Environmental Law Commons^™

Navigating Murky Waters: State-Level Strategies For Wetland Preservation And Tile Drainage Regulation After Sackett V. Epa, Caleb M. Swanson

Honors Thesis

Wetlands are some of the world’s most valuable ecosystems, serving as provisioners of species habitat, carbon sequestration, flood mitigation, water quality purification, and other ecosystem services. Human development has resulted in substantial wetland loss the world over. In the 1970s, the United States Congress passed the Clean Water Act, giving the EPA broad authority over wetland protection. However, in the summer of 2023, the United States Supreme Court decided Sackett v. EPA, limiting the EPA’s jurisdiction over wetlands to those indistinguishably connected to generally recognized “Waters of the United States” and removing federal protection for millions of acres of wetlands, …

Environmental War, Climate Security, And The Russia-Ukraine Crisis, Mark P. Nevitt

Faculty Articles

This Article addresses the Russia-Ukraine conflict’s broad implications for energy security, climate security, and environment protections during wartime. I assert that in the short-term the Russian-Ukraine war is poised to hinder much-needed international climate progress. It will stymie international decarbonization efforts and cause greater uncertainty in other climate-destabilized parts of the world, such as the Arctic. While Russia has become a pariah in the eyes of the United States and other Western nations, it has forged new partnerships and capitalized on new, lucrative energy markets outside the West and Global South. But in the long term, the global renewable energy …

Accurately Valuing Blue Carbon Sequestration And Storage To Foster Coastal Conservation Via Evidence-Based Policymaking And Model Environmental Services Statute Methodologies, John Shelton Penton Jr

LSU Doctoral Dissertations

Blue carbon ecosystems, especially mangrove forests, provide one of nature’s most effective means for sequestering carbon from the atmosphere and storing it in subsurface soils. The six nearshore coastal morphologies found in tropical and subtropical regions each possess a conspicuous environmental signature that can be employed to accurately estimate and predict mangrove forests’ carbon storage in above-ground biomass, below-ground biomass, and the soils by system type. The consistent geomorphology and geophysical processes within each of these coastal environmental settings, that is, the wave and tidal forcings, the rate of coastal sediment accretions, nutrient load and limitations (e.g., nitrogen-to-phosphorus …

The Future Of Pandemics: Land Use Controls As Means Of Preventing Zoonotic Disease, Bailey Andree

Pace International Law Review

Zoonotic diseases are increasing in frequency as climate change worsens around the world, with the recent COVID-19 pandemic highlighting the inadequate mechanisms in place to counteract disease spread. This article reviews various zoonotic diseases and their patterns of spread, highlighting land use change as the key driver of disease to demonstrate the need for legal intervention. International land use law is a little-developed subsect of environmental law that holds the key to combating this disease spread, and this article proposes solutions through this legal lens. Land use techniques which may be used to combat disease spread include conservation laws, setback …

Climate Change And The Law Of National Security Adaptation, Mark P. Nevitt

Faculty Articles

The Department of Defense (DoD) is the largest employer in the world, owns and operates an enormous global real estate portfolio, and emits more Greenhouse Gases (GHGs) than many nations. Entrusted with the national security, the DoD is now threatened by a new enemy—climate change. Climate change imperils national security infrastructure while undermining the military’s capacity to respond to climate-driven disasters at home and abroad. However, legal scholarship has yet to address what I call “the law of national security adaptation” and related questions. For example, how do environmental and climate change laws apply to the U.S. military? What laws …

Power Play: The President's Role In Shaping Renewable Energy Regulation And Policy, Luke Bartol

Honors Projects

With the impacts of climate change becoming more and more apparent every day, finding means of effective action to mitigate its effects become increasingly critical. While localized work can play an important role, federal action is necessary to have the most widespread and effective impact, especially on interconnected issues such as clean energy. Congressional action is the avenue of change at this level, however in an increasingly partisan and divided environment, progress on this front is far short of what is needed.

Looking to the president is logical here, both as a single actor more insulated from partisan fights, but …

Net Zero Roadmap For Copper And Nickel, Columbia Center On Sustainable Investment, Carbon Trust, Rmi, Payne Institute For Public Policy

Columbia Center on Sustainable Investment

As we seek to meet the challenges of climate change impacts, many commodities will play an increasing role in decarbonizing economies. There are increasing challenges of addressing the emissions from extraction of these commodities needed to support the zero-carbon transition.

CCSI, in a consortium with Carbon Trust, RMI, and the Payne Institute for Public Policy at the Colorado School of Mines, developed the Net Zero Roadmap to 2050 for Copper and Nickel Value Chains to support the copper and nickel mining sectors in taking collective, coordinated action by providing a clear, approachable, and accepted roadmap for decarbonization.

Our key messages …

Applying Bentham's Theory Of Fallacies To Chief Justice Robert's Reasoning In West Virginia V. Epa, Dana Neacsu

Duquesne Law Review

There are two issues in West Virginia v. EPA.¹ One regards justiciability, and the other delegation. Article III of the Federal Constitution limits justiciability to controversies, to disputes involving an injured party whose harm the judiciary believes it can remedy. The Constitution is silent on delegation.

This Essay summarizes the Court's decision in West Virginia v. EPA.² It also analyzes Chief Justice Roberts' reasoning and addresses the case's flaws from two perspectives. It references the Court's decision connecting it to the so-called New Deal Cases,³ because in both Panama Refining Co. v. Ryan,^{4 …}

Climate Change And The Specter Of Statelessness, Mark P. Nevitt

Faculty Articles

What happens when climate change extinguishes entire nations? Neither international nor environmental law has provided a satisfactory answer to this weighty question. Climate change-induced flooding, storm surge, and sea level rise threaten the territorial integrity and habitability of several small island developing states, raising the specter of statelessness. We know that climate catastrophe is coming, but we have failed to take the necessary steps to safeguard several developing nations. This Article argues that innovative legal and policy solutions are needed today to prevent nation extinction tomorrow. I focus on two potential international governance solutions: the U.N. Framework Convention on Climate …

Could A More Limited Environmental Goods Agreement Resolve Continued Issues In Cities Compliance?, Andrew Coccoli

William & Mary Environmental Law and Policy Review

This Note will adopt an economic perspective while advocating for the most sustainable practices in natural resources management. It will first conduct a series of case studies of natural resources for which there is transnational or international demand, but unsustainable management. While CITES-listed resources will be considered with particular attention, unlisted and more conventional resources will also be considered. In its second part, this Note will consider mechanisms currently available in international trade to accommodate environmental progress, then will set forth various new measures the WTO could adopt to incentivize sustainable management of the Part I resources. Part III will …

Circular Economy And The Potential For Extended Producer Responsibility Policies, Erin Quinn

Senior Honors Projects, 2020-current

This thesis was developed based on an Extended Producer Responsibility (EPR) Policy briefing I created during my internship at RISE (Responsible Industry for a Sound Environment) during the summer of 2021. This project expands upon the work created during the internship. It examines the connection between circular economy and EPR policies, as well as how they can create effective strategies for waste reduction and recycling in the U.S. It demonstrates how the current linear economic system under which the U.S operates and its connection to single-stream recycling are inefficient at best. The thesis then describes how a circular economy (CE) …

Making Net Zero Matter, Albert C. Lin

Washington and Lee Law Review

In recent months, dozens of countries and thousands of businesses have pledged to achieve net zero greenhouse gas emissions. However, net zero often means different things to different entities, and it is often uncertain how net zero pledges—which set targets years or decades from the present—will be met. This Article considers the motivations behind net zero pledges, highlights the underappreciated role of carbon removal in net zero efforts, and identifies mechanisms for encouraging the accomplishment of net zero goals. Two key strategies are essential to making net zero targets matter. First, society should develop and implement accountability and enforcement mechanisms …

Uranium 233: The Nuclear Superfuel No One Is Using, Maris Hanson

Seattle Journal of Technology, Environmental & Innovation Law

Nuclear power offers more energy in less physical space than solar and wind and yields more energy per pound than fossil fuels. However different nuclear fuels yield different waste profiles and create different beneficial products. Uranium 233 (U233) resists use in nuclear weapons, yields beneficial daughter products, and produces dramatically less of the most problematic waste products than Uranium 235 (U235). U233 results from reactions with Thorium, a plentiful, ubiquitous element currently considered waste from rare earth mines. Additionally, U233 functions well in a liquid fuel reactor resulting in safer, more efficient reactors than current solid fuel U235 or Plutonium …

A Call For The Library Community To Deploy Best Practices Toward A Database For Biocultural Knowledge Relating To Climate Change, Martha B. Lerski

Publications and Research

Abstract

Purpose – In this paper, a call to the library and information science community to support documentation and conservation of cultural and biocultural heritage has been presented.

Design/methodology/approach – Based in existing Literature, this proposal is generative and descriptive— rather than prescriptive—regarding precisely how libraries should collaborate to employ technical and ethical best practices to provide access to vital data, research and cultural narratives relating to climate.

Findings – COVID-19 and climate destruction signal urgent global challenges. Library best practices are positioned to respond to climate change. Literature indicates how libraries preserve, share and cross-link cultural and scientific knowledge. …

(Re)Empowering The Community: A Case Study Of Namibia's Legal Evolution Of Wildlife Governance, Stefan Carpenter

William & Mary Environmental Law and Policy Review

This Article will introduce the theoretical foundation of the CBC [Community-Based Conservation] approach. It will then use Namibia as a case study to both: (a) illustrate the sort of historical, political, and economic drivers that motivate the adoption of CBC across the global south, and (b) highlight the existence of potential structural weaknesses present in even the most lauded CBC programs. Finally, this Article will present some of the common theoretical and results-based criticisms of CBC and discuss broader lessons that can be drawn from the Namibian experience. The analyses in this Article draw from academic literature, Namibia’s statutes and …

Intangible Cultural Heritage: A Benefit To Climate-Displaced And Host Communities, Gül Aktürk, Martha B. Lerski

Publications and Research

Climate change is borderless, and its impacts are not shared equally by all communities. It causes an imbalance between people by creating a more desirable living environment for some societies while erasing settlements and shelters of some others. Due to floods, sea level rise, destructive storms, drought, and slow-onset factors such as salinization of water and soil, people lose their lands, homes, and natural resources. Catastrophic events force people to move voluntarily or involuntarily. The relocation of communities is a debatable climate adaptation measure which requires utmost care with human rights, ethics, and psychological well-being of individuals upon the issues …

Integrated Estuary Governance, Mary Jane Angelo, J.W. Glass

William & Mary Environmental Law and Policy Review

Estuaries are complex, dynamic ecosystems that play a critical role in supporting crucial economic industries, such as commercial fishing and tourism, and providing the resources necessary to sustain coastal communities. A range of anthropogenic environmental stressors are threatening the health of estuaries throughout the world. Traditional top-down single resource focused environmental regulatory approaches have proved inadequate to protect and restore estuarine systems. In recent years, scientific and legal academics, as well as policymakers, have called for more holistic participatory approaches to addressing environmental challenges. Drawing on the literature on ecosystem management, integrated water resources management, collaborative governance, and adaptive management, …

Reimagining The Duck Stamp, Hunting Licensure And Public Land Preservation, Alec Wayne Boyd-Devine

Masters Theses & Specialist Projects

The American Migratory Bird Hunting and Conservation Stamp, or Duck Stamp, is a form of licensure issued by the Federal Government for waterfowl hunters. Why do physical stamps act as licensure to hunt waterfowl on both public and private land in the United States? How did the stamp become the key that grants access to resources that supposedly should be owned by the public? The duck stamp has been well-documented in conservation communities as a resource which has made significant positive impacts on the environment. The increase of anti-hunting sentiments in our society combined with fewer hunters per capita may …

How A Low-Cost Method For Cumulative Water-Sampling Shows Need For Improvement Of Legal Public-Contact Standards In The United States, Samuel C. Kessler

Grawemeyer Colloquium Papers

Across the world, it is estimated that 4.5 billion people live near water sources “impaired” for use or contact. Standards for human-interaction are established by international organizations such as the WHO, and legislative bodies from national to local levels with jurisdiction over the quality of our waterways to ensure public & environmental health. Standards are often assessed from “grab-samples” taken from a waterbody at a certain time, with a minimum number analyzed. Water-quality standards in the United States are enforced under the Clean Water Act (CWA) via the Environmental Protection Agency (EPA), applying to “waters of the United States” (WOTUS). …

Is Climate Change A National Emergency?, Mark P. Nevitt

Faculty Articles

The next decade is critical for climate action. As sea levels rise, wildfires rage, and disasters increase in frequency and scale, it is clear that the U.S. must leverage an expanding menu of legal, policy, and technological tools to address climate change’s destabilizing effects. At present, we remain off-track to reduce our collective greenhouse gas (“GHG”) emissions and avoid irreversible, catastrophic harm. The emissions gap — the difference between the world’s current emissions trajectory and what we must emit to avoid climate change’s most severe consequences — continues to grow. Although President Biden and the 117th congressional leadership have pledged …

Environmental Soft Law As A Governance Strategy, Cary Coglianese

All Faculty Scholarship

Soft law governance relies on nongovernmental institutions that establish and implement voluntary standards. Compared with traditional hard law solutions to societal and economic problems, soft law alternatives promise to be more politically feasible to establish and then easier to adapt in the face of changing circumstances. They may also seem more likely to be flexible in what they demand of targeted businesses and other entities. But can soft law actually work to solve major problems? This Article considers the value of soft law governance through the lens of three major voluntary, nongovernmental initiatives that address environmental concerns: (1) ISO 14001 …

Shifting Public Perception: Climate Change Means Living With Fire And Smoke, Robert Froembling

Seattle Journal of Technology, Environmental & Innovation Law

The urgency to prepare for the climate crisis has never been greater. We are currently living in the sixth mass extinction and the effects are only going to accelerate. We will inherit more wildfires, larger wildfires, and more frequent wildfires.

This piece is not meant to stoke fear in its readers or be depressing, but to shift public perception on what our future holds by evaluating the laws and science presented to us. This piece will look at regional and federal regulations and assess the increased rate of forest fires and the grave public health concerns from stagnant smoke specifically …

Carbon Market Opportunities In Virginia: Eelgrass, Marshes, Soils, And Forests, Imani Y. Price

Virginia Coastal Policy Center

Carbon sequestration is the storage and capture of carbon dioxide from the atmosphere. Preserving carbon sequestering sources helps mitigate climate change. Eelgrass, marshes, soils, and forests all sequester carbon. Unfortunately, they are vulnerable to climate change and human development. This paper examines how these sources of carbon sequestration can be incorporated into Virginia’s climate change policies, including the creation of a carbon market. Among other aims, a carbon market would incentivize the preservation and restoration of these species, providing important environmental and economic benefits. The first section of this paper identifies several sources of carbon sequestration, as well as their …

On Environmental Law, Climate Change, And National Security Law, Mark P. Nevitt

Faculty Articles

This Article offers a new way to think about climate change. Two new climate change assessments—the 2018 Fourth National Climate Assessment (“NCA”) and the United Nations Intergovernmental Panel on Climate Change’s Special Report on Climate Change— prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change an environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement within nations …

Texas Landfills: The Need For Administrative Reform Of The Texas Commission On Environmental Quality’S Permitting Process, William Todd Keller Jr.

St. Mary's Law Journal

Abstract forthcoming

Eelgrass In Virginia: Assessing Opportunities And Obstacles For Blue Carbon Credits, Michael Jordan, Imani Price

Virginia Coastal Policy Center

This Paper seeks to explore a few of the questions that eelgrass restoration project proponents will need to consider prior to participating in a voluntary carbon credit market, like the VCS [Verified Carbon Standard]. Part I of this Paper explores whether the Commonwealth of Virginia could participate as a project proponent in a voluntary carbon credit market, and then analyzes both constitutional limitations and statutory limitations on the current state agency charged with overseeing the state-owned bottomlands—the Virginia Marine Resources Commission (VMRC). It also explores a few possible solutions to constitutional and statutory issues. Assuming that the eelgrass restoration activities …

The Waters Of Antarctica: Do They Belong To Some States, No States, Or All States?, Linda A. Malone

Linda A. Malone

Major issues and complexities arise when one is looking at the international puzzle that is Antarctica. Despite being uninhabited year round and lacking substantial long-term international law rules for sovereignty, states still try to claim their sovereignty over various parts of Antarctica. The consortium of states under the Antarctica Treaty System (“ATS”) then further aggravates these complexities, especially when other states outside of the ATS have been arguing for different regimes and approaches to dealing with Antarctica and resource exploitation. Due to these major issues and a desperate need for a resolution in times of global climate change, this Article …

Book Review Of Eco-Pragmatism: Making Sensible Environmental Decisions In An Uncertain World, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Are Firm Emissions Data Likely To Be Accurate Under Carbon-Dioxide Cap & Trade Programs? An Economic Analysis, Kyle Beck

Senior Honors Projects, 2010-2019

Numerous policy makers around the world have implemented carbon dioxide (CO2) cap and trade programs in an effort to combat global climate change. However, under this policy option emitters face incentives to both overstate prior emission levels and then exaggerate emissions reductions induced by regulation. I first build a simple conceptual model which demonstrates these incentives for fraud, and then outline institutional conditions which could plausibly enhance, or else reduce, firm incentives to disseminate erroneous emissions data under this policy option. Next I analyze real world evidence suggesting that duplicitous emissions data, particularly for the pre-regulatory period, is a serious …

Dredged Material Ownership: Rights And Reuse, John Bobka, Beth Pindilli

Virginia Coastal Policy Center

This research paper explores ownership rights at sites with material from completed dredging projects, supplying a general overview of this issue. This paper also explores the question of whether quality dredged material stored on a publicly-owned upland site can be used later for other applications.

This abstract has been taken from Section I of the report.