Environmental Law Commons^™

Antitrust & The Immoral Energy Economy, Kristen Van De Biezenbos

Texas A&M Law Review

The age of climate change is upon us, but regulations and programs intended to decarbonize the electricity sector have been effectively stymied by utilities defending their monopoly power. The lack of robust antitrust enforcement against the utilities to date is a result of the belief that regulation is sufficient to police monopoly anticompetitive activity, that the natural monopoly structure of utilities makes them a poor fit for antitrust principles, and that the utilities are immune from Sherman Act claims under the state action exemption. But these rationales reflect a misunderstanding of the purpose of public utility law and its preference …

What The Free-Roaming Cats Dragged In: Regulatory Concerns With Privatized Local Services, Jonathan Korger

Northwestern University Law Review

The United States entrusts local governments to provide citizens with a wide range of public services, and animal control makes up a small but essential piece of these local responsibilities. In recent years, American localities have largely privatized how they manage the nation’s growing free-roaming cat population, relying primarily on animal-loving volunteers and a controversial practice called trap-neuter-return (TNR). Academics have long debated the merits of privatization, but TNR raises a novel question: how should local governments think about regulating a privatized public service when altruism, instead of profits, motivates the service deliverer? This Note argues that TNR demonstrates the …

A Tale Of Two Credits: The Post-Nestlé Alien Tort Statute And Carbon Credit Externalities, Stephanie Mao

Northwestern University Law Review

As companies increasingly embrace carbon-neutrality commitments, many rely on the voluntary carbon market to offset their emissions rather than reduce them directly. Regulatory and consumer scrutiny has focused on the widespread use of “phantom” carbon credits, i.e., credits that fail to produce meaningful climate benefits. But less attention has been paid to what this Note terms “colonial” carbon credits: those that may technically reduce emissions but do so at the expense of communities abroad. These projects may contribute to land dispossession, human rights abuses, and threats to public and environmental health. Yet, current regulatory and legal frameworks, with their focus …

State Intervention In Local Zoning: Lessons From Housing Applied To Data Centers, Matthew De Boer

Fordham Law Review

There is growing regulatory tension at the intersection of data center development and local land use law. As states aggressively court data centers with tax incentives and economic policies, they have largely declined to regulate where and how these facilities are sited. Local governments, left to absorb the consequences, have responded unevenly, attempting to fit extraordinary land, water, power, and noise-intensive data centers into zoning frameworks designed for far less demanding industrial uses. The result has been a cycle of uncertainty and conflict: developers face unpredictable approvals, moratoria, and litigation, while residents bear escalating infrastructure strain, environmental impacts, and diminished …

Revisiting The Missed Pigouvian Opportunity Of The First Industrial Revolution: A Carbon-Based Pigouvian Tax On Ai, Haozheng Jiang

SLU Law Journal Online

As artificial intelligence (AI) reshapes the economy with comparative speed and scope as during the First Industrial Revolution, policymakers face a familiar dilemma: how to preserve technological progress while addressing its negative externalities. This article proposes a uniform, carbon-based Pigouvian tax on AI as a practicable and forward-looking solution to correct one of AI’s most readily measurable negative externalities without stifling innovation. Drawing on lessons from existing carbon-pricing systems, this article contends that such a tax should be designed with flexibility and transparency to promote both effectiveness and political feasibility. Properly structured, the tax would not deter AI development but …

The Legal Framework For Direct Ocean Carbon Capture And Storage (Volume 1: International Law), Romany M. Webb, Korey Silverman-Roati

Sabin Center for Climate Change Law

This paper focuses on the marine carbon dioxide removal (mCDR) approach of direct ocean carbon capture and storage (DOCCS), which aims to remove some of the carbon currently stored in the ocean and thereby enable it to uptake additional carbon dioxide from the atmosphere. DOCCS is still undergoing research, but early studies suggest it could have significant carbon dioxide removal potential. However, DOCCS could also present environmental and other risks, including from the construction of new facilities, the intake and processing of water, and the handling and storage of carbon dioxide. Careful siting, design, and operation of DOCCS systems is …

Overlooking The Trees For The Forest: A Look Into California's Cap-And-Trade Policy Shortcomings, Zachary Rohrbaugh

West Virginia Law Review

Cap-and-trade programs have grown in political popularity over the past few decades, primarily as a means of addressing climate change and mitigating greenhouse gas emissions. The idea behind these programs is that the government sets a certain cap for emissions that businesses or entities are not allowed to exceed. These businesses or entities receive permits allowing them to pollute up to this capped level. If the business or individual does not use all their allotted permits, they are able to sell their extra to others who might need extra because they exceeded their cap. Although these programs have increased in …

Corporate Fiduciary Duties And The Climate And Biodiversity Crisis, Eric W. Orts, Sandra G. Schafhäutle

Michigan Journal of Environmental & Administrative Law

This Article argues that addressing one of the most urgent environmental challenges facing humanity today—the global climate and biodiversity crisis—calls for a transformation at the heart of corporate law: its fiduciary duties. After demonstrating how current corporate fiduciary duties are implicated in this crisis, we argue for reform of fiduciary duties operating at two levels: those governing directors and officers of business corporations, and those governing institutional investors and asset managers. We then distinguish between two general kinds of corporate fiduciary duties: permissive and mandatory. We contend that corporate law should accommodate a more expansive understanding of fiduciary duties by …

The Energy And Environmental Footprint Of Ai, Michael P. Vandenbergh, Ethan I. Thorpe, Jonathan M. Gilligan

Michigan Journal of Environmental & Administrative Law

Artificial intelligence (AI) has the potential to create major economic and social benefits, but also to rapidly escalate electricity demand and its associated environmental impacts. Information availability has been a cornerstone of environmental law for half a century, and this Article argues that providing information to individual, corporate, and other users about the electricity demand and environmental impacts of AI can reduce those impacts without delaying development of the technology. Little is known about how different large language models (LLMs) compare on these metrics, though. To address whether users have access to the information necessary to address this shortcoming, the …

Expressive And Acquisitive Norms Of Property In The Municipal And Private Contexts: Guerrilla Gardening And Property Reform, Anna Benham

Michigan Journal of Environmental & Administrative Law

There exists a type of expressive property outlaw—the guerrilla gardener. Guerrilla gardening is the practice of gardening without the legal right to do so. The practice of guerrilla gardening can sometimes take on rooted permanence, and as a result, progressively higher stakes. Guerrilla gardeners can operate over years, planting plots of greenery in areas where their hard work can be removed, quite literally, overnight. Many guerrilla gardeners operate with the implicit consent of their neighbors—consent that can be revoked at any time. However, when one bends away from the light insurrections of nonoffensive trespass and examines the other end of …

Four Decades, No Progress: Time For A Columbia River Basin Compact, Liesl L. Bogaard

Michigan Journal of Environmental & Administrative Law

Since the Power Act’s passage in 1980, the government entities who develop and implement energy policy in the Pacific Northwest have operated under a congressional mandate to protect fish and wildlife in the Columbia River Basin. However, nearly half a century later, the number of wild salmon and steelhead returning to their native spawning grounds is still in decline, largely due to dam operations in the Columbia and its tributaries. This Note examines the history of hydroelectric power generation in the Columbia River Basin and its impact on fish populations, drawing parallels between the environmental crisis in the Columbia River …

Owning Geothermal Energy, Gabriel Eckstein

Michigan Journal of Environmental & Administrative Law

Geothermal energy holds vast potential for decarbonizing the U.S. energy system, yet the sector remains significantly underdeveloped, supplying only 0.4% of the nation's electricity. A principal barrier to growth is the fragmented and ambiguous legal landscape currently governing ownership of geothermal resources: thirty-three states lack any clear statutory or common-law framework identifying who owns subsurface thermal energy. This Article examines the physical characteristics of geothermal energy, recent developments in the U.S. geothermal sector, and the principal doctrinal approaches that might govern ownership of subsurface heat, including the ad coelum doctrine, common-pool and open-access frameworks, the rule of capture, and public …

A Guide To The Best Reading Of Environmental Law: Presumptions For Stability In Statutory Interpretation, Sanne H. Knudsen

Michigan Journal of Environmental & Administrative Law

Administrative law is in flux and its doctrines flexible. Recent doctrinal shifts—like the ousting of Chevron and the introduction of the major questions doctrine—raise significant questions about how courts will determine the best reading of statutes and carve out a role for agency expertise in statutory interpretation. For environmental law, a field that relies heavily on federal agencies for implementation, the flux and flexibility of administrative law presents challenges. But they also present opportunities.

On the one hand, the recent changes to administrative law pose a destabilizing and deregulatory risk for environmental law unless courts develop a consistent methodology for …

Climate Change Litigation Cases In Context, Camille Cameron, Patricia Galvão Ferreira, Riley Weyman

Books

This book provides a timely and detailed analysis of key climate change cases in domestic courts across the globe, examining the procedural, evidentiary, legal, and strategic dimensions of the complex climate governance landscape. It reveals how, as the threats of climate change grow and as policy fails to respond, individuals and groups have increasingly been turning to national courts to seek relief and clarity through litigation.

Chapters:

1. The climate governance tightrope: novel strategies and the role of courts in climate change
2. Mathur v Ontario: youth-led constitutional challenge to government climate policy lights the path to future recognition of climate …

Governing The Energy Bottleneck, Hannah Jacobs Wiseman, Matthew Mchale

Faculty Scholarship

The electrical grid is falling short of its mandate to accommodate new generation—much of which happens to be “clean” zero-carbon generation—and to service load (demand). The bottleneck of grid access, which has vexed renewable energy developers, now affects industries seeking massive quantities of electricity to power single facilities— “large loads” such as data centers and other artificial intelligence operations.

Many of these highly capitalized loads seek clean energy generation; they could, in theory, fund an energy renaissance and provide scale-based benefits for all consumers. But loads that obtain service  are negatively impacting other consumers’ rates and, potentially, the reliability of …

Life, Liberty, And The Pursuit Of A Sustainable Catch: Using Maine's Right To Food To Encourage Sustainability In The Lobster Industry, Emma Rodgers

William & Mary Environmental Law and Policy Review

Every year, millions of sharks, turtles, whales, and other marine life are swept up in fishing gear never meant for them. This collateral damage, known as by-catch, is a persistent and deadly problem in the fishing industry. The World Wildlife Fund (WWF) estimates that around 38 million tonnes of global marine catch each year—40% of all fish pulled from the ocean—is unintended by-catch. Unfortunately, the WWF approximation of annual by-catch likely underestimates the proper amount of by-catch because their estimation includes little information on large marine animals, such as turtles and cetaceans which are also caught in the by-catch process. …

Foreword To Shifting Shores, Shifting Populations: Climate Migration And Coastal Resilience, Emma Herber

William & Mary Environmental Law and Policy Review

This is a brief foreword to the Symposium issue of the fiftieth anniversary volume of William & Mary's Environmental Law & Policy Review. It discusses the choice of the issue's theme—Shifting Shores, Shifting Populations: Climate Migration and Coastal Resilience—and the future for the journal and the students who staff it.

This abstract has been drawn from the article.

Now You Sea Me, Now You Don't: A "Climate Displacement Equity" Framework For Sinking Nations, Meera S. Aiyer

William & Mary Environmental Law and Policy Review

Small Island Developing States (SIDS) are a unique set of states that are disproportionately impacted by climate change impacts and are highly vulnerable to economic, cultural, and environmental harms. While many are islands, SIDS also include non-island states populated with predominately coastal communities. The United Nations recognizes 39 sovereign states and 18 associate members as SIDS. SIDS account for over 1,000 islands across the globe, but the total population across them amounts to 65 million people, less than one percent of the global population. SIDS contribute less than one percent of global greenhouse gas emissions, the main cause of modern-day …

The Vicious Cycle Of 'Disaster-Recovery-Disaster' And Sids: Lessons From The Icj Advisory Proceedings On Climate Change, Chhaya Bhardwaj

William & Mary Environmental Law and Policy Review

The core argument of this Article is that the current theoretical and legal frameworks are insufficient to fully comprehend the circumstances of the Small Islands Developing States (SIDS), which claim to be in a “constant state of recovery or disaster.” The SIDS continue to suffer, as the extreme climate events become more frequent, severe, and compounding. The existing theoretical and legal frameworks assume that every disaster that begins must end, as does the recovery period following the disaster. However, in the case of some SIDS, the disaster or recovery period never ends. For example, sometimes, another disaster strikes even before …

Climate Justice For Puerto Rico: The Right To Stay And Energy Sovereignty, Camila Bustos, Mercè Martí Exposito

William & Mary Environmental Law and Policy Review

Following Hurricane María and subsequent disasters, Puerto Rico has experienced displacement, infrastructure collapse, and intensified economic exploitation through austerity policies championed as part of a disaster capitalist agenda. Climate change threatens self-determination globally, but its impacts are amplified by asymmetrical power relations. For Puerto Rico, climate vulnerability cannot be separated from colonial subordination. The Trump administration’s contemptuous response to María, PROMESA’s imposition of austerity, and the redirection of renewable energy funding toward fossil fuel infrastructure—each reveals how climate injustice compounds colonial injustice.

Drawing on international human rights law—particularly the rights to self-determination and to stay—we examine how Puerto Ricans assert …

The Resilience Of What, Exactly, To What, Exactly, Along The Coast? Adapting To More Than Just Human Migration, Robin Kundis Craig

William & Mary Environmental Law and Policy Review

The world’s coastlines are changing as a result of climate change and ocean acidification, creating drivers of human adaptation efforts— efforts that may increasingly include migration inland. Rising sea levels tend to get most of the attention as coastal migration drivers, because they represent the force most likely to physically push residents away from the coast through inundation, coastal erosion, and/or destruction of coastal water supplies.

However, climate change and ocean acidification are also changing the world’s coasts ecologically, and these ecological changes also drive coastal adaptation, testing the adaptative capacity and ecological resilience of coastal communities. This Article examines …

Of Mangroves And Men: Mobilizing Legal Innovations To Protect Coastal Communities From Climate Displacement, Sarah Dorman, Monica Iyer, Kelsey Jost-Creegan

William & Mary Environmental Law and Policy Review

Around the world, there is growing concern that phenomena related to climate change may render coastal areas unlivable in the coming years and decades. Scientific projections indicate that with high greenhouse gas emissions, sea levels may rise upwards of 6 feet by 2100. Studies repeatedly warn that—absent steep and urgent global emissions reductions— places where hundreds of millions of people currently live will be below projected high tide lines for 2100.

In many coastal areas, climate change often impacts historically marginalized, racialized, and low-income communities first and worst. Such communities are often located in more vulnerable areas like flood plains. …

The Federal Trust Responsibility In An Era Of Coastal Retreat: Climate Relocation, Fiduciary Governance, And The Future Of Tribal Self-Determination, Samuel Kohn

William & Mary Environmental Law and Policy Review

Climate-driven displacement is no longer a speculative concern for Indian Country. Across our country, from Alaska, to the Gulf Coast, and the Pacific Northwest, Tribal communities confront accelerating erosion, sea-level rise, permafrost thaw, and chronic flooding that threaten not just individual structures, but the territorial foundations of Tribal sovereignty itself. Schools, clinics, water systems, housing, and transportation networks are increasingly exposed to conditions that render continued habitation unsafe or impossible. These impacts do not present as isolated disasters; they manifest as cumulative, slow-onset processes that erode the capacity of Tribal governments to govern in place.

This Symposium Essay advances the …

Cyclones Of Crime: How Environmental Degradation In Haiti Strengthens Gangs In Governmental Power Vacuums And How The International Community Can Respond Beyond Military Intervention, Stephanie Minor

William & Mary Environmental Law and Policy Review

In Haiti, the ground beneath people’s feet, both politically and literally, has never stopped shifting, as cycles of gang violence and environmental disasters feed each other in a relentless spiral of instability. This Note intends to be an analysis of the cycle of gang violence and environmental disasters, along with possible legal and organizational solutions. It begins with a very brief historical analysis of how the situation has progressed from state creation to present day and how Haiti’s colonial past shaped its current governance problems. At its creation in 1804, Haiti became the first state founded by enslaved persons through …

Bad Faith Disregard Of Benefits And Science In Federal Environmental Deregulation, Michael B. Gerrard

Faculty Scholarship

Since the beginning of the Reagan administration in 1981, federal agencies have used cost-benefit analysis when making important policy decisions, especially when issuing regulations. In the years since then the methodologies have been refined and enshrined in White House guidance. The second Trump administration has upended these practices by often ignoring the benefits of regulations and only considering the costs. In doing so it often claims that there are such uncertainties about the benefits that they should be disregarded. It uses these claims in support of repealing or softening regulations that prior administrations found would save thousands of human lives.

Table Of Contents (V. 50, No. 3)

William & Mary Environmental Law and Policy Review

No abstract provided.

Remarks From Environmental Law And Policy Review'S Fiftieth Anniversary Celebration

William & Mary Environmental Law and Policy Review

Volume 50 is a milestone for the William & Mary Environmental Law and Policy Review. To that end, on March 20, 2026, the eve of our Symposium, ELPR staff members, alumni, and supporters gathered to celebrate ELPR’s 50th year of scholarship. Hayden Miller, Professor Jonathan Adler, and Jeffrey Regner delivered remarks at the event. Additionally, Professor Lynda Butler, ELPR’s Faculty Advisor from its conception through Volume 49, prepared remarks. This article contains excerpts from the remarks given.

The Human Right To A Healthy Environment: Corporate Responsibility In Critical Mineral Extraction, Erika George

Faculty Scholarship

This paper argues that the emerging human right to a clean, healthy, and sustainable environment should guide the governance of critical minerals by incorporating the corporate responsibility to respect human rights throughout supply chains to ensure a racially just energy transition. It frames the climate crisis within the history and political economy of racial capitalism, contending that without rights-based guardrails, mineral supply chains risk reproducing the extractive harms and racialized disparities of the fossil fuel era, including labor abuses, displacement, water depletion, and violence disproportionately borne by racialized and Indigenous communities. Methodologically, the paper combines doctrinal analysis of international norms …

The Tribal Energy Act: A Necessary Step Toward The Electrification Of The Navajo Nation, Carington Lowe, Michael Hamersky

Pepperdine Law Review

The Navajo Nation stands as a sovereign nation, yet many families still lack access to electricity because of enduring historical, structural, and regulatory barriers. This Article identifies the legal and technical barriers that have hindered meaningful progress and argues that supplementing the utility grid with distributed energy resources, such as biodigesters, offers a viable path toward electrification, particularly for remote and rural communities within the Navajo Nation. Biodigesters convert organic waste generated through community practices, such as sheep raising, into biogas through an anaerobic process. This form of energy reflects circular economy principles while also aligning with Diné cultural practices …

Scaling Sustainable Propellants To Address Rocket Emissions: Lessons From The U.S. Aviation Industry, Zhizhou (Josie) Liu

Duke Law & Technology Review

The rapid growth of the U.S. commercial space industry has exposed a profound regulatory gap in addressing rocket emissions. By releasing greenhouse gases and particulates like black carbon, alumina, and water vapor, rocket launches not only contribute to climate change but also accelerate stratospheric ozone depletion. The U.S. aviation industry encountered similar environmental challenges decades ago, which eventually prompted legal and policy frameworks to curtail aviation emission through sustainable fuel technologies. Unlike aviation, however, the space industry now operates in a legal vacuum, with no binding international environmental standards or domestic regulations targeting rocket atmospheric pollution. As rocket emissions penetrate …