Environmental Law Commons^™

Table Of Contents (V. 49, No. 3)

William & Mary Environmental Law and Policy Review

No abstract provided.

Foreword To Extended Producer Responsibility, Sarah Conley

William & Mary Environmental Law and Policy Review

The William & Mary Environmental Law and Policy Review’s (ELPR) 2025 Symposium entitled “Extended Producer Responsibility and the Circular Economy” highlighted the intersection of public policy, economic incentives, and environmental concerns as they relate to largescale change and the current legal landscape. A circular economy seeks to keep production materials in circulation for as long as possible by requiring systems that recapture production waste to use the recapture as a resource in the manufacturing of new products. I chose EPR as the Symposium’s topic because I wanted a symposium that truly embodied the multifaceted nature of environmental law and …

Transitioning To Regenerative Agriculture: One "Net-Zero" Pledge At A Time, Alexia Brunet Marks

William & Mary Environmental Law and Policy Review

As climate change intensifies, food sector multinational companies (MNCs), like Nestlé; Mars, Inc.; Unilever; PepsiCo; and Danone, face increasing pressure to reach net-zero by 2050, whereby they would reduce and ultimately eliminate carbon dioxide emissions from their supply chains by 2050. Carbon dioxide emissions are a major business liability, decreasing a firm’s value an average of $212,000 for every one thousand metric tons produced. As companies seek to align their pledges with regional, national, and subnational climate goals, they are legally required to comply with a growing number of disclosure rules for foods entering the United States and the European …

Plastics, Carbon, Politics, And Experimentation In Environmental Governance, Donald T. Hornstein

William & Mary Environmental Law and Policy Review

In this Article, I discuss new developments on waste reduction involving plastics and continued social experimentation in greenhouse gas (GHG) reduction, especially as framed in two just-concluded, major international negotiations. In doing so, I describe the search for next-generation policies on waste reduction, including, but not limited to, extended producer responsibility (EPR) programs, along with newly announced policies on carbon offset markets as they relate to GHG reduction. In each case, society is on the verge of what movie producers might call “remakes” with EPR and other waste-reducing programs replacing first-generation recycling efforts and newly designed carbon offset markets replacing, …

Mandatory Fertilizer Regulations: A Survey Of State And Federal Laws, S. Emily Grams, James Rehwaldt

William & Mary Environmental Law and Policy Review

The Environmental Protection Agency describes nutrient pollution as “one of the most widespread and challenging environmental problems faced by our nation.” Despite this acknowledgment, federal and state governments impose little to no mandatory laws to regulate the application of synthetic fertilizers to farmland, the primary source of nutrient pollution. Further, emissions from agriculture play a key role in global emissions; failing to address them could prevent the global attainment of the 1.5 degrees Celsius and 2 degrees Celsius climate change goals. In an attempt to shed light on the issue, this Article describes the significant climatic and environmental impacts of …

A Human Right To A Sustainable Climate?, Ottavio Quirico

William & Mary Environmental Law and Policy Review

Is a fundamental right to a sustainable climate progressively being recognized globally? Climate change is triggering parallel progressive developments in the human rights arena at both the domestic and international levels. Firstly, it is fostering an extensive interpretation of first- and second-generation human rights, protecting collective environmental interests rather than individual entitlements. Secondly, climate change has decisively accelerated the evolution of first and second generation human rights into a third generation right to a sustainable environment. Thirdly, emerging evidence discloses the possibility of conceiving a specific human right to a sustainable climate. This Article explores the trajectory of climate rights …

Recent Expansion Of Gubernatorial Emergency Powers To Address The Covid-19 Pandemic: Examining Applications For The Climate Crisis, Juliet Israel

William & Mary Environmental Law and Policy Review

With a particular focus on the states of California and Florida, this Note delves into the leadership roles assumed by governors when addressing the global COVID-19 pandemic, evaluates the applicability of this gubernatorial strategy to the climate crisis, and examines the criticisms and constitutional challenges to expanding gubernatorial emergency powers. Part I explores the core similarities and differences between the COVID-19 pandemic and climate change. Part II addresses the failure of federal and international policy responses to both the pandemic and climate change. Part III details the states’ use of gubernatorial emergency powers to respond to COVID-19. Part IV then …

Lessons Learned From The Mountain Valley Pipeline: Can Nature's Rights Or Environmental Justice Be The New Mvps In Pipeline Litigation?, Caitlin Kwalwasser

William & Mary Environmental Law and Policy Review

This Note will provide an introduction and proscriptive application of two litigation strategies for future pipeline litigation by using the MVP [Mountain Valley Pipeline] as a case study: (1) environmental justice and (2) nature’s rights. To understand how these strategies differ from the present, Part I will first examine the primary way opponents sought to prevent construction in the case of the MVP: challenging agency findings. Then, Part II will provide context for the two proposed litigation strategies. Finally, Part III will describe possibilities for how these strategies might be employed to prevent the construction of future pipelines.

This Note …

Made In The Usa: A Prison Of Our Own Emissions: Examining The Carbon Footprint Of Mass Incarceration From A Global Perspective, Raina Machisen

William & Mary Environmental Law and Policy Review

Part I will address the concept of Mass Incarceration and carbon footprints. Part II will describe and compare the current energy consumption level of the United States’ prisons and carbon emissions with the United Kingdom’s prisons’ green infrastructure. Part III suggests potential prison programs that encourage both rehabilitation and carbon reduction. Part IV discusses the origins of Mass Incarceration, potential policy solutions to reduce prison populations, and the prospect of repurposing unused prisons.

This abstract has been taken from the author's introduction.

Ecosocialism, Degrowth, And Global South Thought: Critical Legal Transformations, Nicholas F. Stump

William & Mary Environmental Law and Policy Review

This Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR entails a critical legal theory–informed approach to legal and broader socio-legal research. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change—i.e., specifically focusing on the popular conception of an “ecosocialist transition.” Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and …

Independent Environmental Regulator--The Transformation India Needs In Environmental Governance, Abhishek Chakravarty

William & Mary Environmental Law and Policy Review

If we look back fifty years to the Stockholm Conference on Human Environment, one of the key principles the states agreed on was Principle 17, which states, “appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of States with a view to enhancing environmental quality.” This principle can be interpreted to require the creation of an independent environmental regulator at the national level for environmental regulations and governance.

In 2011, the Honorable Supreme Court in deciding Lafarge Umiam Mining Private Ltd. v. The Union of India directed the Union Government to set …

Approaching A U.S. Regulatory Framework For Sporeless Seaweed Biotechnology, Gabriela Martinez, Terra Bowling, Catherine M. Janasie, Charlie Doering-Powell, Amalia Aruda Almada

William & Mary Environmental Law and Policy Review

Seaweed farming is the fastest-growing aquaculture sector in the United States. The development of sterile, selectively bred (sporeless) seaweed aims to support the economic viability of future large offshore seaweed operations and minimize the environmental risks of these operations to wild seaweed beds. Farmers have implemented analogous breeding techniques to control and enhance most terrestrial crops and common aquaculture products (e.g., oysters and carp). This Article draws from existing federal and state aquaculture policies to explore four pillars critical to a future sporeless seaweed regulatory framework: ensuring maintained sterility, tracing the geographic origin of seed, securing offshore permits, and facilitating …

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. 49, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Expanding Emissions Markets To Reduce Agricultural Nitrogen Run-Off, Samantha Tweet, Amy Hardberger

William & Mary Environmental Law and Policy Review

Synthetic fertilizers have been critical in averting global food shortages; however, synthetic fertilizers and their production have led to numerous environmental harms, including greenhouse gas emissions, water pollution, and soil degradation.

Scientists are working on a new technology that will create a more efficient and less impactful fertilizer process, but the legal mechanisms to encourage widespread adoption and subsequent environmental benefits fall short. In the absence of regulation, market tools can encourage behavior change. If the pollution reduction by exchanging fertilizer is turned into a tradable asset, agricultural users can benefit financially, which lowers potential barriers to participation in a …

Historical Fire And Forest Structure In Western Dry Forests: Alternative Models, Controversies, And Management Plan Revision, Gordon Steinhoff

William & Mary Environmental Law and Policy Review

Management plan revision is currently underway for national forests in the Sierra Nevada Mountains of California, the Pacific Northwest, and other regions of the country under the U.S. Forest Service’s 2012 Planning Rule. With respect to dry ponderosa pine and mixed-conifer forests in the Sierra Nevada and Pacific Northwest, agency scientists and others claim that these forests were historically open and parklike, with primarily large, well-distributed trees, few smaller trees, and sparse underlying vegetation, leaf litter, and woody debris. Large, high-severity fire was rare. Fire exclusion since the early 1900s has led to the “densification” of these forests and unnatural …

The Interpretation Of Environmental Statutory Ambiguity: A Comparative Analysis Between Ecuador And The United States, Fernando Muñoz-Dominguez

William & Mary Environmental Law and Policy Review

This Article examines through a comparative analysis the judicial interpretation of ambiguity in environmental statutes between the jurisdictions of the Republic of Ecuador and the United States of America. By analyzing the fundamental principles and doctrines guiding the interpretation of environmental laws in cases of ambiguity and vagueness in both nations, this Article draws out their inherent merits, drawbacks, and criticisms. A review of jurisprudential precedents provides a nuanced understanding of their practical applications.

In the Ecuadorian context, particular attention is given to the principles of environmental favorability, and in dubio pro natura, all of which are recognized in …

Patent Your Passenger Pigeons: De-Extinction Technologies & Ramifications Of The Product Of Nature Doctrine, Tyler Brooks

William & Mary Environmental Law and Policy Review

Part I of this Note will provide a brief overview of the current methods and scientific breakthroughs that are actively being pursued by private actors (particularly the bioengineering company Colossal Biosciences) to make de-extinct creatures, establishing the crucial point that any technique used to create such an animal will inherently fall short of being able to replicate an extinct species with any one hundred percent accuracy. This section will then briefly speak as to why private actors are looking to invest in de-extinction technologies in the first place, setting out how de-extinction technologies might one day prove incredibly profitable for …

Does History Repeat Itself? Analyzing Montana's 2023 Draft Wolf Management Plan In Light Of Historical Misconceptions Of Wolves, Katelyn Jones

William & Mary Environmental Law and Policy Review

This Note intends to argue that Montana’s Draft Wolf Management Plan, when compared to other states’ plans, particularly Wisconsin’s, is inadequate because it contains many indicators of the antiquated societal bias that has plagued the wolf’s reputation for centuries. Part I begins with a historical overview of wolf hysteria and controversy beginning in Europe and extending to colonial America. Included in Part I is a specific focus on the treatment of wolves in Yellowstone and Montana during the early 1900s. Part I ends with an overview of the reintroduction of wolves into the [Greater Yellowstone Ecosystem] GYE and the success …

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. …

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 …

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 …

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 …

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

William & Mary Environmental Law and Policy Review

No abstract provided.