In 2023, over 1 billion de minimis shipments worth over $50 billion entered the United States.[1] Less than ten years ago, that number was less than 150 million.[2] What is a de minimis shipment? By definition, a de minimis shipment is too small to be meaningful.[3] That is, however, no longer the case. Currently, any shipment sent into the United States with a fair retail value less than $800 is not subject to duty or import tax.[4] The rationale being that U.S Customs and Border Protection should focus on high-value shipments and spend less time and resources on low-value ones. To that end, Congress raised the de minimis threshold from $200 to $800 in 2016.[5] In the interim, the prevalence of e-commerce skyrocketed.[6]
Traditionally, large companies send shipping containers full of products to a warehouse in the United States. At the port of entry, the requisite duty is paid, and the container is subject to inspection.[7] The de minimis exception enables foreign companies to bypass this process. In particular, Chinese companies ship small, direct-to-buyer packages directly to consumers.
So, what is the issue? De minimis shipments, beyond being tax and duty free, are subject to less stringent data standards. U.S officials have no idea what is being sent into the country or what is purported to be in the packages that come in under the de minimis threshold. This creates a public safety issue. As Representative Mike Gallagher (R-WI) put it “[n]o less than 94% of all import transactions now enter the U.S. through De Minimis rules, accounting for 90% of all illegal narcotics, agricultural goods, and counterfeit seizures by customs.”[8] The deluge of de minimis shipments are overwhelming the system and it has become far too easy to ship drugs (especially fentanyl) and counterfeit goods into the United States. Seemingly, all one must do is claim de minimis and the chances of an illicit shipment reaching its destination unscathed increases greatly.
Beyond the public safety aspect, the aggressive use of de minimis by foreign companies unfairly disadvantages U.S companies and deprives the United States of substantial revenue.[9] In 2023, the de minimis practices of Chinese companies SHEIN and Temu caught the attention of the House Select Committee on the Chinese Communist Party.[10] The Committee found that the two companies make-up over 30% of de minimis shipments into the United States, some 600,000 packages daily.[11] According to the companies themselves, SHEIN and Temu paid a grand total of $0 in import taxes in 2022. For reference, during the same year, GAP paid $700 million in import duty while H&M paid $205 million.[12] The Committee has called on Congress to act immediately to address de minimis concerns.
In today’s hyper-fractured political climate, bipartisanship often seems like a pipe dream. However, there are currently two bipartisan bills in the 118th Congress concerning the de minimis exception.[13] The Import Fairness Act––introduced by Representative Earl Blumenauer (D-OR), Representative Neal Dunn (R-FL), Senator Sherrod Brown (D-OH) and Senator Marco Rubio (R-FL)––aims to exclude certain countries, namely China and Russia, from using the de minimis exception. The De Minimis Reciprocity Act, introduced by Senator Bill Cassidy (R-LA) and Senator Tammy Baldwin (D-WI), would allow shipments from any given country to claim de minimis exception up to the same amount the origin country extends to the United States. For example, if Country A sets its de minimis level at $100 for imports, a package being sent to the United States from Country A could only claim a de minimis exception if the value was $100 or less.
Both bills were referred to the House Committee on Ways and Means and the Senate Committee on Finance, respectively. Since then, nothing has happened in Congress. Outside of Congress, labor unions, domestic manufacturers, business organizations and other business associations have announced the formation of a coalition to bring attention to the effort of de minimis reform.[14] Kim Glas, president and CEO of the National Council of Textile Organizations, supported the coalition’s efforts in stating, “[d]e minimis is not just a textile issue, de minimis is a wildfire out of control, killing our manufacturing sector and jobs, destroying local communities and facilitating illegal, illicit and dangerous products into the U.S.”[15]
To remedy this, Congress should reform the de minimis framework by passing the Import Safety Act or the De Minimis Reciprocity Act to protect American consumers and businesses.
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[1]De Minimis Shipment Worth Over $11 Million Stopped by Louisville CBP, U.S Customs and Border Protection (Mar. 11, 2024), https://www.cbp.gov/newsroom/local-media-release/de-minimis-shipment-worth-over-11-million-stopped-louisville-cbp#:~:text=In%20FY%202023%2C%20the%20U.S.,a%20billion%20de%20minimis%20shipments.
[5]Section 321 Programs, U.S Customs and Border Protection, https://www.cbp.gov/trade/trade-enforcement/tftea/section-321-programs (last visited Mar. 11, 2024).
[6] Mayumi Brewster, E-Commerce Sales Surged During the Pandemic, U.S. Census Bureau (Apr. 27, 2022), https://www.census.gov/library/stories/2022/04/ecommerce-sales-surged-during-pandemic.html.
[6] Id.
[7] Jordyn Holman, Bipartisan Proposals Would Hit E-Commerce Like Fast Fashion, N.Y Times (Jun. 15,2023) https://www.nytimes.com/2023/06/15/business/ecommerce-SHEIN-us-china-trade.html.
[8] Chelsey Cox, Labor Unions, Domestic Manufacturing Groups launch coalition to Reform De Minimis Import Loophole, CNBC (Mar. 6, 2024), https://www.cnbc.com/2024/03/06/lawmakers-stakeholders-coalition-against-de-minimis-import-loophole.html.
For many, the problems created by net pen aquaculture are out-of-sight, out-of-mind. Below the surface waters, net-pens trap dense stocks of salmon in a slurry of waste and pathogens, endangering wild fish that swim past and suffocating life on the seabed.[1] Fish escape during transfers, extreme tides, and from holes in the nets.[2] Once in the wild, the escapees wreak havoc on wildlife for hundreds of miles up and down the coast.[3] On distant coasts, fish are harvested by the ton, ground up, and then fed to other fish—only to create less fish.[4] But, when affordable salmon appears on grocery store shelves, images of murky water, parasite-covered salmon, or depleted fisheries do not come to mind. Nor should they have to. Sustainable alternatives to net pen aquaculture exist. Several states have successfully banned net pen aquaculture and supported such alternatives.[5] In Washington, however, a loophole in the state statute phasing out net pen aquaculture creates an opportunity for industries to perpetuate the harms of this practice.
On August 19, 2017, moorings anchoring a net pen in Washington’s Puget Sound failed.[6] Over 250,000 Atlantic salmon were released into Puget Sound.[7] With “widespread public concern” following this catastrophe, the Washington legislature enacted a statute to “phase out nonnative fish farming in Washington waters.”[8] The statute calls on agencies to design statewide guidance to eliminate harms perpetuated by this practice.[9] Except for Section 1, the Governor signed the bill into law.[10]
Wildlife and environmental advocates saw the new law as a victory.[11] However, Cooke Aquaculture (“Cooke”), the collapsed net pen owners, saw an opportunity. In January 2019, Cooke submitted a proposal to transition its farming operations from nonnative Atlantic salmon to native steelhead trout.[12] The Washington Department of Fish and Wildlife (“the Agency”) approved the proposal and issued a mitigated determination of nonsignificance (MDNS) under the State Environmental Policy Act (SEPA). The Agency concluded that “the steelhead net-pens will not have a probable, significant adverse impact on the environment.”[13] The Wild Fish Conservancy brought suit, challenging the MDNS.[14] Ultimately, in January 2022, the Washington Supreme Court found that the Agency did not violate SEPA when they issued an MDNS allowing Cooke to transition to steelhead trout with specific conditions.[15]
Washington’s Commissioner of Public Lands, Hilary Franz, responded quickly. Remaining steadfast in her promise to phase out net pens in Washington, Commissioner Franz denied Cooke’s lease renewal.[16] And, on November 17, 2022, she issued Commissioner’s Order 202211 (“the Order”), which called for the development of “necessary changes to agency rules . . . to prohibit commercial finfish net pen aquaculture on state-owned aquatic lands.”[17]
Initially, the Order was viewed as a ban on net pen aquaculture.[18] However, both Cooke and their venture partner, Jamestown S’Klallam Tribe,[19] challenged the denial of their lease renewal and the Order itself.[20] A superior court “gutted” Cooke’s challenge by issuing a “summary judgment against most of its claims.”[21] Alternatively, the Jamestown S’Klallam Tribe—and net pen aquaculture proponents—were optimistic with their summary judgment hearing when Judge Indu Thomas concluded that the Order “has no legal effect.”[22] However, it remains to be seen how the Order will impact the aquaculture industry in Washington or what subsequent challenges will bring.
While the back-and-forth continues in Washington, all other states along the Pacific Coast—California, Oregon, and Alaska—have successfully banned net pen aquaculture.[23] In California, the state legislature mandates the California Department of Fish & Wildlife provide a “detailed environmental impact statement” for any project affecting salmon and steelhead resources.[24] Further, the California Department of Fish & Wildlife issues regulations restricting certain species to “closed-water systems.”[25] These closed-water systems “ensure against the release of live organisms, including parasites, pathogens, and viruses, into waters of the state.”[26] Through these statutes and regulations, California has successfully kept aquaculture companies from perpetuating the harms associated with net pen aquaculture.
The Washington State legislature should amend Sections 77 and 79 of the Washington Revised Code. Like Section 1015 of California’s Fish & Game Code, the amendment should require the Agency to conduct a detailed environmental impact statement, as SEPA requires, that considers reasonable alternatives, including no action. The amendment would apply to any action impacting the salmon and steelhead populations and resources in state waters. An amendment that mandated an environmental impact statement would eliminate the “threshold question” of whether the action has an adverse environmental impact.[27] Here, the legislature would answer that question affirmatively. Therefore, the only proper determination is that any action impacting salmon or steelhead resources requires the Agency to prepare a detailed environmental impact statement, not an MDNS.
Additionally, the amendment should incorporate the language used by Commissioner Franz. In Commissioner’s Order 202211, Commissioner Franz used the language “commercial finfish.”[28] This amendment would close the loophole. By changing “nonnative” to “commercial” in the state statutes,[29] Cooke could not move forward with its proposal to transition its net pens from nonnative fish to native fish.[30]
Further, the amendment should authorize the Agency to restrict specific species to closed-water systems or recirculating aquatic systems (RAS). RAS do not adversely affect local fish populations because commercial finfish raised in RAS never interact with local fish. If finfish were confined to RAS, there would be both safer food products and a safer marine ecosystem. Importantly, this amendment would not ban aquaculture generally but would encourage sustainable alternatives. In the end, Washington benefits from a better domestic supply of fish, keeping prices low for this important food, and a healthier environment.
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[1] Douglas Frantz & Catherine Collins, Salmon Wars 98 (2022).
[5] Isabella Breda, WA Bans Commercial Net-Pen Fish Farming in State Waters, Seattle Times (Nov. 18, 2022), https://www.seattletimes.com/seattle-news/environment/wa-lands-commissioner-bans-net-pen-fish-farming-in-state-waters.
[6] Wild Fish Conservancy v. Cooke Aquaculture LLC, No. C17-1708-JCC, 2019 WL 6310660, at *1 (W.D. Wash. Nov. 25, 2019) (discussing the order denying defendant’s motion to exclude expert testimony and granting and denying in parts plaintiff’s motion for summary judgment).
[7] Wild Fish Conservancy v. Wash. Dep’t Fish & Wildlife, 502 P.3d 359, 363 (Wash. 2022).
[10] 2018 Wash. Sess. Laws 950 (explaining that the Governor’s reasons for vetoing Section 1 were because he felt it was “unnecessary [for] implement[ing] the bill” and he did “not agree with all the assertations”); see generally 2018 Wash. Sess. Laws 944 (“[M]arine finfish aquaculture in general may pose unacceptable risks not only to Washington’s native salmon populations but also to the broader health of Washington’s marine environment.”).
[11]See Our Sound, Our Salmon, https://www.oursound-oursalmon.org/we-did-it (last visited Mar. 27, 2024); see also Linda V. Mapes, Washington State Senate OKs Phasing Out Atlantic Salmon Net-Pen Farming, Seattle Times (Feb. 8, 2018), https://www.seattletimes.com/seattle-news/environment/washington-state-senate-oks-phasing-out-atlantic-salmon-net-pen-farming.
[12] Wash. Dep’t Fish & Wildlife, 502 P.3d at 363 (emphasis added).
[13]Id. at 364; see also Wash. Dep’t Fish & Wildlife, Justification for the Mitigated Determination of Non-Significance (MDNS) for Wash. Dep’t Fish & Wildlife SEPA 19-056 and for the Approval of Cooke Aquaculture Pacific’s Marine Aquaculture Permit Application (Jan. 21, 2020) [hereinafter Permit Justification], https://wdfw.wa.gov/sites/default/files/2020-01/marine_aquaculture_permit_justification.pdf.
[14] Wash. Dep’t Fish & Wildlife, 502 P.3d at 365.
[16] Wash. Dep’t Nat’l Res., Commissioner Franz Cancels Leases for Remaining Net Pen Salmon Farms in Puget Sound (2022), https://www.dnr.wa.gov/news/commissioner-franz-cancels-leases-remaining-net-pen-salmon-farms-puget-sound.
[17] Wash. Dep’t Nat’l Res., Commissioner Order 202211 (2022) [hereinafter Order 202211], https://www.dnr.wa.gov/publications/em_commissioners_order_net_pens.pdf.
[19] Jamestown S’Klallam Tribe, https://salishfish.net/ (highlighting their partnership with Cooke Aquaculture).
[20] Bellamy Pailthorp, Cooke Aquaculture Files Suit Over Terminated Net Pen Leases in WA, KNKX Pub. Radio (Dec. 14, 2022), https://www.knkx.org/environment/2022-12-14/cooke-aquaculture-files-suit-over-terminated-net-pen-leases-in-wa.
[21] Cliff White, Divergent Outcomes for Cooke, Jamestown S’Klallam Lawsuits Against Washington DNR, SeafoodSource (Sept. 22, 2023), https://www.seafoodsource.com/news/premium/aquaculture/divergent-outcomes-for-cooke-jamestown-s-klallam-lawsuits-against-washington-dnr.
[22]See Northwest Aquaculture Alliance, Washington State’s Commercial Net Pen Ban “Has No Legal Effect,” Court Says; Commissioner’s Order Ruled as “An Internal Policy Directive”—Not a Ban, Perishable News, (Oct. 23, 2023), https://www.perishablenews.com/seafood/washington-states-commercial-net-pen-ban-has-no-legal-effect-court-says-commissioners-order-ruled-as-an-internal-policy-directive-not; see also Chris Chase, Judge Rules Net-Pen Ban in Washington State “Has No Legal Effect”, SeafoodSource (Oct. 23, 2023), https://www.seafoodsource.com/news/premium/aquaculture/judge-rules-net-pen-ban-in-washington-state-has-no-legal-effect.
[23] Breda, supra note 5 (“Net-pen fish farming has already been outlawed in California, Oregon, and Alaska.”).
[27]See Wash. Dep’t Fish & Wildlife, 502 P.3d at 365 (explaining that SEPA allows for a third determination to the “threshold question,” which asks “whether the action will result in ‘probable significant adverse environmental’ impacts”).
In the United States, the Fourth Amendment protects against unreasonable search and seizure. The mainstay test for unauthorized search of government officers comes from Katz v. United States, which claimed that Fourth Amendment protections rested on whether a person showed that they expected privacy, and that their expectation of privacy was reasonable.[1] The takeaway of Katz was that the “Fourth Amendment protects people, not places.”[2] Up until Katz, homes had been absolutely protected: trespass on the home by officers of the law without a warrant was a violation of the Fourth Amendment.[3] In 2001, Kyllo returned to the idea that a home was in some way sacrosanct, citing a litany of decisions that protected homes more strongly than other places.[4]
The idea that the state’s officers cannot just go into a home and search is nothing new, or exceptional to the United States. The sanctity of the home is an ancient concept. Documents from 100 B.C.E.–100 C.E. containing legal codes and reports of cases from Han Dynasty China include an interesting law under the Arresting Statues.[5] The statute stated “Officers are forbidden to enter without an approved reason into huts or houses to arrest people. People may beat and wound intruders in their houses, and the matter is then dealt with according to ‘the Statute on Entering People’s Houses without an Approved Reason.’”[6] Other documents from the same period make similar statements. For example, a commentary on the Chou-li included “[t]hose who, without an approved reason, enter into people’s houses or huts or step onto their carriages or boats, or drag other people to commit legal offense can be resisted and killed, without liability.”[7]
The protection that these statutes offer from officers of the state is astounding for this period and culture. The Han Dynasty succeeded the Qin Dynasty, which was known for its authoritarian laws, and used the same legal system with few changes.[8] The original Kingdom of Qin adopted Legalism as the state school of thought, and used the law to build a governmental system that supported an expansionist, authoritarian state.[9] The legal code that developed was egalitarian: the law applied to everyone, and the punishments doled out to lawbreakers were harsh.[10]
A new concept introduced in this legal code was the crime of aiding and abetting.[11] The populace were broken into groups of five families.[12] If a person within a group of five committed a crime, the other members within their group had to denounce the person to the local magistrates, or be charged as an accomplice, and receive the same punishment.[13] Sentences under Qin Legalism were known as punishments, and while they could include time spent in jail, they often started at forced tattooing and mutilation, before rising to execution.[14]
Despite some reform of the system during the Han Dynasty, the records of legal proceedings mostly involved denunciations of various people.[15] Effectively, the culture of the early Han was the same police state of the Qin.[16] But even with the great importance placed on reporting others to the state officials, the officials themselves were not allowed to enter a home without cause.[17] Further, if they did enter the home, they would be subject to either state punishment, or retributive justice by the home owner.[18] A system created to grow the power of the central state still allowed people the privacy of their homes. It even created accountability for any officer who chose to break these laws.
Much like the true utility of the Fourth Amendment, how well the officials enforced the Statute on Arresting is up for debate.[19] The Qin, and later the Han posted their laws in public places for everyone to read and be aware of every detail of the intensely complex and evolving legal code.[20] While this did not mean universal knowledge, most people of all walks of life had access to not only their responsibilities to denounce any wrong doing, but also their right to protecting their home against unwarranted intrusion.
On one hand, the Qin legal code created an atmosphere where denunciation was the tone of the day. Parents denounced sons for being unfilial, people who served in the house denounced the people they served, and there were always handy neighbors around to denounce one another.[21] In such an atmosphere, giving the people the right to harm or kill officers of the law if they invaded the home might have been seen as a sensible release valve. On the other hand, the policies of the Qin and the Han pushed for an attitude of respectful citizenry in a unified and centralized authoritarian government.[22] It is possible that the state refused to enforce the prohibition against government officers entering people’s homes.
It should also be kept in mind that this was a society which valued military service, growing out of the Warring States period, and had created a promotion system based on the number of heads of enemies of the state that a person could collect.[23] Indeed, many of the denunciations involve crimes regarding the possession of these trophy heads.[24] How free could a person be to defend their rights against someone who might have earned their position by beheading the last person who objected?
Homes deserve special protection. Katz’s privacy test protects us in a whole variety of situations and against technologically advanced searches.[25] However, in an era when we expect our most personal information will be shared, the question of what a reasonable person would believe is private grows narrower and narrower. Respecting the home under trespass is potentially a stronger protection of individual rights. Whatever the detractors of Kyllo wish to say, protecting the home, and giving the right of that protection to the people, is something humans have been doing in law since at least the Legalist reform of the Kingdom of Qin, and probably long before that.
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[1] See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”) (internal citations omitted).
[3] See Kyllo v. United States, 533 U.S. 27, 31 (2001) (discussing historical usage of trespass from English common law to Katz); see also, e.g., McGuire v. United States, 273 U.S. 95, 98 (1927) (discussing the roots of the idea of trespass ab initio coming from English Common Law to its full adoption as a rule in the United States courts) (citing Six Carpenters, 8 Coke 146(a) (1572), then Commonwealth v. Rubin, 165 Mass. 453, 455 (1896)).
[4] Seeid. at 37 (comparing the holding in Dow Chemical where an industrial complex was not granted the same expectation of privacy as a home to Silverman which found intrusion into a home to be a Fourth Amendment violation) (first quoting Dow Chemical v. United States, 476 U.S. 227, 238 (1986); and then quoting Silverman v. United States 365 U.S. 505, 512 (1961)).
[5] Discovered in Chuyen in central Asia during the 1930s, these legal documents were written on strips of bamboo, and bound together, as was common for the time. Bamboo Slips with Writing (Zhujian) in Qin Seal Script (Qinzhuan), YALE UNIV. ART GALLERY, https://artgallery.yale.edu/collections/objects/230048 (last visited Apr. 11, 2024); see also Anthony Hulsewé, Remnants of Han Law (eBook ed. Brill 2022) (1955) (translating the documents discovered in Chuyen, and discussing the culture that they reveal).
[6] See Hulsewé, supra note 5, at 36 (translating the Statutes on Arresting).
[7] See Chun-sun Chang, The Chinese Family in Han Times: Some Review Notes, 1 Early China 65, 67–68 (1975) (reviewing T’ung-tsu Ch’ü , Han Social Structure (Jack L. Dull ed., 1972)) (suggesting that while the book contains excellent sources of research, the inclusion of the various versions of the Statutes on Arresting would provide a more comprehensive view of Han home life).
[8] See Chris Stewart, Episode 24: Xiongnu to the Left of Me, Rebels to the Right, The History of China, at 9:00 (June 2, 2014), https://thehistoryofchina.wordpress.com/2014/06/02/episode-22-xiongnu-to-the-left-of-me-rebels-to-the-right/ (discussing the first Han Emperor’s turn away from Qin legalism, which did relax under his reign, but retained many of the legal codes).
[9] See Chris Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, The History of China, at 13:25, 16:17 (Apr. 9, 2014) https://thehistoryofchina.wordpress.com/2014/04/09/episode-16-qins-reformation-and-ascension/ (describing the sweeping social changes of Legalist scholar Shang Yang’s legal reforms to the Kingdom of Qin, such as the changes to the tax code that encouraged young men to enroll in the military, and have large families, as well as favorable immigration policies, all designed to grow the population and turn the Qin Kingdom into a military machine to conquer the neighboring states of the period).
[10] Seeid. at 15:50 (detailing the unprecedented moment when, acting under the new Qin legal code which abolished the exemption from the law the noble classes had enjoyed throughout the Yellow River Valley, Qin legalists arrested, tried, and punished the Crown Prince of Qin); id. at 15:24 (describing the Qin sentencing form of punishments, including mutilations and torture before death, as “draconian and excessive, even for their time”); but see Katrina C. D. McLeod & Robin D. S. Yates, Forms of Ch’in Law: An Annotated Translation of the Feng-chen Shih, 41 Harv. J. Asiatic Studs. 122, n.27 (1981) (noting there is evidence that the mutilating punishments were widespread though out the preceding periods of the Shang and Zhou kingdoms).
[11] See, e.g., Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, supra note 9, at 15:34 (noting that the crime of aiding and abetting meant any people who did not denounce a person they knew to have committed a crime would be punished with the exact same force as the people who committed the crime); McLeod & Yates, supra note 10, at 118, 159–62 (translating records of legal incidents from before 217 B.C.E, such as the killing of an unborn child during an assault on the mother, someone threatening to poison various people, and illicit extramarital sex, all brought to the authority’s attention by interrelated people denouncing their fellow citizens).
[12] See Robin D. S. Yates, Social Status in the Ch’in: Evidence from the Yün-meng Legal Documents. Part One: Commoners, 47 Harv. J. Asiatic Studs. 197, 218, 231 (1987) (discussing the concept of the five-family unit as asocial and legal unit for Qin commoners); McLeod & Yates, supra note 10, at 134 n.66 (discussing the separation of levels of liability based on the “five-man groups” system).
[13] Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, supra note 9, at 15:40; Yates, supra note 12, at 218 (reviewing the statutes on registration where if a young man does not register for state service in labor or the military, they are fined two sets of armor, the village elder and the leader of their five family group will be fined one set of armor if they do not report the non-registrant, the five family members will be fined one shield per household, and all will be exiled).
[14] See id. at 20:12 (describing the highest level of punishment in the Qin legal system, the Extermination of the Nine Familial Relations, noting that they were rarely used as the threat of their brutality were considered a deterrence to potential criminals, but were considered in the sentencing of Shang Yang himself, once the crown prince who had faced the legal system he invented ascended the throne and put him on trial for treason).
[15] See, e.g., Charles Sanft, Law and Communication in Qin and Western Han, 53 J. Econ. & Soc. Hist. Orient 679, 692 (2010) (“The Shangjun shu propounds denunciation as part of ordinary legal practice, and such a system was in place during Qin and Han times.”).
[16] See Stewart, Episode 24: Xiongnu to the Left of Me, Rebels to the Right, supra note 8, at 9:05.
This is not to say that the Han legal system was a total break from the Qin legal code. On the contrary, the vast majority of Han law, especially in the early dynasty, was lifted directly from the preceding dynasty, including the use of torture, summary executions, and execution via torture. Rather, it was pretty much just the Qin laws already on the books, but with some of the codes now relaxed and some of the penalties reduced. A kind of Qin Lite, now with 25% fewer executions. Id.
[19] See, e.g., David H. Gans, “We Do Not Want to Be Hunted”: The Right to Be Secure and Our Constitutional Story of Race and Policing, 11 Columb. J. Race & L. 239, 337 (2021) (arguing that Fourth Amendment analysis must be sensitive to race, as in the current form, the protections of the Fourth Amendment are unenforceable against officers who make racially motivated searches).
[20] See Sanft, supra note 15, at 692 (arguing the Qin practice of posting laws publicly, reading them aloud in public spaces, and creating broad access to the legal system for the population intentionally communicated the vital civic role that law played above all else).
[21] See, e.g., McLeod & Yates, supra note 11, at 141, 147, 150.
[22] See Chris Stewart, Episode 21: Qin 2: There Can Only Be One, The History of China at 12:50 (May 8, 2014), https://thehistoryofchina.wordpress.com/2014/05/08/episode-19-one-nation-under-qin/ (discussing how the first emperor of the Qin Dynasty implemented Qin law across all China); id. (“Unity was the watchword of the era. Unity of law. Unity of government. Unity of the people.”).
[23] See Xiran Jay Zhao, The First Emperor of China’s Ridiculously Dramatic Life, YouTube at 10:40, https://www.youtube.com/watch?v=8n1OU9p3fhM (describing the 20 ranks of prestige that the Kingdom of Qin created for its citizens during the early reforms geared toward military strength).
[24] See McLeod & Yates, supra note 11, at 144–46 (detailing two separate instances of beheaded trophy-related crimes: the attempted theft of one person’s trophy head, and an attempt to claim the head of a person who might not have been an enemy combatant).
[25] The Katz test itself was created in response to the technological advances in listening devices available to the police in the 1970s. Katz v. United States, 389 U.S. 347, 362 (1967) (“[The concept of trespass’] limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.”) (emphasis added).
In the past few decades, presidents have used the power granted them under the Antiquities Act to protect vast areas of ocean as national monuments. This started with President Clinton, who reserved 30,843 acres of coral reefs across two monuments.[1] President Bush took this idea a step further, proclaiming three massive marine national monuments in the western Pacific Ocean spanning hundreds of thousands of square miles.[2] President Obama didn’t slow down—he expanded this “marine national monument” system by hundreds of thousands more square miles.[3]
These presidents were using a 1906 land management law designed for protecting archaeological sites in the American Southwest in a brand new way.[4] The Antiquities Act had long been a key tool for presidents seeking to protect land, largely because of its simplicity.[5] In two sentences, the law authorizes the President to set aside federally controlled lands for protection as national monuments via proclamation.[6] There are only two restrictions on this power: national monuments must be centered around “objects of historic or scientific interest” and limited to the “smallest area compatible with the proper care and management” of the protected objects.[7]
Presidents Clinton, Bush, and Obama all created marine national monuments by stating they were centered around ecosystems as objects of scientific interest and were of the smallest area compatible with protecting those ecosystems.[8] And for years, opponents of these monuments grumbled and fought marine monuments politically. But it was not until President Obama’s proclamation of the Northeast Canyons and Seamounts National Monument that anyone made a legal challenge.[9]
A fishing association (the Massachusetts Lobstermen’s Association) claimed that the Northeast Canyons and Seamounts Marine National Monument did not fit the requirements of the Antiquities Act.[10] They claimed President Obama had abused his discretion in proclaiming the monument.[11] The government moved to dismiss these claims as failing to allege sufficient facts to support the claims.[12] Because the Lobstermen’s Association didn’t provide any scientific basis to back up their claims, only stating that the monument was much larger than the canyons and seamounts the monument was meant to protect, the District Court granted the motion.[13] On appeal, the Circuit Court for the D.C. Circuit affirmed this decision.[14]
The plaintiffs attempted to appeal further, all the way to the Supreme Court.[15] The Court denied certiorari, but Chief Justice Roberts issued a special statement inviting similar challenges and calling into doubt, in at least his opinion, the legality of large-scale marine monuments.[16] Roberts went so far as to invite future challenges under the Antiquities Act, so long as they alleged better facts.[17]
But how could the Court even approach an Antiquities Act challenge? The National Environmental Policy Act (NEPA) doesn’t apply.[18] The Administrative Procedure Act doesn’t provide for judicial review of presidential actions, only agency ones.[19] The district court in Mass. Lobstermen’s Ass’n indicated a right to review of presidential actions as ultra vires, or beyond the powers granted by statute or the Constitution.[20] But there is no guarantee that this was a correct holding. Some scholars have gone so far as to argue that, under current Supreme Court precedent, there is no room for meaningful review of presidential actions under the Antiquities Act.[21] Ultimately, if the Court chooses to pursue the question, it will be for the Court to decide.
The other question, then, is should the Court consider reviewing Antiquities Act proclamations? My answer is no. Marine national monuments have proven to be an incredibly effective conservation tool.[22] Congress seems to have accepted the practice, and even if it does not, it should be the one to restrict the powers it granted—not courts.[23]
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[1] Tyler C. Costello, Are Marine National Monuments “Situated on Lands Owned or Controlled by the Government of the United States?’, 24 Ocean & Coastal L. J. 219, 235 (2019).
[3] Proclamation No. 9478, 81 Fed. Reg. 60,227, 60,227 (Aug. 26, 2016) (Expanding the Papahānaumokuākea Marine National Monument) (expanding an existing marine national monument in the Northwestern Hawaiian Island by about 440,000 square miles); Proclamation No. 9496, 81 Fed. Reg. 65,153 (Sept. 15, 2016) (Establishment of the Northeast Canyons and Seamounts Marine National Monument) (creating a new marine national monument in the Atlantic Ocean).
[4] Benjamin Hayes, Cong. Rsch. Serv., R45718, The Antiquities Act: History, Current Litigation, and Considerations for the 116th Congress 1 (2019).
[5] Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 475 (2003).
[8] Tyler C. Costello, Are Marine National Monuments “Situated on Lands Owned or Controlled by the Government of the United States?’, 24 Ocean & Coastal L. J. 219, 236 (2019).
[9]See generally Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d 535 (D.C. Cir. 2019).
[10] Mass. Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48, 55 (Dist. D.C. 2018).
[18] Joseph Brigget, An Ocean of Executive Authority: Courts Should Limit the President’s Antiquities Act Power to Designate Monuments in the Outer Continental Shelf, 22 Tul. Env’l L.J. 403, 411–12 (2009) (citing State of Alaska v. Carter, 462 F. Supp. 1155, 1160 (D. Alaska 1978)).
[19] Kevin M. Stack, The Reviewability of the President’s Statutory Powers, 62 Vand. L. Rev. 1171, 1172 (2009) (citing Franklin v. Massachusetts, 505 U.S. 788, 801 (1992)).
[20] Mass. Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48, 53 (Dist. D.C. 2018).
[21] Lance F. Sorenson, The Hybrid Nature of the Property Clause: Implications for Judicial Review of National Monument Reductions, 21 J. Const. L. 761, 804–08 (2019).
[22] Margaret Cooney et al., How Marine Protected Areas Help Fisheries and Ocean Ecosystems, CAP20 (June 3, 2019) https://www.americanprogress.org/article/marine-protected-areas-help-fisheries-ocean-ecosystems/.
Fossil fuels as an energy source powered considerable socioeconomic development, which created environmental challenges that need a global solution.[1] Renewable energy provides a bridge to supply increased power demands and reduce humans’ environmental impact.[2] However, renewables present their own environmental challenges and cannot meet current energy demand.[3] Yet, the International Energy Agency predicts that renewable energy will supply 95% of the increase in global demand between 2023 and 2025.[4] To prevent renewable energy from perpetuating environmental damage, however, policymakers must develop sustainable and diverse energy policies.
Photovoltaic solar relies on panels that have limited lifespans. One hundred thousand tons of solar panel waste sit in United States landfills today.[5] Projections indicate that the United States will have one million tons of solar panel waste by 2030and 22 billion tons of solar waste by 2050.[6] Disposing of panels in landfills wastes valuable materials[7] and can allow harmful substances to leach from the panels to surrounding environments.[8] But panels can be recycled.[9] Accordingly, legislation that requires panels to contain minimum recycled content offers an attractive solution to establish a sustainable solar energy industry.
Yet, improvements should not stop with solar panels. As the world shifts from fossil fuels, policymakers need to encourage development and implementation of other clean energy sources. For example, nuclear fusion could produce electricity without carbon emissions.[10] Nuclear fusion powers the sun and other stars.[11] In 2021, scientists in California reignited interest in nuclear fusion power when they produced more energy from a nuclear fusion reaction than they used to create the reaction.[12] Nuclear fusion’s energy-generating potential warrants further government investment and could factor into future energy policies.[13]
Additionally, the United States increasingly relies on existing nuclear technology to further clean energy goals.[14] Nuclear fission offers the second largest source of low-carbon electricity today.[15] Nuclear technology could meet energy needs while waiting for more and better renewables.[16] Nuclear energy helps prevent over 500 million tons of carbon dioxide from entering the atmosphere annually.[17] To continue reaping the benefits of nuclear energy, United States utilities will need to extend the lifespan of existing reactors, implement small modular reactors, and continue to invest in technological development, like nuclear fission.[18]
[2] Renewable energy sources include solar photovoltaic, concentrated solar, geothermal, biomass, hydropower, and marine and hydrokinetic power. See generally Samuel Koebrich et al., 2018 Renewable Energy Data Book 4 (Mike Meshek & Gian Porro eds., 2020); see also Merrian C. Fuller et al., Toward a Low-Carbon Economy: Municipal Financing for Energy Efficiency and Solar Power, 51 Env’t. Mag. 22, 24 (2009).
[3] Intl. Energy Agency, Nuclear Power in a Clean Energy System 8 (2019), https://iea.blob.core.windows.net/assets/ad5a93ce-3a7f-461d-a441-8a05b7601887/Nuclear_Power_in_a_Clean_Energy_System.pdf.
[4] Intl. Energy Agency, Electricity Market Report 2023 6.
[5] Yan Xu et al., Global Status of Recycling Waste Solar Panels: A Review, 75 Waste Mgmt. 450, 453 (2018).
[6] Stephanie Weckend, et al., End-of-Life Management: Solar Photovoltaic Panels, Intl. Renewable Energy Agency 25, 34 (2016); see also Atalay Atasu, et al., The Dark Side of Solar Power, Harvard Business Review, (June 18, 2021), https://hbr.org/2021/06/the-dark-side-of-solar-power (explaining that solar panel waste might exceed current projections if consumers opt for early replacement).
[7] Hernandez-Lopez Daniela-Abigail et al., Does Recycling Solar Panels Make This Renewable Resource Sustainable? Evidence Supported by Environmental, Economic, and Social Dimensions, 77 Sustainable Cities & Soc’y 103539, 39 (2022) (explaining that recycling panels would enable a 66% reduction in the total materials and energy consumed to develop solar energy); Rachel Snead, Washington State Tackles Solar Panel Waste, the Dirty Side of Clean Tech, Envtl. And Energy Study Institute (Feb 24, 2021), https://www.eesi.org/articles/view/washington-state-tackles-solar-panel-waste-the-dirty-side-of-clean-tech.
[8] Michael Shellenberger, If Solar Panels Are So Clean, Why Do They Produce So Much Toxic Waste?, Forbes (May 23, 2018), https://www.forbes.com/sites/michaelshellenberger/2018/05/23/if-solar-panels-are-so-clean-why-do-they-produce-so-much-toxic-waste/#3e355219121c (explaining that solar panels contain toxic materials that can become contaminate environments when they leech).
[9]See generally C.C. Farrell et al., Technical Challenges and Opportunities in Realizing a Circular Economy for Waste Photovoltaic Modules, 128 Renew. Sustain. Energy Rev. 12 (2020) (explaining that recycling solar panels prevents waste and promotes sustainability).
[10] U.S. Gov. Accountability Office, Fusion Energy, Potentially Transformative Technology Still Faces Fundamental Challenges (Mar. 30, 2023), https://www.gao.gov/products/gao-23-105813.
[12] Daniel Cleary, With Historic Explosion, A Long-Sought Fusion Breakthrough, Sci. News (Dec. 13, 2022), https://www.science.org/content/article/historic-explosion-long-sought-fusion-breakthrough.
[13] Pearle M. Lipinski, Considering the Price-Anderson Act’s Federal Public Liability Action Provisions in the Future of Nuclear Fusion Power, 22 Colo. Tech. L. J. 1, 16–18 (2023); David A. Repka & Tyson R. Smith, Deep Decarbonization and Nuclear Energy, 48 ELR 10244, 10248 (2018).
[14]See, e.g., Energy Act of 2020, Pub. L. 116-260 Div. Z §§ 2001-2008, 116th Cong. (2021) (offering Congressional support for billions of dollars for programs that include advanced fuel development, demonstration projects for advanced nuclear reactors, and development of fusion power plants); Nuclear Energy Innovation and Modernization Act, Pub. L. 115-439, 115th Cong. (2019) (calling for developments that would “allow innovation and commercialization of advanced nuclear reactors”); Dep’t of Energy, DOE Establishes $6 Billion Program to Preserve America’s Clean Nuclear Energy Infrastructure (Feb. 11, 2022) (stating that nuclear power plants are essential to achieving the United States’ clean energy goals).
[15] Intl. Renewable Energy Agency, supra note 3, at 8.
[16]Id. at 80 (explaining that renewable energy has failed to lower overall carbon emissions because it often replaces nuclear generation); Ahab Abdel-Aziz, Reimagining the Future of Nuclear Power Generation, 69 Nat. Res. & Energy L. Inst. 3-1, 1, 2, 4 (2023) (explaining that nuclear can meet energy demands that grow with global populations and electrification).
[17] Intl. Energy Agency, supra note 3, at 20; Dept. Of Energy, Three Reasons Why Nuclear Is Clean and Sustainable (Mar. 31, 2021); see also Mass. Inst. Tech., The Future of Nuclear Energy in a Carbon-Constrained World, at xi (2018) (explaining the cost effectiveness of using nuclear).
The first successful student-edited law review was founded in 1886 at Harvard Law School by future Supreme Court Justice Louis D. Brandeis.[1] In the beginning, the Harvard Law Review was called the Langdell Society, christened after the man who popularized the case method for legal education.[2] From there on, dozens of student-edited law reviews have followed in the Harvard Law Review’s footsteps, editing and publishing legal scholarship.[3]
Student-edited law reviews have contributed significantly to the profession.[4] True to their mission, student-edited law reviews advance legal thought and discussion through student initiative, responsibility, and autonomy.[5] The enterprise of student-edited law reviews pervades through one vital crux: they are student-controlled.[6] From selecting articles, daily operating, editing, and more, student-edited law reviews present an unparalleled learning experience for law students.[7]
Following their heyday, the gradual shift in legal scholarship in the 1970s to 1990s caused student-edited law reviews to fall out of favor with jurists.[8] Law review articles simultaneously began disappearing from judicial citations.[9] The profession scrambled, searching for what caused this scholarly snag and what solutions could redress it.[10] Naturally, the “student-edited” part of the student-edited law review was targeted with polemic critiques.[11]
Well-intentioned faculty have often tried to seize the reigns from students. However, attempts to replace student-run law reviews with faculty-run ones have been rebuffed with routine success.[12] Noticeably, no faculty journal is ranked higher than 65th in terms of impact on the Washington and Lee Journal Rankings.[13] Out of the top 100 law reviews for impact, only 2 faculty journals even place.[14] Beyond student rebukes and rankings, faculty-run law reviews fail to address the problem facing law reviews generally, and in fact threaten to exacerbate it.
The problem is the decreasing persuasive weight of citing law review articles.[15] Law review articles mean less and less to practitioners because legal scholarship has become increasingly niche.[16] However, faculty-run law reviews tend to give prestige undue weight and tend to twist law reviews into esoteric echo chambers of niche legal academia.[17] The natural result is a feedback loop: faculty law reviews publishing more enigmatic articles, the said articles are cited less, leading legal academia further away from its practicing counterparts.
Faculty-run law reviews fail to replace student-run ones in two major ways. First, they are plainly contrary to the purpose of student-run law reviews—for students to learn.[18] The article selection process alone exposes student editors to topics they would not otherwise learn about. On a practical basis, the ingenuity of a student-edited law review is it requires hands-on learning, peer-to-peer instruction, and more responsibility than any seminar-style class.[19] Put simply, faculty-run law reviews remove the “sink or swim” motivation student-edited law reviews provide.[20] If this motivation is not present in a student editor’s law review (for example, if it is faculty-run) potential employers are deprived of a reliable way to distinguish candidates that have cut their teeth in these kinds of environments.[21]
Second, faculty-run law reviews are incapable of performing the gatekeeping function that students do. Student editors act as gatekeepers, often aggravating academics.[22] Their unfamiliarity with the topics makes student editors powerful filters for stuffy arcane legal writing. If the article is not clear enough for them to understand, as people with some legal exposure and experience, it is too complex to publish. The law is already a complex beast, and student editors ensure ordinary people do not need formal legal education to make head or tail of it.[23] If faculty were able to select, edit, and unilaterally publish articles, it would only further entrench the institution of legal thought in the trappings of academic elitism.
There are alternative answers to the problem facing law reviews generally today.[24] While it is clear faculty-run law reviews are one answer, it is not the correct one. To be clear, faculty involvement is still beneficial in the student-run law review. Because the legal profession is self-regulated, faculty have an ethical obligation to help maintain the minimum standards by guiding and mentoring fledgling lawyers who may be moonlighting as student editors.[25] In fact, faculty may go beyond and encourage student editors to strive for excellence. However, these benefits, and many more, may be bestowed without eroding the autonomy and purposes of the student-run law review.
—
[1] Erwin N. Griswold, The Harvard Law Review—Glimpses of Its History as Seen by an Aficionado, Harv. L. Rev.: Centennial Album (1987), available at https://harvardlawreview.org/print/no-volume/glimpses-of-its-history-as-seen-by-an-aficionado/.
[2] Lindsay Rogers, The Centennial History of the Harvard Law School 1817–1917, 6 Va. L. Rev. 70 (1919).
[3]See Thomas W. Merrill, The Digital Revolution and the Future of Law Reviews, 99 Marq. L. Rev. 1101 (2016) (“As you may know, Harvard established the first student-edited law review in 1887. Once the Harvard experiment was seen to be a success, other schools followed suit.”).
[4] For example, The Bluebook: A Uniform System of Citation is a descendant of the “Instructions for Editorial Work” booklet created by Harvard Law Review student editors for its new members. Griswold, supra note 1. Now the Bluebook is used pervasively throughout the legal profession beyond law reviews. Id.
[5]See Griswold, supra note 1 (“The fact that the [Harvard Law]Review has been operated with student initiative and responsibility has contributed greatly to the education it provides its members.”).
[6]Id.; see also James W. Harper, Why Student-Run Law Reviews, 82 Mich. L. Rev. 1261, 1262–71 (1998) (defending student-run law reviews not only for the learning opportunity they present, but for their ability to “restrain[] legal scholarship to something ordinary people can understand”).
[7] James W. Harper, Why Student-Run Law Reviews, 82 Mich. L. Rev. 1261, 1271 (1998).
[8] Most notably would be Chief Justice Roberts, who commented on the change, stating:
There is a great disconnect between the academy and the profession. Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.
John Roberts, A Conversation with Chief Justice Roberts, C-SPAN (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts, at 30:42.
This attitude shift can be credited to the changes in legal scholarship from doctrinal to scholarship focused on “interdisciplinary, theoretical, nondoctrinal” as noted by Judge Posner, a common critic of the student-edited law review. Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, at 1133.
[9] Brian T. Detweiler, May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals, 39 Legal Ref. Servs. Q. 87 (2020) (noting the downward trend of judicial citations decreasing 70% since the mid-1970s).
[10] Harper, supra note 7, at 1262 (“The literature on student-run law reviews is almost universally critical.”).
[12] Harper, supra note 7, at 1271 (explaining one attempt by George Mason University Law School to replace its student-run law review in favor of two faculty-led ones failed after students announced they would simply “run their own, ‘underground’ law review”).
[13]2022 W&L Law Journal Rankings, WASHINGTON and LEE SCHOOL OF LAW, https://managementtools4.wlu.edu/LawJournals/Default.aspx (last visited Mar. 31, 2024) (ranking the peer-edited (faculty-led) journal Tax Law Review as 65th overall in terms of impact).
[14] Those two journals being the Tax Law Review and the Cato Supreme Court Review. Id.
[15] Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, at 1133.
[18]See, e.g., Griswold, supra note 1 (noting the first issue of Harvard Law Review stated its primary purpose was “to set forth the work done in the school with which we are connected,” but the editors of course “hoped” the “Review would be serviceable to the profession at large”).
[19] Given the striking veracity of Harper’s words, I must cite them in full:
If a faculty advisor took an active interest in the operations of the law review, the articles it selects, and the editing it does to them, this would stamp out about half the learning students get from law review. . . . Conducting a class that addresses the practical problems of law review publishing, and holding the hands of post-graduate students through all the law review publishing stages, is a little too parental and a little too likely to strangle “real” learning.
Harper, supra note 7, at 1290. As someone who has undergone this learning firsthand without faculty handholding, I speculate that being entrusted wholly with the publication of our volume is the primary motivating factor for learning. See, e.g., Griswold, supra note 1 (noting the first issue of Harvard Law Review stated its purpose was “to set forth the work done in the school with which we are connected,” but the editors of course “hoped” the “Review would be serviceable to the profession at large”).
[21]Id. On a pragmatic level, navigating real-world conflicts and practicing management develops a student editor’s practical skills substantially more than any lecture-style course ever could. Id.
[22]See Neil Hamilton, The Law Faculty’s Ethical Failures Regarding Student-Edited Law Reviews, 23 No. 4 Prof. L. 34 (2016) (pontificating on the topic of student-edited law reviews as a whole and why faculty must act to reign in their “apprentices”).
[24] For example, the article-selection process could be made “double blind,” ensuring that the reviewing editor nor the author know the other’s name or school affiliation. See Hamilton, supra note 22. Perhaps there could be a return to more doctrinal scholarship. Or perhaps there are not any solutions at all. Perhaps this is the result of judges and justices having access to precedential authority thanks to research engines like Westlaw and LexisNexis, and they no longer need to rely on secondary nonbinding authorities like law review articles. Thomas W. Merrill, The Digital Revolution and the Future of Law Reviews, 99 Marq. L. Rev. 1101 (2016).
You are at the grocery store, going about your everyday shopping routine, when suddenly you encounter a food label. You look at the label and try to obtain the information. However, you feel confused about what the label means and whether it is accurate or not. You are also wondering why there is no information regarding how that food product impacts the environment. If you relate to this grocery store experience, then climate labels are a helpful solution.
The government agencies responsible for food labeling in the United States are the Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA).[1] The USDA regulates labeling for meat and poultry products, whereas the FDA is responsible for all other food products.[2]
There are a wide variety of different types of food labels. “Eco-labels” are one form of labeling that educates consumers on how a particular food item impacts the environment.[3] Some examples of eco-labeling include using the terms “organic” or “sustainable” on food products.[4] One rare type of eco-label used in the United States, however, relates to climate labels.[5]
Climate labels specifically represent an individual food item’s carbon footprint and environmental impact score based on how its greenhouse gas emissions effect climate change.[6] In 2007, two Swedish companies, KRAV and Swedish Seal of Quality, first introduced climate labels.[7] In 2022, Denmark also proposed its own form of climate labeling on food products.[8] Currently, the FDA and USDA do not mandate climate labels on food products. It is crucial that the United States starts utilizing climate labels because it will help combat climate change, which ultimately impacts the whole world.[9]
In the United States, food production generates about 68% of greenhouse gas emissions.[10] Each individual food item releases a certain amount of carbon into the atmosphere, some more than others.[11] For instance, meat products generate about 60% greenhouse gas emissions and beef specifically emits the most amount of greenhouse gas in the food industry.[12] This is because cows eat so much grass that it emits harmful greenhouse gasses as a result.[13] In contrast, plant-based food products such as nuts and vegetables have a lower overall carbon footprint.[14]
Food products emit varying amounts of carbon, therefore some are considered more carbon-neutral while others have a much higher carbon footprint.[15] Consequently, it is important for consumers to understand which foods directly impact climate change by analyzing its carbon footprint and environmental impact score through climate labels.[16] Climate labels can help reduce climate change because consumers will be conscious and aware about whether a food product is harming the environment.[17] Furthermore, climate labels can help consumers make more informed decisions when purchasing food.[18] If climate labels are placed on every food item, then people can efficiently compare and contrast which products they want to buy based on the environmental impact that the climate label reveals.[19]
The Fair Packaging and Labeling Act (FPLA) mandates that food labeling is fair and accurate.[20] The FPLA requires the FDA to ensure that food labeling is not deceiving to consumers.[21] However, the current lack of climate labels misleads consumers because food labels do not provide enough essential environmental information. From an environmental perspective, a food’s carbon footprint and environmental impact score is an important component so it should be displayed on a food label because it accurately represents the individual food item.
The FDA and USDA can promulgate a new climate label rule within the FDA’s and USDA’s existing regulations because of its Administrative Procedure Act rulemaking powers.[22] The FDA and USDA most likely would follow an informal rulemaking process and conduct a public notice and comment period in order to promulgate a new climate label regulation.[23] The climate label regulation should appear in the FDA’s food labeling regulations, the USDA’s Federal Meat Inspection Act, and the USDA’s Poultry Products Inspection Act.[24]
The Federal Trade Commission’s (FTC) “Green Guides” is a set of guidelines for manufacturers to consider when making “environmental claims” on their products.[25] The Green Guides is not the best model for proposing mandatory climate labels, however, because it is not binding law.[26] In contrast, climate labeling should be a mandatory regulation because it is most effective in reducing climate change if it serves as a uniform labeling practice throughout the United States.
In addition, climate labels on food products can help the USDA and Environmental Protection Agency (EPA) in their goal to reduce food waste in half by the year 2030.[27] About 98% of food waste releases greenhouse gases and significantly impacts climate change.[28] In 2016, each individual in the United States contributed about “328 pounds of food waste.”[29] Therefore, the USDA and EPA made it their mission to cut this amount of food waste in half.[30] By reducing food waste, it will also reduce greenhouse gas emissions, and ultimately lower the harmful impacts of climate change.[31] Climate labels can also help reduce food waste because consumers will be more aware of which foods harm the environment and ensure that those foods do not get thrown out if unconsumed.[32]
Ultimately, consumers care about how food impacts the environment and want the most accurate information.[33] Therefore, mandating climate labels on food products in the United States is important to educate society on environmental impact information and reduce climate change.[34]
—
[1]Regulation of Advertising and Labeling: Conditions of Private Information Supply, Econ. Rsch. Serv. U.S. Dep’t of Agric., 11, 11 https://www.ers.usda.gov/webdocs/publications/41905/51665_ah715c.pdf?v=0#:~:. (last visited Mar. 27, 2024).
[3] Seth Gitner, Food Labels as a Method to Combat Climate Change, Geo. Env’t. L. Rev. Online 1,1 (March 5, 2017).
[4] Jason J. Czarnezki, The Future of Food Eco-Labeling: Organic, Carbon Footprint, and Environmental Life-Cycle Analysis, 30 Stan. Env’t. L.J. 3, 6–7 (2011); Gitner, supra note 3.
[5] Jeff Gelski, Under 50% Aware of Carbon-Neutral Labels, Food Bus. News, (Aug. 8, 2022), https://www.foodbusinessnews.net/articles/21942-under-50-aware-of-carbon-neutral-labels.
[6]See, e.g., Oatly Introduces Climate Footprint Labeling in North America; Launches Reformulated Oatgurt Line, OATLY, (Jan. 21, 2023), https://investors.oatly.com/news-releases/news-release-details/oatly-introduces-climate-footprint-labeling-north-america/ (describing Oatly’s climate footprint labels that display the yogurt’s calculated carbon emission amount); see, e.g., Gavin Haines, Carbon Labelling for Food and Drink Products is Coming – Will it Make a Difference?, Positive.News, (Sep. 28, 2021), https://www.positive.news/environment/food/carbon-labelling-for-food-and-drink-products-is-coming-will-it-make-a-difference/ (describing how food products are labeled with a letter and color-coded grade, which is determined by how its greenhouse gas emissions impact the environment).
[8]See Marissa Sheldon, Denmark to Become First Country to Develop Climate Label for Food, HUNTER COLL. N.Y.C. POL’Y CTR., (May 3, 2022), https://www.nycfoodpolicy.org/food-policy-snapshot-denmark-climate-label/ (“The Danish Ministry of Food, Agriculture, and Fisheries has announced that it will create a state-controlled climate label for food that promotes climate-friendly food production.”); Flora Southey, Denmark ‘First Country in the World’ to Develop its Own Climate Label for Food, Food Navigator Eur., (Apr. 19, 2022) https://www.foodnavigator.com/Article/2022/04/19/denmark-first-country-in-the-world-to-develop-its-own-climate-label-for-food.
[9]See Michael Vandenbergh et al., How Carbon Labels Can Aid in the Fight Against Climate Change, VANDERBILT UNIV., (Jan. 27, 2022), https://news.vanderbilt.edu/2022/01/27/how-carbon-labels-can-aid-in-the-fight-against-climate-change/ (“Carbon labels are an important, feasible way to reduce carbon emissions, and these types of feasible options are more important than ever given the combination of the growing threat of climate change and the inability of the international and national processes to make sufficient progress.”).
[11] Hannah Ritchie, You Want to Reduce the Carbon Footprint of Your Food? Focus on What You Eat, Not Whether Your Food is Local, Our World in Data, (Jan. 24, 2020), https://ourworldindata.org/food-choice-vs-eating-local.
[12] Martina Igini, Climate Labels on Food Can Change Eating Habits for the Better: Study, EARTH.ORG, (Dec. 29, 2022), https://earth.org/climate-labels/; Food and Climate Change: Healthy Diets for a Healthier Planet, United Nations, https://www.un.org/en/climatechange/science/climate-issues/food (last visited Mar. 27, 2024).
[13] Food and Climate Change: Healthy Diets for a Healthier Planet, supra note 12.
[18]See, e.g., Charlotte Pointing, What Are Climate Labels? And Can They Really Change Our Food Habits?, VegNews, (Mar. 30, 2023), https://vegnews.com/vegan-news/climate-labels-change-food-habits (“The researchers found that 84 percent of people went for vegetarian or chicken over beef when presented with the climate-labeled version of the menu.”).
[21]Fair Packaging and Labeling Act: Regulations Under Section 4 of the Fair Packaging and Labeling Act, FED. TRADE COMM’N, https://www.ftc.gov/legal-library/browse/rules/fair-packaging-labeling-act-regulations-under-section-4-fair-packaging-labeling-act (last visited Mar. 27, 2024).
[22]A Guide to the Rulemaking Process, The Off. of the Fed. Reg. 1, 2; FDA Rules and Regulations, U.S. FOOD & DRUG ADMIN., (June 1, 2020), https://www.fda.gov/regulatory-information/fda-rules-and-regulations; Rulemaking, Agric. Mktg. Serv. U.S. Dep’t Agric., https://www.ams.usda.gov/rules-regulations/rulemaking (last visited Mar. 28, 2024).
[23]FDA Rules and Regulations, supra note 22; Rulemaking, supra note 22.
[26] Roscoe B. Starek, III, A Brief Review of the FTC’s Environmental and Food Advertising Enforcement Programs, FED. TRADE COMM’N, (Oct. 13, 1995), https://www.ftc.gov/news-events/news/speeches/brief-review-ftcs-environmental-food-advertising-enforcement-programs.
[27]See United States 2030 Food Loss and Waste Reduction Goal, U.S. Env’t Prot. Agency, (last updated Feb. 21, 2024), https://www.epa.gov/sustainable-management-food/united-states-2030-food-loss-and-waste-reduction-goal#goal.
[28] Bonnie L. Smith, Heat Up Those Leftovers, Not the Planet: How Combatting Food Waste Can Affect Climate Change, 18 Vt. J. Env’t. L. 648, 650 (2017).
[29]United States 2030 Food Loss and Waste Reduction Goal, supra note 27.
In the summer of 2023, the Bureau of Land Management (BLM) proposed a rule to increase federal bonding rates for onshore oil and gas wells.[1] This rule would seemingly adjust blanket bonding requirements and further eliminate the ability to acquire nationwide bond coverage for oil and gas wells on federal lands.[2] These rules and regulations may seem insignificant to the untrained eye, but they dramatically impact the ability to clean up harmful spills caused by oil and gas wells.
The procurement of natural gas wells has increased significantly in recent years, with many energy companies purchasing orphaned and abandoned natural gas wells. This profit comes at a time when carbon dioxide emissions create a climate crisis to rival the more significant issues of our generation. Natural gas, which burns clean, seemingly solves this issue, but what is not stated is the impact methane emissions have on global warming. Methane which possesses a warming potential 84 times that of Carbon Dioxide over a 20-year period is just the beginning.[3] What often results are natural gas wells that have been abandoned, leaking into their surrounding environment.[4] This creates billions in potential cleanup costs around the United States and the required financial assurances only amount to fractions of the cost.[5]
To remedy this issue both federal and state governments require proof of bond coverage: money set aside in the case of an environmental accident.[6] However, federal blanket bonding rates are caught in time as companies can acquire a nationwide bond for $100,000 that can cover every oil and gas lease within their operation.[7] BLM has not adjusted these rates for inflation since 1951,[8] and they pale in comparison to state bonding requirements.[9] This prompted BLM to act. Last year BLM released a proposed rule that would eliminate nationwide blanket bonding and raise statewide blanket bonds from $25,000 to $500,000 on federal lands.[10]
It is not clear why these rules haven’t seen updates, but reports suggest that BLM officials had no desire for updating the bonding requirements due to fears that energy companies would struggle paying higher bond costs.[11] Nevertheless, BLM has now proposed a rule which it believes falls within its statutory discretion from the Federal Land Policy and Management Act, the Mineral Leasing Act, and the recently enacted Inflation Reduction Act.[12] The discretion given within these statutes directs BLM to manage federal lands with the principle of multiple use and sustained yield.[13] Or in other words, BLM must manage the lands to preserve a balanced use of the land that considers both long-term and short-term needs and desires.[14]
This proposed rule is not perfect, but it is a step in the right direction. The practice of blanket bonding should end, and the proposed rule does well to end this practice nationally.[15] However, BLM still allows statewide bonds, and despite increasing bond minimums there would still exist a significant disparity of funds available for clean-up costs.[16] Financial assurances should be completed on a case-by-case basis where the oil or gas well is evaluated on its individual risk to the surrounding environment. States are already doing this with oil and gas drilling on state specific land and coal mines use this process.[17] Of course, it is often that fully abandoned oil and gas wells are the most dangerous, a common occurrence when an energy company declares bankruptcy. Often state sponsored taxes and reclamation funds are the only options to plug these wells.[18] This does not exist on the federal level, and BLM must include this provision in its proposed rule. Further, BLM has authority to seek fees from oil and gas operators that provide more financial assurances for plugging oil and gas wells under the Energy Policy Act of 2005.[19] This should look like the establishment of a tax on oil and gas wells, where the revenue generated returns directly to the conservation of unplugged oil and gas wells’ surrounding environment.[20]
BLM’s approval of blanket bonding has created a custom that encourages energy companies to abandon oil and gas wells causing pollution. The propensity of greenhouse gas emissions to warm our planet among other public pressures have caused BLM to adjust its current rule on blanket bonding.[21] However, this proposed rule does not go far enough as energy companies can easily sidestep well plugging obligations and still provide financial assurances for wells that fall short of the necessary clean-up costs. The Energy Policy Act provides BLM with the statutory authority to collect reclamation funds from oil and gas operators to force operators to clean up their wells. The only question left is: will they act?
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[1] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47562 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3000–3180).
[3] Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 714 (Thomas F. Stocker et al. eds., 2013).
[4] Zachary R. Milder & Rachel Adams-Heard, An Empire of Dying Wells, Bloomberg (Oct. 12, 2021) https://www.bloomberg.com/features/diversified-energy-natural-gas-wells-methane-leaks-2021/; Douglas Hale Gross, Annotation, Duty and Liability as to Plugging Oil or Gas Well Abandoned or Taken Out of Production, 50 A.L.R. 3d 240, § 2 (1973) (discussing general environmental impacts from leaking abandoned oil and gas wells).
[6] Nicole Layton & Ginger Sprong, Cut and Run: Bonding, Bankruptcies, and the Orphaned-Oil-Well Cut and Run: Bonding, Bankruptcies, and the Orphaned-Oil-Well Crisis, 10 LSU J. of Energy L. & Res. 1, 9 (2022).
[8] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47579 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3000–3180).
[9]See also Wyo. Admin. Code 055.0001.3 § 4 (noting that Wyoming statewide blanket bonds must be $100,000 or more).
[10] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47562 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3000–3180).
[11] U.S. Gov’t Accountability Off., GAO-18-250, Bureau of Land Management Needs to Improve its Data and Oversight of its Potential Liabilities 29 (2018) (discussing how “officials from one BLM state office expressed concerns about operators with multiple wells covered by the minimum bond amounts, which the officials believed to be inadequate to cover total potential reclamation costs”).
[12] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47619 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3100).
[15] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47579 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3104).
[16]See Mark Olalde, It Will Cost Up to $21.5 Billion to Clean Up California’s Oil Sites. The Industry Won’t Make Enough Money to Pay for It, ProPublica (May 18, 2023) https://www.propublica.org/article/cost-of-california-oil-cleanup-exceeds-industry-profits (discussion of how it will cost more than the California oil and gas industry makes to clean up the state’s oil well locations).
[17]BLM Oil and Gas Bonding Rules Leave Lands a Mess and Taxpayers Responsible, Western Organization of Resource Councils (2020) https://www.worc.org/media/2020.04-Oil-and-Gas-Bonding-Federal-vs-State-sm2.pdf.
[18] Often collected through tax, reclamation funds are specifically set aside for the reclamation of an abandoned oil and gas well when bonds come up short. BLM Oil and Gas Bonding Rules Leave Lands a Mess and Taxpayers Responsible, Western Organization of Resource Councils (2020) https://www.worc.org/media/2020.04-Oil-and-Gas-Bonding-Federal-vs-State-sm2.pdf.
[19]See 43 U.S.C. § 1734(a) (establishing a reclamation tax on oil and gas well use is not directly stated; rather BLM has the authority to institute “reasonable charges,” a claim that BLM currently opposes).
Vermont and Maine are the only states to offer school choice programs that supplement their public school system.[1] These programs allow districts that do not operate their own public school to send their students to approved schools in other districts.[2] In Maine, any school receiving tuition assistance payments must be “a nonsectarian school.”[3] A sectarian school is one that is associated with a particular faith, and that “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”[4] In Carson v. Makin, the Supreme Court struck down the Maine program as unconstitutional because it excluded religious schools.[5]
In Carson, the Court upending constitutional doctrine and mandated that taxpayers subsidize religious education. Despite the long history of antiestablishment in the United States, the Court held that a state’s desire to comply with the Establishment Clause is not a valid basis for a Free Exercise violation.[6] The Court also discarded the previously recognized status-use distinction. Under this doctrine, it was impermissible for a state to discriminate based on the religious status of a person or church.[7] However, a state was allowed to limit the uses of public funds. [8]
The Maine program excluded schools that were engaged in religious instruction.[9] Therefore, the Court should have applied the status-use distinction to uphold the program. The majority flatly rejected this argument.[10] In its cursory treatment, the majority explained that although prior cases forbade discrimination on the basis of religious status, they “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.”[11] With no further legal analysis, the Court put an end to states using use-based restrictions to prevent public tuition funds from going to religious schools. Therefore, any state with a school choice program can no longer exclude a religious school because of its religious nature or instruction.
This decision had major implications for Vermont’s school choice program. The prohibition on state funding for private religious schools comes from the Compelled Support Clause of Article 3 of the Vermont Constitution.[12] However, under Carson, Vermont can no longer use its constitution to avoid including religious schools in its school choice program. To ensure that public money is not used to fund discrimination, Vermont has imposed further approval requirements on independent schools. Independent schools must affirmatively agree to not discriminate on the basis of religion, sexual orientation, or gender identity as a condition of receiving public tuition funds.[13]
Mid Vermont Christian School has filed a federal lawsuit against the state after being denied approval based on its refusal to sign the statement of nondiscrimination.[14] The school alleges religious hostility and challenges the Vermont approval requirements as neither neutral nor generally applicable.[15] Vermont has a fair chance of winning this lawsuit, as it has not shown outright hostility to religious groups receiving public funding. In the absence of religious hostility, it is possible that Vermont can demonstrate to the Court that the antidiscrimination requirements are rooted in the Equal Protection Clause rather than the Establishment Clause.[16] Although it is difficult to predict how this lawsuit will be resolved, this demonstrates the difficulty of entangling religious schools with state funding. Thus the importance of the now defunct status-use distinction.
To comply with both Carson and the Compelled Support Clause of the Vermont Constitution, a seemingly simple solution for Vermont is to eliminate its school choice program. Ending payments to all private schools regardless of religious status would mean that no tax revenue is going to religious organizations, while maintaining the neutrality required by the First Amendment.[17] As suggested by the Court in Carson, expanding the public school system would eliminate the need for a school choice system.[18]
However, adding public schools in any state, but especially in Vermont, is a costly endeavor. During the 2018 to 2019 school year, 3,407 students attended approved independent schools.[19] It is highly unlikely that all those students can be incorporated into the existing public schools, so new public schools must be built. However, this is not a simple endeavor. The State of Vermont is currently facing a whopping $6.3 billion dollars in construction costs just to maintain the state’s 384 school buildings.[20] Building a new school costs even more: Burlington’s new high school is projected to cost $210 million.[21] Although this may have seemed like a simple solution to the majority in Carson, the high price tag makes it untenable for states that rely so heavily on school choice.
Finally, the Court in Carson suggested a hybrid education system that allowed for “some combination of tutoring, remote learning, and partial attendance . . . .”[22] This would potentially fill the gap created by eliminating school choice. The Court failed to describe exactly how this would equate to in-person attendance—perhaps because the Court recognized the absurdity of such a proposal. Although some families may homeschool their children or use remote learning programs, that is a far cry from imposing this option on families who live too far away from a physical school. If Vermont offered this as an alternative to in-person education, rural families may be forced to accept this alternative rather than being able to opt into in-person education.[23] This would likely violate the requirement of “providing every school-age child in Vermont an equal educational opportunity.”[24] Therefore, until Vermont is better positioned to expand its public school system, eliminating school choice would pose new problems regarding equal access to education.
The majority in Carson got it wrong. The Court mandated that taxpayers subsidize religious education in an opinion inconsistent with decades of precedent. Nothing in the Constitution requires this decision. The shortsightedness of this decision is unmistakable. Why should we dismantle the wall of separation that has served us so well for so long? The Court has no answer to this question. Rather, it continues its destruction of the Establishment Clause with reckless abandon.
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[1] Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.
[5] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 18 (U.S., June 21, 2022).
[6]Carson, slip op. at 10–11. For an example of an antiestablishment law, see “A Bill Establishing A Provision for Teachers of the Christian Religion” in Virginia. The bill sought to tax citizens to support “Christian teachers,” but was rejected after a public outcry. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 853 (1995) (Thomas, J., concurring) (explaining that purpose of the bill was to support “clergy in the performance of their function of teaching religion”). As a result, the “Virginia Bill for Religious Liberty was enacted instead, which guaranteed “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950).
[7] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (striking down a playground resurfacing program because it excluded a church based solely on its religious status).
[8]See, e.g., Locke v. Davey, 540 U.S. 712, 721 (2004) (upholding the program at issue because Davey was denied a scholarship because of how he planned to use it, not because he was religious); Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2256 (2020) (emphasizing that discrimination based on religious status is distinct from discrimination based on religious use).
The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented. . . . whether a school is ‘nonsectarian’ depends on the sectarian nature of the educational instruction that the school will use the tuition assistance payments to provide. . . . [s]ectarian schools are denied funds not because of who they are but because of what they would do with the money – use it to further the religious purposes of inculcation and proselytization.
Id.
[10] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 16 (U.S., June 21, 2022).
[12] Vt. Const. ch. I, art. 3 (“[N]o person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience . . . .).
[16]See, e.g., Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (holding that Equal Protection Clause requires an “exceedingly persuasive justification” for gender-based distinctions in educational admissions.”).
[17]See Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 878 (1990) (A government policy is not neutral if it is “specifically directed at . . . religious practice”); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (holding that failure to meet either the neutrality or general applicability test is sufficient to trigger strict scrutiny).
[18] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 14–15 (U.S., June 21, 2022).
[19] Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.
[20] Ethan Weinstein, House Panel Confronts ‘Eye Popping’ Cost of School Construction Needs, vtdigger (Jan. 3, 2024) https://vtdigger.org/2024/01/03/house-panel-confronts-eye-popping-cost-of-school-construction-needs/.
[21] Katherine Huntley, Cost of Building New Burlington High School Going Up, WCAX (Sept. 5, 2023) https://www.wcax.com/2023/09/05/cost-building-new-burlington-high-school-going-up/.
[22] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 14–15 (U.S., June 21, 2022).
[23] As of July 2020, 45 of the State’s 110 school districts did not operate either an elementary or a secondary school. Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.
[24] Brigham v. State, 692 A.2d 384, 386 (1997) (per curiam) (holding that “the state must ensure substantial equality of educational opportunity throughout Vermont.”).
The evidence of climate change is all around us. Microplastics, which are small particles of plastic broken down by the ocean,[1] were found in human placentas, breast milk, and blood for the first time between 2020 and 2022.[2] The year 2023 was the hottest in recorded history.[3] In June of 2023, the East Coast of the United States was suffocated by a thick fog of wildfire smoke.[4] In August, residents of Lahaina, Hawaii fled into the ocean to escape the deadliest wildfire in recent American history.[5] The nation’s largest insurance companies no longer cover homes in Florida,[6] or California.[7]
The Intergovernmental Panel on Climate Change (“IPCC”) found in its latest report that humans have indisputably caused climate change—mainly through greenhouse gas emissions.[8] The report stressed that these emissions threaten “human well-being and planetary health.”[9] The IPCC emphasized that humanity currently has a “rapidly closing window of opportunity to secure a livable and sustainable future for all.”[10]
Despite the unequivocal evidence of global warming described above, climate denialism remains rampant. Climate change denial exists where individuals reject the facts of climate change;[11] such as whether climate change is caused by human activity, whether the projected impacts of climate change are a significant concern, and whether climate change even exists at all.[12]
Former President Donald Trump called climate change “nonexistent” and “mythical,”[13] and significantly rolled back environmental policy while in office.[14] Although Trump has made some statements acknowledging the climate crisis,[15] he ultimately withdrew the U.S. from the Paris Climate Agreement,[16] which is an international climate treaty adopted by United Nations member-states.[17]
Senate Minority Leader Mitch McConnell, who once admitted to believing in human-caused climate change,[18] more recently described environmentalist policies as “climate nonsense.”[19] Unfortunately, for many like McConnell, climate activism has been discretely associated with “woke initiatives.”[20]
This harsh political rhetoric is both driven by, and fuels, rising misinformation about climate on social media in a vicious feedback loop.[21] One study found that almost fifteen percent of Americans deny the existence of climate change.[22] The same study noted how powerful and influential figures, such as Former President Trump, have utilized social media to spread climate misinformation.[23]
Contrary to within the political arena and on social media, it seems, however, that the higher standard of evidence found in the courtroom is an effective deterrent to this climate denialism. Litigants under oath can be subject to perjury for any factual statements they make during trial.[24] Furthermore, attorneys risk Rule 11 sanctions if they make factually unsupported claims.[25]
Recently, Held v. State of Montana made history as the first climate case ever to proceed to trial.[26] In Held, sixteen youth plaintiffs sued Montana over a state law which they believed was contributing to climate change,[27] in violation of their rights under the state’s constitution.[28]
Prior to trial, the state engaged in some climate denialism of its own. In their complaint, the plaintiffs alleged that “the threats posed by fossil fuels and the climate crisis are existential. Science is unequivocal that dangerous climate change is upon us and is occurring due to human activities primarily from the extraction and burning of fossil fuels.”[29] The state of Montana denied this allegation in its answer to the complaint.[30] But, shortly before trial—once it was clear the case would actually proceed to a courtroom—the state had a change of heart and stipulated to many of the plaintiffs’ climate-related factual claims.[31] Montana’s counsel then avoided discussing the facts of climate change at trial; objecting to testimony from climate experts as moot due to the stipulation.[32]
Not only did the plaintiffs in Held overcome this denialism by proceeding to trial, but they also factually proved their claims, and won.[33]Held will remain relevant not only as the first climate trial,[34] but also as a demonstration of the power of evidentiary standards in combatting climate denialism. When Montana realized it would be proceeding to trial, rather than producing evidence to support its climate denial, the state elected to shut up rather than put up.
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[1]What are Microplastics?, NOAA, https://oceanservice.noaa.gov/facts/microplastics.html (last updated Dec. 14, 2023).
[2] Damian Carrington, Microplastics Found in Human Breast Milk for the First Time, Guardian, https://www.theguardian.com/environment/2022/oct/07/microplastics-human-breast-milk-first-time (Oct. 7, 2022).
[3]2023 Was the World’s Warmest Year on Record, By Far, NOAA, https://www.noaa.gov/news/2023-was-worlds-warmest-year-on-record-by-far (Jan. 12, 2024).
[4] Tyler Clifford, US East Coast Blanketed in Veil of Smoke from Canadian Fires, Reuters, https://www.reuters.com/business/environment/us-states-under-air-quality-alerts-canadian-smoke-drifts-south-2023-06-07/ (Jun. 8, 2023).
[5] Melissa Chan, They Fled the Maui Wildfires by Jumping into the Ocean. Then They Needed to Survive the Sea., NBC NEWS, https://www.nbcnews.com/news/us-news/fled-maui-wildfires-jumping-ocean-needed-survive-sea-rcna100226 (Aug. 18, 2023).
[6] Ed Leefeldt, Why Is Homeowners Insurance In Florida Such A Disaster?, Forbes: ADVISOR, https://www.forbes.com/advisor/homeowners-insurance/why-is-homeowners-insurance-in-florida-such-a-disaster/ (last updated Aug. 28, 2023).
[7] Michael R. Blood, California Insurance Market Rattled by Withdrawal of Major Companies, AP, https://apnews.com/article/california-wildfire-insurance-e31bef0ed7eeddcde096a5b8f2c1768f (Jun. 5, 2023).
[8] IPCC, Climate Change 2023 Synthesis Report Summary for Policymakers 4 (Hoesung Lee et al. eds., 2023).
[16]President Trump Announces U.S. Withdrawal From the Paris Climate Accord, The White House: Archives, https://trumpwhitehouse.archives.gov/articles/president-trump-announces-u-s-withdrawal-paris-climate-accord/ (Jun. 1, 2017).
[17]The Paris Agreement, UNFCCC, https://unfccc.int/process-and-meetings/the-paris-agreement.
[18] Jordain Carney, McConnell: ‘I do’ Believe in Human-Caused Climate Change, HILL, https://thehill.com/homenews/senate/435904-mcconnell-i-do-believe-in-human-caused-climate-change/ (Mar. 26, 2019)
[19] Julia Mueller, Buttigieg Pushes Back on McConnell Criticism of ‘Woke Initiatives’, HILL, https://thehill.com/homenews/administration/3877254-buttigieg-pushes-back-on-mcconnell-criticism-of-woke-initiatives/ (Feb. 28, 2023).
[21] Rachel Ramirez, What is ‘New Denial?’ An Alarming Wave of Climate Misinformation is Spreading on YouTube, Watchdog Says, CNN, https://www.cnn.com/2024/01/16/climate/climate-denial-misinformation-youtube/index.html (last updated Jan. 17, 2024).
[22] Nayiri Mullinix, Nearly 15% of Americans Deny Climate Change is Real, AI Study Finds, U. Mich.: MICHIGAN NEWS, https://news.umich.edu/nearly-15-of-americans-deny-climate-change-is-real-ai-study-finds/ (Feb. 14, 2024).
[26] Matthew Grabianski, What Held v. Montana Immediately Offers for Constitutional Environmental Rights, Geo. Env’t L. Rev.: Blog (Nov. 16, 2023), https://www.law.georgetown.edu/environmental-law-review/blog/what-held-v-montana-immediately-offers-for-constitutional-environmental-rights/
[27]See generally Complaint, Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont. Mar. 13, 2020) (hereinafter “Complaint”).
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.
