Law Commons^™

Why The Congressional Review Act Should Be Repealed, Alex Lipow

William & Mary Environmental Law and Policy Review

The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …

Turtles All The Way Down: A Clearer Understanding Of The Scope Of Waters Of The United States Based On The U.S. Supreme Court Decisions, Jesse J. Richardson Jr., Tiffany Dowell Lashmet, Gatlin Squires

William & Mary Environmental Law and Policy Review

The meaning of “waters of the United States” under the Clean Water Act (“CWA”) has been debated in Congress, federal agencies, and courtrooms across the country for almost fifty years. Despite the longstanding attention to the term, most consider the term even more unclear today than in 1972 when the CWA was adopted. However, a methodical examination of the statutory and regulatory history and the U.S. Supreme Court decisions on the issue reveal more consensus than previously understood. In addition, this focused examination shows that the debate centers on one problem that the arguments rarely acknowledge: wetlands adjacent to a …

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, …

Enhancing The Weather: Governance Of Weather Modification Activities Of The United States, Manon Simon

William & Mary Environmental Law and Policy Review

In the context of climate change, weather modification by cloud seeding, and in particular, precipitation enhancement techniques, has gained a renewed attention from governments. In the United States, several states run weather modification programs to secure freshwater resources and increase both crop and hydroelectricity production. Weather modification techniques were developed post–World War II, and so were the legal arrangements that govern them. Since then, weather modification law has undergone little to no reform. California and Texas are two active users of cloud-seeding technologies but employ very different governance frameworks. This Article assesses the effectiveness of weather modification governance in these …

Alternative Solutions For Government Intervention In Climate Crisis Markets: Price Gouging And The Pandemic Egg Market Case Study, S. Byron Frazelle

William & Mary Environmental Law and Policy Review

The cost of a thing is the amount of what I will call life which is required to be exchanged for it, immediately or in the long run.

The incredible, edible egg.

Fires in California, hurricanes along the Gulf, a worldwide pandemic—it is evident that the year 2020 was defined by great crises, most of which were direct results of or exacerbated by climate change. The effects of these crises on broader American society, in particular that of the COVID-19 pandemic, are just beginning to be realized. Nearly every aspect of American life has been impacted by the pandemic and …

To Damn Or Not Damn A Dam: Stakeholder Collaboration As A Tool For Dam Management, Alec D. Tyra, Nicholas Kandas

William & Mary Environmental Law and Policy Review

Dams have played an integral role in the development and economic growth of the United States for centuries, and remain important fixtures in water and energy management. However, after standing for decades, aging dams across the country are deteriorating or creating harmful environmental impacts that have made them sources of contention in many river basins. Calls to remove certain dams have been growing and in recent years have particularly intensified with respect to some large federally owned or regulated hydroelectric dams. These larger dams are subject to ongoing environmental review under the National Environmental Policy Act. Nonfederally owned dams also …

"There Is No Planet 'B'": How U.S. Music Festival Production Companies Can Reduce Their Negative Environmental Impact By Incorporating As A Benefit Corporation, Bryce Ballard

William & Mary Environmental Law and Policy Review

The music festival industry in the United States is growing exponentially each year, both in terms of fan attendance and the money being produced by concession, merchandise, and ticket sales. However, there is also a growing realization that there are several negative externalities associated with the growth of the music festival industry, not the least of which is the environmental damage that follows in the wake of music festivals.

The scene at most music festivals in the United States today is the same: a caravan of vehicles lined up single-file waiting to enter the campgrounds, camping tents of various sizes …

No Time To Waste: Can A State Prevent Nuclear Waste Transportation Within Its Borders Once Yucca Mountain Becomes Operational?, Ryan Franklin

William & Mary Environmental Law and Policy Review

Following the drop of the first atomic bomb over Hiroshima on August 6th, 1945, the United States seriously began contemplating the use of atomic energy not just as a weapon, but as an efficient energy source. President Eisenhower delivered his “Atoms for Peace” speech in front of the United Nations eight years later, effectively launching a massive American campaign to build numerous nuclear power plants to generate enough clean energy to power the entire nation. As these plants were being constructed, however, policymakers and lawmakers who were champions of this endeavor failed to consider the problem of nuclear waste generated …

Slow And Steady Saves The Whales: Preventing Vessel Strikes On Whales In The Santa Barbara Channel, Anthony Cusato

William & Mary Environmental Law and Policy Review

“While in the life the great whale’s body may have been a real terror to his foes, in his death his ghost becomes a powerless panic to a world.” In the past, whales and humans (in boats) fought on the high seas. The humans fought for precious whale oil while the whales fought for their rights not to be murdered and turned into oil. While those days are mostly long gone, whales still face a serious threat of harm from humans in the form of vessel strikes, which is when a whale is struck by a vessel. Vessel strikes are …

Not Approved For Human Consumption: A Study Of The Denmark Water Crisis, A Call For Reforming The Swda, And A Demand For Community Lawyering In Rural America, Matthew Woodward

William & Mary Environmental Law and Policy Review

Over the past four decades, nine million Americans have ingested dangerous drinking water from a trusted source: their own taps. Each year, “an estimated 16.4 million cases of acute gastroenteritis” are linked to public drinking water. For many Americans, drinking water—perhaps the most important cornerstone of human health—has become cause for concern.

In Flint, Michigan, this concern turned to panic. In 2014, after toddlers began developing painful skin conditions, children fell seriously ill, and tap water emerged in the form of thick, orange-brown sludge, the people of Flint began to wonder: is there something in the water? What soon became …

Congestion Pricing And The Opportunity To Confront New York City's Air Quality Emergency, Chad Hughes

William & Mary Environmental Law and Policy Review

Poor air quality in New York City is a public health emergency that disproportionately harms the city’s most vulnerable populations. Recent studies have found that exposure to particulate matter pollution previously thought “safe” causes significant damage to perhaps every organ of the human body. While New York City has reduced particulate matter exposure over the last decade, progress has stalled. In fact, climate change, the shift in the automobile market from sedans to SUVs and “light” trucks, and the federal pullback of environmental enforcement under Trump suggest that air pollution in New York City is likely to worsen.

While the …

The Half-Earth City, Timothy Beatley, Jd Brown

William & Mary Environmental Law and Policy Review

At the intersection of the biophilic city and the global commitment to halt biodiversity declines lies the half-earth city.

E.O. Wilson inspired the global effort to conserve and restore half the Earth, to sustain remaining biodiversity, necessarily focused on areas where the human footprint is small and the conversion of land to anthropogenic land use is less pronounced. However, given the increasing urbanization of the globe, cities must also play a central role in the conservation of global biodiversity. Holistic ecoregional planning must account for the impact of cities and work to ensure that urban areas are built in harmony …

Resilience Justice And Community-Based Green And Blue Infrastructure, Craig Anthony Arnold, Resilience Justice Project Researchers

William & Mary Environmental Law and Policy Review

The environmental conditions of marginalized communities, particularly low-income communities of color, make those communities disproportionately more vulnerable to major disturbances and changes, such as climate change, health crises, pollution releases, disasters, economic shocks, and social and political upheaval. Many of the most important movements for justice with respect to environmental conditions, including environmental justice, disaster justice, and climate justice, are connected to broader movements for racial and social justice, asserting that Black and Brown lives matter. These movements seek to confront, dismantle, and reform systems of racism, colonialism, and structural inequality.

In particular, low-income communities of color have inequitably less …

Digital Urban Agriculture As Disparate Development: The Future Of Food In Three U.S. Cities Through The Lens Of Stakeholder Perceptions, Networks, And Resource Flows, Michael Carolan

William & Mary Environmental Law and Policy Review

Urban agriculture takes many forms. Often, the term elicits images of raised beds, hoop houses, and, in those instances where topsoil is both present and non-contaminated, in-ground gardens—what I call traditional urban agriculture (“TUA”). But that imagery is changing, especially in some parts of the country where vacant space is scarce and land prices dear. In those instances, cities are seeing growth in digital urban agriculture (“DUA”). DUA, as defined here, refers to farming within urban and peri-urban areas that incorporates elements of automation, software, and/or silicon-based hardware into their operations. While this definition is not meant to draw a …

Foreword: Sustainability In The City, Julia D. Mahoney

William & Mary Environmental Law and Policy Review

“Nature loves to hide,” observed ancient Greek philosopher Heraclitus roughly 2,500 years ago, and the worldwide “COVID-19” pandemic that followed the emergence of the novel coronavirus SARS-CoV-2 at the end of 2019 has served as a bracing reminder of humanity’s incomplete understanding of the natural world. The COVID-19 crisis has turned out to be more than a public health emergency rooted in natural causes, for the pandemic has revealed significant weaknesses in humancreated institutions, including those that govern and influence the urban areas in which most Americans now live.

Of course, with crisis comes opportunity, and it seems highly plausible …

Table Of Contents (V. 45, No. 3)

William & Mary Environmental Law and Policy Review

No abstract provided.

Mother Nature Needs Her Sox: Reviewing The Impetus And Goals Of The Increased Financial Regulations Of The Sarbanes-Oxley Act And How They Parallel The Needs Of Today's Environmental Protection Agency, Scott Meyer

William & Mary Environmental Law and Policy Review

As climate change and natural disasters appear to be increasingly prevalent across the United States, the question of how to respond to these threats looms large. Arguably, the Environmental Protection Agency (“EPA”) represents the tip of that responding spear. The agency, literally dedicated to protecting the environment, is positioned to drive industry environmental standards, set sustainable metrics, and even determine thresholds for habitable life.

Looks can be deceiving, though. This Note examines the current state of the EPA, and the minimal effect it currently has on penalizing and deterring industry environmental degradation. It specifically focuses on a number of high-profile …

Consumer Electronic Right To Repair Laws: Focusing On An Environmental Foundation, Joshua Turiel

William & Mary Environmental Law and Policy Review

No abstract provided.

Bird-Safe Buildings Act: Ready To Take Flight, Kerry Sean Cooney

William & Mary Environmental Law and Policy Review

No abstract provided.

Under The River And Through The Common Law: Analyzing The Impacts And Propensity Of State Adoption Of The Ppl Montana Navigability-For-Title Standard, Jessica Kraus

William & Mary Environmental Law and Policy Review

No abstract provided.

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, …

Ground Zero: The Irs Attack On Syndicated Conservation Easements, Beckett G. Cantley, Geoffrey C. Dietrich

William & Mary Environmental Law and Policy Review

On June 25, 2020, the Internal Revenue Service (“IRS”) announced a settlement initiative (“SI”) to certain taxpayers with pending docketed cases involving syndicated conservation easement (“SCE”) transactions. The SI is the current culmination of a long series of attacks by the IRS against SCE transactions. The IRS has recently found success in the Tax Court against SCEs, but the agency’s overall legal position may be overstated. It is possible that the recent SI is merely an attempt to capitalize on leverage while the IRS has it. Regardless, the current state of the law surrounding SCEs is murky at best. Whether …

A "Directed Trust" Approach To Intergenerational Solidarity In American Environmental Law And Policy: A Modest Proposal, Lucia A. Silecchia

William & Mary Environmental Law and Policy Review

No abstract provided.

U.S. Property Law: A Revised View, Kamaile A.N. Turčan

William & Mary Environmental Law and Policy Review

No abstract provided.

Table Of Contents (V. 45, No. 2)

William & Mary Environmental Law and Policy Review

No abstract provided.

Smart Cities And Sustainability: A New Challenge To Accountability?, Iria Giuffrida

William & Mary Environmental Law and Policy Review

From 1800 to today, the global population has shifted from only three percent living in an urban environment to well over fifty percent in 2020. As a result of urbanization, cities around the world struggle to manage traffic and waste, efficiently distribute utilities, and lower pollution to slow the progression of global warming. Smart city technologies have emerged as a tool to process cities’ various forms of data collected through networks of precisely placed sensors and map solutions to many of the environmental and social issues created by urbanization. For swelling metropolitan areas in the United States, China, and Europe …

Greening The Trust: Enforcing Pennsylvania's Environmental Rights And Duties To Combat Climate Change, Julia E. Sappey

William & Mary Law Review

Over the last century, humans have warmed the planet by approximately 1.0°C. Pennsylvania’s average temperature has risen 1.8°F in the last hundred years, and climate scientists predict it will warm an additional 5.4°F by 2050. These rising temperatures create feedback loops, leading to warming that will eventually become irreversible. Warmer temperatures have already led to melting ice caps, rising sea levels, dangerous weather patterns, and food shortages. Human-produced greenhouse gases (GHG) are the largest contributing factor to this warming. The scientific community largely agrees that if humans do not reach carbon neutrality by 2050, damage to the climate will be …

Reanimating The Foreign Compacts Clause, Thomas Liefke Eaton

William & Mary Environmental Law and Policy Review

On October 23, 2019, the United States Department of Justice (“DOJ”) filed a complaint against the State of California “for unlawfully entering a cap and trade agreement with the Canadian Providence of Quebec.” In many ways, the complaint reflects a conventional disagreement between states and the federal government over the contours of federalism, but the complaint’s second cause of action, alleging a violation of the “Compacts Clause,” Article I, section 10(3) of the United States Constitution, is unique. The body of law and scholarship surrounding the Compacts Clause is often guesswork at best, for jurists and scholars alike, because typically …

Too Little, Too Late: Congress's Attempt To Regulate Forever Chemicals Through Military Appropriations, Michael Heard Snow

William & Mary Environmental Law and Policy Review

Per- and polyfluoroalkyl substances, shortened to “PFAS,” are a broad class of approximately 4,000 to 6,000 industrial chemicals characterized by a carbon chain saturated with fluorine molecules. This structure, dominated by carbon-fluorine bonds, is one of the most stable known chemical structures—and it is this stability that lies at the core of both the usefulness and the greatest issues surrounding PFAS. They are generally non-reactive except at tailored “active sites” and they never break down naturally—leading to the nickname “forever chemicals.” The persistence of their structures creates a plethora of desirable characteristics: PFAS are grease-resistant, waterproof, fireproof, stain-proof, and chemically …

Breaking Up With Dillion: A Practical Call For Virginia State & Local Government Law Reform, Karly Newcomb

William & Mary Environmental Law and Policy Review

States’ long-standing allegiance to the Dillon Rule stems from the theory that it prevents localities from passing unequal and corrupt laws. However, states with strict adherence to the Dillon Rule have stifled localities from addressing their own issues and priorities. Though the debates surrounding the Dillon Rule’s strengths and weaknesses have existed since its inception, the burdensome effects on a locality’s ability to serve and protect its citizens are constantly evolving. In particular, localities in Dillon Rule states have been unable to enact laws that directly address environmental issues, citing the Dillon Rule as their main obstacle.

Although lobbying Virginia …