Environmental Law Commons^™

Fights Over Continuity - In Life And Law, Jamison E. Colburn

William & Mary Environmental Law and Policy Review

What is the whole: a river or that river and its tributaries? There is no “natural” answer to the question, only so many answers as there are reasons for asking. Lately, the Clean Water Act has been the captive of such diversions in our Supreme Court’s agenda. Changing it will not free it from that captivity. For whatever reforms we choose could still provide boundless opportunities for frustration in questions like the above. If the Court is as eager to cause that frustration as it has appeared lately, maybe we should help the Court to its fight with this iconic …

Environmental Justice, Resilience Justice, And Watershed Planning, Craig Anthony (Tony) Arnold, Resilience Justice Project Researchers

William & Mary Environmental Law and Policy Review

Watershed planning is an increasingly used governance tool for addressing environmental problems at ecosystem scales of watersheds, which are areas of land that drain to a common body of water. In recent years, watershed planning in the United States has been undergoing an “equity evolution”: watershed planners have begun integrating environmental justice considerations into their plans, often in response to demands by low-income communities of color. This Article explores a comprehensive set of principles, processes, analytical tools, and strategies for equitable watershed planning. It integrates a resilience justice perspective with environmental justice. Resilience justice is concerned with the systemically unequal …

Quantifying Winters Rights, Rhett B. Larson

William & Mary Environmental Law and Policy Review

All reservations of federal land, including Native American reservations and national forests, have water rights. These rights are referred to as “Winters rights” after the seminal U.S. Supreme Court case. That case recognized such rights’ existence, but it did not quantify the amount of water of those rights. Federal courts have applied various approaches to quantifying Winters rights. Recent decisions in Arizona state courts have taken new and different approaches to quantification of both tribal and non-tribal Winters rights. These state court decisions have important implications for federal water rights throughout the United States. This Article examines these new …

Tribes And Water In The Wake Of Navajo Nation And Sackett: Treaties, Winters, Montana, And Rights Of Nature, Robin Kundis Craig

William & Mary Environmental Law and Policy Review

Freshwater resources in the United States face a variety of stressors, including drought, flooding, and climate change–driven shifts in precipitation, that exacerbate both water quality problems and drinking water crises. In the midst of these increasing issues regarding both water quality and quantity (allocation), Tribes are playing an ever more active role in U.S. water management. This Article provides an overview of the complex contemporary legal landscape governing tribal authority over water. After reviewing the current state of inherent tribal sovereignty with respect to water, treaty rights and reservations, the federal Winters doctrine, and Treatment-as-a-State (“TAS”) status, this Article explores …

Renewable Energy And Defense Power In Japan, Yuichiro Tsuji

William & Mary Environmental Law and Policy Review

Japan’s challenge will be how quickly it can shift its energy supply to renewable energy sources. To increase energy self-sufficiency and defense power, Japan should promote policies that encourage renewable energy use. However, under the current legal system, local governments are not involved in the legal review process for establishing nuclear power plants. Through agreements, local consent is required to restart a plant. However, this is merely a contract, and permission is granted even if the agreement is violated, as long as the plant passes a safety review. The central government is trying to facilitate communication between local governments and …

What Is The Price Of Withdrawing From Investor-State Dispute Settlement Provisions In An Era Of Climate Conscious Policy? Comparing Latin America's Rejection Of Foreign Investor Control To The Fallout From The Energy Charter Treaty, Carrie Swiggum

Student Scholarship

This article examines Investor-State Dispute Settlements criticisms and intended benefits as it comes up in public law issues such as the Energy Charter Treaty. The treaty is the world’s largest multilateral treaty, with about 50 member countries, and the most litigated, with most cases decided by arbitration. There is criticism against an inability to modernize the treaty due to concerns regarding climate change as well as criticism against the investor-state dispute settlement system itself, because of arbitration’s secrecy and lack of public involvement. This article argues that countries should leave unilaterally as they have begun to do, avoiding the regulatory …

Disclosure, Greenwashing, And The Future Of Esg Litigation, Barbara Ballan, Jason J. Czarnezki

Washington and Lee Law Review

The Environmental, Social, and Governance (“ESG”) disclosure movement is expanding both voluntarily, as businesses choose to disclose this information, and mandatorily, as government agencies impose disclosure requirements. As ESG disclosure expands, so do the litigation risks. “Greenwashing” refers to presenting false or misleading environmental or sustainability (i.e., “green”) qualities of products, services, or practices. Businesses may greenwash consumers as well as investors with false and misleading ESG disclosures in advertising, securities filings, or other public statements activating greenwashing litigation from investors and consumers. This Article addresses (1) the laws and regulations that cover consumer and securities greenwashing litigation, (2) how …

Advisory Opinion On Climate Change: Summary Of Written Observations Submitted To The Inter-American Court Of Human Rights (Part 1), Maria Antonia Tigre

Sabin Center for Climate Change Law

On January 9, 2023, the Foreign Ministers of Chile and Colombia requested an advisory opinion from the Inter-American Court of Human Rights (IACtHR) on the scope of state obligations for responding to the climate emergency under the frame of international human rights law and, specifically, under the American Convention on Human Rights. Within this context, the IACtHR received a total of 255 amicus brief submissions.

This report includes summaries of the amicus briefs submitted to the Court. Due to the number of submissions received and the short timeframe prior to the hearings, the report is divided into parts. This first …

Legal Issues In Oceanic Transport Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard, Pria Deanna Mahadevan

Faculty Scholarship

A number of large facilities intended for the permanent sequestration of carbon dioxide are being developed in the United States. Several of them will be located in Texas and Louisiana on or near the coast of the Gulf of Mexico, making them easily accessible to ships. At the same time, there is substantial interest in Europe in installing equipment to capture carbon dioxide from certain industrial operations before it is emitted into the atmosphere, but currently there are inadequate facilities existing in Europe to sequester much of this carbon dioxide. Therefore, there is interest in the possibility of using ships …

Urban Flooding: Legal Tools To Address A Growing Crisis, Michael B. Gerrard

Faculty Scholarship

While sea level rise has long received a great deal of attention, another impact of climate change is now getting greater notice — increases in extreme precipitation. As the atmosphere warms, it can hold more moisture; for every increase of one degree Celsius, seven percent more water vapor is carried in the air. When that moisture is quickly released as intense rainstorms, stormwater systems can be overwhelmed, and cities can suffer devastating floods.

The frequency and intensity of heavy precipitation events have increased since the 1950s over most of the world's land areas. One 2023 study — generally consistent with …

No Child Left Online: Influencer “Sharenting” As A Breach Of Fiduciary Duty, Caroline Harrod

Cardozo Law Review

A controversy erupted on the video-sharing app TikTok in the summer of 2022, with audiences accusing a parenting influencer of exploiting her toddler daughter by posting compromising videos of her on the platform. The child’s mother, Jacquelyn, who runs the account @wren.eleanor, frequently shared videos of then-two-year-old Wren engaged in everyday activities such as riding a bicycle, going to the park, and eating snacks with the duo’s 17.1 million followers. Jacquelyn also regularly posted paid partnerships with brands such as SHEIN and Kohl’s, and, in lieu of working a regular job, provided for Wren through earnings from online content creation. …

Forced To Bear The Burden And Now The Children: The Dobbs Decision And Environmental Justice Communities, Mia Petrucci

Washington Journal of Social & Environmental Justice

No abstract provided.

Pursuing The Exemption: The Makah's White Whale, Sarah Van Voorhis

Washington Journal of Social & Environmental Justice

No abstract provided.

U'Wa Indigenous People Vs. Columbia: Potential Applications Of The Escazu Agreement, Ariana Lippi

Sustainable Development Law & Policy

Though the case is ongoing, and results are still to be seen, it in many ways sets a precedent for indigenous communities in Latin America seeking redress for environmental and cultural injustices. With Colombia’s recent ratification of The Escazú Regional Agreement (the Agreement herein) in 2022, this case presents a unique opportunity for implementation of the Agreement and greater accountability within existing domestic legislation.

Natural Resources In The Arctic: The Equal Distribution Of Uneven Resrouces, Ganeswar Matcha, Sudarsanan Sivakumar

Sustainable Development Law & Policy

This paper analyses the governance machine in place at the Arctic and examines the application of the principles of “common heritage of mankind” at the Arctic. This paper also offers some tentative propositions aimed at protecting Out Bound investment rights and how the World Trade Organization or other countries, like the U.S., can intercede in the Arctic investment sphere and attempt to regulate along with the United Nations Convention for the Law of the Sea.

Incentivizing Sustainability In American Enterprise: Lessons From Finnish Model, Vasa T. Dunham

Sustainable Development Law & Policy

The disparate climate performances of Finland and the United States, two of the wealthiest countries in the world, bring to light the question of how corporate responsibility has been inspired in each jurisdiction. Having established the urgency of the climate crisis and the importance of corporate behavior in optimizing a given country’s approach to protection of the global environment, an examination of each nation’s legal frameworks may shed light on features of the corporate regime that are effective in advancing sustainability goals and those that are not.22 Part I of this paper establishes a comparative framework by providing background on …

Editor's Note, Shade Streeter, Reagan Ferris

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Keynote Address, David B. Fountain

Georgia Law Review Symposia

David B. Fountain, executive vice president and general counsel, serves as the Tennessee Valley Authority’s (TVA) chief legal officer for enterprise matters. He also provides counsel to the Board of Directors and, as TVA’s Designated Agency Ethics Official, is responsible for promoting an ethical performance culture across TVA. Before assuming his current role, he was senior vice president and vice general counsel.

Fountain joined TVA in June 2020 after serving in various leadership roles for more than 20 years with Duke Energy and predecessor companies Progress Energy and Carolina Power & Light. His most recent title with Duke Energy, a …

Convening Remarks, Andrea L. Dennis

Georgia Law Review Symposia

Symposium convened by Associate Dean Andrea Dennis.

Welcoming Remarks, Braden T. Meadows, Austin Headrick

Georgia Law Review Symposia

Short welcoming remarks by Executive Symposium Editors Braden T. Meadows and Austin Headrick.