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 …

Afraid For The Dark: Regulating Light Pollution Under The Clean Water Act, Katrina Umstead

William & Mary Law Review

Currently, light pollution is only regulated at the state and local level. However, not all states implement legislation to mitigate the adverse effects of ALAN [Artificial light at night]. Nineteen states, the District of Columbia, and Puerto Rico have implemented laws to reduce light pollution. In states without such laws, or in federal waters, light-intensive activities remain unchecked. The rapid increase in light pollution in recent years illustrates the inadequacies of existing state and local regulatory schemes and calls for a new understanding of ALAN as a pollutant to marine ecosystems.

This Note argues that the existing tools in the …

Convening For (Climate) Change: The Constitutional Case For A U.S. Climate Assembly, Will Mccabe

William & Mary Bill of Rights Journal

This Note argues that a national U.S. Citizens’ Assembly for Climate would not violate the non-delegation doctrine which prevents Congress from improperly delegating its constitutional legislative power to another body. A climate assembly could potentially be authorized in several ways; this Note explores that of Congress convening a climate assembly through statute, either as an independent body or as a body under the authority of the Environmental Protection Agency. Part I examines the current state of American climate policy and the political debate surrounding it, putting forward a case for a novel approach, and also examines the concept of climate …

Inequitable Infrastructure: An Empirical Assessment Of Federalism, Climate Change, And Environmental Racism, Lev E. Breydo

Faculty Publications

This Article explains a critical, yet unexplored issue: How are some communities like Jackson—the 80% Black capital of Mississippi—often left without water or electricity, while their mostly white neighbors are not? The Article maps uncharted territory by interrogating the underlying causes of this disparity, untangling how three seemingly unrelated factors interplay with the accelerating effects of climate change to perpetuate systemic inequities.

First, and somewhat uniquely, the U.S. federalist construct allocates infrastructure responsibility to the states, which, under the guise of autonomy, subdelegate to often under-resourced local authorities. Second, this capital mismatch requires governmental units to borrow using complex municipal …

Table Of Contents (V. 48, No. 3)

William & Mary Environmental Law and Policy Review

No abstract provided.

Foreword To Water Law In A Changing Climate, Emily Wells

William & Mary Environmental Law and Policy Review

Climate change impacts all aspects of water from precipitation, river flow, groundwater, and sea levels, resulting in increased droughts and extreme weather events. Once predictable and stable resources have become uncertain in a changing climate. As a result, our laws face new challenges and must answer new questions, and they need to adapt. The William & Mary Environmental Law and Policy Review symposium “Water Law in a Changing Climate” highlighted the various issues and challenges facing our legal system when it comes to water. Our symposium consisted of experienced panelists and presenters with diverse expertise who each elaborated on the …

Fights Over Continuity - In Life And Law, Jamison E. Colburn

William & Mary Environmental Law and Policy Review

What is the whole: a river or that river and its tributaries? There is no “natural” answer to the question, only so many answers as there are reasons for asking. Lately, the Clean Water Act has been the captive of such diversions in our Supreme Court’s agenda. Changing it will not free it from that captivity. For whatever reforms we choose could still provide boundless opportunities for frustration in questions like the above. If the Court is as eager to cause that frustration as it has appeared lately, maybe we should help the Court to its fight with this iconic …

Adapting Seasonal Water Rights, Karrigan S. Börk, John Mensik

William & Mary Environmental Law and Policy Review

Climate change is shifting seasons. Spring comes earlier, fall comes later, rainy seasons are shorter and more intense, and summers are hotter and longer. In the American West, winter precipitation increasingly falls as rain, leading to a smaller snowpack and an earlier, more intense runoff followed by a longer and drier dry season. For irrigators— the highest volume water users—growing seasons are shifting earlier, weather is less predictable, and precipitation is increasingly inconsistent. The end of a relatively static climate marks the end of static water rights. The shifting seasons pose serious challenges to our ability to manage water systems. …

Environmental Justice, Resilience Justice, And Watershed Planning, Craig Anthony (Tony) Arnold, Resilience Justice Project Researchers

William & Mary Environmental Law and Policy Review

Watershed planning is an increasingly used governance tool for addressing environmental problems at ecosystem scales of watersheds, which are areas of land that drain to a common body of water. In recent years, watershed planning in the United States has been undergoing an “equity evolution”: watershed planners have begun integrating environmental justice considerations into their plans, often in response to demands by low-income communities of color. This Article explores a comprehensive set of principles, processes, analytical tools, and strategies for equitable watershed planning. It integrates a resilience justice perspective with environmental justice. Resilience justice is concerned with the systemically unequal …

Quantifying Winters Rights, Rhett B. Larson

William & Mary Environmental Law and Policy Review

All reservations of federal land, including Native American reservations and national forests, have water rights. These rights are referred to as “Winters rights” after the seminal U.S. Supreme Court case. That case recognized such rights’ existence, but it did not quantify the amount of water of those rights. Federal courts have applied various approaches to quantifying Winters rights. Recent decisions in Arizona state courts have taken new and different approaches to quantification of both tribal and non-tribal Winters rights. These state court decisions have important implications for federal water rights throughout the United States. This Article examines these new …

Renewable Energy And Defense Power In Japan, Yuichiro Tsuji

William & Mary Environmental Law and Policy Review

Japan’s challenge will be how quickly it can shift its energy supply to renewable energy sources. To increase energy self-sufficiency and defense power, Japan should promote policies that encourage renewable energy use. However, under the current legal system, local governments are not involved in the legal review process for establishing nuclear power plants. Through agreements, local consent is required to restart a plant. However, this is merely a contract, and permission is granted even if the agreement is violated, as long as the plant passes a safety review. The central government is trying to facilitate communication between local governments and …

Tribes And Water In The Wake Of Navajo Nation And Sackett: Treaties, Winters, Montana, And Rights Of Nature, Robin Kundis Craig

William & Mary Environmental Law and Policy Review

Freshwater resources in the United States face a variety of stressors, including drought, flooding, and climate change–driven shifts in precipitation, that exacerbate both water quality problems and drinking water crises. In the midst of these increasing issues regarding both water quality and quantity (allocation), Tribes are playing an ever more active role in U.S. water management. This Article provides an overview of the complex contemporary legal landscape governing tribal authority over water. After reviewing the current state of inherent tribal sovereignty with respect to water, treaty rights and reservations, the federal Winters doctrine, and Treatment-as-a-State (“TAS”) status, this Article explores …

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 …

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, …

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.

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 …

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. …

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 …

Creating Land With Artificial Oyster Rings: Legal Challenges From State Owned Bottom Land To Living Shorelines, Faith Parker, Will Reach

Virginia Coastal Policy Center

The Virginia Sea Grant program approached VCPC to conduct research in partnership with the William & Mary Public Policy Program and a James Madison University (JMU) architecture professor, Jori Erdman. Professor Erdman is researching the viability of creating land with artificial oyster rings based on similar projects seen in Louisiana. Professor Erdman has provided the diagrams of the project used throughout this paper. Ultimately, this paper examines some legal issues raised by the use of these rings to prevent coastal erosion or act as a flooding buffer for commercial or residential buildings. With this goal in mind, this paper addresses …

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

William & Mary Environmental Law and Policy Review

No abstract provided.

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 …

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.

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 …

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 …

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

William & Mary Environmental Law and Policy Review

No abstract provided.

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 …