by Rena Childers ’26 and Sydney Schoonover ’27
On Monday, February 17, 2025, the Environmental Law & Policy Annual Review (ELPAR) hosted its annual Nashville Conference, which featured Sarah Fox, Associate Professor of Law at the Marquette University Law School. The conference centered on Professor Fox’s ELPAR-recognized article: “Soil Governance and Private Property,” which was previously published in the Utah Law Review and was selected as part of ELPAR’s 2024-2025 top 20 environmental law and policy articles.
In the piece, Professor Fox argues that soil—which offers numerous environmental benefits—should be treated as a common resource, similar to air and water, and that local governments are particularly well-situated to protect soil health in their land use planning capacity by using tools such as zoning to restrict development in areas of high soil quality. The article exemplifies ELPAR’s goal of recognizing the best academic scholarship that offers an environmental law or policy relevant proposal that is creative, impactful, persuasive, and feasible.
The conference began with opening remarks from ELPAR co-instructors Linda K. Breggin and Michael P. Vandenbergh, who highlighted ELPAR’s purpose of bridging the gap between academia and the policymaking and noted that ELPAR editors have the opportunity to shape national policy discussions surrounding the solutions to pertinent environmental issues while developing important professional skills that will continue to benefit students throughout their careers. Molly Cohn ’26, ELPAR’s 2025-2026 Executive Editor, then gave an overview of how 1L students can apply to join ELPAR during the upcoming, annual write-on process, in which rising 2L students compete for spots on Vanderbilt’s law journals. Ms. Cohn additionally explained that ELPAR members have the opportunity to interact with leading practitioners, experts, and policymakers, and will gain a total of six professional skills credits from their time on the journal.
Next, the panelists were introduced by Chelsea Summers ’25, ELPAR’s 2024-2025 Symposium Editor and organizer and moderator of the event. Joining Professor Fox were Scott Potter and Douglas Barry. Mr. Potter—a Vanderbilt University School of Engineering alumnus who currently teaches Mechanics of Materials at Vanderbilt—has served as the Director of Nashville Metro Water Services since 2001. As Director, Mr. Potter oversees the extensive water infrastructure system of Nashville, which produces and distributes drinking water and manages wastewater for hundreds of thousands of residents in and around Davidson County. Mr. Barry is an alumnus of Vanderbilt Law School, city attorney for Belle Meade, Tennessee, and of counsel to Miller & Miller, PLLC. For nearly three decades, he has represented the interests of diverse parties in zoning disputes.
Professor Fox opened the presentation portion of the Conference by providing the attendees—which included students, professors, practitioners, and members of the community—with an overview of her article. She first described the intricacies and interconnectedness of soil. Although seen as a “less exciting” natural resource by the public and scholars alike, Professor Fox detailed the importance of soil, which provides a multitude of critical environmental benefits, including water filtering, carbon capture, and functioning as a habitat for numerous species. She then delineated the existing framework for soil governance in the United States: soil is typically considered at the level of individual land parcels and is subject to multiple overlapping and occasionally conflicting federal, state, and local laws and regulations. She juxtaposed the fragmented nature of soil governance with the more robust and comprehensive frameworks governing air and water, which are legally viewed as common—rather than private—resources. Professor Fox next argued that the failure of existing legal frameworks to provide an avenue for protection of soil health has led to erosion, biodiversity loss, and declining agricultural productivity. As a solution, Professor Fox proposed that soil can be viewed both as private property and as a common resource: if state and local governments account for the interconnectedness between private parcels rather than viewing each parcel in isolation, they can better protect and preserve soil health through leveraging established regulatory controls such as zoning.
Professor Fox’s presentation was followed by remarks from Mr. Potter and Mr. Barry. Mr. Potter and Mr. Barry offered strong praise for the presentation, highlighting its originality and clarity in framing soil as a crucial but often overlooked environmental resource. In his remarks, Mr. Potter emphasized how soil health regulations have failed to treat soil like the valuable resource it is, instead viewing it as a conduit for contamination. Like Professor Fox, he called for a more positive, proactive approach to soil governance—especially at the local level, where change is more feasible. Mr. Barry added local context, explaining how some jurisdictions like Williamson County have already made strides in regulating development to preserve land and soil health through clustering, density limits, and stormwater controls. He noted that while political hurdles exist, there may be more openness to soil-protective zoning in conservative areas than one might assume.
In response, Professor Fox acknowledged these insights as encouraging and reinforced the importance of thinking practically and politically about soil as a resource—stressing the need for strategies that can work across varied legal and political landscapes, including leveraging land-use regulations and messaging that aligns with local priorities.
Next, Ms. Summers opened the floor for audience participation. The audience Q&A raised a wide range of issues, such as private vs. public governance of soil, regulatory mechanisms like TMDLs (Total Maximum Daily Loads), the tension between development and conservation, and how to engage local communities and officials. Some attendees proposed exploring conservation easements or market-based property arrangements to protect soil health. Others pointed to the challenge of political resistance, especially in the form of state-level preemption of local authority. Audience members from local governments also discussed practical efforts and barriers they face in applying these ideas in their communities.
Professor Fox responded with a recurring theme of “both/and thinking,” emphasizing the importance of both government regulation and private action, while also noting the limitations of property law and the real threat of state preemption. She encouraged incremental, localized action and messaging strategies that empower communities, align with economic interests, and frame soil health as beneficial rather than burdensome.
Professor Fox—who was previously an Associate Professor at Northern Illinois University College of Law, where she received the NIU Law Board of Visitors Faculty Scholarship Excellence Award for her research—recognizes her article as one piece of a larger project aimed at reformulating the framework for soil governance. Professor Fox concluded the discussion by highlighting the importance of scholars and government actors wrestling with the flaws in the current conceptualization of soil governance and noted her hope that her article, and the conference dialogue more broadly, would serve to spark an in-depth, lasting conversation about how best to protect soil health.
Sydney Schoonover is ELPAR’s 2024–2025 Editor-in-Chief, and Rena Childers is ELPAR’s 2025-2026 Editor-in-Chief.
