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Foreword: Sustainability in the City
Get PDF“Nature loves to hide,” observed ancient Greek philosopher Heraclitus roughly 2,500 years ago, and the worldwide “COVID-19” pandemic that followed the emergence of the novel coronavirus SARS-CoV-2 at the end of 2019 has served as a bracing reminder of humanity’s incomplete understanding of the natural world. The COVID-19 crisis has turned out to be more than a public health emergency rooted in natural causes, for the pandemic has revealed significant weaknesses in humancreated institutions, including those that govern and influence the urban areas in which most Americans now live.
Of course, with crisis comes opportunity, and it seems highly plausible that the institutional failures that fueled the calamity of COVID- 19 contain within them the seeds of healthier, more resilient communities. The hope and expectation that it is possible for humans to learn from the past and build a better world inspired the William & Mary Environmental Law and Policy Review to sponsor a symposium on “Sustainability in the City.” Conducted virtually in February 2021, due to the ongoing pandemic, the symposium brought together law students, policy experts, and scholars with expertise in law, ethics, architecture, urban planning, sociology, business organizations, and economics. The result was a series of rich, fruitful exchanges about institutional design and the interactions of humans with nature, as well as four highly insightful and far-reaching articles, which are published in this issue.
The articles produced for the symposium on “Sustainability in the City” address a range of important and timely issues, including the responsible use of novel technologies in the design and construction of “smart” cities, the challenges and opportunities afforded by innovations in urban agricultural practices, how cities can further biodiversity, and social justice considerations in the face of inequalities in “green and blue” (that is, biotic and aquatic) infrastructure. All offer distinct perspectives on the important role played by cities in preserving, modifying, and making constructive use of the natural world so as to ensure a sustainable future for later generations. The articles also offer a number of thoughtful proposals pertaining to legal reforms and public policy initiatives, as well as ideas for additional research and inquiry
No Aid, No Agency
Get PDFOver the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The taxpayer conscience rationale, though valid historically as basis for the clause’s prohibition on government funding of religion, no longer makes sense. And because the taxpayer conscience rationale is wanting, so too is the Flast v. Cohen rule permitting taxpayer standing to challenge government disbursements to religious entities. This Article then proposes an alternative basis for the no-aid principle, that being the concept that government has “no agency” over religious matters, a theory originally enunciated by James Madison. As explained, the no-agency theory is a structural or jurisdictional limitation on the power of government to finance inherently religious activity. If adopted, the no-agency rationale would restore needed credibility to the no-aid principle
Evaluating Emergency Takings: Flattening the Economic Curve
Get PDFDesperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provides just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare—and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies do not increase government power, nor do they necessarily alter constitutional rights, and an invocation of police power by itself does not solve the compensation question but is merely the predicate issue: all governmental actions must be for the public health, safety, or welfare, in the same way that an exercise of the eminent domain power must be for a public use.
This Article provides a roadmap for analyzing these questions, hoping that it will result in a more consistent approach for resolving claims for compensation that arise out of claims of emergencies. This Article analyzes the potential takings claims stemming from emergency measures, mostly under the current takings doctrine. Which types of claims are likely to succeed or fail? In “normal” times, it is very difficult to win a regulatory takings claim for compensation. In the midst of emergencies—real or perceived—the courts are even more reluctant to provide a remedy, even when they should, and emergencies are a good time to make bad law, especially in takings law. Can a better case be made analytically for compensation?
In sum, this Article argues there is no blanket immunity from the requirement to provide just compensation when property is taken simply because the government claims to be acting in response to an emergency, even though its actions and reasons may satisfy the rational basis test. Instead, claims that the taking is not compensable because of the exigency of an emergency should only win the day if the government successfully shows that the measure was actually needed to avoid imminent danger posed by the property owner’s use and that the restriction on use was narrowly tailored to further that end
Is Germline Gene Editing Exceptional?
Get PDFAdvances in gene editing have recently received significant scientific and media attention. Gene editing, especially CRISPR-Cas9, has revived multiple longstanding ethical debates, including debates related to parental autonomy, health disparities, disability perspectives, and racial and economic inequalities. Germline, or heritable, gene editing generates several newer, neglected bioethical debates, including those about the shared human germline and whether there is a line that humans should not cross.
This Article addresses several interrelated ethical and legal questions related to germline gene editing. Those questions address why, if at all, germline gene editing needs to be regulated and, if germline gene editing needs to be regulated, whether it can be regulated under existing law. Ultimately, this Article finds that germline gene editing should and can be regulated under existing law; however, the current federal-centric regime is not the optimal way to regulate this subset of gene editing.
Instead, this Article argues that germline gene editing should be regulated like traditional assisted reproductive technology, such as in vitro fertilization, instead of as an exceptional, federally-regulated medical product. Doing so would reduce regulatory barriers in access to innovation, and the technique would be subject to a significantly less burdensome and less federally dominated regime than it is today. Additionally, this Article\u27s proposed regulatory treatment of germline gene editing would increase access to the technique and remove the federal government, which is prone to regulate based on social and political views,from the practice of medicine, in order to allow access to a procedure that could improve or save many lives
No Time to Waste: Can a State Prevent Nuclear Waste Transportation Within Its Borders Once Yucca Mountain Becomes Operational?
Get PDFFollowing the drop of the first atomic bomb over Hiroshima on August 6th, 1945, the United States seriously began contemplating the use of atomic energy not just as a weapon, but as an efficient energy source. President Eisenhower delivered his “Atoms for Peace” speech in front of the United Nations eight years later, effectively launching a massive American campaign to build numerous nuclear power plants to generate enough clean energy to power the entire nation. As these plants were being constructed, however, policymakers and lawmakers who were champions of this endeavor failed to consider the problem of nuclear waste generated by these plants. Unlike fossil fuel burning plants, where particulates are emitted into the air following combustion, burning uranium produces numerous volatile isotopes that are released into a retention pool within the confines of a nuclear plant.
Although some of these isotopes can be recycled to produce more energy, a majority of these highly radioactive particles are eventually removed from the pool and stored in concrete casks on the grounds of the nuclear plant where they were produced. The half-lives of these isotopes, like uranium-235 and uranium-238, range from 700 million to four billion years. Despite these alarming statistics, none of the leading technicians or scientists running the “Atoms for Peace” campaign developed a comprehensive plan to contain nuclear waste for millions of years. Only following the partial nuclear meltdown at Three Mile Island in 1979, did the scientific community and prominent lawmakers start to seriously assess long-term challenges associated with nuclear waste storage.
This Note will examine two legal challenges to Virginia that could arise once Yucca Mountain has been finalized as the permanent, highlevel nuclear waste repository for the United States. Regardless of the mode of ground transportation, high-level nuclear waste produced at Surry and Santa Anna will travel through the city limits of Richmond and cross the Blue Ridge Mountains into West Virginia based on current federal guidelines. The legal challenges would either be initiated by the United States in response to the Governor of Virginia declaring a statewide emergency or initiated by Virginia in response to a finalized promulgation of the Nuclear Waste Policy Act (“NWPA”). In either scenario, the first legal challenge would assess whether federal law preempted Virginia law and the second challenge would evaluate whether Virginia’s police power to protect the public health, safety, welfare, and morals of its residents would substantially interfere with the U.S. Constitution’s Commerce Clause. The Court would likely rule that federal laws, like the Atomic Energy Act of 1954 (“AEA”) and NWPA, would not preempt the Virginia Emergency Services and Disaster Law of 2000 (“Emergency Law”). However, the Court would likely strike down Virginia’s attempt to prevent the transportation of high-level radioactive waste within its borders due to preemption by the Hazardous Materials Transportation Act (“HMTA”) and Dormant Commerce Clause violations.
Part I will discuss the history of how Yucca Mountain became designated as the only permanent repository for high-level radioactive waste.
Part II will explore the main dispute over the legal authority of the Governor of Virginia to ban the transportation of nuclear waste within Virginia by an emergency declaration.
Section A will analyze whether a state of emergency declaration in Virginia would be superseded by any federal law concerning nuclear waste, such as the AEA, NWPA, and HMTA.
Section B will analyze whether a Virginia state of emergency declaration would withstand the Dormant Commerce Clause of the U.S. Constitution, assuming there was no federal preemption.
The Conclusion will overview all the legal disputes that could arise of the Virginia Governor’s emergency declaration and reflect upon the current state of nuclear waste in the United States
Fulfilling Porter\u27s Promise
Get PDFDespite the Porter court’s reference to a “long tradition of according leniency to veterans,” in the criminal legal system, veterans are overrepresented on death rows across America, including Georgia’s. Most of these veterans come to death row with experiences of marginalization due to other aspects of their identity, such as race or mental disability.
This Article examines the cases of six men executed in Georgia, each with a history of military service, and each with experiences of disenfranchisement based on race and/or mental disability. At trial, each confronted legal risks that disproportionately place Black people and people with mental disabilities in danger of execution. In no case did a trial attorney present meaningful evidence of military service to a jury. The State of Georgia executed all six men between 1994 and 2016.
The Court clarified in Porter that military service carries mitigating weight even and perhaps especially when the veteran on trial falls outside the popular image of the “American hero.” Through case studies of the six Georgia veterans sentenced to death, this Article demonstrates that: (i) many veterans share experiences of disenfranchisement based on race and/or mental disability, and (ii) when charged capitally, these veterans face heightened risk of execution, as the death penalty system targets people with these experiences. The Article concludes with a call to defense counsel to adopt mitigation strategies responsive to the heightened risk of execution that Black veterans and veterans with mental disabilities face. Only through such strategies may counsel effectuate Porter’s promise to protect veterans from the death penalty
Congressional Oversight of Modern Warfare: History, Pathologies, and Proposals for Reform
Get PDFDespite significant developments in the nature of twenty-first century warfare, Congress continues to employ a twentieth century oversight structure. Modern warfare tactics, including cyber operations, drone strikes, and special operations, do not neatly fall into congressional committee jurisdictions. Counterterrorism and cyber operations, which are inherently multi-jurisdictional and highly classified, illustrate the problem. In both contexts, over the past several years Congress has addressed oversight shortcomings by strengthening its reporting requirements, developing relatively robust oversight regimes. But in solving one problem, Congress has created another: deeply entrenched information silos that inhibit the sharing of information about modern warfare across committees. This has real consequences. The Senate Foreign Relations Committee and House Foreign Affairs Committee may have to vote on an authorization for the use of military force against a country without a full understanding of options for covert operations that might achieve the same purpose with less risk. The House and Senate Armed Services Committees may be asked to approve a train-and-equip program for a partner force in a nation without knowing that the CIA is already operating essentially the same program. And the House and Senate Intelligence Committees may support a proposed covert operation without understanding the broader foreign policy context, and therefore, the reaction that it might provoke if it were discovered.
But there is good news with the bad. If Congress is to blame for this information siloing, Congress is also able to fix it. This Article’s discussion of solutions begins with a proposal made by the 9/11 Commission to address information sharing failures—the formation of a super committee to address national security matters. After explaining why this is not the right answer, this Article offers four concrete proposals to remedy the problem. First, Congress should promote inter-committee information sharing by expanding cross-committee membership. Second, Congress should require joint briefings to committees when matters cut across jurisdictional boundaries. Third, Congress should permit members to share classified information with other members under limited, clearly defined circumstances. And fourth, Congress should create a Congressional National Security Council to coordinate cross-cutting national security matters and share mutually relevant information
Property Law for the Ages
Get PDFWithin the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more inelastic incomes, and shorter time horizons than those faced by younger people, elderly people encounter a doctrine that often fails to protect their interests.
This Article explores five areas of property law and evaluates how each fits—or, more frequently, fails to fit—the characteristics of many older subjects. From the law of takings to the law of waste, and from tenant protections to homeowners’ associations, not only is the law a poor fit, but the consequences for the health, safety, finances, and well-being of elderly people are often dramatic. At the same time, one of the rare significant efforts made thus far to protect older people from some of these consequences—the Fair Housing Act’s protection for age-restricted communities—has generated new inequities of its own that raise important questions about competing civil rights priorities. Accordingly, mindful of the dangers of overcorrection, this Article offers institutional reforms aimed to better protect the interests of older people in each area without unduly infringing upon those of others