groundwater testing—raising the risk of destabilization and flooding seen elsewhere in the region.[27]
Legal and Policy Implications: Federalism at Its Breaking Point
The Halliburton Loophole undermines the Safe Drinking Water Act’s central goal: safeguarding underground drinking water from contamination and structural damage.[28] In hydrologically connected regions like Appalachia, this exemption threatens not just groundwater but also surface stability and flood resilience. By shifting oversight to states—without adequate funding, technical resources, or consistent standards—Congress created a regulatory blind spot at the intersection of energy development and climate risk..[29] As a result, fracking can move forward in flood-prone areas without federal review of hydrologic risks, cumulative injection pressures, or the interplay between slope geology and extreme rainfall.
Reform and Responsibility: Closing the Loophole for Climate Resilience
Congress should amend the Safe Drinking Water Act to repeal the 2005 exemption and restore EPA authority over hydraulic fracturing fluids under the UIC program. The Fracturing Responsibility and Awareness of Chemicals (FRAC) Act—introduced multiple times since 2009—would close this loophole, mandating chemical disclosure and groundwater monitoring.[30] In addition to reinstating oversight, regulators should embed flood resilience into permitting by requiring hydrologic impact assessments, vegetative buffers, and adaptive monitoring in areas with steep topography or high rainfall.[31] States and localities should implement complementary zoning and stormwater controls in energy fields to prevent destabilization and capture runoff before it collects in hollows. A coordinated federal, state, and local approach is essential to close both the legal and hydrologic gaps.
Ultimately, the Halliburton Loophole exemplifies a breakdown of environmental federalism. It removed crucial oversight precisely where cross-jurisdictional coordination is needed most: in watersheds that span county and state boundaries. In Appalachia, water flows downhill through communities that often lack the political power to challenge upstream industry. The loophole enables private profits while transferring the costs—damaged homes, contaminated wells, and repeated flood recovery—to local taxpayers. Repealing the loophole will not stop the rain, but it would empower regulators to ensure industrial activity no longer exacerbates natural disasters. Water always finds the gaps—and in this case, the most dangerous gap is in the law itself.
[1] Energy Policy Act of 2005, Pub. L. No. 109-58, § 322, 119 Stat. 594, 694 (2005) (codified at 42 U.S.C. § 300h(d)(1)(B)).
[5] U.S. Env’t Prot. Agency, Permitting Guidance for Hydraulic Fracturing Using Diesel Fuels (Feb. 2014).
[6] Mary Tiemann & Adam Vann, Cong. Rsch. Serv., R41760, Hydraulic Fracturing and Safe Drinking Water Act Regulatory Issues (2015).
[7] Granville G. Wyrick & James W. Borchers, Hydrologic Effects of Stress-Relief Fracturing in an Appalachian Valley, U.S. Geological Surv. Water-Supply Paper 2177 (1981).
[8] U.S. Env’t Prot. Agency, EPA-600-R-16-236, Assessment of the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources (2016) (finding that “limited data availability and lack of consistent monitoring make it difficult to determine the full extent of hydraulic connectivity or subsurface pressure changes resulting from hydraulic fracturing operations”).
[19] D.B. Chambers et al., US Geological Survey, SIR 2014-5233, Water Quality of Groundwater and Stream Base Flow in the Marcellus Shale Gas Field of the Monongahela River Basin (2015), https://pubs.usgs.gov/sir/2014/5233/pdf/sir2014-5233.pdf.
[29] U.S. Gov’t Accountability Off., GAO-14-555, Oil and Gas Regulation: Opportunities Exist to Improve Oversight of Hydraulic Fracturing Activities (2014).
[30] Fracturing Responsibility and Awareness of Chemicals (FRAC) Act, H.R. 2133, 117th Cong. (2021).
