Environmental Law Commons^™

The Legal Framework Of Carbon Trading In The Perspective Of Climate Law: A Comparative Study Of Global Warming Mitigation Strategies Between Indonesia And Brazil, Istikhomah Istikhomah, Laella Millinia

Indonesian Journal of Environmental Law

This study examines the legal framework of carbon trading, focusing on a comparative analysis of global warming mitigation strategies in Indonesia and Brazil. Using a normative juridical method, this research analyzes legal instruments, policies, and international commitments that shape carbon trading mechanisms in both countries. The primary issue explored is the effectiveness of regulatory frameworks in facilitating carbon trading to mitigate climate change while ensuring environmental sustainability and economic growth. Both Indonesia and Brazil have established carbon trading regulations in line with their commitments under the Paris Agreement. However, their implementation strategies differ significantly. Indonesia employs a regulatory based approach …

Climate Change, Flood Management And Internal Displacement In Malaysia: Whose Responsibility?, Sheila Ramalingam Dr

Indonesian Journal of Environmental Law

Malaysia has not escaped the effects of climate change, with the country facing increasingly high precipitation resulting in massive floods occurring almost annually. The floods wreak havoc in terms of destruction of lives and property. Overlooked in this tragedy are those who are internally displaced through the loss of homes, property, livelihood and way of life. Using a qualitative research method, this article seeks to explore the legal rights of Malaysians who are internally displaced due to extreme weather, with a particular focus on floods. In doing so, flood management measures implemented in England and Japan will also be …

Global South Sacrifices: Climate Law Implications On Ambitious Nickel Extractions In Indonesia, Sarah Yessie Hana Monica, Nadine Fakhira Putri Ravanti

Indonesian Journal of Environmental Law

Excessive demands for nickel have prompted massive mining extractions. The global north fascination towards the luscious natural resources owned by the global south has prompted visible environmental degradations. As one of the major global south exporters, Indonesia is bearing the ecological challenges. A smelting furnace in Sulawesi explodes, killing 21 people and injuring 38 others whilst the disposal of heavy metals pollutes the rivers. The 1945 Constitution intended national resources to build the economy with sustainability aspect must also be borne in mind, which was made adamant in the national commitment on Law Number 32 of 2009. This article analyzes …

Climate Change And The Reconfiguration Of Arctic Access, Charles H. Norchi, Amanda H. Lynch

Faculty Publications

The Arctic is warming faster than any other region on Earth, with surface air temperatures increasing at a rate nearly four times the global average.1 This amplification of global change has been reshaping the Arctic for decades, altering sea ice extent and thickness, snow regimes, permafrost stability, and hydrological systems. Against this backdrop, a persistent narrative has taken hold that the diminishing cryosphere2 is setting the table for opportunity: opening the Arctic to navigation, development, and exploitation. But this thaw renders the Arctic neither benign nor uniformly accessible. The region remains frozen for most of the year, dark for months …

“Downstream People:” Lessons From The Tar Creek Superfund Site And Quapaw Nation In Pursuit Of An Environmental Justice-Informed Cercla Regime, Leah Fitter

Northwestern Journal of Law & Social Policy

In 1983, the United States Environmental Protection Agency (“EPA”) designated Tar Creek, a former productive zinc and lead mining zone located in northeastern Oklahoma on land predominantly owned by the Indigenous Quapaw people, as a Superfund site. Its designation came in the wake of findings in 1980 that drainage and tailings from the site’s mining days had polluted the zone’s surface water into some of the most toxic water in the country. Tar Creek was an environmental justice disaster that disproportionately exposed the historically marginalized Quapaw Nation to hazardous mining waste and resulted in detrimental health impacts. Despite numerous demonstrations …

The Retreat Of Federal Power And The Rise Of Post-Supremacy Federalism, Victoria Grace Litman

Cleveland State Law Review

This Article introduces the theory of post-supremacy federalism to describe a structural condition in which federal law remains formally binding, but enforcement has durably receded or collapsed. Unlike frameworks grounded in intergovernmental friction or negotiated cooperation, this account begins from federal retreat—the cumulative erosion of enforcement capacity across judicial, administrative, legislative, and executive institutions. Post-supremacy federalism arises when three conditions are met: (1) federal law remains intact; (2) enforcement retreats; and (3) no formal devolution occurs. In this vacuum, states are not merely filling gaps. They are governing by default—under laws that still bind but no longer structure governance in …

Revolutionizing Corporate Accountability: The La Oroya Case And The Right To A Healthy Environment In The Inter-American System, Teresa Jacques Valenzuela

University of Miami Inter-American Law Review

La Oroya v. Perú marks a pivotal moment in the evolution of Business and Human Rights and the Right to a Healthy Environment (R2HE) under the Inter-American legal framework. This paper examines the groundbreaking judgment of the Inter-American Court of Human Rights, which established new standards for state responsibility in regulating and supervising corporate activities to prevent environmental harm. By integrating principles of environmental law with human rights obligations, the case highlights the transformative potential of judicial action in addressing corporate accountability. While the judgment sets a precedent for advancing corporate responsibility, it exposes enduring challenges, including jurisdictional limitations, corporate …

The Right Of Nature: Lessons From Panama For Mangrove Protection In Miami, Jayson Fry

University of Miami Inter-American Law Review

Mangrove ecosystems are indispensable to climate resilience, yet traditional environmental governance has repeatedly failed to prevent their decline. This Note employs a comparative framework to examine Panama and Miami, two rapidly developing coastal regions facing parallel pressures of urbanization and sea-level rise, to demonstrate that mangrove loss persists not because law is absent, but because existing frameworks structurally authorize regulated degradation. Panama’s 2022 Rights of Nature Law, which grants ecosystems legal personhood and enforceable rights, represents a departure from anthropocentric environmental regulation. Its early judicial application in the Cobré Panamá mine case shows how rights-based protections can override extractive economic …

Alaska Dep’T Of Fish And Game V. Federal Subsistence Bd., Mj Fiedler

Public Land & Resources Law Review

A subsistence hunt in Kake, Alaska, during the COVID-19

pandemic sparked a lawsuit from the State of Alaska Department of Fish

and Game challenging the authority of the Federal Subsistence Board to

open the hunt. This lawsuit is a recent addition to a long history of the

State of Alaska’s resistance to federal enforcement of the Alaska National

Interest Lands Conservation Act provision establishing priority for rural

subsistence users. The Ninth Circuit ultimately affirmed the Federal

Subsistence Board’s authority to open the subsistence hunt.

"The Silence Of The Farms": Suppressing Speech And Trampling Transparency To Shield Big Ag, Erin Okuno

Texas A&M Law Review

Do you really know where your last meal came from and whether it was safe to eat? Most people are not aware of the often appalling conditions at agricultural production facilities (aptly known as “factory farms”), including worker injuries and abuse, contaminated food, and environmental pollution, as well as the horrific ways in which the animals are kept, raised, and slaughtered. In the face of these concerning conditions and alarmingly frequent food recalls—including millions of pounds of contaminated meat—it would seem prudent to increase transparency at factory farms, but historically, they have operated behind a shield of secrecy due to …

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 …

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 …

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 …

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 …

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 …

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 …