Environmental Law Commons^™

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Faculty Scholarship

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Human Rights Risks In Clean Energy Supply Chains: Racial Capitalism, Critical Minerals, And Corporate Responsibility, Erika George

Faculty Scholarship

This paper argues that decarbonization will fail to deliver climate justice unless the transition to clean energy confronts the racialized political economy that has historically structured extractive activity and shaped international economic law. Grounding its analysis in racial capitalism, the paper contends that the growing demand for critical minerals risks reproducing patterns of exploitation, expropriation, and expulsion. Using lithium extraction in Chile as a case study, it shows how colonial legacies, dictator-era neoliberal reforms, and present-day regulatory architectures governing foreign investment and natural resource extraction have prioritized investors over human rights and the environment. Recent decisions of the International Court …

The Bugbear Of Indigenous Commercial Fishing Rights On The Eastern Frontiers Of Australia And The United States, Teresa Singh

LL.M. Essays & Theses

Restrictions on the commercial exercise of Indigenous fishing rights are plentiful across the U.S. and Australia. They have particular force and prevalence for Indigenous communities residing in the sites of the first colonies in both nations. This note exposes the common history underlying the diminished rights in these regions and argues the situation amounts to a critical environmental injustice. It follows that environmental justice advocates and scholars should embrace and advance the more encompassing iteration of Indigenous fishing rights urged by this note and support their restoration as a form of corrective justice for these communities.

Trump Has A Point On Trade, William Snape

Scholarly Articles in Law Reviews & Journals

No abstract provided.

State Responsibility For Disrupting Earth’S Climate System: Anticipating The Icj Advisory Opinion, Natalia Urzola, Nicholas A. Robinson, Léonore Gaboardi Carandell, Daye Chen, Bryce Clark, Madison Routledge Pettus

Elisabeth Haub School of Law Faculty Publications

In 2025, the International Court of Justice (ICJ) will deliver an advisory opinion on the legal obligations of nations with respect to the mounting damage caused by climate change. This ruling will definitively restate applicable international law, provide a basis for new global policy decisions within the U.N. General Assembly, and provide a predicate for new lawsuits in national courts. To be effective, remedies for breaching a government's duties to avert climate change will require a “collective remedy,” not merely financial compensation. This ruling was sought by law students from the South Pacific and elsewhere; this Article, also by young …

Climate Change In The Courts: A 2024 Retrospective, Maria Antonia Tigre, Margaret Barry

Sabin Center for Climate Change Law

Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2024. The report identifies eight major thematic areas of climate litigation, namely (i) climate change in international and regional courts and tribunals, (ii) constitutional and human rights cases, (iii) GHG emissions in EIAs, (iv) factoring climate impacts and obligations into government decision-making, (v) non-compliance with climate commitments, (vi) climate displacement, (vii) greenwashing and climate-washing cases, and (viii) nuisance and other claims against major emitters.

Administrative Forum Shopping, Amy L. Stein

Fordham Law Review

Allowing private parties in litigation to stack the deck in their favor through forum shopping is standard fare in the United States. But not everyone realizes that public legislators engage in a similar exercise when they stack the deck in one party’s favor through “jurisdiction-stripping” or “jurisdiction-channeling” provisions. Congress can strip federal courts of all or some of its jurisdiction, channel jurisdiction over a particular class of cases into one particular court, and even strip the U.S. Supreme Court of its appellate jurisdiction. Understandably, this last category has received the most attention, as scholars are drawn to the penultimate conflict …

The Grass Is Always Grayer: Analyzing Field Preemption Challenges In New York Environmental Law, Dylan Misisco

Brooklyn Law Review

This Note addresses a growing tension in environmental law between state and local authorities, focusing on the doctrine of field preemption as applied to New York environmental law. Using the Glen Oaks litigation as a case study, this Note argues that field preemption—where laws from a higher government authority implicitly nullify lower-level ones—threatens the effectiveness of environmental governance at the state and local levels. To mitigate future field preemption conflicts, this Note proposes a two-pronged solution: (1) New York courts should adopt a clearer and more structured framework for evaluating field preemption claims, specifically in the environmental context; and (2) …

Partial Additionality: The Blunt Metric Distorting Carbon Market, Anthony L. Moffa, Joseph Newlen

Faculty Publications

The widespread recognition that climate change presents an existential threat to humanity has spurred the development of numerous technologies, regulatory structures, and voluntary actions aimed to mitigate the pending disaster.

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

The Law Of Energy Abundance, Alexandra B. Klass, Matthew Appel

Articles

For the first time in decades, electricity demand in the United States is increasing due to the growth of data centers to power artificial intelligence, new manufacturing hubs, and transportation electrification. At the same time, coalfired power plants have been closing in response to competition from lower cost natural gas and renewable energy. Clean energy is being rapidly deployed to replace fossil fuels but not quickly enough to address concerns about demand growth and grid reliability. Accordingly, there is a growing imbalance between electricity supply and demand in many regions of the country that threatens to increase electricity prices and …

Reckoning With Social Policy In Utility Regulation, Alexandra B. Klass, Gabriel Chan

Articles

State public utility regulation in the energy sector is undergoing a rapid transformation driven by public and private investment in clean energy deployment, the corresponding threat to incumbent fossil fuel interests, and growing demands for energy justice. This transformation will impact many aspects of societal well-being—from energy insecurity in disadvantaged communities to dramatic shifts in energy-sector employment—so it is unsurprising that public utility commissions would engage with social policy concerns. However, for decades, state courts and utility stakeholders have admonished commissions that they are economic regulators and that their jurisdiction does not include social policy. This Article shows that state …

Examining State Climate Superfund Legislation, Madison Calhoun, Rachel Rothschild, Jonathan Binder, Elenda Mihaly, Justin Mankin, Ben Lippard, Mary Wood

Articles

There has been an influx of “climate superfund” bills introduced and adopted in state legislatures across the country. Modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), these laws are designed to recover costs from large emitters of greenhouse gases (GHGs) to pay for climate adaptation infrastructure. Following CERCLA’s strict liability framework, major polluters in New York and Vermont would be required to pay into state-managed funds in proportion to their shares of total GHG emissions; California, Maryland, Massachusetts, New Jersey, and Oregon have proposed similar bills. On March 19, 2025, the Environmental Law Institute hosted a …

Examining The Presence And Effects Of Coherence And Fragmentation In The Gulf Of Maine Fishery Management Network, Derek A. Katznelson, Antonia Sohns, Dongkyu Kim, Evelyn Roozee, William Donner, Andrew M. Song, Jasper R. De Vries, Owen Temby, Gordon M. Hickey

School of Earth, Environmental, & Marine Sciences Faculty Publications

Natural resource management networks cohere due to mutual dependencies and fragment, in part, due to the perceived risks of interaction. However, research on these networks has tended to accept coherence a priori rather than problematizing dependence, and few studies exist on interorganizational risk perception. This article presents the results of a study operationalizing these concepts and measuring the distribution of three types of dependence (capital, legitimacy, and regulatory) and two types of perceived risk (performance and sanction) among nearly fifty stakeholder groups and organizations participating in the management of fisheries in the binational Gulf of Maine. The analysis reveals an …

Living The Good Life In The Anthropocene, Danielle Stokes

Law Faculty Publications

The Stockholm Resilience Centre has concluded that the number of “planetary boundaries” we are crossing has increased from three in 2009, when the Centre’s researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between “safe” and “just” planetary boundaries raises questions regarding how to conceptualize the “good life.” In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the “good” as well as the various elements necessary to …

The Historic Superfund Listing Of The Lukachukai Mountains Mining District, Nadine Padilla

Faculty Scholarship

President Biden’s 2021 Bipartisan Infrastructure Law included, among its many provisions, a historic investment of $3.5 billion to be allocated toward cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This investment will help in addressing the problem of legacy pollution that impacts communities across the country. Approximately $1 billion will go towards clearing the backlog of 49 previously unfunded Superfund sites and will accelerate cleanup at over 85 current Superfund sites. Remaining funds will go towards launching cleanup efforts at 25 new Superfund sites. In a development that aligns with these broader cleanup …

Geopolitical Changes And Futures Of Ccamlr, Nengye Liu

Research Collection Yong Pung How School Of Law

The Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) was negotiated in the late 1970s in the shadow of the Soviet Union’s expanding interest in Antarctic krill fisheries. The development of a management regime for the krill fishery in the remote Southern Ocean vividly reflects geopolitical changes of the world at that time. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) is similarly being affected by geopolitical forces from the wider international system today. This chapter therefore first reviews the historical background for the establishment of the CCAMLR. It then provides an overview of …

Climate Change And Constitutional Overreach, Jonathan H. Adler

Faculty Publications

The failure of the political process to produce meaningful climate mitigation policies has encouraged activists to pursues aggressive and innovative litigation strategies. An increasing number of climate-related lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine and threaten to entrench climate policies outside of the traditional political process. This Article critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S. …

Unwritten Administrative Law And The Regulatory Last Mile, Anthony B. Derron

Publications

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.

Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very …

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

Publications

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 …

Climate Liberalism And Decarbonization, Jonathan H. Adler

Faculty Publications

Existing climate policy goals require dramatic and rapid reductions in greenhouse gas (“GHG”) emissions. Achieving such reductions within the desired time frame is a tremendous challenge, particularly through conventional regulatory approaches. The conventional approach to environmental problems is to treat such problems as “market failures” that can be corrected by government intervention, such as through regulation. Such approaches are constrained by various sources of government failure that are exacerbated by the scale and scope of the problem. The knowledge problem, administrative transaction costs, and limits on regulatory throughput capacity all hamper the use of traditional regulatory tools to address the …

New York Environmental Legislation In 2024, Michael B. Gerrard

Faculty Scholarship

In 2024, New York State enacted several laws aimed either at dealing with the adverse impacts of climate change such as extreme heat and increasingl severe and frequent storms or at helping to mitigate greenhouse gas emissions to avoid or minimize the adverse impacts. The final bill signed by Governor Kathy Hochul in 2024 was the most high-profile of these laws — the Climate Change Superfund Act, which will require fossil fuel companies to pay for adaptation measures.

Other new laws last year related to extreme heat in schools and prisons, food waste, expanded polystyrene containers, community gardens, and native …

Multi-Risk Governance Of Solar Radiation Modification, Jonathan B. Wiener, Tyler Felgenhauer, Mark E. Borsuk

Faculty Scholarship

Solar radiation modification (SRM) presents important challenges to risk regulation and governance, arising from the array of multiple risks that SRM may influence. SRM would not simply reverse climate change, but could pose further ancillary impacts, depending on the method of SRM, such as stratospheric aerosol injection (SAI), marine cloud brightening (MCB), or a space-based planetary sunshade system (PSS). We identify multiple risks that SRM may influence, both biophysical and sociopolitical, to be compared to the multiple risks that may be affected by greenhouse gas (GHG) mitigation and climate adaptation. This multi-risk framework helps analysts and decision makers identify, evaluate, …

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 …

An Alternate History Of Chevron, With A Lesson For Today, Michael E. Herz

Articles

It is a banal truism that judicial deference to agency decisionmaking enables the executive branch to pursue its agenda, whatever that agenda may be. That was obvious to all in the early years of the Chevron decision, which was greeted enthusiastically on the right and skeptically on the left. In Chevron itself, and for a while thereafter, deference advanced the Reagan deregulatory program. Over the years, a subtler conclusion gained consensus: overall and in the long haul, judicial deference is likely to have a net pro-regulatory impact. Hence the right’s hardened opposition to Chevron leading up to its demise. But …