In the fall of 2022 the Oregon Court of Appeals affirmed the dismissal of a per se negligence claim based on a violation of a state animal welfare statute.[1] Notably, the named plaintiff for the civil claim was the horse who had been neglected, Justice.[2] The lower court dismissed the claim, holding that animals do not have standing to sue because they are not legal entities.[3] The appellate court affirmed, holding that there was no procedural method that would allow for third-party standing on behalf of an animal, and also that animals are not legal persons and therefore lack standing to sue.[4] The court interpreted Oregon’s criminal animal neglect statute as qualifying the rights of animal owners, rather than creating substantive rights in animals.[5] In contrast, the plaintiff asserted that the animal welfare statute created a right in the animal to receive a minimum standard of care, civilly remediable through a per se negligence action. The court instead viewed animal welfare statutes as a manifestation of animal owners’ duty to the state.[6] Ultimately, the court regarded the question of legal personhood for animals as a public policy choice best left to legislative determination.[7] However, the precedent cited by the court in holding against a theory of animal guardianship is not as straightforward as the opinion suggests.
To begin, the court held that legal guardianship is not available for animals because animals’ interests are not discernable.[8] However, by enacting animal welfare statutes, legislatures implicitly recognize humans’ ability to recognize animal preferences. Indeed, the Oregon Court of Appeals acknowledged that “animals are sentient beings . . . and should be cared for in ways that minimize pain, stress, fear, and suffering.”[9] Mindful of that, the court then explained that guardianship ad litem or analogous procedural devices would be inappropriate for animals because those seeking to represent animals might have ulterior motives.[10] The court relied heavily upon a case in which PETA pursued a copyright claim on behalf of a monkey to underscore the potential for abuse of animal guardianship procedures.[11] In that case, however, the Ninth Circuit held that PETA had not made a factual showing of a significant relationship with the monkey sufficient for “next friend” third-party standing.[12] Thus, even in the context of a monkey’s copyright claims, the plaintiff’s case did not fail for lack of ability to discern the animal’s interests, or even for a lack of ability to discern who would most faithfully pursue those interests: the claim failed because PETA did not allege adequate facts.[13]
In fact, the court in Naruto determined that the monkey had established Article III standing sufficient to survive a 12(b)(6) motion to dismiss.[14] In addition to the factual inadequacy, PETA could not establish third-party standing as a “next friend” because “next friend” standing is statutorily created and thus Congress would have clearly indicated an intent to create a cause of action for animals to invoke copyright protection.[15] Nevertheless, the Ninth Circuit then explained the court’s duty under Federal Rule of Civil Procedure 17 to ensure adequate representation of incompetent parties, including the appointment of guardians ad litem if necessary.[16] Thus, if Justice adequately pled a case of negligence per se, Naruto would actually stand for the proposition that the Oregon Court of Appeals was under a duty to ensure his adequate representation under analogous state procedural rules.[17] Furthermore, in the context of animal neglect or abuse, the fact-finding process to determine the person best suited to pursue the animal’s interests would have a presumptive candidate: the new owner.
Recognizing third-party standing for animals would undoubtedly be a contentious step in the development of the common law.[18] Nonetheless, the Naruto opinion, which declined to extend next-friend standing to animals on statutory interpretation grounds,[19] implies the possibility of case-specific, fact-reliant common-law third-party standing for animal plaintiffs rather than a blanket skepticism of people’s ability to pursue animals’ interests in good faith. A negligence per se claim for animal neglect presents a case in which that fact-finding would be simplest, from the standpoint of discerning both the animal’s interest, and the legal person best suited to advance that interest. A common-law expansion of animal standing would also make the most sense in the tort-law context, given the judge-driven development of the field.[20]
On a different note, the Oregon Court of Appeals’ focus on conditional animal ownership suggests the possibility of framing animals’ civil claims similarly to honorary trusts, a common-law creation that allowed pet owners to bequeath part of their estates to beneficiary pets, despite the pets’ inability to enforce the trust.[21] If the state grants animal ownership in trust, with the duty of the owner to provide a minimum level of care, third-party representation of the animal by a successor trustee (owner) could actually be a fiduciary duty.[22]
[1]Mosiman ex rel. Just. v. Vercher, 321 Or. App. 439 (2022), review denied, 524 P.3d 964 (2023).
[19]Naruto, 888 F.3d at 425–26 (citing Cetacean Cmty., 386 F.3d at 1179).
[20]See generally Caroline Forell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What’s the Difference?, 77 Or. L. Rev. 497 (1998) (discussing Oregon tort-law development as influenced by statutes and how “a court should consider providing a statutory duty action, such as negligence per se, to further the purposes of the statute” when the statute is “focused” on specific types of harms and victims).
[21]See generally Emily Gardner, An Ode to Roxy Russell: A Look at Hawaii’s New Pet Trust Law, Haw. B.J., Apr. 2007, at 30 (discussing the evolution of honorary trusts in the context of Hawaiian legislation covering the subject).
[22] Eric A. Manterfield, Shelter from the Gathering Storm: Protection for Trustees (and Estate Planners!) Facing Fiduciary Challenges (2015) (“Many states provide that a successor trustee becomes liable for a breach of trust by a predecessor trustee if the successor trustee fails to make a reasonable effort to compel a redress of a breach of trust committed by the predecessor trustee.”).
Migrant farmworkers populate remote areas when they work for corporate farms in the United States.[1] The isolated nature of farmwork is conducive to the occurrence of sexual harassment.[2] So is the physical nature of farmwork because it involves putting one’s body in vulnerable positions that perpetrators of sexual harassment may take advantage of.[3] These elements, combined with the unique challenges that immigrants face, blend to create a precarious situation for farmworkers.[4] Just one woman’s story can illustrate the pains of many who experience sexual harassment when working for a corporate farm in America.[5]
Olivia Tamayo was a farmworker for Harris Farms in the 1990s and early 2000s.[6] Her supervisor raped her multiple times, threatening her into silence at gunpoint.[7] Ms. Tamayo’s bravery brought her to court, where she was awarded nearly $1 million in damages at the outset.[8] While on the surface, this seems like a win for the migrant-farmworker community, the benefits of compensation cannot outweigh the moments of her life lost to fear, instability, and suffering. To varying degrees, the majority of women migrant farmworkers can relate to Ms. Tamayo’s narrative—nearly 80 percent of female migrant farmworkers experience sexual harassment on the job.[9]
Despite the extreme nature of Ms. Tamayo’s personal experience with sexual harassment, there is a silver lining to the outcome of her case. Ms. Tamayo’s request for relief articulated a remedy that looks very similar to the requirements under Title IX,[10] which governs the prohibition on sexual harassment in educational settings. Title IX is probably best known for requiring the designation of at least one Title IX Coordinator on campuses of federally funded educational institutions.[11] This means that if a school receives federal funds, they must use those funds to maintain compliance with Title IX.[12] The underlying policies here are to prevent federal funds from being used for discriminatory purposes and to ensure access to effective measures that will protect students from sexual harassment.[13]
Farm labor is increasingly unregulated, and the informal setting places farmworkers in a very vulnerable circumstance not only with regard to experiencing sexual harassment, but also with regard to their livelihood.[14] However, Ms. Tamayo’s request illustrates what could be an effective means of preventing sexual harassment in the workplace, especially on corporate farms that receive direct government subsidies.[15] Corporate farms, like all employers, must follow requirements provided by Title VII of the Civil Rights Act, which prohibits sexual harassment as a form of discrimination on the basis of sex.[16] Although employers can be held vicariously liable for the misconduct of supervisors,[17] as was the case in Ms. Tamayo’s lawsuit, it is difficult to pursue litigation in most instances of sexual harassment because of the high barriers to reporting.[18]
There are several ways to deepen the negligence standard that corporate farm employers must abide by in sexual harassment cases. First, the definition of sexual harassment should be clarified and aligned with other statutes, such as Title IX and the Violence Against Women Act.[19] Second, the requirement that victims must take reasonable steps to abate the danger of sexual harassment should be eliminated.[20] Third, as part of employers’ requirement to prevent sexual harassment under Title VII, corporate farms should designate a Title VII Coordinator, identify and implement supportive measures, and develop a grievance procedure that preserves the due process rights of the involved parties.[21] The amended final rule of Title IX, promulgated in 2020, ensures fairness due to both victims and the accused and also requires institutions to think proactively about the measures that can be taken to promote a safe environment.[22] The role of the Title IX Coordinator creates the presence of a neutral party who can work to shift the workplace culture by ensuring a safe environment is maintained for all.[23]
By adopting these requirements, Title VII could be developed into a much more effective rule. As Ms. Tamayo’s case demonstrated, farmworkers need greater accessibility to a reliable source of help, and this is exactly what these improvements would accomplish. Such changes would work to prevent sexual harassment from occurring in the first place, both reducing liability for corporate farms and, most importantly, eliminating the normalized injustices done to farmworkers on a regular basis.
[1] Julie Solis-Alvarado, From Fields of Opportunity to Fields de Calzones: Workplace Sexual Violence in America’s Agricultural Industry, 25 Drake J. Agric. L. 293, 303 (2020).
[5]See generally EEOC v. Harris Farms, Inc., No. CIVF02-6199 AWI LJO, 2005 WL 3039204 (E.D. Cal. Sept. 30, 2005) (detailing the incidences of sexual harassment Ms. Tamayo faced while working at Harris Farms).
[6] Appellant’s Opening Brief at 15–16, EEOC v. Harris Farms, Inc., 274 F. App’x 511 (9th Cir. 2008) (Nos. 05-16945, 06-16317).
[17] Ida L. Castro, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999) https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.
[18] Hum. Rts. Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment 67 (2012).
[22]See generally 34 C.F.R. § 106 (detailing how educational institutions receiving federal financial aid can comply with requirements regarding unlawful sex discrimination).
[23]See 34 C.F.R. § 106.44(a) (detailing the steps the Title IX Coordinator must take when he or she receives notice of sexual harassment).
Environmental justice aims for a fair treatment of environmental protection and “equal access to the decision-making process[es]” for everyone—regardless of race, culture, or income.[1] Low-income and racial- and ethnic-minority communities have been, and are, significantly and unfairly impacted by environmental and public health stressors without meaningful input in government decision making.[2] The federal and state governments have continued to acknowledge environmental justice issues. Yet, there is still a lack of legislation that will significantly contribute to an efficient solution—one that not only repairs decades of damage but establishes a system to preven
t further despair. To avoid continued inequality, environmental justice legislation must recognize the implications of agency deference—those that contributed to these disparities in the first place.[3] Future environmental justice legislation should follow New Jersey’s Environmental Justice Law (the Law) with two key differences: defining compelling public interest and directing a stricter standard of review, minimizing deference to agency misinterpretation.
The Law directs the New Jersey Department of Environmental Protection (the Department) to deny a facility’s permit application if there is a finding of disproportionate impact on a designated overburdened community after assessing both the facility’s statement and community input.[4] However, if the facility can demonstrate the proposal has a “compelling public interest” the Department can attach conditions to the permit to reduce the adverse impact.[5] This compelling public interest exception is not defined in the statute and the legislature did not provide guidance on the conditions or limitations the agency may impose.[6] The statute directs the Department to issue rules in accordance with the Law as they see fit for its implementation.[7]
The Law is revolutionary because it was the first to require agency action.[8] The Law appears to surpass the typical balancing test and is not merely the legislature’s or agency’s best intention to protect the environment or hope that a choice will be made in favor of reducing adverse impacts.[9] Nevertheless, upon closer examination of each of its individual parts, the Law is another outcome-determinative balancing test—which public health interest is more compelling?
Each facility and permit applicable under the Law could very well serve a compelling public interest in s
ome capacity, even without considering economic factors such as whether the facility will provide employment opportunities to the community.[10] The exception is provided to account for some emissions that may be necessary despite the disproportionate impact because there is some other impact which supersedes potential adverse health stressors. Without a definition, the term is vague and open to various, and equally legal, interpretations. Although the Department provides more guidance in the proposed rules for the definition of compelling public interest,[11] the exception will require the Department to balance the interests of public health for each permit review and when the agency approves or rejects a permit under this exception, judicial review will be limited.
Reviewability will be limited because the standard for reviewing agency decisions is one based on reasonableness; the standard is whether an agency acted arbitrarily and capriciously.[12] So, once permits are either approved or denied, the reviewability of these decisions will be minimal because a reviewing court is unlikely to find that the agency acted arbitrarily and capriciously.[13] Therefore, by including an undefined exception, the Law aligns with most environmental protection and environmental justice statutes.[14] A classic example starts with The National Environmental Policy Act (NEPA).[15]
NEPA requires all federal agencies to consider adverse environmental impacts and to prepare an environmental impact statement for “all major federal actions that significantly affect[] the quality of the human environment.”[16] Agencies must use a balancing test: weighing the costs and adverse environmental impacts with the benefits including alternative solutions to proposed projects.[17] But, NEPA does not require the environment to win or require agencies to consider or balance adverse social impacts.[18] But when courts are reviewing actions under NEPA, the standard of review is slightly heightened.
In Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, the court recognized some agency decisions, such as those made under NEPA, qualify for more than a rational basis review.[19] The court reasoned that environmental protection deserves more than a reasonableness standard because NEPA sets a high standard for agencies.[20] The court concluded that since the substantive duties of NEPA required careful and informed decision making, the standards are far from flexible.[21] It was the court’s judicial duty to make the purpose of NEPA a reality.[22] New Jersey courts have yet to apply this reasoned review.
Similar to NEPA, the Law requires the Department to balance competing public interests.[23] While the exception will prove necessary in certain circumstances, and should not be removed, the undefined exception leaves too much leeway for agency decision making that could drastically sway with political changes in the executive branch. The undefined exception provides the Department an opportunity to interpret the exception as overly broad or overly narrow. If the former is adopted, the Law, and the reason it was enacted in the first place, would be swallowed. Without clear intent from New Jersey’s Legislature, courts will award that interpretation great deference.[24]
To ensure the purpose of the Law is properly implemented, the legislature should amend the Law to define “compelling public interest” and direct courts to a harder look standard of review, similar to the heightened standard applied to decisions under NEPA.[25] If not, New Jersey courts should ensure the decisions are made in the best interests of the communities affected aligned with the Law’s overarching purpose.[26] In the battle of environmental justice and agency deference, it’s time environmental justice wins.
[1]Environmental Justice, EPA, https://www.epa.gov/environmentaljustice (last updated Sep. 6, 2023); Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Aug. 16, 2023).
[2]Meaningful involvement means “people have an opportunity to participate in decisions about activities that may affect their environment and/or health.” Learn About Environmental Justice, supra note 1.
[3]Seegenerally Nerissa-Anne D. Robinson, Deferring Environmental Justice in Mississippi: Agency Deference Legacy Impacts Southern Black Communities, 6 S. Region Black L. Students Ass’n L.J. 100 (2012) (arguing the standard of reasonableness for agency decisions is inadequate for social justice issues); See Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Tp. of Franklin, 233 N.J. 546, 558 (2018) (“A zoning board’s land use decisions . . . enjoy a presumption of validity. They must be allowed wide latitude in the exercise of delegated discretion.” (internal quotation marks omitted)).
[7] N.J. Stat. Ann. § 13:1D-161; see 54 N.J. Reg. 971(a) (June 6, 2022) (proposed rules). The rule has since been finalized, N.J. Admin. Code § 7:1C, but the language of the compelling public interest exception remains unaltered post public comment. Id. § 7:1C-5.3.
[8]Seegenerally Thomas Prol, Fulfilling the Promise of the Civil Rights Movement with Environmental Justice, 336 N.J. Law. 14 (2022) (labeling New Jersey “as a [n]ational leader in environmental justice.”); Julius M. Redd, Hilary Jacobs, & Stacy Sublett Halliday, New Jersey Passes Landmark Environmental Justice Legislation, Nat. L. Rev. (Sept. 1, 2020), https://www.natlawreview.com/article/new-jersey-passes-landmark-environmental-justice-legislation (recognizing New Jersey’s “first-of-its-kind environmental justice legislation”).
[9] Most environmental justice efforts in the United States have followed the pattern of early environmental protection laws, whereas the government acknowledges the issue and instructs agencies to consider it in decision making. These laws establish a mechanism with the hope that the best decision will be made, but the standards are set to a minimum. Seegenerally John A. Mueller & Taylor Lilley, Forty Years of Environmental Justice: Where is the Justice?, 25 Rich. Pub. Int. L. Rev. 75 (2022) (arguing after years of government recognition of environmental justice, it is time for change).
[10] The law lists eight specific industries that must comply with the legislation: major sources of air pollution; resource recovery facilities or incinerators; sludge processing facilities, combustors, or incinerators; sewage treatment plants with a capacity of more than 50 million gallons per day; transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; scrap metal facilities; landfills, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; and medical waste incinerators. N.J. Stat. Ann. § 13:1D-158.
[11] According to the Department, for a public interest to be compelling, “the primary p
urpose of the facility must be to serve an essential environmental, health or safety need of the host overburdened community for which there is no reasonable alternative to sitting within the overburdened community.” 54 N.J. Reg. 971(a) (June 6, 2022).
[12]See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)
[13]See Waste Mgmt. of NJ, Inc. v. Union Cnty Utils. Auth., 399 N.J. Super. 508, 526 (N.J. Super. App. Div. 2008); Kramer, 45 N.J. at 296–97 (N.J. 1965) (“Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.”); In re Graeta Recycling Co., No. A-2470-04T2, 2007 WL 609161 (N.J. Super. App. Div. 2006) (holding that the Department did not act unreasonably because environmental justice was properly considered).
[14]See, e.g., N.Y. Env’t Conserv. Law, §§ 8-105, 8-0113, 70-0107 (requiring New York’s Department of Environmental Conservation to consider potential disproportionate impacts); Environmental Justice Act, R.I. S2087 (2022) (requiring consideration of dipropionate impacts on overburdened communities for permit applications); see also State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legis. (last updated May 26, 2023), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-advance-environmental-justice.aspx.
[15] National Environmental Policy Act, 42 U.S.C. § 4321 (1969).
Rodanthe, North Carolina, already lost its fourth house to the ocean this year.[1] It begs the question of what to do when the sea literally washes your house away? Even if your house is still on land, nobody wants to waste their money on a risky investment house that will float away in a few years’ time. Plus, regardless of whether homeowners have insurance, they are still on the hook for cleanup efforts which are often costly and stretch for miles.[2] As such, North Carolina, like much of the world, is on the verge of a coastal crisis.
I am not alone in saying this; the United Nations’ Intergovernmental Panel on Climate Change, the National Oceanographic and Atmospheric Association, and North Carolina’s Coastal Resource Commission agree that low-lying coastal areas are in danger of being swallowed by the ocean’s waves.[3] They disagree on how quickly or how high the level of the sea will rise, but broadly speaking, it is inevitable and will harm North Carolina in particular.[4]
So where does that leave North Carolina?
Well, I am glad you asked. It requires looking at the wild year of 2012: Warlord Joseph Kony was in every headline, Kim Jong-Un had recently become the leader of North Korea’s military, and Barack Obama won reelection. But in North Carolina, shielded from the limelight, the State legislature passed House Bill 819 which amended North Carolina’s Coastal Area Management Act of 1974. The amendment clearly states the legislature’s intent not to mandate a sea-level rise policy or definition and outright bars any action on that front for the next five years.[5] Lastly, it abandons North Carolina’s local governments to figure out how best to proceed: whether to discuss, plan, or enact policy around sea- level rise and climate change or hope for the best and ignore the problem.[6]
As ridiculous as it is to abandon local governments to establish solutions for a global issue without a fraction of the resources or available help that the state itself could bring to bear, the responses were predictably inconsistent.[7] Regardless of that inconsistency, within eleven years, even Dare County, one of the wealthiest coastal communities, which previously spent $100 million on beach restoration, cannot afford its continued existence.[8] That does not even account for the fact that poor counties, like Tyrrell County, feel the impacts faster and are already struggling to account for floodwaters, raise houses above the waterline, or move people to higher ground.[9]
How to move forward?
At the very least, North Carolina needs to start the conversation and look frankly at the realities in front of them. But in an actionable sense, North Carolina’s Legislature must change its stance on climate change and climate readiness. Further, they need to make available funds at the state level, in conjunction with local communities, or by working with federal programs, like the Federal Emergency Management Agency’s Pre-Disaster Mitigation Grant Program. If no more natural solutions are available, or those that would temporarily stall the damage—like putting houses on raised stilts, which is already a common practice on North Carolina’s coast—it might be worth considering relocation.
Relocation, however, comes with its own pitfalls. For one, there is nowhere else to go when the entire community covers every square inch of a sand bar just above the ocean line. Furthermore, it unfairly punishes impoverished communities if the expectation is that they abandon their property. That is not to say that abandonment is the only option; eminent domain exists, as do voluntary buyout programs. However, that comes at a substantial cost that North Carolina likely could not bear alone. Nevertheless, all socioeconomic statuses will feel the pain, and thousands of homes and businesses will be underwater assets dragged out and drowned at sea.[10]
[1] Peter O’Dowd, In Rodanthe, North Carolina, More Homes Are at Risk After Another Home Collapses into the Ocean, npr, at 00:25 (Mar. 31, 2023), https://www.wbur.org/hereandnow/2023/03/31/homes-collapse-ocean-sea-levels.
[2]See Mike Andrews, Debris Stretch 21 Miles After House Collapse in Outer Banks, Officials say, WNCT9 (Mar. 15, 2023), https://www.wnct.com/weather/debris-stretches-21-miles-after-house-collapse-in-outer-banks-officials-say/ (explaining debris stretched for 21 miles); Richard Fausset, Beach Houses on the Outer Banks are Being Swallowed by the Sea, N. Y. Times (May 14, 2022), https://www.nytimes.com/2022/05/14/us/outer-banks-beach-houses-collapse.html (explaining that cleanup cost one homeowner $57,000).
[3]See Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability 1963 (Working Grp. II ed.) (2022) (explaining that a one-meter rise in sea level will happen within the next 75 years and resulting in 42% of the Albemarle-Pamlico peninsula underwater); William V. Sweet et al., Global and Regional Sea Level Rise Scenarios for the United States vii (2017) (explaining that NOAA expects sea level rise higher in North Carolina and on the east coast relative to the IPCC’s stated numbers); N.C. Coastal Res. Comm’n Sci. Panel, North Carolina Sea Level Rise Assessment Report 9–10 (2016) (demonstrating the expected impacts of sea level rise at a granular level across North Carolina’s coastline).
[4]See N.C. Coastal Res. Comm’n Sci. Panel supra at 22 (explaining North Carolina will be impacted and that there will be an increased number of flooding events as sea level rises).
[5] Coastal A rea Management Act of 1974, N.C. Gen. Stat. §113A-107.1 (2022); 2012 N.C. Sess. Laws 202.
[7]See Caitlin Thompson, North Carolina’s Notorious Climate Change Law—The Rich Are OK, the Poor Aren’t, .coda (June 29, 2021), https://www.codastory.com/waronscience/climate-change-north-carolina/ (“In the low-lying neighborhood of Goat Neck in Tyrrell County, about 45 minutes from Nags Head, the response to sea level rise has been very different.”).
[8] Keenan Willard, Outer Banks Set for Massive Beach Nourishment Project, WRAL News (Jun. 18, 2021), https://www.wral.com/nearly-100-million-set-to-go-toward-most-expensive-outer-banks-repair-effort-in-dare-county-history/19732917/; see also Peter O’Dowd supra note 1, at 03:08 (“Rodanthe needs [beach renourishment]. Our issue is we don’t have enough money to do another project in Rodanthe.”).
[9]See Caitlin Thompson, supra note 7 (“Many homeowners in Goat Neck don’t have the resources to elevate their houses.”); see also Willard, supra note 8 . (“Tyrell County doesn’t have the money to take on big infrastructure projects that would make neighborhoods like Goat Neck more resilient to climate change.”).
[10]Quick Facts, Beaufort County, North Carolina, Carteret County, North Carolina, Dare County, North Carolina, Hyde County, North Carolina, Tyrrell, County, North Carolina, Washington County, North Carolina, U.S. Census, https://www.census.gov/quickfacts/fact/table/darecountynorthcarolina,carteretcountynorthcarolina,tyrrellcountynorthcarolina,hydecountynorthcarolina,beaufortcountynorthcarolina,washingtoncountynorthcarolina/INC110221 (last visited, Nov. 6, 2023) (excluding Currituck, Pender, or other vulnerable counties, potentially ~121,000 housing units across six counties are vulnerable to sea level rise).
The United Nations estimates that by the year 2050 climate change will have displaced around 200 million people globally.[1] Since 2010, about 23 million people per year have been displaced, mostly within their own countries.[2] Displacement is caused by sudden-onset disasters like flooding, windstorms, and earthquakes as well as slow-onset disasters like desertification and rising sea levels.[3] Climate change also deeply impacts already vulnerable communities by exacerbating existing social, political, and economic tensions.[4]
The plight of climate refugees is valid and imminent. However, no nation currently offers legal protections to refugees solely on the basis of climate change.[5] According to the 1951 U.N. Convention Relating to the Status of Refugees, a refugee is “a person who has crossed an international border owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”[6] This definition assumes that a person is being persecuted by another human being on the basis of one of the listed protected categories.[7] However, what if the persecutor is climate change? The link between the harm suffered and the intent of the actor becomes complicated when that actor is not human. The immigration framework provided by the 1951 Convention does not account for the unique challenge faced by climate refugees. As a result, it is especially difficult for climate refugees to qualify for protection in many receiving countries.
There is reason for hope. The White House, in a report released in October 2021, states that it seeks to “identify ways to apply existing protection frameworks in the context of climate-change related displacement and to identify gaps where the United States should forge new legal pathways to protection.”[8] This acknowledgement of the need for specific protection of climate refugees by the U.S. is encouraging. However, until there are formal protections in place it will take creative approaches by advocates and practitioners to support and protect those displaced by climate change.
One approach is focusing on the ways in which climate change interacts with other socio-economic or political factors that drive displacement. Climate is often considered a “threat-multiplier” in that it exacerbates existing adverse conditions.[9] For example, disasters such as drought cause the depletion of natural resources in rural areas, which causes people to migrate to urban areas in search of jobs and services.[10] Resulting tensions due to limited job opportunities and high population density can lead to increased conflict.[11] This can be particularly risky for groups who are already vulnerable and marginalized within a community or state. An argument for protection may be made if a person can prove that they were impacted by human-caused persecution that has been exacerbated by climate disasters.
A second approach focuses on how climate change can affect the right to life. The United Nations Human Rights Committee considered this possibility in the case of Teitiota vs. New Zealand.[12] The Committee, in its opinion, emphasized that environmental degradation is one of the most serious threats to the future generation’s right to life.[13] Accordingly, the Committee found that in cases where a person displaced by climate change faces a “serious” risk of harm they may be protected under the Refugee Convention, even if the harm arises from environmental factors instead of human-caused injury.[14] This holding is groundbreaking because it formally recognizes, for one of the first times on an international stage, that environmental degradation can violate a person’s right to life and can trigger obligations for protection of displaced persons as a result.
Ideally, in the near future, there will be legal protections specifically for persons displaced by climate change. However, until these protections are in place it will require the persistence and creativity of practitioners and advocates to find ways to use existing pathways to protect the rights and wellbeing of climate refugees.
[3]A State-Led Initiative Working Towards Better Protection for People Displaced Across Borders in the Context of Disasters and Climate Change, Platform on Disaster Displacement 12, https://disasterdisplacement.org/wp-content/uploads/2019/10/20102019_FINAL_EN_LEAFLET_SCREEN_compressed.pdf (last visited Nov. 6, 2023).
[4]The Facts: How Climate Change Affects People Living in Poverty, Mercy Corps (Apr. 08, 2021), https://www.mercycorps.org/blog/climate-change-poverty#:~:text=Floods%20and%20droughts%20brought%20on,change%20in%20the%2021st%20century.
[6].What We Do: Climate Change and Disaster Displacement, UNHCR, https://www.unhcr.org/what-we-do/build-better-futures/environment-disasters-and-climate-change/climate-change-and (last visited Nov. 6, 2023).
[7] Roger Zetter, The Role of Legal and Normative Frameworks for the Protection of Environmentally Displaced People, in Migration, Environment and Climate Change: Assessing the Evidence 385, 397 (Frank Lazcko & Christine Aghazarm eds., 2009).
[8]Report on the Impact of Climate Change on Migration, White House 17 (Oct. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/10/Report-on-the-Impact-of-Climate-Change-on-Migration.pdf.
[9] Sara Vigil et al., Exploring the Environment-Conflict-Migration Nexus in Asia 2 (Marion Davis ed. 2022).
[12]See Mari Galloway, Teitiota v New Zealand, Climate Migration and Non-Refoulement: A Case Study of Canada’s Obligations Under the Charter and the ICCPR, 45 Dalhousie L.J. 385, 388 (2022).
Prior to the pandemic, there were approximately 2.8 million deaths per year in the United States.[1] Each one of those deaths left a body, and those bodies did not magically evaporate. The law of final disposition—primarily burial and cremation—dictated how survivors managed those remains. Americans have become culturally distanced from the process of preparation and disposition, and they regularly employ professionals to manage this undertaking.[2] However, to call the business of funeral homes and crematoria deathcare is synecdoche. There was a time before deathcare was an industry.[3] There is far more to the process of disposition, from last breath to final rest, than the embalmer’s business.
Despite the universality of death, the final disposition of human remains is regulated piecemeal,[4] prioritizing the interests of embalmers over the families of the deceased.[5] This hinders families’ abilities to provide respectful, meaningful disposition of the deceased, a crucial aspect of socially contextualizing death in their lives.[6] The FTC promulgated the Funeral Rule in 1982 in an effort to protect funeral consumers, but it is simply not enough.[7] Just as advancing technology and increasing population dramatically changed the nature and scale of food manufacture, precipitating the development of the FDA,[8] the modern structure of deathcare demands a more unified and comprehensive approach to regulation.
To unify the regulation of deathcare for the purposes of protecting the rights of survivors, ensuring quality and accessibility of care, and balancing the interests of the many parties that participate in the process of final disposition, Congress should establish a federal agency dedicated to the regulation of the disposition of human remains. Part I provides an overview of the modern structure and relevant history of American deathcare. Part II begins the analysis by explaining the common law right of sepulcher. The argument transitions into consideration and critique of the FTC Funeral Rule,[9] identifying weaknesses in the current federal regulatory scheme in Part III and describing how state law is currently insufficient to fill the gaps in Part IV. This discussion culminates in Part V, examining how embalming is understood by the public and presented by embalmers—specifically critiquing how the professional characterization of embalming is a misrepresentation of what is merely a useful technique for preservation and aesthetics, based in outdated notions of ptomainic miasmas.[10] Finally, this Note delves into the scope and structure of the proposed federal agency. Part VI outlines the agency’s basic functions: addressing the purpose of the Funeral Rule and expanding its reach to crematoria and cemeteries, including functioning enforcement mechanisms in this amended Funeral Rule, and outlining state licensing and inspection requirements.
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[1] Kenneth D. Kochanek et al., Deaths: Final Data for 2017, 68 Nat’l Vital Stat. Rep. no. 9, at 1 (2019); Sherry L. Murphy et al., Deaths: Final Data for 2018, 69 Nat’l Vital Stat. Rep. no. 13, at 1 (2021); Jiaquan Xu et al., Deaths: Final Data for 2019, 70 Nat’l Vital Stat. Rep. no. 8, at 1 (2021).
[2] Maggie Jones, The Movement to Bring Death Closer, N.Y. Times Mag. (Dec. 21, 2020), https://www.nytimes.com/2019/12/19/magazine/home-funeral.html (“In the United States, we have come to see death as an emergency. We call the doctors, the nurses, the police, the emergency workers, the funeral staff to take over for us . . . . If death practices reveal a culture’s values, we choose convenience, outsourcing, an aversion to knowing and seeing too much.”).
[3] Jessica Mitford, The American Way of Death Revisited 14–17 (1998); see also Robert G. Mayer, Embalming: History, Theory, and Practice 5–6 (5th ed. 2012).
[4]See generally Joshua Slocum & Lisa Carlson, Final Rights: Reclaiming the American Way of Death 159–498 (2011).
[5]See Tanya Marsh, Regulated to Death: Occupational Licensing and the Demise of the U.S. Funeral Services Industry, 8 Wake Forest J.L. & Pol’y 5, 7 (2018); see generally Tanya Marsh, Rethinking the Law of the Dead, 48 Wake Forest L. Rev. 1327 (2013).
[6]See generally Ernest Becker, The Denial of Death 9–47 (1973); Stu Farber, Thomas Egnew & Annalu Farber, What is a Respectful Death?, in Living with Dying 102, 103–04 (Joan Berzoff & Phyllis R. Silverman eds., 2004).
[7] Joshua L. Slocum, The Funeral Rule: Where It Came from, Why It Matters, and How to Bring It into the 21st Century, 8 Wake Forest J.L. & Pol’y 89, 99–102 (2018); Keith E. Horton, Who’s Watching the Cryptkeeper: The Need for Regulation and Oversight in the Crematory Industry, 11 Elder L.J. 425, 433–38 (2003).
[8] Stephen Daily, A Brief History of the FDA, Cataract & Refractive Surgery Today (Oct. 2011), https://crstoday.com/articles/2011-oct/a-brief-history-of-the-fda/.
[9] FTC Funeral Rule, 16 C.F.R § 453 (2021); see also Bureau of Consumer Prot., Funeral Industry Practices: Report to the Federal Trade Commission and Proposed Trade Regulation Rule (1978) (investigating the industry and identifying the need for consumer protection regulations).
[10] Lydia Kang & Nate Pederson, Quackery: A Brief History of the Worst Ways to Cure Everything 165–67 (2017).
Luis González (Luis’s full Note was published in the University of La Verne Law Review)
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“It is our hope that the lessons learned in the communities we profile, and the analysis offered here, can be translated into, and replicated within, other struggles for justice.”[1]
Rolling green hills aside peaceful and pristine blue rivers and streams, colorful red and pink flowers sprinkling the lush countryside, and picturesque medieval-era castles—this is Riverside, California. Or so a recent satirical trend on TikTok would lead you to believe.[2] Those who live in Riverside know a different reality: streets with food deserts, heavily segregated school districts, and air thick with the dry rugged scent of gasoline and exhaust emissions.[3] And yet, this place is home for so many people: it is where people go to school, where people’s families are, where people’s minds go when they are asked the question: “where is your hometown?” This Note dares to imagine Riverside County as a place that serves the community through strong and equitable environmental justice policies. This critique comes from a place of love and the belief that one should expect more from local governments. To quote the revolutionary Black and Queer American Author, James Baldwin, “I love America more than any other country in the world, and, exactly for this reason, I insist on the right to criticize her perpetually,”[4] This Note now applies this mindset to Riverside.
The fate of honey bees is currently at risk of pesticide annihilation.[1] Humans have kept bees for millennia,[2] however, only recently have honey bees come under attack. The Egyptians were the first civilization to practice beekeeping over 4,000 years ago.[3] Honey bees were a sacred, cultural pillar to the Egyptians.[4] Today, the honey bee is much less revered. Humans have transitioned from worshipping the hive to poisoning it.
Modern honey bees are in a chemical war with pesticides. Specifically, neonicotinoids—a type of pesticide—present an urgent threat to the survival of honey bees.[5] The Saving America’s Pollinators Act of 2021 (Pollinators Act) is a bill that attempts to protect honey bees from lethal neonicotinoids.[6] On its face, the bill lays out some great ways to protect honey bees.[7] Namely, it calls for a complete ban on neonicotinoids.[8] From an environmental perspective, this is great news for honey bees. However, from a political perspective, this bill will realistically never pass as written because the pesticide industry has made it very difficult to regulate neonicotinoids.[9] Proof lies in the fact that the Pollinators Act has been introduced six times since 2013 and failed to pass every time.[10]
Starting the day with doggie yoga, constructing a DIY catio, or enjoying leisurely afternoon walks—these are just a few examples of the furry silver lining hidden amidst the misery of the Coronavirus pandemic.[1] Brought on by an unexpected pet adoption boom, pet ownership in 2020 reached an “all-time high of 70 percent [of households].”[2] The “opportunity” to stay home through the onset of the Covid-19 pandemic allowed pet parents to spend more time with their furry family members than ever before.[3] While some pets found less enjoyment in this quality time than others, many first-time and long-time pet owners alike enjoyed expanded companionship through a very stressful time.[4]
Unfortunately, the increase in pet ownership resulted in an increase in animal cruelty and violence over the same period.[5] Because violence against animals is both a tort and a crime, owner-victims have two paths to justice: through either the civil or criminal court system. Each system presents its own challenges and considerations, but sometimes owner-victims have no choice in path at all; there are still barriers to access to the courts, particularly for indigent people, so a criminal restitution award may be the only compensation a victim receives.[6]
“This place is not a place of honor . . . no highly esteemed dead is commemorated here . . . nothing valued is here.”[1] One hundred thousand years from now,[2] this is the quote one could see engraved on a non-descript plaque with bins of aging nuclear waste stored below.[3] But first, the United States (U.S.) needs to create a long-term geologic disposal site[4] for all of its high-level nuclear waste.[5] The U.S. is one of the top producers of nuclear energy, accounting for roughly 31% of global nuclear electricity generation.[6] Estimates show that the U.S. generates roughly 2,000 metric tons of used nuclear fuel annually,[7] and with no way of disposing of this waste it poses environmental, social justice, economic, and health effects.[8]
In the roughly seventy years since the U.S. began using nuclear energy as a civilian power source, and despite several attempts, there is still no high-level nuclear waste repository. There are several key differences between nuclear waste management in the U.S. versus the EU that help explain why the U.S. has a severe lack of progress in the creation of a high-level civilian waste disposal site.[10] In the U.S., the Nuclear Waste Policy Act (NWPA) gives the Department of Energy (DOE) the burden to develop a repository for high-level nuclear waste, the Nuclear Regulatory Commission bears the burden of its licensing, and the producers bear the financial burden of interim storage and disposal.[11] In the EU, the Waste Directive created by the European Atomic Energy Community (EURATOM) makes the producer financially responsible for disposing of its nuclear waste in the member state where it was produced.[13]
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.
