As a result of 9/11, the United States has made countering terrorism a top priority in the national security field. On September 17th, 2001, President George W. Bush granted the CIA the power to “covertly capture and detain individuals” with connections to terrorist activities or groups.[1] During these detentions, interrogators may employ enhanced interrogation techniques (EITs), such as waterboarding, against detainees to extract information because they believe that fake drowning is a helpful motivator for these detainees to divulge information.[2]
In cases involving a United States government official employing EITs against a detainee, the courts have been unable to hold government officials liable for torture because of the doctrine of qualified immunity.[3] Qualified immunity allows a government official to escape liability if the law was not “clearly established” at the time of the act, or a reasonable government official would not have known that their actions violated a constitutional or statutory right.[4] The “clearly established” part of this qualified immunity test is known as the liability prong. In contrast, the second part of this test is known as the legality prong.[5]
Traditionally, the courts have not needed to perform a complete qualified immunity analysis because the courts have relied on the liability prong of qualified immunity.[6] The courts have consistently and wrongfully determined that the EITs employed by government officials were not “clearly established” to violate a detainee’s constitutional or statutory rights. Then, the court’s analysis stops there and acquits the government official of any charge.[7]
However, due to the passage of the McCain-Feinstein Amendment to the Detainee Treatment Act of 2005 (DTA), the court’s analysis of qualified immunity needs to change and consider both prongs of qualified immunity.[8] The McCain-Feinstein Amendment forces all government officials to adhere to the Army Field Manual (FM 34-52) when employing EITs against detainees.[9] The McCain-Feinstein Amendment’s purpose and intent were to fulfill the liability prong of qualified immunity by making it clear that the “United States should not engage in torture again” by restricting EITs to those listed in FM 34-52.[10] The McCain-Feinstein Amendment “clearly establishes” that any EITs not expressly mentioned in FM 34-52 violate a detainee’s constitutional or statutory rights, especially when the detainee is a United States citizen.[11]
Now that the liability prong of qualified immunity is fulfilled, the courts are forced to address the liability prong of qualified immunity, potentially holding government officials liable for torture in the future. This new, complete qualified immunity analysis will lead to many future implications. One future implication is that this analysis must be applied to any future cases concerning detained United States citizens and EITs. A second future implication of this complete qualified immunity analysis is the possibility of detainees raising other tort claims not listed in FM 34-52, specifically the tort of intentional infliction of emotional distress.[12] Lastly, the court must carve out an exception to this complete qualified immunity analysis in the event that the United States is faced with an imminent attack threatening the lives of thousands of Americans and techniques listed in FM 34-52 are not producing information.
[1] S. Select Comm. on Intel., Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-228, at xviii (2014).
[2] Office of the Inspector General, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), at 15 (Report No. 2003-7123-IG) (2004).
[3] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
[8] Ctr. for Victims of Torture, McCain-Feinstein Anti-Torture Amendment: Strengthens U.S. Ban on Torture (2015), https://www.cvt.org/sites/default/files/attachments/u11/downloads/McCain-Feinstein%20Amendment%20Factsheet_November%202015.pdf.
On June 23, 1988, the director of NASA’s Institute for Space Studies stated, “Global warming has reached a level such that we can ascribe with a high degree of confidence a cause-and-effect relationship between the greenhouse effect and observed warming . . . .[T]he greenhouse effect has been detected, and it is changing our climate now.”[1] In the early 1990s, climate scientists established 2° Celsius (C) as the maximum level of warming that could occur without “pushing the whole climate system outside the range we’ve adapted to.”[2] Despite warnings by scientists that global warming of more than 1.5°C would “push some Earth systems past dangerous and irreversible tipping points,” the current U.N. report released just before COP27 indicates the world is on a path to heat between 2.1 and 2.9°C.[3] Once a tipping point is reached, the rate and severity of natural disasters will not gradually get worse along the same trajectory. They will immediately and drastically become much, much worse.[4] While scientists have sounded the alarms for over 30 years, the United States Congress sat idly by—cementing a future of self-destruction.[5] The world’s leading climate scientists have warned that we have less than a decade to curtail global emissions before global warming reaches catastrophic levels.[6]
While the 1970s experienced a proliferation of progressive environmental legislation, the Clean Air Act amendments of 1990 marks the begging of a 32-year failure by the United States to substantively address the growing threat of climate change. In light of congressional inaction, private citizens, special interest groups, non-profit organizations, stakeholders, and government actors alike have orchestrated lawsuits seeking solutions to climate change.[7] According to James Hansen, a prolific climate scientist with NASA, compensatory litigation is the best way to hold carbon majors accountable “[u]ntil governments make them do so by implementing carbon fees or taxes . . . .”[8] Similarly, the economist and director of the Earth Institute at Columbia University and UN special adviser, Jeffrey Sachs, “urges citizens to pursue major polluters and negligent governments for liability and damages and ‘flood the courts’ with legal cases demanding the right to a safe and clean environment.”[9]
Climate litigants have filed suits taking many different forms. There have been cases challenging agency decisions,[10] cases seeking damages from carbon majors using federal common-law claims,[11] cases seeking injunctive relief or recognition of constitutional rights,[12] and cases seeking damages from fossil-fuel companies using state-tort law.[13] Aside from Massachusetts v. EPA—by all accounts, a climate victory—few climate-change litigants have seen success (or have even had their claims heard on the merits). In fact, courts across the United States, including the Supreme Court, have all about put the kibosh on each of the aforementioned climate-change claims—except claims using state-tort law.
Attorneys general across the United States are bringing suits against fossil-fuel companies using state-tort law, seeking compensation from climate change damages. The problem with these cases right now is the lack of consensus regarding jurisdiction. While states believe their claim belongs in state court because each state experiences the impacts of climate change differently, industry believes the state court system is ill-equipped to adjudicate climate change, which is a global affliction. The Supreme Court granted a writ of certiorari for a state-law case against 21 fossil-fuel companies, but did not settle the matter of jurisdiction. State-law-climate-change cases are the closest that litigants have come to pinning liability of climate change on the industry responsible for causing it. However, it is unlikely these cases will yield success until (1) jurisdiction is figured out; and (2) causation can be linked to the fossil-fuel industry. Until then we are at a stale mate.
The problem here is that the deadline to prevent catastrophic impacts from climate change is slipping through our fingers, and the courts are still scratching their heads sorting out jurisdictional issues. The stall in deciding this very narrow jurisdictional issue captures the very problem with utilizing litigation as a solution to climate change: we are running out of time. Either way, the courts will eventually decide jurisdiction once and for all. If federal, the claims will be displaced by the Clean Air Act and dismissed. If they decide the claims should be in state court, then state courts will determine the justiciability of the claims—and more likely than not—will hold that climate change embodies a political question and is thus, not justiciable.[14] If, however, science improves enough for courts to establish causation, it is possible that fossil-fuel companies will reach individual settlements with states to cover the cost of damages.
In states where this does not occur, establishing causation will allow a new wave of litigation: insurance subrogation claims. Eventually, climate change will bankrupt insurance companies, who, in 2018, paid over $90 billion worldwide to policyholders impacted by increased natural disasters[15]. Either that, or insurance companies will refuse to cover damages associated with climate change. In either case, the cost of climate change will fall on insurers or insureds—and not those at fault. Eventually, insurance companies may pursue litigation against fossil-fuel companies with the same zeal that state-and local governments and private citizens pursue litigation today.
The bottom line, though, is climate change is going to be expensive and its cost should not fall on those least responsible. Whether the courts present inaction is the result of principled judicial procedure or a myopic interest in maintaining the status quo, we are less than a decade away from calamitous disruption. Until then, let’s flood the courts. Until the courts buck up and respond to an extraordinary situation with extraordinary measures, climate change litigation will, and should, endure as a form of desperate and defiant protest.
[1] Robert Brulle, 30 Years Ago Global Warming Became Front-Page-News – and both Republicans and Democrats Took it Seriously, Conversation (June 19, 2018), https://theconversation.com/30-years-ago-global-warming-became-front-page-news-and-both-republicans-and-democrats-took-it-seriously-97658.
[2] Ezra Klein, 7 Reasons America Will Fail on Climate Change, Vox (June 5, 2014), https://www.vox.com/2014/6/5/5779040/7-reasons-America-fail-global-warming.
[3] Bob Berwyn, Is COP27 the End of Hopes for Limiting Global Warming to 1.5 Degrees Celcius?, Inside Climate News, (Nov. 18, 2022), https://insideclimatenews.org/news/18112022/is-cop27-the-end-of-hopes-for-limiting-global-warming-to-1-5-degrees-celsius/.
[4]See Renee Cho, How Close Are We to Climate Tipping Points?, Columbia Climate Sch.: State of the Planet (Nov. 11, 2021), https://news.climate.columbia.edu/2021/11/11/how-close-are-we-to-climate-tipping-points/. A tipping point is a point that, when crossed, will trigger changes to earth’s climate system, which will cascade into a perpetuating cycle of irreversible and drastic effects. Id.
[5] In fact, in his book They Knew, James Gustave Speth articulates how the U.S. Federal Government not only knew about the risks of climate change and what was causing it, but actively endorsed and promulgated policies that promoted increasing the consumption of fossil-fuels. James Gustave Speth, They Knew: The U.S. Federal Government’s Fifty-Year Role in Causing the Climate Crisis, 151 (2021); But see Inflation Reduction Act of 2022, Pub. L. No. 117–169, 136 Stat. 2028.
[6] See Jonathan Watts, We have 12 years to limit climate change catastrophe, warns UN, Guardian (Oct. 8, 2018), https://www.theguardian.com/environment/2018/oct/08/global-warming-must-not-exceed-15c-warns-landmark-un-report.
[7] Grace Nosek, Climate Change Litigation and Narrative: How to Use Litigation to Tell Compelling Climate Stories, 42 Wm. & Mary Env’t L. & Pol’y Rev. 733, 736 (2018).
[8] Jonathan Watts, ‘We Should be on the Offensive’ – James Hansen Calls for Wave of Climate Lawsuits, Guardian (Nov. 17, 2022), https://www.theguardian.com/environment/2017/nov/17/we-should-be-on-the-offensive-james-hansen-calls-for-wave-of-climate-lawsuits.
[9] Geetanjali Ganguly et al., If at First you Don’t Succeed: Suing Corporations for Climate Change, 38 Oxford J. of Legal Stud. 841, 842 (2018).
[10] Massachusetts v. EPA, 549 U.S. 497, 497 (2007).
[11]See e.g., Native Vill. Of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).
[12] Juliana v. United States, 947 F.3d 1159, 1170 (9th Cir. 2020).
[13]See e.g., Boulder County et al. v. Suncor and Exxon, 25 F.4th 1238, 1246 (10th Cir. 2022).
[14]SeeConstitutional Issues – Separation of Powers, NATIONAL ARCHIVES https://www.archives.gov/education/lessons/separation-powers (last updated Oct. 10, 2016).
[15] Kaitlin Sullivan, Could Insurance Lawsuits Against Big Oil be the Next Wave in Climate Liability?, Climate Docket (July 18, 2019), https://www.climatedocket.com/2019/07/18/insurance-lawsuits-climate-liability/.
They tryin to blame this rap shit for all of our ills
Like I can stick you up with a mic
Like I can rape you with a verse or use a verb as a knife
Like before Kool Herc, everything was alright
Like y’all wasn’t calling Black women hoes befo’ “Rapper’s Delight”[1]
In the trend of allowing rap and hip-hop lyrics to be used as evidence in criminal proceedings, Black expression is now subject to unfair participation in a system that has historically ignored its people and its protest.[2] Perceiving violence or criminal conduct to be exclusively linked to the genres of rap and hip-hop[3] perpetuates America’s thematic history of injustice and misinterpretation of Black life, music, and culture. Accusing rap of causing violence “attempt[s] to erase from the consciousness of [Americans] the history of oppression that [gave] birth to hip-hop culture.”[4] America’s negative perception, yet mass commodification, of rap and hip-hop music is indicative of America’s commitment to engage with Blackness at its convenience.
Rap music is a powerful force for identity and solidarity.[5] Rap, in essence, is a transformative art form that provides a social commentary, narrowed in the lens of cultural understanding.[6] Through its lyricism, rap music confronts hyper policing in Black communities, mass incarceration, and other problems faced by Black and brown communities head on.[7] Literary tools[8] creatively conceal the explicit nature of rap artists’ confrontations, causing Black expressionism to be misinterpreted and misunderstood. Critics of rap music fail to visualize the emotion, talent, and intellect rap artists embed within their songs, due to the language barrier between Black individualism and the criminal justice system.[9] Most fail to acknowledge and peel back the layers of rap music, mirroring the failure of slave overseers to peel back the meanings of plantation slave songs.[10]
The cultural colloquialisms, AAVE (African American Vernacular English), and poetic rhythms demonstrate the need for rap and hip-hop music’s consideration as a form of literary art, and not criminal evidence. As an art form, rap music deserves the utmost protection within the criminal justice system. Criminalizing song artists for the content of their lyrics promotes prejudiced decision making in the justice system because using lyrics as evidence targets and disproportionately impacts Black artists.[11] Prosecutors attempt to use rap lyrics against defendants in two ways. First, prosecutors are conscious of a juries’ implicit bias against rap music and its artists,[12] hoping that they’ll conflate a defendant’s expression with what is depicted in the song.[13] Second, prosecutors may introduce rap videos into evidence in an attempt to show the “existence of a criminal enterprise, association with other members, familiarity with firearms, and a motive to commit certain crimes.”[14] Through justified association between rap music and violent crimes, it creates a horrible and restrictive suggestion that the genre, and its artists, glorify or condone violent and other stereotypes contemporaneously mentioned with Black art and its people.
Labeling rap lyrics as criminal also disproportionately impacts the rap music genre.[15] This label will have a chilling effect on Black speech if rap lyrics continue to be hyper-criminalized by prosecution.[16] Rap artists will focus more on evading criminal prosecution based on their lyrics, and less on artistic excellence. The hip-hop community is simultaneously under attack and under surveillance.[17] Historically, and now, individual rap artists and rap groups have been surveilled—via eavesdropping, tracking, and online monitoring.[18] Now, the unwelcome intrusion into rap and hip-hop culture has transformed into criminalizing an artist’s words and not their actions.
In the context of rap lyrics in criminal proceedings, the Black existence does not survive prosecutorial discretion. Prosecutors are able to prove elements of a crime by circumstantial evidence. Instead, the Black existence is contextual and layered—like the perfect verse over a tight beat.[19] All rap music needs is for the world to finally give it a fighting chance.[20]
[1]Sirens – Little Brother, Genius, https://genius.com/Little-brother-sirens-lyrics (last visited Mar. 18, 2022); See generally Christina Reyna, Mark Brandt, & G. Tendayi Viki, Blame It on Hip-Hop: Anti-Rap Attitudes as a Proxy for Prejudice, 12(3), Gʀᴘ. Pʀᴏᴄᴇssᴇs & Iɴᴛᴇʀɢʀᴏᴜᴘ Rᴇʟᴀᴛɪᴏɴs 361 (2009) (discussing how negative stereotypes of rap music influence attitudes of Blackness and Black people.)
[3] Vidhaath Sripathi, Bars Behind Bars: Rap Lyrics, Character Evidence, and State v. Skinner, 24 J. Gᴇɴᴅᴇʀ, Rᴀᴄᴇ, & Jᴜsᴛ. 207, 208 (2021).
[4] Becky Blanchard, The Social Significance of Rap & Hip-Hop Culture, Edge (July 26, 1999), https://web.stanford.edu/class/e297c/poverty_prejudice/mediarace/socialsignificance.htm.
[5] Joseph Paul Eiswerth, Rap Music As Protest: A Rhetorical Analysis of Public Enemy’s Lyrics, UNLV Retrospective Theses & Dissertations. https://digitalscholarship.unlv.edu/rtds/583/.
[7] Donald F. Tibbs & Shelly Chauncey, From Slavery to Hip-Hop: Punishing Black Speech and What’s “Unconstitutional” About Prosecuting Young Black Men Through Art, 52 Wash. Univ. j.l. & Pol’y. 33, 51 (2016).
[8]See, e.g., literary tools such as metaphors, rhyme and rhythm, similes, attention to language, imagery, and character personas. Cynthia Lee, Rap Lyrics as Literature, UCLA Newsroom: MAGAZINE, Feb. 15, 2022, https://newsroom.ucla.edu/magazine/lectures-lyrics-hip-hop-rap-poetry.
[9] Donald F. Tibbs & Shelly Chauncey, From Slavery to Hip-Hop: Punishing Black Speech and What’s “Unconstitutional” About Prosecuting Young Black Men Through Art, 52 Wash. Univ. j. l. & Pol’y. 33, 51 (2016).
[11] Erin Lutes, James Purdon, Henry F. Fradella, When Music Takes The Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases, 46 Am. J. Crim. L. 77, 87 (2019).
[13] Erik Nielson, Prosecutors would rather read rap as a threat than as art, Wash. Post, Dec. 5, 2014, https://www.washingtonpost.com/opinions/prosecutors-would-rather-read-rap-as-a-threat-than-as-art/2014/12/05/80e77fc8-7b3e-11e4-b821-503cc7efed9e_story.html.
[14] David L. Hudson, Jr., Rap Music and the First Amendment, The First Amendment Encyclopedia, Middle Tenn. State Univ. (2018).
[15] Jason E. Powell, R.A.P.: Rule Against Perps (Who Write Rhymes), 41 Rutgers L.J 479, 516 (2021).
[17] Andrea L. Dennis, The Music of Mass Incarceration, ABA (Nov.–Dec. 2020), https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/november-december/music-mass-incarceration/.
How would you feel if your genetic information was released to the world without your consent? What if you were forced to undergo unnecessary surgery? What if you were subject to hateful, racist, and transphobic remarks every time you went to work?
These are all things that happened to Caster Semenya and other athletes under World Athletics’ hyperandrogenism policy. World Athletics’ hyperandrogenism policy sets an arbitrary two-and-a-half nanomole per liter requirement for natural testosterone present in anyone running in any female event of any distance.[1] But don’t worry, World Athletics says, this does not invade your right to privacy, autonomy, and prohibition against torture. Why? Because there are ways you can still compete—as long as you don’t mind being forced to take hormone medication or undergo irreversible surgery to reduce your natural testosterone levels.
Caster Semenya, a South African 800-meter runner, has fought World Athletics since she was first banned in 2009, after being forced to take a sex test because she looked “suspicious.”[2] She has challenged the regulation all the way to the European Court of Human Rights, arguing that Switzerland (where World Athletics is located) violated her rights. Switzerland is alleged to failed to fulfil its obligations under the European Convention on Human Rights. Specifically, Switzerland is accused of violating its duty to prevent torture and inhuman or degrading treatment; to protect athletes’ rights to privacy and private life; and to prohibit discrimination against her as a queer athlete of color from the Global South.[3] The European Court of Human Rights recently ruled in July of 2023 that Switzerland violated her rights.[4] Switzlerand appealed this decision to the Grand Chamber and an final decision is still pending.
World Athletics forced Semenya to take unnecessary hormonal medication, publicly undressed her by releasing her genetic information without her consent, deprived her of her livelihood, and stole her right to personal autonomy, among many other violations.[5] Surely this is the easiest way to make women’s sports fair, right? If you were World Athletics, you would make sure to test every less invasive alternative before making someone undergo unnecessary surgery? Right?
No. In fact, there is a simple test that World Athletics could use instead of forcing athletes to undergo painful and dangerous medical procedures. Carbon-isotope-ratio tests can easily detect the difference between natural and artificial testosterone—eliminating the need for the hyperandrogenism policy.[6] The hyperandrogenism policy does not protect against doping athletes competing. It serves a simple two-fold purpose of barring clean athletes and imposing an outdated Western gender stereotype on athletes from around the world.
By narrowing World Athletics’ policy to only ban athletes from competing in races who commit doping violations with artificial testosterone, it would reduce outdated sex stereotypes and only punish athletes who have violated doping rules to have an unfair advantage. Further, an injunctive effect on the policy would reduce indirect discrimination, especially on queer women of color from the Global South. Modifying the policy in this manner would bring women’s sports in line with the standard practices used in men’s sports, since there are no analogous policies restricting men’s natural testosterone levels.
[1] Taylor Vann, Caster Semenya and the Policing of Competitive Athletic Advantage, 53 Conn. L. Rev. 1019, 1021 (2022); Molly Webster & Sarah Qari, Gonads: Dutee, Radiolab (Aug. 5, 2021), https://radiolab.org/episodes/dutee.
[2] Press Release, World Athletics, WMA Urges Physicians not to implement IAAF rules on classifying women athletes (Apr. 25, 2019); Gerald Imray, Semenya Taking Case to European Court of Human Rights, AP News (Feb. 25, 2021), https://abcnews.go.com/Sports/wireStory/semenya-taking-case-european-court-human-rights-76106450?cid=clicksource_4380645_15_hero_headlines_headlines_hed; Health & Science Official Documents, World Athletics, https://www.worldathletics.org/about-iaaf/documents/health-science (last visited Feb. 25, 2023).
[3] Council of Eur. et al., Guide on Article 3 of the European Convention on Human Rights: Prohibition of Torture, Eur. Court of Hum. Rts. 12 (1st ed., Aug. 31, 2022); Council of Eur. et al., Guide on Article 8 of the European Convention on Human Rights: Right to Respect for Private and Family Life, Home and Correspondence, Eur. Court of Hum. Rts. 7 (Apr. 30, 2022); Council of Eur. et al., Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol App No. 12 to the Convention: Prohibition of Discrimination, Eur. Court of Hum. Rts. 6 (Apr. 30, 2022).
[4]‘A Long Time Coming’: Caster Semenya ‘Elated’ to Win Discrimination Case, Guardian (July 12, 2023), https://www.theguardian.com/sport/2023/jul/12/caster-semenya-elated-court-ruling-human-rights-discrimination-case#:~:text=“The%20European%20court%20of%20human,legal%20team%20in%20South%20Africa; Semenya Case Referred to European Rights Court’s Grand Chamber (Nov. 6, 2023), https://www.reuters.com/sports/athletics/semenya-case-referred-european-rights-courts-grand-chamber-2023-11-06/.
[5] Jamie Strashin, What’s the Real Problem with Caster Semenya, CBC Sports (May 14, 2018), https://www.cbc.ca/sports/olympics/summer/trackandfield/caster-semenya-cultural-bias-1.4661929.
[6]The Test That Caught Tom Danielson, VeloNews, https://www.velonews.com/news/the-test-that-caught-tom-danielson/ (last visited Feb. 25, 2023); Thomas Piper et al., Carbon Isotope Ratios of Endogenous Steroids Found in Human Serum—Method Development, Validation, and Reference Population-Derived Thresholds, 413 Analytical & Bioanalytical Chemistry 5655, 5661 (2021).
It is February, in Texas, and the lights are out. Texans are weathering an unanticipated cold front. As masses flock indoors, the demand for electricity in the form of light and heat spikes. Meanwhile, several electric generating plants are offline due to complications with the colder-than-expected weather. What year is it?
While most remember the viral Texas blackouts caused by winter storm Uri in 2021, less are aware that Texas has experienced a pattern of severe cold-weather events disrupting its electric service dating back to 1983.[1] Winter storm Uri, undoubtedly, was the biggest of those events: at its peak, the storm took 34,000 MW of electric generation capacity offline, leaving two-thirds of Texans literally powerless.[2] After each of the three most severe cold-weather events in the last 50 years—1989, 2011, and 2021—regulatory bodies conducted investigations and made recommendations “aimed at improving winterization on the part of the [electric] generators.”[3] The recommendations in the 1989 and 2011 reports went largely unheeded by Texan electric generators and regulators, and the 2021 recommendations may meet the same fate.
Officials in Texas are facing increased calls for Texas to connect with the national grid.[4] Texans are finalizing criticizing the State’s repeated failures. The 2011 power outages in Texas were a direct reflection that Texan electric generators lack adequate infrastructure to provide reliable power during cold-weather emergencies. After failing to address these infrastructure concerns in 2011, the Texas Legislature passed two bills in response to Uri: 2021 Senate Bills 2 and 3.[5]
As a law pertaining primarily to state-agency governance, SB 2 did little to improve, or mandate improvements to, Texas’ electric generation infrastructure.[6] Several sections of the bill amended the Texas Utilities Code to require several leadership positions in the Public Utility Commission of Texas to be Texas residents, providing little (if any) support to Texas’ grid infrastructure.[7] While having a resident of the state in charge of regulating public utilities may provide a better leader, this requirement in no way guarantees better leadership or any meaningful action to protect Texas’ grid. Likely, the Texas Legislature put this provision in place to increase the likelihood of Texas remaining independent from federal regulation in the face of increasing calls for Texas to join the national grid.[8] Overall, SB 2 does little to curb Texas’ power issues and instead provides for Texas continuing energy independence by mandating protectionist laws, which put all positions of power in Texas’ energy regulatory scheme in the hands of Texans.
While SB 2 involved small amendments to existing code with some new sections, the lengthier SB 3 established several new sections of code. The bill created two new committees for developing and enforcing reliability standards; established new emergency response alert systems; and raised the fines chargeable to noncompliant utilities. Ultimately, the bill is likely to enhance confusion around who is responsible for energy reliability in Texas. The federally delegated Texas Reliability Entity, the Public Utilities Commission of Texas (PUCT), the Texas Railroad Commission, and now both the Texas Energy Reliability Council and Texas Electricity Supply Chain Security and Mapping Committee all have some statutory duties around the development and enforcement of reliability standards for energy producers and transmission operators in the state of Texas.[9]
Texas has a major energy infrastructure problem that the state has failed to address for decades. As climate change ramps up, the occurrence of severe weather events in Texas (and elsewhere) is highly likely to increase. The most recent cold-weather blackouts of 2021 were the most severe on record, resulting in a number of fatalities and a huge economic hit to the state. If Texas does not address the shortcomings of its electric generation infrastructure, it is doomed to continue suffering from worse and worse blackouts like those in February 2021.
The current response, 2021 SB 2 and SB 3 signed into law in the wake of Uri, is not enough. The two bills together primarily increase reporting functions of the PUCT and other energy-related entities. By assigning many organizations the job of creating, proposing, and enforcing new and improved reliability standards for Texas’ infrastructure, the Texas Legislature is asking for confusion and dysfunction as competing federal and state agencies fight over reliability standards. More importantly, each of those entities will be left pointing the finger at the other in the wake of the next cold-weather blackouts.
Now to get back to where we started: it is February, in Texas, and the lights are out. Texans are weathering an unanticipated cold front. As masses flock indoors, the demand for electricity in the form of light and heat spikes. Meanwhile, several electric generating plants are offline due to complications with the colder-than-expected weather. What year is it? Hopefully not 2023, 2024, or beyond.
[1] Fed. Energy Reg. Comm’n and N. Am. Elec. Reliability Corp., Report on Outages and Curtailments During the Southwest Cold Weather Event of February 1–5, 2011: Causes and Recommendations 7 (2011) [hereinafter FERC/NERC 2011 Report].
[2] Umair Irfan, Why the Texas Power Grid is Struggling to Cope with the Extreme Cold, Vox (Feb. 16, 2021), https://www.vox.com/2021/2/16/22284140/texas-blackout-outage-winter-storm-uri-ercot-power-grid-cold-snow-austin-houston-dallas.
[3]FERC/NERC 2011 Report at 10; Fed. Energy Reg. Comm’n and N. Am. Elec. Reliability Corp., The February 2021 Cold Weather Outages in Texas and the South central United States 8 (2021) [hereinafter FERC/NERC 2021 Report].
[4]See, e.g., Erin Douglas et al., Texas Leaders Failed to Heed Warnings the Left the State’s Power Grid Vulnerable to Winter Extremes, Experts Say, Tex. Trib. (Feb. 17, 2021), https://www.texastribune.org/2021/02/17/texas-power-grid-failures/ (stating that “Texas policy makers should consider more connections to the rest of the country.”); see, e.g., Catherine Morehouse, Congress, Texas Should ‘Rethink’ ERCOT’s ‘Go it Alone Approach’: FERC Chair Glick, Util. Dive (Feb. 19, 2021), https://www.utilitydive.com/news/congress-texas-should-rethink-ercots-go-it-alone-approach-ferc-chair/595335/ (quoting then-FERC Chairmain Richard Glick, who called Texas energy independence “just to keep FERC at bay . . . as the proverbial cutting off your nost to spite your face.”).
[5] 2021 Tex. Gen. Laws 425 (SB 2); 2021 Tex. Gen. Laws 418 (SB 3).
[6] Recall from both the 2011 and 2021 FERC/NERC reports that poor infrastructure—not poor oversight—was the main culprit of the outages. While oversight and infrastructure development are related, the PUCT had the ability to mandate infrastructure improvements prior to SB 2’s passage. See FERC/NERC 2011 Report; see FERC/NERC 2021 Report.
[9]See 16 U.S.C. § 824 (delegating authority over reliability standards to NERC, and further commanding regulators to allow NERC to delegate further—which it has done in many cases, including to the Texas Reliability Entity, one of many governing bodies with authority over reliability standards in Texas.); see also Tex. Util. Code § 39.151 (delegating the Public Utilities Commission of Texas to “adopt and enforce rules relating to reliability of the regional electrical network.”); see also Tex. Util. Code § 121.2015 (assigning the Texas Railroad Commission the responsibility of adopting rules for gas pipeline service reliability); see also 2021 Tex. Gen. Laws. 418 (creating the Texas Energy Reliability Council and the Texas Electricity Supply Chain Security and Mapping Committee; both entities have reliability related responsibilities outlined in the code).
Our failure to properly account for the use of our ocean and our ocean’s resources has increased the presence of illegal ocean activities. Overfishing, as a response to the overwhelming demand for inexpensive seafood, has forced fishers to travel far and wide to find viable fish stocks or board illegal fishing vessels for hardly any pay. Human trafficking on fishing vessels in international waters is a global tragedy that desperately needs attention. The lack of regulation and enforcement in international waters creates a culture and environment on large capture boats that can be hostile and life threatening. The Trafficking in Persons Report (TIP) is an annual report published by the United States Department of State that includes an analysis of human trafficking in every country, promising practices to combat trafficking, victim’s stories, and current trends.[1] The TIP identified Burma, Haiti, Thailand, Taiwan, Cambodia, Indonesia, South Korea, and China as countries dealing with trafficking and forced labor in the fisheries sector.[2] Forced labor on international fishing vessels occurs worldwide, affecting the lives of thousands of people.
Humans are exploited to work in severely unethical, dangerous, and uninhabitable conditions on fishing vessels. Forced labor encompasses many different activities including recruiting, harboring, obtaining, transporting, and providing when combined with the use of force or physical threats; psychological coercion; abuse of the legal process; a scheme, plan, or pattern intended to hold a person in fear of serious harm; or other coercive means to compel someone to work.[3] According to the United States Department of Health and Human Services, consequences of labor trafficking can include “helplessness, shame and humiliation, shock, denial and disbelief, disorientation and confusion, and anxiety disorders including posttraumatic stress disorder (PTSD), phobias, panic attacks, and depression.”[4] The victims are often “unfamiliar with the laws, cultures, and languages of the countries in which they have been trafficked because they are often subjected to coercion and intimidation including physical detention and debt bondage,” and they hesitate to report the crimes perpetrated against them because they “often fear retribution and forcible removal to countries in which they will face retribution or other hardship.”[5] To combat this issue, the congressionally enacted Forced Labor statute provides the best route for success.
The Trafficking Victims Protection Act (TVPA) of 2000 established human trafficking crimes, including forced labor and sex trafficking, in the United States.[6] Under the TVPA, the U.S. government has broad extraterritorial power to prosecute crimes including forced labor on any U.S. (or foreign) vessel operating in international waters.[7] However, a gap lies between the jurisdictional bounds of 18 U.S.C. § 1589, the Forced Labor statute, and Special Maritime Territorial Jurisdiction (SMTJ). Currently, 18 U.S.C. § 1589 does not fully extend to the SMTJ of the United States, whereas sex trafficking does under 18 U.S.C. § 1591.[8] Thus, if a person was suspected of human trafficking on a U.S. fishing vessel but is not a U.S. citizen and never enters U.S. territory but enters the SMTJ, that person would be subject to criminal liability for sex trafficking but not for forced labor committed in the SMTJ. The forced labor statute has the potential to create powerful change for human rights violations in international waters. The serious nature of forced labor crimes, as well as the likelihood that forced labor crimes occurring on fishing vessels will be committed in the SMTJ but outside current limits on U.S. jurisdiction over forced labor, warrant legislation that extends SMTJ to address this issue. Congress should extend SMTJ to the crime of forced labor by amending 18 U.S.C. § 1589.
[1] U.S. Dep’t of State of State, Trafficking in Persons Report (2020),
[4] U.S. Dep’t of Health & Hum. Servs., Labor Trafficking Fact Sheet (2012), https://www.acf.hhs.gov/archive/otip/fact-sheet/fact-sheet-labor-trafficking-english.
[5] United States v. Sabhnani, 599 F.3d 215, 253(2d Cir. 2010) (quoting TVPA, Pub. L. No. 106-386, § 102(b)(5), 114 Stat. 1464 (2000)).
[6] Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106–386, 114 Stat. 1464 (2000) (codified at 22 U.S.C. § 7101).
Is housing a fundamental right? What about for mixed status families? Is there a gap in federal law regarding housing rights and protections for mixed status families? How has New York addressed immigration-sensitive housing issues? And can Vermont learn from New York?
These are all questions left unanswered by the current housing legal framework, such as the Fair Housing Act (FHA) and related civil rights laws. Housing exclusions multiply for low-income families that have members who lack immigrant status and depend on public assistance to pay for housing. Even with more housing assistance available, many families remain left out.
What does it mean to be a “mixed status family” in the United States (U.S.)? The term mixed status family refers to “families in which one or more family members are U.S. citizens or lawful permanent residents (green card holders) and some are undocumented without legal immigration status.”[1] This family makeup is more prevalent than ever. Approximately 16.2 million people in the United States live in a mixed status family.[2]
But, mixed status families are often forced to separate because federal law does not guarantee the right to fair housing for this suspect class.[3] FHA bans discrimination on the basis of national origin. But FHA does not ban discrimination on the basis of immigration status. [4] Read the previous sentence again the FHA allows discrimination based on immigration status!
This means that the housing assistance regulations, which create subsidy programs, permit excluding people from assistance programs on the basis of immigration status. Approximately two-thirds of people in mixed status families are already U.S. citizens, and over half of them are children.[5] Therefore, categories such as citizens and lawful permanent residents are eligible to receive some housing assistance.[6] However, if they live in a household with a family member that is an “ineligible” immigrant (that may not be an undocumented immigrant),[7] then the eligibility to subsidized housing forces these families to separate in order to receive housing benefits. Mixed status families are prevented from receiving housing benefits by the very essence of their classification.
New York’s approach addresses many housing issues, even when those challenges account for situations outside of the traditional housing accessibility sphere. To start, one of the biggest challenges for mixed status families is having valid identification. Identification helps with getting housing, holding a job to maintain housing, and applying for government programs for housing assistance. Thus, New York established “IDNYC.”[8] IDNYC is a free, municipal identification card for all New Yorkers from all backgrounds and from all five boroughs.[9] Immigration status does not matter, and anyone that is a New York resident, ten years of age or older, can apply to receive one.[10] IDNYC cardholders receive access to an array of benefits which includes discounts for education, health, housing, and many other institutions.[11] Regarding application necessities, IDNYC is accepted for apartment applications, health insurance, entry into public buildings, for taking the high school equivalency exam in New York City, and by employers.[12] This identification card system resolves many issues for mixed status families because undocumented members can obtain a form of identification that helps in the housing searching and maintaining process.
Another challenge when seeking housing is knowing the resources available. Recently, New York expanded its resources while consolidating the different points of contact to all be within two main programs. New York has the following two programs: (1) The City Family Eviction Prevention Supplement Program and the City Family Exit Plan Supplement Program (collectively, the “CityFHEPS Programs”) and (2) Family Homelessness & Eviction Prevention Supplement (FHEPS). CityFHEPS is a city rental assistance program that can help residents findandkeep affordable housing.[13] FHEPS provides rental payments for tenants in various ways depending on the family and its needs. Landlords receive rent payments directly from the New York City Human Resources Administration.[14] This means that part of the rent will be covered by the FHEPS supplement, and the other part comes from the tenant’s Cash Assistance shelter allowance or from the tenant’s income.[15] Collectively, programs such as CityFHEPS and FHEPS, along with other supplementary resources such as IDNYC, come together to open doors for mixed families in New York.
Unlike New York, Vermont’s approach does not consider factors outside of the rental-landlord sphere. Nor does Vermont consider the different issues families face when living in different parts of the state. Infrastructure, financial, and social barriers link back to housing issues and cause exclusion for mixed status families in Vermont.[16] This leaves mixed status families in a cycle of despair that is close to impossible to break out of. Addressing issues such as housing shortages, lack of access to resources, and establishing strong communities with open communication can improve living conditions for all Vermont residents.
However, Vermont is already on the right track. Vermont is one of the few states to offer a driver privilege card.[17] This driver privilege card provides more privileges than what the IDNYC gives New York City residents. Vermont’s driver’s privilege card is available to any Vermont resident and does not require proof of legal presence or U.S. citizenship.[18] The driver privilege card is a Vermont license, but it is not Real ID compliant.[19] This still opens many doors to mixed status families because as explained, having a state related identifications helps with housing opportunities and programs. More resources like the driver privilege card would greatly expand the benefits allowed for mixed status families in its community, work force, and economy.
In conclusion, federal laws address accessibility issues but leave gaps within how those laws limit benefit-related programs for housing. It is up to state laws to fill the gap and provide more resources to address the specific issues for housing, especially for low-income mixed status families. Then, from the state level, comes city and local change. New York demonstrates a prime example of how to adjust to the issues its residents face. Vermont can move towards that model but on a smaller scale to reflect the structure and environment of the state.
[1]Fact Sheet: Mixed Status Families and COVID-19 Economic Relief, Nat’l Immigr. F. (Aug. 12, 2020), https://immigrationforum.org/article/mixed-status-families-and-covid-19-economic-relief/#:~:text=Mixed%20status%20families%20are%20families%20in%20which%20one,United%20States%20live%20in%20a%20mixed%20status%20family.
[3] Although the Supreme Court has concluded immigration status is not a suspect class, immigration status satisfies the Arlington Heights test for disparate impact and therefore qualifies for strict scrutiny. David P. Weber, Restricting the Freedom of Contract: A Fundamental Prohibition, 16 Yale Hum. Rts. & Dev. L. J. 51, 91 (2012). But see generally Graham v. Richardson 403 U.S 365 (1971) (holding that noncitizens are a prime example of a discrete and insular minority for whom such heightened judicial solicitude is appropriate and the power of a state to apply its laws exclusively to its noncitizen residents as a class is very limited).
[4] The Fair Housing Act, 42 U.S.C. §§ 3601–04 (prohibiting discrimination by direct housing providers, such as landlords and real estate companies based on race or color, religion, sex, national origin, familial status, or disability). Familial status and national origin do not include immigration status or mixed status family status.
[5]NLIHC President and CEO Diane Yentel Statement on HUD Withdrawal of Mixed-Status Rule, Nat’l Low Income Hous. Coal. (Apr. 2, 2021), https://nlihc.org/news/nlihc-president-and-ceo-diane-yentel-statement-hud-withdrawal-mixed-status-rule.
[16] Regin Albin, Housing Barriers for Immigrants and Refugees to Vermont, Vt Hous. Fin. Agency (2020) https://www.vhfa.org/sites/default/files/publications/housing_barriers_for_immigrants_to_vermont_0.pdf.
[17]What is a Driver’s Privilege Card?, Vt Dep’t of Motor Vehicles, https://dmv.vermont.gov/faq/what-is-a-drivers-privilege-card#:~:text=A%20Driver%20Privilege%20Card%20is%20a%20Vermont%20license,require%20proof%20of%20legal%20presence%20or%20US%20citizenship (last visited Dec. 3, 2023).
Restorative practices have been adopted and utilized in nearly every state[1], either with legislation or by promoting its use through independent organizations. Vermont has been at the forefront of implementing Restorative practices by codifying them into its state legislation and providing community-based services.[2] Community Justice Centers (Centers) throughout the state provide the essential groundwork for employing Restorative practices to assist the formerly incarcerated population with their re-entry.[3] With help from volunteers, these Centers provide housing, community, and employment support.[4] With a total of 18 centers throughout the state,[5] variations in applying Restorative practices can be problematic. “The decentralized system of delivering alternative justice programs results in inconsistencies in the types and quality of services that are offered in each county.”[6] Notwithstanding these inconsistencies, Vermont has seen success in reducing recidivism.[7]
Despite widespread adoption at the state level, the United States has yet to codify some form of Restorative practice at the federal level. Adopting federal legislation, would allow for more consistency between states, provide guidance on how to implement Restorative alternatives to the traditional adversarial system, and require data collection for important characteristics to better understand how marginalized communities are disproportionately affected.
New Zealand has made some form of Restorative practice available at nearly every stage of its justice system.[8] Focusing on sentencing, New Zealand’s Sentencing Act of 2002[9] (Act) codifies mandatory consideration of Restorative practices during this stage. This Act provides a reasonable and realistic form of federal legislation the United States could implement.
Within the United States, The Mandatory Consideration of Restorative Practices during Sentencing Act would require judges to consider integrating Restorative Practices into prospective sentences for all types of crimes, considering the wishes of those indirectly or directly harmed by the criminal conduct. Because of the great discretion afforded to judges within the legal system, mandatory consideration can easily be combined with current and prospective sentences. This Act does not require the use of Restorative practices. Instead, the purpose and overall goal is to encourage increased reliance on Restorative practices within the legal system.
Requiring judges to consider the victim’s wishes, the steps the defendant took in taking responsibility, and alternatives to punishments—or included in traditional sentences—provides a reasonable and realistic way to initially codify Restorative practices at the federal level within the United States.
[1] Thalia Gonzalez, The Legalization of Restorative Justice: A Fifty-State Empirical Analysis 2019 U. L. Rev. 1030–31(2020). Forty-five states have adopted and codified some form of Restorative practices into law. Id. The five states absent from this list are Arizona, North Carolina, North Dakota, Ohio, and Oklahoma. Id.
[6] Willa Farrell, Pretrial Services and Court Diversion Report pursuant to 13 V.S.A. § 7554c (f) and 3 V.S.A. § 164 (d) 4 (2021).
[7] Jordyn Haime, Restorative Justice Part 3: In Vermont, Restorative Justice Under Statute May Not Lead to Equitable Services, Granite State News Collaborative, https://www.collaborativenh.org/race-and-equity-project-stories/2021/4/20/restorative-justice-part-3-in-vermont-restorative-justice-under-statute-may-not-lead-to-equitable-services (last visited Dec. 3, 2022).
[8] Jim Boyack & Helen Bowen, Adult Restorative Justice in New Zealand/Aotearoa, Int’l Inst. for Restorative Pracs. (Aug. 30, 2003), https://www.iirp.edu/news/adult-restorative-justice-in-new-zealand-aotearoa.
State laws are important tools in a federalist system. They can serve as experiments for more advanced and ambitious policies than those existing at the federal level. This famous sentiment was expressed by Justice Brandeis who stated, “It is one of the happy incidents of the federal system that a single courageous state may . . . serve as a laboratory; and try novel social and economic experiences without risk to the rest of the country.”[1] Today, this sentiment may be used to recognize the ability of states to take initiative on pertinent societal issues instead of waiting for the federal government to act. In a time where there are increasingly pressing environmental issues, the restraints on federal power make the use of state law more important.[2] This may be an important avenue to address novel environmental issues that are not adequately addressed by the National Environmental Policy Act (NEPA), which functions as merely procedural.
Various states have developed their own versions of NEPA.[3] Fifteen states and the District of Columbia have these little-NEPAs,[4] also referred to as State Environmental Policy Acts (SEPAs).[5] Some of these state acts are nearly identical to NEPA, and others share many similarities.[6] While the state jurisprudence oftentimes follows the federal NEPA jurisprudence, some states have diverged further in their case law.[7] In doing so, certain states have enhanced their SEPA requirements.
SEPAs can include substantive requirements with language that can be interpreted to address a broader variety of environmental issues than NEPA. Certain states, including California, Massachusetts, Minnesota, New York, and Washington, have substantive requirements in their state environmental policy acts.[8] These allow states to require that projects address the environmental impacts discovered while gathering information through the procedural side of the statutes. This pushes action to address the harms that industries are creating in communities. Substantive requirements give environmental statutes teeth. The teeth allow the statutes to fulfill their goals of addressing environmental harms. Enacting these types of statutes at the state level may be more feasible in modern times than aiming to alter NEPA.[9]
SEPAs also have room to vary from other states’ policies through relying on localized knowledge and addressing state-specific issues.[10] These policies may apply to a wider range of industries and may subject state and local activities to environmental review, as opposed to just “major federal actions,” which is all that NEPA covers.[11] Finally, states may expand on the Environmental Impact Statement requirements to require the reviewers to address specific issues.
State powers allow states to craft various new policies that may be indicative of the future changes that existing laws need. States may fill in NEPA’s gaps by increasing SEPAs’ responsiveness to issues like environmental justice, climate change, animal welfare, and industrial farming pollution in human communities. One may view these policies as working supplementally with NEPA because they may operate to address more than just procedural issues. The more innovative and inclusive SEPAs serve as models of what improvement is needed in other states’ SEPAs to address continuous environmental damage. Having states with more stringent environmental policy acts allows governments to experiment with new policy requirements and applications on a smaller level than the national level. As industries become more pressured to switch to fewer polluting alternatives, state policies like this can serve as a model for other states and eventually the federal government to adopt more stringent amendments to NEPA.
Due to the federal legislative gap in addressing environmental justice, climate change, industrialized agriculture, and animal harm, SEPAs may be an option to provide stronger oversight on these heavily protected systems. States and local governments are more politically accountable to their residents. They are more knowledgeable of the dire state-specific environmental issues and how their communities are harmed by industries. The difficulty that exists when trying to pass strong federal environmental protections demands that the states become leaders and experiment with their State Environmental Policy Acts.
[1] New State Ice Co. v, Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
[2]See, e.g., Lawrence Hurley & Valerie Volcovici, U.S. Supreme Court limits federal power to curb carbon emissions, Reuters (June 30, 2022), https://www.reuters.com/legal/government/us-supreme-court-limits-federal-power-curb-carbon-emissions-2022-06-30/ (highlighting that the Supreme Court’s decision in West Virginia v. EPA signals the Court’s aversion toward federal executive agency power and that the decision limits the federal power to address climate change through ambitious national policy); Chris Henry, A Succinct, Holistic Look at Climate Change Legislation, 39 S. Ill. U. L. J. 231, 234 (2015) (noting that many attempts at passing federal climate legislation and regulations have not been successful).
[3] Daniel R. Mandelker et al., Generally, NEPA Law and Litigation § 12.1 (2022).
[4]Id.; The states with state environmental policy acts are: California, Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New York, North Carolina, South Dakota, Virginia, Washington, Wisconsin. New Jersey has an executive order that functions equivalently to a State Environmental Policy Act. State environmental policy acts, Ballotpedia, https://ballotpedia.org/State_environmental_policy_acts#New_Jersey (last visited Dec. 3, 2023).
[5] Not all of the states with environmental policy acts refer to them as SEPA, but this blog will do so to avoid confusion.
[8] Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553, 619 (2001).
[9] As previously stated, federal powers are limited. Changing an act at the federal level may pose more controversy than state legislatures acting.
[10] States may have different land-use laws, a variety of terrains for farming, and distinct ecosystems that may support different animals than other states.
Humanity urgently needs to address unsustainable development and adapt to the ever-growing world population.[1] The use of fossil fuels has led to harmful impacts on the atmosphere. Traditional non-renewable fuels are not sustainable.[2] Thus, clean, affordable, and reliable energy is a crucial issue that needs to be addressed. A combination of various generation sources and programs will likely be required to provide electricity sustainably.[3]
The energy trilemma, also known as the three-legged stool of sustainability, is essential to consider because it represents the environmental, financial, and social implications of any decision addressing sustainable development.[4] Renewable energy is seen as the sustainable solution, and individuals, businesses, and governments must invest in it.[5] Vermont legislators must now come together and encourage pumped hydropower energy storage technologies.
Pumped hydropower energy storage is an energy storage technology that pumps water from a lower elevation to a higher elevation and uses the natural power of gravity to generate electricity when needed.[6] There are two primary forms of pumped hydropower energy storage: open-loop and closed-loop.[7] Closed-loop pumped hydropower energy storage has considerably less potential for an adverse environmental impact than an open-loop system.[8] Open-loop projects connect a naturally flowing waterway from a lower elevation to a reservoir at a higher elevation for the energy storage system.[9] In contrast, closed-loop pumped hydropower energy storage systems are not connected to a naturally flowing waterway.[10]
Pumped hydropower energy storage systems are essential to combat issues of curtailment.[11] Curtailment is the process that occurs when there is more energy produced than required by the demand within the energy grid.[12] An energy grid is a network of power generation sources, transmission lines, and distribution systems that work to provide electricity for end-use consumers.[13] The electricity grid is designed to deliver reliable and continuous electricity to meet the required demand of the end-use consumers.[14] Wind power only produces energy when the wind is blowing, and the sun only produces energy when the sun is shining.[15] This intermittent power supply does not always match the needed demand of the electricity grid.[16] A pumped storage hydropower energy system can store the energy when demand is needed rather than let the excess energy be produced from renewable sources.[17]
Humanity has developed an antagonistic relationship with Mother Earth, and it’s time to stop it. It is possible to change the sources of energy that provide power for society. Closed-circuit pumped hydropower storage is necessary for the renewable energy mix to provide a sustainable grid. Investing in reliable renewable energy in Vermont will help contribute to a sustainable future.
[1]See 1771 U.N.T.S. United Nations Framework Convention on Climate Change (1992) (showing the human effect on the environment).
[2] Joseph Manning, Myopic Madness: Breaking the Stranglehold of Shareholder Short-Termism to Address Climate Change and Build a Sustainable Economy, 10 Ariz. J. Env’t L. & Pol’y 425, 438 (2020).
[3]See generally John A. Sautter, The Energy Trilemma in the Green Mountain State: An Analysis of Vermont’s Energy Challenges and Policy Options, 10 Vt. J. Env’t L. 477 (2009).
[9]Id. A naturally flowing waterway is an overly broad term used as an ambiguous catch-all term to entail all waterways that naturally flow without man-made origins. Id.
[11] Paul Denholm et al., Overgeneration from Solar Energy in California: A field Guide to the Duck Chart 1-10 (2015); David Roberts, Solar Power’s Greatest Challenge was Discovered 10 Years ago. It Looks Like a Duck., Vox (Aug. 29, 2018), https://www.vox.com/energy-and-environment/2018/3/20/17128478/solar-duck-curve-nrel-researcher.
[12] Paul Denholm et al., supra note 11; David Roberts, supra note 11.
[13] Paul Denholm et al., supra note 11; David Roberts, supra note 11.
[14] Paul Denholm et al., supra note 11; David Roberts, supra note 11.
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
