Similar Journals
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William & Mary Environmental Law and Policy Review
Number of Followers: 2  Open Access journalISSN (Print) 1091-9724 - ISSN (Online) 1943-1104 Published by College of William and Mary  [5 journals]
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- Renewable Energy and Defense Power in Japan
Authors: Yuichiro Tsuji
Abstract: 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 operators, but it is not enough. Legally requiring the establishment and funding of councils would stimulate local discussion and support local actors who file civil or administrative lawsuits if the power company’s explanation is insufficient.This abstract has been taken from the author's conclusion.
PubDate: Thu, 08 Aug 2024 08:43:22 PDT
- Tribes and Water in the Wake of Navajo Nation and Sackett: Treaties,
Winters, Montana, and Rights of Nature
Authors: Robin Kundis Craig
Abstract: 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 how these authorities intersect with two recent Supreme Court decisions: Sackett v. EPA (May 2023), in which the Court cut back on the Clean Water Act’s jurisdictional reach, and Arizona v. Navajo Nation (June 2023), in which the Court held that the federal government has no trust duty to help Tribes get water. The Article concludes that, despite these setbacks, Tribes—especially those in the Pacific Northwest—possess a constellation of authorities over water that they can combine to allow new kinds of water management approaches, including rights of nature approaches.
PubDate: Thu, 08 Aug 2024 08:43:19 PDT
- Quantifying Winters Rights
Authors: Rhett B. Larson
Abstract: 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 approaches to quantifying Winters rights, evaluates them for their impact on equitable and sustainable water policy, and proposes reforms to better adapt the adjudication of Winters rights to responding to water variability caused by climate change.
PubDate: Thu, 08 Aug 2024 08:43:16 PDT
- Environmental Justice, Resilience Justice, and Watershed Planning
Authors: Craig Anthony (Tony Arnold et al.
Abstract: 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 vulnerabilities and adaptive capacities of marginalized and oppressed communities, who are vulnerable to disruptions and changes like natural disasters, climate change, and housing insecurity (e.g., gentrification) and have been marginalized from governance systems affecting their capacities to thrive. Watershed plans should not only address unequal environmental harms and decision-making but also empower low-income communities of color and facilitate their resilience. An equity transformation, not merely an equity evolution, is needed in watershed planning. This Article examines a case study of the University of Louisville Resilience Justice Project’s work with government agencies and communities to integrate environmental and resilience justice into planning for the Mill Creek watershed, composed of marginalized neighborhoods in Southwest Louisville, Kentucky.
PubDate: Thu, 08 Aug 2024 08:43:13 PDT
- Adapting Seasonal Water Rights
Authors: Karrigan S. Börk et al.
Abstract: Climate change is shifting seasons. Spring comes earlier, fall comes later, rainy seasons are shorter and more intense, and summers are hotter and longer. In the American West, winter precipitation increasingly falls as rain, leading to a smaller snowpack and an earlier, more intense runoff followed by a longer and drier dry season. For irrigators— the highest volume water users—growing seasons are shifting earlier, weather is less predictable, and precipitation is increasingly inconsistent. The end of a relatively static climate marks the end of static water rights. The shifting seasons pose serious challenges to our ability to manage water systems.The legal infrastructure of water management is ill-suited for a changed climate. Western water right systems were built on an assumption of climate stationarity that is no longer true. Everything from basin adjudications based on outdated annual flows to the design of western water rights themselves may have to change to accommodate our shifting climate.In this Article, we examine the seasonality of water rights. Water rights allow diversion during a particular time of year, often the historic growing season or peak runoff season. These restrictions are an inherent part of the water right, as important as the total volume or rate of water withdrawal. As the shifting climate alters runoff patterns, many water rights will be left high and dry with insufficient water available during the allowed season of diversion.Although state water agencies have begun to think about new conditions on future water rights, the real problem is addressing existing water rights to accommodate the shifting seasons. Here, we examine a selection of sixty-one water rights in the Sacramento River watershed, California’s largest river system. These water rights show weaknesses in California’s current approach to managing water rights for a changing climate. Based on this examination, we consider options for western states to improve their water right resilience in the face of our new climate reality.
PubDate: Thu, 08 Aug 2024 08:43:11 PDT
- Fights Over Continuity - In Life and Law
Authors: Jamison E. Colburn
Abstract: 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 statute. Continuity is everywhere in life, but it is fleeting in law. For tribunals trading on the strength and clarity of reasons that have neither strength nor clarity, it is probably even more so. In a race against time like the Chesapeake Bay’s restoration, success may turn on how fast such an agent can be expelled from the fray. And that turns on how quickly more Americans recognize judges who have ceased judging and begun, instead, to dictate.
PubDate: Thu, 08 Aug 2024 08:43:08 PDT
- Foreword to Water Law in a Changing Climate
Authors: Emily Wells
Abstract: Climate change impacts all aspects of water from precipitation, river flow, groundwater, and sea levels, resulting in increased droughts and extreme weather events. Once predictable and stable resources have become uncertain in a changing climate. As a result, our laws face new challenges and must answer new questions, and they need to adapt. The William & Mary Environmental Law and Policy Review symposium “Water Law in a Changing Climate” highlighted the various issues and challenges facing our legal system when it comes to water. Our symposium consisted of experienced panelists and presenters with diverse expertise who each elaborated on the various issues and challenges facing water law in a changed climate.This abstract has been taken from the author's introductory paragraph.
PubDate: Thu, 08 Aug 2024 08:43:05 PDT
- Table of Contents (v. 48, no. 3)
PubDate: Thu, 08 Aug 2024 08:43:02 PDT
- Dark "Oro y Plata" in Montana: The Green Amendment's Defense of
Campaign Finance Transparency
Authors: Lucas Della Ventura
Abstract: In the post–Citizens United dark money age, state disclosure regulations are the last line of defense for citizens to learn who is behind unlimited independent expenditures and electioneering communications flooding their states. Underpinning the ability of state governments to promulgate such transparency measures are the informational benefits provided to the public. However, the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta to invalidate a California disclosure regulation on dark money groups, marks disclosure regulations—the Court’s repeated fallback when striking down more robust campaign finance regulations—with a bull’s-eye. In the face of repeated legal challenges to disclosure regulations, advocates for transparency should conceptualize the scope of the informational interest more broadly to encompass not only the interests of voters, but also the interests of states in upholding state constitutional rights dependent on disclosure information. States like Montana, which have affirmative duties under their constitutions to protect the right to a clean and healthful environment, also known as “green amendments,” have a compelling interest in upholding disclosure provisions because such protection hinges on the information provided by campaign finance disclosures.
PubDate: Thu, 23 May 2024 09:38:49 PDT
- Race to the Bottom: How Equitable Apportionment Could Encourage
Overdrafting of Aquifers
Authors: Emily Wells
Abstract: Groundwater is a vital source of water for drinking and irrigation in the United States. However, it was unclear what legal doctrine would apply to apporting interstate groundwater between the states. This changed in Mississippi v. Tennessee, when the Supreme Court ruled that equitable apportionment would the controlling doctrine. The Court though declined to clarify how the doctrine would be applied to groundwater. This Note discusses how equitable apportionment has historically been applied to rivers and hypothesizes how the Court may apply equitable apportionment to groundwater.
PubDate: Thu, 23 May 2024 09:38:46 PDT
- Assessing State Invasive Species Schemes Through the Lens of the Spotted
Lanternfly
Authors: Susanna Clark
Abstract: Invasive species have long presented an issue across the United States, and continue to do so. They have become more prevalent as the world has become more interconnected. Nonnative species are not always invasive, but many of them are. A somewhat recently introduced invasive species, the spotted lanternfly, has proven to be especially destructive and will put current invasive species laws to the test. The federal government does have some laws on the books regarding invasive species, but much of the legislation and subsequent regulations can be found at the state level. No two states have the same legal and regulatory regimes, and since the spotted lanternfly—as well as several other invasive species— continue to spread, it begs the question of which states (if any) are equipped to handle the scourge of these problematic plants and animals, and which methods prove to be the most effective.
PubDate: Thu, 23 May 2024 09:38:44 PDT
- Coasting North: The Problem with the Jones Act for the Offshore Wind
Industry and a Remedy from Canada
Authors: Sarah MacLeod Nagle
Abstract: This Note is organized into three parts to examine how the Jones Act hampers the U.S. wind energy industry’s construction of offshore wind farms by requiring that only U.S. vessels transport materials from U.S. ports to the wind farms. The Note proposes a license modeled on Canada’s Coasting Trade Act (“CTA”) to allow non-U.S.-flagged vessels to participate in wind turbine construction. Part I will address the development of cabotage law in the United States, the creation of the Jones Act, and its impact on offshore wind. Part II surveys Canada’s cabotage laws, which culminated in the passage of the CTA in 1990. Examples are given of the successful implementation of the Canadian CTA license. Lastly, Part III argues implementing a licensing system similar to the CTA would be an effective solution to offshore wind woes and outlines how this license would function.
PubDate: Thu, 23 May 2024 09:38:41 PDT
- Making Money Green: A Proposal for a Sustainable Stock Exchange
Authors: Mary Grace Thurman
Abstract: Investors crave sustainable business data as a lucrative indicator of long-term business success, yet this demand is not being met by current environmental, social, and corporate governance (“ESG”) investment portfolios, voluntary business disclosure reports, or the Securities and Exchange Commission’s (“SEC”) climate-related rule proposal. Instead, an alternative, voluntary stock exchange premising entry upon satisfaction of industry-specific ESG prerequisites, would directly connect investors with the sustainable investments they desire without requiring them to interpret dense scientific data and decipher which companies exercise positive business practices.This Article demonstrates that creating an alternative stock exchange for trading solely sustainable businesses would provide a mechanism to allow investors to back companies that align with their values and enforce compliance with preset sustainable business standards, going beyond mere disclosure requirements while avoiding the political influence and mandated capital compliance costs associated with rules implemented by the SEC.
PubDate: Thu, 23 May 2024 09:38:38 PDT
- Pricing, Decarbonization, and Green New Deals
Authors: David M. Driesen et al.
Abstract: 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. We also agree with critics that pricing approaches have suffered from insufficient ambition and effectiveness in routine emission reductions. But we do not think that the critics have shown that alternative approaches have and will perform better in those terms. We develop a framework for enhancing empirical evaluation of past programs, as we now have a wealth of experience with both carbon pricing and a variety of alternatives, but a dearth of econometric comparative studies of past performance.We also explore the normative implications of the critics’ claims. We argue that even if they are entirely right, we should welcome even insufficiently ambitious pollution taxes as likely to enhance other programs and raise revenue to support them. We point out, however, that the trading programs now common around the world may undermine rather than support more successful programs and suggest that regulators consider cap-without-trade (imposing mass-based caps on pollution sources without allowing the trading of obligations) as an alternative. We also discuss the possibility of overcoming the critics’ objections by improving carbon pricing programs.
PubDate: Thu, 23 May 2024 09:38:35 PDT
- Table of Contents (v. 48, no. 2)
PubDate: Thu, 23 May 2024 09:38:33 PDT
- Preparing for the Flood: Virginia Local Governments' Stormwater
Management Liability
Authors: James E. Davidson
Abstract: This Note explains that modern interpretations of Virginia Code § 15.2-970 have made Virginia municipalities immune to tort suits arising from the negligent maintenance of stormwater systems. Due to the Virginia Supreme Court’s holdings in Livingston v. Virginia Department of Transportation and other inverse condemnation suits, localities may be found liable when their stormwater management decisions cause property damage. However, following the Court’s holding in AGCS Marine Insurance Co. v. Arlington County, which prevented inverse condemnation claims arising from municipal negligence, residents are still unlikely to find legal redress for negligent stormwater management that results in property damage. Therefore, this Note argues that Virginia municipalities are broadly protected from lawsuits arising from a failure to plan for climate change’s effect on local stormwater loads. It then demonstrates, through an examination of several Virginia cities and counties that are working to upgrade their stormwater infrastructure, that Virginia localities in general are nonetheless planning for increasing stormwater loads in several distinct ways.First, this Note discusses the growing threat climate change poses to Virginia’s stormwater infrastructure as well as common stormwater problems Virginia’s localities face. Next, this Note discusses how localities currently manage stormwater and the common law framework that traditionally guided construction and maintenance of those systems. It explains the modern interpretation of Virginia Code § 15.2-970 that conclusively shields localities from stormwater-related tort liability. Then, this Note addresses several recent Virginia Supreme Court cases that sustained inverse condemnation actions against localities and the Virginia Department of Transportation when flooding, caused by poorly designed stormwater infrastructure, damaged property. It analyzes AGCS Marine Insurance Co.’s limiting effect on inverse condemnation claims and argues that those claims are also likely to fail in the climate change context. This Note examines Vermont’s stormwater liability framework, which provides residents some redress when stormwater injures them or damages their property. Finally, it discusses how three Virginia municipalities are taking proactive approaches to increased stormwater volume by updating infrastructure and creating programs to protect citizens and their homes.This abstract has been taken from the author's introduction.
PubDate: Fri, 12 Apr 2024 11:12:56 PDT
- Disaster Districts: Mid-Decade Redistricting in the Face of Climate Change
Authors: J. Gray Whitsett
Abstract: This Note argues that judicial and legislative efforts to constrain redistricting should incorporate legal stopgaps to allow for mid-decade redistricting in the wake of disasters that result in significant population displacement. Part I reviews how climate change is exacerbating natural and manmade disasters and the potential for these disasters to cause population displacement, particularly in the context of urbanization. Part II provides an overview of the typical redistricting process and requirements for electoral districts. It also details the debate over mid-decade redistricting, including efforts to prevent it. Part III proposes preconditions for “emergency redistricting” that judges and legislators should consider when regulating mid-decade redistricting. It then discusses how population displacement owing to disasters may drive districts out of compliance with established redistricting criteria, and concludes by noting how unrepresentative districts may complicate recovery efforts and implicate political, social, and democratic norms in the electoral process.Emergency redistricting will not prevent the worst effects of climate change or resolve tension over mid-decade redistricting, but as both problems unfold, lawmakers should not eliminate their only tool for ensuring districts accurately reflect communities disrupted by environmental tragedy.This abstract has been taken from the author's introduction.
PubDate: Fri, 12 Apr 2024 11:12:54 PDT
- Suffering in Search of a Methodological Frame: Interdisciplinarity in the
Context of the Gendered Impact of Climate Migration
Authors: Becky Jacobs
Abstract: In this essay, the author places the gendered impact of climate migration within the methodological frame of scholars such as geographers Sylvia Winters and Doreen Massey, historian Achille Mbembe, philosopher Gilles Deleuze, philosopher and psychoanalyst Félix Guattari, and anthropologist Tim Ingold. The author discusses the importance of interdisciplinarity and describes the gender-specific risks related to climate displacement before delving into theory.
PubDate: Fri, 12 Apr 2024 11:12:51 PDT
- Fueling a Hydrogen Boom: Federal and State Policies for Promoting Green
Hydrogen
Authors: Kayna Lantz et al.
Abstract: “Green” hydrogen produced from renewable energy sources could play a valuable role in the energy transition. Among other things, green hydrogen’s potential as a source of carbon-free, long-term energy storage could help the nation address the intermittency-related challenges associated with growing reliance on wind and solar power. Green hydrogen also has promise as an energy-dense fuel for industries that are difficult to electrify, such as long-haul transportation and steel and fertilizer manufacturing. Recent federal actions have provided some initial government support for green hydrogen technologies, but significant policy gaps remain. States and the federal government could do much more to promote private investment in green hydrogen, and wind and solar energy incentives and programs implemented over the past decade provide useful blueprints for that important policy work. This Article highlights the unique ways green hydrogen could facilitate deep decarbonization of the U.S. energy sector and identifies specific policy strategies for accelerating the nation’s development and deployment of these promising technologies.
PubDate: Fri, 12 Apr 2024 11:12:48 PDT
- To Have and To Be: An International Human Right to Clean, Healthy, and
Sustainable Environment
Authors: Deepa Badrinarayana
Abstract: In July 2022, the United Nations General Assembly passed Resolution 76/300 (“the Resolution”)—affirming a human right to clean, healthy, and sustainable environment (“environmental human rights”). The Resolution essentially affirms a linkage between environmental human rights and “other rights and existing international law,” and “calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices,” to achieve environmental human rights.[...]This Article offers a glass half-full perspective on the Resolution, with the caveat that the glass could rapidly become empty unless the right is internalized into domestic legal systems and international agreements that directly or indirectly impact environmental human rights.Specifically, this Article asserts that the Resolution is a net positive development for two reasons: 1) the historical importance of contemporary human rights, notably the Universal Declaration of Human Rights (“UDHR”), in framing the normative discourse on international law as a “universal,” rather than “sovereign,” subject matter, and 2) its potential to return international environmental discourse to a human rights–based approach initially taken in the 1970s, which is especially important as environmental problems increasingly impose transboundary environmental harms on established human rights. This Article further proposes that the efficacy of the Resolution rests on the ability of nations to not only fully implement multilateral environmental agreements under the principles of international environmental law, but also to cohesively and systematically review from a lens of human rights the defragmented approach to treaty negotiations that at once promote and negate efforts to meaningfully address environmental problems, as in the case of international trade agreements.Further, the Article asserts that the efficacy of environmental human rights suffers the same limitation as human rights enforcement in international law and the limits of international governance structures. These limitations can be acutely felt in the case of transboundary environmental harms that impact human rights, because unlike traditional human rights cases, the remedies lie outside the purview of domestic law. Thus, in addition to reviewing the normative compatibility of existing international treaties, this Article further suggests that meaningful next steps should include the creation of systematic governance systems— including judicial mechanisms—to address cases of transboundary environmental human rights wrongs.This abstract has been taken from the author's introduction.
PubDate: Fri, 12 Apr 2024 11:12:45 PDT
