Environmental justice aims for a fair treatment of environmental protection and “equal access to the decision-making process[es]” for everyone—regardless of race, culture, or income.[1] Low-income and racial- and ethnic-minority communities have been, and are, significantly and unfairly impacted by environmental and public health stressors without meaningful input in government decision making.[2] The federal and state governments have continued to acknowledge environmental justice issues. Yet, there is still a lack of legislation that will significantly contribute to an efficient solution—one that not only repairs decades of damage but establishes a system to preven
t further despair. To avoid continued inequality, environmental justice legislation must recognize the implications of agency deference—those that contributed to these disparities in the first place.[3] Future environmental justice legislation should follow New Jersey’s Environmental Justice Law (the Law) with two key differences: defining compelling public interest and directing a stricter standard of review, minimizing deference to agency misinterpretation.
The Law directs the New Jersey Department of Environmental Protection (the Department) to deny a facility’s permit application if there is a finding of disproportionate impact on a designated overburdened community after assessing both the facility’s statement and community input.[4] However, if the facility can demonstrate the proposal has a “compelling public interest” the Department can attach conditions to the permit to reduce the adverse impact.[5] This compelling public interest exception is not defined in the statute and the legislature did not provide guidance on the conditions or limitations the agency may impose.[6] The statute directs the Department to issue rules in accordance with the Law as they see fit for its implementation.[7]
The Law is revolutionary because it was the first to require agency action.[8] The Law appears to surpass the typical balancing test and is not merely the legislature’s or agency’s best intention to protect the environment or hope that a choice will be made in favor of reducing adverse impacts.[9] Nevertheless, upon closer examination of each of its individual parts, the Law is another outcome-determinative balancing test—which public health interest is more compelling?
Each facility and permit applicable under the Law could very well serve a compelling public interest in s
ome capacity, even without considering economic factors such as whether the facility will provide employment opportunities to the community.[10] The exception is provided to account for some emissions that may be necessary despite the disproportionate impact because there is some other impact which supersedes potential adverse health stressors. Without a definition, the term is vague and open to various, and equally legal, interpretations. Although the Department provides more guidance in the proposed rules for the definition of compelling public interest,[11] the exception will require the Department to balance the interests of public health for each permit review and when the agency approves or rejects a permit under this exception, judicial review will be limited.
Reviewability will be limited because the standard for reviewing agency decisions is one based on reasonableness; the standard is whether an agency acted arbitrarily and capriciously.[12] So, once permits are either approved or denied, the reviewability of these decisions will be minimal because a reviewing court is unlikely to find that the agency acted arbitrarily and capriciously.[13] Therefore, by including an undefined exception, the Law aligns with most environmental protection and environmental justice statutes.[14] A classic example starts with The National Environmental Policy Act (NEPA).[15]
NEPA requires all federal agencies to consider adverse environmental impacts and to prepare an environmental impact statement for “all major federal actions that significantly affect[] the quality of the human environment.”[16] Agencies must use a balancing test: weighing the costs and adverse environmental impacts with the benefits including alternative solutions to proposed projects.[17] But, NEPA does not require the environment to win or require agencies to consider or balance adverse social impacts.[18] But when courts are reviewing actions under NEPA, the standard of review is slightly heightened.
In Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, the court recognized some agency decisions, such as those made under NEPA, qualify for more than a rational basis review.[19] The court reasoned that environmental protection deserves more than a reasonableness standard because NEPA sets a high standard for agencies.[20] The court concluded that since the substantive duties of NEPA required careful and informed decision making, the standards are far from flexible.[21] It was the court’s judicial duty to make the purpose of NEPA a reality.[22] New Jersey courts have yet to apply this reasoned review.
Similar to NEPA, the Law requires the Department to balance competing public interests.[23] While the exception will prove necessary in certain circumstances, and should not be removed, the undefined exception leaves too much leeway for agency decision making that could drastically sway with political changes in the executive branch. The undefined exception provides the Department an opportunity to interpret the exception as overly broad or overly narrow. If the former is adopted, the Law, and the reason it was enacted in the first place, would be swallowed. Without clear intent from New Jersey’s Legislature, courts will award that interpretation great deference.[24]
To ensure the purpose of the Law is properly implemented, the legislature should amend the Law to define “compelling public interest” and direct courts to a harder look standard of review, similar to the heightened standard applied to decisions under NEPA.[25] If not, New Jersey courts should ensure the decisions are made in the best interests of the communities affected aligned with the Law’s overarching purpose.[26] In the battle of environmental justice and agency deference, it’s time environmental justice wins.
[1]Environmental Justice, EPA, https://www.epa.gov/environmentaljustice (last updated Sep. 6, 2023); Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Aug. 16, 2023).
[2]Meaningful involvement means “people have an opportunity to participate in decisions about activities that may affect their environment and/or health.” Learn About Environmental Justice, supra note 1.
[3]Seegenerally Nerissa-Anne D. Robinson, Deferring Environmental Justice in Mississippi: Agency Deference Legacy Impacts Southern Black Communities, 6 S. Region Black L. Students Ass’n L.J. 100 (2012) (arguing the standard of reasonableness for agency decisions is inadequate for social justice issues); See Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Tp. of Franklin, 233 N.J. 546, 558 (2018) (“A zoning board’s land use decisions . . . enjoy a presumption of validity. They must be allowed wide latitude in the exercise of delegated discretion.” (internal quotation marks omitted)).
[7] N.J. Stat. Ann. § 13:1D-161; see 54 N.J. Reg. 971(a) (June 6, 2022) (proposed rules). The rule has since been finalized, N.J. Admin. Code § 7:1C, but the language of the compelling public interest exception remains unaltered post public comment. Id. § 7:1C-5.3.
[8]Seegenerally Thomas Prol, Fulfilling the Promise of the Civil Rights Movement with Environmental Justice, 336 N.J. Law. 14 (2022) (labeling New Jersey “as a [n]ational leader in environmental justice.”); Julius M. Redd, Hilary Jacobs, & Stacy Sublett Halliday, New Jersey Passes Landmark Environmental Justice Legislation, Nat. L. Rev. (Sept. 1, 2020), https://www.natlawreview.com/article/new-jersey-passes-landmark-environmental-justice-legislation (recognizing New Jersey’s “first-of-its-kind environmental justice legislation”).
[9] Most environmental justice efforts in the United States have followed the pattern of early environmental protection laws, whereas the government acknowledges the issue and instructs agencies to consider it in decision making. These laws establish a mechanism with the hope that the best decision will be made, but the standards are set to a minimum. Seegenerally John A. Mueller & Taylor Lilley, Forty Years of Environmental Justice: Where is the Justice?, 25 Rich. Pub. Int. L. Rev. 75 (2022) (arguing after years of government recognition of environmental justice, it is time for change).
[10] The law lists eight specific industries that must comply with the legislation: major sources of air pollution; resource recovery facilities or incinerators; sludge processing facilities, combustors, or incinerators; sewage treatment plants with a capacity of more than 50 million gallons per day; transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; scrap metal facilities; landfills, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; and medical waste incinerators. N.J. Stat. Ann. § 13:1D-158.
[11] According to the Department, for a public interest to be compelling, “the primary p
urpose of the facility must be to serve an essential environmental, health or safety need of the host overburdened community for which there is no reasonable alternative to sitting within the overburdened community.” 54 N.J. Reg. 971(a) (June 6, 2022).
[12]See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)
[13]See Waste Mgmt. of NJ, Inc. v. Union Cnty Utils. Auth., 399 N.J. Super. 508, 526 (N.J. Super. App. Div. 2008); Kramer, 45 N.J. at 296–97 (N.J. 1965) (“Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.”); In re Graeta Recycling Co., No. A-2470-04T2, 2007 WL 609161 (N.J. Super. App. Div. 2006) (holding that the Department did not act unreasonably because environmental justice was properly considered).
[14]See, e.g., N.Y. Env’t Conserv. Law, §§ 8-105, 8-0113, 70-0107 (requiring New York’s Department of Environmental Conservation to consider potential disproportionate impacts); Environmental Justice Act, R.I. S2087 (2022) (requiring consideration of dipropionate impacts on overburdened communities for permit applications); see also State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legis. (last updated May 26, 2023), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-advance-environmental-justice.aspx.
[15] National Environmental Policy Act, 42 U.S.C. § 4321 (1969).
Rodanthe, North Carolina, already lost its fourth house to the ocean this year.[1] It begs the question of what to do when the sea literally washes your house away? Even if your house is still on land, nobody wants to waste their money on a risky investment house that will float away in a few years’ time. Plus, regardless of whether homeowners have insurance, they are still on the hook for cleanup efforts which are often costly and stretch for miles.[2] As such, North Carolina, like much of the world, is on the verge of a coastal crisis.
I am not alone in saying this; the United Nations’ Intergovernmental Panel on Climate Change, the National Oceanographic and Atmospheric Association, and North Carolina’s Coastal Resource Commission agree that low-lying coastal areas are in danger of being swallowed by the ocean’s waves.[3] They disagree on how quickly or how high the level of the sea will rise, but broadly speaking, it is inevitable and will harm North Carolina in particular.[4]
So where does that leave North Carolina?
Well, I am glad you asked. It requires looking at the wild year of 2012: Warlord Joseph Kony was in every headline, Kim Jong-Un had recently become the leader of North Korea’s military, and Barack Obama won reelection. But in North Carolina, shielded from the limelight, the State legislature passed House Bill 819 which amended North Carolina’s Coastal Area Management Act of 1974. The amendment clearly states the legislature’s intent not to mandate a sea-level rise policy or definition and outright bars any action on that front for the next five years.[5] Lastly, it abandons North Carolina’s local governments to figure out how best to proceed: whether to discuss, plan, or enact policy around sea- level rise and climate change or hope for the best and ignore the problem.[6]
As ridiculous as it is to abandon local governments to establish solutions for a global issue without a fraction of the resources or available help that the state itself could bring to bear, the responses were predictably inconsistent.[7] Regardless of that inconsistency, within eleven years, even Dare County, one of the wealthiest coastal communities, which previously spent $100 million on beach restoration, cannot afford its continued existence.[8] That does not even account for the fact that poor counties, like Tyrrell County, feel the impacts faster and are already struggling to account for floodwaters, raise houses above the waterline, or move people to higher ground.[9]
How to move forward?
At the very least, North Carolina needs to start the conversation and look frankly at the realities in front of them. But in an actionable sense, North Carolina’s Legislature must change its stance on climate change and climate readiness. Further, they need to make available funds at the state level, in conjunction with local communities, or by working with federal programs, like the Federal Emergency Management Agency’s Pre-Disaster Mitigation Grant Program. If no more natural solutions are available, or those that would temporarily stall the damage—like putting houses on raised stilts, which is already a common practice on North Carolina’s coast—it might be worth considering relocation.
Relocation, however, comes with its own pitfalls. For one, there is nowhere else to go when the entire community covers every square inch of a sand bar just above the ocean line. Furthermore, it unfairly punishes impoverished communities if the expectation is that they abandon their property. That is not to say that abandonment is the only option; eminent domain exists, as do voluntary buyout programs. However, that comes at a substantial cost that North Carolina likely could not bear alone. Nevertheless, all socioeconomic statuses will feel the pain, and thousands of homes and businesses will be underwater assets dragged out and drowned at sea.[10]
[1] Peter O’Dowd, In Rodanthe, North Carolina, More Homes Are at Risk After Another Home Collapses into the Ocean, npr, at 00:25 (Mar. 31, 2023), https://www.wbur.org/hereandnow/2023/03/31/homes-collapse-ocean-sea-levels.
[2]See Mike Andrews, Debris Stretch 21 Miles After House Collapse in Outer Banks, Officials say, WNCT9 (Mar. 15, 2023), https://www.wnct.com/weather/debris-stretches-21-miles-after-house-collapse-in-outer-banks-officials-say/ (explaining debris stretched for 21 miles); Richard Fausset, Beach Houses on the Outer Banks are Being Swallowed by the Sea, N. Y. Times (May 14, 2022), https://www.nytimes.com/2022/05/14/us/outer-banks-beach-houses-collapse.html (explaining that cleanup cost one homeowner $57,000).
[3]See Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability 1963 (Working Grp. II ed.) (2022) (explaining that a one-meter rise in sea level will happen within the next 75 years and resulting in 42% of the Albemarle-Pamlico peninsula underwater); William V. Sweet et al., Global and Regional Sea Level Rise Scenarios for the United States vii (2017) (explaining that NOAA expects sea level rise higher in North Carolina and on the east coast relative to the IPCC’s stated numbers); N.C. Coastal Res. Comm’n Sci. Panel, North Carolina Sea Level Rise Assessment Report 9–10 (2016) (demonstrating the expected impacts of sea level rise at a granular level across North Carolina’s coastline).
[4]See N.C. Coastal Res. Comm’n Sci. Panel supra at 22 (explaining North Carolina will be impacted and that there will be an increased number of flooding events as sea level rises).
[5] Coastal A rea Management Act of 1974, N.C. Gen. Stat. §113A-107.1 (2022); 2012 N.C. Sess. Laws 202.
[7]See Caitlin Thompson, North Carolina’s Notorious Climate Change Law—The Rich Are OK, the Poor Aren’t, .coda (June 29, 2021), https://www.codastory.com/waronscience/climate-change-north-carolina/ (“In the low-lying neighborhood of Goat Neck in Tyrrell County, about 45 minutes from Nags Head, the response to sea level rise has been very different.”).
[8] Keenan Willard, Outer Banks Set for Massive Beach Nourishment Project, WRAL News (Jun. 18, 2021), https://www.wral.com/nearly-100-million-set-to-go-toward-most-expensive-outer-banks-repair-effort-in-dare-county-history/19732917/; see also Peter O’Dowd supra note 1, at 03:08 (“Rodanthe needs [beach renourishment]. Our issue is we don’t have enough money to do another project in Rodanthe.”).
[9]See Caitlin Thompson, supra note 7 (“Many homeowners in Goat Neck don’t have the resources to elevate their houses.”); see also Willard, supra note 8 . (“Tyrell County doesn’t have the money to take on big infrastructure projects that would make neighborhoods like Goat Neck more resilient to climate change.”).
[10]Quick Facts, Beaufort County, North Carolina, Carteret County, North Carolina, Dare County, North Carolina, Hyde County, North Carolina, Tyrrell, County, North Carolina, Washington County, North Carolina, U.S. Census, https://www.census.gov/quickfacts/fact/table/darecountynorthcarolina,carteretcountynorthcarolina,tyrrellcountynorthcarolina,hydecountynorthcarolina,beaufortcountynorthcarolina,washingtoncountynorthcarolina/INC110221 (last visited, Nov. 6, 2023) (excluding Currituck, Pender, or other vulnerable counties, potentially ~121,000 housing units across six counties are vulnerable to sea level rise).
The United Nations estimates that by the year 2050 climate change will have displaced around 200 million people globally.[1] Since 2010, about 23 million people per year have been displaced, mostly within their own countries.[2] Displacement is caused by sudden-onset disasters like flooding, windstorms, and earthquakes as well as slow-onset disasters like desertification and rising sea levels.[3] Climate change also deeply impacts already vulnerable communities by exacerbating existing social, political, and economic tensions.[4]
The plight of climate refugees is valid and imminent. However, no nation currently offers legal protections to refugees solely on the basis of climate change.[5] According to the 1951 U.N. Convention Relating to the Status of Refugees, a refugee is “a person who has crossed an international border owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”[6] This definition assumes that a person is being persecuted by another human being on the basis of one of the listed protected categories.[7] However, what if the persecutor is climate change? The link between the harm suffered and the intent of the actor becomes complicated when that actor is not human. The immigration framework provided by the 1951 Convention does not account for the unique challenge faced by climate refugees. As a result, it is especially difficult for climate refugees to qualify for protection in many receiving countries.
There is reason for hope. The White House, in a report released in October 2021, states that it seeks to “identify ways to apply existing protection frameworks in the context of climate-change related displacement and to identify gaps where the United States should forge new legal pathways to protection.”[8] This acknowledgement of the need for specific protection of climate refugees by the U.S. is encouraging. However, until there are formal protections in place it will take creative approaches by advocates and practitioners to support and protect those displaced by climate change.
One approach is focusing on the ways in which climate change interacts with other socio-economic or political factors that drive displacement. Climate is often considered a “threat-multiplier” in that it exacerbates existing adverse conditions.[9] For example, disasters such as drought cause the depletion of natural resources in rural areas, which causes people to migrate to urban areas in search of jobs and services.[10] Resulting tensions due to limited job opportunities and high population density can lead to increased conflict.[11] This can be particularly risky for groups who are already vulnerable and marginalized within a community or state. An argument for protection may be made if a person can prove that they were impacted by human-caused persecution that has been exacerbated by climate disasters.
A second approach focuses on how climate change can affect the right to life. The United Nations Human Rights Committee considered this possibility in the case of Teitiota vs. New Zealand.[12] The Committee, in its opinion, emphasized that environmental degradation is one of the most serious threats to the future generation’s right to life.[13] Accordingly, the Committee found that in cases where a person displaced by climate change faces a “serious” risk of harm they may be protected under the Refugee Convention, even if the harm arises from environmental factors instead of human-caused injury.[14] This holding is groundbreaking because it formally recognizes, for one of the first times on an international stage, that environmental degradation can violate a person’s right to life and can trigger obligations for protection of displaced persons as a result.
Ideally, in the near future, there will be legal protections specifically for persons displaced by climate change. However, until these protections are in place it will require the persistence and creativity of practitioners and advocates to find ways to use existing pathways to protect the rights and wellbeing of climate refugees.
[3]A State-Led Initiative Working Towards Better Protection for People Displaced Across Borders in the Context of Disasters and Climate Change, Platform on Disaster Displacement 12, https://disasterdisplacement.org/wp-content/uploads/2019/10/20102019_FINAL_EN_LEAFLET_SCREEN_compressed.pdf (last visited Nov. 6, 2023).
[4]The Facts: How Climate Change Affects People Living in Poverty, Mercy Corps (Apr. 08, 2021), https://www.mercycorps.org/blog/climate-change-poverty#:~:text=Floods%20and%20droughts%20brought%20on,change%20in%20the%2021st%20century.
[6].What We Do: Climate Change and Disaster Displacement, UNHCR, https://www.unhcr.org/what-we-do/build-better-futures/environment-disasters-and-climate-change/climate-change-and (last visited Nov. 6, 2023).
[7] Roger Zetter, The Role of Legal and Normative Frameworks for the Protection of Environmentally Displaced People, in Migration, Environment and Climate Change: Assessing the Evidence 385, 397 (Frank Lazcko & Christine Aghazarm eds., 2009).
[8]Report on the Impact of Climate Change on Migration, White House 17 (Oct. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/10/Report-on-the-Impact-of-Climate-Change-on-Migration.pdf.
[9] Sara Vigil et al., Exploring the Environment-Conflict-Migration Nexus in Asia 2 (Marion Davis ed. 2022).
[12]See Mari Galloway, Teitiota v New Zealand, Climate Migration and Non-Refoulement: A Case Study of Canada’s Obligations Under the Charter and the ICCPR, 45 Dalhousie L.J. 385, 388 (2022).
Prior to the pandemic, there were approximately 2.8 million deaths per year in the United States.[1] Each one of those deaths left a body, and those bodies did not magically evaporate. The law of final disposition—primarily burial and cremation—dictated how survivors managed those remains. Americans have become culturally distanced from the process of preparation and disposition, and they regularly employ professionals to manage this undertaking.[2] However, to call the business of funeral homes and crematoria deathcare is synecdoche. There was a time before deathcare was an industry.[3] There is far more to the process of disposition, from last breath to final rest, than the embalmer’s business.
Despite the universality of death, the final disposition of human remains is regulated piecemeal,[4] prioritizing the interests of embalmers over the families of the deceased.[5] This hinders families’ abilities to provide respectful, meaningful disposition of the deceased, a crucial aspect of socially contextualizing death in their lives.[6] The FTC promulgated the Funeral Rule in 1982 in an effort to protect funeral consumers, but it is simply not enough.[7] Just as advancing technology and increasing population dramatically changed the nature and scale of food manufacture, precipitating the development of the FDA,[8] the modern structure of deathcare demands a more unified and comprehensive approach to regulation.
To unify the regulation of deathcare for the purposes of protecting the rights of survivors, ensuring quality and accessibility of care, and balancing the interests of the many parties that participate in the process of final disposition, Congress should establish a federal agency dedicated to the regulation of the disposition of human remains. Part I provides an overview of the modern structure and relevant history of American deathcare. Part II begins the analysis by explaining the common law right of sepulcher. The argument transitions into consideration and critique of the FTC Funeral Rule,[9] identifying weaknesses in the current federal regulatory scheme in Part III and describing how state law is currently insufficient to fill the gaps in Part IV. This discussion culminates in Part V, examining how embalming is understood by the public and presented by embalmers—specifically critiquing how the professional characterization of embalming is a misrepresentation of what is merely a useful technique for preservation and aesthetics, based in outdated notions of ptomainic miasmas.[10] Finally, this Note delves into the scope and structure of the proposed federal agency. Part VI outlines the agency’s basic functions: addressing the purpose of the Funeral Rule and expanding its reach to crematoria and cemeteries, including functioning enforcement mechanisms in this amended Funeral Rule, and outlining state licensing and inspection requirements.
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[1] Kenneth D. Kochanek et al., Deaths: Final Data for 2017, 68 Nat’l Vital Stat. Rep. no. 9, at 1 (2019); Sherry L. Murphy et al., Deaths: Final Data for 2018, 69 Nat’l Vital Stat. Rep. no. 13, at 1 (2021); Jiaquan Xu et al., Deaths: Final Data for 2019, 70 Nat’l Vital Stat. Rep. no. 8, at 1 (2021).
[2] Maggie Jones, The Movement to Bring Death Closer, N.Y. Times Mag. (Dec. 21, 2020), https://www.nytimes.com/2019/12/19/magazine/home-funeral.html (“In the United States, we have come to see death as an emergency. We call the doctors, the nurses, the police, the emergency workers, the funeral staff to take over for us . . . . If death practices reveal a culture’s values, we choose convenience, outsourcing, an aversion to knowing and seeing too much.”).
[3] Jessica Mitford, The American Way of Death Revisited 14–17 (1998); see also Robert G. Mayer, Embalming: History, Theory, and Practice 5–6 (5th ed. 2012).
[4]See generally Joshua Slocum & Lisa Carlson, Final Rights: Reclaiming the American Way of Death 159–498 (2011).
[5]See Tanya Marsh, Regulated to Death: Occupational Licensing and the Demise of the U.S. Funeral Services Industry, 8 Wake Forest J.L. & Pol’y 5, 7 (2018); see generally Tanya Marsh, Rethinking the Law of the Dead, 48 Wake Forest L. Rev. 1327 (2013).
[6]See generally Ernest Becker, The Denial of Death 9–47 (1973); Stu Farber, Thomas Egnew & Annalu Farber, What is a Respectful Death?, in Living with Dying 102, 103–04 (Joan Berzoff & Phyllis R. Silverman eds., 2004).
[7] Joshua L. Slocum, The Funeral Rule: Where It Came from, Why It Matters, and How to Bring It into the 21st Century, 8 Wake Forest J.L. & Pol’y 89, 99–102 (2018); Keith E. Horton, Who’s Watching the Cryptkeeper: The Need for Regulation and Oversight in the Crematory Industry, 11 Elder L.J. 425, 433–38 (2003).
[8] Stephen Daily, A Brief History of the FDA, Cataract & Refractive Surgery Today (Oct. 2011), https://crstoday.com/articles/2011-oct/a-brief-history-of-the-fda/.
[9] FTC Funeral Rule, 16 C.F.R § 453 (2021); see also Bureau of Consumer Prot., Funeral Industry Practices: Report to the Federal Trade Commission and Proposed Trade Regulation Rule (1978) (investigating the industry and identifying the need for consumer protection regulations).
[10] Lydia Kang & Nate Pederson, Quackery: A Brief History of the Worst Ways to Cure Everything 165–67 (2017).
By Nicholas Barry Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics
July 21, 2021
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The Supreme Court decision in Brnovich v. Democratic National Committee regarding Arizona election laws immediately and predictably drew considerable criticism from numerous voting rights advocates.[1] The two laws challenged in this instance allowed election officials to discard provisional ballots cast if a voter showed up at the wrong precinct and barred third-party groups from collecting and delivering absentee ballots, also known as ballot harvesting.[2] Those challenging the laws contended that they violated § 2 of the Voting Rights Act or even possibly the 15th Amendment given the disparate impact these laws would have on voters of color.[3] However, the Court held that neither law was enacted with discriminatory intent, nor did they present any hindrances beyond what are the “usual burdens of voting”[4]. Therefore, these two laws were deemed permissible acts by the state as it oversaw its elections.[5]
As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them. I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not. It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry. Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.
However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it. I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me. My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]
As a primer as to why this is the case, it helps to note that CRT is a diverse field of academic thought but a common thread throughout is that even racially neutral laws can have negatively disparate impacts on racial minorities.[7] In essence, being color blind can still lead to results that leave minorities systematically worse off than whites.[8]
It’s important to note here that I am not a CRT scholar, nor have I ever made an overt decision to try and teach this concept to my students. Even so, I have at least a basic understanding of it such that I at least know it when I see it.
To that end, in reading the majority opinion of this case, I saw what is unmistakably a reference to CRT.[9] While I genuinely doubt this was an intentional reference, their intentions do not affect this determination. Specifically, in siding with the state of Arizona to uphold these new voting laws, the opinion mentioned that, because of their lower levels of “employment, wealth, and education,’’ neutral and color-blind policies will impede minority voting rates.[10] In other words, the Supreme Court is concluding that the institutional realities of voting lead to disparate outcomes and a neutral (color blind) policy will “predictably” lead us to this result. This is, as discussed above, the exact sort of observation that almost any CRT scholar will contend as central to their field of study.
Teaching students this majority opinion is therefore inexorably tied to teaching them a core concept of CRT, regardless of my intention to do so or not. My options are to either not teach the case or to expose my students to a core tenet of this controversial philosophy. So now I sit contemplating the terrifying reality that banning CRT would functionally prevent me, a law professor, from teaching a Supreme Court decision to my students. There is perhaps no better illustration of absurdity than this, yet it is the reality I and countless other law professors face.
Were this a mere hypothetical hindrance, I’d almost find it amusingly ironic. Instead, it’s a very real prohibition that has been enthusiastically embraced by the Republican Party. These bans will stifle educators who face the loss of their livelihood should they even accidentally discuss a theory even most law professors like myself are only vaguely familiar with.
The result among educators will be a general fear and therefore aversion to ever discussing race in the classroom. That is what lies at the root of my despondency. In reading this case and seeing these bans spread, I’ve come to the realization that educators everywhere, even where these bans are not in effect, will be pruning their curriculum to stave off attack.
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[1] Reid Wilson, Supreme Court ruling shocks voting rights activists, academics, The Hill (July 1, 2021), https://thehill.com/regulation/court-battles/561190-supreme-court-ruling-shocks-voting-rights-activists-academics.
[2] Brnovich v. Democratic Nat’l Comm., No 19-1257, 594 U.S. ___ at 1 (July 1, 2021).
[6] Jack Dutton, Critical Race Theory Is Banned in These States, Newsweek (June 11, 2021), https://www.newsweek.com/critical-race-theory-banned-these-states-1599712.
[7]See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1060–67 (1991) (“[W]e are not currently a colorblind society . . . race has a deep social significance that continues to disadvantage blacks and other Americans of color. While the legal strategy of colorblindness achieved great victories in the past, it has now become an impediment in the struggle to end racial inequality.”).
[8]See generally Critical Race Theory: The Key Writings That Formed the Movement passim (Kimberlé Crenshaw et al., eds. The New Press 2010); accord Gary Peller, I’ve Been a Critical Race Theorist for 30 Years. Our Opponents Are Just Proving Our Point For Us., POLITICO (June 30, 2021), https://www.politico.com/news/magazine/2021/06/30/critical-race-theory-lightning-rod-opinion-497046.
[9]See Brnovich, No 19-1257, 594 U.S. at 18 (“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”).
Nicholas Creel is an Assistant Professor of Business Law and Ethics at Georgia College and State University with a Ph.D. in Political Science from Texas Tech University, a JD from the University of Dayton School of Law, and an LL.M. from St. Mary’s University School of Law.
Nicholas B. Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics
July 21, 2021
As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them. I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not. It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry. Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.
However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it. I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me. My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]
Robert Sand | Vermont Law School, Founding Director, Center for Justice Reform
November 20, 2020
Generations of law students have learned the IRAC method of legal analysis. IRAC: Issue – Rule – Apply – Conclude. IRAC provides a consistent and straightforward way to analyze legal disputes in all areas whether property, torts, contracts, criminal law, or anything else typically studied in law school. The clarity of IRAC informs legal reasoning, the practice of law, and judicial decisions. For all its straightforward simplicity, IRAC is also remarkably reductionist.
Noted Norwegian criminologist Nils Christie writes: “Training in law is training in simplification. It is a trained incapacity to look at all values in a situation, and instead to select only the legally relevant ones, that is, those defined by the high priests within the system to be the relevant ones.”
Perhaps Christie goes too far, denying the power of the law to effect change. Yet, he is correct about the reductionist nature of the law and, by extension, legal education. Human disputes, and the harm at their root, are complex, messy, emotionally laden matters. We have developed a legal system to place a framework around all that messiness and in the process have lost, perhaps, some of our humanity.
By: Ryan Clemens | JD/MEM at Vermont Law School and Yale School of the Environment
June 13, 2021
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Joe Davies, Photograph of Harbor Seal Balancing on the Peak of a Rock, in Joe’s Retirement Blog, Blogger (Jan 29, 2006), https://joesretirementblog.blogspot.com/2016/01/more-harbor-seals-manomet-plymouth.html
Massachusetts fishers and residents currently feel that the state’s seal populations must be cut down. However, neither the Marine Mammal Protection Act (MMPA) nor its many exceptions would permit this overly simplistic solution, and rightfully so.
Several Massachusetts Cape and Islands fishers, business owners, and residents feel that the state’s coastline harbors too many seals.[1] Miriam Wasser reported that Cape Cod communities blame harbor seals (Phoca vitulina) and gray seals (Halichoerus grypus) for polluting water, preventing the Atlantic cod from recovering, and limiting tourism by enticing sharks to beaches.[2] In response, the communities proposed a seal cull to directly remove their perceived threat.
This proposed cull would not be the first for these seal communities. Up until the 1970s, New England systematically depleted seal populations: Massachusetts from 1888 to 1962 and Maine from 1891 to 1905 and 1937 to 1945 held bounties for seal noses, effectively crashing their populations.[3] Neither seal species is threatened or endangered any longer[4]; in fact, Wasser’s article cites a 2017 study placing Cape and Islands seal populations between 30,000 and 50,000.[5] Contextualized with recent history, an overabundance of seals is a misperception. Additionally, a restored, back-to-regular seal population is not only a good thing for the animals themselves, but also for Massachusetts’ larger ecosystem.
Top-down or predatory control is an important ecosystem balancer. Removing top-level predators through seal bounties[6] or, ironically, cod overfishing, causes “significant ecological change” as lower trophic levels grow unchecked and place disproportionate strain on the remaining ecological communities.[7] Restoring top-level predators and their facilitated “biological and functional diversity” is an important step “as a stabilizing force in ecosystems,” ultimately bolstering economically valuable fisheries like cod.[8] Beyond the scientific argument against seal culls, the MMPA flatly prohibits any such unnecessary and cruel action.
Since 1972, the MMPA is one of, if not the, most powerful legal protections for animals. The Act broadly prohibits the take and import of marine mammals.[9] Per the Act, “take” means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill,” and “marine mammal” partly means mammals that are “morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia, Pinnipedia and Cetacea).”[10] As gray seals and harbor are both pinnipeds and morphologically adapted to the marine environment,[11] and culling seals plainly includes hunting, capturing, and killing them, or at least attempting to, the MMPA applies to and flatly prohibits a seal cull. None of the MMPA’s potentially relevant exceptions actually apply here, either.
First, fishers argue that seals deplete Atlantic cod stocks and inhibit their recovery.[12] The MMPA’s first exception permits takes to enhance the survival or recovery of a species or stock, after review and approval by the Marine Mammal Commission (MMC).[13] The take must be “likely to contribute significantly to maintaining or increasing distribution or numbers necessary to ensure the survival or recovery of the species or stock.”[14] This exception likely does not allow a seal cull, not only because “species or stock” likely refers to the marine mammal itself,[15] but also because a cull would not contribute significantly to increasing cod populations.
Even if the recovery of a species or stock refers to non-marine mammals, reducing Massachusetts’ seals would not restore cod. Preliminarily, a thousand or several thousand-seal cull would barely make a significant dent in their now several tens of thousands-large population.[16] Primarily, seals’ predation on and impact to cod are small: cod comprise 6% of their diet, compared to sand lance at 53%.[17] Instead, seals eat cod’s ecologically-similar groundfish and gadid competitors, flounders and hake, respectively 21% and 4%, yet do not prey upon lobster.[18] Seals’ top-down forcing[19] thus limits cod’s competitors while avoiding its crustacean prey, aiding the stock’s recovery. Cod also faces separate challenges to recovery, distinct from seal predation. Species like Atlantic herring preying on cod juveniles[20] and climate change increasing sea-surface temperatures[21] more likely cause Atlantic cod hysteresis, or the inability of a species to regain prior population levels. Again, seals consume a near-equal amount of herring to cod, limiting their predation and in small part benefitting the stock.[22] Overall, science indicates that seals do not limit cod’s chance at recovery, failing to fit within the MMPA’s first exception’s alternative interpretation.
The MMPA’s second exception permits takes during fishing activity. However, these takes during normal fishing activity must be incidental, authorized by a formal rulemaking proceeding, “meet the requirements of the MMPA[,] and be consistent with the primary goal of protecting marine mammals.”[23] Here, a cull is both an intentional killing and plainly inconsistent with the goal of protecting marine mammals, excluding this exception. NOAA should nevertheless keep a keener eye out to avoid preexisting permit or permit application abuse, possibly for intentional “unintentional” seal kills if fishers’ resentment grows.
The third potentially applicable MMPA exception is broad but still does not allow a seal cull. The MMPA offers a general waiver “to determine when, to what extent, if at all, and by what means, it is compatible with this chapter to waive the requirements of this section so as to allow taking” consistent with “sound principles of resource protection and conservation” and based on “the best scientific evidence available and in consultation with [MMC].”[24] Again this exception does not apply to culls because wanton killing is plainly inconsistent with the seals’ protection and conservation. Moreover, even if restoring fish stocks is compatible, the best scientific evidence available does not support that reducing seal populations is actually a means to recover fisheries stocks.[25] The third exception fails too.
The final potentially applicable exception would not permit a seal cull either. The MMPA allows incidental taking by “citizens . . . other than commercial fish[ers]” if a full public comment period shows that a five or fewer year-span of takings will have a negligible impact.[26] This negligible impact exception does not extend to “incidental takings [that] are not merely a remote possibility but a certainty,” however.[27] Thus, a cull that guarantees fatal takings fails the negligible impact exception. And, as a final, minor note, the MMPA does allow a wide range of individuals to deter marine mammals, but all determent measures must not result in death or serious injury, explicitly contrary to a seal cull.[28]
In total, the MMPA most likely prohibits a seal cull or any form of harassment. Killing any seal in Massachusetts is thus illegal, ineffective, and unnecessarily cruel. Seals are innocent and environmentally important actors for their top-down ecosystem controls. The “seal-enticed,” increasing shark presence provides top-down ecological balancing too, even including naturally balancing the seal “nuisance.” Additionally, not only is there no evidence that sharks deter tourism,[29] but to editorialize, the Cape and Islands likely do not need much more traffic this year.[30]
Applying the MMPA to seals shows that the Act is one of the few yet likely most powerful de facto protection for animals, and thus an equally powerful tool in restoring the already stressed and ecologically depleted Atlantic Ocean. NOAA and the MMC however should expand stakeholder outreach efforts by engaging fishers and Cape residents in open, two-way dialogue to bolster faith in science, foster respect within and among our human community for seals, and ultimately to preempt any illegal seal culls. Before then, to aid and maintain the ocean’s health and natural resources, simply please leave the seals alone.
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[1] Miriam Wasser, Seals on Cape Cod are More than Just Shark Bait, wbur (Aug. 2, 2019), https://www.wbur.org/earthwhile/2019/08/02/seal-culling-sharks-cape-cod.
[4] Nat’l Oceanic and Atmospheric Admin., Species Directory, https://www.fisheries.noaa.gov/species-directory/threatened-endangered (last visited May 19, 2021).
[6]See id. (reporting that between 72,000 and 135,000 seals were killed for bounty in Massachusetts and Maine for bounty by the mid-20th century).
[7] Stephanie A. Boudreau & Boris Worm, Top-Down Control of Lobster in the Gulf of Maine: Insights from Local Ecological Knowledge and Research Surveys, 403 Marine Ecology Prog. Ser. 181, 182 (2010) (citing first HK Lotze & I. Milewski, Two Centuries of Multiple Human Impacts and Successive Changes in a North Atlantic Food Web, 14 Ecology App. 1428 (2004); and then RS Steneck et al., Accelerating Trophic-Level Dysfunction in Kelp Forest Ecosystems of the Western North Atlantic, 7 Ecosystems 323 (2004)).
[8] Kenenth T. Frank et al., Trophic Cascades in a Formerly Cod-Dominated Ecosystem, 308 Sci. 1621, 1622 (2005).
[11] Analisa Berta & Morgan Churchill, Pinniped Taxonomy: Review of Currently Recognized Species and Subspecies, and Evidence Used for their Description, 42 Mammal Rev. 207, 222–24 (2012).
[15]Id. § 1362(11) (“The term “population stock” or “stock” means a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature.”).
[17] Kristin Ampela, The Diet and Foraging of Gray Seals (Halichoerus Grypus) in United States Waters 56 (2009) (Ph.D. dissertation, New York University), https://d279m997dpfwgl.cloudfront.net/wp/2019/08/B2C6Waring-diet-and-foraging.pdf.
[23] 16 U.S.C. § 1371(a)(2); Kokechik Fishermen’s Ass’n v. Secretary of Commerce, 839 F.2d 795, 800 (D.C. App. Cir. 1988).
[24] 16 U.S.C. § 1371(a)(3)(A). The frequent references to principles of resource protection and conservation mean that the “[marine mammal] species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.” Id. § 1361(2).
[30] Katie Johnston, On Cape Cod, Business Owners are Getting Ready for a Season of Record Crowds and Worker Shortages, Boston Globe (Apr. 6, 2021), https://www.msn.com/en-us/news/us/on-cape-cod-business-owners-are-getting-ready-for-a-season-of-record-crowds-and-worker-shortages/ar-BB1fmELG; Rick Sobey, Cape Traffic Ahead of the Summer Influx: Sagamore Bridge Lane Closures for Weeks, Boston Herald (Apr. 12, 2021), https://www.bostonherald.com/2021/04/12/cape-traffic-ahead-of-the-summer-influx-sagamore-bridge-lane-closures-for-weeks/.
About the Author
Ryan Clemens is a JD/MEM student at Vermont Law School and Yale School of the Environment from Massachusetts. He plans to first advocate for both conservation and stakeholder engagement and equity in the co-management of marine and coastal natural resources, and second to litigate for environmental quality, climate resiliency, and conservation within coastal development.
By: Tyler Yeargain | Associate Director, Yale Center for Environmental Law and Policy
February 15, 2021
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What if things had gone differently in 2020? There are countless ways to present the hypothetical—what if Pete Buttigieg had won Iowa outright, and walked away from the caucus with momentum?[1] What if Joe Biden hadn’t been endorsed by Congressman Jim Clyburn just before the South Carolina primary, preventing him from securing a landslide win in the state?[2] What if Elizabeth Warren hadn’t delivered a knockout blow to Mike Bloomberg on the debate stage, allowing his campaign to finish strong?[3] What if any of these things happened, resulting in Vermont’s own Bernie Sanders as the Democratic nominee for President in 2020? And what’s more—what if he won? Instead of the mittens memes from Inauguration Day,[4] we would’ve instead been gifted with countless meme-able moments from Bernie’s inauguration speech.
We also would’ve been confronted with a particularly sticky problem: how to replace Bernie in the Senate. Because the current Governor of Vermont, Phil Scott, is a Republican, he could’ve appointed a Republican as Bernie’s replacement. (He promised not to,[5] but he would’ve been under no obligation to keep that promise.) That could’ve shifted a 50–50 Democratic Senate to a 51–49 Republican Senate, at least until a special election could be held.
But wait. Some states—namely, Arizona, Hawaiʻi, Maryland, North Carolina, and Wyoming[6]—require that a Senate vacancy be filled with a same-party appointment. Surely the same sort of requirement could’ve been imposed by the Vermont General Assembly, requiring Governor Scott to pick a Democrat to replace Bernie.
Yes and no. Yes, such a requirement could’ve been imposed. No, it likely wouldn’t have helped. There are a couple main problems with how this requirement likely would’ve utterly failed, or would’ve needed to be a tangled web of exceptions and asterisks, but it’s easy enough to unpack.
First, we need to understand how most same-party replacement systems work. While they’ve only been sparingly adopted at the federal level—and thus we don’t have much of a track record for how they play out—they’ve existed at the state level in some form or another for over a century.[7] These systems come in many different forms. As I’ve explained elsewhere, sometimes they give the appointing power to the governor, sometimes to a county commission, sometimes to the state legislature, and sometimes even to the state party directly.[8] But the Seventeenth Amendment to the Constitution makes this an easy question for U.S. Senate vacancies—the Governor is required to fill the vacancy.[9] So a same-party requirement could loosely require the Governor to simply appoint a member of the same party, or it could require the state party to give the Governor a list of potential candidates, a list from which they must pick one.
But that’s only half the battle. What does “same-party” mean? In many states, “party” is (implicitly) defined as the party that nominated the candidate at the most recent election; in many others, it’s defined as the party with which the candidate was associated or affiliated most recently.[10] (This distinction matters a lot for state legislators who switched parties.)
And so we immediately come to a problem in Vermont. In 2018, the most recent election for the Class I Senate seat that Bernie holds, he was nominated as a Democrat—but declined the nomination.[11] Moreover, Vermont is one of the few states that still allows fusion-ticket voting, which enables more than one party to nominate the same candidate.[12] In 2020, for example, Lieutenant Governor David Zuckerman was nominated for Governor by both the Democratic Party and the Progressive Party.[13] So building out a same-party requirement that focuses on nomination would suffer some serious problems.
But if the same-party requirement was imposed with respect to affiliation, we’d run into a similar problem. Because voters don’t register to vote in Vermont with a party,[14] the “same party” couldn’t be based on registration. It would have to instead be based on a candidate’s informal association or affiliation with a party. In Bernie’s case, there would be a pretty strong case that he is associated or affiliated with the Democratic Party—he ran for President twice as a Democrat, was nominated by the Democratic Party in 2018, and caucuses with the Democratic Party in the Senate.
Alternatively, a same-party requirement could include a special exception for “independent” or “unaffiliated” state legislators, a practice adopted by many states.[15] In states with these processes, there is a rainbow of varying options. In some cases, the Governor can appoint whomever they want; in others, they (or the appointing official) are required to appoint another independent; in others still, there is either no explicit procedure or the seat is explicitly left vacant.[16] Colorado employs the most unusual (and, in my view, the best) option: each independent candidate for the state legislature designates a “vacancy committee” that is tasked with picking their replacement should they be elected to office and then vacate their seat.[17]
Vermont could’ve adopted such a requirement, but retroactively requiring a successful independent candidate for office to name a “vacancy committee” is suspect—and could easily run afoul of the Seventeenth Amendment, which requires the Governor to make the appointment. It’s possible that the “vacancy committee” could act as a sort-of, makeshift political party and present the Governor with several different options.
Of course, it’s possible that all of these options are unconstitutional under the Seventeenth Amendment. That’s what Vikram Amar has repeatedly argued, for example.[18] Under Professor Amar’s view of the Seventeenth Amendment, the Governor’s power to appoint is virtually unlimited, and the only thing that the legislature can do is either grant them the power or deny them the power; it cannot condition the exercise of the power.[19] I personally disagree with this view,[20] but in any event, there’s no guidance from any federal court as to whether this is constitutional. No challenge to a same-party appointment system as applied to a U.S. Senate vacancy has ever been adjudicated,[21] and given the (relative) rarity of Senate vacancies,[22] it may never be adjudicated.
In any event, the fact that Bernie wasn’t elected President in 2020, or that he didn’t end up as President Biden’s Secretary of Labor,[23] shouldn’t obviate the need for Vermont to adopt a same-party replacement system for U.S. Senate vacancies. As recent news surrounding Senator Patrick Leahy’s health has demonstrated,[24] the unthinkable is always possible. And it’s incumbent on the Vermont General Assembly to plan for the unthinkable—and to avoid an outcome in which an untimely vacancy flips a Senate seat, and with it, control of the federal government.
—
[1] Domenico Montanaro, 3 Big Questions After the Iowa Results Meltdown, NPR (Feb. 4, 2020, 2:00 PM ET), https://www.npr.org/2020/02/04/802681380/what-the-iowa-meltdown-means-and-where-we-go-from-here (“[I]magine, for example, if on caucus night, it was known in prime time that Sanders and Buttigieg were the top two. And imagine what that would mean for Biden’s candidacy — and fundraising.”).
[2] Donna M. Owens, Jim Clyburn Changed Everything for Joe Biden’s Campaign. He’s Been a Political Force for a Long Time., Wash. Post (Apr. 1, 2020, 6:00 AM EDT), https://www.washingtonpost.com/lifestyle/style/jim-clyburn-changed-everything-for-joe-bidens-campaign-hes-been-a-political-force-for-a-long-time/2020/03/30/7d054e98-6d33-11ea-aa80-c2470c6b2034_story.html.
[3] Christopher Cadelago & Sally Goldenberg, Bloomberg Tumbles Heading into Super Tuesday, Politico (Feb. 27, 2020, 4:30 AM EST), https://www.politico.com/news/2020/02/27/bloomberg-super-tuesday-polls-117796.
[4]E.g., Lisa Rathke, Bernie Sanders’ Mittens, Memes Help Raise $1.8M for Charity, Associated Press (Jan. 27, 2020), https://apnews.com/article/bernie-sanders-mittens-memes-charity-3f8afd8e8a5a0b8b9709dd6d4d30ec13.
[5] Paul Heintz, Scott Says He Would Replace Sanders with Democrat-Affiliated Independent, Seven Days (Burlington, Vt.) (Oct. 23, 2020, 4:26 PM), https://www.sevendaysvt.com/OffMessage/archives/2020/10/23/scott-says-he-would-replace-sanders-with-democrat-affiliated-independent.
[6] Tyler Yeargain, Same-Party Legislative Appointments and the Problem of Party Switching, 8 Tex. A&M L. Rev. 163, 196 n.219 (2020), https://scholarship.law.tamu.edu/lawreview/vol8/iss1/6/.
[7] Tyler Yeargain, The Legal History of State Legislative Vacancies and Temporary Appointments, 28 J.L. & Pol’y 564, 587–601 (2020), https://brooklynworks.brooklaw.edu/jlp/vol28/iss2/4/.
[9] U.S. Const. amend. XVII (amended 1913) (“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”).
[11] Sean Sullivan, Bernie Sanders Wins the Democratic Nomination. Just Don’t Expect Him to Run with It., Wash. Post (Aug. 14, 2018, 8:23 PM EST), https://www.washingtonpost.com/politics/2018/live-updates/midterms/live-primary-election-results/bernie-sanders-wins-the-democratic-nomination-just-dont-expect-him-to-run-with-it/?arc404=true/.
[12] Adam Morse & J.J. Gass, Brennan Ctr. for Justice, More Choices, More Voices: A Primer on Fusion 1–2 (Oct. 2006), https://www.brennancenter.org/sites/default/files/2019-08/Report_More-Choices-More-Voices.pdf.
[13] Jane Lindholm & Emily Aiken, Candidate Conversations: David Zuckerman Runs for Governor, VPR (Oct. 13, 2020), https://www.vpr.org/post/candidate-conversations-david-zuckerman-runs-governor#stream/0.
[14] Taylor Dobbs, How Will Bernie Sanders (Officially) Become a Democrat?, VPR (May 1, 2015), https://www.vpr.org/post/how-will-bernie-sanders-officially-become-democrat#stream/0.
[15] Tyler Yeargain, Third Wheeling in the Two-Party System: How Same-Party Replacement Systems Impede the Replacement of Independent and Third-Party Legislators, 123 W. Va. L. Rev. 393, 403–409 (2021).
[18]See generally Vikram David Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hastings Const. L.Q. 727 (2008) (arguing that the Seventeenth Amendment precludes such requirements).
[20] As does Professor Sanford Levinson, see generally Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How Best to Interpret the Seventeenth Amendment, 35 Hastings L.Q. 713 (2008).
[21] The closest that a court got to reaching the issue was the Ninth Circuit in Hamamoto v. Ige, but the panel declined to reach the constitutional argument, concluding that the issue was moot. 881 F.3d 719, 723 (9th Cir. 2018) (per curiam).
[23] Dan D’Ambrosio, President-elect Biden Explains Why He Passed on Sanders for Labor Secretary, Burlington Free Press (Jan. 8, 2021, 5:04 PM ET), https://www.burlingtonfreepress.com/story/news/2021/01/08/biden-decides-not-tap-sanders-labor-secretary/6601923002/ (“Biden said Sanders agreed that after the Georgia run-off, having a special election in Vermont to replace Sanders should he join Biden’s Cabinet was too risky.”).
[24] Burgess Everett, Leahy’s Hospitalization Shows Dems’ Majority Hangs by a Thread, Politico (Jan. 27, 2021, 11:26 AM EST), https://www.politico.com/news/2021/01/27/patrick-leahy-health-463080.
About the Author
Tyler Q. Yeargain is the Associate Director of the Yale Center for Environmental Law and Policy at Yale Law School. He graduated from the Emory University School of Law with High Honors in 2019 and subsequently clerked on the United States Court of Appeals for the Eleventh Circuit for Judge Lanier Anderson. His research focuses on the relationship between the formation of state government institutions and policy outcomes in a variety of areas—especially in criminal, election, and environmental law.
By: Christian D. Petrangelo | Attorney, Regulatory Compliance Specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc.
January 14, 2021
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The “unprecedented” year of 2020—the year that COVID-19 took over the world—challenged society in ways not seen in many people’s lifetimes. In the United States, the federal government’s tepid and chaotic response failed to “flatten the curve” of the virus. Just one example is the federal Occupational Safety and Health Administration’s (OSHA’s) reluctance to issue a rule governing employer responses to COVID-19 to protect all workers in the American workplace.[1]
A Patchwork Approach to Addressing COVID-19 in the Workplace
In the absence of federal regulation, some states—including California,[2] Virginia,[3] and Oregon[4]—have begun filling in the gap via COVID-19 workplace emergency temporary standards (ETS). While the content of these state rules varies, employers may be required to conduct workplace exposure assessments, notify infected employees and others in proximity, allow employees to access their own medical records, create return-to-work procedures, enforce social distancing, and conduct sanitation and disinfection of the workplace.[5] A separate section of Virginia’s ETS contains requirements for hazards or job tasks considered “medium,” “high,” or “very high” exposure risks.[6]
For larger companies operating in both ETS and non-ETS states, this patchwork of state requirements presents a potential compliance problem, as well as a legitimate health and safety issue for employees. In the absence of a federal standard, could OSHA attempt to use an employer’s compliance with a state ETS to impute knowledge of a recognized COVID hazard in non-ETS states, through the General Duty Clause (GDC)? To consider this question, we must take a closer look at the GDC.
The General Duty Clause & Employer Hazard Recognition
OSHA’s GDC states: “(a) Each employer – (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .”[7] The GDC is effectively a back-pocket enforcement mechanism for OSHA to use where no specific standard applies to the hazard or situation in question.[8]
To prove a GDC violation, OSHA must show that: “(1) a condition or activity in the workplace presented a hazard, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.” The agency also must establish that the employer knew, or could have known based on reasonable diligence, of the hazardous condition.[9]
So what constitutes a “recognized hazard”?[10] The Occupational Safety and Health Review Commission (OSHRC) found that “[a] hazard is deemed ‘recognized’ when the potential danger of a condition or activity is either actually known to the particular employer or generally known in the industry.”[11] The OSHA Field Operations Manual elaborates that a hazard may be recognized on the basis of employer, industry, or “common-sense” recognition.[12] Of these, employer recognition is the most likely to impact the question at hand.[13]
U.S. circuit courts and the OSHRC have weighed in on employer recognition. For example, the U.S. Court of Appeals for the Ninth Circuit found employer recognition where the employer had actual knowledge of a hazardous condition.[14] The Fifth Circuit held that employer recognition may be found “absent direct evidence of subjective belief” where the hazard is “obvious and glaring.”[15] Perhaps most importantly, the Sixth Circuit found that evidence of employer safety efforts is relevant to the question of hazard recognition.[16] However, the OSHRC “has been reluctant to rely solely on an employer’s safety precautions to find hazard recognition absent other ‘independent evidence.’”[17]
On employer safety efforts, OSHA may reference the following documents as evidence of employer recognition of a particular hazard: work rules,[18] company safety programs/policies,[19] handbooks, memoranda, standard operating procedures, operations manuals, collective bargaining agreements and contracts, Job Safety Analysis forms, safety audits, actual prior incidents, near misses known to the employer, injury and illness reports, or workers’ compensation data.[20] In addition, the OSHA Field Operations Manual states that compliance officers may look to prior federal or state OSHA inspection history involving the same hazard.[21]
Multistate Employer COVID Liability on the Cusp of the Biden Era
This high-level overview of current rules and precedent suggests that OSHA, via the GDC, could point to an employer’s safety policies implementing a state COVID ETS to impute knowledge of COVID hazards in non-ETS states. In particular, if a multistate employer has company work rules, safety procedures, and/or standard operating procedures addressing a state COVID ETS, then the employer could be obligated to protect employees in non-ETS states at a similar level. These preexisting rules, policies, and procedures could also be considered a feasible and effective means of abating COVID-related harm.
The question could then become whether “independent evidence,” such as managerial testimony, would be needed to corroborate this safety-policy evidence. In the event that federal OSHA or an equivalent state agency has conducted an inspection of the company’s premises in which COVID was discovered to be a hazard, this could also impute the necessary knowledge to the employer.
Therefore, large employers operating in both COVID-ETS states and other states should take the utmost precaution and aim to protect all of their employees at the more stringent state-ETS level to minimize liabilities. This confusing state patchwork of compliance requirements may not be around for long, of course. With a Biden administration poised to assume control of the federal government, an overarching OSHA COVID standard may be here sooner than we think.
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[1] While OSHA has not conducted any formal rulemakings on COVID-19, the agency has issued guidance documents clarifying how employers should handle the pandemic under current rules. See, e.g., Lee Anne Jillings & Patrick J. Kapust, Occupational Safety & Health Admin., Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (2020) (clarifying that COVID-19 is a recordable illness under 29 CFR Part 1904), https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
[5] 16 Va. Admin. Code § 25-220-40 (2020) (using Virginia as an example).
[6] 16 Va. Admin. Code § 25-220-50–80 (2020). These heightened requirements address engineering controls, administrative and work practice controls, personal protective equipment (PPE), employee training, and infectious disease preparedness and response plans.
[12] Field Operations Manual, supra note 8, at 4-12.
[13] Under industry recognition, OSHA has stated that state and local laws and regulations can be used to impute knowledge; however, the agency specified that these rules must “apply in the jurisdiction where the violation is alleged to have occurred,” which would not address the situation of multistate employers operating in ETS and non-ETS states. Field Operations Manual, supra note 8, at 4-13.
[14] Magma Copper Co. v. Marshall, 608 F.2d 373, 376 (9th Cir. 1979).
[15] Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984) (quoting Tri-State Roofing v. OSHRC, 685 F.2d 878, 880–81 (4th Cir. 1982)).
[21] Field Operations Manual, supra note 8, at 4-12.
About the Author
Christian is an attorney and regulatory compliance specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc. Christian proudly served as Senior Managing Editor of the Vermont Law Review for Volume 36 (2011–2012). He holds a J.D. from VLS (2012) and a Master’s in Environmental Policy & Regulation from the London School of Economics (2009).
By: Sophia Kruszewski| Vermont Law School, Center for Agriculture and Food Systems’ Clinic Director & Assistant Professor of Law
December 10, 2020
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Vermont is known for its vibrant local food culture and small-but-mighty farm economy. Home to 6,800 farms, Vermont leads the nation in maple syrup production and ranks among the top 10 states for certified organic farms (in terms of both acreage and number of farms) and for local food sales. In 2016 alone, sales from Vermont producers directly to consumers, retailers, institutions, and local distributors like food hubs totaled $250 million. Vermont’s farm and food businesses also directly employ over 64,000 Vermonters; food manufacturing is the second-largest manufacturing industry in the state. Clearly, Vermont’s local food sector is a strong driver of the state’s economy.
The picture is not entirely rosy, however. Even before Covid-19 exacerbated low milk prices, Vermont dairy farms were in crisis. The average age of Vermont farmers is just under 56 years old and over 30 percent are over 65, presaging the significant degree of farmland that will change hands in the coming years. Whether that land remains in agriculture depends not only on having the next generation of farmers ready to step in, but also on whether land prices offer a competitive option for the exiting farmer, while still being affordable for the incoming one.
The vast majority of farms in Vermont are small, family farms; the average Vermont farm is 175 acres, significantly smaller than the national average of 441 acres. Strikingly, 72 percent of Vermont farms bring in less than $25,000 in average annual sales; only 16 percent have $100,000 or more in sales. What’s more, the average net cash farm income is only $26,215, well below the national average of $43,053, making it unsurprising that many farmers work additional off-farm jobs for some portion of the year.
Recently proposed and enacted Vermont legislation recognizes and seeks to overcome some of the varied challenges the agriculture sector faces. Act 83, which became law in 2019, calls for the Vermont Agency of Agriculture, Food, and Markets to lead in developing a report with recommendations to stabilize, diversify, and revitalize Vermont’s agriculture economy. (The report, presented to the legislature in early 2020, provides a comprehensive assessment of the need and opportunity by agricultural product, market, and issue.) Act 83 also established a legislative working group to explore how farmers can receive payments for the ecosystem benefits they produce on their farms. And a bill introduced in early 2020 would significantly expand the state’s purchasing of local food in schools and correctional facilities through numeric targets and reimbursements.
In addition to public policy, affordable legal services play an important role in sustaining and growing Vermont’s local food sector. Lawyers can assist with a wide range of farm business needs including: farm transfer and acquisition; business and estate succession planning; legal entity formation; drafting and reviewing contracts; advising on employee classification and compliance with labor laws; liability and risk management; and navigating the increasingly complex web of federal, state, and local regulations that apply to food and farm businesses. Indeed, farm and food clients share much in common with other clients seeking business and legal advice. Yet, many small-scale farmers and food entrepreneurs may be unfamiliar working with an attorney or unable to afford one, even when transactional legal counseling could significantly benefit their businesses. That’s why, in January 2020, Vermont Law School’s Center for Agriculture and Food System launched the Vermont Legal Food Hub. This new program seeks to overcome some of these barriers and help bridge the gap between the agricultural and legal sectors. Not only does the Vermont Legal Food Hub offer free support to our state’s farmers and food producers, but also it can open new doors for VLS students and graduates.
A joint initiative between CAFS and Conservation Law Foundation (CLF), this innovative program connects farmers, food entrepreneurs, and food system organizations across the state with free legal services, building on a regional program that Dean Jennifer Rushlow started while head of Food & Farm at CLF. The first Legal Food Hub launched in 2014 in Massachusetts. Since then, Hubs have opened in Maine, Rhode Island, Connecticut, and Vermont, connecting over 500 participants across the region with free legal support and leveraging over $3M in pro bono assistance. To be eligible for free assistance, applicants must meet certain income eligibility requirements and go through an intake process, after which they are connected with a skilled attorney who practices in that area of the law.
Not only does this program provide a much needed service, increasing access to legal assistance for low-income food and farm businesses, but also it is providing unique opportunities for VLS students and alumni to build food and agriculture law practices. The Legal Food Hub now has over 160 firms in its regional network of volunteer attorneys; 20 of those are in Vermont, including CAFS’ Food & Agriculture Clinic, and including many VLS alumni.
CAFS operates the Vermont Hub, and since we launched in January 2020, we have placed over twenty cases with participating law firms. Farmers have comprised 60% of our placements, nonprofits 30%, and food entrepreneurs 10%. Across all categories of participants, assistance selecting and forming a legal entity is by far the most commonly identified legal need, accounting for over 70% of all requests. Other common legal issues that have come in through the Hub relate to land use and real estate, contracts, intellectual property, and employment and labor.
While we have placed many of these cases with our ever-growing network of volunteer attorneys, we also place some cases in CAFS’ Food and Agriculture Clinic, providing an opportunity for students to work with local food clients on a range of transactional and regulatory matters. For example, we worked with a food hub navigating food safety regulations and licenses at the state and federal level. We reviewed a contract agreement for a farmers’ association that rents out conservation equipment so farmers can plant seeds with minimal disturbance to the soil. We provided consultation on a trademark matter for a nonprofit that works to increase access to and availability of local food through marketing, aggregation, and distribution. And students enrolled in the Spring Food and Agriculture Clinic will have the opportunity to work with a group of Vermont processors exploring options for establishing a collaborative business model that enables them to share processing and marketing infrastructure.
Not only do these experiences enable students to build their issue-spotting, legal reasoning, client counseling, and other legal and professional skills, but also they provide invaluable opportunities to build relationships within the community. As we see it, providing direct legal services complements our Clinic’s other more policy-oriented work. Not only do we get to give back to those who work tirelessly to feed us, but also we can identify areas of the law where additional legal resources or policy solutions are needed, fueling our work as advocates for the community and world.
About the Author
Sophia Kruszewski is the Center for Agriculture and Food Systems’ Clinic Director and an Assistant Professor at Vermont Law School. In addition to directing the Food and Agriculture Clinic, Professor Kruszewski oversees the Vermont Legal Food Hub, a joint initiative between CAFS and Conservation Law Foundation that matches eligible Vermont farmers, food entrepreneurs, and food system organizations with free legal services. Prior to joining the faculty at VLS, Professor Kruszewski was a Senior Policy Specialist with the National Sustainable Agriculture Coalition. In that capacity, she advocated for federal agriculture policy reform at the legislative and administrative level, and developed expertise in the impacts of federal law and policy on farm viability. While a student at VLS, Professor Kruszewski clerked for the White House Council on Environmental Quality, interned with the Honorable Judge Paul L. Friedman of the Federal District Court for the District of Columbia, was a researcher for the Institute for Energy and the Environment and the Center for Agriculture and Food Systems, and served on the editorial staff of the Vermont Law Review.
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.
