On June 13, 2024, the Environmental Law Institute and its Pro Bono Clearinghouse hosted the tenth installment of the continuing legal education series Community Lawyering for Environmental Justice, focusing on the environmental justice implications of “forever chemicals,” including per- and polyfluoroalkyl substances (PFAS). A panel of experts highlighted developments, challenges, and opportunities in this burgeoning area, and discussed research on the disproportionate exposure experienced by communities of color; the U.S. Environmental Protection Agency’s regulatory actions; and ongoing advocacy efforts. This Dialogue presents a transcript of that discussion, which has been edited for style, clarity, and space considerations.

In May 2024, the International Tribunal for the Law of the Sea (ITLOS) issued a landmark advisory opinion on climate change under international law. It unanimously determined that State Parties to the United Nations Convention on the Law of the Sea have specific obligations to take all necessary measures to prevent, reduce, and control marine pollution from anthropogenic greenhouse gas emissions. ITLOS noted that these obligations are ones of due diligence, and the standard of due diligence is “stringent,” given the high risks of serious and irreversible harm to the marine environment due to climate change; but it does not clarify what “stringent” due diligence means. This Comment provides an initial understanding of stringent due diligence by referencing the precautionary approach and the International Law Commission’s Draft Articles on Prevention of Transboundary Harm From Hazardous Activities.

This Comment examines the potential impact of the demise of Chevron deference on the environment and the health of residents of communities disproportionately affected by “cumulative impacts.” It reviews the Chevron deference doctrine and the U.S. Supreme Court’s overturning of that well-established legal precedent, discusses the goal of environmental justice for all communities and how the U.S. Environmental Protection Agency (EPA) has sought to secure that goal in accordance with the environmental laws administered by EPA, and offers some conclusions.

Local opposition to siting of wind and solar energy projects stands to threaten the renewable energy transition in New York State. The state government has sought to quell this opposition by statutorily requiring developers to provide community benefits as a condition of their permits. One way these benefits are secured is through host community agreements (HCAs), with the developer typically agreeing to make payments to the municipality from project revenue in exchange for the municipality promising not to oppose the project during the state permitting process. This Article sets out to understand the practical role HCAs play in siting of renewable energy projects by reviewing and analyzing the six publicly available HCAs negotiated in New York State. It argues that thus far, developers and local governments use HCAs as a tool to serve their own interests, rather than to address concerns articulated by community members.

As the prospects of significantly mitigating climate change through emissions reductions become dimmer, the critical necessity of adaptation has become clearer, with failure-to-adapt litigation possibly playing an important role in bringing adaptation measures to pass. Based on a review of every adaptation-related case in the U.S. Climate Litigation Database maintained by the Sabin Center for Climate Change Law, this Article offers the first comprehensive assessment of failure-to-adapt litigation in the United States. It finds that such cases have proliferated in this country over the past decade, but that the lawsuits so far filed have sought specific, incremental, and relatively small-scale adaptation measures rather than systemic, large-scale, coordinated action. The Article’s central finding is that failure-to-adapt litigation in the United States has so far been only modestly successful: most suits have failed, but a significant minority have succeeded. Failure-to-adapt litigation succeeds frequently enough to make it an important, and perhaps underutilized, tool for bringing about much-needed adaptive measures in the United States.