Published from 1971 to 2017, Boston College Environmental Affairs Law Review was one of the nation's first two law reviews dedicated to environmental law.

In 2017, the journal, along with three of Boston College Law School's other student-edited journals was consolidated into a single, larger journal published under the title Boston College Law Review.

Boston College Environmental Affairs Law Review

Following the designation of the West Coast coho salmon as a threatened species under the Endangered Species Act, and the ensuing designation of the Klamath River system in the Pacific Northwest as critical habitat for the species, the indigenous Karuk Tribe challenged the U.S. Forest Service’s mining permit approval practices in Karuk Tribe of California v. U.S. Forest Service. Under Section 7 of the ESA, an agency must consult with one of two outside resources in instances where the agency’s actions “may affect” an endangered population. In reversing the district court’s denial of summary judgment on the Tribe’s ESA claim, the Ninth Circuit held that the Forest Service’s approval of mining applications without consultation constituted discretionary agency action that may affect the region’s coho salmon population. This Comment argues that this broad interpretation of agency action accurately reflects Section 7’s requirements. Furthermore, because this standard is clear, courts should apply this broad interpretation in future cases to avoid inconsistency and protect the environment in accord with congressional intent.

Endangered Precedent: Interpreting Agency Action and the Duty to Consult Under Section 7 of the ESA in Light of Karuk

In 2007 it came to light that town officials in Crestwood, Illinois had intentionally caused residents to use contaminated well water for more than twenty years. A group of residents sued the town and its officials and alleged that the contaminated water had caused illness (and in some cases death) to themselves and their relatives. In response, the town sought indemnification from its insurer, Scottsdale Indemnity Co. The insurance company refused to provide coverage on the grounds that the contamination had triggered the “pollution exclusion” included in Crestwood’s insurance contract. This Comment argues that when analyzing the applicability of a pollution exclusion, courts should adopt a “reasonable expectations” test. This test requires a court to look beyond the plain meaning of an insurance policy. Instead, courts should consider the reasonable expectations of the policyholder at the time the insurance policy was purchased. This test vindicates the rights of policyholders and ensures that victims of pollution harms are compensated for damage to their health and environment.

Poison in the Well: Creating Reasonable Expectations for Compensation after Scottsdale Indemnity Co. v. Village of Crestwood

Under the Migratory Bird Treaty Act (MBTA) it is a federal misdemeanor to kill a migratory bird “by any means, or in any manner.” In 2012, three oil and gas companies operating in the Bakken region of North Dakota were charged with violations of the MBTA after dead and oiled birds were found in and around their oil reserve pits. In United States v. Brigham Oil & Gas, L.P., the companies challenged the violations by claiming that the MBTA applied only to conduct directed at birds, and not to lawful commercial activities that might result in the incidental death of birds. The District Court for the District of North Dakota agreed and dismissed the charges. This Comment argues that the motion to dismiss should not have been granted because the court’s interpretation of the MBTA’s scope is too narrow and runs counter to binding and persuasive precedent acknowledging that incidental killing is within the scope of the MBTA.

North Dakota: Flipping the Bird at the Migratory Bird Treaty Act Since 2012

In August 2008, the U.S. Fish and Wildlife Service published a final rule in the Federal Register officially removing the West Virginia northern flying squirrel from the List of Threatened and Endangered Wildlife, approximately twenty-three years after it was originally listed. The flying squirrel’s delisting proved quite controversial and many environmentalists challenged the agency’s decision for violating of the Endangered Species Act. The D.C. Circuit, in Friends of Blackwater v. Salazar, nevertheless upheld the FWS’s delisting decision, finding that ESA recovery plans merely provide non-binding guidance. This Comment argues that although the D.C. Circuit decided the case correctly on the basis of proper statutory interpretation and adherence to common law precedent, the practical implications of this decision create significant cause for concern. Congress should therefore amend the ESA to impart legal enforceability on recovery plans if it wishes provide endangered species with a heightened degree of protection.

Time for Judicial Enforcement of ESA Recovery Plans?... "When [Squirrels] Fly"

As Texas’s population continues growing, the state is struggling to forestall a looming water crisis. Tarrant Regional Water District, a Texas state agency, sought to purchase some of Oklahoma’s water from the Red River, which forms a boundary between the states. Tarrant’s efforts failed because Oklahoma’s water permit laws disfavor out-of-state purchasers. Tarrant sued the Oklahoma Water Resources Board and claimed in part that Oklahoma’s laws create an unconstitutional restriction on interstate commerce. In Tarrant Regional Water District v. Herrmann, the Supreme Court affirmed the Court of Appeals for the Tenth Circuit and dismissed Tarrant’s Commerce Clause claim as meritless. This Comment argues that the Supreme Court’s holding could hinder interstate cooperation in solving water shortages.

Blocking the Flow: Texas Faces New Challenges in Its Water Crisis after an Unfavorable Ruling in Tarrant

Groundwater is a scarce resource in the arid plains of the northwestern United States. Accordingly, its high demand by farmers and cattle ranchers has led to a series of laws restricting and governing its use. The Supreme Court of Washington recently ruled in Five Corners Family Farmers v. State that one of these statutes, drafted decades ago, allows for unlimited water to be used for the purposes of watering cattle. This Comment reviews the competing arguments of this case, and focuses on the method the court used in making its determination. This Comment addresses the plain meaning of the statute in question, and suggests that while the court made the correct decision, it may have catastrophic effects on the land and people affected by it.

The Thirsty Cattle Exception: How an Antiquated Law Could Dry Up Eastern Washington

In 1977, the Food and Drug Administration initiated a process to withdraw approval of the subtherapeutic use of antibiotics in food producing animals out of concern the use was not shown to be safe. Over thirty years later, the FDA still had not completed the process, prompting several nonprofit advocacy groups to seek a court order compelling action. In Natural Resources Defense Council, Inc. v. U.S. Food & Drug Administration, a federal district court considered whether the FDA unlawfully withheld or unreasonably delayed agency action in violation of the Food, Drug, and Cosmetic Act and the Administrative Procedure Act. The district court applied the APA’s “unlawfully withheld” test, considered the plain meaning of the statute, and rendered a swift decision in favor of the plaintiffs. This Comment argues that applying the APA’s “arbitrary and capricious” test instead of the more deferential “unlawfully withheld” test would have encouraged greater transparency in agency decision-making.

Natural Resources Defense Council v. Food and Drug Administration: Is the Standard of Review "Unlawfully Withheld" or "Arbitrary and Capricious"?

Front Matter

In 2005, the United States took by eminent domain about 32.42 acres of prime San Diego coastland that had been subject to California’s public tidelands trust. In the Ninth Circuit Court of Appeals, the California State Lands Commission argued that although the state public trust may not apply to the land while in federal hands post-taking, the trust should re-emerge to burden the property if the federal government later transfers it to a private party. In 2012, the Ninth Circuit rejected this argument, holding in United States v. 32.42 Acres of Land that the federal taking permanently extinguished the state public tidelands trust applicable to the property. This Comment argues that in terminating the state public trust on the San Diego property, the Ninth Circuit failed to consider the degree to which its decision enables unconstitutional evasion of the public use requirement of the Takings Clause by facilitating economic development takings that eliminate a vast amount of public benefit but create relatively little in return.

Boston College Environmental Affairs Law Review (Vol. 40, Iss. 3)

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