Houselessness, commonly called homelessness, is on the rise in Vermont. Vermont has the second highest per-capita rate of houselessness in the country, behind only California.[2] Houselessness in Vermont increased by 151% from 2020 to 2022, the largest percentage increase of all the states.[3] Mental illness and addiction are the most prevalent challenges faced by people experiencing housing insecurity and houselessness.[4] Vermonters experience higher than average rates of addiction disorder and disability.[5] External factors causing houselessness in Vermont include the rising cost of living, a housing shortage, and natural disasters.[6]
At the onset of the COVID-19 pandemic, Vermont used federal funds to implement the Vermont General Assistance Housing Program, which provided emergency motel housing program for people experiencing houselessness.[7] People who met eligibility requirements could receive vouchers to stay in vacant hotels.[8] As quickly as the summer of 2021, Vermont Governor Phil Scott began phasing out the program in anticipation of the program becoming financially unsustainable once federal funds disappeared.[9]
In July 2024, the Vermont legislature’s Act 133 introduced a cap on the number of rooms and limited residents to an 80 day stay.[10] Is 80 days enough time for someone to save up money from a minimum wage job to afford a security deposit on an apartment, a month’s rent for the apartment, and transportation costs from a new apartment to their job, all while living in a motel and trying to afford exorbitant Vermont food prices? Nevermind for an individual, imagine trying to save up for all of these expenses as a parent of multiple children, too.
Trying to track down all of the changes the program underwent over the past few years is dizzying. But what is even more dizzying is trying to find housing among frequent changes to the eligibility requirements, time limits on staying in the motel rooms, and caps on the number of rooms. Each new restriction drives hundreds of people out of the motel rooms.[11] People phased out of the program and who can no longer live in the motel rooms have these options: live in their personal vehicle, stay with family or friends, camp out in a tent, live on the street, or find an emergency shelter.
Even though the state forced an estimated 1,000 people to leave their motel rooms between September and October, those same people will be eligible again for motel housing once again starting on December 1.[12] In the winter months, the cap on the number of rooms available and the eighty day stay limit will disappear.[13] Municipalities and the state are opening shelters to accommodate people displaced by the phasing out of the motel program.[14] For example, the state is opening two shelters in Waterbury that can house 17 families.[15] It is doubtful, however, that the upcoming shelters can house all of Vermont’s houseless population. Even the motel program was insufficient; people who did not use up their eighty days were still denied access to a motel room because of a lack of space.[16] People may hesitate to reapply for a motel program voucher. Caution could stem from all of the recent dehumanizing changes within the program, like forcing people out of housing in October only to let them back in in December.[17]
Vermont’s solutions to houselessness have dehumanizing undertones. In the transition from the motel program to shelters, the state fails to adequately inform motel program participants about the shelters, provide transportation provided to the sites, and provide basic amenities like showers and storage space.[18] For the new shelters in Waterbury, families must undergo an intake process to be admitted.[19] There appears to be no publicly available criteria for what this intake process consists of, which is worrisome. By what standard would a houseless family be more deserving of housing than another houseless family?
Another problem with Vermont’s motel program is the shadiness happening behind the scenes. For example, a motel owner improperly withheld $3,300 of security deposits per occupant.[20] These deposits were supposed to be given to motel room occupants who stayed in the motel room program for at least four months and left their rooms in good condition.[21] The motel owner, who operates five of the motels involved in the motel program, is supposed to pay back the improperly withheld security deposits.[22] So now, instead of getting the financial relief these unhoused people desperately needed when they left the motel, they were robbed of the money they were entitled to and potentially remain in financial distress. To get the wrongfully withheld money, unhoused people have to work with the Attorney General’s office, adding to the stress of being unhoused.[23]
In sum, the Vermont General Assistance Housing Program is constantly embroiled in a frenzy of sudden changes that make finding housing even more chaotic for people experiencing houselessness. The state needs to find ways to protect people accessing the motel program from wrongdoing and stop imposing arbitrary time limits and room limits. Should the state completely phase out the motel program, the shelters acting as a replacement for the program must be accessible and provide basic amenities to promote the dignity of unhoused people in Vermont.
After this November’s Presidential Election, some liberals are calling for Justice Sonia Sotomayor to step down before the next administration takes office.[1] The calls for Justice Sotomayor’s resignation are out of fear about her dying in office, as the late Justice Ruth Bader Ginsburg did, giving President-elect Trump another appointment that will alter the balance of the Court.[2] Additionally, Liberals argue that even if Justice Sotomayor survives another four years, Democrats are not likely to regain control the United States Senate for at least another decade.[3] Justice Sotomayor is currently 70 years of age.[4] Persons assigned the sex of female at birth in the United States lived on average 80.2 years in 2022.[5] However, liberals often point out that Justice Sotomayor has type one diabetes to strengthen their argument.[6]
The appointment process for federal judgeships became highly politicized in 2013. Harry Ried, who was the United States Senate Majority Leader at the time, got his Democratic colleagues in the Senate to end the filibuster for lower federal court judges.[7] Senator Reid took this extraordinary measure after 41 Republicans consistently blocked the two-thirds majority vote needed to approve President Obama’s lower court nominees.[8] Predictably, just three years later in 2017, under a Republican controlled United States Senate, Senator Mitch McConnell got his Republican colleagues in the Senate to end the filibuster for United States Supreme Court nominees.[9] Thus, now only a simple majority vote in the United States Senate is needed to “advise and consent”[10] on all federal judicial nominees. Arguably, one-third of the United States Senate blocking a democratically elected majority from confirming a judicial nominee is bad. However, the Public’s increased perception of the Supreme Court as political is worse.
Public confidence in the United States Supreme Court is at its lowest point in three decades.[11] Many United States Citizens view the nine Justices of the Court now simply as politicians in black robes. This is concerning because a free and independent judiciary is key to upholding the rule of law in a democracy.[12] If the public views the Court as an extension of politics, then the Court’s role in our constitutional democracy is weakened. Public outcry for a Justice to resign because of partisan politics is the type of danger that President George Washington alluded to in his 1796 Farewell Address.[13] Justices have a duty to uphold to the United States Constitution, unless they cannot fulfill their constitutional obligation, they should not be ousted by party politics. However, once hundreds of years of public trust is eroded it is not easily regained.
Democrats and Republicans must reach a compromise that de-politicizes the nomination and confirmation process for federal Judges and Justices. Since the founding, Supreme Court Justices have served on the Court for life.[14] This system worked fine however times have changed.[15] Justices and Judges are no longer approved by the Senate based on their qualifications for the job but rather based on their own personal jurisprudence.
Term limits are the way to de-politicize the Court. In 2021, President Biden established a Commission to investigate possible reform measures.[16] The Commission recommended an 18-year term limit system that would give each president two nominations.[17] The Commission made this recommendation after gathering testimony from scholars and legal professionals across the ideological spectrum.[18] Additionally, the Commission found that Chief Justice Roberts, Justice Kagan, and Justice Breyer have expressed benefits to term limits.[19] However, our elected leaders have yet to engage in a serious bipartisan effort to pass the Commission’s recommendations into law. Until then, the Court’s role in our constitutional democracy remains in limbo.
Most people know what forensic science is thanks to the many television shows and movies where they see scientists in lab coats looking through microscopes, analyzing fingerprints or fibers, and providing evidence to put the bad guy behind bars. In reality, forensic science is “the application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues.”[1] Forensic evidence’s admission to courtrooms is often governed by the Federal Rules of Evidence Rule 702. Rule 702 essentially states that a qualified expert witness can testify if it is more likely than not that “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”[2] While these methods may seem infallible, and indeed are often stated by “experts” to be so, they are far from perfect and have been causing wrongful convictions for decades.[3]
The issue with some forensic science methods in the courtroom is that many of them have not been rigorously tested. This means that we do not know whether these methods are even remotely accurate. In courts, the Frye standard emerged in 1923 and stated that scientific evidence needed to have gained general acceptance in the particular field to which it belonged to be allowed in the courtroom.[4] The Federal Rules of Evidence came along in 1975 allowing scientific evidence or fact into the courtroom if it would help the jury understand the evidence or determine the fact at issue and the witness was qualified. Then the Supreme Court decided in 1993 that trial judges were to be the gatekeepers of expert evidence[5] and only evidence that has been tested, peer reviewed or published, and had standards, and was generally accepted should be allowed.[6]
Forensic methods such as hair analysis, 911 calls, blood-pattern analysis, bite mark analysis, fingerprint analysis, and roadside drug tests have been challenged numerous times and even debunked. But courts still allow juries to hear such evidence.[7] For example, experts regularly testify that a match of 5-15 points on a human fingerprint is enough to identify a perpetrator.[8] However, there are 75-125 points that can be compared on a fingerprint and no research has been done to show if that low bar is sufficient.[9] This means we have sent people to prison on as little as a 6.7% match with no idea if that is enough. In one disturbing case, a man was sent to prison for 28 years based on hair analysis placing him at the scene of a murder. He was declared innocent however when it came to light some of the hairs the FBI assured a jury were his were actually dog hairs.[10] Many advanced courses for forensic methods like fingerprint analysis are offered to law enforcement. The courses claim to provide sufficient foundation for officers to testify as “expert” witnesses in the courtroom despite requiring as little as one week of education. Such courses include forensic clothing examination, forensic pathology, cognitive interview and statement analysis, latent fingerprint comparison and analysis, and arson investigation.[11]
Multiple government reports point to the need for more rigorous testing of forensic methods, but little progress has been made.[12] As per the National Research Council, copious forensic evidence is introduced into trials without any meaningful scientific validation or reliability testing.[13] The President’s Council of Advisors on Science and Technology also found forensic methods lacking validity and reliability.[14] The Council thoroughly reviewed available literature and received input from the FBI Laboratory, judges, prosecutors, advocates, and leading industry and academic scientists. The report recommended that forensic methods should have clear error rates and should be empirically tested through blind testing (no researcher knows what the correct answer is), with sufficiently large numbers of samples and scientists, and making the data publicly available.[15] At a minimum, to usefully testify about items sharing a source (this would include fingerprint, blood-pattern, bite mark, firearm mark, hair comparison, and more), a witness should need to tell the trier of fact how often items with the observed similarities are actually a match (i.e., provide an error rate).[16]
Unfortunately, law enforcement does not want to stop using these methods because they help them catch suspects and judges are hesitant to overturn precedent.[17] Proponents may claim these forensic methods can simply be dissected on cross-examination if the results are so dubious. However, once a witness is set up as an “expert” their credentials and the credibility of their opinion has already been established and are difficult to tear down.[18] We should not be relying on opposing council, who is likely not a scientist, to convince a jury that the expert they just heard is wrong. The Department of Justice and some presidential administrations have also delayed progress saying that these reports are attacks on forensic science.[19] This is despite the DOJ stating in 2015 that 90% of its cases relying on microscopic hair analysis amounted to false testimony because of the inaccuracy of the method.[20] Further, between 1989 and 2019 the National Registry of Exonerations documented 553 cases where someone was wrongfully convicted based on questionable forensic evidence and later found innocent.[21] This is certainly a far cry from Sir Blackstone’s maxim that “it is better that ten guilty persons escape than that one innocent suffer.”
The best way forward would be to adjust the Federal Rules of Evidence once again to reflect the importance of testable, valid scientific evidence. A clearer rule might look like “a witness who is qualified by experience, training, and education may testify in court if the proponent demonstrates that the methods used by the expert were (a) subjected to rigorous testing, (b) produce an error rate of at most 5%, (c) have been validated by other scientists using blind testing, and (d) the testimony reflects a reliable application of the method to the specific facts of the case.” Implementation of this rule could decrease rates of wrongful conviction, push forensic scientists to adopt rigorous testing methods, and decrease corruption from self-proclaimed forensic “experts” willing to say anything on the stand.
[1] President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods 1 (2016).
For some Americans, the concept of cash bail may be limited to an experience of their thimble avatar inauspiciously landing on the corner Go to Jail space on a Monopoly board. For countless others, the realities of cash bail present an insurmountable barrier preventing release from county and city jails across the country. Every day, approximately 700,000 Americans are held in jails awaiting trial or plea deals; 60 percent of whom suffer incarceration because they cannot afford to pay the secured bond to await their next court date unbound by law enforcement.[1]
Jails are predominately populated with people who cannot afford to pay cash bail to secure their release. As a result, American tax payers spend approximately $38 million dollars a day, tallying close to $140 billion a year on pretrial detention.[2] As a growing choir of dissenting voices criticize the entrenched cash bail system, beacons of change emit from legislatures across the United States. In the last few years, several states passed progressive bills modifying their pretrial detention laws (New Jersey, New Mexico, New York, and the District of Columbia). One state, Illinois, completely banned cash bail.[3]
Opponents of cash bail argue that pretrial detention resulting from unpaid secured bonds are unjust, ineffective vestigial appendages of 13th-century English common law with shameful roots in American slavery.[4] Those accused of an offense—not convicted—must pony up hundreds or thousands of dollars to avoid being locked up while awaiting their court appearance. Cash bail is a “faulty and unreliable metric to determine whether someone could be a danger to their community and whether they pose a flight risk.”[5] Indeed, the ability to pay cash bail may be more indicative of a person’s resources to flee rather than to appear in court at a subsequent criminal proceeding.[6] Studies also report higher rates of recidivism stemming from the negative effects of pretrial detention.[7] In sum, the jailhouse gates become a revolving door for those unable to make bail and subjected to the experience of incarceration.
Pretrial incarceration can yield devastating consequences, including job loss, inability to care for children, and housing forfeiture. These consequences disproportionately impact minority and lower income populations.[8] Just two days in jail can increase the likelihood and length of incarceration, reduce economic viability, induce recidivism, and create health risks for largely low-risk defendants.[9] Sadly, judges are statistically more likely to hand down an active jail sentence for individuals who have served pretrial detention.[10] Of the 60% of jail inmates who cannot afford cash bail, many may wait weeks, months, or even years for trial, clogging county and city jails. Meanwhile, jail stays have gotten longer, further subjecting at-risk groups to the negative effects of incarceration. Between 1983 and 2013, the average length of jail visits jumped from 14 to 23 days.[11] Many defendants awaiting trial plead guilty in plea arrangements—irrespective of their culpability in an alleged defense—because they are desperate to get out of jail.[12] Many of these plea arrangements exchange time served (largely an artifact of the inability to pay) for guilty pleas to lesser offenses, cementing criminal offenses on a person’s record.
As the choir of voices admonishing the injustices of the cash bail system around the country swell, several states and organizations have taken various measures to address this problem. However, most of these measures fall short of abolishing cash bail. Vermont, for instance, passed legislation that prohibits the levying of cash bail only when an individual has been “charged with an expungement-eligible misdemeanor” while leaving the door open for judicial discretion to continue to set cash bail.[13] Private organizations have taken a work-around approach by establishing bond funds—whereby bail amounts are paid out of a collective pool of capital.[14]Money refunded after court appearances is then redeposited into the bond fund, creating a recyclable cash purse for petitioning individuals looking to secure cash bail.[15]
Only one state has abolished cash bail. Beginning September 18, 2023, Illinois’ Pretrial Fairness Act (PFA) “eliminated the use of cash bail in all criminal cases [and] prohibited pretrial detention altogether for most defendants.”[16] Supplanting the requirement to cough up cash to avoid pretrial detention, the PFA institutes a series of new timelines and measures to reduce the number of jail detainees awaiting trial. Beginning with law enforcement, the PFA authorizes officers to issue citations for many low-level offenses rather than jailing offenders.[17] Currently in Illinois, “cite and release” is presumed for low-level misdemeanors.”[18]Next, the PFA requires that individuals who are detained for higher level offenses must appear before a judge within 48 hours.[19] Conversely, many states avoid such a tight timeline for first appearances with vague statutory language requiring only that defendants face a judge “without undue delay.”[20] Furthermore, the PFA places the burden on prosecutors to prove “by clear and convincing evidence [that a] condition of release is necessary” to jail a person pending trial.[21]
As the first state to abolish cash bail, Illinois’ move may seem unprecedented. However, the PFA merely echoes what the federal criminal courts accomplished in 1984, under the Federal Bail Reform Act, by implementing hearings to weigh a defendant’s danger to a community and issuing non-financial conditions for pretrial release.[22] Mirroring the federal system, Illinois courts are now tasked with risk assessment hearings to determine whether to release or hold individuals accused of offenses in lieu of cash bail.[23] One year after implementation of the PFA, this judicial assessment requirement has been associated with more thoughtful and substantive hearings focused on relevant case issues and evidence.[24] Subsequently, judges predicate pretrial detention on specific facts and circumstances rather than a template cash bail order for conditional release.[25] Risk assessment hearings empower Illinois courts to detain accused defendants who may have otherwise posed a risk to the community, while drastically reducing the number of pretrial inmates who have been charged with low-level offenses. Keeping low-level offenders out of jail minimizes the adverse effects of pretrial detention and leads to safer communities.[26]
Proponents of cash bail often cite community safety as a principal concern to preserve the money-for-release system.[27] However, data suggests that the implementation of risk assessment hearings instead of cash bail is making Illinois safer.[28] For example, under the cash bail model, suspects in domestic violence cases who could pay to secure their release were free to return back to their previous victims. Now, under the PFA, victims receive higher levels of protection due to statutory requirements to notify victims of a defendant’s release.[29] Additionally, risk assessment protocols empower judges to deny bond to offenders charged with misdemeanor domestic assault—a group previously released on cash bail.[30] Since the PFA was enacted, opponents’ concerns about public safety issues related to the abolition of cash bail have been unsubstantiated.[31] In fact, one year after the PFA became law, Illinois has seen reduced failure to appear rates and a 12 percent drop in violent and property crime, evidencing that the PFA is bolstering defendant accountability while making communities safer.[32]
In sum, the Illinois law has replaced the capacity to pay for pretrial freedom with substantive measures that assess the accused’s potential threat to society while awaiting trial. As a model for other states, the PFA shirks centuries of unjust policy, replacing a regressive monetary measure of a person’s flight and danger risks with evidence-based risk assessment. By focusing on the nature of the alleged offense, a defendant’s specific case, and the relevant evidence presented in a hearing, jurisdictions can better evaluate which individuals should be detained pretrial—a metric that, historically, has failed to be qualified by cash bail.
[1]Report: The End Money Bail Act, Data for progress (2023), https://www.dataforprogress.org/end-money-bail.
[6] Paul B. Wice, Freedom for Sale: A National Study of Pretrial Release 5 (1974).
[7]See Will Dobbie et al., The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges,” 108 Am. Econ. Rev. 201-240 (2018).
[8]See Norma Cantu, The Civil Rights Implication of Cash Bail, U.S. Comm’n on Civ. Rts. (2022), https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.
[9]Incarceration’s Front Door: The Misuse of Jails in America, Vera Inst. of Just. (2015), https://www.vera.org/downloads/publications/incarcerations-front-door-summary.pdf.
[16] Patrick Griffin et al., The First Year of the PretrialFairness Act, Loy. Chi. Ctr. for Crim. Just. (Sept. 24, 2024), https://pfa-1yr.loyolaccj.org/; 725 Ill. Comp. Stat. 5/110-1.5.
[18] Lisel Petis, A Model for the Nation? Tips from Illinois on Eliminating Cash Bail, R Street (Sept. 18, 2024), https://www.rstreet.org/commentary/a-model-for-the-nation-tips-from-illinois-on-eliminating-cash-bail/.
[20]See Conn. Gen. Stat. § 54-63(c); Haw. R. Penal P. Rule 5; Ind. Code Ann. § 35-33-7-1; Iowa Code § 804.21-804.22; Kan. Stat. Ann. § 22-2901; Ky. RCr Rule 3.02; MCR 6.104; Mont. Cod Ann. § 46-7-101; N.M. Stat. Ann. § 31-1-5; N.Y. CLS CPL § 120.90; N.D.R. Crim. P. Rule 5; Okla. Stat. tit. 22, § 1105; Pa. R. Crim. P. 516; R.I. Super. R. Crim. P. 5; S.D. Codified Laws § 23A-4-1; Tenn. R. Crim. P. Rule 5; Utah Code Ann. § 77-7-23; V.R.Cr.P. Rule 3; Va. Code Ann. § 19.2-80; W. Va. R.Cr.P., Rule 5; Lisel Petis, Navigating Bail Reform in America: A State-by-State Overview, R Street 64 (Feb, 2024), https://www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview/ “The phrase ‘without necessary delay,’ which is used in many states, lacks clarity and invites a variety of interpretation. Introducing a defined time limit of 24 to 48 hours ensures a swifter delivery of justice, preventing unnecessary delays in future court proceedings.”
[26] Lisel Petis, Navigating Bail Reform in America: A State-by-State Overview, R Street 64 (Feb, 2024), https://www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview/.
[27]See Allie Preston, The Case for Cash Bail Reform, CAP20 (Sept. 19, 2022), https://www.americanprogress.org/article/cash-bail-reform-is-not-a-threat-to-public-safety/.
[28] David Pierce, New SAFE-T-Act Enhances Protection for Domestic Violence Victims in Illinois, News Channel ABC 20 (Oct. 28, 2023), https://newschannel20.com/news/local/new-safe-t-act-enhances-protection-for-domestic-violence-victims-in-illinois.
[31] Megan Hickey, End of Cash Bail in Illinois Has Not Resulted in More Crime, But Has Impacted Court Systems, CBS NEWS CHI. (Sept. 12, 2024), https://www.cbsnews.com/chicago/news/cash-bail-illinois-one-year-later/.
Imagine rain falling on a scrapyard full of rusting metal and auto parts. If you lived near this scrapyard, would you worry about chemicals and heavy metals getting washed into your neighborhood and waterways? Unfortunately, many Baltimore, Maryland residents live with this reality every rainy day. Per Maryland and federal law, industrial sites like landfills, scrapyards, and salvage yards must obtain a stormwater permit and implement control mechanisms to prevent the discharge of pollutants from these sites into surrounding areas.[1] This permit is called the General Permit for Discharges from Stormwater Associated with Industrial Activities (“Industrial Stormwater General Permit”).[2] However, this permit falls short of its intended objectives due to lack of enforcement and defects in the permit itself, both of which exacerbate environmental justice issues in Baltimore.
Baltimore bears the brunt of Maryland’s industrial activities, hosting a significant portion of the state’s industrial facilities. Baltimore City and Baltimore County contain a third of all of Maryland’s industrial facilities subject to the Industrial Stormwater General Permit (about 300 facilities total).[3] Forty percent of these facilities are in communities that are majority low-income and nonwhite, compounding existing pollution burdens.[4] Geospatial analysis of Baltimore City reveals that most of Southwest Baltimore and Eastern Baltimore are situated within a quarter-mile radius of industrial zones, exposing thousand of homes to continuous untreated toxic substances.[5]
Proximity to industrial facilities has been linked to a variety of health problems. Studies link deteriorated stormwater quality to short-term and long-term illnesses resulting from exposure through drinking water, seafood consumption, and recreational activities involving contact with contaminated water.[6] For example, lead, a common pollutant at electronic scrap recycling facilities, has been shown to cause fatigue, headaches, memory loss, and other symptoms in adults, and permanent brain and nervous system damage in children.[7]
To safeguard public health and the environment, the Clean Water Act (CWA) requires that polluting entities obtain a National Pollutant Discharge Elimination System (NPDES) permit before they can discharge point source stormwater. [8] Maryland’s Department of the Environment (MDE) administers the NPDES permit program in Maryland.[9] Industrial facilities with an Industrial Stormwater General Permit must follow the permit’s conditions to reduce pollutants in stormwater discharges, such as by implementing Best Management Practices (BMPs).[10] BMPs include treating stormwater to remove pollutants through filtration devices, or minimizing exposure of pollutant sources to rainfall, such as by using tarps.[11]
However, compliance with and enforcement of the Industrial Stormwater General Permit is dismal. A survey of Maryland stormwater facilities that spanned 2017 to 2020 found that only 24% of industrial stormwater permittees fully complied with the permit.[12] About half of these facilities were repeat offenders, meaning they were found to be noncompliant multiple times.[13] The greatest concentration of repeat offenders was located in communities with a majority black population: Prince George’s County and Baltimore City.[14] Though the MDE found noncompliance of the permit in over 1,300 inspections, the department brought formal enforcement actions against only 14 of these facilities.[15] Given the quantity of permittees in marginalized communities, this lack of enforcement adds to Baltimore’s environmental justice issues.
Maryland must better enforce the Industrial Stormwater General Permit to protect Baltimore’s communities. It must also revise the permit to encourage better compliance. Notably, Maryland should increase penalties for industrial facilities that are repeat offenders. Maryland should exclude repeat offenders from coverage under the general permit, requiring them to go through the individual permit process instead. Because the individual permit process is more laborious, time intensive, and expensive, this new policy will serve as an incentive for operators to comply with their general permits.[16] By imposing stricter penalties for non-compliance, Maryland can start to mitigate the adverse impacts of industrial stormwater pollution on marginalized communities. Concerted efforts to hold industrial facilities accountable and prioritize environmental justice are crucial for Baltimore’s residents to live in healthy, pollution-free neighborhoods.
—
[1]Seegenerally Md. Dep’t Env’t, General Permit for Discharges from Stormwater Associated with Industrial Activities, Discharge Permit No. 20-SW, NPDES Permit No. MDR0000 (2023).
[3] Chesapeake Accountability Project, Comment Letter on Remand of General Permit for Discharges from Stormwater Associated with Industrial Activities – 20-SW / MDR000 (Nov. 25, 2023).
[4] Paul Hlavinka, Permit Modification Fact Sheet for Discharges from Stormwater Associated with Industrial Activities Discharge Permit Number 12-SW-A, NPDES Permit Number MDR00, at 2 (2018) https://mde.maryland.gov/programs/Permits/WaterManagementPermits/Documents/GDP%20Stormwater/Modification%20A%20(2018)/12SW%20ModA%20FactSheet.pdf; Chesapeake Accountability Project, Comment Letter on Tentative Determination Renewal of the General Permit for Discharges from Stormwater Associated with Industrial Activities – 20-SW / MDR000, at 38-39 (Apr. 14, 2021) https://chesapeakeaccountability.org/sites/default/files/attachments/2021-04/cap-20sw-comment-ltr-final-w-appendices-041621.pdf; seeMDE EJ Screening Tool Version 2.0 Beta, https://mdewin64.mde.state.md.us/EJ/ (last visited Apr. 26, 2024); Overall Climate Vulnerability: Baltimore City Maryland, The U.S. Climate Vulnerability Index, https://map.climatevulnerabilityindex.org/map/cvi_overall/baltimore-city-maryland?mapBoundaries=County&mapFilter=0&reportBoundaries=County&geoContext=State (last visited Apr. 26, 2024).
[5]See Chesapeake Accountability Project, Comment Letter on Remand of General Permit for Discharges from Stormwater Associated with Industrial Activities – 20-SW / MDR000, at Exhibit C (Nov. 25, 2023).
[6] Maryam Salehi et al., An Investigation of Stormwater Quality Variation Within an Industry Sector Using the Self-Reported Data Collected Under the Stormwater Monitoring Program, 12 Water 3185, 3185 (2020).
[7] Diana Ceballos et al., Metal Exposures at Three U.S. Electronic Scrap Recycling Facilities, 14 J Occupational & Env’t Hygiene 401, 401–408 (2017); Diana Ceballos et al., A Pilot Assessment of Occupational Health Hazards in the US Electronic Scrap Recycling Industry, 12 J Occupational & Env’t Hygiene 482, 482–88 (2017); Information for Workers, CDC, https://www.cdc.gov/niosh/topics/lead/workerinfo.html (last visited Apr. 26, 2024).
[10]See Md. Dep’t Env’t, General Permit for Discharges from Stormwater Associated with Industrial Activities, Discharge Permit No. 20-SW, NPDES Permit No. MDR0000, at 13–15 (2023).
[11] U.S. EPA Off. of Water, Industrial Stormwater Fact Sheet Series, at 3, https://www3.epa.gov/npdes/pubs/sector_y_rubberplastic.pdf.
[12] Letter from Chesapeake Accountability Project, Priorities and Concerns with Enforcement of the Maryland General Permit for Discharges from Stormwater Associated with Industrial Activities (July 19, 2021), https://chesapeakeaccountability.org/sites/default/files/attachments/2021-07/mde-isw-permit-enforcement-concerns-ltr-071921.pdf.
[16]Maryland Department of the Environment: NPDES Industrial & General Surface Water Discharge Permits, Maryland.gov, https://mde.maryland.gov/programs/water/wwp/Pages/IndustrialSurfaceDischargePermits.aspx (last visited Apr. 26, 2024).
Students across college campuses are protesting war again and police are breaking up and arresting protesters.[1] American students, part of a global movement, are protesting the genocide occurring in Gaza and the war being waged against Palestinians. Those opposed to students protesting Israel’s war in Gaza frame the issue as a surge of antisemitism.[2] Those protesting demand that their academic institutions disclose and divest from companies facilitating Israel’s war in Gaza.[3] Protests create disruption to bring attention to serious, pressing issues. States, universities, employers, and other institutions regularly use police to break up the protests. State legislatures frequently grapple with how to draft legislation to stop protesters, popular political movements, and uprisings.[4] Attempts to legislate the parameters for protest are doomed to fail. The issue for protesters when governments create parameters for protest is this: if protesters remain lawful and within dictated “peaceful” activities then the protest itself becomes controlled dissent and can be ignored or dismissed. Some rule breaking is either necessary or inevitable if a protest’s argument is going to reach the ears it needs to. Kwame Ture,[5] a critic of peaceful, nonviolent protest, opined to this issue, stating: “in order for nonviolence to work, your opponent must have a conscience, the United States has none.”[6] Kwame Ture’s point resonates today with those disillusioned by the persistent and effective diffusion of popular political movements from urgent calls for change to vapid platitudes repeated by politicians running for office.
In Missouri, the state where Michael Brown was murdered by police, the state house passed a bill in 2021 that criminalized protesting in streets—a response to calls to defund the police.[7] The bill was a reaction to Black Lives Matter protests that occurred after the murder of George Floyd.[8] State Representative Rasheen Aldridge said “if this bill goes into effect, I’m not going to stop protesting, so I hope that I can continue to serve in this body when you try to get me a felony.”[9] The intention of the bill is apparent: make the most common tactic of Black Lives Matter protesters illegal. Assuming that disobedience is central to civil disobedience, this bill points to a specific protest tactic and makes it illegal, seemingly elevating the profile of a disobedient act. This illustrates the adage that best way to make someone look is to say, “don’t look.” Attempts to ban types of protest highlight the targeted protest as effective to organizers. If the aim is to stop a certain tactic, any such bill will backfire. Rather, if the aim is to allow police to use their monopoly on violence against protesters, organizers will find new methods of disruption.
When states or universities create parameters or criminalize protest tactics, protesters either obey or disobey. Those who disobey, engage in civil disobedience. Those who obey have the message of their protest channeled into a means which the authority decides. As someone who has protested before and will likely again, it feels as though the constrained parameters in which Americans can voice public opposition are designed to make the protests ignorable. Governments, businesses, universities, and any other institutions which exert authority over people do not change without being pushed. Sometimes that push is based in the interests of the institution, sometimes it is a moral conscious saying what it must. The true peril facing protesters apart from the threat of state violence, is not being charged with trespassing, it is the very real possibility that they are organizing within a structure of authority which is designed to ignore or placate them. Rules about how and when people may protest are a waste of time because effective protesters will find a way to create the disruption necessary for their message to be heard. States are best to leave protesters alone, adopting a policy only to intervene to prevent violence against people.
To the protesters currently struggling against militarized police, their university administrators, and the genocide in Gaza, hold on to the moral righteousness of your cause, protect and care for one another, and remember that your message is one that must be heard.
—
[1]See Nick Perry, Jim Vertuno and Acacia Coronado, Dozens Arrested on California Campus After Students in Texas Detained as Gaza War Protests Persist, AP, https://apnews.com/article/gaza-war-campus-protests-47f4f7f0916a6493b79eede3e4d0a55d, (last updated April 24, 2024). (Sharing live updates on protests and arrests of student protester across the country).
[2]Antisemitism on Campus Surges as Agitators Take Over, FOX NEWS, https://www.foxnews.com/live-news/antisemitism-campus-surges-agitators-take-over-columbia-yale-universities, (last updated Apr. 26, 2024).
[3] Kim Bellware, College Students are Protesting Schools’ Ties to Israel. Here’s Why., The Washington Post, https://www.washingtonpost.com/education/2024/05/03/campus-protest-origins-demands-divest/, (last updated May 3, 2024).
[4]See Anti-Protest Bills Around the Country, ACLU, https://www.aclu.org/issues/free-speech/rights-protesters/anti-protest-bills-around-country (last visited Apr. 26, 2024). (tracking the states with anti-protest bills as of June 2017).
[5] Kwame Ture was Stokely Carmichael before changing his name.
[7] Jeanna Kuang, Missouri House Passes Penalties for Protesters for Blocking Traffic, Police ‘Bill of Rights,’ THE STAR, May 4, 2021, https://www.kansascity.com/news/politics-government/article251160869.html.
Without a listing under the Endangered Species Act (ESA), the gray wolf (Canis lupus) may become something that the next generation can only know in the pages of a fairytale. The gray wolf is a distant relative of the near-extinct red wolf[1] and shares a distant evolutionary history with the eastern wolf that occupies the Great Lakes Region and much of Canada.[2] The stunning gray wolf has served many important roles for centuries. First, as an apex predator the wolf provides an essential ecological function by keeping prey species at healthy population sizes. This population control creates a cascading effect that improves ecosystem function across trophic levels and increases nutrient cycling.[3] Second, the gray wolf is considered the most sacred species to several Tribes, and broadly holds cultural and political importance across Indigenous communities.[4] Finally, this species is teeming with myth and intrigue: it has filled the pages of children’s books and public programming that has sparked curiosity about wildlife and cultivated an environmental ethic in children for generations. The gray wolf used to roam the contiguous United States until European settlers hunted them to near extinction, marking a harsh contrast to the centuries of coexistence wolves enjoyed with Native Americans.[5] Today, the delisting of the gray wolf could effectively exterminate Canis lupus in the contiguous United States.
The gray wolf has been fully extirpated from the East Coast;[6] however, gray wolf populations in the Northern Rockies and Western Great Lakes regions have since rebounded from near-total extinction.[7] Over last decade, gray wolves have naturally redispersed to California.[8] Moreover, Colorado passed Proposition 114 to reintroduce the species back into its native Southern Rockies range.[9] Importantly, much of the gray wolf’s recovery over the last fifty years is attributable to the ESA which conferred nationwide protections for decades.
The gray wolf was originally listed under the predecessor of the ESA and remained listed up until 2020.[10] Under the ESA, the population of Canis lupus found in Minnesota was listed as threatened, whereas the populations found across the rest of the contiguous United States were listed as endangered.[11] Specifically, the population of gray wolves found across the Northern Rocky Mountain (NRM) region was designated as a Distinct Population Segment (DPS), a listable entity under the ESA.[12] It was this population of gray wolf that was delisted between 2009 and 2017 because the Fish & Wildlife Service (FWS) found that it had recovered. In 2020, the FWS delisted the gray wolf from the remaining contiguous United States.[13] In 2022, this delisting was vacated and remanded by the U.S. District Court for the Northern District of California. In fact, Courts have invalidated five out of six rulemakings by the FWS on gray wolf delisting for failing to consider how delisting a subpopulation affects gray wolf recovery nationwide.[14] As a result, the FWS published a final rule relisting the gray wolf across the contiguous United States; however, this relisting excluded the NRM DPS.[15]
Put plainly, the exclusion of the NRM DPS resulted in the wolf being listed as endangered where it does notlive, and having its listing removed where it does live. This is an absurd outcome that does nothing to protect the wolf from extinction. While population numbers have increased dramatically across the western region, those numbers are artificially padded because of years of protection under the ESA, the use of junk science[16], and novel reintroduction programs, such as Colorado’s Proposition 114. Moreover, this year FWS published a finding that the NRM population no longer constitutes a DPS because of a high genetic exchange and connectivity with populations across the West. The FWS did find, however, that a new Western United States DPS exists. The FWS found that this DPS does not meet the criteria for listing as a threatened or endangered species because population numbers, genetic diversity, and habitat viability are all high—indicating that the species can persist without the help of the ESA.[17] However, this fails to account for the only significant threat to wolf populations in this region: man.
Without federal protections, wolf management plans are left to the state agencies. State management plans are highly controversial and paint a dire future for the gray wolf. Over the past few years, western states have adopted “laws and regulations designed to substantially reduce gray wolf populations in their states using means and measures that are at odds with modern professional wildlife management.”[18] These management strategies include permitting the use of chokehold snares on pregnant females in Montana, allowing the hunting of 90% of the population in Idaho, and the establishment of Predatory Animal Areas in Wyoming that allow the taking of a gray wolf year-round, without a license, using any means possible.[19] These practices far exceed hunting and trapping norms and permit unnecessary violence against our nation’s most intriguing carnivore. Since the delisting of the species, conservationists have reported that the rate of takings and the methods used have returned to that of colonial times, when wolves were nearly wiped off the continent.[20]
FWS is developing a new plan to “foster a national dialogue” to support conflict prevention between wolves and humans.[21] This is too little, too late. Without federal protections, the gray wolf will face deleterious rates of human-caused mortality. Just as the Judiciary has found time and time again, FWS has failed to consider how state management plans in the American West will affect the persistence of the species at large. As a result, the gray wolf continues to be forced in and out of federal protection. However, conservation advocacy groups have banded together and given notice of their intention to bring suit.[22] We can only hope this litigation will force FWS’s hand in promulgating a common-sense, federal management plan before wolves become something that the next generation can only know on the pages of a book.
—
[1]Red Wolf, U.S. Fish & Wildlife Serv., https://www.fws.gov/species/red-wolf-canis-rufus (accessed Apr. 22, 2024) (noting only 15 to 17 individuals remain in the wild, all of which are part of a reintroduction plan in California).
[2] Eric Ralls, Eastern Wolves and Grey Wolves Evolved Separately, https://www.earth.com/news/eastern-wolves-and-grey-wolves-evolved-separately/ (Apr. 13, 2023) (noting the gray wolf and eastern wolf evolved from different natural histories and, thus, require different management plans).
[5] Wolf Conservation Planning: A Guide for Working Together Using Science, Inclusivity, and Ethical Practices, Endangered Species Coalition, www.wolfplanning.org (accessed Apr. 21, 2024).
[6]Gray Wolf (Canis lupus) Biologue, U.S. Fish and Wildlife Serv., http://www.fws.gov/midwest/wolf/biology/biologue.htm (last updated May 2004).
[8]See Gray Wolf, Ca. Dept. of Fish & Wildlife, https://wildlife.ca.gov/Conservation/Mammals/Gray-Wolf (accessed Apr. 22, 2024) (discussing gray wolf naturally relocating to California from Northern Oregon).
[9] See H.R. 21-105, 1st Gen. Assemb., 1st Reg. Sess. (Co. 2020) (outlining the passing of Proposition 114 to reintroduce the gray wolf into Colorado).
[10] Endangered and Threatened Wildlife and Plants; Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife, 85 FR 69778 (2020).
[12] Endangered and Threatened Wildlife and Plants; Finding for the Gray Wolf in the Northern Rocky Mountains and the Western United States, 89 FR 8391 (2024).
[14]U.S. Fish and Wildlife Service Completes Status Review and Finding for Gray Wolves in the Western United States; Launches National Recovery Plan, U.S. Fish & Wildlife Serv., https://www.fws.gov/press-release/2024-02/service-announces-gray-wolf-finding-and-national-recovery-plan (Feb. 2, 2024).
[15] Endangered and Threatened Wildlife and Plants; Finding for the Gray Wolf in the Northern Rocky Mountains and the Western United States, 89 FR 8391 (2024).
[16] Lindsay Botts, Conservation Groups Sue to Stop Wolf Hunting in Idaho, Montana, and Wyoming, Sierra, https://www.sierraclub.org/sierra/conservation-groups-sue-stop-wolf-hunting-idaho-montana-and-wyoming (Apr. 11,2024) (discussing how state agencies place cameras near wolf dens in order to pad the population numbers that are reported to the U.S. Fish & Wildlife Service for consideration of delisting).
[17] Endangered and Threatened Wildlife and Plants; Finding for the Gray Wolf in the Northern Rocky Mountains and the Western United States, 89 FR 8391 (2024).
[18]U.S. Fish and Wildlife Service Completes Status Review and Finding for Gray Wolves in the Western United States; Launches National Recovery Plan, U.S. Fish & Wildlife Serv., https://www.fws.gov/press-release/2024-02/service-announces-gray-wolf-finding-and-national-recovery-plan (Feb. 2, 2024) (emphasis added). See Lindsay Botts, Montana Launches War on Wolves, Sierra, https://www.sierraclub.org/sierra/montana-launches-war-wolves (Apr. 14, 2021) (discussing the use of chokehold snares on pregnant females in Montana); and see Lindsay Botts, Idaho Legislature Sets Sights on Wolf Extermination, Sierra, https://www.sierraclub.org/sierra/idaho-legislature-sets-sights-wolf-extermination (May 3, 2020) (allowing the illegal taking of 90% of the gray wolf population in Idaho).
[19] Ramon Antonio Vargas, Outrage After US Hunter Who Reportedly Took Wolf to Bar and Killed It Only Fined, The Guardian, https://www.theguardian.com/us-news/2024/apr/10/wyoming-wolf-bar-animal-abuse (Apr. 10, 2024) (discussing the recent incident where a hunter ran over a gray wolf pup with his snowmobile which maimed the pup, then taped its mouth shut, and brought it to a bar where it tortured and eventually killed it before an audience of onlookers—the man was only charged a $250 fine).
[21]U.S. Fish and Wildlife Service Completes Status Review and Finding for Gray Wolves in the Western United States; Launches National Recovery Plan, U.S. Fish & Wildlife Serv., https://www.fws.gov/press-release/2024-02/service-announces-gray-wolf-finding-and-national-recovery-plan (Feb. 2, 2024).
[22]Northern Rockies Gray Wolves Denied Endangered Species Protection: New Lawsuit to Protect Persecuted Wolves Is Likely, CBD, https://biologicaldiversity.org/w/news/press-releases/northern-rockies-gray-wolves-denied-endangered-species-act-protection-2024-02-02/ (Feb. 2, 2024).
The freedom against unreasonable searches and seizures is a keystone of American civil liberties. The Fourth Amendment prevents governmental actors from unreasonably invading Americans’ homes, cars, effects, or persons without probable cause to do so.[1] But what about at protests? Obviously, police officers have the ability to search an individual suspected of criminal behavior at protests. But, what about warrantless searches of a wide swath of individuals without their knowledge?
With cell-site simulator (or “Stingray”) technology, police departments can search and seize a variety of data from the cellphones of any individuals in the technology’s vicinity entirely inconspicuously.[2] Stingray technology, in essence, acts as a fake cell-phone tower and forces cellphones in its area to automatically connect to it.[3] Once connected, Stingray technology can obtain the locational information, identifying data, and metadata of that cellphone.[4] Put simply, this military-grade technology[5] can track a phone, identify its unique identification number, and view a variety of personal communications—all without the user’s knowledge.[6]
Further, this technology is a brute. Especially when used at protests, anyone with a cellphone in attendance is likely being tracked and farmed for data – even without presenting a suspicion of probable cause. Chances are, if you have attended a protest in recent years, you have likely been subject to such a search. And, in most states, police departments do not even need a warrant to use Stingray technology.[7] As a result, American police departments can trample the constitutional rights of countless Americans simply to search a haystack for a single needle.
Historically, police surveillance has disproportionately targeted marginalized communities.[8] These historic trends continue today.[9] Policing biases are further entrenched by use of surveillance technologies.[10] And these technologies are disproportionately deployed in marginalized, overpoliced communities.[11]
There are few instances of case law dealing directly with Stingray technology. The Supreme Court, however, has encountered this issue—yet, only from afar. Carpenter established the rule that Americans have a “reasonable expectation of privacy” in their locational data that can be gleaned from a Stingray search.[12] As a result, if an American has their locational data searched and seized, then it becomes a Fourth Amendment violation.[13]
Regulation of this technology is sparse and typically enacted on a state-by-state basis, usually following a court case. With no federal regulation, procedures and practices governing the use of Stingray technology differ greatly – allowing some states to skirt constitutional protections. To account for this patchwork regime of regulation, the federal government must step in. Regulation at the federal level would eliminate “confusing” and “overlapping” policies and laws at the state and local levels while providing “clear legal standards” for use of Stingray technology by any government agency.[14]
The Cell-Site Simulator Warrant Act of 2021 provided a model for such federal regulation.[15] This Act established a warrant requirement for use of Stingray technology by any governmental agency. Further, on the warrant application, the agency would have to disclose the data to be collected, any potential third-parties that may be inadvertently impacted by the search, and whether it was to be used at an event with constitutionally-protected activity, such as a protest.[16]
Despite being a bipartisan issue, this Act unfortunately died in committee,[17] leaving no practical alternative at the federal level. Thus, for the foreseeable future, it appears that the state-by-state regulation regime will continue, being spurred only by judicial challenges after constitutional violations have already occurred.
But the American people deserve more. Instead of relying on a retroactive vindication of their constitutional rights, state and federal governments must provide proactive protections for protestors. Further, police departments have a multitude of other resources to rely on to catch criminals; most of which do not subject the masses to unconstitutional searches merely for participating in the expression of grievances.
During our tumultuous time, Americans must be able to freely express their grievances without fear of being tracked and farmed for data. Otherwise, protestors, regardless of their intentions, come to be viewed under an air of suspicion, can be freely searched without their knowledge, and fall victim to the surveillance state.
[5]See John Haystead, Optical Warfare: Technology Emerges to See the Enemy, and to Blind Him, Military Aerospace Electronics (Mar. 1, 1997), https://www.militaryaerospace.com/communications/article/16710290/optical-warfare-technology-emerges-to-see-the-enemy-and-to-blind-him.
[6]Street-Level Surveillance: Cell-Site Simulators/ IMSI Catchers, Electronic Frontier Foundation (last updated on Aug. 28, 2017), https://www.eff.org/pages/cell-site-simulatorsimsi-catchers.
[7]See Status of Location Privacy Legislation in the States, American Civil Liberties Union (Aug. 26, 2015), https://www.aclu.org/news/privacy-technology/status-location-privacy-legislation-states-2015.
[8]See Jeffrey L. Vagle, Tightening the OODA Loop: Police Militarization, Race, and Algorithmic Surveillance, 22 Mich. J. Race & L. 101, 124–26 (2016).
[9]See George Joseph, Racial Disparities in Police ‘Stingray’ Surveillance, Mapped, Bloomberg (Oct. 18, 2016), https://www.bloomberg.com/news/articles/2016-10-18/u-s-police-cellphone-surveillance-by-stingray-mapped.
[14] Press Release, Ron Wyden: United States Senator for Oregon, Wyden, Lieu, Daines and McClintock Introduce Bipartisan Legislation to Require Warrants for Government Use of “Stingray” Phone Surveillance (June 17, 2021), https://www.wyden.senate.gov/news/press-releases/wyden-lieu-daines-and-mcclintock-introduce-bipartisan-legislation-to-require-warrants-for-government-use-of-stingray-phone-surveillance.
Rachel Carson famously stated, “If we are going to live so intimately with these chemicals—eating and drinking them, taking them into the very marrow of our bones—we had better know something about their nature and their power.”[1]
In early 2022, Vermont residents discovered the overly simplistic process for acquiring a permit to spray herbicides in shared lakes to eradicate aquatic plants. This discovery sparked a heated debate regarding the use of herbicides in Vermont’s lakes.[2] The Vermont legislature needs to balance the harms of herbicides and the potential impacts of non-native aquatic plants when considering whether to approve or deny an herbicide permit.
Aquatic herbicides can have long-lasting effects on humans, aquatic life, and terrestrial organisms.[3] Early herbicide studies frequently overlook possible harmful effects. For example, glyphosate was once believed to be safe but was later classified as carcinogenic to humans by the International Agency for Research on Cancer in 2015.[4] 2,4-D is another ingredient that was initially believed to be safe.[5] According to a senior scientist at the Natural Resources Defense Council, the connection between 2,4-D and cancer in humans “[is not] clear enough” in early studies.[6] Even though there is data connecting 2,4-D to non-Hodgkin’s lymphoma (blood cancer), sarcoma (soft-tissue cancer), and thyroid disorders, this herbicide was still registered in the United States.[7] Moreover, compelling evidence suggests that 2,4-D has endocrine-disrupting properties by either mimicking or inhibiting the body’s hormones.[8] Following the registration of an herbicide, concerning signs gradually emerge.[9] Yet many findings remain inconclusive despite recent research.[10]
In addition to an herbicide’s potential impact on humans, it can impact aquatic life. Even if an herbicide fails to kill an aquatic organism, there may still be sublethal effects.[11] Sublethal effects manifest when an organism experiences alterations in behavior such as weight loss, reduced agility and defense mechanisms, and lower tolerance to high temperatures.[12] Moreover, herbicides have the potential to induce mutations and abnormalities in fish larvae.[13]
The potential impacts of non-native aquatic plants are that they can compete with native plant species,[14] non-native plants can change the fish populations based on decreased predation,[15] and that the abundance of non-native plants can be an inconvenience for lake-goers.[16] In comparison, the possible harm from herbicides is much greater than that of non-native aquatic plants.
The Environmental Protection Agency (EPA) mandates herbicide registration under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).[17] In the Supreme Court decision, Wisconsin Public Intervenor v. Mortier, the Court held that FIFRA does not preempt local regulations,[18] allowing state and local governments to fill in the gaps.[19] Thus, Vermont should enact stricter legislation regarding herbicide permitting for non-native aquatic plants. Vermont can better the legislation in four ways. First, by creating an interagency task force to create a comprehensive non-native plant species management plan and to review herbicide permits around the state. Second, enhancing recognition of the common-law public trust doctrine to reinstate sufficient safeguards for the public’s right to utilize the state’s natural resources. Third, adhering to the Administrative Procedure Act by giving weight to public input and facilitating a better process for public comment. Lastly, mandating public education on herbicides and non-native plants. If none of these methods are considered, at the very least, Vermont should employ the precautionary principle in herbicide legislation.
—
[1] Rachel Carson, Silent Spring 17 (25th ed.1962).
[2] Emma Cotton, Denial of Herbicide Permit for Lake Bomoseen Would End Long Controversy, vtdigger (July 5, 2023), https://vtdigger.org/2023/07/05/state-set-to-deny-permit-for-herbicides-on-lake-bomoseen.
[3]IARC Monograph on Glyphosate, World Health Org. (July 19, 2018), https://www.iarc.who.int/featured-news/media-centre-iarc-news-glyphosate/; Danielle Sedbrook, 2,4-D: The Most Dangerous Pesticide You’ve Never Heard of, Nat. Res. Def. Council (Mar. 15, 2016), https://www.nrdc.org/stories/24-d-most-dangerous-pesticide-youve-never-heard (both sources indicating the different health implications of herbicides on humans); Louis A. Helfrich, Pesticides and Aquatic Animals: A Guide to reducing Impacts on Aquatic Systems 6 (2009), https://vtechworks.lib.vt.edu/bitstream/handle/10919/48060/420-013_pdf.pdf (explaining sublethal effects of herbicides on fish); see Oluwaseun Olusegun Babalola & Hannes Johannes van Wyk, Impacts of Diquat Dibromide Herbicide Formulation on Amphibian Larval Development, Nat’l Ctr. of Biotechnology Info. (Apr. 13, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8066383/ (stating that a type of herbicide disrupts amphibian growth); Diquat Ecological Risk Assessment Final Report, Bureau of Land Mgmt. (Nov. 2005), https://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=1102&context=govdocs (stating that a type of herbicide is “moderately toxic to birds and honeybees.”).
[7]Id.;see About Pesticide Registration, Env’t Prot. Agency (Jan. 4, 2024), https://www.epa.gov/pesticide-registration/about-pesticide-registration (stating registration is based off of current scientific data and that herbicides must be registered before they are used in the United States).
[11] Alan G. Heath, Sublethal Effects of Pesticides on Fishes, Va. Polytechnic Inst. and State Univ., https://ucanr.edu/repository/fileaccess.cfm?article=161542&p=JNBAWA (last visited March 11, 2024).
[12] Louis A. Helfrich, Pesticides and Aquatic Animals: A Guide to reducing Impacts on Aquatic Systems 6 (2009), https://vtechworks.lib.vt.edu/bitstream/handle/10919/48060/420-013_pdf.pdf.
[13]Beyond Pesticides, Fish and Other Aquatics, https://www.beyondpesticides.org/programs/wildlife/fish (last visited March 11, 2024).
[15] William E. Lynch, Benefits and Disadvantages of Aquatic Plants in Ponds 2–3 (2006), https://woodlandstewards.osu.edu/sites/woodlands/files/imce/0017%20%281%29.pdf.
The U.S. is in a housing crisis. Between the end of 2019 and 2022, the median home sale price in the U.S. increased by an average of 25%.[1] Rental prices also increased by 18% over the last five years. In 2020, 46% of renters in the U.S. spent more than 30% of their income on rent[2], which meets the Department of Housing and Urban Development’s definition of being cost-burdened.[3] In response, jurisdictions have taken many routes to promote affordable housing.
Cities have adopted mandatory inclusionary zoning as one of the many policy tools to address the affordable housing crisis.[4] Mandatory inclusionary zoning generally mandates developers set aside a portion of units at a below-market rate or contribute to a city-run affordable housing fund.[5] Major cities like New York, Seattle, San Francisco, Los Angeles, and Boston have implemented mandatory inclusionary zoning.[6] However, builders, economists, and housing advocates have criticized these policies as being inefficient and actually decreasing the housing supply.[7]
Proponents argue that mandatory inclusionary zoning increases affordable housing and fosters economic integration throughout cities.[8] Moreover, mandatory inclusionary zoning achieves these goals without adding to the municipal budget, making it an attractive option for local politicians.[9]
Opponents, however, state mandatory inclusionary zoning acts as a tax on development.[10] Developers then pass on this increased cost via market-rate housing prices, eventually leading to fewer new housing units due to the increased development costs.[11]
The key question remains: Which side is correct, or are they both right? Empirical studies generally favor opponents when examining the effect of mandatory inclusionary zoning on cities.[12] For instance, a study examining the effects in Boston found that inclusionary zoning resulted in “greater growth in housing prices and reduced construction.”[13]
Two possible courses of action exist to address these policies: the political process and the legal system. Since city councils implement mandatory inclusionary zoning, these policies can be changed or overturned through local legislative actions. As such, it’s crucial for residents to understand local zoning regulations, participate in local elections, and voice their opinions to the city council whenever possible.
In addition to the political process, the legal system offers another avenue to challenge these policies. Some legal scholars have pointed to recent Supreme Court precedent presenting an opportunity to challenge these mandatory inclusionary zoning ordinances under the Takings Clause of the Fifth Amendment.[14] The legal argument against mandatory inclusionary zoning gained support from the Supreme Court’s recent decision in Sheetz v. County of El Dorado. Sheetz clarified whether legislatively imposed exactions[15] face the same scrutiny as administrative exactions.[16] The Court held that the Takings Clause makes no distinction between administrative and legislative decisions and, as such, each type of exaction faces the same scrutiny.[17]
The constitutional test for exactions is governed by the Nollan/Dolan framework.[18] The Nollan/Dolan framework states that exactions must have a nexus and be roughly proportional to what the development is causing.[19] In the case of mandatory inclusionary zoning, cities will now likely have to show (1) there is a nexus between new developments and affordable housing and (2) the amount of affordable units required is roughly proportional to the effect the development would have on affordable housing.[20]
The Nollan/Dolan framework poses a significant issue for many mandatory inclusionary policies. In general, adding additional housing does not usually lead to a decrease in affordable housing.[21] In fact, adding additional supply to a market without a concurrent increase in demand should decrease the overall prices, which increases affordability.[22] There are some instances where a new development could lead to a decrease in affordable housing.[23] For example, a newer, more expensive development could replace an older, cheaper apartment complex–in turn decreasing the supply of affordable housing. However, affordability would likely not decrease in instances where these developments are built on vacant land or add significantly more units than the older development.[24]
However, a legal challenge against mandatory inclusionary zoning hinges on several key questions. First, would mandatory inclusionary zoning be considered a taking outside the permit process – a current requirement to apply the Nollan/Dolan framework?[25] Second, does the Nollan/Dolan framework operate differently when applied to a class of properties instead of a specific property?[26] And does a legislatively imposed exaction need to meet the same level of tailoring as an administrative exaction imposed on a single property?[27]
Regardless of the legal outcome there are more economically and legally sound policy options to increase affordable housing.[28] Better policy options include increasing density, incentivizing inclusionary zoning, removing parking space requirements, increasing the speed of the permit process, and eliminating single-family zoning.[29] All these options are designed to decrease development costs and increase the total housing supply.[30] In conclusion, while the affordable housing crisis demands urgent attention, taxing developers may not offer the most effective solution from a policy or legal perspective.
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[1] Katherine Schaeffer, Key Facts About Housing Affordability in the U.S., Pew Research Center (Mar. 23, 2022) https://www.pewresearch.org/short-reads/2022/03/23/key-facts-about-housing-affordability-in-the-u-s/.
[3]Id.; Rental Burdens: Rethinking Affordability Measures, OFFICE OF POLICY DEVELOPMENT AND RESEARCH, https://www.huduser.gov/portal/pdredge/pdr_edge_featd_article_092214.html#:~:text=HUD %20defines%20cost%2Dburdened%20families,of%20one’s%20income%20on%20rent (last visited Apr. 23, 2024) (stating an individual is “cost-burdened “they “pay more than 30 percent of their income for housing”).
[6] Nick Brunick, et. al., Large Cities and Inclusionary Zoning, Wellesley Inst. (Nov. 2003) https://www.wellesleyinstitute.com/wp-content/uploads/2013/01/ResourceUS_BPI_IZLargeCities.pdf.
[8] Oscar Chan, The Failures of New York’s Mandatory Inclusionary Housing Program, NYU Am. Pub. Policy Rev., (Nov. 14, 2023) https://nyuappr.pubpub.org/pub/wd818qeb/release/3.
[12]See id.; Connor Harris, The Exclusionary Effects of Inclusionary Zoning: Economic Theory and Empirical Research, Manhattan Inst. (Aug. 10, 2021) https://manhattan.institute/article/the-exclusionary-effects-of-inclusionary-zoning-economic-theory-and-empirical-research.
[13]See Harris, supra note 12 (highlighting that inclusionary zoning “seems likely to have contributed to housing shortfalls.”)
[14]See Kristoffer James S. Jacob, California Building Industry Association v. City of San Jose: The Constitutional Price for Affordable Housing, 7 Cal. L. Rev. Circuit 20 (2016); James S. Burling & Graham Owen, The Implications of Lingle on Inclusionary Zoning and Other Legislative and Monetary Exactions, 28 Stan. Envtl. L.J. 397, 417–27 (2009).
[15] An exaction is a condition imposed by a jurisdiction that a landowner must meet to obtain permit approval. See Dolan v. City of Tigard, 512 U.S. 374, 390; Nollan v. California Coastal Commn., 483 U.S. 825, 837.
[23]See Chui On Ki & Jayantha Wadu Mesthrige, The Effects of Urban Redevelopment on Neighbourhood Housing Prices, 14 International Journal of Urban Sciences 276 (2011); Craig T. Schlatter, The Impact of Downtown Revitalization on Residential Home Prices: Evidence from Normal, Illinois. Illinois State University (Jul. 11, 2006) https://ir.library.illinoisstate.edu/cpe/1.
[25] Sheetz v. Cnty. of El Dorado, California, No. 22-1074, 2024 WL 1588707, at 7 (2024) (Sotomayor, J., concurring). Proving mandatory inclusionary zoning is a taking outside the permit process remains a major hurdle, with the best argument being that the policies infringe on a landlord’s right to exclude. See Cedar Point Nursery v. Hassid, 594 U.S. 139, 140 (2021) (expanding the per se taking standard of Loretto by holding government-authorized physical occupations are per se takings regardless of duration).
[28] Jenny Schuetz, To Improve Housing Affordability, We Need Better Alignment of Zoning, Taxes, and Subsidies, Brookings Inst. (Jan. 7, 2020) https://www.brookings.edu/articles/to-improve-housing-affordability-we-need-better-alignment-of-zoning-taxes-and-subsidies/.
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