Environmental Law Commons^™

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Talking Trash: The Development Of International Legal Governance Over Marine Plastic Pollution, Olivia B. Berryman

Global Tides

Increasing amounts of marine plastic pollution entering into the ocean endangers the lives of sea animals, harms the health of human seafood consumers, degrades the marine ecosystem, and contributes to climate change. Despite these consequences, there remains no international legally binding treaty that is solely devoted towards mitigating marine plastic pollution. While there are current treaties in place that have created some regulations to control the entrance of marine plastics into the ocean, none have achieved significant reduction and prevention of the issue due to flaws such as weak enforcement mechanisms and lenient restrictions on ocean dumping. Thus, this research …

Changemakers: Julia Meskis '25 : 3l : Protecting The Waters 4-10-2025, Andrew Clark

Life of the Law School (1993- )

No abstract provided.

Federal Preemption In Airport Noise Abatement Regulation: Of Federal And State Power, Maine Law Review

Maine Law Review

The growth of air commerce in the United States has been characterized by the use of jet aircraft which has led to frequent litigation by local governments and their citizens attempting to abate the increased aircraft noise. Although from the inception of airflight there has been conflict between localities and the aviation industry over the noise produced by aircraft operations, the present conflict dates from the late 1950s when private air carriers first introduced pure-jet aircraft to the nation's civil airports. While the noise emitted from jet aircraft, measured in decibels, is not necessarily louder, it is of a higher …

Strategic Insights From Antarctic Mpas: Navigating The Future Framework For High Seas Mpas Under The Bbnj Agreement, Alyssa Huffman

University of Miami International and Comparative Law Review

Current area-based management systems regulate only about 1.18% of the high seas, leaving highly migratory fish species at risk of overexploitation. As a result, new legal mechanisms are essential for protecting and managing high seas fisheries. In recent decades, stakeholders have debated how to balance competing interests while ensuring equitable and sustainable access to areas beyond national jurisdiction. One proposed solution is the establishment of Marine Protected Areas (MPAs). However, creating and managing high seas MPAs is a complex process. The Parties to the Convention on the Conservation of Antarctic Marine Living Resources have undertaken this effort, establishing two MPAs …

To Infinity And Beyond (And Beyond): The Legal And Ethical Imperative For Rocket Reusability, Matthew Lumia

Duke Law & Technology Review

Although the Space Shuttle’s first flight was in the 1980s, reusable rocket technology did not achieve mainstream viability until SpaceX’s reusable Falcon 9 rocket revolutionized access to space. This note argues that transitioning to reusable rocket technology is not only a practical and economic advancement, but also a legal and ethical imperative. By analyzing reusable rockets through the “due regard” framework of the Outer Space Treaty, this note demonstrates how reusable rockets mitigate space debris, expand access to space, and can reduce environmental harm. Additionally, reusable rockets address critical ethical concerns by lowering barriers to space exploration, allowing the benefits …

Liability For Maritime Oil Pollution: A Comparison Of The Maine Coastal Conveyance Act With Federal Liability Provisions, Maine Law Review

Maine Law Review

The increasing involvement of coastal states in the regulation of oil pollution within their territorial waters has raised serious questions about the constitutional validity of state legislation imposing liability on parties responsible for unlawful oil discharges. The admiralty clause of the United States Constitution provides that the judicial power of the United States extends to "all cases of admiralty and maritime jurisdiction." This grant to federal courts of original jurisdiction over all admiralty or maritime cases has been construed to be more than a grant of judicial competence. The United States Supreme Court has interpreted the admiralty clause to incorporate …

New York's Constitutional Guarantee Of Environmental Rights, Katrina Fischer Kuh, Nicholas A. Robinson, Scott Fein

Elisabeth Haub School of Law Faculty Publications

New York is embarking on the interpretation and implementation of potentially transformative constitutional reform, the addition of Article I, § 19 to New York’s Bill of Rights, which provides that “Each person shall have the right to clean air and water, and a healthful environment.” To ensure the fulsome and effective implementation of Article I, § 19, and give effect to the intent of the legislators and voters who adopted it, it will be important to provide substantive guidance to courts, government actors, and litigants in the interpretation and application of the new constitutional text. In Pennsylvania and other states, …

Stars, Stripes, And Pills: The Stock Narratives That Blind, Michelle Wilde Anderson

West Virginia Law Review

No abstract provided.

Five Prairie Reflections On Reviving Rural America, Hannah Haksgaard, Sean Kammer, Travis L. Letellier

West Virginia Law Review

This Essay offers five reflections on Ann E. Eisenberg’s book Reviving Rural America: Toward Policies for Resilience. Each reflection approaches the book from the positionality of writing from rural America, specifically the prairies of South Dakota. Collectively, the reflections cover the politics of voting in a red rural state, policies of local municipal government, the central economic principles in the book, the presence of energy production in rural America, and environmentalism’s relevancy and impact.

Streamlining Wildlife Regulation, Robert L. Fischman

Michigan Journal of Environmental & Administrative Law

A recent burst of revisions in the bedrock regulations governing projects that may adversely affect wildlife represents a generational shift in policy. Streamlining federal decision -making drove much of this reform. Streamlining offers a path to address climate change without abandoning a longstanding commitment to wildlife conservation. The conservation community recognizes the need to build new infrastructure to reduce the rate of climate change through air emissions. The most urgent priority is decarbonizing the electrical ~rid through renewable energy generation and a better transmission network. Adaptation to the "new abnormal" of climate-driven environmental disruption demands federal approvals for a host …

Lead Telecommunications Cables: A Call For Concern?, Zachary Young

Michigan Journal of Environmental & Administrative Law

From the late 1800s until the 1950s, telecommunication companies across the United States utilized lead casing to protect their telecommunication lines. As technology developed and different types of plastic coatings were created, telecommunication companies phased out the use of lead cables. However, the lead cables remain in the air and buried in the ground, even continuing to provide telephone service for some. The failure to remove these cables, most of which are not in use anymore, has generated a slew of issues for the modem-day telecommunication companies that have inherited these cables from their predecessors. As the protective casing decays, …

Scientific Educations Among U.S. Judges, Christa Laser

Law Faculty Articles and Essays

Should more judges have technical and scientific educations than are currently prevalent in the federal judiciary? This empirical study of the educational background of federal judges reports the undergraduate and graduate majors of active U.S. federal Article III judges. Information on the subject area of study is largely not publicly available, especially for judges appointed decades ago. This is the first and only publicly available research study of the subject areas of study of U.S. judges, collected via phone and email surveys to U.S. judges. The results of this study show that only 7.35% offederal judges have majors in science …

Local Environmental Impacts Of Data Center Proliferation, Reid Lifset, Pranava Raparla, Amy L. Stein, Lauren Bridges, Jim Mcelfish, Tim Cywinski

UF Law Faculty Publications

Demand for data centers is increasing worldwide, raising questions about the electric grid, the transition to renewable energy, and distribution infrastructure. Northern Virginia is home to data centers that process nearly 70% of global digital traffic, leading officials to call for construction, at ratepayers’ expense, of new power plants and new transmission lines across four states, as well as the continued operation of coal-powered plants that had been scheduled to go offline. On December 6, 2024, the Environmental Law Institute and the Network for Digital Economy and the Environment co-hosted a panel of experts who examined the environmental impacts and …

Labor And Environment Entwined: A Radical Green New Deal And Just Transition In Appalachia, Anne Marie Lofaso, Nicholas F. Stump

West Virginia Law Review

In this Article, Professor Lofaso and Professor Stump propose a genuinely transformative Green New Deal and Just Transition in Appalachia. The Article opens by tracing the long history of the Appalachian labor and environmental movements. Next, the Article interrogates the common contention that the Appalachian environmental and labor movements are opposed. While this contention has substantial truth, more complex forces have been at work in the region. Fossil fuel industry elites, for instance, have wielded exaggerated “jobs versus environment” rhetoric to maximize profits and quash emergent solidarities among local workers, residents, and activists. This Article contends that a key solution …

Lobbying For Our Lives: A Comprehensive Analysis Of The Impact Of Restrictive Non-Profit Lobbying Rules On The Progression Of Climate Change Legislation, Natalia Akopian

University of the District of Columbia Law Review

Lobbying is a powerful tool that allows interest groups to influence lawmakers and shape policy decisions. However, the ability to effectively lobby is not evenly distributed among stakeholders. Generally, private businesses face minimal restrictions on lobbying while tax-exempt organizations, particularly non-profits advocating for environmental policies, operate under strict federal limitations on lobbying activities and expenditures. This structural disparity has created an uneven playing field where corporate interests, such as the fossil fuel industry, wield disproportionate influence over climate policy. As a result, climate-friendly legislation often struggles to gain traction despite the public’s growing concern over environmental issues.

This note examines …

Encouraging Expanded Producer Responsibility In Agricultural Labor Relations, Emma I. Scott

William & Mary Environmental Law and Policy Review

Over two million farmworkers provide essential support to the country’s food system. As detailed below, their current working conditions, living conditions, and legal protections do not reflect the importance of their contributions. As regulations and enforcement have fallen short in securing their rights and economic position, public incentive schemes can encourage improvements and equip grower-employers to reverse the race to the bottom and instead become leaders in providing dignified work opportunities. This Article looks at recent attempts and opportunities to leverage federal policies and programs to incentivize this type of leadership. It proposes that the U.S. Department of Agriculture (USDA) …

Goldilocks And The Three Frameworks: An Argument For A Hybrid Approach To Regulating Fusion Energy Systems, Mitch Boyer

William & Mary Environmental Law and Policy Review

Part I will explore the beginnings of nuclear power regulation in the United States by outlining the short lifespan of the Atomic Energy Commission (AEC), the NRC’s [Nuclear Regulatory Commission's] predecessor, and why the Agency’s two competing directives of protecting public safety and encouraging industry development eventually led to its dissolution in 1974. The subsequent separation and assignment of these directives to newly created agencies— safety to the Nuclear Regulatory Commission and development to the Energy Research and Development Administration—demonstrates that the NRC’s primary statutory directive is regulating nuclear power safely. Part II will delve into the early days of …

Envisioning A Duty Of Directors To Link Executive Compensation To Climate Change: Lessons From Europe, Alberto R. Salazar V.

William & Mary Environmental Law and Policy Review

The practice of tying executive compensation to climate change goals has gained some traction. However, designing a duty of directors to link executive pay to climate change objectives poses significant challenges. Some lessons can be drawn from countries attempting to establish such a duty. This Article examines Europe’s Corporate Sustainability Due Diligence Directive (CSDDD) and its negotiation process and draws insights for effectively crafting such a duty. The CSDDD, which entered into force on July 25, 2024, mandates large companies operating in Europe to conduct due diligence on human rights and environmental impacts with respect to their own operations and …

The Cost Of Capital: Lowering The Cost Of Capital For Climate And Sdg Finance In Emerging Markets And Developing Economies (Emdes), Jeffrey D. Sachs, Lisa E. Sachs, Ana M. Camelo Vega, Bradford M. Willis

Columbia Center on Sustainable Investment

Today, some of the world's fastest-growing economies face some of the highest borrowing costs – even for clean energy and development projects with strong fundamentals. This is not a function of global capital scarcity. Trillions are available. The problem lies in systemic barriers that prevent capital from flowing to where it’s most urgently needed. The high cost of capital in EMDEs not only undermines critical financing for the energy transition and sustainable development; it also limits the ability for US- and EU-based financial institutions to invest in and finance projects in EMDEs, despite institutional and stakeholder appetite and interest for …

Climate Resilient Development Concepts And Local Realities: Challenges Surrounding International Initiatives, Local Jurisdictions, And The Implications Of Geographic Scale, Joe Budd

Dissertations & Theses

Climate-based discussions have been occurring for decades and have almost always become political lightning rods. Recently, the Intergovernmental Panel on Climate Change expanded on previous dialogue related to infrastructure and development, articulating a new concept called Climate Resilient Development or “CRD.” However, CRD remains a somewhat elusive and undefined proposal, and often requires historical context or further research to fully conceptualize in a local setting. In Wyoming, the complex mixture of jurisdictions and legal rules guiding local governments are difficult to untangle and rarely contemplated in the aggregate. Wyoming counties still operate under a form of Dillon’s Rule, while municipalities …

Dirty Water, Breanna Booker, Michael S. Sinha

William & Mary Environmental Law and Policy Review

There are tens of thousands of unregulated industrial substances manufactured and used in the United States. This Article focuses on three specific to plastic and its manufacturing process: microplastics, phthalates, and BPAs. These substances have been attributed to many known health harms and potentially more that have yet to be identified. The research is still nascent and continues to evolve, but what we do know is who is creating the problem. From big oil companies and plastics manufacturers, to creators of textiles and tires, to investors who all contribute to the problem, how can we hold these accountable for the …

Stopping A Cat-Tastrophe: States Must Develop Stricter Management Regimes For Controlling Feral Cat Populations, J. Cameron Niemeyer

William & Mary Environmental Law and Policy Review

This Note will explore the feral cat crisis in the United States and offer a set of potential solutions using existing regulatory frameworks and invasive species management regimes. Part I will discuss what invasive species are and how feral cats fit into the wider problem of invasive species. Part II will then provide an overview of the current statutes, rules, and decisions that govern invasive species management in the United States. Part III will provide an overview of the management techniques for several common invasive species in the country, and compare those techniques to how the United States manages feral …

Assessing The Accelerated Threat Of Bioterrorism In The Age Of Ai, Janelle Radcliffe

William & Mary Environmental Law and Policy Review

This Note argues that the accelerated use and growth of easily accessible artificial intelligence systems will result in malicious individuals using artificial intelligence to engage in acts of bioterrorism. Part I will discuss how artificial intelligence works generally. Part II will discuss how AI can be used in carrying out attacks of bioterrorism. Part III will discuss suggested governmental regulations, including the creation of a new Data Privacy, Cybersecurity, and Artificial Intelligence Regulating Department that can conduct the evaluation and limitation of publicly available information, use threat modeling to strengthen biosecurity measures, make artificial intelligence use in terrorism a criminal …

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, …

The Climate Whisperers, Cale Jaffe

Michigan Journal of Environmental & Administrative Law

Environmental groups and their allies have seen two of the bedrock statutes of modern environmental law (the Clean Air Act, Clean Water Act) eroded through recent decisions from the Supreme Court. At the same time, political polarization around climate policy- the gap between Republicans and Democrats on whether worsening global warming merits a response- is wider than it has ever been.

Despite these dispiriting headwinds, there are some encouraging counterpoints of recent climate progress in politically conservative communities. The heart of this essay is simply sharing these stories so we can learn from them. I label the advocates who succeeded …

Drawing Lines In The Sand: Armed Conflict, Climate Damage And Setbacks To Climate Action, Beatrice L. Hamilton

Michigan Journal of Environmental & Administrative Law

Armed conflicts have a significant and detrimental effect on the climate system, with considerable implications for efforts to mitigate and adapt to climate change and the civilian population. Yet the environmental provisions under the law of armed conflict (LOAC), drafted some half a century ago, struggle to adequately address these concerns. This article assesses the capacity of LOAC to address conflict-driven climate damage and its cascading impacts by characterizing these harms as environmental damage and as injury to civilians. The analysis highlights opportunities for broadening LOA C's scope and offers recommendations to enhance its capacity to address climate damage and …