Boston College Environmental Affairs Law Review
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Open Access journal
ISSN (Print) 0190-7034
Published by Boston College [8 journals]
- Protecting the Delta Smelt: Environmental Organizations Have Standing to
Enforce the Endangered Species Act’s Consultation Requirement
Authors: Alexandra Shalom
Abstract: In January 1993, the U.S. Fish & Wild Life Service (“FWS”) added the delta smelt, a small, silvery blue fish, to the Endangered Species Act’s (“ESA”) list of threatened wildlife. Species on the list are entitled to the ESA’s protections. In Natural Resource Defense Council v. Jewell, the Natural Resource Defense Council (“NRDC”) brought an action against the Bureau of Reclamation (the “Bureau”) for violating Section 7(a)(2) of the ESA, the consultation requirement, to protect the delta smelt. The consultation provision required the Bureau to consult with the FWS before it renewed contracts that controlled water rights in the delta smelt’s habitat. To use the ESA’s citizen suit provision, a plaintiff must establish Article III standing. The NRDC was able to satisfy all three elements of Article III standing: injury in fact, causation, and available redress. The United States Court of Appeals for the Ninth Circuit found that a non-governmental organization could have Article III standing to challenge a federal agency’s violation of the ESA consultation requirement. This Comment argues that the Ninth Circuit properly reasoned that redress could be available before a listed species suffers actual harm, thereby providing species with protections guaranteed by the ESA.
PubDate: Mon, 11 Jul 2016 14:00:18 PDT
- Permitting Efficiency in Storm Water Effluent Compliance
Authors: Ryelle Seymour
Abstract: In Natural Resources Defense Council, Inc. v. County of Los Angeles, the U.S. Court of Appeals for the Ninth Circuit addressed the issue of National Pollutant Discharge Elimination System (NPDES) permit violations under the Clean Water Act. Environmental organizations brought suit against the County of Los Angeles and the Los Angeles County Flood Control District after the District published monitoring station reports identifying 140 separate exceedances of permit limitations. Even though the defendants’ monitoring station was located downstream from other permittees, the defendants were held liable as a matter of law for the violations because the permit clearly stated that the monitoring station data would be used to determine permittee compliance. This Comment argues that the Ninth Circuit’s analysis was correct, and further that preliminary testing for the monitoring station as well as more frequent monitoring and reporting will clarify liability.
PubDate: Mon, 11 Jul 2016 14:00:16 PDT
- Caveat Emptor: How the Public Trust Doctrine Impacts the Penn Central Test
and a Beachfront Landowner’s “Bundle of Rights”
Authors: Eric J. Risley Jr.
Abstract: Derived from ancient Justinian and English common law, the “public trust doctrine” vests ultimate and inalienable ownership of certain tracts of land in the state. Many states have incorporated some variation of the public trust doctrine into their statutes, constitutions, or common law. The application of the public trust doctrine, however, has been challenged as constituting a Fifth Amendment regulatory taking of private property under the United States Constitution, giving rise to the need for just compensation. This type of application of the public trust doctrine was at issue in the nearly decade-long saga culminating in the decision of Palazzolo v. State. The case featured an owner of marshland property who sought compensation for Rhode Island’s denial of his repeated development requests. The Rhode Island Superior Court in Palazzolo ultimately held that the state’s denial of the landowner’s requests did not constitute a regulatory taking. This Comment analyzes the role that the public trust doctrine played in the court’s weighing of the various factors in a regulatory takings analysis. Further, this Comment argues that the public trust doctrine, as applied in Palazzolo, represents a tremendously powerful means for states to set aside publically valuable swaths of land, a means capable of withstanding even a constitutional challenge.
PubDate: Mon, 11 Jul 2016 14:00:13 PDT
- When Is Whenever? EPA’s Retroactive Withdrawal Authority in Mingo Logan
Authors: Hale Melnick
Abstract: In 2007, the United States Army Corps of Engineers granted Mingo Logan Coal Co. a permit to discharge dredge and fill material into four West Virginia streams and their tributaries. The U.S. Environmental Protection Agency (EPA) did not file an objection despite concerns about the discharge’s environmental impacts. Two years later, EPA moved to withdraw the permit in light of new information and circumstances regarding the discharge’s impact on wildlife. EPA claimed that it was authorized to withdraw the permit under Section 404(c) of the Clean Water Act, which provides the Administrator of EPA with the authority to veto specification sites “whenever he determines” a discharge will have an “unacceptable adverse effect” on identified environmental resources. Mingo Logan appealed EPA’s permit withdrawal on the grounds that EPA exceeded its authority under the Clean Water Act. The U.S. Court of Appeals for the District of Columbia upheld EPA’s authority to retroactively withdraw the permit. Although the court’s decision has sweeping implications for the reach of EPA, this Comment argues that such broad administrative authority is justified by the plain text of the Clean Water Act and the need for the federal government to take immediate action during environmental crises.
PubDate: Mon, 11 Jul 2016 14:00:09 PDT
- Cooperative Federalism and Visibility Protection Under the Clean Air Act
Authors: Nicholas Knoop
Abstract: In 2005, the U.S. Environmental Protection Agency (EPA) issued regulations pursuant to the Clean Air Act requiring states to submit plans to address visibility impairment due to air pollution. The regulations directed states to consider installing emissions controls at certain stationary sources according to five factors, including the cost of compliance. In Oklahoma v. U.S. Environmental Protection Agency, the U.S. Court of Appeals for the Tenth Circuit held that EPA lawfully rejected Oklahoma’s plan because the state plan failed to follow EPA-promulgated guidelines when determining the cost of compliance factor. This Comment argues that the outcome in Oklahoma was correct, however, the court did not apply the appropriate standard of review. The appropriate standard of review was to determine whether the state plan was reasonable and in compliance with the statute and EPA guidelines. EPA rightly rejected Oklahoma’s plan because the plan failed to comply with the EPA regulations on cost of compliance calculations.
PubDate: Mon, 11 Jul 2016 14:00:06 PDT
- A Fractured Standard: How the Fourth Circuit Granted Expansive Implied
Property Rights to Mineral Owners
Authors: Davis Truslow
Abstract: Extraction of natural gas through hydraulic fracturing poses a significant risk of harm to human health and the environment. West Virginia, like many states that lie above vast oil and gas resources, grants expansive implied property rights to owners of subsurface mineral estates. In Whiteman v. Chesapeake, L.L.C., the United States Court of Appeals for the Fourth Circuit held that a hydraulic fracturing company’s construction and use of drilling waste pits on the surface of another’s property did not constitute a trespass under West Virginia common law because it was reasonably necessary for the recovery of natural gas and did not impose a substantial burden on the surface property. This Comment argues that the court’s decision misapplied a common law standard to a unique set of facts and, as a result, has significantly diluted the protections afforded to individual landowners. The court should have determined that a permanent disposal of waste on the surface of another’s property exceeds the implied rights of mineral estate owners because such a use is not necessary. In addition, even if the court had found that such a disposal was necessary, it should have concluded that permanent disposal of waste was not reasonable.
PubDate: Wed, 01 Jun 2016 14:39:14 PDT
- A Wide Berth for FRCP 52: Application of the Clearly Erroneous Standard of
Review in the Admiralty Law Context
Authors: Emma Nitzberg
Abstract: In the Admiralty proceeding Frescati Shipping Co. v. Citgo Asphalt Refining Co., an oil tanker within its final approach of its destination on the Delaware River struck an abandoned ship anchor. The anchor punctured the hull of the ship, allowing 263,000 gallons of crude oil to spill from it. In reviewing the trial court’s decision, the U.S. Court of Appeals for the Third Circuit employed the clearly erroneous standard of review. Using this highly deferential standard, the Third Circuit held that the trial court had failed to find facts specially and state its conclusions of law separately, requirements of Federal Rule of Civil Procedure 52(a)(1). In the highly specialized context of Admiralty law, uniformity and consistency are especially necessary. By employing the clearly erroneous standard of review in the Admiralty context, the Third Circuit adequately served the aim of maintaining uniformity of results within a niche area of law.
PubDate: Wed, 01 Jun 2016 14:39:09 PDT
- Water, Water, Everywhere, and Plenty of Drops to Regulate: Why the Newly
Published WOTUS Rule Does Not Violate the Commerce Clause
Authors: Samuel Worth
Abstract: On June 29, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly published a final rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act,” to clearly delineate how the Clean Water Act protects streams and wetlands. The new Waters of the United States rule (“WOTUS Rule” or the “Rule”) abrogated the previous definition of waters of the United States under Clean Water Act jurisdiction. To the great displeasure of many private landowners, the Rule entered into effect on August 28, 2015. In particular, several critics have argued that the new WOTUS Rule’s regulation of “other waters,” its definition of “adjacent,” and its expanded construction of the term “tributary” violate the Commerce Clause of the U.S. Constitution. Examining select, representative challenges by the National Association of Homebuilders, the Kansas Livestock Association, and the National Cattlemen’s Beef Association, this Note argues that those three features of the new WOTUS Rule do not, as alleged, contravene the Commerce Clause. As a matter of Commerce Clause jurisprudence, the new WOTUS Rule is a legal tool to aid the federal government in its fight against the degradation and pollution of our nation’s waters.
PubDate: Wed, 01 Jun 2016 14:39:01 PDT
- Resurrecting the Public Trust Doctrine: How Rolling Easements Can Adapt to
Sea Level Rise and Preserve the United States Coastline
Authors: Erica Novack
Abstract: The Atlantic coastline of the United States is experiencing sea level rise at a rate higher than the global average. Antiquated property laws and land use tools are unable to adequately assist state and local governments in managing coastal regions, in light of this threat. Rolling easements—prohibiting hard shoreline armoring and requiring the movement or abandonment of property once it becomes inundated by the sea—would allow for the natural inland migration of invaluable coastal resources such as beaches and wetlands. Further, enacting rolling easement polices would be a proactive step towards providing ocean-front property owners with notice of the necessarily finite nature of their property rights. In the long-term, such a policy would prevent future costs from emergency response needs, legal battles, and the loss of natural and economic benefits from coastal resources. Because the public already has a cognizable legal right in the coastline from the public trust doctrine, enacting a rolling easement policy to protect that legal right would not constitute a regulatory taking of private property. Sea level rise poses a particularly immediate threat to North Carolina and Virginia, therefore, this Note suggests that both states could benefit from enacting a rolling easement policy.
PubDate: Wed, 01 Jun 2016 14:38:56 PDT
- Challenging the 2013 Rule Implementing Regulations on Oversnow Vehicle Use
in Yellowstone National Park
Authors: Brian Bieschke
Abstract: In 2013, the National Park Service (“NPS”) promulgated a new rule to regulate the use of snowmobiles and snowcoaches in Yellowstone National Park during the winter months. The innovation and development of such “oversnow” vehicles increased park visitors’ access to Yellowstone’s majestic wonders throughout winter. Unfortunately, because such vehicles emitted noise and air pollution and created safety hazards, their unfettered use throughout the winter season posed an ever-increasing threat to the natural integrity of Yellowstone and to visitors. To mitigate the negative effects of oversnow vehicles on Yellowstone, the NPS began restricting their use by placing fixed limitations on the number of oversnow vehicles permitted to operate within the park. These early regulations were met with various legal challenges, advanced by oversnow vehicle proponents and opponents alike. In response, the NPS created a new framework for limiting use in the 2013 rule structured around the “transportation event,” as opposed to setting fixed limitations. This Note engages in an analysis of this novel framework and argues that utilization of the transportation event scheme strikes the appropriate balance between conservation interests and allowing access to the park’s resources. Nevertheless, the rule remains vulnerable to potential legal attack.
PubDate: Wed, 01 Jun 2016 14:38:51 PDT
- The Intersection of the Takings Clause and Rising Sea Levels: Justice
O’Connor’s Concurrence in Palazzolo Could Prevent Climate Change Chaos
Authors: Devon Applegate
Abstract: Takings Clause jurisprudence is in a state of disarray. The Supreme Court of the United States has not eased the difficult task of determining what constitutes an unconstitutional regulatory taking. Although the Supreme Court provided some guidance by articulating a three-prong test for determining what constitutes such a taking, it failed to define each prong. In a concurring opinion in Palazzolo v. Rhode Island, Justice Sandra Day O’Connor defined the character of the governmental act prong by emphasizing the importance of the purposes served by a governmental act. Justice O’Connor’s approach is well suited to handle future environmental regulations aimed at protecting coastal regions from rising sea levels. By embracing this approach, the Court can reduce the confusion surrounding takings jurisprudence, provide uniformity at a critical time, swiftly handle the excess of takings claims that will inevitably materialize, and give deferential treatment to important regulations that possess strong public purposes.
PubDate: Wed, 01 Jun 2016 14:38:45 PDT
- Climate Change Insurance and Disasters: Is the Shenzhen Social Insurance
Program a Model for Adaptation?
Authors: Anastasia Telesetsky et al.
Abstract: As one of the most disaster-prone nations, China is grappling with creating effective adaptation strategies. In an effort to pool risk, Chinese officials are introducing new climate change insurance products. This Article describes one pilot product introduced in the City of Shenzhen, a global mega-city with a population of approximately fifteen million, and explores its strengths and weaknesses as a model for adaptation to climate change. This Article concludes with proposals for reducing risk within mega-cities and pooling risk among them.
PubDate: Wed, 01 Jun 2016 14:38:38 PDT
- Strategic Land Use Litigation: Pleading Around Municipal Insurance
Authors: Christopher Serkin
Abstract: Municipal insurance policies inevitably contain a curious exclusion of coverage for regulatory takings claims. Many courts have interpreted this exclusion broadly, applying it to all land-use litigation. Other courts have interpreted the exclusion narrowly. Both interpretations are problematic. The former is at odds with policy language and the normal rule that insurance policies are to be construed against the insurer. The latter creates an opportunity for plaintiffs to craft their pleadings explicitly to trigger or to avoid triggering the municipality’s insurance coverage. Plaintiffs seeking a quick settlement are well advised to plead around the exclusion so as to settle with the insurer. But plaintiffs seeking to have the local government capitulate should avoid the insurance coverage, forcing the local government to bear its own litigation costs and the risk of an adverse judgment. The possibility of such pleading arbitrage is problematic, and this Article argues that states should find ways to extend insurance to cover Fifth Amendment regulatory takings claims.
PubDate: Wed, 01 Jun 2016 14:38:32 PDT
- Applying Life Insurance Principles to Coastal Property Insurance to
Incentivize Adaptation to Climate Change
Authors: Edward P. Richards
Abstract: Current levels of greenhouse gases will result in significant sea level rise in the future, irrespective of the success of any future mitigation efforts. Paleoclimate and geologic data from past periods of rising sea level show that low lying areas, especially river deltas which are home to half a billion people, will be inundated. The best way to represent this risk through insurance is to apply the human-life insurance model to coastal property insurance. Human-life insurance is based on the assumption that every insured will die. Because the risk of death increases with age, the cost of insurance increases with age. Property-life insurance assumes that coastal properties will be lost at an unknown future date determined by the rate of sea level rise and patterns of catastrophic storms. As with human-life insurance, premiums would increase on a regular schedule through time. This predictable premium increase would create a powerful risk signal to incentivize adaptation.
PubDate: Wed, 01 Jun 2016 14:38:27 PDT
- The Government’s Role in Climate Change Insurance
Authors: Peter Molk
Abstract: There are no robust insurance markets for climate change insurance. While these markets would provide valuable loss-mitigation incentives, at the same time giving financial certainty to individuals and businesses that face staggering future liabilities, existing efforts have produced a fragmented set of private and public products that provide only piecemeal coverage. This Article examines the government’s role in providing unified markets for insuring climate change risk. Although innovations in reinsurance markets suggest that private insurers could cover discrete risks associated with climate change, such as flood or wind loss, climate change’s broader systemic risks present problems of scale and scope that public insurance is better positioned to handle. This Article draws lessons from existing insurance programs to show both why purely private insurance would be inappropriate for a robust climate change insurance market, as well as how a nationally provided insurance program could be designed to avoid past problems.
PubDate: Wed, 01 Jun 2016 14:38:21 PDT
- Climate Change and Federal Crop Insurance
Authors: Chad G. Marzen et al.
Abstract: The federal crop insurance program is well-positioned today to promote resilient agricultural practices that mitigate the future impact of climate change. In light of climate change risk, this Article examines issues relating to climate change and the federal crop insurance program. Part I of this Article examines the present risk of climate change in agriculture and discusses recent steps taken to address climate change in agriculture in general, specifically within the federal crop insurance program. As a condition to federal crop insurance coverage, a farmer-insured must utilize “good farming practices” to obtain coverage for covered causes of loss. Part II examines the role of “good farming practices” determinations and its effects on climate change. This Article addresses three cases decided within the past five years and contends that the increasing number of cases in the federal courts indicate that an amendment to the “good farming practices” standard may have a significant effect in promoting climate change mitigation. This Article concludes by proposing an amendment to the “good farming practices” standard. The proposed standard dictates that if a farmer utilizes “sustainable, resilient and soil-building agricultural practices,” then such utilization must be weighed as a substantial factor in support of a “good farming practices” determination by the Risk Management Agency.
PubDate: Wed, 01 Jun 2016 14:38:14 PDT
- Lessons From U.S. Coastal Wind Pools About Climate Finance and Politics
Authors: Donald T. Hornstein
Abstract: The financial costs of extreme weather are profound, not only in terms of the distress of those immediately affected but also in broader, more long-term macroeconomic and public budgetary effects. This Article focuses on the role that private and public insurance can play, both positively and negatively, on these effects. It also provides one of the most detailed analyses in the legal literature to date on the finances of three state residual-risk wind pools in the Gulf and Southeastern United States that have been created specifically with hurricane risks in mind.
PubDate: Wed, 01 Jun 2016 14:38:08 PDT
- Mitigation of Climate Change Risks and Regulation by Insurance: A Feasible
Proposal for China
Authors: Qihao He
Abstract: Climate change is one of the most fundamental challenges of our time. The extraordinary growth of greenhouse gas (“GHG”) emissions in China represents the single greatest obstacle to global climate change efforts in the coming decades. Meanwhile, China suffers from the adverse consequences of climate change. It has been recognized that two factors may increase climate change risks: (a) the increase in GHG emissions, which will increase the frequency and intensity of climate hazards; and (b) the increase of value-at-risk, such as the increased concentration of the world’s population and property in vulnerable areas. Therefore, mitigation of climate change risk involves not only human intervention to reduce GHG emissions but also prevention of potential losses caused by climate hazards. Among many solutions to risk mitigation, insurance has received increased attention due to its expertise in risk management and regulatory function in influencing policyholders’ behavior. This Article examines the ability of two types of insurance—liability insurance and catastrophe insurance—to regulate and thus help mitigate climate change risks, and considers the potential lessons for China.
PubDate: Wed, 01 Jun 2016 14:38:03 PDT
- Incentivizing Municipalities to Adapt to Climate Change: Takings Liability
and FEMA Reform as Possible Solutions
Authors: David Dana
Abstract: This Article addresses a central question of climate adaptation in the United States: how can municipalities, which are best positioned to take a lead in climate change adaptation efforts, be incentivized to do so? The Article analyzes and ultimately rejects as doctrinally unmoored and counterproductive one idea that has been suggested by commentators and arguably endorsed in a few noteworthy recent cases—that is, that municipalities and other governments be held liable under the Takings Clause for their failing to take adaptive measures that protect private property. Instead, the Article argues that municipalities should be given an incentive to adapt by means of modifications in federal aid programs that in effect would require the municipalities to obtain private insurance against climate-change-related damage to public property and infrastructure. This proposal, if adopted, would be a salient first step toward the transformation of federal policy from one that actively discourages private adaptation to changing patterns of extreme weather and sea level rise to one that actively encourages such adaptation.
PubDate: Wed, 01 Jun 2016 14:37:57 PDT