In the wild west only one thing remains wild and that is the scarcity of water. Mark Twain said it best when he wrote, “in the west, whiskey is for drinking and water is for fighting.”[1] The lifeline of the West is the Colorado River.[2] The Colorado River has been relied on by the people of the west since people came to that land. Currently over 40 million people rely on its waters, stretching across seven states (Arizona, Colorado, New Mexico, California, Nevada, Utah, and Wyoming).[3] The drought and growing population in the west has caused a shortage of water in the Colorado River.[4] The growing demand and less water has caused fights over the water, which has resulted in cases, compacts, and treaties.[5] With fights for water there is always a loser.
The loser of our modern age are the people of the Navajo Nation. Even though they have relied on and used the water longer than any other group of people, they are often forgotten in the modern talk of the Colorado River. This is due to the Navajo being left out of the compacts and agreements which have shaped the law of the Colorado River.[6] Additionally, a lack of resources puts the Navajo in a tough position to try and have their rights recognized in court.[7] However, the Supreme Court case Winters v. United States creates an avenue the Navajo could take to get their reserved water rights (established by the 1868 Navajo Treaty) recognized.[8]
As the world espouses the clean energy transition—within the U.S.—offshore wind is verging on being left behind. The danger of leaving a renewable source behind is not only a detriment to that industry, but to the clean energy transition as a whole. The culprit of offshore wind’s downfall is the current U.S. regulatory structure for connecting an offshore facility to the grid onshore.
Traditionally, the grid and project development regulatory framework supports a project-by-project approach, because every project has the responsibility to connect themselves to the grid onshore.[1] The resulting reality for offshore wind is that every project has an individual transmission line come ashore and cross a beach.[2] This exact regulatory result endangers the industry.
One of the biggest challenges facing offshore wind transmission is finding environmentally and economically viable locations where the transmission cable can make landfall to connect to the grid. This occurs for two reasons. First, geographic locations for sitting must comply with state and federal permit requirements and be viable for the cables.[3] Second, community resistance can delay project permit acquisition.[4] Both challenges can create too high an economic cost that burdens and kills the project.
Emily Davis (Emily’s full Note was published in Vermont Law Review, Volume 47 and can be found here!)
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Remnant pieces of a former nuclear power plant linger along the Connecticut River in the small town of Vernon, Vermont.[1] Industrial machinery dismantles the once-controversial Vermont Yankee Nuclear Power Plant that produced about one-third of the state’s electricity for 40 years.[2] Railroad tracks from the plant meander around dairy farms and maple trees,[3] and shipments containing old reactor parts, office building interiors, and massive turbines roll south to an industrial disposal facility in west Texas.[4] Since its beginning in 2016, the decommissioning process is largely going as planned.[5] However, an important detail remains: Where does the radioactive spent nuclear fuel go?
Spent nuclear fuel—the leftover fuel from nuclear power reactors after producing electricity—has no permanent home in the country.[6] But this is not for a lack of trying. Enacted in 1982, the Nuclear Waste Policy Act obligated the federal government to locate a storage site for nuclear waste.[7] But for many decades, the federal government never identified a disposal site.[8] Many factors contributed to this failure, but one major cause stands out: from the very beginning, the American public was never given the opportunity to meaningfully participate in shaping nuclear waste policy.[9]
After nearly 70 years without an effective waste disposal solution, at least 86,000 metric tons of radioactive spent fuel temporarily reside at 75 separate sites in 33 states.[10] To resolve this problem, the Department of Energy announced that it will pursue a “consent-based siting process” to identify nuclear waste storage sites on December 1, 2021.[11] With this new effort, the Department will ask potential host communities to step forward and work with the federal government to site nuclear waste facilities. But given decades of brooding mistrust and federal mismanagement, this is an audacious prospect. How can the federal government build public trust and develop a truly consent-based process?
The Court in Thaler v. Hirshfeld stated, “as technology evolves, there may come a time when artificial intelligence reaches a level of sophistication such that it might satisfy accepted meanings of inventorship . . . .”[1] The time is now. In 21st century patent law, Artificial Intelligence (“AI”) has become a technique of discovery and invention. Currently, United States jurisprudence does not recognize AI computer systems as “inventors” under the Patent Act.[2] Courts have consistently followed the traditional narrow interpretation of “individual”—holding non-humans cannot be granted patent rights.[3] However, with the rapid advancement of AI technology, denying AI computer systems capable of creating independently with minimal human intervention would be inconsistent with patent policy.[4] This raises the legal question of how to handle these inventions partially or fully created by AI computer systems and whether our current patent system is equipped to handle the issue. The time has come for Congress and the Courts to intervene and conclude AI computer systems should be considered inventors for inventorship purposes.[5]
Can you live without clothing? One who prefers wearing nothing must forgo some social activities as nudity in public is unlawful.[1] Clothing serves a fundamental necessity for survival and living.[2] Humans began wearing clothes to camouflage, then to adapt to different weathers, and then to wear styles.[3] As technology evolved, clothing became fashion, taking root smoothly in our culture and society. Fashion refers to “a prevailing custom, usage, or style,” or “social standing or prominence especially as signalized by dress or conduct.”[4] What, how, and when one wears visually voices overlapping identities.[5]
Responding to fashion consumers’ desire for trendier styles, fashion companies offer affordable versions of the latest trend called fast fashion.[6] Access to online shopping further made fast fashion globally attainable to all individuals.[7] The fashion industry produces $2.5 trillion dollars per year—which constitute 3% of the global economy—and employs hundreds of millions of people worldwide.[8] Prior to the 1960’s, 90% of clothing purchased in the United States was produced domestically; today, only about 3% of clothing falls into that category.[9]
In 2021, Vermont’s Public Utility Commission (PUC) denied a certificate of public good to a 500 kW solar development in Manchester, VT solely on aesthetic considerations.[1] Among the many requirements the developer met, the PUC found the project would have permissible sound levels, would include appropriate wood turtle migration channels, would meet setback requirements, would not impact erosion, and “would not trigger a review for habitat loss of the northern long-eared bat.”[2]
Ultimately, the PUC found the development would be “offensive or shocking to the average person,” and thus would not satisfy subjective § 248 aesthetic criteria.[3] Prior to its determination, the Town, the regional planning commission, and a State-hired independent aesthetics consultant all agreed the proposal would have no undue adverse effect on aesthetics.[4] Generation facilities must meet this statutory aesthetics standard.[5] But “average” Vermonters in the age of climate devastation may struggle to square the PUC’s aesthetics findings with those of local governments and experts.
In an age where “going viral” is a well-known term and something individuals and organizations even strive for, many dominant members of the animal agriculture industry want anything but, when it comes to many standard practices. Ag-gag, or anti-whistleblower laws prevent workers or undercover investigators from reporting or publicizing poor industry practices such as animal abuse.[1] Ag-gag legislation protects agricultural facilities, many of which are factory farms, that mistreat and abuse animals unnecessarily to make larger profits.[2]
Farmed animal abuse, when exposed, has been met with public outrage, yet consumers increasingly want transparency regarding the production of their food.[3] So why is transparency so difficult to provide? One answer is likely agriculture exceptionalism. Agriculture exceptionalism is the belief that the agriculture industry should be given advantages and protections because it is necessary for humans to survive.[4] With the idea that the agriculture industry is essential, members of the industry support ag-gag legislation to maintain high profits and stay out of the public eye to avoid any interference.[5]
In the wise words of Bob Dylan, “for the times they are a-changin’.”[1] One of these big changes is in energy development, production, and consumption.[2] Regardless of political views, burning fossil fuels is not a sustainable energy source. Society needs a more viable resource for energy consumption to match the digitized industrial era of today and the future.[3] Moreover, man-made, artificial global warming is becoming harder to ignore, giving cause for realistic concerns for a climate change crisis. Scientists attribute burning fossil fuels as a leading contributor to this crisis.[4] Drastic changes are needed—now—to help mitigate the effects of global warming. Shifting energy development and production from finite, nonrenewable, carbon-containing resources to more sustainable, greener, renewable resources is a real-time solution that will help achieve ambitious net-zero and decarbonizing goals in the United States. The Bureau of Land Management (BLM) has already identified priority areas of public lands suitable for renewable energy development.[5] Oil and gas companies can utilize these lands to diversify, avoid another collapse like the coal industry, and increase public trust; while simultaneously combatting the climate change crisis one solar panel at a time. Ultimately, new legislation can expedite and make this happen. This will allow oil and gas companies to repurpose skilled laborers, shift from fossil fuel reliance, help alleviate global warming, and still maintain environmental health for public enjoyment. Renewable energy development on public lands is a vital, proactive solution for a twenty-first century energy and climate problem to help ensure a brighter, greener future.
Though more than 50 percent of coastal wetlands have been lost worldwide over the past century, the Paris Agreement fails to require its Parties to protect nature-based solutions, such as blue carbon.[1] Blue carbon refers to ocean biomass that captures carbon dioxide—at twice the speed of terrestrial forests—and retains the gas for several hundred thousand years.[2] Yet international treaties, such as the Paris Agreement, fail to adequately protect blue carbon solutions.[3]
Pursuant to the United Nations Framework Convention on Climate Change, the Conference of the Parties (COP) is responsible for ensuring adequate protections for such solutions.[4] Parties to the Paris Agreement propose goals and commit to achieving them within a given timeframe.[5] COP then evaluates Parties’ commitments and progress to determine whether Parties achieved their goals.[6] When Parties lack significant progress, COP may revise the Paris Agreement to ensure that Parties will meet future goals.[7] Although some Parties recently expressly committed to protecting blue carbon solutions,[8] these promises come too little, too late.
In today’s capitalistic-focused world, companies are becoming a more powerful force as consumer demand fuels our economy in all sectors of society.[1] Companies around the world now yield more power and influence than ever before.[2] With this power and influence, companies can be an effective tool in inciting change. The environmental factors that a company chooses to disclose can greatly encourage or discourage the discourse on climate change.[3] By holding companies accountable for their environmental and sustainable practices, a lot can be done to combat climate change.[4] The Securities and Exchange Commission (SEC) charged with regulating publicly traded companies dictates what companies need to disclose in yearly filings.[5] The SEC through the Securities Exchange Act (SEA) has the power to make companies disclose more of their environmental impact on the world, and in turn encourage more sustainable practices in companies.[6]
While the SEA requires disclosures for materiality, nowhere in the Act or legislative history is that authority to require disclosures limited to materiality.[7] This is very important because the SEA allows the SEC to require disclosures outside of materiality, it just has not done so before. Some opponents might argue that if the disclosure is not material, then there is no need to mandate it, and if climate disclosure is material than there is no need to mandate it because they are already required to disclose it.[8] Expanding the SEA would cover all instances and removes third party necessity to sue for failure to disclose.[9]
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.
