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The Uncertain Future Of Tourism On Migrating Barrier Islands: How And Why The Outer Banks Of North Carolina Should Adjust To Growing Threats, Lillian Coward

William & Mary Law Review

Erosion, storms, and the migration of the barrier islands that comprise the Outer Banks themselves are not new. The rising seas that have resulted from climate change have merely exacerbated what has always occurred. What is new, however, is the economic havoc that natural processes and disasters alike can wreak on the islands. Today, because climate change has accelerated natural island migration, individuals, local governments, and the federal government alike have a lot to lose in the fight against the tides.

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This Note will evaluate a variety of potential solutions to the problems that pose nearly existential threats to …

20th Annual Brigham-Kanner Property Rights Conference (Program), William & Mary Law School

2023 Property Conference

No abstract provided.

Preparing For The Flood: Virginia Local Governments' Stormwater Management Liability, James E. Davidson

William & Mary Environmental Law and Policy Review

This Note explains that modern interpretations of Virginia Code § 15.2-970 have made Virginia municipalities immune to tort suits arising from the negligent maintenance of stormwater systems. Due to the Virginia Supreme Court’s holdings in Livingston v. Virginia Department of Transportation and other inverse condemnation suits, localities may be found liable when their stormwater management decisions cause property damage. However, following the Court’s holding in AGCS Marine Insurance Co. v. Arlington County, which prevented inverse condemnation claims arising from municipal negligence, residents are still unlikely to find legal redress for negligent stormwater management that results in property damage. Therefore, this …

The Importance Of Accessible Government Data In Advancing Environmental Justice, Frank D. Lomonte, Daniel Delgado

William & Mary Environmental Law and Policy Review

Part I of this Article sets forth the history and animating principles of the environmental justice movement in the United States during the 1970s, which developed as an adjunct to the larger civil rights movement. Part II then turns to the role of documents and data in exposing where toxins present a risk to public health and where documentation habitually falls short. It discusses how freedom of information laws can unlock access to the documents and data that quantify environmental hazards but also how those laws fail to produce reliable results because of the influence of regulated industries. Part III …

How Many More Brazilian Environmental Defenders Have To Perish Before We Act? President Lula's Challenge To Protect Environmental Quilombola Defenders, Sarah Dávila A.

William & Mary Environmental Law and Policy Review

The Global South has been historically marginalized and continues to suffer from systemic oppression, impeding the realization of their human rights. Afro-descendants and other minority populations in the Global South live in disproportionately environmentally unsafe conditions and are disproportionately more vulnerable to climate change and environmental harm. One of those populations are Quilombolas. Quilombolas are Brazilian Afro-descendant communities who continue to fight to protect their community rights to ancestral lands, natural resources, and survival as a people. The Brazilian government under former Brazilian President Bolsonaro engaged in a persistent and systematic campaign to target, attack, and kill defenders, including Quilombola …

Table Of Contents (V. 47, No. 3)

William & Mary Environmental Law and Policy Review

No abstract provided.

Foreword To International Environmentalism: A Global Approach To Global Challenges, Cameron Krause

William & Mary Environmental Law and Policy Review

As the effects of climate change progress, people and governments in every country are left grappling with how to combat the consequences. Recognizing that such global challenges necessitate an international approach, this Symposium was convened to critically examine the domestic application of international law, the role of non-governmental organizations (“NGOs”), transnational ecological harms, and international environmental agreements. Articles and contributions from panelists in the Symposium contemplated the best paths forward in the face of an ever-changing international landscape.

This abstract has been taken from the author's opening paragraphs.

Litigation To Protect The Marine Environment: Parallels And Synergies With Climate Litigation, Randall S. Abate, Nadine Nadow, Hayley-Bo Dorrian-Bak

William & Mary Environmental Law and Policy Review

The world’s oceans are in crisis. Climate change impacts, biodiversity loss, plastic pollution, fisheries collapse, impacts to marine mammals, and vessel-based pollution are among the many threats the marine environment faces today. Fish biomass is predicted to drop by 3% to 25% by the end of the century due to climate change. Worse still, the amount of plastic in the world’s aquatic ecosystems is on track to hit 23 to 37 million tons per year by 2040.

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This Article reviews recent successes and obstacles in using litigation as a tool to address these concerns across several contexts in the …

Saving The Planet With Legal Research, Wolf Law Library, William & Mary Law School

Library Book Displays

A selection of works in honor of World Wildlife Day (March 3).

On display in the Wolf Law Library March-May 2023.

Environmental Assessment In A Time Of Rapid Change And High Uncertainty: The Addition Of Resilience Assessment To Nepa, Bronson J. Pace, Barbara A. Cosens

William & Mary Environmental Law and Policy Review

This Article turns to ecological resilience theory to understand the behavior of SES [socioecological system] undergoing change. Informed by the emergent and surprising behavior of these complex systems, this Article argues for the option of resilience assessment under NEPA [National Environmental Policy Act] for use in application to climate adaptation measures in the United States. The amendment also provides an alternative approach to pre-project judicial review to ensure legitimacy within a more flexible process.

To this end, Part I addresses why an alternative approach to environmental assessment is needed in the context of climate adaptation by providing an overview of …

Separating Litigation: How Seps Demonstrate The Need For Centralized Environmental Civil Litigation, Jon Paul Suttile

William & Mary Environmental Law and Policy Review

This Note will proceed in four parts to examine why enabling EPA [Environmental Protection Agency] litigation autonomy over reestablishing the EPA as a traditional independent agency is a better way of achieving uniform enforcement of environmental policy and regulations. Part I will address the history of independent agencies. Part II will briefly overview the arguments for and against independent agencies and discuss how Supreme Court precedent affects independent agency status. Part III will focus on whether the EPA would benefit from independent agency status. Lastly, Part IV will focus on the use of Supplemental Environmental Projects (“SEPs”) in settlement agreements …

The African Century: Renewable Energy Opportunities In Sub-Saharan Africa, Joshua Mackinnon

William & Mary Environmental Law and Policy Review

Even if the world’s developed nations are able to curb their carbon emissions in the coming years, major hurdles will still exist. One such hurdle is fulfilling energy needs in urbanizing areas, like sub-Saharan Africa. Many global regions are urbanizing but none as rapidly as sub- Saharan Africa. The global share of Africa’s urban residents is expected to grow from 11.3% in 2010 to 20.2% by 2050.

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While sub-Saharan African countries have peculiar social and economic characteristics, there are common elements that allow this Note to focus on the region as a whole. This general approach can be adjusted …

Table Of Contents (V. 29, No. 2)

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Covid, Climate Change, And Transformative Social Justice: A Critical Legal Research Exploration, Nicholas F. Stump

William & Mary Environmental Law and Policy Review

This Article explores intertwined contemporary crises via the Critical Legal Research framework (“CLR”), as initially developed by the critical legal scholars Richard Delgado and Jean Stefancic. CLR as conceived of in this Article entails a truly radical approach to the legal research and analysis regime. While the traditional research regime—as taught in law schools and utilized in practice—functions to homogenize research outcomes towards hegemonic ends, a critically “reconstructed” approach to legal and broader socio-legal research permits more transformative futures. Specifically, CLR as deployed within such modes as radical cause lawyering can help engender genuine systemic “re-formations” of the ecological political …

Frontiers In Regulating Building Emissions: An Agenda For Cities, Danielle Spiegel-Feld

William & Mary Environmental Law and Policy Review

Recent developments in Congress and the Supreme Court have highlighted the folly of relying solely on the federal government to contain global climate change. If the United States is to help rein in the climate crisis, state and local governments will need to accelerate their efforts to reduce greenhouse gas emissions. In many urban areas, where most Americans now live, the most important step that local governments can take to curtail these emissions is to reduce energy use in buildings. Recognizing this, a number of American cities have adopted building performance standards (“BPSs”) in recent years, which limit the annual …

19th Annual Brigham-Kanner Property Rights Conference (Program), William & Mary Law School

2022 Property Conference

No abstract provided.

Brigham-Kanner Property Rights Journal, Volume 11, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Role of Empirical Research

September 30-October 1, 2021

Panel 1: The Role of Empirical Research in Defining the Scope of Constitutionally Protected Property Rights: A Tribute to Been

Panel 2: The Relationship Between Eminent Domain and Social and Racial Injustice

Panel 3: The Interdependence of Property and First Amendment Rights

Panel 4: The Distributional Implications of Land Use Regulation

Table Of Contents And Masthead (V. 46, No. 3)

William & Mary Environmental Law and Policy Review

No abstract provided.

Tribal Resilience And Community Plans: A Primer For Tribal Communities Looking To Create Their Own, Karly Newcomb

Virginia Coastal Policy Center

This paper serves as an overview of various Tribal resilience plans across the nation and community planning efforts in Virginia. Although each plan is particularly detailed to address one locality’s specified areas of concern, the plans are fully adaptable to meet any community’s particular needs. Additionally, the paper includes a synthesis of commonalities that these plans share with the goal of providing an overview of resilience plan options and strategies that can be used as a framework for Tribal communities looking to create their own plans.

This abstract has been taken from the author's introduction.

In-Lieu Fee Program Case Studies: Lessons Learned For Potentially Expanding In-Lieu Fee Habitat Coverage In Virginia, Erika Bosack, Luke Miller

Virginia Coastal Policy Center

This white paper contains case studies of coastal ILF [in-lieu fee] programs across the United States: Maine Natural Resources Conservation Program (“MNRCP”), Northwest Florida Water Management District (“NWFWMD”) ILF Program, Keys Restoration Fund (“KRF”), Sacramento District California ILF Program, Maryland Department of the Environment ILF Program, and Virginia Aquatic Resources Trust Fund (“VARTF”). The Conclusion will provide general recommendations and questions to consider in deciding whether and how to implement an in-lieu fee program for wildlife habitats in Virginia. Each program has a unique regulatory structure and method for selecting projects on which to spend their funds. The programs do …

Foreword To Environmental Justice In America: Where We Have Been & Can Go, Zachary R.M. Outzen

William & Mary Environmental Law and Policy Review

Recognizing that recent progress is only the beginning in a long journey to rectifying past environmental injustices, this Symposium was convened to ask two critical questions regarding the state of environmental justice in America today. First, how did we get here? Second, how do we move forward?

With an eye to a future in which America lives up to Dr. Bob Bullard’s vision of environmental justice, the Symposium hosted four panel discussions, featuring scholars of legal and non-legal disciplines, attorneys and non-legal advocates, and the members of the marginalized communities on the front lines of the struggle for environmental justice. …

Racism And Toxic Burden In Rural Dixie, Mary Finley-Brook, Environmental Justice Researchers

William & Mary Environmental Law and Policy Review

Rural pollution hotspots receive inadequate attention during impact assessments: low population density is strategically used to suggest rural areas lack critical importance. Local resistance led to a legal victory for Union Hill, Virginia, where a door-to-door household study of demographics and family heritage exposed data inequities and biases in state practices, establishing a precedent for attention to environmental injustice and disproportionate cumulative impacts on rural majority Black communities. Critical legal geographies of cases from Buckingham, Pittsylvania, and Charles City Counties in the Commonwealth of Virginia document patterns in the ways fossil fuel ‘sacrifice zones’ intersect with historic colonialism in rural …

Quality Control: Potomac Riverkeeper V. Wheeler & Standards For Qualitative Citizen Water Quality Data In Virginia, Jacqueline Goodrum

William & Mary Environmental Law and Policy Review

This Article explores the issue of quality of citizen data through the lens of Potomac Riverkeeper v. Wheeler, a recent impaired waters listing case concerning the Shenandoah River in Virginia. Part I of this Article provides a brief overview of citizen science data in regulation and policymaking under the CWA. Part II discusses Potomac Riverkeeper v. Wheeler, examining Virginia’s water quality-related data standards and DEQ’s use (and non-use) of citizen water quality-related data and information in that case. Finally, Part III argues that Virginia should establish clear, reasonable, and specific data quality standards for qualitative citizen data so …

Trust Issues: Using States' Public Trust Doctrines To Advance Environmental Justice Claims, Alicia Muir

William & Mary Environmental Law and Policy Review

The primary purpose of this Note is to evaluate a new method one could use to bring an environmental justice claim. This Note suggests that the solution can be found within the reinvigorated public trust doctrine. Instead of pursuing environmental justice claims on the federal level, plaintiffs could utilize the sleeping giant that is states’ public trust doctrines. Pennsylvania courts, the pioneers of this new path, held that its public trust should be evaluated using private trust law principles. By interpreting state-created public trusts through the lens of private trust concepts, citizens in a number of states are capable of …

The Promise And Perils Of Textualism For Environmental Advocacy, Canaan Suitt

William & Mary Environmental Law and Policy Review

This Note argues that a reliance on textualist arguments to win environmental victories from conservative judges in the new judicial landscape involves a simplistic view of judicial decision-making, according to which a method of constitutional or statutory interpretation is dispositive of a given ruling. Methods of interpretation interact with other factors, including judges’ ideological and institutional commitments, in determining cases. Textualism is a method of constitutional interpretation favored by conservative judges, but it is also part of a broader suite of conservative commitments and attitudes that complicate the role of textualism and may counteract textualism’s perceived benefit for environmental causes. …

The Brief (Edition #15, February 2022), William & Mary Law School

The Brief

No abstract provided.

Recommendations To Increase The Resilience Of Wastewater Treatment In Coastal Virginia, Grace D. Molino, Forrest M. Via

Virginia Coastal Policy Center

This white paper discusses the problem of septic failures in Virginia, as infrastructure ages and previously installed systems can no longer function. Section II.A. discusses the feasibility of regulatory and other measures that the Virginia state and local governments can implement to incentivize the identification, maintenance and repair of septic systems. Among these measures is a point-of-sale inspection requirement, which would require real property sellers to have their septic system inspected upon sale. Additionally, this white paper addresses several alternative options to conventional onsite septic systems, including public information campaigns to inform septic system owners of maintenance and repair techniques; …

The Water Is On Fire: Current Circuit Approaches To Fee-Shifting In Citizen-Suits Under The Clean Water Act And The Need For Clearer And More Uniform Standards, Charles Kinley

William & Mary Environmental Law and Policy Review

This Note will start by providing a short explanation of the origins of and congressional goals for the fee-shifting provision in the CWA [Clean Water Act]. It will then offer a brief summary of how Supreme Court precedent has both clarified and confused this issue. Then, it will dive into an examination of how the different circuits and their district courts have interpreted the CWA’s fee-shifting provision and how these interpretations have struggled with past Supreme Court decisions. Finally, this Note will explore the costs and benefits associated with these fee-shifting standards and offer a potential solution to this problem. …

Southern Harm: Analyzing The Criminal Enforcement Of Environmental Law In The Southern United States, 1983-2019, Joshua Ozymy, Melissa L. Jarrell

William & Mary Environmental Law and Policy Review

When violations of environmental laws involve significant harm or culpable conduct, the application of criminal enforcement tools is required. Yet, our understanding of how environmental laws have been criminally enforced historically in the Southern United States remains poor. Our goal is to analyze historical charging and sentencing patterns and show the broader themes that emerge in environmental crime prosecutions over time in the region. Through content analysis of all 2,588 criminal prosecutions resulting from U.S. EPA criminal investigations, 1983–2019, we select all 799 prosecutions occurring in the Southern United States. Results show that 44% of prosecutions focus on water pollution, …

18th Annual Brigham-Kanner Property Rights Conference (Program), William & Mary Law School

2021 Property Conference

No abstract provided.