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William & Mary Environmental Law and Policy Review
Number of Followers: 1

This is an Open Access Journal

Open Access journal
ISSN (Print) 1091-9724 - ISSN (Online) 1943-1104
Published by College of William and Mary

[5 journals]

Encouraging Sustainable Innovation: Is There Room for a Post-Grant
Environmental Challenge in American Patent Law'
- Authors: Samuel Habein
  Abstract: This Note examines potential changes within the American patenting system that might renew the U.S. Patent and Trademark Office’s (“USPTO”) dedication to the promotion of progress through a post-grant environmental challenge to patents. There are many ways to encourage “green” innovation by challenging practices that harm the environment, but the patent system has a unique ability to discourage environmentally harmful innovation by refusing to grant exclusionary rights—rights that many industries require to thrive. However, a post-grant environmental challenge would undoubtedly disrupt the American patent system in severe ways that this Note does not address. Therefore, this Note is not arguing that such a challenge should be implemented, but serves the purpose of starting a discussion. Where can we find the tools to combat climate change' Here, this Note discusses how the existing incentives within the patent system could be manipulated to encourage sustainable innovation within industry.This abstract has been taken from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:54:15 PDT
Gimme Shelter: Amending FEMA's Enabling Legislation to Permit Citizen
Suits for Failures in Disaster Recovery Efforts
- Authors: Zachary R.M. Outzen
  Abstract: This Note argues that democratizing the disaster relief process through enabling citizen suits against FEMA to timely deliver housing relief assistance is one potential solution to the immense problem at hand. This Note provides an overview of FEMA’s obligations to survivors of natural disasters under both federal law and evolving interpretations of binding international law. This Note asserts that FEMA’s repeated failure to deliver necessary disaster relief aid to these survivors constitutes violations of these obligations. This Note will then assert that the issue underlying these failures (i.e., flawed administrative and bureaucratic processes) is analogous to similar failures by environmental agencies. This Note will then propose that a citizen suit provision, similar to those under federal environmental law that have compelled agency action in the past, should be adopted to FEMA’s enabling legislation to remedy failures to meet their obligations. Finally, this Note will examine the application of citizen suits since their introduction to understand how such a provision may operate under FEMA’s enabling legislation, and to identify structural challenges faced by citizen suits that can be learned from to best ensure successful implementation moving forward.This abstract has been taken from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:54:12 PDT
Casting Pearls Before Swine: Why the Public's Darling Right to
Pollute Should Have Been Overturned in Recent SCOVA Decision
- Authors: Thummim Park
  Abstract: This Note calls for the Virginia Supreme Court to recognize that a city’s right to freely pollute the public waterways is no longer valid under the Virginia Constitution, and to recognize that the line of Darling cases granting municipalities the public right to pollute waterways should have been overturned.Part I will set out the foundation for this Note. It will discuss the background of Johnson v. City of Suffolk, laying the context for this Note’s discussion. Part II will engage in an analysis of the rationale for Darling. It will contextualize and compare it to current understandings of the relevant doctrines. Part III will then assess how courts applied the Darling right in cases in light of changed environmental regulations and statutes. Lastly, Part IV will analyze Johnson, and discuss how the Darling right should have been applied, as opposed to how it was in fact applied.This abstract has been taken from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:54:09 PDT
Incidental Take Under the Migratory Bird Treaty Act and How to Share the
Skies
- Authors: Erika Bosack
  Abstract: 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 caused stark discrepancies between judicial circuits that cannot logically coexist. One interpretation must eventually win the day. The one that will promote biodiversity conservation and provide more certainty to facilitate renewable energy development is also the one that most aligns with the statute’s plain text: that the MBTA covers unintentional takings.This abstract has been taken from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:54:05 PDT
The Promise and Perils of Textualism for Environmental Advocacy
- Authors: Canaan Suitt
  Abstract: This Note argues that a reliance on textualist arguments to win environmental victories from conservative judges in the new judicial landscape involves a simplistic view of judicial decision-making, according to which a method of constitutional or statutory interpretation is dispositive of a given ruling. Methods of interpretation interact with other factors, including judges’ ideological and institutional commitments, in determining cases. Textualism is a method of constitutional interpretation favored by conservative judges, but it is also part of a broader suite of conservative commitments and attitudes that complicate the role of textualism and may counteract textualism’s perceived benefit for environmental causes. The upshot is that a strong focus on textualism as a way to cope in the new judicial landscape may do more harm than good for the goal of environmental advocacy.This abstract has been taken from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:54:02 PDT
Stuck in the Net: Promoting Global Shark and Ray Populations Through
National Sustainability Import Laws
- Authors: Kelsey Peden
  Abstract: 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 against the import of endangered shark and ray species. While U.S. national trade laws put pressure on foreign nations to end the over harvest of shark and ray species, they do not solve the issues of by-catch or traceability that haunt the supply chain. This Article examines international regulations protecting shark populations as well as U.S. import laws on highly migratory animals, ultimately theorizing that trade regulations promoting sustainably harvested sea food are the most promising path to protect shark and ray species.
  PubDate: Fri, 02 Sep 2022 13:53:58 PDT
Quality Control: Potomac Riverkeeper v. Wheeler & Standards for
Qualitative Citizen Water Quality Data in Virginia
- Authors: Jacqueline Goodrum
  Abstract: 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 as to not only ensure DEQ’s valid use of such water quality-related data and information in supporting impaired waters determinations, but also enhance agency transparency in regulatory decision-making.This abstract has been taken from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:53:55 PDT
Trust Issues: Using States' Public Trust Doctrines to Advance
Environmental Justice Claims
- Authors: Alicia Muir
  Abstract: The primary purpose of this Note is to evaluate a new method one could use to bring an environmental justice claim. This Note suggests that the solution can be found within the reinvigorated public trust doctrine. Instead of pursuing environmental justice claims on the federal level, plaintiffs could utilize the sleeping giant that is states’ public trust doctrines. Pennsylvania courts, the pioneers of this new path, held that its public trust should be evaluated using private trust law principles. By interpreting state-created public trusts through the lens of private trust concepts, citizens in a number of states are capable of bringing environmental justice claims, as beneficiaries, against the state, as trustee. Thus, environmental justice claims could evolve into a sophisticated breach of fiduciary duties claim. By raising environmental justice issues in state courts via a breach of fiduciary duty claim, plaintiffs will be able to raise socio-economic and racial issues and at the very least, force a greater evaluation process, without having to demonstrate an intent to discriminate.This abstract has been taken from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:53:52 PDT
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
- Authors: Ben Reiter
  Abstract: 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 amount of renewable energy resource potential that is located on their lands, and existing federal programs and policies that can be further leveraged for the development of renewable resources on Tribal lands.This abstract has been adapted from the author's introduction.
  PubDate: Fri, 02 Sep 2022 13:53:48 PDT
Racism and Toxic Burden in Rural Dixie
- Authors: Mary Finley-Brook et al.
  Abstract: 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 areas sustaining patterns of discrimination toward minority and low-wealth families. These cases illustrate the impact of citizen science and community expertise needed to counter data inequities in permitting processes, and the need for geospatial mapping of toxic polluting sites as visual evidence of already existing adverse environmental health impacts. Participatory action research employs community-informed pathways to reverse disparities and promote meaningful engagement and fair treatment of rural populations. Market and power analyses of ten factors reveals ways landowners and communities are systematically and persistently disadvantaged, while examples of five pathways demonstrate necessary transformation.
  PubDate: Fri, 02 Sep 2022 13:53:45 PDT
Foreword to Environmental Justice in America: Where We Have Been & Can
Go
- Authors: Zachary R.M. Outzen
  Abstract: Recognizing that recent progress is only the beginning in a long journey to rectifying past environmental injustices, this Symposium was convened to ask two critical questions regarding the state of environmental justice in America today. First, how did we get here' Second, how do we move forward'With an eye to a future in which America lives up to Dr. Bob Bullard’s vision of environmental justice, the Symposium hosted four panel discussions, featuring scholars of legal and non-legal disciplines, attorneys and non-legal advocates, and the members of the marginalized communities on the front lines of the struggle for environmental justice.This abstract has been taken from the author's Foreword.
  PubDate: Fri, 02 Sep 2022 13:53:41 PDT
Table of Contents and Masthead (v. 46, no. 3)
- PubDate: Fri, 02 Sep 2022 13:53:38 PDT
Diagonal Federalism: How States Should Respond to Inconsistent Federal
Climate Change Mitigation Policy
- Authors: Michael Arnone
  Abstract: 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 and the states is possible but remains rare with respect to climate change mitigation policy. Part IV proposes diagonal federalism as an alternative course of action for states in lieu of cooperation with the Federal Government. While there are important legal and practical limitations to this approach, it remains the most viable alternative to states as they grapple with an unreliable partner in the Federal Government.This abstract has been adapted from the author's introduction.
  PubDate: Fri, 24 Jun 2022 12:38:11 PDT
From the Northern Plains to the Carolina Coast: An Environmental
Perspective on Nationwide Injunctions
- Authors: Daniel Z. Tick
  Abstract: 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, in the context of environmental law, nationwide injunctions are justified when necessary to provide complete relief to plaintiffs and, as such, should remain an available remedy to the federal courts. However, Part III also argues that several of the rationales offered to support nationwide injunctions beyond providing complete relief should be retired.This abstract has been adapted from the author's introduction.
  PubDate: Fri, 24 Jun 2022 12:38:07 PDT
The Water Is On Fire: Current Circuit Approaches to Fee-Shifting in
Citizen-Suits Under the Clean Water Act and the Need for Clearer and More
Uniform Standards
- Authors: Charles Kinley
  Abstract: This Note will start by providing a short explanation of the origins of and congressional goals for the fee-shifting provision in the CWA [Clean Water Act]. It will then offer a brief summary of how Supreme Court precedent has both clarified and confused this issue. Then, it will dive into an examination of how the different circuits and their district courts have interpreted the CWA’s fee-shifting provision and how these interpretations have struggled with past Supreme Court decisions. Finally, this Note will explore the costs and benefits associated with these fee-shifting standards and offer a potential solution to this problem. Ultimately, this Note will argue that, in the absence of Supreme Court guidance, the circuits must adopt clearer, more uniform standards in order to fulfill congressional objectives, bolster the viability of CWA citizen-suits, and ensure that citizens do not pay the price for their public service.This abstract has been adapted from the author's introduction.
  PubDate: Fri, 24 Jun 2022 12:38:03 PDT
Law on the Half Shell: Applying a Right-to-Farm Framework to
Virginia's Aquaculture Industry
- Authors: Matt Woodward et al.
  Abstract: 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 potential mechanisms that may protect Virginia aquaculture producers.This abstract has been adapted from the authors' introduction.
  PubDate: Fri, 24 Jun 2022 12:38:00 PDT
The Right to the World's Longest River: Reopening the Vexing Case of
the Nile River
- Authors: Amin R. Yacoub et al.
  Abstract: Disputes over rivers and water resources extend back to early civilizations. Yet, the current dispute between Egypt and Ethiopia may rank among the most vexing water disputes in modern history. The Grand Ethiopian Dam filling is close to completion, and, if no cooperative or legal solution is reached, many adverse consequences will start appearing gradually on the Egyptian share of the Nile River, which may ultimately pose a threat to the African peace. Currently, the international community is standing in vain after multiple unsuccessful attempts at negotiation and mediation. While legal and political scholars have discussed mechanisms and substantive standards applicable to water disputes, no scholarship currently exists regarding the application of those mechanisms and standards specifical to the Nile River dispute. Accordingly, this Article scrutinizes the current legal, political, and quasi-legal mechanisms and substantive standards governing water disputes to determine the most suitable mechanism of dispute resolution to adopt in the Nile River dispute. Further, it assesses the landmark U.S. Supreme Court decisions in interstate water disputes to identify the most adequate substantive standard that may likely resolve the Nile River dispute.
  PubDate: Fri, 24 Jun 2022 12:37:56 PDT
New Strategies for Groundwater Litigation in Texas
- Authors: Amy Hardberger
  Abstract: This Article evaluates the evolution of the understanding of groundwater rights since the Day decision and assesses the relative power of property rights in groundwater that have emerged and what can be done to equalize resulting inequities. Part I reviews the current state of groundwater ownership rights and includes a brief history of litigation that led to that point. Part II explains the authority and obligations of groundwater conservation districts, which create a regulatory overlay on the common law vested rights through permitting rules and the statewide planning process. Part III summarizes the history of constitutional challenges litigated after the Day decision established a vested property right in groundwater.Finally, Part IV presents recommendations for how litigation can also be used by landowners who seek to maintain their groundwater or protect the resource itself. First, litigants can use the obligations in Chapter 36, which find their roots in the conservation amendment, to compel GCDs to plan and permit groundwater in ways that prioritize conservation and avoid waste. Second, an examination of inverse condemnation jurisprudence provides pathways for courts to avoid requiring compensation for alleged property rights infringements. Finally, other litigation opportunities are discussed including options for impacted surface water rights holders.This abstract has been adapted from the author's introduction.
  PubDate: Fri, 24 Jun 2022 12:37:52 PDT
(Re)Empowering the Community: A Case Study of Namibia's Legal
Evolution of Wildlife Governance
- Authors: Stefan Carpenter
  Abstract: 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 Constitution, and the Stefan Carpenter’s original field research in four conservancies (CBC areas) located in Namibia’s northwestern Kunene region.This abstract has been adapted from the author's introduction.
  PubDate: Fri, 24 Jun 2022 12:37:49 PDT
Table of Contents (v. 46, no. 2)
- PubDate: Fri, 24 Jun 2022 12:37:45 PDT