Environmental Policy Commons^™

Incidental Take Under The Migratory Bird Treaty Act And How To Share The Skies, Erika Bosack

William & Mary Environmental Law and Policy Review

This Note will focus on one piece of legislation that can protect birds from wind turbines: the Migratory Bird Treaty Act of 1918 (“MBTA” or “the Act”). The MBTA makes it illegal to hunt, kill, capture, import, export, sell, buy, pursue, possess, transport, or take a bird on the list of protected species, which covers hundreds of types of birds as well as their nests and eggs. The law forbids these acts in any manner, by any means, and at any time. The text itself does not explicitly state whether intentional and unintentional acts should both carry liability, which has …

Striving For Resilience In Virginia's Transportation Sector, Elizabeth H. Davis, Jacob Haddad, Bryce Ballard

Virginia Coastal Policy Center

To help address the need for increased resiliency in the Commonwealth’s transportation sector, and in furtherance of the goals set forth in the VDOT [Virginia Department of Transportation] Resilience Plan, this white paper highlights green infrastructure and natural and nature-based features as ways to increase resilience for transportation infrastructure and mitigating impacts from climate change. Additionally, this paper describes potential methods of incorporating resilient best practices with respect to Virginia’s transportation infrastructure and planning decisions.

This abstract has been taken from the paper's Section I, Background.

Natural Carbon Sequestration In The Commonwealth, Carbon Sequestration Task Force, Virginia Coastal Policy Center, William & Mary Law School, Virginia Institute Of Marine Science

Virginia Coastal Policy Center

The Virginia General Assembly created the Carbon Sequestration Task Force in 2021 to examine the feasibility and potential to increase carbon sequestration in the Commonwealth. Specifically, the Task Force must (i) consider possible methods of increasing carbon sequestration within the natural environment through state land and marine resources use policies; agricultural, aquacultural, and silvicultural practices; and other practices to achieve natural resources restoration and long-term conservation; (ii) recommend short-term and long-term benchmarks for increasing carbon sequestration; (iii) develop a standardized methodology to establish baseline carbon levels and account for increases in carbon sequestration over time; (iv) identify existing carbon markets …

Law On The Half Shell: Applying A Right-To-Farm Framework To Virginia's Aquaculture Industry, Matt Woodward, Andrew Corso

William & Mary Environmental Law and Policy Review

Adapting the state’s existing RTF [Right-to-Farm] regime to include aquaculture has the potential to help Virginia navigate an array of economic and legal challenges. This Article examines the intersection of RTF law and aquaculture and discusses the role that RTF law may play in encouraging Virginia’s expanding aquaculture industry. Part I offers an overview of RTF laws and their operation in Virginia. Part II discusses aquaculture generally and Virginia’s expanding aquaculture industry. Part III documents problems faced by aquaculture producers in Virginia under Virginia’s existing RTF law. Part IV details related challenges facing the industry. Part V concludes by detailing …

(Re)Empowering The Community: A Case Study Of Namibia's Legal Evolution Of Wildlife Governance, Stefan Carpenter

William & Mary Environmental Law and Policy Review

This Article will introduce the theoretical foundation of the CBC [Community-Based Conservation] approach. It will then use Namibia as a case study to both: (a) illustrate the sort of historical, political, and economic drivers that motivate the adoption of CBC across the global south, and (b) highlight the existence of potential structural weaknesses present in even the most lauded CBC programs. Finally, this Article will present some of the common theoretical and results-based criticisms of CBC and discuss broader lessons that can be drawn from the Namibian experience. The analyses in this Article draw from academic literature, Namibia’s statutes and …

From The Northern Plains To The Carolina Coast: An Environmental Perspective On Nationwide Injunctions, Daniel Z. Tick

William & Mary Environmental Law and Policy Review

This Note offers a perspective on nationwide injunctions informed by a selection of environmental cases from roughly the last two decades. In doing so, it attempts to draw broader conclusions about when, if ever, federal courts should prohibit the enforcement of environmental policies nationwide. This Note proceeds as follows: Part I defines “nationwide injunction,” discusses the recent history of nationwide injunctions against the federal executive branch, and describes the absence of a clear legal standard governing nationwide relief. Part II examines six environmental cases in which plaintiffs have sought, or federal courts have ordered, nationwide relief. Part III suggests that, …

Diagonal Federalism: How States Should Respond To Inconsistent Federal Climate Change Mitigation Policy, Michael Arnone

William & Mary Environmental Law and Policy Review

This Note will argue that diagonal federalism—a model of governance in which states partner with one another and local governments to pursue shared policy goals—is an ideal response to inconsistent climate change mitigation policy by the Federal Government. Part I provides an overview of the foundations of American environmental policy, how that policy is predicated on federal-state partnership, and the historical precedent for state-led action on climate change mitigation policy. Part II discusses how and why federal environmental policy, and by extension, federal climate change mitigation policy, has been so inconsistent. Part III illustrates how collaboration between the Federal Government …

Flooding Their Mailbox: Recommendations For Notifying Residents Of Changes To Fema Flood Maps, Andrew Major, Alston Underwood

Virginia Coastal Policy Center

No abstract provided.

Planning For A Managed Retreat: Moving In A New Direction, Caitlin Parry, Michael Heard Snow, Ryan Franklin

Virginia Coastal Policy Center

Climate change is altering the United States’ coastline in both subtle and extreme ways. The threat is especially pressing in the Commonwealth of Virginia, which is experiencing sea levels rising faster than the global average. As global sea level rise continues to increase, coastal communities across the country must make difficult decisions about their futures. Instead of waging an endless war with the tide, one option for them to consider is the process of managed retreat, which provides a long-term solution by relocating communities away from vulnerable areas. Low to moderate income communities face a variety of additional social and …

Building Towards A Resilient Virginia: Using C-Pace Financing To Improve The Resiliency Of Commercial Buildings, Jessica Kraus, Cesare Piermarini

Virginia Coastal Policy Center

When discussing how to combat problems caused by climate change and rising sea levels, the focus is often on developing and using alternative sources of clean energy. However, while slowing climate change is a worthy goal, it is too late to prevent climate change impacts in many areas in Virginia. Vulnerable flood zones all over the state are already being inundated with periodic flooding. This flooding causes extensive damage to commercial structures in the area. For example, it is estimated that Hurricane Florence alone caused between $200 million and $1 billion in flood damage in Virginia. Commercial property owners can …

Protecting Water Quality In Virginia: Recommendations To Combat Sea Level Rise And Increased Storm Events, Madhavi Kulkarni

Virginia Coastal Policy Center

Impairment of Virginia waters is tied to coastal storm hazards and sea level rise because excess floodwaters are contaminated by flood-exposed industrial and residential facilities, and these toxic floodwaters flow into the state’s water bodies. In Virginia, thousands of industrial facilities can potentially be subjected to the effects of stormwater flooding, hurricane storm surge, and sea level rise, in turn affecting water quality. Failing or unmaintained septic systems also pose a major threat to the quality of Virginia waters that increases with recurrent inundation by flood waters. A combination of changes to law and policy and investment in infrastructure are …

Trash Talk: An Exploration Of The Problem Of Marine Debris And Some Virginia-Specific Solutions, Elizabeth Pindilli

Virginia Coastal Policy Center

In an effort to address the problem of marine debris, the Virginia Coastal Zone Management Program (Virginia CZMP) undertook a planning process that resulted in the Virginia Marine Debris Reduction Plan (VMDRP) in 2014. In light of the policy issues raised in the VMDRP, this paper will explore the issue of marine debris and some possible solutions that can be pursued in Virginia.

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

The Three Ps Of Resilience: Planning, Partnerships, And Paying For It All (Agenda), Virginia Coastal Policy Center, William & Mary Law School

2019, The Three Ps of Resilience: Planning, Partnerships, and Paying For It All

No abstract provided.

Managed Retreat And The Life Estate: A Practical Path Forward For Coastal Communities, Sam Gross

Virginia Coastal Policy Center

This paper focuses on a frequently discussed but rarely implemented solution to sea level rise: “managed retreat” away from at-risk and overdeveloped coastal areas. The paper begins by examining the threat posed by sea level rise through the lens of two contrasting municipalities: Miami, Florida and Nags Head, North Carolina. It then outlines the concept of managed retreat as well as the controversies surrounding this approach. Specifically, it examines the widespread voter hostility to condemnation efforts, the deterrent effect of inevitable legal challenges, and the financial burden of such efforts on cash-strapped municipalities.

After analyzing these hurdles, the paper assesses …

The Creation Of A Virginia Coastal Resilience Development Authority: An Inventory Of State Coastal Resilience Authorities And Funding Mechanisms To Help Guide Virginia, Kristi Gennette

Virginia Coastal Policy Center

In June 2018, Governor Ralph Northam signed legislation creating a cabinet-level position, the Special Assistant to the Governor for Coastal Adaptation and Protection, to lead efforts in addressing coastal resilience and flooding mitigation in Virginia. The following November, Governor Northam signed Executive Order No. 24, which directed the state to increase statewide resilience to natural hazards and extreme weather. This Executive Order directed Virginia to develop a Coastal Resilience Master Plan (CRMP). In order to implement the projects proposed in the CRMP, the Commonwealth will need funding. This paper provides an inventory of various states’ programs for funding coastal resilience …

Water Supply Management In Virginia: Lessons From The West Coast, Kristin Mccarthy

Virginia Coastal Policy Center

This paper first provides a brief overview of the two main water rights doctrines: riparian rights in the east, and prior appropriation in the west, with special emphasis on Virginia’s and California’s water laws. This paper next looks at particularly relevant water supply solutions, including bringing the agriculture industry to the table, implementing aquifer storage and recovery and groundwater trading programs, embracing “One Water” plans, and expanding water budgeting laws in the state. Each section first examines the actions that Virginia has already undertaken, before highlighting examples of success in the west and making recommendations for ways in which Virginia …

The Case For A Mandatory Renewable Portfolio Standard In Virginia: A Case Study Examining Virginia’S Potential For A Mandatory Renewable Portfolio Standard By Comparing Virginia To Maryland And North Carolina, Rebecca Wescott

William & Mary Environmental Law and Policy Review

Since the early 1980s, states have utilized Renewable Energy Portfolio Standards (“RPSs”) as policy mechanisms to “promote broader investment in renewable energy without requiring passage of a comprehensive energy policy measure that includes a pricing mechanism for carbon.” RPS policies can be drafted in one of two ways: (1) as a mandatory RPS, a legal mandate on what percentage of a state’s power portfolio must come from specific eligible renewable energy sources by a specific date in the future, or (2) as a non-binding or voluntary RPS, a policy goal that recommends that a certain percentage of a state’s power …

How Science Has Influenced, But Should Now Determine, Environmental Policy, Jan G. Laitos

William & Mary Environmental Law and Policy Review

This is an article about science and environmental law. More specifically, it is an article about two different versions of science, and how each has affected environmental law and the development of environmental policy. The emergence of science-driven environmental law has significantly affected how humans view and respond to the natural world that makes up the biosphere, which is the thin envelope surrounding the Earth that permits the human species to exist. This Article argues that humans, and law-makers, should embrace a different role for science. Instead of science answering “what is” questions, it should also explain the universal laws …

Overcoming Impediments To Shellfish Aquaculture Through Legal Research And Outreach: Case Studies, National Sea Grant College Program, Catherine Janasie, Amanda Nichols, Read Porter, Mitchell Ramic, Jordan Viana, Joseph Bingaman, Elizabeth Andrews, Angela King, Danielle Goshen, Shana Jones, Lisa Schiavinato, Catherine Courtier, Danielle Goshen

Virginia Coastal Policy Center

More than half of the population of the continental United States resides in coastal communities, which are increasingly home to commercial shellfish aquaculture operations. Consequently, a variety of user conflicts can arise as states seek to encourage the development or expansion of shellfish aquaculture. Each of these conflicts creates the potential for opposition and legal challenges to the industry.

An understanding of the legal and regulatory context governing shellfish aquaculture can assist in managing conflicts related to the industry. Laws and regulations in some cases create or can be perceived as impediments to the growth or success of the aquaculture …

Letter Of Support, Senator Tim Kaine (D-Va), Tim Kaine

2018, Building a Resilient Virginia

No abstract provided.

Letter Of Support, Senator Mark Warner (D-Va), Mark Warner

2018, Building a Resilient Virginia

No abstract provided.

Building A Resilient Virginia (Agenda), Virginia Coastal Policy Center, William & Mary Law School

2018, Building a Resilient Virginia

No abstract provided.

Building A Resilient Virginia, Anthony Cusato, Conor Jennings, Angela King, Virginia Coastal Policy Center, William & Mary Law School

Virginia Coastal Policy Center

No abstract provided.

An Examination Of The Need For Campaign Fianance Reform Through The Lens Of The United States Treaty Clause And Environmental Protection Treaties, Jordan Smith

William & Mary Environmental Law and Policy Review

The United States’ federal election system is constantly the focus of debate, including components from voting mechanisms, to candidate selection, and to the candidates themselves. Unsurprisingly, campaign finance has also been the source of much debate. For decades, scholars, politicians, lawyers, and laypersons have debated the merits and shortcomings of the campaign finance system enumerated in the United States Code. The landmark Citizens United v. Federal Election Commission (“FEC”) decision in 2010, in which the United States Supreme Court equated corporate speech to human speech, merely added fuel to the fire. The considerable volume of scholarship based upon campaign finance …

An Environmental No Man's Land: The Often Overlooked Consequences Of Armed Conflict On The Natural Environment, Evan Frauhiger

William & Mary Environmental Law and Policy Review

No abstract provided.

"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske

William & Mary Environmental Law and Policy Review

No abstract provided.

Incentive Compatible Climate Change Mitigation: Moving Beyond The Pledge And Review Model, Gabriel Weil

William & Mary Environmental Law and Policy Review

Climate change represents a global commons problem, where individuals, businesses, and nation-states all lack sufficient incentives to reduce their greenhouse gas emissions to levels consistent with meeting their collectively agreed upon mitigation goals. The current “pledge and review” paradigm for global climate change mitigation, which many see as a major breakthrough, relies primarily on moral pressure, reputational incentives, and global public opinion to foster cooperation on mitigation efforts over and above those driven by maximization of narrow conceptions of national interests. Given the scale of the emissions reductions required to meet stated mitigation goals, the substantial economic costs of deep …

The Environment And Nafta Policy Debate Redux: Separating Rhetoric From Reality, Linda J. Allen

William & Mary Environmental Law and Policy Review

No abstract provided.

Institutionalizing Resilience In U.S. Universities: Prospects, Opportunities, And Models, Morris Foster, James O'Donnell, Mark Luckenbach, Elizabeth Andrews, Emily Steinhilber, John Wells, Mark Davis

Faculty Publications

No abstract provided.

Translating Legal Norms Into Quantitative Indicators: Lessons From The Global Water, Sanitation, And Hygiene Sector, Sharmila L. Murthy

William & Mary Environmental Law and Policy Review

No abstract provided.