Law Commons^™

Some Lessons For Crafting A State Constitution-Based Right To A Clean Environment, Heidi Gorovitz Robertson

Pace Environmental Law Review

While New York most recently added an environmental rights amendment to its constitution, Pennsylvania and Montana have had these amendments in their constitutions since the seventies. Hawaii, Rhode Island, Illinois, and Massachusetts have enacted weaker iterations of rights to a clean environment. Other states, like Maine, have faced challenges that blocked an amendment’s passage. This Article provides an initial analysis of the state environmental rights amendments currently in place, examining their origins, language, placement in the constitutions, and the major judicial decisions impacting their interpretation. It concludes by comparing the existing environmental rights amendments to the proposed amendment that failed …

Indigenizing The Right To A Healthy Environment, Elisabeth Parker, Heather Tanana

Pace Environmental Law Review

The most severe impacts resulting from environmental degradation are experienced by already-vulnerable populations, including Indigenous peoples. A growing number of countries are formally recognizing the basic human right to a healthy environment, which can help realize environmental and climate justice for these communities. On July 28, 2022, the United Nations General Assembly passed a landmark resolution formally recognizing the human right to a clean, healthy, and sustainable environment. The adoption of this resolution represents a pivotal moment in the understanding and implementation of a human rights-based approach to protecting the environment. However, it is important to recognize that historically, Indigenous …

Green Amendments, Land Use, And Transportation: What Could Go Wrong?, Michael Lewyn

Pace Environmental Law Review

As more states amend their constitutions to include a green amendment, the vague nature of these amendments leaves a concerning amount of interpretative power to courts. This article examines how some courts have interpreted green amendments and how these interpretations risk the misuse of green amendments. Additionally, this article examines how such misuse may be avoided.

The Value Of Constitutional Environmental Rights And Public Trusts, John C. Dernbach

Pace Environmental Law Review

As part of the modern environmental movement of the 1970s, five states (Hawaii, Illinois, Massachusetts, Montana, and Pennsylvania) adopted constitutional amendments recognizing a right to a quality environment, a public trust for public natural resources, or both. Half a century later, there is a renewed interest in constitutional environmental rights, inspired in no small part by the failure of existing laws to adequately address the climate crisis. A sixth state (New York) recognized a constitutional right to a quality environment in 2021, and more than a dozen states are considering such amendments. Still, the great majority of environmental protection at …

130 Years And Counting Into Forever — New York's Forever Wild Constitutional Amendment And Lessons For Modern Green Amendments, Timothy E. Cox

Pace Environmental Law Review

In the 135 years of New York’s Forever Wild Amendment’s existence, it has been challenged by a range of court cases and thereby interpreted by courts throughout New York. The results of these cases frequently have upheld the heart of Forever Wild: to protect New York’s Forest Preserve land. This Article provides a history of the Forever Wild Amendment, an analysis of the courts’ and New York Attorney General’s interpretations of the Amendment, and a discussion of how this information can guide the future of New York’s Green Amendment.

Administering Environmental Justice: How New York’S Environmental Rights Amendment Could Transform Business As Usual, Rebecca Bratspies

Pace Environmental Law Review

Since New York became the latest state to pass an environmental rights amendment, there has been a great deal of analysis regarding how the judi- ciary will interpret the Green Amendment; however, state and local officials need not wait for the courts to enforce the Green Amendment. This Article explores the authority state and local officials have to carry out the purpose of the Green Amendment. Additionally, it discusses what the passage of the Green Amendment means in practice and how, and why, state officials such as the Attorney General should implement the Green Amendment.

Introduction, Marisa Barber

Pace Environmental Law Review

Introduction

Brief Of Amicae Curiae Susan Boundy-Sanders And Paula Waters In Support Of Friends Of Sammamish Valley And Futurewise, King County V. Friends Of Sammamish Valley, Washington State Supreme Court Docket No. 102177-1, William Bailey

Court Briefs

No abstract provided.

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, …

What The Trust? Overcoming Barriers To Renewable Energy Development In Indian Country, Malcolm M. Gilbert, Aspen B. Ward

Public Land & Resources Law Review

No abstract provided.

Avoiding The Pitfalls In Administrative Record Review Cases, Kim Wilson, Brian Brammer

Public Land & Resources Law Review

No abstract provided.

Corner Crossing: Unlocking Public Lands Or Invading The Airspace Of Landowners?, Kevin Frazier

Public Land & Resources Law Review

No abstract provided.

States Of Mind Or State Of Crime: Exploring The Prosecution Of Environmental Crimes In The Western United States, Joshua Ozymy, Melissa Ozymy

Public Land & Resources Law Review

No abstract provided.

Cutting The Mussel's Threads: A Legal Perspective On Invasive Species, Hallee C. Frandsen

Public Land & Resources Law Review

No abstract provided.

Leveraging Esg Principles To Help Secure Critical Mineral Supply Chains, Kaycee May Royer

Public Land & Resources Law Review

No abstract provided.

Editors And Staff Members

Public Land & Resources Law Review

No abstract provided.

Amicus Brief Of Native Nations In Montana, Kathryn Shanley, And Denise Juneau, Held V. State Of Montana, Montana Supreme Court Docket No. Da 23-0575, Monte Mills, Jeremiah Chin, Mia Montoya Hammersley, Fredrick Ole Ikayo, Clare Derby, Natasha De La Cruz

Court Briefs

Montana’s Constitution specifically recognizes and protects the right of Native Nations and Indigenous individuals to preserve and sustain their cultural traditions through the education of future generations. These rights are inherently tied to the right to a clean and healthful environment.

Building A Cleaner, More Resilient Energy System In Cuba: Opportunities And Challenges, Korey Silverman-Roati, Daniel Whittle, Romany M. Webb, Jeffrey P. Fralick, Lila Harmar

Sabin Center for Climate Change Law

Cuba’s energy sector is at a crossroads. The country’s mostly fossil fuel-fired energy system faces a number of longstanding and serious challenges, including breakdowns at aging power plants, decreasing fuel imports and fuel shortages, and the growing threat of climate change-related disruptions. In recent years, Cuba has seen frequent electric blackouts and brownouts that have affected residents, businesses, and government institutions island wide.

Compounding these problems, Cuba is facing a severe economic crisis. In 2022, year-on-year inflation was 39% (down from 77% in 2021). While inflation is estimated to have dropped to 30% in 2023, the price of food increased …

Community Opinions On Environmental Action On Isla Porvenir And Whichub Walla In The Guna Yala Comarca, Sofia Houts

Independent Study Project (ISP) Collection

The Guna Yala Comarca is the autonomous, self-governed territory of the Guna people, one of seven Indigenous groups in Panama. The Comarca is located on Panama’s eastern Caribbean coast and includes 365 coral islands. Forty nine Guna communities and roughly 32,000 individuals live in the territory. The Guna General Congress is the highest authority, and each community has a local congress. As a low-lying coastal region, Guna Yala is especially vulnerable to climate change and is already impacted by sea level rise, biodiversity loss, and changing precipitation patterns. Sub-national, national, and international forms of governance and environmental action are crucial …

Legal Issues In Oceanic Transport Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard, Pria Deanna Mahadevan

Faculty Scholarship

A number of large facilities intended for the permanent sequestration of carbon dioxide are being developed in the United States. Several of them will be located in Texas and Louisiana on or near the coast of the Gulf of Mexico, making them easily accessible to ships. At the same time, there is substantial interest in Europe in installing equipment to capture carbon dioxide from certain industrial operations before it is emitted into the atmosphere, but currently there are inadequate facilities existing in Europe to sequester much of this carbon dioxide. Therefore, there is interest in the possibility of using ships …

Urban Flooding: Legal Tools To Address A Growing Crisis, Michael B. Gerrard

Faculty Scholarship

While sea level rise has long received a great deal of attention, another impact of climate change is now getting greater notice — increases in extreme precipitation. As the atmosphere warms, it can hold more moisture; for every increase of one degree Celsius, seven percent more water vapor is carried in the air. When that moisture is quickly released as intense rainstorms, stormwater systems can be overwhelmed, and cities can suffer devastating floods.

The frequency and intensity of heavy precipitation events have increased since the 1950s over most of the world's land areas. One 2023 study — generally consistent with …

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. …

Incorporating Climate Considerations Into Investment Assessment Processes: Guidance For National And Local Governments, Esther Akwii, Grace Brennan, Leslie Hannay, Martin Dietrich Brauch, Nora Mardirossian

Columbia Center on Sustainable Investment

Global climate change impacts pose complex, dynamic challenges to the success of land-based investments — such as agriculture, forestry, and wind and solar energy — which can further exacerbate detrimental climate change impacts if they are not sustainably implemented. Countries outline in their Nationally Determined Contributions (NDCs) their goals and plans to reduce GHG emissions and adapt to climate change impacts. To ensure their success, governments must fully integrate their NDCs into national climate strategies, plans, and policies that drive government action and decisions. Improved land-based investment decision-making through the incorporation of climate considerations in investment assessment processes (IAPs) can …

Cleaning Up Space Junk: Applying The Models Of U.S. Domestic Environmental Law To Regulate The Creation Of Orbital Debris By Private Actors, Sara Henry

Dickinson Law Review (2017-Present)

The commercial space flight industry has grown rapidly in recent decades, and Congress has implemented a “learning period” to prevent heavy regulations on the industry. This learning period has led to the proliferation of orbital debris in space. The learning period is set to lapse in 2024, and now is the proper time to implement regulations to mitigate the creation of more debris. These regulations should be modeled after federal environmental law, including simplifying the current permit system and setting up a trust fund to finance research into active debris removal.

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 …

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 …

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 …