Environmental Law Commons^™

The Power Of ‘Net Zero’: Seductive Dispossession On The Critical Minerals Frontier, Dayna Scott

Articles & Book Chapters

This article draws on insights gained from many years of community-engaged work alongside Neskantaga First Nation, a small remote Anishinaabe community in Treaty No.9, whose Indigenous homelands are being pressured by the global thirst for critical minerals. In line with recent writing on 'green extractivism', I detail how mining's new legitimacy in the boreal peatlands of the far north of Ontario, Canada, gained strength over the past decade from a pitch that associates it with battery metals for electric vehicles, and thus the transition to a 'net-zero' economy. The seduction obscures the social and ecological destruction that mining entails, and …

Corrected Amicus Brief Filed By Amici Curiae Law Professors In 25-11612 & 25-11821, William Snape, Delicianna Winders, Patrick Parenteau, Christopher Courchesne, Hope Babcock, Holly Doremus, Paul Boudreaux, Oliver A. Houck, Zygmunt J.B. Plater, Michelle Benedict Nowlin, Daniel Rohlf

Amicus Briefs & Court Filings

STATEMENT OF THE ISSUES: Whether the district court's injunction requiring FDEP to cease Endangered Species Act-violating conduct, obtain an incidental take permit before it continues with the conduct, and implement reasonable protective measures violates principles of cooperative federalism, the Tenth Amendment, or the anti-commandeering doctrine.

Getting Our House In Order: Mapping The Unconstitutional Conditions Doctrine Onto Washington’S Inclusionary Zoning Policies After Sheetz V. County Of El Dorado, John “Jack” Haskins

Washington Law Review

The unconstitutional conditions doctrine dictates what a government can and cannot do when exercising its police powers to promote community interests. Recent Supreme Court jurisprudence highlights a special application of the doctrine in the land use context, with Sheetz v. County of El Dorado recognizing constitutional scrutiny of legislative decisions. After decades of using its own analysis, Washington courts now use the federal approach in these cases. Land use exists at the forefront of Washington policies and the state maintains a sharp focus on the affordable housing crisis. One approach enacted at the local and state level is mandatory inclusionary …

The Esg Paradox: Systemic Resistance And The Crisis Of Corporate Governance, Tawia Ansah

William & Mary Environmental Law and Policy Review

This Article examines a recent lawsuit between ExxonMobil Corporation and its shareholders that contested the definition of “ordinary business operations” under Rule 14a-8 of the Securities & Exchange Act of 1934. Through the lens of Niklas Luhmann’s systems theory particularly his concept of “operational closure,” the analysis reveals how corporate resistance to ESG initiatives reflects deeper systemic patterns in late capitalist governance.

ESG frameworks emerged as a challenge to neoliberal corporate governance, promising to address mounting environmental and social concerns. However, the neoliberal model has responded by both absorbing ESG through “greenwashing” and rejecting its more transformative elements—a pattern that …

Justice In Colorado: Achieving Animal Plaintiffhood Through The State's Common Law, Mason Liddell

William & Mary Environmental Law and Policy Review

The common law of Colorado embraces all of the premises necessary to conclude that non-human animals are legal persons who may bring suits on their own behalf. All that is necessary is for a case to bring those premises together. The state endorses a Hohfeldian understanding of rights and duties, meaning the two concepts are necessarily corollaries. So, humans’ existing statutory duty to avoid being cruel to animals entails that those same animals have a right to be free from cruelty under state statute. Then, premised on a long line of legal philosophy and the state’s understanding of “legal personhood,” …

The Overlooked Case Of October Term 2023: Implications Of Sec V. Jarkesy On Environmental Law, Hayden Miller

William & Mary Environmental Law and Policy Review

In the summer of 2024, the Supreme Court published its opinion in SEC v. Jarkesy. In Jarkesy, the Court held that certain administrative cases must be adjudicated through Article III courts with juries instead of administrative law tribunals. The case involved fraud charges against George Jarkesy, Jr., an investment manager. After a Securities and Exchange Commission (SEC) investigation, the agency alleged that Jarkesy had violated the Securities Exchange Act of 1934. Subsequently, SEC Administrative Law Judges (ALJs) levied civil penalties against Jarkesy for securities fraud. On appeal, the Court held that securities fraud under the Securities Exchange Act …

Table Of Contents (V. 50, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Subsistence As Resistance: Reconceptualizing The Theory Of Progressive Property To Incubate Resistance To Consumerism, D.S. Pensley

William & Mary Environmental Law and Policy Review

This Article reconceptualizes the theory of progressive property by juxtaposing legal theory with the empirical study of a subsistence economy in the U.S. Subarctic. Progressive property holds that owners are bound by obligations to non-owners as a means to achieve human flourishing. The theory is constrained by the primacy of private property in Western thought, and it also lacks the ecological ethic required for sustainability. Drawing from my fieldwork, I suggest that human flourishing must additionally incubate resistance to consumerism.

Federal statute, 16 U.S.C. § 3113, defines subsistence as “the customary and traditional uses by rural Alaska residents of wild, …

Let's Bee Pragmatic: The Economic Case For Neonicotinoid Regulation In Conservative States, Annie Rosenstein

William & Mary Environmental Law and Policy Review

The importance of bees in our ecosystem and to our food system in the United States cannot be overstated. In fact, 35% of global crop production depends on bees and other pollinating insects. Pollinators not only influence the production of many foods that we hold dear and rely on, such as apples, chocolate, potatoes, and coffee, but also influence the quality of these products.

Currently, the most insidious threat against bees in the United States is neonicotinoid pesticides (neonics). While neonics are effective at killing the target populations of beetles, aphids, and flies, they are equally effective at killing pollinators, …

Environmental Bankers: States Are Billing Fossil Fuel Companies For Extreme Weather Disasters, Kelly A. Adam

William & Mary Environmental Law and Policy Review

For decades, common law has been the pathway to remediation for environmental tragedies. Victims of traditional environmental harms can pursue justice through legal challenges like nuisance, negligence, and violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, climate change–induced natural disasters have led to the normalization of the “Act of God” exception; a policy provision commonly used in insurance law that excludes coverage for damage caused by unforeseeable natural disasters. Even so, real cities suffer the consequences of the real harm, whether insurance accepts it or not; so, who bears the burden of funding the recovery?

Maryland, …

Noise Law, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

The rumble of traffic, the drone of air conditioners, the blast of construction equipment. These are the mundane sources of noise pollution that we all experience but rarely think about. Or, if we do think about noise pollution, we don't think of it as a central piece of federal environmental law. This Article, however, demonstrates that noise law is, or was, central to American environmental law, and it offers insights into how environmental protection and administrative governance work today.

In the 1970s, during the height of environmental activism and policymaking, lawmakers recognized noise as a serious pollutant alongside issues we …

Buried Burdens: Contaminated Lands And The Unfinished Business Of The Alaska Native Claims Settlement Act, Yuwen Huyan

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Will Systematic Stewardship Save The Planet?, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

The largest institutional investors have solidified their status as “universal owners,” holding almost eighty percent of the U.S. stock market. The growing influence of these investors over the companies they invest in has sparked optimism among scholars and activists that asset managers will use their clout to steer firms towards Environmental, Social, and Governance (ESG) objectives. But such optimism may be misplaced. Focusing on carbon emission reduction, we argue that universal owners lack the necessary incentives and competence to pressure corporations to lower emissions.

Universal owners market ESG investments with conflicting promises of “doing well while doing good.” The untenable …

Legal Models For Public-Private City Greening Partnerships, Daniel J. Metzger

Sabin Center for Climate Change Law

Cities are significantly hotter than their surrounding areas. That difference, known as the “urban heat island” effect, is driven in significant part by the dark-colored buildings, sidewalks, roadways, and similar surfaces that dominate urban spaces, absorbing solar energy and later radiating it outward as thermal energy that heats the nearby air. This Comment suggests and describes one avenue through which cities and local community-based organizations (CBOs) could tackle extreme heat: partnering with one another to transform paved surfaces into green or reflective ones. Partnerships of this kind could combine the resources and desire to create green spaces that nongovernmental groups …

Assessing Justice In National Climate Policies: Indicators For Vulnerable Populations, Vagif Alizada

COP30

Throughout the last two decades, various researchers have continuously examined the way that climate justice principles are integrated within national climate policies, paying most attention to the extent of their impact on specifically vulnerable populations. Climate justice, encompassing distributive, procedural, recognition, and restorative dimensions, has become one of the central ideals when it comes to global climate governance. One of the major noticeable challenges faced in this field is the lack of standardised indicators to measure whether policies deliver equitable outcomes, making cross-country comparison and accountability difficult. However, despite increasing regulations and policy commitments, there is a major limitation on …

How Can Indigenous Peoples Be Meaningfully Integrated Into National Climate Decision Making Processes?, Shahd Wael

COP30

Indigenous people manage significant global terrestrial surface while simultaneously guarding around 80% of the world's biodiversity (With methodological uncertainty), despite only comprising a small fraction of the global population.Their traditional ecological knowledge (TEK) supports essential climate solutions and helps in the adaptation and mitigation of greenhouse gas emissions. A significant depth of injustice, however, and security risk in the existing climate governance mechanisms is pronounced given that less than 1% of direct global climate finance is allocated to indigenous peoples. This policy paper argues that a transformational paradigm shift needs to take place for global climate action to be effective, …

Criminalising Ecocide For Climate Justice And Global Security, Norain El Gebely

COP30

The climate emergency is deepening and needs urgent attention involving radical, binding, and multilateral measures. Ecocide is the large-scale and deliberate destruction of ecosystems which undermines human security, destabilizes the fragile states and increases geopolitical tensions. It has been contended in this policy brief that ecocide needs to be internationally criminalized pursuant to the Rome Statute of the International Criminal Court (ICC) to place environmental destruction firmly within the scope of global peace and security. The proposals promote climate justice by prioritizing certain countries, which include Equatorial countries, industrializing high emission countries and the Small Island Developing States (SIDS) through …

Climate Justice Across Borders: Responding To Ecocide And Displacement, Camila Micheletti Flores

COP30

This policy paper examines how climate change accelerates cross-border displacement, especially in regions most vulnerable to ecocide and environmental degradation. Climate refugees remain unprotected under international law, as the 1951 Refugee Convention excludes environmental grounds for asylum, leaving populations exposed to human rights violations and securitized responses. It analyzes legal and institutional gaps, highlighting failures in global climate governance and the disproportionate risks faced by SIDS and other affected regions. The paper calls for COP30 to mandate a high-level UNFCCC forum on climate displacement and ecocide to build a just, cooperative, and rights-based international framework.

How Can The Role Of The Judiciary In International Climate Governance Be Formalised To Ensure Accountability And Action When Governmental Political Institutions Fall Short?, Roy Abi Raad

COP30

Conventional Governance Framework have recurrently proved inadequate to tackle the extent and immediacy of environmental concerns as the climate calamity worsens. The judiciary has evolved into a crucial player in the assertion for climate justice because of this governance deficit. Courts can safeguard human rights, interpret international treaties, and hold people accountable for environmental deterioration, function that are acquiring increasing significance important in both developed and developing nations. Nevertheless, they lack institutional mechanism to legally incorporate the judiciary within the international climate governance framework (such as the UNFCCC, Paris Agreement, and Loss and Damage Fund). In order to guarantee accountability, …

Holding Transnational Corporations Accountable For Ecocide And Climate-Related Human Rights Violations, Njengue Cindy Joanne

COP30

The climate emergency and the scale of environmental harm require moving beyond voluntary and overly localized approaches to establish binding legal mechanisms at the global level. Transnational corporations operating in high-impact ecological sectors must be held accountable for their actions — not only to remedy the damage caused, but also to prevent future violations. COP30 in Belém presents a unique opportunity to place legal and institutional accountability at the core of international negotiations. By building on existing instruments, the ethical ambitions of the COP presidency, and strengthened cooperation between states, civil society, and private actors, it is possible to construct …