Environmental Law Commons^™

The Initial Response Of Biodiversity Conventions To The Covid-19 Pandemic, Royal C. Gardner, Lauren Beames, Katherine Pratt

William & Mary Environmental Law and Policy Review

The COVID-19 pandemic disrupted the operations of global biodiversity conventions, requiring virtual meetings in place of in-person events. Yet the pandemic also highlighted the importance of biodiversity conservation as a mechanism to reduce the risk of zoonotic diseases, as the October 2020 report issued by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (“IPBES”) emphasized. Now that in-person, international meetings have resumed, this Article examines the extent to which four biodiversity conventions—the Agreement on the Conservation of African-Eurasian Migratory Waterbirds, the Ramsar Convention, the Convention on International Trade in Endangered Species, and the Convention on Biological Diversity—considered the nexus …

Table Of Contents (V. 48, No. 2)

William & Mary Environmental Law and Policy Review

No abstract provided.

Pricing, Decarbonization, And Green New Deals, David M. Driesen, Michael A. Mehling

William & Mary Environmental Law and Policy Review

This Article evaluates an emerging literature claiming that carbon pricing (emissions trading or carbon taxes) has not performed very well and therefore cannot be the basis for the sort of transformative change now required to address the climate crisis. This is an important claim, as carbon pricing has been viewed as being at the heart of global efforts to address one of our most important contemporary problems.

We provide theoretical and empirical support for these critics’ claim that carbon pricing by itself cannot catalyze the technological transformation now required, and that other approaches have done and will likely do better. …

Making Money Green: A Proposal For A Sustainable Stock Exchange, Mary Grace Thurman

William & Mary Environmental Law and Policy Review

Investors crave sustainable business data as a lucrative indicator of long-term business success, yet this demand is not being met by current environmental, social, and corporate governance (“ESG”) investment portfolios, voluntary business disclosure reports, or the Securities and Exchange Commission’s (“SEC”) climate-related rule proposal. Instead, an alternative, voluntary stock exchange premising entry upon satisfaction of industry-specific ESG prerequisites, would directly connect investors with the sustainable investments they desire without requiring them to interpret dense scientific data and decipher which companies exercise positive business practices.

This Article demonstrates that creating an alternative stock exchange for trading solely sustainable businesses would provide …

Coasting North: The Problem With The Jones Act For The Offshore Wind Industry And A Remedy From Canada, Sarah Macleod Nagle

William & Mary Environmental Law and Policy Review

This Note is organized into three parts to examine how the Jones Act hampers the U.S. wind energy industry’s construction of offshore wind farms by requiring that only U.S. vessels transport materials from U.S. ports to the wind farms. The Note proposes a license modeled on Canada’s Coasting Trade Act (“CTA”) to allow non-U.S.-flagged vessels to participate in wind turbine construction. Part I will address the development of cabotage law in the United States, the creation of the Jones Act, and its impact on offshore wind. Part II surveys Canada’s cabotage laws, which culminated in the passage of the CTA …

Assessing State Invasive Species Schemes Through The Lens Of The Spotted Lanternfly, Susanna Clark

William & Mary Environmental Law and Policy Review

Invasive species have long presented an issue across the United States, and continue to do so. They have become more prevalent as the world has become more interconnected. Nonnative species are not always invasive, but many of them are. A somewhat recently introduced invasive species, the spotted lanternfly, has proven to be especially destructive and will put current invasive species laws to the test. The federal government does have some laws on the books regarding invasive species, but much of the legislation and subsequent regulations can be found at the state level. No two states have the same legal and …

Race To The Bottom: How Equitable Apportionment Could Encourage Overdrafting Of Aquifers, Emily Wells

William & Mary Environmental Law and Policy Review

Groundwater is a vital source of water for drinking and irrigation in the United States. However, it was unclear what legal doctrine would apply to apporting interstate groundwater between the states. This changed in Mississippi v. Tennessee, when the Supreme Court ruled that equitable apportionment would the controlling doctrine. The Court though declined to clarify how the doctrine would be applied to groundwater. This Note discusses how equitable apportionment has historically been applied to rivers and hypothesizes how the Court may apply equitable apportionment to groundwater.

Dark "Oro Y Plata" In Montana: The Green Amendment's Defense Of Campaign Finance Transparency, Lucas Della Ventura

William & Mary Environmental Law and Policy Review

In the post–Citizens United dark money age, state disclosure regulations are the last line of defense for citizens to learn who is behind unlimited independent expenditures and electioneering communications flooding their states. Underpinning the ability of state governments to promulgate such transparency measures are the informational benefits provided to the public. However, the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta to invalidate a California disclosure regulation on dark money groups, marks disclosure regulations—the Court’s repeated fallback when striking down more robust campaign finance regulations—with a bull’s-eye. In the face of repeated legal challenges to disclosure regulations, …

Regulating Co2 Emissions Post-West Virginia V. Environmental Protection Agency, Rebecca J. Davis, Justin Blount

William & Mary Environmental Law and Policy Review

In West Virginia v. Environmental Protection Agency, the Supreme Court expressly adopted the major questions doctrine and used it to invalidate the Clean Power Plan, a rule intended to reduce carbon dioxide emissions from power plants. This opinion has been controversial and has left many commentators concerned that it may hamper the ability of administrative agencies to aggressively and flexibly regulate.

This Article analyzes this opinion and the impact it may have on ongoing efforts to regulate carbon dioxide emissions at the federal level. It then examines economic theory underpinning environmental regulation, developing technologies to reduce carbon dioxide emissions, …

To Have And To Be: An International Human Right To Clean, Healthy, And Sustainable Environment, Deepa Badrinarayana

William & Mary Environmental Law and Policy Review

In July 2022, the United Nations General Assembly passed Resolution 76/300 (“the Resolution”)—affirming a human right to clean, healthy, and sustainable environment (“environmental human rights”). The Resolution essentially affirms a linkage between environmental human rights and “other rights and existing international law,” and “calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices,” to achieve environmental human rights.

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This Article offers a glass half-full perspective on the Resolution, with the caveat that the glass could rapidly become empty unless the right is internalized …

Fueling A Hydrogen Boom: Federal And State Policies For Promoting Green Hydrogen, Kayna Lantz, Luke Sower

William & Mary Environmental Law and Policy Review

“Green” hydrogen produced from renewable energy sources could play a valuable role in the energy transition. Among other things, green hydrogen’s potential as a source of carbon-free, long-term energy storage could help the nation address the intermittency-related challenges associated with growing reliance on wind and solar power. Green hydrogen also has promise as an energy-dense fuel for industries that are difficult to electrify, such as long-haul transportation and steel and fertilizer manufacturing. Recent federal actions have provided some initial government support for green hydrogen technologies, but significant policy gaps remain. States and the federal government could do much more to …

Suffering In Search Of A Methodological Frame: Interdisciplinarity In The Context Of The Gendered Impact Of Climate Migration, Becky Jacobs

William & Mary Environmental Law and Policy Review

In this essay, the author places the gendered impact of climate migration within the methodological frame of scholars such as geographers Sylvia Winters and Doreen Massey, historian Achille Mbembe, philosopher Gilles Deleuze, philosopher and psychoanalyst Félix Guattari, and anthropologist Tim Ingold. The author discusses the importance of interdisciplinarity and describes the gender-specific risks related to climate displacement before delving into theory.

Table Of Contents (V. 48, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Disaster Districts: Mid-Decade Redistricting In The Face Of Climate Change, J. Gray Whitsett

William & Mary Environmental Law and Policy Review

This Note argues that judicial and legislative efforts to constrain redistricting should incorporate legal stopgaps to allow for mid-decade redistricting in the wake of disasters that result in significant population displacement. Part I reviews how climate change is exacerbating natural and manmade disasters and the potential for these disasters to cause population displacement, particularly in the context of urbanization. Part II provides an overview of the typical redistricting process and requirements for electoral districts. It also details the debate over mid-decade redistricting, including efforts to prevent it. Part III proposes preconditions for “emergency redistricting” that judges and legislators should consider …

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 …

Mining And The Protection Of Aboriginal Heritage In South Australia, Alex Wawryk

William & Mary Environmental Law and Policy Review

In 2020, the multinational mining company Rio Tinto destroyed 46,000-year-old Aboriginal rock paintings in Juukan Gorge, Western Australia, to national and international outrage. The incident led to an explosion of concern in Australia regarding the adequacy of domestic laws that aim to protect Aboriginal cultural heritage from the impacts of resource exploitation. This Article explains and critically analyzes the legislative and regulatory framework for the protection of Aboriginal heritage in relation to mining in South Australia. It demonstrates the complexity of the legal and regulatory regime, identifies a number of significant flaws in the key act designed to protect Aboriginal …

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 …

It Takes Two: Cites, Illegal Wildlife Trade, And Importing Country Accountability, Erica Lyman

William & Mary Environmental Law and Policy Review

This Article proposes that the CITES [Convention on International Trade in Endangered Species of Wild Fauna and Flora] compliance mechanism is fit-for-purpose in its design but its application is biased against source countries and ignores consumer countries both as drivers of illegal wildlife trade and as noncompliant actors. Bringing a justice-based sensibility to the application of the CITES compliance process requires a whole-of-supply-chain analysis and, drawing on the core relational foundations of the treaty, an international perspective, to identity the root causes of non-compliance that allow illegal trade to fester. Ultimately, the compliance mechanism must gel with the machinery and …

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 …

The Need For Additional Landslide Regulation: Examining Flooding Through A Case Study, Kristen Gartner

William & Mary Environmental Law and Policy Review

Natural disasters are increasing at an alarming rate. As of this writing, the top five deadliest disasters occurred after 1970, and the top five most economically devastating occurred in the years since 2005, with three of them occurring in 2017. These increasing storms are exacerbated by the worsening of climate change and global warming. The problem will continue to increase if federal and state governments fail to properly regulate and prepare for these natural disasters. This Note will specifically discuss the regulation and prevention of landslides by comparing them to the regulation of flooding. Other examples of natural disaster regulation …

Table Of Contents (V. 47, No. 2)

William & Mary Environmental Law and Policy Review

No abstract provided.

America's (Second) Best Idea: A Proposal For A Major Expansion Of The National Park System, Claire Gaposchkin

William & Mary Environmental Law and Policy Review

This Note will argue for a major expansion of the National Park Service and provide a framework for the implementation of such an expansion. Part I provides an overview of the National Park Service’s holdings and fundamental purpose and discusses how overcrowding negatively affects visitors, the resource, and the NPS mission, and argues for a stricter enforcement of the “impairment standard.” Part II outlines the way in which Congress and the president can create national parks. Part III proposes a major expansion of the national parks—both the expansion of existing park units and the creation of new ones—as the solution …

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 …

The Tide's Coming In: A New Case For Beachfront Property Rights In South Carolina, Alex Boone

William & Mary Environmental Law and Policy Review

Part I of this Note explores the scientific data as it relates to the impending consequences of climate change on South Carolina’s coast and will introduce the disastrous scenarios that are predicted to arise as a result of rising sea levels and the accelerating strength and severity of extreme weather events. Part II compares the effectiveness of various coastal resiliency tools and highlights the regulatory framework that prohibits their use by beachfront property owners. Part III explores the topic of regulatory takings and their indirect prophylactic nature of protecting citizens from regulatory overreach and offers a case for a South …

A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde

William & Mary Environmental Law and Policy Review

Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.

Next, this Note investigates the historical and philosophical understandings of state sovereignty …