ELC 2025: The Importance of Belonging to Blue Sky Thinking by Keith H. Hirokawa

In the era of climate boiling, belonging is essential for survival.  Yet, for reasons that are not understandable through a lens of history, human health, economics, community well-being, equity, or fairness, the current administration has targeted for cancellation federal programs that are designed to safeguard the most vulnerable among us.  We are witnessing the normalization of unAmerican policies in which it is not just a disadvantage to be poor and/or homeless, it might even be illegal; where it is not just a disadvantage to be a person of color, it might be illegal; and where it is not just a disadvantage to be mentally or physically disabled, young, old, female, foreign, gender fluid, gay, or trans, it might be illegal.  The stakes here involve the relationship between governance and belonging.  

It is generally agreed that “belonging is a fundamental human need that almost all people seek to satisfy.”  Belonging represents the ideal of being in a place that centers agency and authenticity, that fosters a sense of being included and supported, and establishes a place where individuals are not compelled to hide, step aside, or blend into the surroundings.  Belonging is the recipe for a safe and secure community.  Belonging is such an important human need that it would seem to be a central feature of governance and government.  U.S. history has demonstrated a slow but steady evolution toward a civic society in which all people have an opportunity to belong: from the Civil Rights Act, DACA, USAID, rights emanating from Roe v. Wade, and other laws and programs, the United States claimed the moral high ground through progressive, inclusive politics that centered the care of people, regardless of their situation or identity.  The U.S. was trending—albeit slowly—towards an inclusive society that illustrated governance for the purpose of belonging.

The current administration is aggressively revising the standards for who and when certain people can belong in the United States.  The Miami Herald Editorial Board’s mock checklist illustrates the absurd approach ICE assailants use: 

• Does this future patriot drive a truck that does no more than 5 mpg of beautiful fossil fuel? Approve. 

• Did the wannabe American show up to the immigration interview in a Prius or electrical vehicle? (Please consult your supervisor regarding the status of Tesla, as the president and Elon Musk may still patch things up.) Deny. 

• Send applicants straight to Alligator Alcatraz if they rode a bike, because this is America, not Europe. 

• Was the future model citizen spotted at the U.S. Capitol on Jan. 6, 2021? Approve. 

• Has this ungrateful person posted anything complaining about the cost of groceries since Jan. 20, 2025—because “inflation is down to a perfect, beautiful number,” the president has to constantly remind us? Deny. 

• Does this soon-to-be great American thank the president every day for protecting us from mail ballots, windmills, foreign invaders and paper straws? Approve—immediately.

This is, of course, only a partial list. The unstated but central element of belonging in the U.S. seems to be whiteness.  Moreover, given the race to deport and “clean up” cities, a race in which the administration’s objective of mass deportation has been elevated over the means of accomplishing the task, we should also add other important human features that appear to be conclusive of non-belonging:  country of origin, gender, sexuality, age, both physical ability and mental acuity, and, of course, those Haitians in Ohio accused of eating the cats and dogs. Notably, it appears that even operating a business that pays homage to Trump is not the safe haven we might have expected.  

We might react by asking who decides who belongs, and on what basis. These might be interesting questions, and they are certain to invoke complicated legal and political answers.  But the questions mask the absurdity of the challenge: how are these even serious questions in a democratic state?  The absurdity is in the attempt to neutralize what should be an uncontroversial observation: every resident should have an opportunity to engage in their community and feel belonging. Denying belonging by dispossession or exclusion—also known as Othering—is a violent act that inflicts a variety of harms, including anxiety, loneliness, and lack of companionship.  Denying belonging ensures that an Other does not feel part of the community and that they are not represented.  We should not be so vicious.  Governance should be an exercise in facilitating the well-being and belonging of all people.   

This is especially the case in the climate boiling era, when the onslaught of climate impacts such as sea level rise, extreme heat, wildfires, water and food scarcity, vector-borne disease, and severe storms exacerbates vulnerabilities. Governmental support and assistance should be afforded based on our presence and our needs, and not on whether we voted for the current president. 

Instead, we are witnessing an aggressive effort to reinstitute and expand what Elijia Anderson calls the White Space into the white, male, “homegrown,” heterosexual, binary, and able space.  Outsiders to this framework may be allowed entry, but only if they dance: whether they are teachers conceding that Trump won the 2022 election to relocate to Oklahoma, law firms pledging not to sue the administration, or universities consenting to political demands on their curricula, the current administration taxes us for the right to belong.  Yet belonging is the antidote to hate, racism, segregation, and structural bias, and it is antithetical to policies of exclusion and domination. Institutionalizing belonging is an act of governance that respects all people, regardless of their differences, and is essential to creating livable, resilient societies in the climate era.   

Keith H. Hirokawa is a Distinguished Professor of Law at Albany Law School.

ELC 2025: Reframing the Environmental Law Classroom Narrative by Laura Mott, Jessica Owley, and Leehi Yona

Every fall, many incoming law students arrive on campus with idealistic visions of changing the world. They may come filled with a passion for justice, environmental protection, human rights, or corporate reform. They want to think critically, tackle systemic problems, and make meaningful change. Then we hand them cases about foxes—or minimum contacts, or chickens—and  spend lots of time on legal analysis fundamentals. Of course, the analytical framework of Issue, Rule, Application, and Conclusion is central to legal reasoning and law student learning; nurturing students’ ability to recognize, remember, and apply law is critical—much of the first year of law school is about building new neural pathways to facilitate complex legal reasoning. However, first-year students often struggle to square their classes with the immediate realities of our world, and with their “why” for coming to law school. Strengthening these connections— side-by-side with fundamentals—can harness students’ passions and foster engaged learning. Crucially, such a reframing of the law school narrative is also a powerful way for students to remain optimistic in turbulent times.

Without intentionally providing avenues for our students’ passion at the onset of their legal education, we risk both subduing the spirit that first drew them to law school and foreclosing opportunities for the next generation to develop creative and novel legal approaches. Two often-overlooked opportunities can help us in this effort: (1) incorporating storytelling in teaching and (2) expanding early pedagogical approaches, especially in the first year, beyond federal and common law paradigms. 

Such cross-curricular strategies align with current trends and developments in legal education and licensure. Law school teaching is increasingly emphasizing experiential learning credits: the American Bar Association has proposed amending Standard 303 to double the required amount of experiential learning credits from 6 to 12. The NextGen bar exam will test foundational concepts (e.g. Contracts, Torts, Property, etc.) together, in an increasingly cross-doctrinal model, and with a greater emphasis on practice skills. Making connections between concepts in different doctrines and building a greater experiential foundation prepares students not only for academic and licensure success, but also for the realities of practice. This tees them up to make creative, holistic arguments, and prepares students for the diversity of pathways they may take after graduating. 

The Power of Proactive Legal Narratives

Reactive storytelling has long dominated legal education. In environmental law, for example. we often traditionally teach doctrine through stories of disasters, failures, and conflicts. In an environmental law context, this method–without more–can embed the troubling assumption that law is primarily a tool for responding to crises – or at best preventing them. Law seeks to stop bad stuff, but are we reinforcing how it fosters good stuff? 

The conservative legal movement is remarkably effective at storytelling—crafting compelling narratives of individual liberty, economic freedom, and constitutional originalism that resonate across decades and drive policy change. Meanwhile, progressive victories get lost in technical discussions of regulatory compliance or procedure. The problem isn’t that we’re not telling enough stories—it’s that we’re telling the wrong stories. 

Consider an introductory Environmental Law class, where students frequently learn about the National Environmental Policy Act (NEPA) through cases where the process failed, or about climate change through litigation losses. Even Massachusetts v. EPA, the rare successful federal climate suit, is presented as a surprise win that most environmental groups expected to fail and whose success felt short lived. While these cases teach important doctrinal points, they subtly reinforce the idea that U.S. environmental law, while a huge legislative success at inception, has turned to playing defense, limiting damage, and fighting uphill battles. 

But what if we flipped this narrative? What if we taught our environmental law courses with success stories as throughlines—laws that were passed proactively and are quietly doing good work every day? These proactive stories don't just have potential to inspire students; we can use them to teach deeper legal practice skills. Instead of learning only how to spot violations and craft remedies, students may benefit if their knowledge of these laws develops concurrently with instruction on how to design effective policies, buildcoalitions, and create implementation systems. They can continue the real-world momentum that brought many of them into law school and foster students’ instincts to use the law as a tool for building the world we want, not just fixing the world we have. Of course, we can’t just teach the successes, but with powerful stories underlying the approach students may be more inspired to think creatively and see potential for change.

Introducing success narratives early in legal education supports powerful, positively- anchored and strongly scaffolded instruction. If students encounter their first cases about environmental protection through stories of innovative policy solutions and creative leaders rather than ecological disasters and retrenchment, they are primed to develop a fundamentally different relationship with the field—one with more possibilities than limitations, and one that models the importance of innovative and creative leadership. This initial framing can become the lens through which they view subsequent material, approaching legal problems as opportunities for creative problem-solving rather than damage control. 

Breaking the Federal Law Bubble 

The second major limitation in traditional legal education is its practice of focusing primarily on federal law (and secondarily on state common law). This might seem natural—federal cases create binding precedent, federal agencies have broad regulatory power, and federal courts handle many high-profile disputes. But this focus risks creating a tilted picture of how law operates in practice.

For many areas of law in which students are most interested, the most important developments happen at state, local, or international levels. The typical first-year curriculum, however, might treat these other sources as peripheral curiosities rather than integral parts of the legal system. Common law courses like torts and contracts, which primarily use state law to teach the evolution of foundational concepts, may relegate federal or international law in opinions. Students often graduate believing international law is somehow less “real” than domestic law, despite the fact that international agreements shape everything from trade policy to human rights protections. In fact, there are strong arguments that international law is a part of U.S. law. This omission forecloses the opportunity to engage in a rich “sources of law” discussion where students have opportunities to compare U.S. common law and international customary law and build a deeper understanding of the development and functionality of juridical systems. 

Students need to understand that these pathways exist, rather than assuming federal court silence means legal irrelevance. The positive scaffolding effect of this broader exposure cannot be overstated. Students who learn from the beginning that legal problems routinely cross jurisdictional boundaries develop “jurisdictional fluency”—the instinct to consider multiple legal frameworks when approaching any issue. This early anchoring might shift their entire approach to legal practice by providing them with tools to develop a more expansive “theory of the case”— in turn making them more effective advocates and more sophisticated legal thinkers. 

Toward Inspiring, Holistic Legal Education

These two reforms—incorporating proactive narratives and expanding beyond and across federal and U.S. common law—share a collective goal: helping students see law as a dynamic, creative, and globally connected enterprise rather than a narrow, reactive, and parochially American one. Both reforms acknowledge that effective legal practice requires not just analytic skills but also imagination, empathy, and strategic thinking.

Consider again how these approaches might work together in practice. A constitutional law class could explore how other democracies and U.S. states have designed constitutional systems to promote rather than merely protect rights—showing students proactive constitutional design rather than just defensive constitutional litigation. An environmental law class could structure a unit around examining how international environmental agreements create frameworks for domestic innovation rather than focusing solely on domestic enforcement failures. And demonstrating how local governments are vital actors in an introductory environmental law course exposes students to the type of government rules and agencies they are most likely to interact with as lawyers and as community members.

The goal of our suggestions is emphatically not to abandon rigor or critical analysis. IRAC remains essential, federal law remains important, and students still need to understand how legal systems respond to failures and conflicts. These traditional elements, though, can be part of a richer educational experience that also shows students how law can be proactive, creative, and internationally engaged. 

The students who arrive each fall with dreams of changing the world aren't naive—they're prescient. Law is one of the most powerful tools for social change, policy innovation, and global cooperation. Rather than immediately redirecting that energy toward siloed topics, perhaps we should show them how topics connect, and how diversifying their legal skill set can serve their broader ambitions. We should show them how law operates across multiple levels and jurisdictions, not just in federal courts. We should help them see legal practice as an opportunity for creative problem-solving, not just dispute resolution. We should tell them stories of legal success, not just legal failure.

Legal education at its best should inspire as well as inform. When we combine rigorous training in analysis with proactive narratives and global perspectives, we prepare students not just to practice law, but to practice law with vision, creativity, and hope. That's the kind of legal education our students deserve—and the kind our profession needs.

This post reflects ongoing conversations about legal pedagogy and draws inspiration from colleagues across multiple institutions who are experimenting with these and other innovative approaches to legal education.

Laura Mott is an Assistant Professor of Law at Lincoln Memorial University Duncan School of Law.

Jessica Owley is a Professor of Law and Environmental Law Program Director at the University of Miami School of Law.

Leehi Yona is an Assistant Professor of Law and Gearns & Russo Faculty Fellow of Environmental Law at Cornell Law School.

ELC 2025: Eschewing Exceptionalism: From Red Sky Fears to Blue Sky Legal Reform by Cinnamon Carlarne Hirokawa, Keith Hirokawa, & Jessica Owley

When we gathered as a community of scholars and concerned community members in the Summer of 2025 to engage in “blue sky thinking in a red sky world,” we began by confronting the red sky—those ominous threats gathering on our legal and social horizon. The metaphor proved apt: like sailors reading weather signs, we needed to acknowledge the storm clouds before charting a new course.  

The Red Sky: Eroding Human Rights in an Age of Exceptions

Our collective fears centered on the degradation of human rights protections, broadly conceived. Human rights encompass not merely traditional civil and political liberties (i.e., core principles of a functioning democracy), but also economic, social, and cultural rights including the right to a healthy environment, freedom from discrimination and oppression, protection from arbitrary detention, and access to basic necessities for human dignity. These rights form an interconnected web—environmental degradation disproportionately affects marginalized communities, while economic inequality undermines political participation and social cohesion—such that the failure to uphold one right impedes our ability to uphold other rights.

What is most alarming is not just the erosion (or outright rejection) of these protections, but what appears to be a fundamental shift in our societal goals. In the United States, we believed our institutions were sufficiently resilient to underpin a robust democracy capable of preventing the backsliding witnessed elsewhere, yet we seem to have abandoned human flourishing as our North Star. Aristotle’s concept of eudaimonia—often translated as flourishing or the good life—emphasized that a just society enables all its members to reach their full potential through virtue, community engagement, and the cultivation of human capabilities. This vision underlies the idea of a healthy, thriving democracy—something that the United States has always prided itself on modeling to the rest of the world. Over time, however, this idealistic and justice-oriented vision of a just society has given way to a much narrower vision of society that prioritizes metrics of success centered in economic growth and property accumulation.

This shift manifests most clearly in rhetoric around property rights, which increasingly associates property with liberty and characterizes environmental protection and social needs as something more sinister, evil, and communistic. In the United States, property rights have been elevated to a supreme status that overrides other legitimate societal interests, creating what Lorna Fox O’Mahony and others might term “property maximalism.”

The Rise of Legal Exceptionalisms

The rise of property maximalism intersects with evolving understandings of American exceptionalism to create an increasingly narrow view of which rights and whose interests matter. American exceptionalism—the belief that the United States is inherently different from and superior to other nations due to its founding democratic principles and historical development—has long sustained the comfortable assumption that we had evolved beyond a society that tolerates serious human rights abuses. 

This complicated vision of American exceptionalism always rested on shaky ground, but for decades was robust enough to convince domestic and international constituencies that there was some truth to our self-proclaimed democratic primacy. Gradually, however, the foundations of our exceptionalism have been eroded from the inside out. Even as we have loosened the hold on democratic primacy, we also have gradually embraced other forms of exceptionalism that undermine this (already shaky) foundation. Agricultural exceptionalism, as documented by scholars like J.B. Ruhl, Margot Pollans, and Jim Chen, creates special regulatory carve-outs for an industry responsible for significant environmental harm, from water pollution to greenhouse gas emissions. The Supreme Court’s major questions doctrine has spawned what might be called “economic exceptionalism,” requiring extraordinary congressional clarity before agencies can regulate large sectors of the economy—a standard that effectively shields powerful industries from necessary oversight. We are currently immersed in a type of executive exceptionalism driven by executive orders (rather than laws) and white nationalism (rather than human safety and constitutional rights). 

Very troubling is the emergence of property law exceptionalism, where protecting property rights takes precedence over other legal rights and societal goals. This hierarchy places individual wealth accumulation above community welfare, environmental protection, and even basic human needs like food, water, housing, and healthcare access.

In a moment when our legal system seems intent on prioritizing property over people and where notions of flourishing focus on the few instead of the many, how do we envision a pathway forward towards a more robust vision of a healthy and functioning—a flourishing—American democracy?  

Blue Sky Thinking: Resist, Restore, Reimagine

Amidst a very daunting red sky world, we embraced the idea of blue sky thinking. Blue sky thinking—creative, optimistic problem-solving unconstrained by current limitations—offers a tool for eschewing a narrow, property-centric vision of society and embracing the vision of a flourishing democracy. In this moment where we must simultaneously acknowledge the realities of the red sky world and the imperative of blue sky thinking, we embrace a framework of resist, restore, and reimagine. That is, we must simultaneously imagine how to resist further erosion of our democracy, of human rights, and of environmental protections, while we also restore basic rights, protections and services, even as we collectively seek to reimagine our society in a way that is vision-oriented, with that vision being one of human and ecosystem flourishing (the two being necessarily intertwined). To this end, we propose eschewing exceptionalism as both method and goal, while reinvigorating our collective power to maintain focus on human flourishing as law’s ultimate purpose. 

So, what does this look like in its most basic (blog appropriate) form? 

Resist the policy rhetoric that treats economic worth as a proxy for human well-being. Question the assumption that what benefits business necessarily benefits society. Challenge legal doctrines that create special protections for already-powerful interests while leaving vulnerable populations exposed. Assert the need to recognize and protect fundamental human rights that are necessary to achieve individual and collective flourishing. Support and emulate actions and movements that center care and community, such as the protests in Minneapolis, and reject the dehumanization of non-white neighbors. 

Restore the foundational American ideal of promoting general welfare alongside individual liberty. This means returning to legal frameworks that recognize that the property system facilitates and accommodates individualization of rights, after balancing property rights with property duties and incorporating into the purpose of property the needs of community, environmental protection, and human dignity. We must revive the understanding that true prosperity requires broadly shared flourishing, not concentrated wealth.

Reimagine institutional roles to support this vision. Courts could recall that interpreting property rights does not begin with championing individual claims of injury, but instead by considering whether the visions of property proposed in individual claims would cause significant damage to society (especially those who are not fortunate enough to be vested with property claims), and where property rights themselves represent a particular (often problematic) vision of anti-social worth. Administrative agencies might adopt interpretive approaches that consider cumulative impacts on community welfare rather than isolated individual claims. Property law must systematically incorporate stewardship obligations alongside ownership rights. Environmental law should recognize nature’s intrinsic value rather than treating it merely as a resource for human exploitation.

Toward a Post-Exceptionalist Legal Framework

This transformation requires acknowledging that no sector, industry, or right—including property—deserves automatic precedence over human flourishing and the fundamental human rights that underpin our ability to flourish. Instead of fashioning laws so that they serve already powerful interests, we support a legal system that consistently prioritizes the conditions that facilitate human dignity, individual belonging, and thriving in communities.   

Such a framework would assess laws and policies based on their contribution to genuine prosperity: clean air and water, stable communities, meaningful work, and opportunities for human development. It would recognize that environmental health and social justice are prerequisites for, not obstacles to, sustainable economic progress.

The red sky reminds us that current trajectories lead toward greater inequality, environmental collapse, and social fragmentation. Blue sky thinking calls us to chart a different course—one where law serves human flourishing rather than narrow interests, and where true exceptionalism lies not in exempting the powerful from responsibility, but in creating systems that enable everyone to reach their full potential.

In eschewing exceptionalism, we don’t abandon excellence. Rather, we pursue the more difficult but essential work of building legal frameworks that serve the common good while respecting individual dignity. This is the blue sky vision our red sky world desperately needs.

Cinnamon Carlarne Hirokawa is President and Dean of Albany Law School .

Keith H. Hirokawa is a Distinguished Professor of Law at Albany Law School.

Jessica Owley is a Professor of Law and Environmental Law Program Director at the University of Miami School of Law.

ELC 2025: Finding Subfederal Opportunity in Federal Environmental Abdication by Sarah Fox

Federal environmental law is being dismantled by the Trump administration and many federal courts. The elimination of green energy provisions in the Inflation Reduction Act; the removal of climate change from all federal websites, policy, data, and grants; the termination of hundreds of EPA employees; the shrinking of federal jurisdiction over wetlands following the Supreme Court’s decision in Sackett v. EPA; the erection of barriers to climate action in West Virginia v. EPA; these actions and others mean that federal environmental lawmaking cannot be expected to function currently as it has in the past.

Reasons abound why these decisions run counter to both law and good policy. But they represent our current reality. And so the question becomes: where do we go from here? If we are to engage in blue sky thinking, what do we see beneath that blue sky? Current realities likely mean a turn toward a more decentralized form of environmental law in the United States, at least for the present moment. And while that turn has many negative impacts, it also presents opportunities for the evolution of environmental law. Federal environmental statutes have long employed versions of cooperative federalism that include subfederal actors, but states and local governments will have a bigger role to play in the coming years (whether they like it or not). Finding the beneficial aspects of that transition requires identifying more clearly areas of opportunity for subfederal environmentalism. Like any such exercise, the suggestions here are necessarily incomplete and imperfect, with obstacles both legal and practical standing in the way of implementation. But this post is written in the spirit of saying not only what we do not want, but what we do, and of articulating a more deeply developed vision of the path forward. 

If the federal government is exiting environmental law to various degrees, it is the job of subfederal governments to step into that void. To the extent that they fail to do so, it is not because they are powerless. State and local governments generally have broad police powers to protect the health and welfare of their citizens that they could rely on to a substantial degree. There are many ways that subfederal governments could exercise these powers; this post will focus on potential actions in land use, renewable energy, and housing.

Land use planning is critical for both climate mitigation and adaptation measures. Beyond that, it is a powerful tool for conservation, for reducing air and water pollution, preserving the health of the land, and other integral aspects of environmental law that may be impacted by the loss of federal coverage. States have the power to require land use planning of their local governments, and many already do; states without local planning requirements should create them going forward. Importantly, that planning should incorporate long time horizons and current climate science to account for appropriate populations patterns in the future. This approach leaves the details of land use planning in the hands of local government, as it long as been, but provides an important state goal-setting and steering function. At the local level, governments have the authority to act using land use tools in a variety of ways that are protective of the environment.

These types of state and local actions can help to fill the void left by federal exiting of environmental realm. For example, following the 2023 case of Sackett v. EPA, the U.S. Army Corps of Engineers lacks jurisdiction over many of the wetland areas that previously would have received federal oversight via a Clean Water Act permit. States may have previously relied on those federal protections to support wetland health within their borders. Now, however, states no longer can point to the federal government as the entity in control of wetlands. With no one else to blame, state law and local actors should take up the mantle of conservation—and subfederal decisionmakers should be held accountable for decisions not to protect wetland areas.

As another example, in April 2025, the U.S. Fish & Wildlife Service and the National Oceanic and Atmospheric Administration published a proposed rule that would rescind the agency’s regulatory definition of “harm” in the Endangered Species Act. That definition currently includes habitat modification alongside other impacts on covered species. If the Trump Administration changes that harm definition, federal action on species protection will be more constrained going forward, as it may shrink coverage of the federal statute to only those actions that “kill or capture a wild animal.” In consequence, species recovery that relies on habitat conservation will be greatly impacted by state and local action. States should pick up the mantle by considering state level species protection and ensuring appropriate habitat conservation protections within their own jurisdictions. Local governments should also focus on land use planning that is protective of species habitat. Those government could, for instance, use mechanisms such as transferable development rights or overlay zones to steer growth out of sensitive areas for habitat. They could also include wildlife corridors as part of their planning that would allow for critical movement by species. A focus on denser development through the use of urban growth boundaries or other zoning tools can also be hugely protective for species in many areas, as it prevents sprawl outward into habitat. 

Beyond federal gap-filling, states could step into the leadership void created by the federal government and accomplish big social goals in novel ways. Renewable energy and affordable housing provide a first possible example. The federal Inflation Reduction Act of 2022 promised billions to build renewable energy, but the second Trump Administration has taken a number of actions to interfere with or—where able—to revoke much of that funding. Given current uncertainties at the federal level, states should focus on building out their own intrastate or regional energy supply solutions. In doing so, they could also take the opportunity to address growing tensions in land use about not only renewables buildout but also affordable housing. States could perhaps borrow from a federal model to structure their own regulatory programs. The Clean Air Act’s Air Quality Control Region framework offers a model of how to set an overall target that is then allocated among zones at lower levels of government. Using that structure, states could set both statewide renewable energy generation and affordable housing targets. States could then allocate those goals among substate zones and establish a metric for how to meet those goals. At the local level, communities could then be involved in deciding how to satisfy energy, housing, or both goals. Perhaps some districts will have energy and no housing; some will have housing and no energy generation. Every district will have at least some of one or the other. This scheme would help to spread the burdens of these social goods that have proved so difficult to supply in recent years and ensure that states can implement plans in a way that is responsive to local conditions. 

These kinds of measures (and hopefully many others) could go some way in making up for failures at the federal level while drawing on state and local authority that has long been in place. They would also reflect the highly localized nature of land use planning and the environment, require and bolster environmental knowledge and participation at the state and substate level, and make subfederal actors responsible for the environmental conditions within their states.

Nothing in this post is to suggest that these measures are easy, or that a federal role on climate and other environmental problems is not needed. Rather, the goal here is to point out that while the Trump Administration is irresponsibly gutting federal environmental law, it is possible to chart new paths as well. There are opportunities in the destruction of current environmental law structures, and creating more robust action at subfederal levels could serve as a bulwark against the environmental harm likely to come from current federal actions. Such actions are necessary, if not sufficient, to protect our environment going forward.

Sarah Fox is an Associate Professor of Law at Marquette University Law School.

ELC 2025: Thin Silver Linings in State Environmental Action by Gabriel Pacyniak

There is no two ways about it – the Trump Administration’s broad and unprecedentedexecutive actions to gut federal environmental law will cause significant harm to people and ecosystems throughout all of the United States. That these federal rescissions are too often being supported by the Supreme Court make them all the more dangerous. 

Are there potential silver linings to explore in these federal roll backs for state action? Perhaps so, although these silver linings in no way replace or justify the harmful effects of federal roll backs. But it may be worth spending a bit of time and energy thinking about how state action to fill the new federal gaps provides an opportunity to create and test new environmental policies that may work better – either in terms of effectiveness or efficiency – than the federal policies that they seek to replace. 

My state, New Mexico, provides a couple of examples – one related to water quality, the other related to low-income energy efficiency. 

As an arid, southwestern state, many of New Mexico’s streams and rivers are intermittent and ephemeral – that is, they don’t necessarily run year round. Especially in times of drought and in response to climate change, they either run during wetter seasons or in response to precipitation. Under the Supreme Court’s ruling in Sackett v. EPA, many of these intermittent or ephemeral streams are likely no longer protected by the Clean Water Act, since the Supreme Court held that only applies to waters that are “relatively permanent, standing or continuously flowing bodies of water.” Some estimates have found that up to 90% of waters that were protected by the Clean Water Act in New Mexico could no longer be protected. The Trump EPA is now embarking on a rulemaking to “finally address this issue once and for all.”

Under the Clean Water Act, states could implement and enforce water quality programs, if the waters at issue were protected by Clean Water Act, they had to do so within the framework established by the Clean Water Act. Where waters are not protected by the Clean Water Act, however, the federal government plays no role. 

New Mexico’s legislature and Governor Michelle Lujan Grisham have moved quickly to fill this large, new gap with new state law. The legislature passed SB 21 last year, which authorized New Mexico to both implement the federal program on federal waters and also to establish a program for permitting surface water quality on state waters. The New Mexico Environment Department is now preparing for a rulemaking to implement these new permitting programs. 

While the law hews closely to the federal program, there are some ways in which the new law can improve on the Clean Water Act. One example, SB 21 expressly requires permit denials if permits would “cause or contribute to an exceedance of downstream state or tribal water quality standards.” While the federal program allowed EPA to deny permits for violating downstream tribal water quality standards, this program mandates it. This is a big deal, especially for New Mexico’s twenty-three native nations, as it provides them with an effective way to protect their waters from upstream pollution. Implementing these provisions can also help pilot what more robust “good neighbor” provisions could look like for water quality issues.

A second example deals with funding for energy efficiency improvements for low-income households. Low-income energy efficiency improvements are an important affordability and climate solution. By cutting the amount of energy it takes to heat and cool a home, they cut utility costs for lower-income folks and make affordable housing more comfortable. The federal government has long funded such improvements through the federal Weatherization Assistance Program (WAP). But the Trump Administration has fired all of the staff implementing  the program and is seeking to zero-out funding. 

Again, New Mexico has stepped into the gap by funding its own low-income energy efficiency program, but with some differences in policy design. The Community Energy Efficiency Development Block Grant Act (CEED) provides state funds to partnerships between local governments and community-based organizations to make energy efficiency improvements in neighborhoods where lower-income folks pay too much for energy bills. While the bill was first enacted in 2022, the first round of funding is only now being implemented and the legislature appropriated a second round of $20 million this past session, in part because of federal cuts. 

Not only is this program filling gaps left behind by federal cuts to WAP, it has innovations that seek to address some criticisms of the federal programs. The legislation makes funding more flexible, so that, for example, roofs can be fixed or bathrooms can be demolded if necessary for energy efficiency improvements. And most importantly, the legislation was modelled on a pilot program in the Albuquerque’s South Valley pioneered by community-based organization Prosperity Works, a model that targets a specific neighborhood instead of individual homes across the state, promising to hit more homes with less money. 

Again, these examples should not take away from the gravity of harm being caused by the combination of federal executive branch retreat from environmental law and its support in the courts. But it is worth acknowledging that in this difficult time, there are some thin but important silver linings – ways that states are filling gaps with refinements and innovations. 

Gabriel Pacyniak is a Professor of Law at the University of New Mexico School of Law.

ELC 2025: International Precedent as a Common Law Tool by Anthony Moffa

In 2025, the International Court of Justice issued its long-awaited advisory opinion answering the question of whether governments have a legal obligation to deal with climate change. The short, bold answer was “YES.”  

In pretty much every country that’s not the United States, the public reaction was intense and even celebratory. Here, the reaction in popular media was pretty much: 🤷‍♂️ [shrug].   The New York Times ran an article asking does it even matter. After much deliberation on the matter, in the end, I think so. And here’s why.

The majority of U.S. jurists and attorneys have been outright dismissive of international law for decades. The roots of that conspiracy go all the way to the top. The United States Supreme Court has been clear that it need not follow its international brethren, repeatedly minimizing the legal significance of the opinions of international tribunals. According to our highest court, such opinions on the meaning of treaties and international law obligations deserve only “respectful consideration”—words worth about as much as the paper they were written on in 1998 and even less in today’s hyper-polarized domestic environment. In the early 2000s, the Supreme Court gave this “respect” to the International Court of Justice, permitting states to disregard the ICJ’s holdings.  

In the most straightforward sense, then, it remains practically impossible to wield the ICJ opinion against any domestic government in the United States (federal, state, or municipal) to compel them to act on climate change. They can just go about their business and ignore the ICJ’s determination that they have an obligation to combat climate change.  

Before just ending the analysis in that hopeless pit, I spent some time thinking about what use the ICJ opinion serves if it’s not binding on U.S. courts and the federal government continues to take policy and legal positions in direct opposition to what it commands. The answer I arrived at calls back to the origins of our system of law. 

The common law has always been a vehicle for courts to acknowledge the obligations citizens owe to one another. It does not depend on federal policy or even state policy or some legislative guidance. This is particularly true in the context of civil wrongs. In tort law, courts, aided by the public consciousness as embodied in the jury, serve as the ultimate arbiters of what behavior is reasonable. In determining what is reasonable, courts and juries can and do rely on their experiences (both shared and unique), their values (again, shared and unique), and, inevitably, the popular consensus of right and wrong. The standard of liability can, and does, change with the times. It is in this context that the ICJ’s opinion has the potential to most significantly shape American law. It contains text, and logic, that can be wielded by skillful, creative litigators. Their arguments could persuade juries and jurists to adopt some of the ICJ’s reasoning and incorporate it into the common law of one, or several, states.  

What follows are a few examples of specific holdings in the ICJ opinion and how they might relate to the determinations juries are asked to make in the common law tort cases.

Duty

The modern negligence action requires the plaintiff to establish that the defendant owed them a duty of care. Duty thus forms the foundation of common law responsibility; we do not hold people financial responsible to others unless we determine that some moral, and therefore legal, obligation to treat them with care exists. Duty is a question of law, and common law judges have the final say on its reach.

The ICJ spent considerable real estate laying out the duties owed by nations with respect to environmental harm, and climate change more specifically. In paragraph 272 of its advisory opinion, the ICJ held that the “duty to prevent transboundary environmental harm” is a well-established principle of international law. In so holding, the ICJ quoted the Trail Smelter arbitration between the United States and Canada, which found that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”  The Court went on to definitively state: “the duty to prevent significant harm to the environment also applies to the climate system.”

When considering the duty owed by one private actor to another, this language, and the logic it reflects, could prove powerful.  Just as any state has a duty to avoid contributing to climate change in such a way that injury occurs across its borders, so too might private actors when climate injury occurs outside their own property and sphere of operations.

Standard of Care

The scope of any duty owed defines the boundaries of liability. In other words, tort law asks the jury to determine whether the obligation the duty imposes has been satisfied. In making that determination, common law courts across our country have instructed juries using relatively generic and infinitely malleable terms—“reasonableness” chief among them. 

In the climate context, the ICJ’s opinion provides some guidance as to what behavior meets the obligations owed. In the first instance, the ICJ simply says that fulfilling the duty requires acting with “due diligence.” This phrase essentially takes the place of “reasonable care” in a common law torts analysis, and is almost as malleable and unhelpful. In Paragraph 280, the ICJ essentially admits as much, saying due diligence depends on circumstances and can evolve over time.

The ICJ, thankfully, goes on, writing “the general duty to prevent significant harm to the environment consists of substantive elements (e.g. the obligation to take appropriate measures) and procedural elements (e.g. the obligation to notify and consult).”  Appropriate measures, in the ICJ’s view, must be “designed to achieve the deep, rapid, and sustained reductions of GHG emissions that are necessary for the prevention of significant harm to the climate system.”

The standard of care with respect to the climate system might be applied by a jury to the decisions of private, corporate actors. Like the states the ICJ directed its opinion at, large fossil fuel producers and greenhouse gas emitters have the power to drastically reduce output. The failure to reduce output, in the face of the same facts the ICJ considered, could be considered culpable by common law jury.  

The most famous, and concrete, articulation of the reasonableness standard is Learned Hand’s eponymous formula.  In it, the burden (B) of a particular precaution (i.e. its cost) is compared to the expected value of the loss the precaution protects against (i.e. the product of the probability of harm and its magnitude (PxL)).  If B is less than PxL, reasonableness requires the precaution be taken.  This formula is dreaded by math-averse law students and rarely applied with precision, if at all, in the courtroom.  A common error occurs when the harm is construed overly narrowly, focusing only on the potential economic loss to the entity forgoing (or not) the precaution.  For the formula to be correctly applied, the relevant loss should not be confined to the loss felt by the entity forgoing the precaution (i.e. the one charged with negligence) but should reflect the total loss felt by society that foreseeably flows from the decision to forgo precaution.  With respect to climate change, those foreseeable looses are so significant that the ICJ has found obligations to engage in precaution at the nation state, rather than corporate entity, scale.  

Negligence Per Se-ish

The ICJ refers specifically to private actors on a few occasions in its opinion. In Paragraph 428, the ICJ is willing to attribute private conduct to states when the governments of those states fail to take regulatory measures to control them.  

Negligence per se is a doctrine that allows a jury to conclude that behavior is unreasonable because it violates codified law designed to protect people like the plaintiffs.  

If governments are obligated to control emissions, one might perceive that control as an implied protection regime. Emitters who significantly contribute to climate change would violate that regime.  

As Learned Hand famously held in the classic case of the TJ Hooper, “a whole calling may have unduly lagged in the adoption” of measures or policies.  In other words, one cannot simply point to collective inaction as conclusive evidence that to do nothing is reasonable.  Here, the ICJ has effectively held that the whole world, not just a particular calling, has unduly lagged.  The industries most responsible for climate change are arguably the worst laggards of the bunch.  

While this argument would certainly not be afforded the legal presumption, and strong jury instructions, that accompany traditional negligence per se situations, it might very well resonate with a jury.  

…

These are just my first cuts at finding ways to incorporate ICJ precedent into the common law and thereby make international climate law more meaningful domestically in the United States. My hope is that some reader(s) will take my suggestions, expand on them, and go for it. It is worth noting in closing that this strategy is not limited by subject matter or particular international tribunal; other areas where bold pronouncements have been made (e.g. human rights) also deserve common law inroads.

Anthony Moffa is a Professor of Law & Associate Dean for Innovation at the University of Maine School of Law

ELC 2025: Norms All the Way Down by Josh Galperin

We can take international law seriously. Where much international law stands merely as a symbol of international norms but falls short of enforceable law, now domestic law, in the United States, at least, has ceased to have the force of law, putting the two on equal footing. 

If you disagree with my caricature of international law, don’t fret. I don’t really know anything about it. I’m not in a position to make a serious assessment. Indeed, these are the first words I have ever written about international law. If we are to believe AI (and we emphatically should not), GPT 4o says I have never used the word “international” or the phrase “international law” in any of my published work, while Gemeni 2.5 Pro says I have used these terms in combination 121 times, but then gives examples from two articles and a book chapter that I didn’t write and, in fact, none of the three exist. Given that GPT’s response fits with the hook I want for this post, I will accept it as incontrovertible fact. Not only have I never written about international law, I have never even used the words “international law.”

The main reason I’ve never written about international law is there are so many amazing scholars writing in the field that I’ve always felt a bit intimidated (and unneeded). I am dipping my toes into international law today to, admittedly, set up a straw man. In many respects, international law is real, enforceable law, international trade and investor-state dispute settlement mechanisms are a notable example with particular relevance for environmental law. In other respects, international law is softer. In the instances where international law is not strictly enforceable, international law is nevertheless an important institution for developing shared principles and norms.

I will return to the normative capacity of international law, but before I do, I should add that another reason I’ve never written about it is my general sense, however uninformed, that for all international law offers, it does not have the same institutions or expectations for enforcement as domestic law. As Dean Krigis wrote decades ago, the fact that international law is fundamentally different from domestic law has made it the subject of “tiresome” skepticism. But things are changing. I, for one, am coming around to the importance of international law.

You might think I am coming around only in the wake of the International Court of Justice’s Advisory Opinion on the Obligations of States in respect of Climate Change. Perhaps I have been persuaded that international law is flexing its muscles and taking up domestic law’s slack regarding climate change mitigation. I do think this is a watershed development. But that’s not it. 

The reason I’m starting to pay attention to international law is that domestic law no longer carries the weight it once did. Where I might have dismissed international law claiming its value was rooted only in its norm-building capacity, that distinction no longer works because domestic law is now also basically unenforceable.  

The most precise indictment of international law as not “real” law is that international law is often voluntary. An international body like the United Nations can legislate positive legal rules—something as plain and direct as “…the sentence of death shall only be imposed for the most serious crimes…” But, with the arguable exceptions of jus cogens and general principles of law, a state can escape enforcement simply by disclaiming its responsibility under the law. You think we’re violating an international treaty? Well then, we are no longer party to the treaty. Needless to say, this jurisdictional flexibility is not historically available under domestic law. You think I was driving too fast? Well then, I am no longer a party to your speed limit. Unlikely.

In this vein, John Austin famously described international law as law “improperly so called” because international law merely resembles positive law. It cannot be law, Austin argued, because, as sovereigns, states do not have legal power over one another in the same way a state has power over its people. In international law, we may only be speaking about “rules set and enforced by mere opinion, that is, by the opinions and sentiments held or felt by an indeterminate body of men in regard to human conduct.” Austin goes on to critique Fyoder von Martens for even using the term international law. Austin contended that had von Martens “named that department of the science ‘positive international morality,’ the name would have hit its import with perfect precision.” 

Austin’s view is not the last word on this subject. Written in 1885, it was closer to the first and arguments about the realness of law are, in and of themselves, not very helpful. What is important is the focus on moral or value-based agreement as an important and distinctive aspect of governance. Austin devalues it. 

So had I. The voluntariness that permeates international law is not limited only to international dealings, of course. One might find a similar scheme in voluntary private governance regimes. For instance, in my article Governing Environmental Governance, I wrote about the Forest Stewardship Council (FSC), which is a private, multi-lateral, club that sets standards for forest management and allows members to label and market their products as FSC-certified. FSC has a mechanism to handle complaints alleging that participants have not met their obligations. It likewise has an enforcement mechanism when there is a violation. All very well until the club attempts to enforce an apparent violation, as was the case in 2023, when the recalcitrant member simply terminated its affiliation with FSC. After all, FSC establishes “a policy of shared values.” 

Just because a rule is voluntary does not make it valueless. Some policies follow norms and depend on a priori collective agreement. Other policies drive norms, helping to establish and support progress. The ICJ’s climate change opinion may not bind states, but as Judge Tladi implied in his Declaration accompanying the Opinion, the constructive, generative effects of a robust and unanimous advisory opinion are central to the Advisory Opinion’s value. 

Here in the United States, our law no longer even rises to the level of shared values, let alone binding and enforceable commands. And the softening of domestic law is happening across sources of positive law. In late August, for instance, the Trump Administration issued an executive order directing the Department of Justice to prioritize prosecuting people who burn American flags. This despite Texas v. Johnson, Supreme Court precedent directly on point, holding that flag burning is protected speech under the First Amendment. Perhaps, you might say, the Executive Order is tailored to fit within the small gaps, such as incitement of violence, that remain in the wake of Texas v. Johnson, or that a president has the authority to test the boundaries of law and seek opportunities for the Supreme Court to reevaluate past precedent. Both would be plausible rebuttals had the Vice President not explicitly said courts may not second guess the President’s power. And in any case, failing to abide by what is apparently merely a norm of protecting speech and adhering to judicial precedent is hardly the only example of the Administration’s disinterest in judicial orders. In early September, after a court ruled that the President may not use the military to enforce domestic law in American cities, the President’s first response was to announce he was readying to send troops into Chicago. This is the softening of Article III, of judicial power. And for what it is worth, this is not just my critique from the left. Justices Kavanaugh and Gorsuch recently wrote to chastise federal judges whom they believed were ‘defy[ing]” to Supreme Court precedent. 

Then there is the softening of statutory law. Where once Congress made laws that bound the public and the government alike, today the Trump Administration, at least, merely takes Congress’ statutes (and by implication, Article I of the Constitution,) as suggestions. There are now multiple examples of President Trump firing federal officials despite statutory provisions providing those officials tenure protection. Worse still, Congress has established a process for asylum seekers, requiring a review of certain applications, which the Trump government has refused to heed. Congress directs spending on all types of issues, including environmental concerns, and the government refuses to distribute the money. The list of ways federal statutory law is disintegrating continues.

We know that Congress makes law (which the President must follow) and the courts interpret law (orders of which the President must follow) because that’s the structure the Constitution establishes. But, no surprise here, even the Constitution is no longer law properly so called. When a journalist asked President Trump if he was bound by the Constitution, specifically the Due Process Clause, his response was equivocal. “I don’t know,” he said. And why should he know? The Supreme Court has been much harsher with lower courts trying to constrain the President’s—erm—equalization of international law, than it has been with Trump himself. So, we can blame the President’s ego, foolishness, or simple disinterest in our constitutional system, we can blame the Supreme Court for wielding a partisan, ideological cudgel, or we could blame Congress for bowing down to a supreme leader rather than defending its own constitutional authority. It doesn’t really matter where we place the blame because in any case, it solidifies the collapse of enforceable domestic law and in turn it puts international law on a more equal footing. By turning domestic law into voluntary standards, current American politics have undercut the criticism that international law is only norms. Now it’s all norms all the way down.

This is obviously a condemnation of the state of partisan politics and judging in the United States. It is far from the first such critique, so what’s the point? The point is that folks like me, who in the past might have look at something like last summer’s ICJ Advisory Opinion, smiled, and then forgotten about it, now know we should not forget about it. Law is not what it once was, but that’s not all that matters. What also matters is the persuasiveness of reasoning, the generative capacity of articulation, and the ability to change minds, build norms, and in turn build power. Domestic law may have once had a more cutting edge, a more direct power to control behavior. But that is no longer the case. An argument, even my own straw man argument, that international law is somehow lacking no longer works. Both domestic and international law have normative weight, but the normative direction of domestic law is now signaling anarchy and distrust. International law is a beacon of partnership and progress. It may not control our behavior, but it can light a path forward in dark times.

Josh Galperin is an Associate Professor of Law at the Elisabeth Haub School of Law at Pace University.

ELC 2025: Is the MAHA Report’s Food Focus an Aha Moment for Food Systems and Environmental Progress? by Laurie Jamile Beyranevand

While there are deep divides across the United States on nearly every issue, one thing that nearly everyone agrees on is that food should be safe. This is particularly true when it comes to what we feed our children. Over the past year, the Trump administration has issued reports, proposed regulations, and taken bold action on food safety challenges that have plagued public health advocates for decades. Within a few weeks of taking office, President Trump issued an executive order forming the Make American Health Again Commission to study and make policy recommendations on the “childhood chronic disease crisis.” The portions of the Make America Healthy Again report (MAHA report) that deal with the food system outline some ambitious goals that address food safety in ways that could radically transform the United States’ food system. In short, MAHA imagines a food system that limits our consumption of ultra-processed foods (UPFs) that are closely linked with our industrialized agricultural system. While the report and the policies that have come from it are largely focused on public health, the Administration’s stated priorities present a critical opportunity—to find bi-partisan support and agreement on major food system challenges that impact public health beyond nutrition.

Historically, the environmental movement has largely overlooked the food system—for example, food was only recently added to the agenda at the Conference of the Parties (COP28) to the United Nations' Framework Convention on Climate Change. Environmentalists have long considered food system policy as adjacent rather than integral to climate, biodiversity, and pollution-related goals. Only recently have environmental advocates realized the importance of engaging in discussions over the Farm Bill, arguably a major environmental policy. The MAHA report, its stated goals related to food safety, and the administration’s actions in response offer an opportunity for system change with far reaching impacts beyond nutrition particularly since most Americans support more government intervention to ensure food safety. The administration’s recent efforts offer a compelling example of how one seemingly narrow issue—a policy shift away from ultra-processed foods—could yield not only significant public health benefits but major environmental ones as well.

UPFs are food products that include ultra processed grains, sugars, and fats. They are high in additives and synthetic ingredients and use a significant amount of packaging from farm to plate. UPFs are central to the modern global food economy—they’re cheap to produce and shelf stable, which makes them easy to transport and store. Currently, UPFs account for more than half of caloric consumption in the United States. The production of these ubiquitous foods results in significant environmental harms, including threats to agrobiodiversity due to monocropping and pesticide use, increased use of plastics and other packaging materials and its resulting waste, and a large percentage of food-related energy use and fossil fuel emissions. These environmental harms compound the diet-related harms associated with UPFs and are cause for concern given that UPFs are unnecessary in our diets. 

Essentially, UPFs are designed for shelf stability, palatability, and scale—not for health or sustainability. And yet, there has been little discussion of the significant connection between the proliferation of UPFs in the United States, the lack of regulation to address them, and the resulting environmental harms in mainstream environmental discourse. Moreover, for the countries attempting to regulate UPFs, few have addressed the issue from a systems perspective, which is needed to account for the harmful production practices associated with them in addition to the public health concerns. The MAHA report calls for tighter regulations on UPFs through clearer labeling, advertising restrictions, and changes to procurement policy. It also acknowledges several other issues that contribute to the proliferation of UPFs, like the consolidation of the food system, crop insurance targeted solely at commodity crops rather than specialty crops (fresh produce), and the industry’s heavy reliance on hazardous substances. Most recently, the 2025-2030 Dietary Guidelines for Americans (DGAs), which direct federal procurement decisions and major nutrition programs in the U.S. stated that Americans should “eat real food” that is, “whole nutrient dense foods” rather than highly processed ones. While many have expressed concerns about the new DGAs heavy emphasis on protein, the resounding pushback against highly processed foods has the potential to impact not only eating patterns, but production methods. 

If policymakers take the next step and begin to consider a systems approach to regulating UPFs that goes beyond labeling, marketing, and procurement and began to account for inputs and production practices, we could realize significant environmental outcomes that also provide tremendous public health benefits. For one, we could see a dramatic increase in financial support through programs and subsidies for specialty crops, also commonly known as fresh produce, nuts, and floriculture. This sector only recently began to receive federal support through farm bill programs and receives far less financial support than the commodity sector. Support for specialty crops would in turn improve biodiversity, create opportunities for strong local food economies, and increase the potential for healthy soil and water outcomes.

It’s worth considering what has made these issues so palatable across the aisle and how do we use that momentum to drive larger systems change? Many of these seemingly narrow food issues represent opportunities for tangible environmental gains because they relate to something most Americans can agree on—the ability to eat and feed our children safe, nutritious food. Food has often been siloed within smaller more specialized movements and never fully integrated into climate or environmental agendas, but engaging with recent efforts to “get back to basics” and create healthier, safer food requires radical transformation of the system that produces food. This represents a tremendous environmental opportunity. While the environmental movement has made strides in addressing the global food system in relation to industrial animal agriculture and deforestation, it has mostly neglected the highly industrialized food products that fill grocery shelves, fuel chronic disease, and contribute significantly to environmental degradation. Aspects of current federal food policy efforts offer an opportunity for strategic alignment on issues that people on both sides of the aisle not only agree on but feel passionately about. 

Laurie Jamile Beyranevand is the Pescosolido Professor of Food and Agricultural Law and Policy at Vermont Law School.

MAHA and Ingroups of the New Right by Sarah Matsumoto

In his 2008 TED Talk, social psychologist Jonathan Haidt outlined research about the moral foundations of human behavior, and how these five foundations mapped onto conservative and liberal political ideologies. These foundations include care/harm, fairness/reciprocity, ingroup/loyalty, authority/respect, and purity/sanctity. Haidt explained that across cultures and countries, liberal-identifying people tended to prioritize care/harm and fairness/reciprocity much higher than the other three foundations, while conservative-identifying people tended to hold a more evenly-distributed prioritization of all five foundations, with a sharp increase in the importance of ingroup/loyalty, authority/respect, and purity/sanctity. Highlighting this increase, Haidt observed that while every country and culture tended to agree that care/harm and fairness/reciprocity were important, the “moral arguments within cultures are especially about ingroup, authority, and purity.” To the last foundation (purity/sanctity), Haidt offered a quick point about how it manifests on both the political right and political left: while the political right may moralize about sexuality, in his view, the political left is increasingly moralizing food with “ideas about what you’re willing to touch or put into your body.”

Haidt’s understanding of the dimension of purity as motivating the political left in the United States rang true when he delivered his TED Talk, amidst rising concerns about genetically-engineered foods and a 2007 statement from Barack Obama about food labeling (“Americans have a right to know what they’re buying[,]” said the candidate during a campaign stop in Iowa). But along with so much in the political landscape, the ability to successfully discern a person’s political ideology based on any stated ideas about food have become more complicated. Two decades ago, expressed skepticism about “Big Ag” and food additives more reliably signaled a left-leaning speaker or Democrat; in 2025, these statements could just as easily come from a two- or three-time Trump voter. When the aperture is widened to define “purity” to include health and wellness values in addition to food, the vision that forms in the viewfinder is of a growing political coalition unified in its rejection of establishment institutions and embrace of a “crunchy” lifestyle. This, of course, is MAHA.

MAHA, or “Make America Healthy Again,” is at once a hashtag, a campaign slogan, and a mini-movement within American culture and politics. Its origins can be traced to a rebrand of Robert F. Kennedy, Jr.’s presidential campaign—he attempted to run as a Democrat—converted into an endorsement of President Donald Trump’s campaign. Kennedy, an environmental lawyer, had been gaining a following among people who shared his opposition to the influence of large pharmaceutical and agricultural corporations, or were searching for a viable alternative to the two main party candidates. While some MAHA views, like support for removing or reducing coloring in food, offer fairly widespread appeal, others wade directly into conspiracy theory waters. After Donald Trump won reelection in 2024, MAHA followers were optimistic that Kennedy would play a prominent role in his administration and elevate the issues that they felt mattered most.

MAHA’s hopes have been partially satisfied; Kennedy was confirmed as Donald Trump’s Secretary of Health and Human Services. The White House’s recent MAHA Report identified a number of areas of concern affecting the health of America’s children (at a 30,000-foot view), including: so-called “ultra-processed foods,” environmental chemical exposure, childhood behavior in the digital age, and overmedicalization. Notably, the report excluded or deemphasized certain focal points of the official MAHA Political Action Committee, including advancing regenerative agriculture and protecting natural habitats. Critics of MAHA and Kennedy, including the conservative-leaning Cato Institute, have not been shy in pointing out the report’s inaccurate statements and errors, or in describing the Commission’s subsequent Strategy Report as having friendly eye toward industry. 

MAHA devotees have found ways to connect with one another in furtherance of their health and wellness priorities, and in doing so, offer a surface-level illustration of Haidt’s moral foundation of both “purity” and “ingroup.” According to Haidt and his colleagues, the “ingroup” foundation evolved from living in kin-based groups where dissent and criticism of the group are immoral. Rituals that reinforce or strengthen group solidarity, like reciting the Pledge of Allegiance, are considered virtuous. The New York Times recently profiled Aberlin Springs, a MAHA “agri-community” in southwest Ohio. Aberlin Springs attracts homesteaders with a vision of “familial utopia,” in which a series of families live in homes surrounding a shared, working farm. In keeping with the nuanced politics of MAHA more broadly, Aberlin Springs residents include married couples with children, single women, and LGBTQ families. As the Times reports, political signs are prohibited, and neighbors are instead drawn together by their shared interests in healthy food and the feeling of being part of an extended community. Consistent with Haidt’s articulation of the ingroup/loyalty foundation, group selection here is by unrelated people with a shared adherence to certain ideas and ideals. Rituals, like the required participation in a Community Supported Agriculture subscription, reinforce the group’s chosen identity. 

Is there anything new or unique about MAHA as an ingroup that has united the political left and political right? Recent cracks in MAHA’s foundation may reveal the answer to that question or whether MAHA can even tell us anything new about modern partisan politics. MAHA supporters (including those at the Aberlin Springs community) disagree about vaccines. Further, many of the deregulatory actions undertaken or promoted by the Trump administration are in direct conflict with MAHA goals of a healthy environment and sustainable food systems. Some MAHA supporters have been disappointed by Kennedy’s relative silence about pesticide use, especially given his past crusade against glyphosate. U.S. Dept. of Agriculture Secretary Brooke Rollins has cancelled over a billion dollars in funding that would have supported food programs benefitting regenerative and organic farms. Although more frequent and intense extreme weather events can shorten growing seasons and cause crop and livestock loss, the Trump Administration is actively seeking to remove any efforts to mitigate climate change or better prepare for its negative consequences, including consequences for domestic agriculture; President Trump announced that the U.S. is withdrawing from the Paris Agreement and the U.N. Framework Convention on Climate Change. While MAHA favors action to protect against exposure to microplastics and PFAs, the Administration terminated EPA and NIH grants supporting research in those areas. And MAGA backlash to MAHA was recently ignited when Trump nominated wellness influencer Casey Means as surgeon general.

The internal conflict within MAHA and between MAHA and the Trump administration shows the strain that this new ingroup is experiencing as it is confronted with dissent from within and disappointment stemming from perceived betrayals by its leadership. It is possible that these strains will cause MAHA to splinter into factions. Some members may search for a new ingroup, although many traditionally left-leaning MAHA supporters would likely feel less welcome in other growing movements on the political right. In rural Arkansas, another group of homesteaders is hard at work building residences and a community center. The Return to the Land Movement seeks to build a community of only white, heterosexual people; its potential residents must answer questions about ancestral heritage, and its founders openly espouse discriminatory, white nationalist views. In the Pacific Northwest, a region with a long history of far-right enclaves, the Greater Idaho movement and American Redoubt promote communities united less overtly by race and more by a rejection of government, traditional Christian values, and gun ownership. Former Washington State representative Matt Shea sought to sever the state at the Cascade Mountains and form a new State of Liberty which would be governed by Biblical Law.

Members of MAHA, Return to the Land, Greater Idaho and the American Redoubt all value some degree of ingroup loyalty and group selection centered around specific values. But, with three years remaining in the second Trump administration, it is possible that the gap between MAHA’s expressed interests and the administration’s environmental and food-related policies will continue to widen. Whether MAHA can exist beyond Trump 2.0 and maintain its political influence as a movement will depend, at least in part, on the ability of its members to decide that loyalty to the group—and the group’s values—transcends support for a specific political figure or party.

Sarah Matsumoto is a Clinical Associate Professor of Law and the Director of the Getches-Green Natural Resources, Energy, and Environmental Law Clinic

ELC 2025: The Pessimism of MAHA by Margot J. Pollans

There is an indelible appeal to opting out.  In every generation since industrialization, pockets of back-to-the-landers, homesteaders, and commune members have rejected some aspects of modern technology, mass production, and the complexity of modern life. Participants have described a variety of motivations, including a desire to “live close to the land and simplify [] lives” (Salstrom; Gould) or to “heal[] the physical and mental maladies caused by congestion, pollution, and the stresses of everyday urban life” (Edgington). For some homesteaders and some back to the land communities, religion provides the core moral framework. In others, it is environmentalism, itself a religion of sorts. For some, red sky thinking is a driver—society is beyond repair, the only solution is to opt out. The draws of retreat are obvious: simplicity, transparency, belonging.  So are the drawbacks: arduous physical labor, isolation, vulnerability. 

Homesteading is currently on the rise in the U.S. It is part of a broader cultural moment emphasizing traditional gender roles, DIY living, fear of modern science and technology, and personal responsibility. These values have also found a home in a much more mainstream movement: “Make America Healthy Again” (MAHA), which coalesced around Robert F. Kennedy Jr.’s 2024 presidential campaign. Consisting of a loose coalition of anti-vaxxers, homesteaders, wellness gurus, and conservative moms, MAHA draws on two key “opting out” themes. First, skepticism about modern technology (and medicine in particular) drives many proponents. Second, many MAHA advocates emphasize self-reliance and personal responsibility (Armour). Tying declining children’s health to the industrialized food system, chronic toxic exposure, increased use of technology, and overprescription of medication (including vaccines), the May 2025 MAHA report calls for a “coordinated national lifestyle-medicine initiative that embeds real-world randomized trials—covering integrated interventions in movement, diet, light exposure, and sleep timing.” The message is clear. To be healthy, people must opt out of the modern industrialized food and health care systems. 

As a long-time critic of the modern food system, there is, at first glance, a lot for me to like in MAHA. The May 2025 report and the follow up August 2025 strategy document call attention to a number of concerns that I and others have been writing about for years: the inability of the modern environmental apparatus to address cumulative toxic exposures, the failure of the FDA’s food additives regime, and corporate capture of nutrition science and regulation, among other things.

Yet, MAHA terrifies me. Why? 

There are the obvious concerns: The conspiracy theories dressed up as science.  The science rejected as a conspiracy.  The ableism. The mischaracterization of statistics to exaggerate the plight of chronically ill children (often by ignoring the role of improved disease detection and monitoring). The emphasis on the risks of toxic chemical exposure at the same time that other branches of the Trump Regime are gutting environmental regulation. But there are two additional structural features of the movement that I find particularly troubling.

First, MAHA is a marketing vehicle, embracing a framework in which the “good life” is available for purchase only for those with sufficient time and money. Many of its proponents are selling something: a supplement, a home in an intentional community, diet and lifestyle advice. HHS Secretary Robert F. Kennedy Jr. even sought to trademark the term MAHA in December 2024. (The application is still pending, and RFK Jr. has since transferred it to Del Bigtree). In other words, MAHA is not really about opting out of an industrialization health care and food system. It is instead about buying in. The movement is fundamentally consumerist, operating within, instead of rejecting the economic structures of modern life. The “good life” is expensive and exclusive. It is a profit opportunity. 

The U.S. health system is already highly dichotomized along racial and socioeconomic lines. Claiming to identify the “root causes” of chronic disease and to “spur a conversation about how we can build a world – together – where . . . disease is prevented and reversed, not just ‘managed,’” the MAHA Report barely acknowledges this reality. By grounding health in individual responsibility, particularly in ways that are time consuming and expensive, MAHA seems poised to exaggerate these existing disparities.

Second, MAHA purports to offer a refreshing liberation from the status quo broken health care system (and don’t get me wrong, our current health care system is atrocious in so many ways). MAHA is dangerous not because it challenges the status quo, but because, having assumed control of the federal public health apparatus, it seeks to force everyone to out of the existing health care system.  The September 2025 strategy report describes a variety of policies—making vaccines and certain medications harder to get, limiting fluoride in drinking water, etc.—that take fringe ideas about health and make them national policy. The strategy document also emphasizes the need to shift research dollars from things that seem promising (mRNA vaccines) into investigation of fringe health ideas (electromagnetic radiation and seed oils). As the federal government winds down decades of environmental and public health law in the name of economic growth, MAHA withdraws federal support for the medical technologies that have kept so many people safe—from Covid 19, from measles, from cavities. In other words, just as our environments are poised to become even more dangerous, MAHA seeks to dismantle the frameworks that have, for decades, helped people face danger.

This is no longer about a small group of individuals opting out to seek simplicity. Or even fringe conspiracy theorists deciding not to hold cell phones to their ears. This is the U.S. national health apparatus forcing these views on the rest of us.  And it does so in the name of freedom. As the “MAHA moms” explain, “parents must have the right to make health decisions for their children—not governments or corporations” (nevermind that many of the so-called MAHA moms and RFK Jr. himself have spoken up in favor of state bans of gender affirming care to minors). But getting to choose if my children will be vaccinated or not does not make me feel more free. It feels overwhelming. I have no medical training; I am not versed in reading and assessing the quality of scientific journals; and I have four children and a full-time job. I am fortunate that none of my children are immunocompromised and they are all old enough to be fully vaccinated, so I do not face the horrific decision of isolating them from society because so many communities no longer have herd immunity. A primary purpose of investing in public health expertise and infrastructure is to free people from these kinds of burdens. That is the world I want to opt into. As one legal scholar pointed out, MAHA’s populism is not truly libertarian; instead it seeks to shift power from one set of elites (the older public health infrastructure) to another (the religious right). And I suspect that at least some of the architects of this movement are counting on the fact that many people will be too distracted by their new part time jobs as health care researchers to notice.

Margot J. Pollans is the Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law at the Elisabeth Haub School of Law at Pace University.

ELC 2025: From Jim Crow to the Climate Crisis by Camila Bustos

Over the past two years, the obligations of states under international climate law have crystallized with unprecedented clarity. 

In a groundbreaking case brought by elderly women challenging the Swiss government's climate inaction, the European Court of Human Rights found for the first time in its history a human rights violation resulting from climate change. This year, two landmark advisory opinions have further clarified that states bear a fundamental duty not to cause climate-related harm.

The International Court of Justice (ICJ) recognized the "duty to prevent significant harm to the environment" as a principle of customary international law. Meanwhile, the Inter-American Court of Human Rights issued its own advisory opinion on climate change, affirming that the principle of prevention imposes an obligation on states to prevent harm and follow a standard of "enhanced due diligence." A year earlier, the International Tribunal for the Law of the Sea recognized that climate change “represents an existential threat”, raising human rights concerns.

Yet even as international consensus builds, the United States government has withdrawn from the Paris Agreement, dismantled climate-friendly programs domestically and internationally, and is now attempting to rescind the finding that greenhouse gas emissions are harmful and, thus, can be regulated under the Clean Air Act. 

I’ve been thinking about the many events that led us here—climate denialism, rebuke of international law and cooperation, rejection of scientific expertise, and blatant disregard for the historic responsibility of the United States, who, after all, is responsible for the largest net share of greenhouse gas emissions.

This stark contradiction forces us to confront an uncomfortable question: How did the United States—once hailed a champion of environmental and international law—become one of its most prominent skeptics?

A Brief Summary of US History

The United States was not always hostile to the United Nations and international law. In the aftermath of World War II, the United States played a pivotal role in establishing the international legal order as we know it today. Eleanor Roosevelt herself is often credited as one of the key architects of the UN Declaration of Human Rights.

But the 1950s marked a turning point. As segregation remained entrenched across the United States, civil rights groups like the NAACP recognized that the emerging human rights regime could serve as a powerful tool to expose white supremacy and Jim Crow on the global stage. In 1951, the Civil Rights Congress submitted a petition charging the United States of genocide, documenting instances of violence, police brutality, and racial discrimination against Black Americans. The document argued that the U.S. government's actions fulfilled the legal requirements of genocide under international law.

The potential of international law to challenge domestic racial hierarchies became starkly apparent in a 1951 California case. A state court initially found a domestic law restricting the property rights of non-citizens unconstitutional because it violated the UN Charter's anti-discrimination provisions. The California Supreme Court quickly overturned this part of the decision, reasoning that the UN Charter could not supersede domestic legislation by declaring its preamble and subsequent articles were not self-executing.

What followed has been thoroughly documented by historians like Carol Anderson: segregationists mounted a fierce campaign against the United Nations and introduced a series of Constitutional amendments designed to give Congress greater power over international agreements. Their motivation was transparent—a deep-seated fear that legitimizing the United Nations and international law would subject America's racial hierarchy under Jim Crow to scrutiny by what they derided as a "world government."

While these amendments ultimately failed, they fundamentally shaped the persistent hostility of the U.S. legal system toward international law. This legacy persists today, influencing U.S. treaty practice through the systematic attachment of reservations to human rights treaties. Remarkably, the last human rights treaty the United States ratified was more than twenty years ago.

Why These Climate Rulings Matter

As my colleague Anthony Moffa asks, do these recent developments in climate law actually matter? Outside the United States, they clearly do. An increasing number of courts worldwide have held that subnational and national governments bear legal obligations to address climate change. The number of climate lawsuits will undobtedly continue to increase following the guidance from the ICJ and Inter-American Court.

It is precisely in these moments of intersecting crises that we must think ambitiously and look beyond our borders for inspiration and solidarity. We must abandon American exceptionalism to embrace the progress of international climate law. These landmark opinions reflect a broader global consensus built on four foundational principles:

1. Every Government Must Act

The ICJ definitively rejected the frequent argument that individual States cannot meaningfully address climate change on their own. The Court acknowledged that while cumulative emissions cause climate change, "it is scientifically possible to determine each State's total contribution to global emissions, taking into account both historical and current emissions."

Crucially, the ICJ clarified that state responsibility can be determined even when multiple states contribute to environmental damage, and that cumulative impact does not preclude applying the duty to prevent significant harm to each individual state.

2. We Must Transition Away from Fossil Fuels

The ICJ affirmed that a state's failure to take appropriate action to protect the climate system from greenhouse gas emissions—"including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies"—may constitute an internationally wrongful act attributable to that State.

The Court clarified that "relevant conduct" for assessing state obligations includes not only activities directly resulting in greenhouse gas emissions, but also "all actions or omissions of States which result in the climate system and other parts of the environment being adversely affected by anthropogenic GHG emissions." 

The Inter-American Court of Human Rights similarly emphasized that states have obligations to reduce greenhouse gas emissions from fossil fuels and regulate business conduct accordingly. Specifically, the Court assigned differentiated obligations to higher-emitting companies. The opinion further declared that human conduct causing irreversible harm to "the common ecosystem that makes the life of the species possible" violates a non-derogable norm of international law (jus cogens).

3. Human Rights Are Interlinked with Nature's Rights

The Inter-American Court explained how rights of nature approaches align with existing obligations under international environmental law. The Court stated that the right to a healthy environment, as an autonomous right, protects environmental components such as forests, rivers, and seas as legal rights in themselves.

The Court emphasized that nature's rights "represents a contemporary expression of the principle of the interdependence between human rights and the environment." It underscored that "States must not only refrain from acting in a way that causes significant environmental damage, but have the positive obligation to adopt measures to guarantee the protection, restoration and regeneration of ecosystems."

While the ICJ did not explicitly recognize the rights of nature, it acknowledged the importance of integrating the "interests of nature" in climate actions and built upon the “harmony with nature” principle of the Rio Declaration.

4. Migration Justice Is Climate Justice

Both decisions recognized that climate change is displacing people worldwide. The ICJ reaffirmed that states have obligations under the principle of non-refoulement to prevent irreparable harm to the right to life when individuals face real risk upon return to their country of origin. The Inter-American Court observed that states bear an obligation to prevent migration and forced displacement resulting directly and indirectly from climate change impacts.

Both courts reaffirmed the duty to cooperate not only for environmental protection, but also in addressing climate displacement.

Breaking the Cycle

The historical thread from Jim Crow-era resistance to international oversight to today's climate obstruction reveals a troubling pattern. America's reflexive hostility to international law, born partly from a desire to protect racial hierarchy and avoid international scrutiny, now threatens global climate action when we can least afford delay.

These landmark international climate opinions represent more than legal precedent—they embody a global recognition that the climate crisis demands coordinated action grounded in shared legal obligations. As the world moves forward with this consensus, the United States faces a choice: continue clinging to an exceptionalism rooted in historical injustice, or join the international community in building a sustainable future governed by law.

The path forward requires not just policy changes, but a fundamental reckoning with why America fears international accountability. Only by confronting this history can we hope to break free from patterns that now threaten not just justice, but survival itself.

Camila Bustos is an Assistant Professor of Law at the Elisabeth Haub School of Law at Pace University.

ELC 2025: Modernizing Climate Advocacy for the Twenty-first Century by Paul Rink

The climate movement is facing a reckoning. Time is running out to prevent catastrophic outcomes from the climate crisis, prompting advocates to reevaluate long-standing approaches, propose ambitious new ones, and even consider triaging strongly held environmental priorities. 

Attempts to revamp advocacy methods in the face of increasing urgency are understandable and even admirable. However, such efforts will only be successful if they account for both our decreasingly egalitarian society and our increasingly polarized political system. Given these considerations, the most tactical path forward is to lean away from convincing people to care about climate change and toward strategically capitalizing on disparate individual interests that align with climate action. 

To many in the United States and globally, weighing strategic approaches may feel like whistling past the graveyard as the Trump Administration leads core climate laws and policies to slaughter. Since taking office in January 2025, the President has rejected long-standing scientific consensus on the existence of climate change, doubled down on fossil fuel production, withdrawn the U.S. from the Paris Agreement and heralded withdrawal from the United Nations Framework Convention on Climate Change, revoked federal approval for wind farms, eliminated policies promoting electric vehicles, threatened to rescind the Environmental Protection Agency’s ability to regulate greenhouse gas emissions, and much more. Amidst this blitz of rollbacks, one could easily dismiss proposals to adjust efforts aimed at securing a climate-responsive future as exercises in fool-hardy optimism.

Yet, climate advocates should be thinking optimistically about the future. After all, hope persists. High demand for electricity and the relatively rapid process for developing profitable wind and solar projects has ensured that renewable energy continues to expand in the U.S. despite the Trump Administration’s immense opposition. Indeed, courts have repeatedly overturned President Trump’s attempts to obstruct progress on wind farm development. Efforts to repeal the Environmental Protection Agency’s ability to regulate greenhouse gases have encountered serious roadblocks. State and local initiatives aimed at bolstering climate change mitigation and resiliency continue to move forward. Notwithstanding the current federal antagonism toward such activities, political tides can shift quickly and unexpectedly (just ask 2016). It behooves the environmentally engaged to aim for bringing about and taking advantage of such an eventuality by strategically erecting a broader tent of support, courting allies who may even be climate deniers but who are willing to support climate-responsive initiatives out of pure self-interest.

Like it or not, climate change is a highly divisive topic. The position you take on climate change is one of the best predictors for which political party you fall into in the United States, with three times more Democrats than Republicans considering it a priority issue. In our modern era of identity politics, just mentioning the word “climate” can turn someone whose incentives align with environmental protection initiatives into a disinterested or even antagonistic opponent of such policies.

Looking at the country as a whole, about half the population sees climate change as a major threat, while a little over one-third considers it a top priority. However, two-thirds of the U.S. feels that the government should prioritize the development of renewable energy through tax incentives and regulatory streamlining. Studies have shown that Republicans are more likely to support adaptation policies and programs intended to address the tangible impacts of “extreme weather” rather than the seemingly distant concept of climate change (although, notably, the opposite is true for Democrats).  Relatedly, further evidence suggests that communities garner higher levels of bipartisan support for climate change-responsive adaptation projects after they experience damaging weather events.

These trends reveal that there are many who are not inclined to prioritize climate change per se but who are nonetheless willing to support climate responsive actions and policies that align with their more front-of-mind concerns such as electricity prices and weather resilience. Environmental advocates should focus on these non-climate-based incentives, encouraging people with wide-ranging interests to join an inclusive coalition in opposition to federal policies that are harmful to more than just the climate.

Opportunities in this arena abound. For example, the Trump administration’s decision to cancel funding for and otherwise obstruct offshore wind farm development comes at a time when stagnating job creation has thrust the unemployment rate upward, pushing those without a consistent, full-time job into an elevated state of precarity. Opposing these construction projects undermines the Trump Administration’s promiseto open up well-paid industrial positions for the U.S. workforce. In addition, higher demand for energy has pushed up electricity prices at more than twice the rate of inflation, leaving many households struggling to pay for essential utilities. Completing new wind farm development projects would provide an influx of energy and bring utility costs down. These observations provide fodder for environmentalists attempting to convince even the most climate-skeptical households that supporting wind and solar power projects is tantamount to supporting job creation and more affordable monthly expenses.

Similar opportunities exist to persuade specific demographics that climate action projects are worthwhile. For example, AI data centers represent a large slice of the increasing demand for electricity in the United States. In addition to pressuring those in charge of these centers to consciously and equitably mitigate their environmental impacts, climate advocates should enlist the AI industry’s support for renewable energy development projects and policies, highlighting the benefits that will ensue from expanded sources of electricity.

To persuade people to get behind specific climate action projects (such as wind and solar farms) as well as larger climate action policies (such as subsidies for wind and solar farms), advocates must tailor their approach to each context. For climate-denying individuals and groups, even mentioning climate change at all may be counterproductive. Yet, as discussed above, there is a chance to persuade these skeptics without reference to “the topic that must not be named” by focusing on the labor and cost-saving benefits of renewable energy. Alternatively, some may be less averse to hearing about climate benefits, but community-centric, household-based, or bottom-line concerns will be more pertinent – and, thereby, more persuasive – for them. In such scenarios, advocates can lay out all benefits, including climate action as one item on a long list of reasons to back renewable energy (for example) and framing climate-related advantages as reinforcing those more closely held interests. 

Advocates should use this tailored approach to promote a wide array of climate mitigation and adaptation initiatives. For example, environmentalists can campaign for seawalls to protect communities from storm surges and sea level rise while either carefully tailoring or completely eschewing information about how climate change is exacerbating these problems. Public officials that are already facing shoreline flooding will likely have enough buy-in for such solutions based on their lived experiences and the desire to protect property in their locality. Instead of pressuring these elected representatives to care about climate change, advocates should encourage them to enact efficient and effective adaptation policies that align with their political incentives while simultaneously solving infrastructure problems holistically and with sufficient foresight.

Focusing on how climate actions and policies assuage specific local difficulties will require a large amount of community buy-in and engagement. As such, national organizations will be most successful if they locate, fund, and empower regional and city-based advocacy groups with the requisite authenticity and credibility to communicate effectively with their neighbors and local leaders. 

This bottom-up advocacy approach has the potential to build out a robust coalition of supporters for renewable energy projects with a broad range of political beliefs on both environmental and non-environmental issues. To maintain such alliances, climate advocates must leave behind a purity test mentality in favor of big tent thinking. Individuals, including voters and politicians, do not need to agree on every issue to provide meaningful, and even essential, support for climate action policies and programs. If bringing many of them into allyship means not preaching about the dangers and moral imperative of climate change, so be it.

The Biden Administration capitalized on this realization when it enacted the 2022 Inflation Reduction Act. Focusing almost exclusively on carrots rather than sticks, this law created government-backed incentives for development programs with real potential to create jobs, reduce energy prices, and create more resilient infrastructure in addition to combating climate change. Although the Trump Administration has taken large steps to undermine this legislation, the instinct behind it was right on target for rapidly responding to climate change through market mechanisms that align with numerous other widely shared priorities across society, such as economic prosperity and disaster risk reduction. 

Currently, there is a lot of justifiable concern over the Trump Administration’s threat to reverse the endangerment finding that serves as legal justification for the Environmental Protection Agency to regulate greenhouse gas emission. If the Trump Administration successfully rolls back this policy, important restrictions on greenhouse gas pollution from motor vehicles, power plants, waste landfills, and more will be vulnerable to repeal. Justifiable, important, and successful legal action is being taken to contest this arbitrary and capricious action. That said, the twenty-first century calls for more than defending and reinforcing the regulatory strategies that defined the twentieth century environmental movement.  

Because climate change is an issue that impacts everyone, advocates need to recruit and work with a wide swath of constituents, meeting each community and interest group on its own terms. This means providing people with localized reasons to care and vote for the policies and programs necessary to address the problem, whether that involves calling such initiatives “climate action” or not. Twenty-first century climate advocacy must make this crucial pivot lest we all suffer the consequences of failed cooperation amidst the fundamental collective action problem of our time.

Paul Rink is anAssociate Professor at Seton Hall University School of Law.

ELC 2025: Staring Into the Legal Void by Rebecca Bratspies

“down the winding cavern we groped our tedious way, till a void boundless as a nether sky appeared beneath us, and we held by the roots of trees, and hung over this immensity; but I said: “If you please, we will commit ourselves to this void, and see whether Providence is here also.”

--William Blake, The Marriage of Heaven and Hell

When we gathered in New York this July it was under a very red sky. The Trump administration was quickly dismantling our collective life work. Indeed, just weeks after our meeting U.C. Irvine Professor Alex Camacho called Trump the “worst president for the environment in U.S. history.” There we were, at the Edith Macy Center—a group of law professors in a Girl Scout retreat—staring at the wreckage, and trying to recommit to the void by rethinking law entirely. 

I was part of the Rethinking Business group. We convened in a room named after management consultant Peter Drucker. Since Peter Drucker is widely proclaimed as a “visionary whose ideas reshaped management, business, and society” this seemed either propitious or ironic, depending on one’s inclinations. I confess mine tend toward the cynical. Was it even possible to rethink business in a room named for a management guru whose claim to fame was as the father of modern management? 

And yet, it turns out there was much more to Peter Drucker than efficiency. Drawing on his early exposure to Nazi fascism he wrote extensively about what happens when converging crises expose social institutions to be a façade. Drucker described what happened when “the people” discovered that behind the façade was only a vacuum—fear and trauma led them to turn to what he called “the abracadabra of fascism” thereby substituting creed and order for freedom and equality. As Drucker described it, fascism was an end run around the hard work of building a new, better society.  Sound familiar?

For Drucker, the antidote to this kind of social breakdown was stable, responsible institutions. Institutions that were more than a mere façade. His (pretty conservative) ideas about the need to restore community and his commitment to a kind of industrial democracy seems almost radically progressive today. Contrast Drucker’s conviction that there should not be too large an ‘inequality of income between the lowest-paid people and the people in charge’  with today’s self-important billionaires busily dismantling higher education, functioning government, and most social institutions in search of tax cuts (and because they believe it when their mommies declare them to be geniuses.)

Drucker dismissed shareholder primacy and the sole focus on profit maximization as not only antisocial but immoral. When asked if big business was a good role model for good government his response was “no, of course not.” He rejected the idea that a free market is all it takes to have a functioning society—or even a functioning economy—as pure delusion. 

Drucker may have made his reputation and fortune in management, but he considered himself a social ecologist—someone who “envisions a moral economy that moves beyond scarcity and hierarchy, toward a world that reharmonizes human communities with the natural world, while celebrating diversity, creativity and freedom.” That sounded exactly like what we were struggling with in our breakout group. 

And yet, even as we were grappling with this core question, we seemed unable to shake the limits Drucker’s ghost imposed: His commitment to a free market economy;  His opposition to regulation and taxation as tools to limit corporate greed; His belief in the role of the entrepreneur and the dominance of the customer; His conviction that property was a source of legitimacy. Drucker’s widely adopted vision of corporate freedom constricted us, even as his clear-sighted anti-fascism inspired us. We struggled to think past shareholder primacy and to shed the neoliberal straight-jacket that allows corporate persons to become unaccountable transnational actors spouting grandiose but unenforceable ESG measures. Perhaps it was no surprise that our Drucker room brainstorming session produced ideas that Professor Melissa Powers charitably described as “modest.” 

Did it matter that our meeting in the Peter Drucker room took place at the Edith Carpenter Macy Center? Maybe. Edith Carpenter Macy was a staggeringly wealthy woman whose fortune came from the fossil fuel industry. She and her husband V. Everit Macy lived lives of immense privilege, vacationing on Jekyll’s Island and hobnobbing with the rich and mighty. And yet, as active progressives, Macy and her husband also worked closely with the Henry Street Settlement and were deeply involved in local poverty alleviation efforts. Both served on multiple community organization boards, volunteering their time as well as their money. In eulogizing her at the 1925 International Girl Scout Conference that opened the Edith Macy Center, Dr. James Russell, dean of Columbia’s Teachers College remarked “it is said you know that some of us are born with silver spoons in our mouths. And I suppose it could be said of her (Macy) but there are not many in this world who use those spoons to feed the hungry multitude.”    

While there was an overwhelming noblesse oblige flavor to some of her activities, Macy seems to have really made a difference. Her involvement with the Girl Scouts began with a generous monetary donation. That first contribution led her headlong into the hard work of building and leading the new organization.  Herself a suffragist, Macy’s first act as leader of the Girl Scouts (a position she held from 1919 until her death in 1925) was to get girls and young women involved in the campaign to pass the 19th Amendment. Unlike so many of the ultra-rich today, Macy turned her privilege into tool—leveraging her wealth and influence toward building a better, fairer society with more opportunities for more people. When Macy died suddenly in 1925, her husband created the Macy Center in her honor—donating the land and funds so the Girl Scouts would have a world-class training center. To this day the Macy Center provides that service.  

A generation after Macy’s death, Peter Drucker became an avid supporter of the Girl Scouts. He viewed the organization as “remarkable.” In a society “that pretends to care about its children but does not” Drucker saw the Girl Scouts giving every girl the chance to learn and grow and thrive. The Girl Scouts, in turn, incorporated Peter Drucker’s leadership ideas into their mission and have long extended their welcome to “anyone who identifies as a girl.”  Today Troop 600 reaches girls living in NYC shelters, as well as immigrant and asylum seeking girls—enfolding them into wider the Girl Scout community and offering them the same activities, opportunities, and training available to other New York girls.

A collaboration between Peter Drucker and former Girl Scout CEO, resulted in an initiative intended to “redefin[e] the social sector as an equal partner in business and government.” This organization, now called the Francis Hesselbein Leadership Institute,  involved melding their missions in an attempt to transform the world by “developing responsible leaders, caring citizens, and a healthy, diverse and inclusive society.”  That sounds a lot like the same questions we were grappling with in July 2025.

Hmmm. Focusing on youth involvement, leveraging privilege for social change, rejecting fascism, and emphasizing commitment to social institutions? Maybe meeting in the Peter Drucker room at the Edith Macy Center was less ironic and more inspirational after all. While we obviously need to rethink their solutions and question the first principles that so limited our ability to brainstorm, we can certainly learn from their commitment to building a better world. In a time when we so desperately need hope, their accomplishments provide a welcome reminder that individual creativity, and vision, paired with social solidarity can make a real difference—even in times of great social turmoil. As we try to recreate environmental law in this era of federal lawlessness, this reminder is both timely and inspiring.

Rebecca Bratspies is the Oliver Houck Chair in Environmental Law and Professor of Law at Tulane University Law School.

ELC 2025: A Blue-Sky Future Owned by Private Equity? By Kristen van de Biezenbos and Melissa Powers

In July, 2025, the New York Times reported on moves by two major private equity companies, BlackRock and Blackstone, to acquire electric utility companies. BlackRock had proposed purchasing Minnesota Power, which primarily serves business and residential customers in the northern part of the state, while Blackstone had already acquired TXNM Energy, which serves customers in New Mexico and Texas. Both companies appear to be scooping up the utilities in anticipation of a major increase in energy demand driven by data centers, AI, and cryptocurrency mining. While experts have long predicted a stagnation or decrease in future U.S. electricity demand, the explosion of interest in AI and crypto has dramatically revised those estimates. Some models now forecast that these technologies will cause demand to surge where the data centers and crypto facilities are located, and private investment companies want in on what some believe will be a “gold rush” in the electricity sector. This gold rush has threatened the U.S. electricity system’s progress in decarbonizing—progress that had demonstrated to many that blue skies are possible. It also raises profound concerns about who will profit and who will pay as private asset managers see the appeal of buying up utilities. 

To understand these risks, it helps to have a very brief background on utility regulation. Energy utility companies, like other “public utilities” (a term that, confusingly, refers to primarily privately owned companies with a duty to provide services in the public interest), are authorized to operate energy monopolies that would otherwise be illegal under U.S. law. In exchange for the government allowing them to maintain their monopolies, energy utility companies are subject to various legal requirements, including a duty to provide nondiscriminatory service to customers within their service territories, regulation of the rates the companies charge, and regulatory oversight of the utilities’ expenditures. State regulators set the rates by first determining how much a utility needs to earn annually and then dividing that amount by anticipated energy sales to different customer classes, which typically include residential customers, industrial customers, and commercial customers (each of which can be subdivided into more specific groupings). The annual earning requirement is established through a “cost-plus” formula that allows the utilities to earn a rate of return on their capital expenditures (i.e., to profit from building infrastructure) and to recover—but not directly profit from—their operating expenses, including the cost of fuel and customer service. In concept, this ratemaking structure allows utilities to earn enough profit to maintain their financial integrity and attract sufficient capital to build the infrastructure we need, while keeping rates affordable for consumers. And, again in theory, regulatory oversight ensures that customers get adequate service and are protected against utility risk-taking.

 In practice, the regulatory system has always been vulnerable to regulatory capture and, perhaps more insidiously, a power imbalance that favors electric utility companies. Their rates of return are excessive—and not because the market has over-valued utility companies but because rate regulators set the returns too high, requiring customers to pay excessive rates to the utilities. According to one analysis, energy utilities’ rates of return (and thus returns on equity) are twice their cost of capital, and the average return on equity for the utility sector is 43% higher than the average return of Wall Street investment firms. 

No wonder Blackstone and BlackRock want in on the utilities’ action! 

And when things go wrong—if past investments become unnecessary before they are fully paid off (i.e., they get “stranded”) or fuel prices become higher than expected—customers, rather than utilities or their shareholders, end up paying the price. Worse, when better and cheaper alternatives to the utility’s service become available, customers are often legally prohibited from choosing the alternatives. Imagine how much worse that power imbalance will be when asset managers like Blackstone and BlackRock—which have mastered the art of extracting income from infrastructure that we, the public, have paid for—gain ownership over the electricity system and benefit from monopoly power.

 In fact, it does not take too much imagination to identify the risks. Consider, for example, the current AI, cryptocurrency, and data center boom. Utilities want to build new power plants (and earn elevated rates of return) to serve the growing energy demand, but they want to spread the costs of those plants among all ratepayers—basically requiring all customers to subsidize the tech industry’s AI dreams and leaving ratepayers responsible for stranded assets if AI and cryptocurrency operations go under. Some states have refused this gambit, but the Federal Energy Regulatory Commission (FERC) went the other way, denying a utility’s attempt to protect other customers from the risks of building new power plants to supply electricity to speculative cryptomining operations. For now, state and federal policies are working in parallel, but one could easily imagine a global asset management firm insisting upon a uniform federal policy that overrides state attempts to prevent this cross-subsidization.

Increased ownership of utilities by Wall Street asset managers could also interfere with states’ climate goals, particularly since Congress rescinded most of the Inflation Reduction Act’s clean energy subsidies. As William Boyd noted, large multinational companies (the so-called “Clean Energy Supermajors”), large financial institutions, and large asset managers were poised to “extract substantial profits” from these subsidies–while figuring out ways to keep our energy prices high. When the subsidies go away, profit opportunities will lie in building massive projects as quickly as possible to serve the tech industry’s energy appetite–which means building or restarting fossil fuel plants. And once these assets are built, the firms will have every incentive to keep marginal wholesale prices high by ensuring that wholesale energy markets are designed to exclude renewable energy sources. The disturbing retreat from corporate climate commitments, we believe, will only accelerate if Wall Street firms, which are isolated from communities clamoring for decarbonization, become the owners of energy utility companies.

And, finally, there is the risk that increased Wall Street ownership will threaten grid reliability and increase prices due to the change in utility management. Companies focused on arbitrage opportunities in the electricity sector have engaged in market manipulation and economic withholding, exposing consumers to elevated prices as companies intentionally made their energy supplies scarce. It was only 25 years ago when Enron’s economic withholding and other corrupt acts, which a network of other private and public actors enabled, drove California utilities into bankruptcy. While regulations and market rules have aimed to limit the risks of future illegal acts, research indicates the risks are still very present. 

But even as the risks of investment firm takeovers of public utilities are rising, the guardrails to prevent abuses of regulated rates—and guaranteed profits—of utility companies have been dismantled. The first (and strongest) line of defense was the Public Utilities Holding Companies Act of 1935 (“PUHCA”). Congress enacted PUHCA after holding company conglomerates monopolized ownership of local electricity utilities and used the corporate structure to extract value for investors while loading the utilities with risk and debt. PUHCA gave the Securities and Exchange Commission the ability to review any purchase of more than 10% of public utility shares, to impose strict guidelines, and even to impose a “death sentence” by breaking up holding company ownership of public utilities. This came about after one of the largest holding companies—which owned electric utilities in 39 states—went bankrupt, leaving thousands without power and wiping out the savings of its investors. PUHCA instituted numerous regulatory reforms, including restrictions on complex businesses and financial arrangements between regulated and non-regulated affiliate companies. But despite its success in preventing holding company manipulation of public utilities, PUHCA was repealed in 2005. 

Since the repeal, there has been an increase in holding company acquisition of utilities and an uptick in utility fraud, corruption, and bribery charges. More broadly, evidence suggests that regulators cannot or will not adequately regulate corporate conduct that impermissibly extracts value from and shifts risks onto regulated utilities. Private equity is subject to almost no regulatory oversight, so risks to utilities and their customers may increase when private equity firms take over regulated utilities. It is little wonder that private equity acquisitions have raised red flags. With respect to the BlackRock deal, ratepayer advocates and environmental groups opposed the acquisition, fearing it would drive up rates and slow progress on decarbonization. It also came to light that many Minnesota Power employees and board members who voiced support for the takeover were provided with financial compensation from the utility, likely fueled by the financial incentives offered by BlackRock. Despite the opposition and indications of shady dealing, the Minnesota Public Utility Commission (“PUC”) approved the acquisition. We believe it erred. When firms that prioritize profits and investors’ returns over all other concerns seek to acquire utilities, we should be concerned about the potential harm to captive ratepayers. 

So, what can be done to stop these takeovers? First, it is time for Congress to restore PUHCA in full. Second, states have the authority to deny merger requests that they deem to not be in the public interest. In fact, an administrative law judge recommended the state deny BlackRock’s takeover of Minnesota Power because of the risks it presents to ratepayers. Time will tell whether the PUC made the right choice. In the meantime, we hope other regulators will closely scrutinize proposed acquisitions and recognize that the electricity system is both too fragile and too important to be treated like other assets that asset management firms have gobbled up. Finally, to the extent local electric utilities are vulnerable to outside acquisition, that may signal that states need to step in and support public ownership of their own electric utilities. Allowing them to become just another holding in asset managers’ massive investment portfolios is a way to lose even more control of an essential service. 

More broadly, private equity’s entry into the electricity system should lead us to question how we pursue our blue-sky future. Private equity firms have become enormously wealthy, often employing a “plunder” business model of buying companies, loading them with debt, stripping them of their value, and then reselling them or liquidating them through bankruptcy. Through their profit-extraction model, private equity firms have destroyed storied businesses; delayed investments in infrastructure; cut services, wages, and employment; reduced tax bases for local communities; and refused to provide health care and other essential services. Utilities and utility regulators may be tempted by the capital that private equity investment could provide—some of which could presumably facilitate quicker decarbonization. Is this capital worth the risks? Electricity consumers in Minnesota, New Mexico, and Texas may be about to find out.

Kristen van de Biezenbos is a Professor of Law at California Western School of Law.

Melissa Powers is a Jeffrey Bain Faculty Scholar & Professor of Law at Lewis & Clark Law School.

ELC 2025: Blue Sky Thinking in a Red Sky World: The Story of Environmental Law by Cinnamon Carlarne Hirokawa

“Red Sky at Morning tells a story, and we are its authors. The plot is driven by human propagation and poverty and even more by a vast and growing world economy. There is a beleaguered heroine, Mother Earth. The story’s ending has not yet been written. There are two possible outcomes, one tragic and one not. A global crisis has unfolded quickly, and, as in classic Greek tragedy, we have been told what the future may hold, but so far we seem unable to step from the path to disaster that has been mapped out for us. The last act is about to begin.” James Gustave Speth, Red Sky at Morning 1 (2004).

The last act has now begun. We stand at the edge of the world (flat now, according to many) staring out across a seemingly endless red sky at morning. A sky that sailors say is a warning of ominous weather. A warning of a sky filled with particulate doom. A warning that sailing or, in our case, living and breathing, is not safe. 

More than two decades ago, when visionary environmental leader Gus Speth offered his prophetic warning of the impending global crisis – of the red sky at morning – we had extensive evidence of the intersecting impacts of global environmental deterioration and the primary anthropogenic drivers of this deterioration. At that moment, Speth and others offered a reimagining of global environmental governance – a blue-sky vision of how we could lead ourselves off the disastrous path by embracing a broader vision of environmental governance that engaged questions of intersectional social, political, and economic well-being, that widened the purview of players to imagine a more inclusive group of environmental protagonists (e.g., civil society and the private sector), and that advanced a new vision for how we see ourselves in relation to our beleaguered planet. The vision was inchoate but possible, premised on learning from the mistakes of the past and embracing a transformative transition in culture and consciousness.   

Over the decades that followed, we made great gains. The climate justice movement blossomed. Links between climate change and human rights were identified. Courts all over the world have begun to recognize legal rights and obligations with respect to climate change, rights of nature, and more. Despite notable points of progress, however, the fundamental transition that Speth envisioned did not come to pass and global environmental deterioration continues to intensify. Biodiversity loss is accelerating at unprecedented rates. Patterns of deforestation and pollution burdens (air, water, plastics) persist. And looming over us all is the harsh reality of unabated anthropogenic climate change and the associated slow- and sudden-onset disasters and extreme events that, by now, are inevitable. One by one, we are surpassing our planetary boundaries and narrowing the spaces deemed safe for human existence.    

Which is all to say that we are now in the midst of the Greek tragedy of which Speth warned. We live today in full vision of the political, economic, and environmental crises that were mapped out before us decades ago. Only now, the contours of the tragedy are even more extreme than Speth could have imagined in 2004. Few could have foreseen the specter of the current political administration’s rejection of science, rollback of environmental governance, and denunciation of tolerance, transparency, and participation. 

These are the contours of our contemporary crisis. A crisis where the extreme challenges of global environmental deterioration meet the calamitous social, political, and economic challenges of our time to create an absurdly existential tragedy of our own making. As we stand staring into the void of what could be our last act, hope seems distant and joy even more so. But, in July 2025, when 17 environmental law professors came together in New York over the course of three days to discuss “Blue Sky Thinking in a Red Sky World”, there was little doubt that despite great fears, frustrations, and uncertainty, there was a unifying commitment to resistance and re-imagining. Embracing a plot of resistance and re-imagining means working together to resist the erosion of our environment and our democracy. It also means coupling these efforts with a commitment to re-imagining what it would mean to create a world where Mother Earth is not beleaguered and where all her inhabitants are able not merely to survive, but to flourish. 

These commitments echo the story of environmental law – a story grounded in optimism amidst adversity and heralded by protagonists of resistance and positive change. A story where courageous scientists such as Rachel Carson melded science with storytelling to motivate change against powerful industrial opposition; where bold and persistent leaders such as Wangari Maathai overcame great odds to revolutionize action at the intersection of economic progress, social change and environmental protection; where environmental law pioneers such as Joe Sax, David Sive, Gus Speth, and Robert Bullard drove the creation of an extensive system of environmental law and centered thinking around essential questions of environmental justice; where, now, a new generation of courageous youth and climate justice leaders are advancing transformative change against all the odds. The story of environmental law has always been one of courage, innovation, and persistence against seemingly intractable structures of power and opposition. 

We are at a point in the story of environmental law where the plot may have thickened but, as ever, the end is not inevitable. In this moment, environmental law protagonists must embrace the imperative of blue sky thinking – that is, thinking that is creative, ambitious, and not bound by external parameters such as those the current administration seeks to impose. It is thinking that reflects the optimism and vision upon which environmental law was founded and emphasizes the continuing imperative of creativity and innovation. It is thinking that embraces the possibility of vision-imbued resistance that simultaneously seeks to curb the erosion of existing systems of environmental governance while also planning for a more positive, equitable, and sustainable future. It is thinking that sees the looming red skies and envisions courage and a positive pathway forward.

As one of our great protagonists of change, Wangari Maathai, stated “[i]t is the people who must save the environment. It is the people who must make their leaders change. And we cannot be intimidated. So we must stand up for what we believe in.” 

Cinnamon Carlarne Hirokawa is President and Dean of Albany Law School .

ELC 2025, Resist, Restore, Reimagine: Essays from the Environmental Law Collaborative

In July 2025, participants at the Environmental Law Collaborative (ELC) gathered to engage in what we initially called “Blue Sky Thinking in a Red Sky World.” The theme originated from Gus Speth’s searing 2005 book, Red Sky at Morning: America and the Crisis of the Global Environment, the prologue for which warns: “A global crisis has unfolded quickly, and, as in classic Greek tragedy, we have been told what the future may hold, but so far we seem unable to step from the path to disaster that has been mapped out for us. The last act is about to begin.” Our hope was that the ELC’s participants would (unlike so many tragic Greek actors) be willing to acknowledge the realities of the ongoing environmental crises (and our own roles in it), and then to think creatively, strategically, and even optimistically about how we might chart a different course and defy the fates. Although the world looks especially bleak today, this creative, strategic, and optimistic vision has motivated the ELC for nearly 15 years.

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, talk, and write about an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC seeks to bring together scholars with disparate areas of experience and expertise to collectively engage the complex and potentially existential environmental challenges that define our time, with the ultimate goal of contributing to positive change in our shared world. That same vision led us into our 2025 meeting. 

We began planning the event well before the November 2024 election—when it was easier for most of us to imagine a future of blue skies and environmental progress—but we wanted to keep the focus as much as possible on pathways towards progress. We divided the discussion into six sessions. We hoped that the first, our “Red Sky Rant”—in which participants were invited to discuss their greatest worries about the current state of politics and the planet—would act as a sort of catharsis. The following four sessions explored different questions about and strategies towards a more sustainable future. Should we double-down on existing laws and practices or chart wholly new directions? Do sub-federal and international laws provide solutions that U.S. federal law no longer does? Is the “abundance movement” the solution we’ve been waiting for, or should societies embrace degrowth? And, above all, how can we regain some of the momentum towards justice and democracy during this fraught time of authoritarianism, violent rhetoric and violent deeds, and marginalization of many members of society?

The discussions were enlightening, sobering, energizing, inspiring, and sometimes very funny. The event closed with the “Blue Sky Brainstorm,” where participants reflected on the ideas that resonated most with them. Many of the blogs in this series touch on the range of subjects we covered, including the MAHA (make America Healthy Again) movement, monopoly control, the power of local governments, reviving international law, encouraging belonging, and reconceiving our roles as educators and communicators.

At the end of our gathering, we discussed whether the “Red Sky/Blue Sky” theme accurately described our work. While some participants believed it did, others were unsure about the theme’s meaning. Was it a reference to wildfires, the burning planet, environmental degradation? (To a large degree, yes, yes, and yes.) Did it refer more figuratively to the turmoil, violence, and disruption communities throughout the globe are experiencing? (Again, yes) Or was it a reference to U.S. political divisions and the current red/blue divide. (Actually, no.) Our overarching goal was to find hope and pathways forward amidst this moment of deep worry and despair. For some of us, that means resisting the actions, the actors, and the systems that have left so many of us feeling hopeless as we watch our world in turmoil, our neighbors suffer, and our planet destroyed. For some of us, hope comes from engaging in acts of restoration—rebuilding our communities, our societies, our institutions, and even those foundational constitutional principles that we want to believe serve as constants in governmental decisionmaking. For others, finding hope and ways forward means not just resisting and restoring (although both are essential), but also re-imagining what a just and healthy society might look like and contemplating how this moment of crisis might actually give us the impetus to think more boldly and creatively about not just how to sustain, but how to flourish as a society. 

That does not mean the blogs in this series are necessarily all optimistic, however. If we have learned anything from Greek tragedies, the first lesson is to be honest about the risks we face, whether they arise in populism, politics, economics, or science. The second is to recognize that the solutions are rarely simple, followed closely by the third lesson, which is that we need to retrain ourselves to recognize that problems are often opportunities. Only by directly engaging the complex contours of our reality can we move forward—through resistance, restoration, and reimagining—with our individual and collective efforts to turn the dauntingly red skies of today’s burning world into the hopeful blue skies of the future.