Combatting Your Environmental Impact After Death: An Exploratory Analysis of Local Solutions to Facilitate Dying Green

Introduction

During the height of the COVID-19 pandemic, we saw a surge in national and global death rates that was met by a combative, nation-first mentality in many countries, including the United States. This truly global, tangible health emergency posed a significant threat to the safety, comfort, and diplomatic relationships of nations everywhere.¹ Degraded air quality and climate change remain a threat. The link between the overwhelming number of Americans living in unhealthy air quality conditions² and the rise in pollution emissions by various production industries has caused major concern. When accounting for pre-existing conditions, socioeconomic status, and access to healthcare, those who smoke or live in places with poor air quality due to pollution were more likely to die from COVID-19.³

Climate change exacerbates these circumstances, as it creates more favorable conditions for the spread of infectious diseases through temperature changes, rainfall pattern disruptions, and deforestation, causing unnatural wildlife migration that leads to an increase in viral transmissibility from animals to humans.⁴ Furthermore, the increase in greenhouse gas emissions and global warming, coupled with deforestation and other destructive measures affecting animal habitats, forces wildlife to find new sources of food and water, often where people are living.⁵

An alarming and tragic result of the COVID-19 pandemic was the significant increase in community deaths.⁶ To accommodate the surge of dead bodies, the number of cremations dramatically increased. This reliance on cremation during the pandemic reflects two concerning developments in the United States: (1) the exponential shift from burial to cremation, beginning pre-pandemic; and (2) the probability of industry-wide legal challenges due to existing zoning law and land use practice procedures that inhibit efforts to amend our current deathcare practices to more sustainable methods. These issues create accessibility barriers to what is becoming known as dying green,⁷ which are practices that encourage more environmentally-friendly, and sustainable methods of caring for the dead. As climate change continues to increase the likelihood of future pandemics, and populations continues to rise gloablly, finding more eco-friendly ways to care for the dead has never been more timely.

I. History of Deathcare Trends

In 2019 and the years prior, the annual death rate in the United States was approximately 2.8 million people.⁸ The Center for Disease Control and Prevention (“CDC”) reported 3.36 million deaths in 2020—a significant uptick from prior years—of which roughly 350,000 were caused by COVID-19.⁹ An additional 30,000 had COVID-19 listed as a contributory cause.¹⁰ In 2021, the CDC reported another 3.4 million deaths, of which approximately 463,000 had death certificates listing COVID-19 as their cause of death.¹¹ This increase of over half a million more deaths per pandemic year meant the possibility of more than a half million or more cremations than usual,¹² which caused a significant strain on the deathcare industry and those who handled the influx.¹³

Historically, burial had been more popular than cremation. In 2010, only about forty percent of the U.S. population chose cremation, and fifty-three percent chose burial.¹⁴ Over the subsequent decade, the preference for burial has decreased to approximately thirty-eight percent, and cremation has become the majority’s preference at fifty-six percent.¹⁵ In the next ten to twenty years, projections estimate that less than one fifth of the country will choose burial,¹⁶ and cremation will dominate end-of-life care.

Several explanations exist for increased cremations and fewer traditional burials, the first of which would be cost. Standard cremation costs range from $1,500 to $3,000, depending on whether a funeral home is involved in the arrangement or if the body is taken directly to a crematorium.¹⁷ In contrast, a traditional burial and funeral ceremony can result in a bill of $6,000 to $12,000.¹⁸ Another factor contributing to the popularity of cremation is a lack of space; as more Americans live and die in dense urban cities, their loved ones face the difficult issue of finding where they can bury the deceased, which becomes increasingly difficult for those who want to frequently visit burial sites.¹⁹

Finally, another developing factor that may reduce traditional burial even further is a growing community focus on green burial options and greener death practices, known as dying green, rather than relying on traditional burial methods. This movement away from traditional burial towards dying green is largely influenced by environmental concerns, such as the overconsumption of natural resources; toxic runoff and pollution resulting from burial; and the use of carcinogenic products in burial preparation, as well as the desire to avoid the pollutive nature of cremation practices. But encouraging dying green means first addressing several barriers to accessibility that exist in our legal structures. Before considering these barriers, it is important to understand the environmental consequences that traditional deathcare practices pose and why dying green must be made more accessible.

II. Environmental Concerns with Our Deathcare Practices

Over the years, the shift from traditional burials and subsequent rise in cremation rates came partially in response to the environmentally problematic practicalities of burial. For example, only a fixed amount of limited natural resources are available for the manufacturing of caskets, which are typically made from steel, copper, zinc, and lead.²⁰ Once constructed, caskets are coated in sealers, wood varnishes, and other preservatives. In the ground, these preservatives make their way into our ecosystems and are toxic to animals.²¹ Another major environmental concern is the use of embalming fluid, a product containing formaldehyde, that is used in the embalming process in traditional burials. In the United States alone, about 5.3 million gallons of embalming fluid are used and buried each year.²² The use of embalming fluid, materials currently used in casket manufacturing, and other potential toxins in bodies (e.g., pharmaceuticals, diseases, etc.) all contribute to potential stormwater and groundwater pollution originating from cemeteries over time.²³

However, as burials downtrend in popularity, the harmful environmental impacts of cremation have recently garnered attention. Cremation is problematic for several reasons. The main concern is air pollution, which is excreted during cremation through the release of gases, including nitric oxide, ammonia, and mercury.²⁴ Additionally, cremation consumes large quantities of energy. Although negligible in comparison to industrial power plants, the rise of cremation practices should nonetheless spark concern for their consumption of natural gas energy.²⁵ One new emerging alternative to address the concerns of noxious gases released during cremation is a form of water cremation, called alkaline hydrolysis or “aquamation.” Through this new technology, most of the carbon dioxide released into the atmosphere during traditional cremation practices is preventable.²⁶ Aquamation is one of a few cremation alternatives, but it also poses environmentally harmful consequences if its liquified waste is not handled properly. Also, this practice is not yet legal for human cremation in over half of the states, including New York and New Jersey.²⁷

Another environmental concern with both burial and cremation is the regulation, disposal, and management of deathcare industry waste. To evaluate deathcare waste regulations, one must first understand the processes involved in both burial and cremation and the environmental deficiencies associated with these practices. These include harmful substances used in burial practice, lax oversight in waste management within the industry, and pollution emissions resulting from cremations. Beginning with traditional burial, the next subsections will provide a substantive overview of the various environmental challenges our current deathcare practices produce, before analzying the applicable laws governing the deathcare industry.

A. Environmental Problems Caused by Traditional Burial Practices

Traditional burial presents several environmental issues that warrant consideration. Traditional burial consumes a large amount of resources and land. Around 13,000 tons of steel and 1.5 million tons of concrete are used for burial vaults and cemeteries annually,²⁸ and if all caskets and coffins were made of hardwood, an estimated 150 million feet of wood would be buried each year.²⁹ Further, existing cemeteries currently occupy about 1.4 million acres of land in the United States and are projected to consume an additional 1,600 acres each year,³⁰ land which might be inaccessible, not zoned for burial, or nonexistent depending on location.

The issue of having enough land space for deathcare is often overlooked because although technically enough space exists to accommodate cemeteries, in certain locations where death rates are higher, zoning regulations often prevent land from being allocated for burial purposes, and thus space for cemeteries is typically not accessible.³¹ However, this growing concern for scarcity is just one factor of many leading towards a decline in traditional burial. The sheer amount of inorganic substances and materials buried along with bodies has caused concern for many eco-minded persons making deathcare choices. The use of steel, wood, and concrete not only depletes production resources but causes direct harm to the earth in which they are buried.

The concern for the pollution generated by embalming bodies in preparation for a burial has also created a large societal shift away from traditional burials.Although burial is the oldest and most traditional funerary practice in the United States, the process of embalming can be traced back to Egyptian origins.³² Embalming became popular in this country during the American Civil War Era, as soldiers were lost and families desired to transport their loved ones’ bodies home for proper, sentimental burial.³³ This method became more well-known when President Abraham Lincoln was embalmed following his assassination;his open casket funeral, which traveled through thirteen cities, was on display for over two weeks, and his body was re-embalmed at each stop.³⁴

At its inception in Western practices, embalming fluid contained arsenic,³⁵ a natural chemical element that is highly toxic in its inorganic form. In the late nineteenth century and early twentieth century, arsenic was banned from use in embalming fluid, and morticians transitioned to replace it with formaldehyde,³⁶ a colorless, flammable gas that is also toxic and, when handled improperly, increases the risk of cancer in the handler.³⁷

Formaldehyde is on the EPA’s list of the top ten percent worst chemicals for hazardous impact on the environment.³⁸ Although the percentage of formaldehyde that gets manufactured, consumed, and then actually finds its way into embalming fluid each year may be relatively small compared to other industries, almost all of the formaldehyde used in the deathcare industry will find its way directly back into our environment via embalmed bodies that decompose.³⁹

When preparing a body for embalming, the mortician drains all the blood and fluids and replaces it by pumping approximately two to three gallons of the embalming fluid into the body.⁴⁰ The drained liquid is then discarded directly into the locality’s wastewater treatment and sewage systems by being flushed down the drain of the facility.⁴¹ Funeral homes commit several harmful procedures when handling burial waste, which is typically flushed down the drain onsite. With respect to New York, the discharge of embalming and bodily fluid liquids down the drain, directly into municipal sewage, has been well-studied because of obvious potential health risks.⁴² Large wastewater treatment facilities, such as treatment, storage, and disposal facilities (TSDFs), predominantly, are adequately equipped to handle this relatively small volume of diluted embalming fluid and blood as compared to other discharged substances that would require heavier regulation, for example any hazardous waste products. In a study from 2003, the National Funeral Directors Association found that septic systems, properly installed, could reduce flushed formaldehyde levels to a safe level in facilities that were not connected to a sewer system.⁴³

However, another major concern comes from waste pollution from embalmed bodies that are buried and the carcinogenic fluid that might seep into the earth, groundwater, and water systems, the effects of which are not yet fully understood. This pollution could pose significant danger to the areas surrounding cemeteries or burial grounds where groundwater may be at risk of contamination from decomposed bodies containing formaldehyde and the other various chemicals or harmful pollutants used in casket manufacturing that may be released in stormwater runoffs.⁴⁴

Decomposing bodies themselves also contribute to environmental degradation. For example, in a recent study on the potential for burial grounds to affect nitrogen loads in headwater streams in developed watersheds, researchers observed the nitrate levels of a headwater stream located in and around St. Mary’s Cemetery, which is located just outside Syracuse, New York.⁴⁵ The study found an increase in the groundwater nitrate concentration in or near the burial sites that was between 1.1 and 7.1 times higher than the levels observed at residential waters used as control sites.⁴⁶ The results of this and similar studies, show that byproducts of body decomposition from degrading remains in burial sites can be swept into nearby water supplies after heavy rainfall or flooding. Although this study focused on a church-owned cemetery that was not regulated by New York State, it demonstrates an important reason to shift deathcare practices towards more environmentally conscious regulation.⁴⁷

Traditional burials contribute to environmental harms directly in several ways, and because of these various pollutive consequences, many people have chosen to avoid burial altogether.⁴⁸ From the manufacturing of the casket to the placement of a body filled with chemicals into the ground, burial has increasingly become less favored over the years. In conjunction with environmental harms, the high costs associated with burials and lack of space to bury loved ones close by has pushed society even further towards choosing cremation. But cremation does not come without its own costs, both environmentally, and practically.

B. Environmental Problems Caused by Cremation

As burial downtrends, cremation has risen in popularity over the last twenty years,⁴⁹ mostly due to its cost-effective and timely nature, making it a more accessible and more efficient funerary option, especially for urban dwellers. The flexibility of cremation allows families to plan their funeral services during a time of grief without the constraints and haste that burial requires. When choosing cremation, families can more easily arrange travel, a service, a procession, and the method of ash disposition, and can then communicate memorial arrangements to others,⁵⁰ all while avoiding the risks and environmental concerns that accompany a traditional burial.

Generally, the cremation process involves heating the human body to a temperature of 1400 to 1600 ºF, depending on the state’s requirement. For example, the New York Environmental Conservation Code prohibits any emissions having a six-minute average opacity of ten percent or greater and requires the maintenance of a one-hour average temperature of at least 1600 ºF.⁵¹ This process lasts about two to four hours until the organs, tissues, liquids, and fats, along with the casket, turn to gas and ash⁵²––a process that occurs in the first of two combustion phases.

In the second phase, as the body continues to undergo combustion, the bone fragments remain in the primary chamber, along with inorganic particle matter, and begin to settle on the floor of the secondary chamber.⁵³ Then the gases that have formed as a by-product of the combustion process are discharged through a stack in the roof of the crematory building, along with carbon dioxide, water, oxygen, and other gases.⁵⁴ Thus the cremation process generates many environmentally harmful air pollutants, including particulate matter, sulfur dioxide, nitrogen oxides, volatile organic compounds (VOCs), heavy metals, and polychlorinated dibenzo-p-dioxins and dibenzofurans.⁵⁵

Additionally, mercury is often combusted and excreted during the cremation process as a byproduct of dental care treatments that are typical in the United States. The most common form of dental filling is dental amalgam, which is made from mercury.⁵⁶ EPA estimates that over 1,000 tons of mercury, in the form of dental amalgam, exists in the mouths of Americans today.⁵⁷ Globally, about 3.6 tons of mercury will be released from cremated dental fillings each year, entering our environment through air pollution and waste.⁵⁸

Mercury waste from dental implants often goes down the drains of dental offices and crematoria with other medical waste. Once down the drain, mercury waste can contribute to groundwater pollution following any major storm that causes sewers to overflow and most often ends up in a publicly owned treatment works (POTW) plant⁵⁹ where it settles into biosolid sludge.⁶⁰ The majority of municipalities will then burn this sludge, and the mercury in the incinerated sludge vaporizes, releasing it into the air.⁶¹

Additionally, when bodies are cremated, any mercury that was previously in the deceased’s teeth becomes vaporized pollution.⁶² According to official estimates from EPA, the amount of mercury released or emitted into the air from burning sewage sludge and from cremation is considered insignificant.⁶³ However, actual mercury emissions from sludge incinerators and crematoria could be more than five times greater than EPA’s “official estimates,” as the EPA itself has admitted their estimates of these air emissions are “poor and unreliable.”⁶⁴ These estimates are also quite dated and taken from a small sample size (one crematorium in the early 2000s).⁶⁵

EPA has not released new air emission estimates for sludge incinerators and crematoria since then, but a 2010 congressional hearing provided testimony from one EPA scientist who conducted research on actual emissions from these practices.⁶⁶ This research helped demonstrate that the true range of mercury air emissions attributable to dental mercury might be as high as seven to nine tons per year, which was previously estimated by EPA to be about 0.9⁶⁷ tons per year.⁶⁸ This number brings sludge incinerators’ and crematoriums’ mercury emissions to a level classifiable as a major source of mercury air emissions.⁶⁹ Dental amalgam can be prevented from leaving dental offices in wastewater through a process of capturing mercury in technology known as an amalgam separator. In the case of cremations, the solution could be even simpler—teeth should simply not be burned along with their bodies.

The deceased may also be embalmed before being buried or cremated, a process that contributes significantly to the environmental concerns that we should be seeking to avoid. The process of cremation, when it involves embalmed remains, releases a large quantity of formaldehyde into the air, and, once this enters the air, it can last for up to 250 hours, depending on weather conditions.⁷⁰ Because formaldehyde is a highly soluble substance, it easily and readily attaches to atmospheric moisture, which washes out in precipitation.⁷¹ Embalming prior to cremation also can create slightly carcinogenic cremains, or ashes,⁷² and when embalmed remains are cremated and scattered, regulation of where, when, and how they may be scattered⁷³ is quite important for maintaining environmentally friendly deathcare practices.

With either method of deathcare, embalming, theoretically, should not be necessary, but it is nevertheless often suggested to the deceased’s family,⁷⁴ and it, unfortunately, has become standard practice to embalm a body prior to cremation. Because talking about death is still relatively taboo, conversations with deathcare providers might not properly disclose deathcare standards of care and costs. In 2015, the Federal Trade Commission launched an investigation into deathcare facilities to find out whether they were providing adequate disclosures regarding deathcare services.⁷⁵ The lack of transparency at a time of heightened emotion further exacerbates the risk that deathcare providers will not provide families with cheaper options or, on the flip side, will pressure families into unnnecesary additional procedures, further contributing to environmental harms.

Finally, a structural defect in the design and erection of crematoriums lends itself to another environmental consequence of cremation. Typically, these facilities are built lower to the ground, rendering their chimney heights relatively short, which in turn releases air pollutants closer to ground level where they directly affect air quality around the location of the crematory.⁷⁶ This exhaust is called flue gas, which typically emanates from combustion plants and often contains the reaction products of fuel and combustion air plus other residual substances like particulate matter, sulfur oxides, nitrogen oxides, and carbon monoxide.⁷⁷

Consequentially, many countries require flue gas to be processed through a dry gas abatement plant or to have what is called “flue gas abatement procedures” in place to help cleanse emissions before they are released.⁷⁸ While most states and local governments regulate a facility’s daily allowance of cremations or their flue gas emissions,⁷⁹ during the COVID-19 pandemic, these limitations were paused in densely populated areas experiencing high death rates.⁸⁰ Increased cremation rates led to several adverse side effects that burdened neighboring residences, including the increased presence of smoke, noxious odors, and flue gas emissions, and caused subsequent respiratory irritation—all side effects that exacerbated the ongoing outbreak of a highly transmissible respiratory virus causing above-average death rates.⁸¹

Central to the issues with both burial and cremation are the waste and environmental externalities described above. The next subsection sheds light on the lack of stringent regulation for the treatment of waste from deathcare facilities.

C. Lack of Regulation over Deathcare Pollution and Waste

To understand the environmental challenges associated with current deathcare practices, it is important to examine the regulatory framework governing the deathcare industry. Pollution management for deathcare is significantly lacking in several areas. For burial, regulation fails to adequately manage the discarded liquid waste from embalmed bodies. When it comes to cremation, there is a failure to regulate air pollution. Both methods could be more stringently regulated, but to date few regulations have been amended.

Typically, the regulation and management of waste discarded down drains is under the control of state and local governments, which in some instances requires certain businesses to obtain permits for specific waste types—for example, any TSDF, like a landfill, would need a permit to handle and manage hazardous waste.⁸² The disposal of hazardous waste, which is defined as waste that has “properties that make it dangerous or capable of having a harmful effect on human health or the environment,” is regulated through a permitting system under the Resource Conservation and Recovery Act (RCRA) under the authority of the U.S. Environmental Protection Agency (EPA).⁸³ Crematoriums and funeral homes are not considered TSDFs and thus do not require permits for their waste disposal, despite using chemicals and potentially toxic substances in embalming procedures.

In contrast to hazardous waste, medical waste includes blood and bodily fluids that are excreted from healthcare facilities, blood banks, and laboratories, and the regulation of this type of waste is delegated to the state’s environmental protection and health agencies.⁸⁴ Although EPA does not list crematoriums and funerary care facilities in their list of “medical waste” producers, most states tend to classify the waste produced in the embalming and cremation processes by deathcare treatment facilities as medical.⁸⁵ This classification means deathcare facilities are able to discard human remains (liquid or otherwise), along with embalming fluid and other substances, down the drains of their facilities.

Once down the drain, deathcare waste ends up in POTWs, which are sewage treatment plants, typically owned and operated by government agencies. EPA currently regulates the operation of POTWs, which must obtain permits compliant with the National Pollutant Discharge Elimination System (NPDES) to discharge treated wastewater into regulated waters; however, each state and locality adopts different standards of treatment levels.⁸⁶ POTWs monitor and control where, when, and how much treated wastewater is discharged.⁸⁷ The facilities and businesses that discharge waste directly to a POTW are not required to obtain a NPDES compliant permit, which, in the case of the deathcare industry, means these businesses can discharge their waste directly to a POTW without oversight. That same POTW, which may not have treatment technology equipped to handle toxic waste, might nevertheless receive some toxic waste, along with regular waste, discharged from a funeral facility, which could pose significant issues for the POTW.⁸⁸

This lack of oversight is important to consider through the lens of the COVID-19 pandemic because, when these facilities responded to unfathomable rates of death, they were, in turn, producing more than expected levels of waste, which likely led to some discharges of waste that should not have been sent down the sewage drain to the POTW. During this time, deathcare facilities and hospitals were also tasked with handling and discharging potentially dangerous and infectious bodies and waste while caring for the afflicted dead. It is very likely that these conditions will happen again during the next global pandemic, leading to environmental degradation when toxic and infectious waste is discharged improperly or in adbundance.

While EPA prohibits discharge that directly interferes with and damages POTWs, the agency only punishes a discharger when such waste causes the POTW to violate their own permit.⁸⁹ One way to avoid this is by requiring an industry-specific waste management plan that details the regulated entity’s procedures for waste removal, the type of waste handled, the identification of waste handlers, and the volume estimates for waste production, among other things.⁹⁰ Currently, EPA is promulgating pre-treatment requirements, but local governments can, on their own, adopt higher standards, such as an industry specific Waste Management Plan, to further regulate the discharge of funeral industry facilities; however, to date, many have not done so, despite the rise in cremations and influx of COVID-19 deaths.

This failure to implement or adopt any regulations to require waste management plans, frequent inspections, or to regulate emissions and discharges into POTWs,⁹¹ exacerbates the consequences of this lack of oversight during times of increased death. New York has some of the strictest funerary industry regulations in place, requiring annual inspections of crematoriums⁹² and approving certain activities of public cemeteries. Only the Cemetery Board or the New York Supreme Court can approve a crematorium’s incorporation, the purchase or sale of land, any changes in service charges, additional of alternative construction on site, the operation of a cemetery, and their process of record keeping,⁹³ but these regulations do not govern waste disposal of human remains.

Additionally, New York’s Cemetery Board, the health department, and the environmental department all have a hand in overseeing registered not-for-profit cemeteries,⁹⁴ but are not authorized to oversee privately owned or religious cemeteries. A reclassification of deathcare waste as potentially hazardous, requiring a RCRA permit for handling or a NPDES permit for discharge, could help better regulate deathcare waste sent to POTWs. When it comes to overseeing deathcare facilities, much more could be done to ensure more environmentally friendly practices are employed.

In addition to deathcare waste discharged down drains, cremations also create environmental consequences via air pollution. Because EPA has distinguished that the human body and its byproducts are not within EPA’s definiton of “solid waste,” crematoriums are not regulated under the Clean Air Act (CAA), the primary federal law governing air quality and regulating emissions.⁹⁵ This means that crematoriums might not always be properly ventilated and have appropriate air pollutation control mechanisms in place, as typically required under the CAA.⁹⁶

Consequentially, funeral homes and crematoriums do not face strict limitations on toxic air pollutants, such as mercury, dioxide, and furans, like other industries.⁹⁷ EPA has further explained that if a crematorium were to burn solid or hazardous waste, that would bring it within the confines and regulation of the CAA,⁹⁸ which would likely require stricter limitations on crematorium’s emissions and air pollution.

If crematoriums are not techinically producing solid or hazardous waste and therefore are not under CAA authoritiy for special regulation and permitting, what governs their waste?⁹⁹ In New York, state law restricts the ability of any person or crematory to inter or disinter human remains unless they have a permit, registered with the state.¹⁰⁰ These permits require the caretaker to keep a record of the name of each deceased person, the place of their death, the date of burial or disposal, and the name and address of the funeral director or undertaker, which at any time is subject to official request and inspection.¹⁰¹ The permits are all subject to denial, revocation, or suspension at any time if the funeral director or undertaker is found to have committed serious or repeated violations of the required protocol.¹⁰² These permits require adherence to environmental regulations, like air permits for combustion practices and registration with air facilities through the Department of Environmental Conservation;¹⁰³ however, the air pollution control permits are administered by the Division of Air Resources (DAR), which categorizes sources and varies requirements by source size.¹⁰⁴ Among these categories are large industrial facilities like power plants and small commercial operations like dry cleaners; crematoriums can fall into either category. Similarly, New York subdivides into three regulated categories: Title V facility permits, state facility permits, and air facility registrations—crematoriums may fall under all three depending on their emissions.¹⁰⁵ So while a crematorium may be required to obtain a permit, its emissions are still nonetheless allowed, and, in the wake of the pandemic, coupled with the rise in popularity of cremation, these emissions are likely to continue increasing when they could easily be more restricted.¹⁰⁶

Current deathcare practices, both traditional burial and cremation, create significant consequences for our environment through air, water, and waste impacts. The existing regulatory framework for waste management insufficiently addresses pollution in the deathcare industry. One of the few tangible solutions to combatting the harmful effects of the deathcare industry is through dying green—a more natural way of death. Changes in regulatory controls for traditional deathcare will likely require significant legislative and judicial battles, but dying green can be encouraged in many different ways, some without requiring changes to law. The next section will further define what dying green can mean and what is needed to make it practical.

III. How to Die Green

Dying green can take many forms. From Tibetan sky burials, mushroom body suits,¹⁰⁷ and aquamation, to human composting, there are many, far more sustainable methods we can implement to care for our dead. In January 2023, New York became the sixth state to legalize human body composting,¹⁰⁸ a process that turns the deceased into compostable soil that can be used to plant or scatter, providing an environmentally conscious deathcare practice. Human composting allows microbes that naturally exist in plants and on and in our bodies to transform the deceased into soil.¹⁰⁹ Over the course of four to seven weeks, the body will break down inside a vessel naturally.¹¹⁰ The resulting soil is screened to remove any non-organic items then dried and cured for a few more weeks before being returned to its loved ones or donated in conservation efforts.¹¹¹ This greener form of a natural burial, although very different from traditional style burials, may provide some comfort in its similarities.

On the flip side, aquamation has been gaining traction in other countries and some states, which may provide some relief when it comes to alternative, greener cremation options.¹¹² Aquamation is a form of water cremation—instead of cremating via heat incineration, aquamation uses heated water to essentially boil down the body to a liquified substance that can be drained.¹¹³ The concern for flushed waste and air emissions from aquamation is relatively minimal, as this method uses about ninety percent less energy than regular flame-based cremation, uses fewer fossil fuels, and emits far less pollution.¹¹⁴ Additionally, inorganic materials, such as hip replacements, tooth fillings, and implants that normally create harmful emissions when burned in regular cremation do not actually burn in aquamation, making this method much more environmentally friendly.¹¹⁵ Aquamation leaves approximately a tenth of the carbon footprint of regular cremation and uses only one-tweltfh the amount of energy as flame-based cremations.¹¹⁶

Human compositing and aquamation are examples of green alternatives to existing deathcare practices, the rest of which will be explained later in Section V’s discussion of solutions. The goal of a green death is to prevent or lessen the environmental harms one’s death has on the planet, the likelihood of which is high when opting for a traditional burial or cremation. Greener options for deathcare face many barriers, including a lack of necessary land space due to natural population growth and rigid laws that make it difficult to designate, expand, and maintain land for burial and crematory uses.

To carry out greener deathcare choices, we need more deathcare space. To dedicate space for death, state and local laws must facilitate this use. What happens when zoning allows deathcare uses, but no physical space exists or required local consent for a deathcare use is denied without remedy or explanation? These issues are quite common and will be discussed at length in the next section to help shed light on legal barriers to dying green.

IV. Laws Governing Deathcare Land Use That Create Barriers to Dying Green

From a bird’s eye perspective, land regulation begins with state constitutions as well as the power to adopt land use laws derives from state police powers. State legislatures delegate significant power to local governments to adopt and implement local legislation.¹¹⁷ In New York, the Municipal Home Rule Law grants local legislatures the authority to create planning boards, adopt comprehensive plans, and adopt land use reglations.¹¹⁸

A significant power delegated from the states to local bodies is the authority to adopt zoning laws. Zoning laws divide land within a municipality into districts and prescribe the land uses and intensity of development allowed therein.¹¹⁹ The following subsections examine in further depth the interplay of state law with local zoning laws and approvals in the context of designating, accessing, and maintaining deathcare space and the legal barriers this poses to implementing greener death choices.

A. Barriers to Designating and Accessing Land for Burial

A state’s ability to designate space for burial and deathcare purposes is authorized by the state’s inherent police powers. Implied in the Tenth Amendment of the U.S. Constitution, a state’s authority to govern the use of property in relation to public health and welfare enables the state to regulate and make laws for the creation, operation, and usage of cemeteries.¹²⁰ Through this power, the U.S. Supreme Court has held that states may regulate the location of cemeteries and other property used for burial purposes and restrict usage in or near densely populated areas, if they so choose.¹²¹ For example, in 1827, the Supreme Court of New York held that New York City had the authoritative power to pass laws as “they, from time to time, should deem necessary and proper, for filling up and regulating grounds, yards and cellars, . . . ‘and for regulating, or . . . preventing the interment of the dead within the said city[,]’” as well as the power to impose punitive fines for violations.¹²²

In some states, local governments, under their home rule authority, authorize cemeteries via zoning ordinances that can be broadly construed to allow any location within a certain area to be used for burial purposes if the zoning’s use regulations allow for it.¹²³ But in some states, such as New York, cemetery designations are much stricter, requiring an exclusive state authority, such as the Board of Supervisors in New York, to predetermine very specific locations for burials.¹²⁴ Thus, where local zoning may have allowed burial or cremation uses, the Board has final say on that designation or approval, creating a shift in power by delegating some local authority back to the state to allow cemetery use and site planning.

To establish a new cemetery, an entity must typically first get formal approval and consent¹²⁵ from the local governing authority to designate a tract of land for the intended use of burying the dead.¹²⁶ In New York, specifically, the land must then be set apart, marked, and distinguished from the surrounding land as a graveyard,¹²⁷ and, in some states, the intended land cannot neighbor or adjoin an already existing cemetery or result in the corporation owning more than 200 aggregate acres of cemeterial lands.¹²⁸ Consequentially, most states have implemented numerous rigorous laws that specifically apply to cemeteries and their land use,¹²⁹ governing where they can be built, how many are allowed, and how many an entity may own.

The determination of a cemetery’s location not only poses significant property value threats and aesthetic concerns for neighboring residences,¹³⁰ but may also unintentionally create health risks,¹³¹ of which some state legislatures have taken notice. When adopting cemetery law, New York imposed restrictions on rural and city-based cemeteries, specifically limiting the acreage cemetery corporations could obtain and own in the aggregate.¹³² Additionally, New York imposed specific, narrow regulations to prevent the erection of cemeteries near cities “of first class” which are denser in population.¹³³ After 1890, it became unlawful for any corporation to set aside land for burial use that was “adjoining a city of the first class and having a population of between eighty thousand and eighty-five thousand according to the federal census of nineteen hundred ten.”¹³⁴

Recently, a New Jersey district court heard a constitutional challenge to New Jersey’s police powers to authorize and regulate burial grounds and the manner in which townships provide their consent for the construction of new cemeteries.¹³⁵ The lawsuit was brought by plaintiff Rosedale and Rosehill Cemetery Association, a cemetery not-for-profit that applied to the Township of Readington for its consent to open a new cemetery under New Jersey state law that requires local consent for the establishment or enlargement of new cemeteries.¹³⁶ The cemetery would be constructed on a 180-acre plot of land that was under contract to be purchased from the township and which had already been zoned for cemetery use as a lawful purpose of the plot.¹³⁷

The plaintiff engaged in lengthy negotiations with the township over the course of multiple hearings to gain consent for the establishment of a new cemetery. The township’s planning board refused to review plaintiff’s final site plan until the township gave its consent for its intended use of the space.¹³⁸ The township subsequently denied plaintiff’s application pursuant to its discretionary authority under New Jersey statutes governing burial land.¹³⁹

The statute provides that “[a] cemetery shall not be established or enlarged in any municipality without first obtaining the consent of the municipality by resolution,” which plaintiff attempted to do and was denied.¹⁴⁰ Additionally, the statute dictates a maximum number of cemeteries allowed to exist in any one municipality and imposes a limitation on the percentage of land allowed to be devoted to cemetery usage, which plaintiff’s plot would not have violated, if approved.¹⁴¹ The statute also mandates that no cemetery may exceed, by expansion or establishment, 250 acres of land at any one location, again which would not be violated.¹⁴² Finally, the statute authorizes that the governing body of the municipality, in this case the township, by way of resolution, can waive the limitations of the statute “if it finds that there is a public need for additional cemetery lands and that it is in the public interest to waive them.”¹⁴³ However, the statute requires that no “cemetery company shall . . . dedicate additional land to cemetery purposes without board approval,”¹⁴⁴ making the approval and consent from the township essential to plaintiff’s mission.

Despite showing the increasing number of deaths and necessity for additional cemetery land, the plaintiff was denied consent for the additional cemetery by the township, which referenced their ultimate authority for approval and consent over new cemeteries. One commissioner even noted that “if this were an application from a church [it] would be a different story,”¹⁴⁵ alluding to the discrentionary power the municipality has in this process and the overall lack of justifiable reasoning for the denial, such as a public health risk or nuisance basis. Additionally, other township commissioners noted a preference for farmland or other “less-trafficked uses,” arguing that a cemetery would be an “inappropriate” use of the land despite the fact that the zoning ordinance of Readington allowed burial use in the land plaintiff sought to purchase.¹⁴⁶ The state’s burial statute forbids cemetery companies, during the final stage of establishment, from dedicating additional land for cemetery purposes without prior local consent, as the plaintiff sought here and was subsequently denied—a decision that was upheld on appeal.¹⁴⁷

Rosedale & Rosehill highlights the practical difficulty of finding land space for deathcare use under the current state law and the inherent barriers created when a local board is granted complete and unfettered discretion to establish or approve deathcare land spaces, access to which is necessary for dying green. New Jersey is but one example of the systemic issues threatening the implementation of efficient and environmentally friendly deathcare practices for the masses. Rosedale & Rosehill demonstrates that, even where zoning law allows cemetery uses, a local board may still be able to deny cemterial use of the space, without giving an explanation or justification for the denial.

Thus, deathcare space scarcity is not only a result of urbanization but of overly restrictive laws like in New Jersey, where the amount of space allowed for cemeteries is explicitly capped without room for a growing population. As we continue to run out of space for the dead, we face the dilemma of having to choose between disinterring the buried dead to make room for the newly dead or lengthy legal battles to designate more space or force approvals from planning boards.

Even once designated, existing cemetery space can still be difficult to access. Bodies and cremated remains are most commonly buried in private or public cemeteries.¹⁴⁸ Cemeteries are set aside either by a private enterprise or the government. Private cemeteries are open only to a small portion of the community or a particular family,¹⁴⁹ and obtaining plots in public, municipally owned cemeteries can be difficult. Take Père Lachaise for example: a famous cemetery in Paris, France, that is so full it only allows native Parisians to be buried within it. Even still, after a few decades, these bodies will be exhumed to make room for new bodies.¹⁵⁰

Because of these issues, actual public usage governs whether a cemetery is designated as “public,” rather than its ownership status.¹⁵¹ This label means that a privately owned or maintained cemetery could be deemed a public cemetery if it is held open to public use under reasonable regulations.¹⁵² If a cemetery is privately owned but plots are sold to the public for burial use and purchase, the cemetery can be properly classified as a public one.¹⁵³ In contrast, a private, family burial ground where no plots are sold to the public, and in which interments are restricted to a group of persons related to each other by blood or marriage, has properly been defined by statute as a private cemetery.¹⁵⁴ In Garland v. Clark,¹⁵⁵ the Superior Court of Alabama held that whether a place is desginated a public cemetery hinges on the land owner’s intention “to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his lands for such purpose, [is] sufficient.”¹⁵⁶

As of 2017, only 1,745 of 6,000 cemeteries in New York are regulated, not-for-profit cemeteries; the rest are owned by private corporations, families, religious organizations, or a municipality.¹⁵⁷ New York City itself has 35 privately owned cemeteries, and before the pandemic, there were rumored to be only a handful of years remaining until three of the five boroughs would completely run out of burial space.¹⁵⁸ Because private burial plots cost much more than their public counterparts,¹⁵⁹ this creates an additional barrier to those seeking green burial options or burial options in general. Access to burial land is necessary to encourage dying green, but if obtaining land for deathcare is impractical, so too is that greener option.

B. Loss of Burial Land to Forfeiture and Repurposing

The necessity of finding and designating new burial grounds, or expanding existing ones, is often due to the change in conditions of the surrounding area, where the discontinuance of cemeterial use might have become necessary.¹⁶⁰ For example, in larger cities it has become necessary to prohibit further interments in certain cemeteries because of growing public health concerns and the encroachment of neighboring residences.¹⁶¹ This need sometimes results in requiring the disinterment of bodies.¹⁶² Additionally, sometimes cemeteries simply fill up, and denser, more populated cities then require new burial space.

A state’s police powers to create and establish cemeteries also includes the power to abolish, seize by eminent domain, or block future construction of cemeteries.¹⁶³ As deemed necessary and proper, state legislatures may statutorily order the discontinuance of a cemetery and subsequent removal of the bodies buried therein.¹⁶⁴ These powers may be delegated to a municipality, which may then enact an ordinance to effectuate similar results on the local level.¹⁶⁵

Similar to the stringent laws regulating the formation and designation of a cemetery, many laws govern what happens to an existing cemetery as populations increase, burial sites fill, or the property is forfeited or abandoned. In Mayes v. Simons,¹⁶⁶ the Supreme Court of Georgia found that, because the plaintiffs had abandoned their privately owned cemetery, it was justifiable to deny the injunction request against the defendant’s purchase of that land.¹⁶⁷ The evidence reflected that the graves in question were never marked, except by rocks without inscription, there were signs of neglect and inattention for more than fifty years, and no signage likely to attract attention to their existence as burial sites remained visible.¹⁶⁸ The court also found that the space occupied had lost any and all appearance of being a cemetery before the defendant purchased the property in good faith and without notice of the existence of such cemetery, and therefore, the principles of laches or estoppel could be applied.¹⁶⁹

The court’s finding was also sustainable on the theory of abandonment because, in almost 100 years, none of the plaintiffs’ other relatives was buried at the site, and it was appropriated as a private family cemetery with no claim of dedication to public use.¹⁷⁰ Additionally, there was no sign that any one of the plaintiffs or other family members ever cared for the grandparents’ graves or maintained the cemetery as their private family burial grounds until after defendant’s purchase of the land and subsequent lawsuit.¹⁷¹

The court mentioned that what constitutes abandonment of a cemetery has been loosely defined by prior courts but found for the defendants in reliance on the principles set forth in American Jurisprudence, which state:

As long as a cemetery is kept and preserved as a resting place for the dead, with anything to indicate the existence of graves, or as long as it is known and recognized by the public as a graveyard, it is not abandoned. Thus, where the bodies interred in a cemetery remain therein and the spot awakens sacred memories in living persons, the fact that for some years no new interments have been made and that the graves have been neglected does not operate as an abandonment and authorize the desecration of the graves. A cemetery does not lose its character as such merely because further interments in it become impossible, as where further burials are prohibited by ordinance or legislative enactment. The view has been expressed that a graveyard loses its character as such and is abandoned only when the remains interred therein are exhumed and removed by those having authority to remove them. On the other hand, even in jurisdictions which recognize the general rule that it is not abandoned so long as there are bodies there, if interments have not been made for a long time, and cannot be made therein, and in addition the public, and those interested in its use, have failed to keep and preserve it as a resting place for the dead, and have permitted it to be thrown out to the commons, the graves to be worn away, gravestones and monuments to be destroyed, so that the graves have lost their identity, or if it has been so treated or neglected by the public as entirely to lose its identity as a graveyard, and is no longer known, recognized, and respected by the public as such, then it has been abandoned.¹⁷²

The court held that the jury was authorized to find that, since the graves and surrounding area exhibited obvious neglect, the entire plot had lost its identity and appearance as a place of burial and thus plaintiffs had indeed abandoned it.¹⁷³

Because land space is limited and burial sites must be permitted and located in zoning districts that allow cemeteries, the abandonment of a cemetery poses significant challenges for future access to burial land. The risk of a cemetery becoming abandoned increases the risk of losing usable, zoned burial space necessary for an inevitably growing population.

C. Crematories Face Similar Legal Barriers

As for crematories, local boards have often viewed them negatively and tend to regard them as nuisances, often prohibiting crematories in certain areas altogether and restricting their existence to only industrial areas.¹⁷⁴ For example, the Toledo zoning ordinance allows crematories in the “light industrial district,” the Lucas County zoning ordinance allows them only in the “heavy industrial district,” and Chicago permits crematories in the “manufacturing zone.”¹⁷⁵ This restriction creates another barrier in accessibility—for those wanting their dead nearby and for the creation or designation of more space for the dead in an appropriate zoning district that might already be built out with other industrial uses, leaving nothing for deathcare.

Legally, crematories are not considered a “nuisance in fact” because they do not offend by their emission of fumes or gases, which are considered to be relatively low. Rather, crematories offend symbolically as a reminder of death and unpleasantry, rendering them a nuisance per se.¹⁷⁶ But crematory emissions are not zero and can create air and groundwater pollution, which, as previously discussed, is not regulated as stringently as in other industrial sectors. The comparably low levels of pollutants from crematories and cemeteries may not rise to the pollution level of fracking or landfill incineration, but, if crematories that utilize greener methods like aquamation were more available, it would easily reduce pollution associated with deathcare.

For the sake of zoning considerations and statutory interpretation, crematoriums are often considered a “cemetery purpose” even if no burial occurs on the land. In Moore v. U.S. Cremation Co.,¹⁷⁷ the New York Court of Appeals held that the defendant, intending to build a crematory and columbarium on purchased land, was in violation of state corporations and real property statutes, which prohibited the use of lands adjoining Nassau County for cemetery purposes.¹⁷⁸ Despite the fact that the defendant (1) was a corporation authorized to maintain and establish a crematory; (2) purchased land within an area properly designated and zoned for cemetery purposes; and (3) recieved a subsequent building permit approval from the authorized town officials, the defendant was nonetheless found to have violated New York Not-For-Profit Corporation Law § 1506, governing cemetery corporations.¹⁷⁹

The Court of Appeals cited to Section 78:

It shall not be lawful for any corporation, association or person hereafter to set aside or use for cemetery purposes any lands in any county within the state erected on and after January first, eighteen hundred and ninety, adjoining a city of the first class and having a population of between eighty thousand and eighty-five thousand according to the Federal census of nineteen hundred and ten. . . .¹⁸⁰

This provision is almost identical to the corresponding one governing Nassau County.¹⁸¹ The court went on to explain that a “cemetery corporation” means one organized for the “burial of the dead in a vault or a receptacle,” and that the “cemetery purposes” referred to in the applicable statutory sections encompass any place that would be used for, or in preparation for, burial of the dead, whether in the ground, a vault, or a different receptacle.¹⁸² Thus the court held that the statute prohibits any land herein from being set aside or used for cemetery purposes, which includes the preservation of remains, typically a step in the cremation process.¹⁸³

Compare Moore with Rosedale & Rosehill; in Moore, we see the failure of the state legislature to adapt to the changing needs of a growing population and the consequences of outdated state cemetery laws at work. Equally troubling, in Rosedale & Rosehill, we see the consequences of unfettered discretionary local consent processes determining the outcome of the case, despite the corporation meeting the statutory criteria for lawful operation of a cemetery and the land in question being zoned for deathcare use.

Under New York Cemetery Law, the local legislative board has full discretion, so long as it is not implemented arbitrarily or unreasonably, to deny, approve, or stop the erection of a new cemetery, for any reason it deems proper, and the board has no obligation to elaborate on their reasoning after reaching a decision.¹⁸⁴ In Moore, if the proposed location of the new cemetery was near or adjoining a densely populated city, the board may, under the guidance of the statutes, properly deny new interment to safeguard the general public welfare and health but does not have to give a specific reason for doing so.¹⁸⁵

Such broad discretionary power given to a local board can be implemented arbitrarily, without finite parameters or public guidance available to help providers and corporations find deathcare space for crematories. Under New York Cemetery Law, entities seeking expansion and designation of additional deathcare space have almost no guidance for obtaining approval, and applicants are forced to accept a local board’s decision without any remedy or justification in the event of denial.

The laws that govern future development and expansion of burial grounds and crematoriums also create extensive legal barriers to making greener death options more accessible. While it is important to note that a net-zero¹⁸⁶ option for deathcare is not yet available, alternative options exist that, when aggregated as a majority choice, would greatly improve current environmental impacts of deathcare. The next section discusses several of these alternatives and the ways in which local governments can help facilitate dying green as a more common practice.

V. Practical Solutions to Encourage Dying Green

This section addresses two main issues to facilitate dying green. First, this section suggests regulatory and policy solutions that governments can implement to help reduce the environmental consequences that result from traditional burial methods and cremation practices, such as permitting systems, fee collections, tax mechanisms, funding programs, and legalizing certain eco-friendly deathcare practices. To combat increasing scarcity of deathcare land space and facilitate dying green, this section then recommends amendments to state cemetery law, as well as local land use laws, through the adoption of mixed use spaces, rezoning for more lenient use allowances, and legalizing other innovative, and perhaphs somewhat controversial, eco-burial practices.

A. Solutions That Combat Environmental Harms from Current Deathcare Practices

Within the existing legal framework surrounding deathcare, a few mechanisms can be implemented to help curb environmental harms. These solutions involve expanding on existing requirements of deathcare facilities at the local, state, and federal level, either by focusing on raising funds or collecting fees to help facilitate more costly, greener death choices, or through amending state law and the discretionary powers at play. As it currently stands, dying green methods are not widely implemented and often require a lot of space to be practically feasible. Because of this barrier, dying green can be costly—a cost that is often too high to bear for most families, regardless of any individual desire to die in a more environmentally friendly way. By implementing the methods discussed below, funding can be generated and applied to greener deathcare practices, making it more accessible to the masses and capable of actual change.

1. Implementing Burial or Landscaping Permits and Scattering Fees

One way state and local governments can begin to combat environmental harms stemming from the deathcare industry would be to require burial permits. As discussed above, New York requires registered burial permits to inter or disinter human remains.¹⁸⁷ Other states can use New York’s burial permitting system as model for regulating and implementing compliance programs for deathcare entities, and the permitting requirements can be strengthened to include more environmentally friendly deathcare practices likelandscaping requirements and scattering fees.

Additionally, local ordinances can mandate landscaping permits that may help restrict toxic materials from migrating beyond contaminated burial sites. As the population increases and city densities rise, requiring existing cemeteries to first obtain a landscaping permit before expanding would be beneficial.¹⁸⁸ This permit could include requirements for the planting of mitigative native vegetation that is designed to reduce the impact of existing contaminated conditions.¹⁸⁹ This process can help quell the harms of climate change by introducing plants and other vegetation that can help capture toxic runoff from rainfall and help prevent flooding events—both of which are known risk factors that can contribute to the emergence of a pandemic.¹⁹⁰

To fund mitigation methods at cemeteries, states and municipalities could allow and encourage not-for-profit cemeteries and burial grounds to designate plots and charge a fee for scattering ashes.¹⁹¹ The costs for scattering ashes in designated garden plots are minimal, often including the addition of the deceased’s name on a plaque or other measure indicating their memorial.¹⁹² Prices start at $100 and range to $1,000, depending on location and services included.¹⁹³ Collected fees could be used to acquire land for expansions or new cemeteries, creating more space for dying green, ¹⁹⁴ and to implement better sanitation and environmentally sound practices.

Eco-burial practices are still a relatively new concept, and the implementation of these efforts on a larger scale requires necessary funding to offset the expense of these less common practices.¹⁹⁵ Traditional burials are increasingly costly and a major reason cremations have risen in popularity. An unfortunately common misconception with cremation is that the body needs to be embalmed prior to burning, which is simply not true. However, this information is not always disclosed to families, and select funeral homes actually require it,¹⁹⁶ and, if a funeral ceremony takes place prior to cremation or the crematorium is backed up with demand, as was the case during the height of the pandemic, the body might need to be embalmed to preserve it temporarily. Thus funds generated from collecting ash scattering fees could be used to cover any costs of expediting a cremation if embalming is forgone, as well as other transportation and storage costs associated with preparing for a timely cremation. The fees collected from ash scattering could also be used to install the mitigative vegetation or remodel burial grounds to better prepare for severe rainfall and flooding events, a consequence of climate change that, as previously discussed, result in water pollution from burial grounds.

2. Implementing Government Tax Credits and Subsidies or Direct Spending Programs

Dying green can be further facilitated through federal tax programs either through expenditures or programs implementing tax credits to families or exemptions that can be applied to facilities providing green burial options. A tax expenditure results in revenue losses, whereas regular taxation raises funds for a program directly, which then provides credits to applicable programs in the form of deductions on prices or deferrals in payment.¹⁹⁷ Tax expenditures are often considered more desirable than direct government spending programs for several reasons. First, they are considered less controversial because of their ease of implementation and ability to circumvent U.S. Senate filibustering by being passed in reconciliation legislation.¹⁹⁸ Tax expenditures are also generally favorable to the risk-averse public that views credits and deductions as positive spending behavior rather than as a negative consequence, as direct government spending programs are often viewed.¹⁹⁹

In a highly polarized political climate, in which discussing environmental harms from corporations could be the source of controversy, a green burial tax incentive is likely one of the most effective and feasible ways to address environmental repercussions associated with deathcare.²⁰⁰ The use of tax credits, through a death-focused, simulated insurance-like policy, would not only help financially prepared Americans but also those in marginalized or low-income households to die green.²⁰¹ The inclusion of low-income families in the tax credit schematic, in practice, would help offset the exorbitant cost of an unexpected death in a family not financially prepared for it, and also makes dying green deathcare methods accessible to a majority of the country, rather than a small subset of only the wealthy.

One proposed way of implementing this incentive is through the use of refundable tax credits that are tacked on to nonrefundable monthly payment plans for the prepayment and preparation of sustainable deathcare.²⁰² Monthly payments are predetermined based on income and tax liability, similar to tax brackets and life insurance.²⁰³ A household with a lower income would qualify for lower monthly payments and their total cost of green deathcare could then be offset by the credit from a government program, which would be received after one-to-five or one-to-ten years, depending on the plan––higher-income households would pay higher monthly payments and have their credit capped at a certain limit to offset other households.²⁰⁴ This structure helps those who cannot afford an unexpected death to prepare for and survive an eventual loss by eliminating the possibility of death-incurred debt.²⁰⁵ The implementation of tax credits and pre-paid plans allows families who choose dying green methods to save for and benefit from an inevitable cost without having to rely on crowdfunding and social media fundraising after an unexpected tragedy.²⁰⁶

Additionally, the proposed tax credit program would encourage green death practices.²⁰⁷ The program’s definition of “sustainable deathcare” could exclude the use of embalming fluids and similar chemical preservatives; the use of fertilizers, pesticides, or herbicides in burial ground maintenance; the destruction of natural habitats for burial sites; and the use of non-biodegradable burial plot liners or vaults.²⁰⁸ Additionally, the program might allow only caskets or shrouds made of natural, non-toxic, biodegradable materials and the use of grave markers that are plaques flush with the ground or native plants and trees.²⁰⁹ Finally, the program would likely require sustainable options for cremation through any process that does not emit toxic substances or require the use of fire, such as aquamation and alkaline hydrolysis, another liquid form of cremation, or biodegradable burial materials like the mushroom suit.²¹⁰

In an opposite approach, governments can adopt a direct spending program to implement green burial practices through revenue spending from existing tax collections and provide subsidies to deathcare providers to offset the costs of greener burial procedures, thus making the choice more widely accessible. This option, of course, may likely require an increase in current taxation percentages and a public referendum, which would likely be met with opposition. To facilitate the practice of green burial and expedite the implementation of these practices, a direct spending program is likely not the best choice; however, it may be a long-term, future possibility depending on the nature of the political climate at the time of proposal.

3. Legalize Eco-friendly Deathcare Methods

Among the most common solutions for combatting the environmental harms of current deathcare practices, the majority of existing green death practices are not yet legal in majority of jurisdictions in the United States. An important step, in conjunction with the revenue-collecting schemes previously discussed, will be to legalize green death practices that those revenues seek to fund. Without widespread legalization, there are very few options for dying green (i.e., options like aquamation or human composting, which are only available in some of the states) available to the public.

For example, mass cremations can help reduce environmental impacts of deathcare and offset deathcare costs.²¹¹ Mass cremations, in the form of open burning of multiple bodies at once, have fewer adverse impacts on air quality and reduced energy costs since a traditional crematorium columbarium is not used.²¹² Mass cremation does result in indistinguishable and inseparable ashes from multiple bodies, something likely not socially desired, but could offer a cost-effective alternative for families in more strenuous financial situations; however, at this time mass cremation is considered unethical and is illegal in the United States.

Another innovative alternative to prevent embalming before burial can be found in a new invention––a mushroom burial suit––a piece of clothing lined with mushroom spores.²¹³ Once buried, the mushrooms are able to absorb and purify toxins in a process called mycoremediation.²¹⁴ The human tissue is broken down over time, and the mushrooms transfer nutrients from the body to the fungi in the soil in which the nutrients can be redirected to trees or other vegetation.²¹⁵ This process again can help mitigate the issue of groundwater pollution from stormwaters and flooding hitting burial grounds. Legalization of mushroom suits would enable families to access this deathcare for their deceased loved ones.

Some of the environmental impacts of human remains disposal that may be unavoidable can be mitigated by requiring more minimalistic or inventive approaches to offset harm by protecting resources, or by setting up a conservation funds, which are used to acquire and protect burial land.²¹⁶ The implementation of conservation easements in the application of mitigative strategies would not only protect the existing resources covered by the easement but would also create a legacy for future generations.²¹⁷ Alternatively, as practiced in other countries, cemeteries could stack bodies in a single grave or create vertical graves that reduce the amount of land needed for burials.²¹⁸ To enable this method, states would need to legalize vertical graves.

States could also authorize cemeteries to offer “time-shares” of cemetery plots that ration the limited amount of land that can be devoted to the burial of human remains and that offset deathcare costs.²¹⁹ Essentially, an existing cemetery or burial ground could place time limitations on the length of an interment. Once that time frame has run out, the body would be exhumed and replaced by another. Though this option is likely to face social backlash, the ability to cycle bodies in existing space for the dead would help combat the issues of scarcity in urban environments that are running out of room. This option may also help make burial plots more affordable since the purchase would be relatively temporary as opposed to perpetual. Additionaly, the maintainance costs of the deceased’s plot could be spread across the plot’s successors, instead of falling to one.

As burial grounds become more scarce, states could legalize other deathcare options that do not require a lot of land and that come from entirely different countries and cultures, which have more expansive views of deathcare. Though these methods are not likely to be widely accepted in the United States anytime soon, given the nature of religious ties in our country,²²⁰ one example could be adopting the practice of Tibetan sky burials. A practice central to the spiritual values of Tibetans, sky burials involve placing bodies out on open, elevated grounds known to be inhabited by vultures. The deceased are left to natural processes for their decomposition and end of life “care.”²²¹

Similarly, the legalization of aquamation in New York and other states would be an important step in encouraging greener death choices; however, as previously discussed in Section III, human composting was recently legalized in New York. Similar alternatives to traditional deathcare practices may be on the horizon if such alternatives can overcome the many legal and social challenges that they will likely encounter.

G. Solutions That Facilitate the Creation or Designation of More Deathcare Space and Combat Issues of Scarcity

1. Amending State Cemetery Law to Facilitate More Deathcare Space

One of the biggest challenges to implementing greener death practices lies in the construction of state laws that require local consent for deathcare facility siting, which is completely discretionary, without any requirement of a well-reasoned opinion accompanying a decision to withhold consent. Amending this aspect of state law to effectively weaken or loosen this local discretion would help remove barriers to entry when it comes to finding more deathcare space. Similarly, many practices that dying green encourages require land space, but the ability of the local planning board to reject a site plan application or reject a request to purchase land for cemeterial use, despite the zoning code allowing the use, is a tremendous flaw in our system. The local consent requirement does not necessarily need to be removed altogether but could be amended by requiring the local authority to to approve deathcare spaces if certain criteria are met (use allowance, permitting, incorporation, etc.) or preventing local boards from rejecting these spaces without a well-reasoned opinon and factual basis for doing so.

2. Adapting Local Comprehensive Plans and Amending State Cemetery Law to Facilitate Conservation Cemeteries.

Under state law, land use regulations like zoning typically must be in accordance with the comprehensive plan, which is the city’s guide for the future use of its land space.²²² The inclusion of language encouraging conservation cemeteries in the comprehensive plan, and subsequent amendments to local land use regulations that would implement the plan’s recommendations, could facilitate more deathcare space for dying green. As discussed previously, in New York and New Jersey, the acreage or percentage of land designated for burial and crematorium uses is essentially fixed—once this limit is reached, it is incredibly difficult to get new land approved for deathcare. The comprehensive plan is a map of community goals and visions for the geographical area’s future uses.²²³ In developing comprehensive plans, many municipalities will turn to educated, certified land use professionals and lawyers.²²⁴ Establishing the comprehensive plan is a three-part process that generally involves taking stock of where the community’s land use currently settles, developing a communal vision or goal for what the locality will be like in the future, and then developing a set of specific strategies and polices to implement those visions over time.²²⁵ This process allows communities to identify issues before they have even become a problem and incorporate trends in land use development by anticipating and navigating foreseeable changes in populations and land use patterns.²²⁶

Through the comprehensive plan, a municipality can organize and prepare for the implementation of conservation cemeteries. A conservation cemetery is designed to preserve and expand existing wilderness areas, with designated space for non-toxic burials that help fund the environmental upkeep of the whole wilderness area.²²⁷ Conservation cemeteries preserve land in its natural form by burying remains wrapped in biodegradable materials in shallow graves among native trees, surrounded with leaves and pine needle mulch, similar to the invention of the mushroom suit discussed above.²²⁸ Once buried, remains decompose naturally, thus returning nutrients to the soil.²²⁹ Proceeds from fees charged for eco-burial within a conservation cemetery can fund the continuing acquisition of land, monitoring of invasive species, and forest management to reduce and prevent wildfire hazards.²³⁰

The legal hurdles for establishing conservation cemeteries boil down relate to barriers in state cemetery laws across the country.²³¹ In addition to barriers discussed in the previous section, state cemetery laws that require paved roads to burial plots largely hinder conservation cemeteries and are common in several states.²³² In other states, cemetery fencing is mandated, creating an additional, unnatural obstacle that obstructs the implementation of conservation cemeteries.²³³ Thus, in addition to local planning for conservation cemeteries, states must amend cemetery laws to remove any such barriers. In amending the comprehensive plan and subsequently amending zoning to allow and facilitate conservation cemeteries, the local legislature can rework restrictive policy and create or designate more space for sustainable green dying practices. By planning for conservation cemeteries in the comprehensive plan, the municipality creates a policy framework for legislative change. Further, the implementation and designation of conservation cemeteries²³⁴ may be extremely useful for local governments contemplating the risk of nuisance complaints.

3. Implementation of Mixed-Use Cemetery Spaces

If the designation of additional land space for conservation cemeteries is unattainable in specific localities, local zoning laws could be amended to allow mixed uses in cemeteries and burial grounds. By clustering gravesites (similar to cluster subdivisions), a small portion of designated burial ground could be devoted to graves, and other areas could be designated for spreading cremains, while the remaining property could be set aside for conservation and recreational use.²³⁵ Incorporating mixed uses in cemeteries guarantees neighboring residents accessible, permanent green space because of the protections that accompany interments.²³⁶

For example, Baltimore has allowed existing lawns of cemeteries to be rezoned as permanent open spaces, which has maximized the utility of those spaces.²³⁷ In an effort to address zoning barriers to creating or designating more space for the deceased, Baltimore’s zoning ordinance allows its existing public and private cemeteries to be included within a “floating special zoning district” that seeks to “permanently preserv[e] open space as an important public asset.”²³⁸ The transformation of current cemeteries into alternative open spaces expands natural infrastructure and provides green space for residents without requiring the acquisition of new land.²³⁹ The City of Baltimore also does not require any special permits or extra steps for multi-use cemeteries beyond obtaining a nonconforming use permit.²⁴⁰ This process inherently encourages cemetery owners to allow their properties to become public, mixed-use spaces for maximum utility.

Baltimore is just one example of mixed-use conservation efforts that localities can implement in cemeteries to combat the growing scarcity of land that prevents more people from dying green. Cities such as New York City, where burial land is exceedingly scarce, could imitate Baltimore’s mixed-use cemetery efforts.²⁴¹ Baltimore’s mixed-use cemeteries serve as a model for growing urban neighborhoods nationwide.

Conclusion

Current deathcare practices in this country are wasteful and unsustainable. The lack of environmentally friendly legislation for combatting the concerns that our current deathcare practices pose makes revisal of current deathcare and land use policies and law increasingly timely. The rise in cremation rates and the increase in interest for green burials have been contemplated by land use professionals and environmental scholars across the country for some time now. Consequentially, everyday Americans are focusing more on finding eco-friendly ways to minimize their environmental footprint when they pass. But with current exceedingly outdated cemetery laws, this search is often fruitless. With or without action, cremation will continue to increase, and the environmental harms resulting from this increase in cremation will only worsen as local governments continue to refrain from action. During the COVID-19 pandemic, the ill-prepared deathcare industry, when faced with soaring death rates, only further underscored the need for updated regulation of the deathcare industry.

Additionally, without direct action from local governments, there is only so much each person can do to die green. Currently, dying green is really only accessible to the wealthy, leaving marginalized groups—who were most at risk during the pandemic—without sustainable options, a pattern likely to repeat as climate change continues to threaten our environment. Over time and with local efforts, natural greener deathcare may gain popularity and become commonplace. A green burial not only provides comfort in its similarity to traditional burial but can also provide significant benefits to the living when incorporated into conservation efforts and mixed-use spaces.

Dying green, through these specific efforts, will help reduce environmental waste and pollution, provide future protection to natural ecosystems, and create spaces in which the living and dead can coexist. To achieve these goals, governments should remove barriers to green deathcare and adopt measures like burial permits, scattering fees, tax credit plans, and the inclusion of green death initiatives in a revamped, environmentally conscious comprehensive plan.

Endnotes

1. Stefan Lehne, What the COVID-19 Pandemic Tells Us About Climate Change and Diplomacy, Carnegie EU (Oct. 26, 2021), https://carnegieeurope.eu/2021/10/26/what-covid-19-pandemic-tells-us-about-climate-change-and-diplomacy-pub-85643.

2. Understanding Air Pollution, Respiratory Health Ass’n, https://resphealth.org/clean-air/understanding-air-pollution (last visited Jan. 12, 2022).

3. Coronavirus, Climate Change, and the Environment: A Conversation on COVID-19 with Dr. Aaron Bernstein, Director of Harvard Chan C-CHANGE, Harvard T.H. Chan – Sch. Pub. Health, https://www.hsph.harvard.edu/c-change/subtopics/coronavirus-and-climate-change (last visited Jan. 12, 2022).

4. Id.

5. See Coronavirus Disease (2019) Situation Report – 94, World Health Org. (Apr. 23, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200423-sitrep-94-covid-19.pdf?sfvrsn=b8304bf0_4#:~:text=All%20available%20evidence%20for%20COVID,has%20a%20zoonotic%20source.

6. Id.

7. See generally Suzanne Kelly, Greening Death: Reclaiming Burial Practices and Restoring Our Tie to the Earth (2015).

8. Jiaquan Xu et al., Deaths: Final Data for 2019, 70:8 Nat’l Vital Stats. Rep. 1, 1 (2021).

9. Farida B. Ahmad et al., Provisional Mortality Data – Morbidity and Mortality Weekly Report, Ctrs. for Disease Control & Prevention (Apr. 9, 2021), http://dx.doi.org/10.15585/mmwr.mm7014e1; COVID-19 Mortality Overview, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/nchs/covid19/mortality-overview.htm (last visited Oct. 2, 2022).

10. Id.

11. Id.

12. Bryan Wood & Jamina Zhang, A Million Americans Have Died From Covid-19 with More Than Half Cremated, South China Morning Post (May 6, 2022), https://www.scmp.com/video/world/3176834/million-americans-have-died-covid-19-more-half-cremated.

13. Kat Eschner, How COVID Has Transformed the Death Care Industry for ‘Last Responders,’ Fortune (Aug. 7, 2021), https://fortune.com/2021/08/07/covid-funerals-death-care-industry-burial-cremation-pandemic.

14. Nat’l Funeral Dirs. Ass’n, 2015 NFDA Cremation and Burial Report: Research, Statistics and Projections 2 (2015).

15. Statistics, Nat’l Funeral Dirs. Ass’n, https://nfda.org/news/statistics (last visited Oct. 3, 202).

16. Nat’l Funeral Dirs. Ass’n, 2021 NFDA Cremation and Burial Report 2 (2021).

17. Understanding the Costs of Cremation vs. Burial, Smart Cremation, https://www.smartcremation.com/articles/understanding-the-costs-of-cremation-vs-burial (last visited Jan. 12, 2022).

18. Id.

19. Vaughn Greene Funeral Services, Five Reasons Why Cremation Is Surging in Popularity, VGFS (Feb. 8, 2020), https://vaughncgreene.com/blogs/blog-entries/3/News-Events/90/Five-Reasons-Why-Cremation-is-Surging-in-Popularity.html.

20. See Harald Ulrik Sverdrupa et al., On the Long-Term Sustainability of Copper, Zinc and Lead Supply, Using a System Dynamics Model, 4 Resources, Conserv., & Recycling: X, Science Direct 1 (2019), https://www.sciencedirect.com/science/article/pii/S2590289X19300052.

21. Mark Shelvock, Elizabeth Anne Kinsella & Darcy Harris, Beyond the Corporatization of Death Systems: Towards Green Death Practices, 30 Illness, Crisis & Loss 640 (2021), https://journals.sagepub.com/doi/full/10.1177/10541373211006882.

22. Green Burial, An Environmentally Friendly Choice, Funeral Consumers All., https://funerals.org/?consumers=green-burial (last visited Jan. 12, 2022).

23. See Jeremiah Chiappelli & Ted Chiappelli, Drinking Grandma: The Problem of Embalming, 71:5 J. Envt. Health 24, 24 (2008).

24. Bill Schlesinger, Casting Your Last Environmental Footprint, Nicholas Sch. Env’t Duke Univ. (Oct. 31, 2017), https://blogs.nicholas.duke.edu/citizenscientist/casting-your-last-environmental-footprint.

25. Barbara Kemmis, Environmental Impact of Cremation, Cremation Ass’n N. Am. (Oct. 21, 2020), https://www.cremationassociation.org/blogpost/776820/357871/Environmental-Impact-of-Cremation.

26. Georgina M. Robinson, Dying to Go Green: The Introduction of Resomation in the United Kingdom, 12:97 Religions 15, 15 (2021).

27. Andrew McGee, Where Is Aquamation Legal? Which States Have Legalized Aquamation or Bio Cremation?, U.S. Funerals Online (Nov. 19, 2021), https://www.us-funerals.com/where-is- aquamation-legal-which-states-have-legalized-aquamation-or-bio-cremation/#.YwVPw-zMLlZ.

28. The Environmental Impact of Funerals and Cremation Infographic, Talkdeath (Apr. 22, 2021), https://www.talkdeath.com/the-environmental-impact-of-funerals-and-cremation-earth-day-infographic.

29. Id.

30. Id.

31. See, e.g., Am. Plan. Ass’n, Cemeteries in the City Plan (July 1950), https://www.planning.org/pas/reports/report16.htm.

32. Egyptian Mummies, Smithsonian, https://www.si.edu/spotlight/ancient-egypt/mummies (last visited Jan. 12, 2022).

33. Erich Brenner, Human Body Preservation – Old and New Techniques, 224 J. Anatomy 316, 319 (2014); see also Chiappelli & Chiappelli, supra note 23.

34. Lisa Singh, 8 Things You Didn’t Know About Abraham Lincoln’s Funeral, HuffPost (Apr. 14, 2015), https://www.huffpost.com/entry/8-things-you-didnt-know-abraham-lincoln_b_7062044.

35. Brenner, supra note 33.

36. Id.

37. Facts About Formaldehyde, EPA, https://www.epa.gov/formaldehyde/facts-about-formaldehyde (last visited Jan. 12, 2022).

38. Chiappelli & Chiappelli, supra note 23.

39. Id.

40. Medical Waste in the Deathcare Industry, Malsparo, https://www.malsparo.com/mortuaries.htm (last visited Jan. 12, 2022).

41. Id.

42. Chiappelli & Chiappelli, supra note 23.

43. Id.

44. Laura K. Lautz et al., Legacy Effects of Cemeteries on Groundwater Quality and Nitrate Loads to a Headwater Stream, 125012 Env’t. Res. Lett. 15, at 2, 5–6, 10 (2020), https://iopscience.iop.org/article/10.1088/1748-9326/abc914/pdf.

45. Lautz, supra note 44, at 2.

46. Id.

47. New York has more than double the amount of religious or municipal owned cemeteries than not-for-profit owned cemeteries, which are the only ones under the authority of the Division of Cemeteries (4,000 to 1,900, respectively). See FAQ’s, NYS Assoc. of Cemeteries, http://nysac.com/faqs/#:~:text=Over%201%2C900%20cemeteries%20in%20New,by%20the%20Division%20of%20Cemeteries (last visited Nov. 27, 2022).

48. Vaughn Greene Funeral Services, supra note 19.

49. Western History of Cremation, Cremation Ass’n N. Am., https://www.cremationassociation.org/page/HistoryOfCremation (last visited Jan. 12, 2022).

50. Vaughn Greene Funeral Services, supra note 19.

51. N.Y. C.P.L.R. § 219–4.4(a)–(b).

52. Cremation Process, Cremation Ass’n N. Am., https://www.cremationassociation.org/page/CremationProcess (last visited Jan. 12, 2022).

53. Id.

54. Id.

55. Yifeng Xue et al., Emission Characteristics of Harmful Air Pollutants from Cremators in Beijing, China, PLoS One, May 2, 2018, at 1.

56. Assessing EPA’s Efforts to Measure and Reduce Mercury Pollution from Dentist Offices: Hearing on Serial No. 111–139, Before the Subcomm. on Domestic Pol’y of the Comm. on Oversight and Gov. Reform, 111th Cong. (2010), https://www.govinfo.gov/content/pkg/CHRG-111hhrg65133/pdf/CHRG-111hhrg65133.pdf.

57. See id at 1–3.

58. United Nations Environment Programme, Global Mercury Assessment 2013: Sources, Emissions, Releases and Environmental Transport. UNEP Chemicals Branch, Geneva, Switzerland 9 (2013).

59. See infra text accompanying notes 97–104

60. See supra text accompanying notes 36–49; see also Facts About Formaldehyde, supra note 36.

61. Assessing EPA’s Efforts to Measure and Reduce Mercury Pollution from Dentist Offices, at 2–6.

62. Ezine, What Happens to Gold Teeth?, Funeral Consumers All. of AZ (Aug. 2, 2021), https://fcaaz.org/1761-2.

63. Assessing EPA’s Efforts to Measure and Reduce Mercury Pollution from Dentist Offices, at 6–7.

64. Id.

65. Id.

66. Id.

67. This is the sum of 0.6 and 0.3 tons per year from sludge incinerations and cremations, respectively.

68. Assessing EPA’s Efforts to Measure and Reduce Mercury Pollution from Dentist Offices, at 6–7.

69. Id.

70. Chiappelli & Chiappelli, supra note 23.

71. Id.

72. Id.

73. See infra text accompanying notes 191–95.

74. Chiappelli & Chiappelli, supra note 23.

75. See Undercover Inspections of Funeral Homes in Six States Prompt Compliance with Funeral Rule Disclosure Requirements, Fed. Trade Comm’n (May 5, 2015), https://www.ftc.gov/news-events/news/press-releases/2015/05/undercover-inspections-funeral-homes-six-states-prompt-compliance-funeral-rule-disclosure; see also Fed. Trade Comm’n, Complying with the Funeral Rule (Aug. 2012), https://www.ftc.gov/business-guidance/resources/complying-funeral-rule#who-must-comply-with-funeral-rule (detailing the Funeral Rule and required disclosures for consumers).

76. Id.; see also Juliette O’Keeffe, Crematoria Emissions and Air Quality Impacts, the Design of the System, Nat’l Collaborating Centre for Env’t Health (Mar. 24, 2020), https://ncceh.ca/documents/field-inquiry/crematoria-emissions-and-air-quality-impacts.

77. James G. Speight, Flue Gas, in Nat. Gas, Sci. Direct (2019), https://www.sciencedirect.com/topics/earth-and-planetary-sciences/flue-gas.

78. Flue Gas Abatement, Matthews Env’t Sols., https://matthewsenvironmentalsolutions.com/en-us/flue-gas-abatement (last visited Nov. 27, 2020).

79. See, e.g., N.Y. Comp. Codes R. & Regs. tit. 6, § 219-4.3 (New York’s law on particulate emissions).

80. O’Keeffe, supra note 75; see also Backlog of Bodies Caused by COVID-19 Forces California Air Quality Agency to Suspend Cremation Limits, CBS News (Jan. 18, 2021), https://www.cbsnews.com/news/covid-19-backlog-bodies-cremation-limits-suspended-california-air-quality-agency; S. Coast Air Quality Mgmt. Dist., Exec. Order No. 21-01x10 (2021), http://www.aqmd.gov/docs/default-source/covid-19/crematoria-limits-suspension.pdf.

81. Kevin Pirehpour, Neighbors Hope for Relief from Crematorium Smoke as COVID-19 Deaths Decrease, Cronkite News (Mar. 25, 2021), https://cronkitenews.azpbs.org/2021/03/25/neighbors-hope-for-relief-from-crematorium-smoke-as-covid-19-deaths-decrease.

82. Hazardous Waste Management Facilities and Units, EPA, https://www.epa.gov/hwpermitting/hazardous-waste-management-facilities-and-units#:~:text=The%20most%20common%20type%20of,groundwater%20and%20surface%20water%20resources (last updated June 16, 2022); see also Solid Waste management (SWM) Planning, N.Y. Dep’t of State, Env’t Conserv., https://www.dec.ny.gov/chemical/47861.html (last visited Nov. 14, 2022); Elements of a Waste Management Plan, Malsparo, https://www.malsparo.com/plan.htm (last visited Jan. 12, 2022).

83. Hazardous Waste Permitting, EPA (Nov. 17, 2022), https://www.epa.gov/hwpermitting.

84. Medical Waste, EPA (May 14, 2022), https://www.epa.gov/rcra/medical-waste.

85. See, e.g., Funeral Home Embalming Wastewaters, Frequently Asked Questions (FAQ), Mich. Dep’t of Envt., Great Lakes & Energy (May 2019), https://www.michigan.gov/egle/-/media/Project/Websites/egle/Documents/Programs/MMD/Medical-Waste/Funeral-Home-Wastewater-FAQ.pdf; see also Medical Waste, supra note 84

86. About NPDES, EPA, https://www.epa.gov/npdes/about-npdes (last visited Jan. 12, 2022).

87. 33 U.S.C. § 1251 Pt. 501 (1989).

88. Id.

89. Id.

90. Id.

91. Pam Belluck & Greg Winter, Crematory Case Underlines Gaps in Oversight of Funeral Business, N.Y. Times (Feb. 23, 2002), https://www.nytimes.com/2002/02/23/us/crematory-case-underlines-gaps-in-oversight-of-funeral-business.html; see also Report to Congresional Requesters GAO-03-757, Death Care Industry: Regulation Varies across States and by Industry Segment, U.S. Gen. Acct. Off. (Aug. 2003), https://www.gao.gov/assets/gao-03-757.pdf.

92. Stephen Lee, Round-the-Clock Cremations Stoke Mercury Fears for Neighborhoods, Bloomberg Law (May 15, 2020), https://news.bloomberglaw.com/environment-and-energy/round-the-clock-cremations-stoke-mercury-fears-for-neighborhoods.

93. About Cemeteries in New York State, Public Cemetery Regulation in New York State, NYS Div. of Cemeteries (2021), https://dos.ny.gov/system/files/documents/2021/06/publiccemeteryregulations.pdf.

94. See infra text accompanying notes 117–59.

95. 40 C.F.R § 261, Management Standards for Hazardous Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine, EPA, at 582–26 (Feb. 22, 2019), https://www.federalregister.gov/documents/2019/02/22/2019-01298/management-standards-for-hazardous-waste-pharmaceuticals-and-amendment-to-the-p075-listing-for.

96. Crematory Frequently Asked Questions, N.Y. Dep’t of State, https://dos.ny.gov/crematory-frequently-asked-questions (last visited Apr. 24, 2023).

97. Id.

98. 40 C.F.R. § 261; see also A Note on Why EPA Doesn’t Regulate Crematories, No2Crematory (Jan. 7, 2015), https://no2crematory.wordpress.com/2015/01/07/a-note-on-why-epa-doesnt-regulate-crematories (explaining in simpler terms how and why EPA does not regulate or classify this waste under their possible authority over “solid” wastes).

99. Human and Animal Crematories, N.Y. Dep’t of Envt’l Conserv., https://www.dec.ny.gov/chemical/71624.html (last visited Nov. 27, 2022); N.Y. Dep’t of State, supra note 41.

100. 45 N.Y. Pub. Health art. 41 tit. 4 § 4145.

101. Id.

102. N.Y.C. Health Code, Deaths and Disposal of Human Remains, art. 205 §§ 21(b)(1), 33.

103. N.Y. Dep’t of Env’t Conserv., supra note 99.

104. Air Facility Permits, Registrations and Fees, NYS Dep’t of Conserv. (2022), https://www.dec.ny.gov/chemical/8569.html.

105. Id.

106. Id.

107. See infra text accompanyingSection V.

108. Kari Paul, From Cradle to Compost: The Disruptors Who Want to Make Death Greener, Guardian (Feb. 19, 2023), https://www.theguardian.com/society/2023/feb/19/human-composting-industry-deathcare.

109. The Cycle, Recompose, https://recompose.life/our-model/#the-process (last visited Feb. 22, 2023).

110. Id.

111. Id.

112. Robinson, supra note 26.

113. Id.

114. Five Things You Didn’t Know About Water Cremation, Talk Death (Apr. 27, 2021), https://www.talkdeath.com/five-things-you-didnt-know-about-water-cremation.

115. Id.

116. Id.

117. John R. Nolon, Well Grounded: Shaping the Density of the Empire State, ch. 1 (1988).

118. Id.

119. Id.

120. See, e.g., Masonic Cemetery Ass’n v. Gamage, 38 F.2d 950, 951–52 (9th Cir. 1930).

121. See Laurel Hill Cemetery v. San Francisco, 216 U.S. 358 (1910).

122. Coates v. Mayor, Aldermen & Commonalty of N.Y., 7 Cow. 585 (1827).

123. Am. Planning Ass’n, supra note 31.

124. Id.

125. See, e.g., N.Y. Not-for-Profit Corp. art. 15, § 1506 (b)(1).

126. The Basic Laws Pertaining to Cemeteries, Stimmel, Stimmel, & Roeser, https://www.stimmel-law.com/en/articles/basic-laws-pertaining-cemeteries (last visited Jan. 12, 2022).

127. Id.

128. See, e.g., N.Y. Not-for-Profit Corp. art. 15, § 1506 (b)(1).

129. Stimmel, Stimmel & Roeser, supra note 126.

130. Id.

131. Ahmet S. Üçisik & Philip Rushbrook, The Impact of Cemeteries on The Environment and Public Health (World Health Org. 1998), https://apps.who.int/iris/bitstream/handle/10665/108132/EUR_ICP_EHNA_01_04_01(A).pdf;sequence=1.

132. N.Y. Not-for-Profit Corp. art. 14, § 1506 (c)–(d).

133. See id. § 1506 (e)(1).

134. Id.

135. Rosedale & Rosehill Cemetery Ass’n v. Twp. of Reading, 510 F. Supp. 3d 250, 255 (D.N.J. 2020); Rosedale & Rosehill Cemetery Ass’n v. Twp. of Reading, Civ. Action No. 3:19-cv-16428 (FLW), 2021 U.S. Dist. LEXIS 82848 (D.N.J. Feb. 23, 2021).

136. Rosedale & Rosehill Cemetery Ass’n, 510 F. Supp. 3d at 255.

137. Id.

138. Id.

139. Id.; see 45 N.J. Stat. Ann. ch. 27 § 25(a)–(c) (West 2022).

140. Rosedale & Rosehill Cemetery Ass’n, 510 F. Supp. 3d at 256.

141. Id.

142. Id.

143. Id.

144. Id.

145. Id.

146. Id. at 257.

147. Id.

148. Stimmel, Stimmel, & Roeser, supra note 126.

149. Id.

150. Satxwdavis, Lines of Cremains at Père Lachaise Cemetery, Atlas Obscura, https://www.atlasobscura.com/places/cremains-of-pere-lachaise-cemetery (last visited Oct. 21, 2021).

151. Stimmel, Stimmel & Roeser, supra note 126.

152. Id.

153. Id.

154. Id.

155. Garland v. Clark, 88 So. 2d 367, 370 (Ala. Sup. Ct. 1956) (internal quotations omitted) (emphasis added).

156. Id.

157. Abandoned Cemeteries and Municipal Responsibilites, NYS Tug Hill Comission 2 (Issue Paper Series, Aug. 2018), https://www.tughill.org/wp-content/uploads/2018/08/AbandonedCemeteriesAndMunicipalResponsibilities2018.pdf.

158. Staten Island and the Bronx would be the only two left with burial space. See Farah Halime, Buying for the Afterlife RealDeal (Mar. 1, 2016), https://therealdeal.com/magazine/new-york-march-2016/buying-for-the-afterlife.

159. Id.

160. Stimmel, Stimmel & Roeser, supra note 126.

161. Id.

162. Id.

163. Id.

164. Masonic Cemetery Ass’n v. Gamage, 38 F.2d 950, 952 (9th Cir. 1930).

165. Id.

166. Mayes v. Simons, 8 S.E.2d 73 (Ga. Sup. Ct. 1940).

167. Id. at 77.

168. Id. at 74–75.

169. Id.

170. Id.

171. Id.

172. Id. at 75–76 (quoting 10 Am. Jur. 512, § 36).

173. Id. at 76.

174. Id.

175. Id.

176. Id.

177. Moore v. U.S. Cremation Co., 9 N.E.2d 795 (N.Y. 1937).

178. See generally id.

179. Id. at 797.

180. Id. at 797–98.

181. Id.

182. Id.

183. Id.

184. Id. at 797–98.

185. N.Y. Not-for-Profit Corp. art. 15, § 1506 (e).

186. What Is Net Zero?, Uni. Oxford, https://netzeroclimate.org/what-is-net-zero/ (last visited Mar. 14, 2023) (“Net zero refers to a state in which the greenhouse gases going into the atmosphere are balanced by removal out of the atmosphere.”).

187. N.Y. Pub. Health art. 41, tit. 4 § 4145.

188. Bradley Adams & Kathryn Leidahl, Growing Solutions, A Policy Brief Concerning Vegetative Landscaping’s Ability to Address the Effects of Climate Change in Cedar Rapids, IA, Haub School of Law Env’t Law and Policy Hack Competition – Drake School of Law Team Brief (2020), https://law.pace.edu/sites/default/files/Team%20%231%20Brief.pdf.

189. Id. at 20–21.

190. Id.

191. How Much Does Scattering Ashes Cost?, Living Urn (Feb. 20, 2019), https://www.thelivingurn.com/blogs/news/how-much-does-scattering-ashes-cost.

192. Id.

193. Id.

194. Christopher Coutts et al., Planning for the Deceased (Am. Plan. Ass’n 2013).

195. Alex Brown, More People Want a Green Burial, but Cemetery Law Hasn’t Caught Up, Pew (Nov. 20, 2019), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/11/20/more-people-want-a-green-burial-but-cemetery-law-hasnt-caught-up.

196. Chiappelli & Chiappelli, supra note 23; see also Is Embalming necessary for Cremation?, Nat’l Cremation, https://www.nationalcremation.com/ask-a-funeral-director/is-embalming-necessary-for-cremation (last visited Nov. 27, 2022).

197. Tax Expenditures, U.S. Dept. of Treasury (2023), https://home.treasury.gov/policy-issues/tax-policy/tax-expenditures.

198. Victoria J. Haneman, Tax Incentives for Green Burial, 21 Nev. L.J. 491 (2021).

199. Id. at 521.

200. Id. at 526.

201. Id.

202. Id.

203. Id. at 526–28.

204. Id. at 528.

205. Id.

206. Laura M. Holson, As Funeral Crowdfunding Grows, So Do the Risks, N.Y. Times (June 5, 2018), https://nyti.ms/2xKHupx.

207. Haneman, supra note 198.

208. Id.

209. Id.

210. See infra text accompanying notes 213–15.

211. Hope M. Babcock, The High Environmental Cost of Dying and What if Anything Can Be Done About It, Va. Env’t L.J. 152, 159–62 (2022).

212. Id.

213. Daniela Fortino, How the Mushroom Burial Suit Works and What Does It Cost, Eirene (Oct. 11, 2022), https://eirene.ca/blog/how-mushroom-burial-suit-works.

214. Id.

215. Id.

216. Babcock, supra note 211, at 163–64.

217. Id.

218. Kaushik Patowary, The Rise of Vertical Cemeteries, Amusing Planet (Nov. 29, 2017), https://www.amusingplanet.com/2017/11/the-rise-of-vertical-cemeteries.html.

219. Babcock, supra note 211..

220. See id. (explaining the cultural norms of religious groups in our society and how religious ties play a role in the choice of deathcare socially accepted regardless of their harmful environmental impacts).

221. Amy Houchin, Tibetan Sky Burials, Anthropological Perspectives on Death (Feb. 13, 2017), https://scholarblogs.emory.edu/gravematters/2017/02/13/tibetan-sky-burials; see also Babcock, supra note 211, at 163–64.

222. Id.; see Nolon, supra note 117.

223. What Is a Comp Plan?, City of Johnston, https://www.cityofjohnston.com/929/What-is-a-Comp-Plan (last visited Jan. 12, 2022).

224. Id.

225. Id.

226. Id.

227. Brown, supra note 195.

228. See supra discussion accompanying notes 213–15.

229. Brown, supra note 195.

230. Id.

231. Id.

232. Id.

233. Id.

234. Id.

235. Coutts, supra note 194, at 52.

236. Id.

237. Id.

238. Id.

239. Id.

240. Id.

241. Compare Baltimore City Land Preservation, Parks & Recreation 2005–2010, https://www.baltimorecity.gov/sites/default/files/Baltimore%20Land%20Preservation%2C%20Parks%20and%20Recreation.pdf, with James T. Smith, Jr. et al., Baltimore County, Maryland Master Plan 2020 (Nov. 15, 2010), https://planning.maryland.gov/Documents/OurWork/compplans/20_CMP_BaltCo.pdf.