Environmental Policy Commons^™

Using Markets To Decarbonize, Jonathan H. Adler

Popular Media

"Traditional environmental regulation is not powerful enough for problems on the scale of climate change."

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 …

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 …

Leading The Charge: How Increased Adoption Of Electric Vehicles Renews Calls For Data Privacy Protection In The United States, Patrick Rogers

William & Mary Environmental Law and Policy Review

This Note will examine the privacy risks associated with constructing the nationwide [electric vehicle] EV charging network and propose solutions to mitigate this risk. Part I of this Note will discuss the Biden Administration’s climate policy and legislation and focus on the transportation sector. Part II will explain EV charging and expound on the cybersecurity and privacy concerns of the charging process. Part III will survey the current regulatory landscape at the federal level and highlight California’s approach to data privacy. Finally, Part IV examines recently proposed federal and model state legislation in light of the Fair Information Practice Principles …

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. …

Regulating Co2 Emissions Post-West Virginia V. Environmental Protection Agency, Rebecca J. Davis, Justin Blount

William & Mary Environmental Law and Policy Review

In West Virginia v. Environmental Protection Agency, the Supreme Court expressly adopted the major questions doctrine and used it to invalidate the Clean Power Plan, a rule intended to reduce carbon dioxide emissions from power plants. This opinion has been controversial and has left many commentators concerned that it may hamper the ability of administrative agencies to aggressively and flexibly regulate.

This Article analyzes this opinion and the impact it may have on ongoing efforts to regulate carbon dioxide emissions at the federal level. It then examines economic theory underpinning environmental regulation, developing technologies to reduce carbon dioxide emissions, …

Sea Level Rise And Vulnerable Infrastructure: Wastewater, Virginia Coastal Policy Center, William & Mary Law School, Virginia Institute Of Marine Science

Virginia Coastal Policy Center

No abstract provided.

Sea Level Rise And Vulnerable Infrastructure: Roads, Virginia Coastal Policy Center, William & Mary Law School, Virginia Institute Of Marine Science

Virginia Coastal Policy Center

No abstract provided.

Sea Level Rise And Vulnerable Infrastructure: Wells, Virginia Coastal Policy Center, William & Mary Law School, Virginia Institute Of Marine Science

Virginia Coastal Policy Center

No abstract provided.

The Need For Additional Landslide Regulation: Examining Flooding Through A Case Study, Kristen Gartner

William & Mary Environmental Law and Policy Review

Natural disasters are increasing at an alarming rate. As of this writing, the top five deadliest disasters occurred after 1970, and the top five most economically devastating occurred in the years since 2005, with three of them occurring in 2017. These increasing storms are exacerbated by the worsening of climate change and global warming. The problem will continue to increase if federal and state governments fail to properly regulate and prepare for these natural disasters. This Note will specifically discuss the regulation and prevention of landslides by comparing them to the regulation of flooding. Other examples of natural disaster regulation …

Environmental Assessment In A Time Of Rapid Change And High Uncertainty: The Addition Of Resilience Assessment To Nepa, Bronson J. Pace, Barbara A. Cosens

William & Mary Environmental Law and Policy Review

This Article turns to ecological resilience theory to understand the behavior of SES [socioecological system] undergoing change. Informed by the emergent and surprising behavior of these complex systems, this Article argues for the option of resilience assessment under NEPA [National Environmental Policy Act] for use in application to climate adaptation measures in the United States. The amendment also provides an alternative approach to pre-project judicial review to ensure legitimacy within a more flexible process.

To this end, Part I addresses why an alternative approach to environmental assessment is needed in the context of climate adaptation by providing an overview of …

The Tide's Coming In: A New Case For Beachfront Property Rights In South Carolina, Alex Boone

William & Mary Environmental Law and Policy Review

Part I of this Note explores the scientific data as it relates to the impending consequences of climate change on South Carolina’s coast and will introduce the disastrous scenarios that are predicted to arise as a result of rising sea levels and the accelerating strength and severity of extreme weather events. Part II compares the effectiveness of various coastal resiliency tools and highlights the regulatory framework that prohibits their use by beachfront property owners. Part III explores the topic of regulatory takings and their indirect prophylactic nature of protecting citizens from regulatory overreach and offers a case for a South …

Disclosing Esg Matters: Advancing Nonfinancial Policy Through The Sec, Anna Bailey

William & Mary Environmental Law and Policy Review

This Note argues that mandatory ESG [environmental, social, and governance] disclosure would be a valuable step in the larger fight against the deleterious effects of climate change. First, standardized disclosure would provide investors a better understanding of the climate risks associated with their investments by increasing the quality of that information supplied. This standardization would be a valuable driver in corporate behavior because mandated disclosure tends to result in shifts in corporate behavior. Previous examples of disclosure for nonfinancial risks, such as disclosure relating to state sponsors of terrorism and use of conflict minerals, illuminate how mandating ESG disclosure will …

The African Century: Renewable Energy Opportunities In Sub-Saharan Africa, Joshua Mackinnon

William & Mary Environmental Law and Policy Review

Even if the world’s developed nations are able to curb their carbon emissions in the coming years, major hurdles will still exist. One such hurdle is fulfilling energy needs in urbanizing areas, like sub-Saharan Africa. Many global regions are urbanizing but none as rapidly as sub- Saharan Africa. The global share of Africa’s urban residents is expected to grow from 11.3% in 2010 to 20.2% by 2050.

[...]

While sub-Saharan African countries have peculiar social and economic characteristics, there are common elements that allow this Note to focus on the region as a whole. This general approach can be adjusted …

Sargassum Systems: A Comparative Analysis Of Policy Responses To The New Caribbean Seaweed Crisis, Leo Jobsis Rossignol

William & Mary Environmental Law and Policy Review

In light of the emerging policy responses to the Caribbean Sargassum crisis, it is crucial that in-depth comparative studies be taken to understand the effectiveness of those policies and their common characteristics. With that resource, policymakers will be able to learn from their neighbors more quickly and reduce the damage done by future Sargassum events, as well as adopt more unified data standards.

The United States has been slow to respond, despite the increasing damage to its Caribbean dependencies, like the U.S. Virgin Islands and Puerto Rico. This Note will show that because this problem is international in scope, the …

Climate Entrenchment In Unstable Legal Regimes, Martin Lockman

Faculty Publications

American climate law is the subject of serious and ongoing debate, and policy change is part of the ordinary process of democratic governance. However, in recent years some policymakers have deliberately undermined climate action by injecting legal instability into American climate law. This Essay addresses a simple question: how can Americans build necessary climate infrastructure in the face of an unstable political and legal regime?

Some readers may be shocked by this question. Indeed, this framing is intentionally provocative. However, this Essay recognizes a simple fact: not all American polities, and not all American policymakers, are trustworthy and predictable partners …

A Proposed Tourism Cap On The Galapagos Islands: Beyond The Wildlife, Hannah M. Robertson

William & Mary Environmental Law and Policy Review

Scientists have pleaded to both Galápagos and Ecuadorian officials to impose a tourism cap on land-based tourism to protect the biodiversity of the Islands. However, these proposals have offered little to no means of addressing the economic concerns or offsetting the impact a tourism cap would have on key revenue-producing industries and locals. Because of this, proposals for land-based tourism caps have gained little traction within Ecuador and the Galápagos.

This Note should serve as a guide for assessing what tourist restrictions are possible and how those restrictions would be implemented. Part I begins with an overview of the environmental …

Decentralizing Sustainably -- How Blockchain Can Benefit Environmental Goals, Logan J. Losito

William & Mary Environmental Law and Policy Review

[...] As presented in this Note, with a lack of clear guidance, disparate legislation from U.S. states continues to form a patchwork approach of policy to the topic of blockchain, with notably little attention paid towards environmentally sustainable practices. While this transpires across the states, sentiments from members of the federal legislative and, most recently, the executive branches of government express priorities in two areas when developing policy on the matter.

As this Note will outline, the concerns are generally over the sustainability of cryptocurrency mining practices and the potential for blockchain innovation to benefit environmental sustainability goals. However, while …

Developing Solar Energy In Rural Virginia: An Analysis Of Legal, Environmental, And Policy Issues, Reza Kameli, Sun Shen

Virginia Coastal Policy Center

This paper focuses on the legal, environmental, land use, and policy issues associated with developing solar energy projects in Virginia, with a particular focus on large-scale installations in rural areas. Part II discusses state laws, regulations, and recent legislative actions that relate to solar development, including the Virginia Stormwater Management Act and Erosion and Sediment Control Law. Part III reviews local strategies for managing solar development, including comprehensive plans, ordinances, siting agreements, and conditional use permits. Part IV addresses the challenges localities may face when balancing land preservation and Virginia’s ambitious clean energy goals. Finally, Part V provides recommendations for …

A Study Of Tribal Communication Frameworks: Some Approaches To Building Partnerships Between Tribal, State, And Local Governments In Virginia, Karly Newcomb, Abigail Sisti

Virginia Coastal Policy Center

This paper discusses options the Commonwealth could consider when evaluating decision-making processes that affect tribes in Virginia, with the goal of improving communication and collaboration between tribal, state, and local governments; and will highlight key case studies from other states and localities that provide precedents. The following options are based on a framework of free, prior, and informed consent, which emphasizes self-determination and an individual right to pursue economic, social, and cultural development. This framework can be applied to decision making and projects for any topic. Moving forward, government-to-government communication will be key to developing solutions to pressing issues such …

Tribal Communities And State And Local Governments: Existing Relationships, Mikayla Mangle

Virginia Coastal Policy Center

Tribal and state/local governments have maintained a unique and crucial relationship throughout the United States’ history. Today, state and federally recognized Tribes sometimes face obstacles when attempting to implement projects due to state or local government opposition and vice versa. Federally recognized Tribes are sovereign, self-governing entities on equal footing with state governments. State recognized tribes, on the other hand, may not be equal to state governments, depending on the state laws regarding tribal state recognition. State recognized tribes do not have the same benefits as federally recognized tribes in that the tribe’s status is recognized by the state but …

In-Lieu Fee Program Case Studies: Lessons Learned For Potentially Expanding In-Lieu Fee Habitat Coverage In Virginia, Erika Bosack, Luke Miller

Virginia Coastal Policy Center

This white paper contains case studies of coastal ILF [in-lieu fee] programs across the United States: Maine Natural Resources Conservation Program (“MNRCP”), Northwest Florida Water Management District (“NWFWMD”) ILF Program, Keys Restoration Fund (“KRF”), Sacramento District California ILF Program, Maryland Department of the Environment ILF Program, and Virginia Aquatic Resources Trust Fund (“VARTF”). The Conclusion will provide general recommendations and questions to consider in deciding whether and how to implement an in-lieu fee program for wildlife habitats in Virginia. Each program has a unique regulatory structure and method for selecting projects on which to spend their funds. The programs do …

Protecting Terrapins With Teds In Virginia: Lessons From Other States, Bridget Verrekia, Shelby Fuchs

Virginia Coastal Policy Center

This paper highlights case studies about other states' efforts to require or incentivize the use of TEDs [terrapin excluder devices] and recommends policies for Virginia to adopt that have proven successful elsewhere. First, it outlines the threats to terrapins at large, as well as the threat posed by commercial and recreational crabbing, specifically. Next, it details the efforts that other East Coast states have made to combat the problem, including policies that require or incentivize the use of TEDs on crab pots, and discusses the regulatory framework currently in place in Virginia. Finally, this paper concludes by analyzing the approaches …

Abandoned And Derelict Vessels In The Commonwealth: How To Improve Virginia's Adv Program, Anthony Cusato

Virginia Coastal Policy Center

Vessels abandoned or lost by their owners can get stuck on a shoreline or in a marsh, aimlessly float adrift, or sink in a waterway. As the number of ADVs [abandoned and derelict vessels] increases, efforts to address them similarly intensify. Typically, state government agencies handle most ADVs, and their approaches to ADV control and removal vary widely across jurisdictions. Virginia faces an increasing number of ADVs and can learn from other states to improve its approach. This paper examines the current Virginia ADV program and considers how it can be amended to make it more effective. It then identifies …

Tribal Resilience And Community Plans: A Primer For Tribal Communities Looking To Create Their Own, Karly Newcomb

Virginia Coastal Policy Center

This paper serves as an overview of various Tribal resilience plans across the nation and community planning efforts in Virginia. Although each plan is particularly detailed to address one locality’s specified areas of concern, the plans are fully adaptable to meet any community’s particular needs. Additionally, the paper includes a synthesis of commonalities that these plans share with the goal of providing an overview of resilience plan options and strategies that can be used as a framework for Tribal communities looking to create their own plans.

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

Expanding Renewable Energy Tax Credits To Tribal Governments: How Current Legislative Proposals Will Benefit Tribes And Their Members In Their Continued Efforts To Address Climate Change, Ben Reiter

William & Mary Environmental Law and Policy Review

Part I of this Article will review the history of renewable energy tax credits in this country and how they have played such a prominent role in the United States’ efforts to address climate change. Part II of this Article will describe BBBA’s [Build Back Better Act] proposal to broaden the scope of entities— including Tribes—that can take advantage of renewable energy tax credits. Finally, Part III of this Article will argue that Tribes are uniquely positioned to take advantage of BBBA’s renewable energy tax credit direct pay proposal based on their demonstrated leadership in combating climate change, the significant …

Racism And Toxic Burden In Rural Dixie, Mary Finley-Brook, Environmental Justice Researchers

William & Mary Environmental Law and Policy Review

Rural pollution hotspots receive inadequate attention during impact assessments: low population density is strategically used to suggest rural areas lack critical importance. Local resistance led to a legal victory for Union Hill, Virginia, where a door-to-door household study of demographics and family heritage exposed data inequities and biases in state practices, establishing a precedent for attention to environmental injustice and disproportionate cumulative impacts on rural majority Black communities. Critical legal geographies of cases from Buckingham, Pittsylvania, and Charles City Counties in the Commonwealth of Virginia document patterns in the ways fossil fuel ‘sacrifice zones’ intersect with historic colonialism in rural …

Quality Control: Potomac Riverkeeper V. Wheeler & Standards For Qualitative Citizen Water Quality Data In Virginia, Jacqueline Goodrum

William & Mary Environmental Law and Policy Review

This Article explores the issue of quality of citizen data through the lens of Potomac Riverkeeper v. Wheeler, a recent impaired waters listing case concerning the Shenandoah River in Virginia. Part I of this Article provides a brief overview of citizen science data in regulation and policymaking under the CWA. Part II discusses Potomac Riverkeeper v. Wheeler, examining Virginia’s water quality-related data standards and DEQ’s use (and non-use) of citizen water quality-related data and information in that case. Finally, Part III argues that Virginia should establish clear, reasonable, and specific data quality standards for qualitative citizen data so …

Stuck In The Net: Promoting Global Shark And Ray Populations Through National Sustainability Import Laws, Kelsey Peden

William & Mary Environmental Law and Policy Review

Shark and ray populations are crucial to a healthy oceanic ecosystem, but regulation of harm is difficult to manage for these highly migratory species. The massive decline of shark and ray populations has triggered an international response, including collaborative protections against the overharvest and sale of endangered groups. However, recent studies show that protections must extend past direct harvest because an estimated thirty to fifty percent of population kills occur through “accidental by-catch” in the fishing process. The United States has attempted to fill some of the missing protections for sharks in national waters, as well as to implement bans …