Food, Freedom, Fairness, and the Family Farm

The concept of the “family farm” holds powerful sway within the American narrative, embodying both nostalgia for an imagined past and anxiety for a future perceived to be under threat. Since the founding of the United States, this cultural ideal has been invoked in support of a rosy vision of agrarian democracy while obscuring the ways in which the U.S. Department of Agriculture’s codified definition of “family farm” has unfairly aggregated advantages for the benefit of a particular kind of family (nuclear) and farmer (white, male, straight). At the same time, consumers are misled by an under-interrogated conflation of family farming with “good” farming practices. There exists a pervasive fear among Americans that the family farm is at risk of disappearing, and that something must be done to save it. This Essay analyzes the history of family farms in the United States and contends that reclaiming, not rescuing, is what needs to be done. As an alternative to preserving an institution whose benefits have always been constrained by gender, race, and wealth, we propose instead re-orienting efforts toward three concepts rooted in the family farm ideal but which we believe to possess greater transformative potential: fairness—the distribution of benefits along the agrifood chain to ensure adequate compensation and access; self-determination—the ability for communities to make their own decisions within the food system; and “good” farming—the specific practices that could lead to a more just, humane, and sustainable food system

Does the Community Choice Aggregation Approach Advance Distributed Generation Development? A Case Study of Municipalities in California

Globally, decentralized energy systems are gaining popularity due to their potential for energy accessibility, energy resilience, and sustainability benefits. Existing research on an energy system decentralization approach, community choice aggregation (CCA), shows its ability to lower energy costs and increase renewable electricity consumption for U.S. communities. Nevertheless, research on the relationship between CCA and distributed electricity generation development is lacking. This paper fills this gap by investigating if the CCA approach associates with distributed generation capacity interconnection in California municipalities. The finding shows that although the average capacity has increased for all municipalities throughout the study period, contrary to proponents’ arguments, the CCA approach has insignificantly decreased the capacity interconnected for municipalities. It is unclear if the result is due to a lack of higher-level support for the full CCA implementation or substitution by community-owned distributed generation. Future research is necessary to determine the CCA effect comprehensively in California. With this understanding, the research could be expanded to explore how community energy approaches work towards distributed generation across the U.S. and the globe

Intersectional Management: An Analysis of Cooperation and Competition on American Public Lands

The United States government holds public lands in trust for the whole of the American people. This article focuses on National Monuments under the Antiquities Act. It argues that the federal government should renew its approach to the management of these lands by incorporating principles of environmental justice and long- term environmental viability. The article begins by examining the historical and legal foundations of federal lands in the United States, with a focus on the Antiquities Act. It then reflects on recent litigation and political controversy surrounding Bears Ears National Monument and Grand Staircase–Escalante National Monument, to illustrate how the current ad-hoc approach to management leaves valuable public lands subject to cyclical presidential administrations and without necessary, durable management policies. The article offers three recommendations. First, that the Antiquities Act be amended to reserve the right to diminish existing monuments solely to Congress. Second, that any amendment also requires minimum management standards for all new national monuments. Finally, the article calls for executive branch agencies to develop more robust means for incorporating stakeholder input in the management planning of national monuments, including through advisory boards. We argue that, due to the history of Native American land dispossession in the United States, there ought to be specific policies for fostering greater collaboration and co- stewardship agreements with Native American tribes and organizations

The U.S. Nuclear Waste Impasse: Transportation Implications

For several years there has been an impasse, in the political branches, over how to make progress on dealing with the intractable problem of nuclear waste disposal in the United States. Currently, over 120 sites, spread across 39 states, host commercial spent fuel—many of these sites are former reactors that have become de facto interim nuclear waste storage sites, pending a permanent solution. Transportation considerations are central in this discussion. With the potential for Congress to make progress on this issue following the 2018 midterm elections, this article reviews the potential paths forward and considers possible implications for the transportation sector

Burning Questions: Changing Legal Narratives on Cannabis in Indian Country

In the not-so-distant past, thoughts of Cannabis legalization in the United States were radical. In the present day, the narratives around Cannabis are changing. The term “present day” affixes this Article to early 2023, a snapshot in time. To understand the current legal narratives surrounding Cannabis, and what they might become in the future, it is important to examine the history of Cannabis law and policy in United States. This Article begins by discussing Cannabis regulation in the United States, from the rise of federal regulation to the gradual deregulation by states with tacit federal consent. The Article then examines the jurisdictional conflicts between tribes and states for tribes that attempt to decriminalize Cannabis on the reservation with specific attention paid to enforcement of criminal laws on reservation, regulation of commercial activity, and regulations regarding cannabis research in Indian Country. This Article then examines the recent marijuana policy statement issued by the Biden administration and current Congressional activity, including their possible implications for Cannabis in Indian Country and issues to watch. Finally, this Article concludes with a call to recognize the self-determination of tribes in establishing and enforcing their own Cannabis policies on reservation land

It\u27s None of Your Business: State Regulation of Tribal Business Undermines Sovereignty and Justice

The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three recommendations. First, it argues that the proper first forum for resolving disputes involving tribal businesses is the tribal court system; federal and state courts should be prepared to consider this issue sua sponte if it is not raised by the parties. Second, this Article calls for periodic, systematic audits of federal compliance with Indian treaties, which should evaluate both the federal government’s activities and the federal government’s obligation to prevent state interference with tribes’ treaty-protected rights. Finally, in light of recent legislative proposals and executive actions, this Article asserts that removing barriers to American Indian participation in the political process at all levels will support economic development and self-determination in Indian Country. We contend that all Americans—indigenous or not—have a stake in seeing the federal government uphold its constitutional and treaty-bound commitments to American Indian tribes

Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After McGirt?

This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV looks more broadly at the implications for sovereignty and environmental justice in Indian Country. This article concludes by advocating approaches for strengthening tribal sovereignty and promoting tribes as producers of extractive and energy resources

Realigning the Clean Water Act: Comprehensive Treatment of Nonpoint Source Pollution

Nonpoint source pollution is the biggest threat to water quality in the United States today. This Article argues for stronger federal controls over nonpoint source pollution. It begins by examining the history of water quality regulation in the United States, including the passage and amendment of the Clean Water Act and the evolving definition of “navigable waters” over time. The Article then discusses recent rulemaking and litigation developments, including the Clean Water Rule, the Navigable Waters Protection Rule, and the County of Maui, Hawaii v. Hawaii Wildlife Fund case. It offers three recommendations. First, the Article calls for a congressional amendment to the Clean Water Act to require binding controls on nonpoint source pollution. Second, recognizing that an amendment to the Clean Water Act may not be politically viable, it offers an approach for controlling nonpoint source pollution through an amendment to the Safe Drinking Water Act. Finally, it identifies tools that interested states, local governments, and citizens’ groups can utilize to take action on nonpoint source pollution under existing law. This Article concludes that reductions in nonpoint source pollution will lead to significant improvements in the water quality of our nation’s lakes, rivers, wetlands, and coastal areas, to the benefit of human and environmental health

Greenwashing No More: The Case for Stronger Regulation of Environmental Marketing

Fraudulent and deceptive environmental claims in marketing (sometimes called “greenwashing”) are a persistent problem in the United States, despite nearly thirty years of efforts by the Federal Trade Commission (FTC) to prevent it. This Essay focuses on a recent trend in greenwashing - fraudulent “organic” claims for nonagricultural products, such as home goods and personal care products. We offer three recommendations. First, we suggest ways that the FTC can strengthen its oversight of “organic” claims for nonagricultural products and improve coordination with the USDA. Second, we argue for inclusion of guidelines for “organic” claims in the next revision of the FTC’s Guidelines for the Use of Environmental Marketing Claims (often referred to as the “Green Guides”), which the FTC is scheduled to revise in 2022. Finally, we assert that the FTC should formalize the Green Guides as binding regulations, rather than their current form as nonbinding interpretive guidance, as the USDA has done for the National Organic Program (NOP) regulations. This Essay concludes that more robust regulatory oversight of “organic” claims, together with efforts by the FTC to prevent other forms of greenwashing, will ultimately bolster demand for sustainable products and incentivize manufacturers to innovate to meet this demand