Boston College Environmental Affairs Law Review
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Open Access journal
ISSN (Print) 0190-7034
Published by Boston College [8 journals]
- A Narrowing of Section 1983 Claims: How Gonzaga Has Limited Recovery for
Victims of Lead Poisoning in Federal Court
Authors: Anna Snook
Abstract: Dellita Johnson brought a claim against the City of Detroit on behalf of her minor son, asserting that her son sustained lead poisoning from the public housing unit in which they lived. She brought claims under 42 U.S.C. § 1983 for the deprivation of federal rights created under provisions of the United States Housing Act, the Lead-Based Paint Poisoning Prevention Act, and administrative regulations created under those statutes. The United States Court of Appeals for the Sixth Circuit affirmed the District Court’s dismissal of Ms. Johnson’s claims, holding that the applicable provisions of the United States Housing and the Lead-Based Paint Poisoning Prevention Act do not contain rights-creating language sufficient to bring a § 1983 claim. The court also held that regulations promulgated pursuant to the statutes could not create enforceable rights on their own for purposes of § 1983. This comment argues that based on the Gonzaga v. Doe precedent, the Sixth Circuit reached the correct legal conclusion; however, Gonzaga has far-reaching negative implications on the individuals for whom these statutes were designed to protect.
PubDate: Fri, 07 Apr 2017 09:59:55 PDT
- A Consent Decree Abroad: Extraterritorial Enforcement of an EPA Consent
Decree in United States v. Volvo Powertrain Corp.
Authors: Marc C. Palmer
Abstract: Although not as prominent in the public eye as automobile engines, emissions from non-road engines contribute significantly to global air pollution. In 2005, the United States Government fined Volvo Powertrain Corp. seventy-two million dollars for manufacturing non-road engines at its foreign subsidiary because these engines were not in compliance with emissions standards and therefore violated a consent decree between Volvo Powertrain Corp. and the federal government. In United States v. Volvo Powertrain Corp., the United States Court of Appeals for the D.C. Circuit upheld an interpretation of the consent decree and financial penalty put forth by the lower court. This Comment argues that the D.C. Circuit Court of Appeals was correct in holding Volvo Powertrain liable for the emissions violations of its subsidiaries’ engines. Volvo Powertrain subjected itself to United States jurisdiction by requesting certificates of emissions compliance from the Environmental Protection Agency for the engines manufactured abroad by their foreign subsidiary.
PubDate: Fri, 07 Apr 2017 09:59:48 PDT
- Sturgeon v. Frost: A Limited Holding Reveals an Environmentally Hesitant
Authors: Michael O'Loughlin
Abstract: The first environmental case before the United States Supreme Court after the death of Justice Antonin Scalia, Sturgeon v. Frost, involved the National Park Service’s authority to regulate hovercraft use over a segment of river running through lands under its authority pursuant to the Alaska National Interest Lands Conservation Act. The plaintiff sought to show that the State held title to navigable waters within the State, and that, therefore, the National Park Service did not have authority to enforce its regulation. The parties invoked precedent and argued for textual analysis of the at-issue statute, but the United States Court of Appeals for the Ninth Circuit forged its own interpretation of the statute to find for the National Park Service. On review, the United States Supreme Court invalidated the Ninth Circuit’s holding as incongruous with the context of the statute. However, despite a sufficient record, the Court did not articulate the correct interpretation, suggesting a Court hesitant to risk plurality.
PubDate: Fri, 07 Apr 2017 09:59:40 PDT
- Microbeads and the Toxics Use Reduction Act: Preventing Pollution at Its
Authors: Davis Truslow
Abstract: Microbead pollution presents a significant threat to human health and the environment. As a result, Congress enacted a national ban on microbeads in 2015. This ban is a drastic, reactionary measure that fails to address the continued threat posed by already existing pollution. In addition, the ban represents a continued preference for the command-and-control regulatory framework that failed to prevent microbead pollution in the first place. In contrast, pollution prevention, an alternative regulatory technique adopted by Congress as national policy in 1990, more efficiently prevents pollution by focusing on reducing pollution at its source. In 1989, Massachusetts became the first state to successfully implement a comprehensive pollution prevention statute and, as a result, achieved significant pollution reduction throughout the state. If it had applied to microbeads, the pollution prevention model, could have eliminated the need for a national ban and addressed the continued threat posed by already existing pollution.
PubDate: Fri, 07 Apr 2017 09:59:34 PDT
- An Examination of New York’s Martin Act as a Tool to Combat Climate
Authors: Ashley Poon
Abstract: Environmental statutes and regulations in the United States have largely failed to comprehensively control the human activities that cause climate change. This Note examines a novel approach to the matter in the form of an investigation led by New York Attorney General Eric Schneiderman to discover how ExxonMobil incorporates its climate change research into its corporate governance, accounting, and business planning. Schneiderman’s investigation relies on the New York securities fraud statute, the Martin Act, to determine if the company has internally reached one conclusion about climate change in its research while promoting another to investors. ExxonMobil initially cooperated with the Attorney General’s investigation, but the company has since struck back. The battle now involves two lawsuits, many cross-subpoenas, nearly half the country’s Attorneys General, and at least one federal agency. This Note chronicles the history of the Martin Act, a parallel model of litigation in Attorneys’ General attacks on Big Tobacco, and outlines the current status of Schneiderman’s investigation and parallel litigation.
PubDate: Fri, 07 Apr 2017 09:59:27 PDT
- Mercury’s Toxic Process: How Bad Science and Bad Decisions Caused a
Public Health Crisis
Authors: Cameryn Mercurio
Abstract: Since 1998, ethylmercury, a vaccine preservative, has often been confused with methylmercury, a dangerous neurotoxin, by the government and public. This confusion has led to a decrease in vaccination rates and an increase in the spread of preventable disease. Despite significant efforts to educate the public on the inaccuracy of studies linking ethylmercury to autism, the public health agencies have been unsuccessful in demonstrating to the public that the substance is safe. This Note analyzes the actions taken by the public health agencies responding to public concerns about ethylmercury’s use in vaccines and recommends that the agencies undertake a comprehensive study of ethylmercury to determine its safety and resolve the growing public health crisis.
PubDate: Fri, 07 Apr 2017 09:59:20 PDT
- Inverse Condemnation and Fracking Disasters: Government Liability for the
Environmental Consequences of Hydraulic Fracturing Under a Constitutional
Authors: Joseph Belza
Abstract: The practice of hydraulic fracturing, more commonly known as fracking, risks a number of dangerous environmental consequences. Notably, fracking operations can contaminate the underlying water table. Contamination of groundwater can disrupt the access of a nearby property to both potable drinking water and viable commercial irrigation. Usually, when a fracking operation results in this kind of groundwater contamination, affected plaintiffs sue the operator of the rig. This Note proposes that similarly situated plaintiffs also name a new defendant in these actions: the state agency that granted the fracking permit. The governmental actor could bear liability under a constitutional theory of inverse condemnation. Where contamination interferes with an individual’s use and enjoyment of property, the government actor bears responsibility for orchestrating the activity that caused the interference. In short, the government should be more discerning when granting permits to frack, because it can be held financially responsible for the fallout.
PubDate: Fri, 07 Apr 2017 09:59:15 PDT
- The Public Trust as an Antimonopoly Doctrine
Authors: Michael C. Blumm et al.
Abstract: The public trust doctrine originated—and has persisted in American law—as antimonopoly protection. From the time of its recognition by American courts in the early nineteenth century, the doctrine has protected the public against private monopolization of natural resources, beginning with tidal waters and wild animals. Ensuing public trust case law has extended the scope of trust protection to other important natural resources, including non-tidal and non-navigable waters, and land-based resources like parks. Courts are now considering the trust doctrine’s application to the atmosphere. Although there is a considerable body of legal scholarship on the public trust, the doctrine’s antimonopoly core has not been explored. In this Article, we remedy that oversight by examining the public trust’s justification as an antimonopoly sentiment. Antimonopoly policy is at least as old in American law as the public trust and certainly more politically prominent. Viewing the public trust through the lens of antimonopoly helps to explain the history and evolution of this doctrine and its overriding goal of preventing irreversible commitments of natural resources to private monopolization.
PubDate: Fri, 07 Apr 2017 09:59:08 PDT
- 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