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

Article III of the U.S. Constitution limits courts to hearing only cases and controversies. To address this limitation, federal courts have developed the doctrine of standing, which requires a litigant to have suffered a cognizable injury in fact, which was caused by the challenged conduct and that will be redressable by a favorable outcome. Courts have struggled to balance these components and, in practice, different requirements have developed for meeting standing depending on the nature of the case and the type of party bringing suit. This Article explores the U.S. Court of Appeals for the District of Columbia Circuit’s recent decisions in Coalition for Responsible Regulation, Inc. v. EPA, Grocery Manufacturers Ass’n v. EPA, and Alliance of Automobile Manufacturers v. EPA. It argues that the D.C. Circuit’s findings in these cases—that industry petitioners lacked standing to sue—are the result of the court’s overly narrow analysis of EPA rulemakings as individual acts, without regard to the broader effect of the regulatory scheme of which the rulemakings are a part. In so doing, the D.C. Circuit has precluded industry petitioners from accounting for the practical financial harms they have suffered. The authors conclude that the consequence of this narrow review is a higher bar to establish standing for industry petitioners than for environmental plaintiffs. Ultimately, the D.C. Circuit’s decisions raise the specter that a regulatory program that has tangible impacts on a regulated industry will nonetheless be shielded from judicial review.

Standing Up for Industry Standing in Environmental Regulatory Challenges

Section 9 of the Endangered Species Act, or the ESA, strictly prohibits any person or other entity from “taking” any endangered or threatened species, whether purposefully or incidentally. In section 10 of the ESA, Congress created two distinct permit mechanisms to allow the U.S. Fish and Wildlife Service, or FWS, to authorize take in certain limited circumstances—namely recovery permits for purely scientific research and incidental take permits, or ITPs, for non-scientific endeavors where such taking is incidental to, and not the purpose of, an otherwise lawful activity. Because scientific research benefitting the species at issue is not a primary objective of the second type of permit, Congress created a carefully calibrated permitting regime for ITPs. These permits provide certain safeguards that ensure extensive public comment opportunities and environmental review under the National Environmental Policy Act—safeguards that, naturally, are less extensive for scientific permits. In recent years, however, the FWS has, in various instances, conflated the distinct purposes of these two statutory permitting schemes. The agency has issued recovery permits to entities seeking authorization for incidental takes rather than scientific research, which has resulted in the issuance of permits to developers with far less public scrutiny and review than Congress intended. This Article analyzes the applicable legislative history and statutory text, assesses recent examples of the conflation of these two distinct permitting schemes, and examines the public policy rationales against the agency’s continued short-circuiting of congressional safeguards through the issuance of recovery permits for incidental takes that are not tantamount to pure scientific research.

Subverting Congress' Intent: The Recent Misapplication of Section 10 of the Endangered Species Act and Its Consequent Impacts on Sensitive Wildlife and Habitat

Front Matter

For decades, toxic chemicals have leaked from disposed electronic equipment into the environment at several sites around Bloomington, Indiana. The contamination has resulted in a series of lawsuits concerning when citizens may bring legal claims in order to have input in the cleanup process. The Seventh Circuit, in Frey v. U.S. Environmental Protection Agency, held that section 113(h)(4) of the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, bars review of the EPA’s planned or pending stages of an environmental cleanup. The court held, however, that CERCLA allows review of completed stages of a cleanup as long as they are not directly related to the EPA’s new remediation plans. This Comment argues that although the decision is a sensible legal compromise, it ignores the established scientific concept of biogeochemical cycling: matter is not static, it moves throughout the many compartments of Earth’s surface. The Seventh Circuit’s decision ignores this scientific truth and instead creates illusory distinctions between environmental compartments in order to satisfy a legal rule. Although the decision ignores the process of biogeochemical cycling, it nonetheless creates a predictable precedent. Additionally, this Comment argues that the Seventh Circuit’s decision will not have a practical impact on the remediation of the Bloomington, Indiana sites, or any other CERCLA cleanup sites in the court’s jurisdiction, because the EPA’s remediation plans, which account for biogeochemical cycling, will continue unaffected.

Staged CERCLA Remediation vs. Biogeochemical Cycling: How the Seventh Circuit Compartmentalized the Environment in Frey v. EPA, and Why Polychlorinated Biphenyls Don’t Care

In 2012 the Environmental Protection Agency issued a Final Rule subjecting coal and oil-fired electric utility steam generating units, or EGUs, to EPA regulation under section 112 of the Clean Air Act, officially listing them as “source-categories” of Hazardous Air Pollutant, or HAP, emissions. Additionally, the agency held that situation-specific factors, such as implementation and compliance costs, should not be considered when designating EGUs for regulation. In White Stallion Energy Center, LLC v. U.S. Environmental Protection Agency, the U.S. Court of Appeals for the D.C. Circuit held that the CAA does not require EPA to consider implementation and compliance costs when designating coal and oil-fired EGUs for regulation. The legislative purpose and statutory language of CAA section 112, however, supports a finding that EPA is actually barred from such cost consideration. This Comment argues that in light of the D.C. Circuit’s holding in White Stallion, EPA could have interpreted section 112 in its 2012 Final Rule to completely prohibit the agency from considering EGU regulatory compliance costs. If EPA had taken a stronger position on the statutory bar to cost consideration, the D.C. Circuit would have affirmed the agency’s decision as the correct interpretation of section 112. Such a holding, in turn, would have ensured more environmentally friendly decision-making for years to come.

Bucking White Stallion: Why EPA Should Have Prohibited Cost Considerations from Clean Air Act EGU Regulatory Designations and Why the D.C. Circuit Would Have Upheld It

Since the early 1900s, the federal land management agencies—the Forest Service in particular—have focused their wildfire management efforts on suppression. A century of wildfire suppression policy has created a buildup of natural fuels in the Nation’s forests that contribute to larger, more damaging fires today. This, coupled with the rapid development of the Wildland-Urban Interface, makes today’s wildfires a greater threat to human life and property. As a result, the federal government’s annual expenditures for wildfire management have ballooned in recent years. Relying on the billions of tax dollars spent each year to fight wildfire, individuals have continued to develop property on fire-prone lands and insurers continue to issue them policies with premiums that do not reflect the true risk of wildfire. This situation creates an implicit subsidy for residents of fire-prone lands, which presents many of the same pitfalls as the National Flood Insurance Program’s explicit subsidy for residents of flood-prone lands. This Note advocates for a reform of the way we pay for wildfire management. Specifically, it encourages the federal government to implement a National Wildfire Insurance Program that employs a “homeowner mandate” to shift the costs of wildfire management to those who directly benefit from it: the residents of the Wildland-Urban Interface.

Free Riders on the Firestorm: How Shifting the Costs of Wildfire Management to Residents of the Wildland-Urban Interface Will Benefit Our Public Forests

American Indians interact with land and the environment in a manner that is distinct from non-native peoples. They view natural resources as an integral part of their way of life. As a result, Indian tribes desire to implement policies and programs that will protect their natural resources. In order to receive federal assistance for these policies and programs, however, a tribe must be federally recognized. The Duwamish tribe, which resides near Seattle, Washington, is not a federally recognized tribe. Despite years of fighting for recognition, the Duwamish cannot take part in the improvement of their tribal region’s air and water quality. Alternatively, the Forest County Potawatomi Community is federally recognized. The tribe has utilized its federal status to redesignate its reservation lands under the Clean Air Act, which brings stricter environmental regulations on and around the reservation. As long as the Bureau of Indian Affairs’ criteria for federal recognition continue to be arbitrarily and haphazardly enforced, unrecognized tribes like the Duwamish will continue to lack the power to address the environmental issues in their tribal region, in contravention of their fundamental beliefs and way of life.

People of the Outside: The Environmental Impact of Federal Recognition of American Indian Nations

The Commission of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western Pacific Ocean, or the WCPFC, manages fish stocks of significant financial and ecological value across a vast area of the Pacific Ocean. WCPFC members, however, have disagreed sharply over management measures for tuna, sharks, and other species. These disagreements have arisen due to ambiguous text in the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western Pacific Ocean regarding the roles of the Convention’s subsidiary bodies and providers of scientific advice. Some members argue that only the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean, or the ISC, and the Northern Committee may provide scientific and management advice for those fish stocks occurring north of twenty degrees north latitude. Other members, however, believe that the Convention’s Scientific Committee has the ultimate responsibility to provide advice to the WCPFC for all stocks. These institutional disagreements are having profound, adverse impacts on species. This Article concludes that the Convention grants the Scientific Committee the authority to review the assessments and other work of the providers of scientific information and make recommendations to the Commission concerning conservation and management of all stocks in the Convention Area. This gives the Scientific Committee the authority and the duty to review the ISC’s scientific advice and recommendations deriving from it. To clarify any ambiguity, this Article recommends that the WCPFC revise the rules of procedure of the Northern Committee, the memorandum of understanding between the WCPFC and the ISC, and the WCPFC’s resolution on best available science.

Bringing Southern Bluefin Tuna Back from the Brink: Enhancing Understanding of the Scientific Process in the Western and Central Pacific Fisheries Commission

Despite the recent growth of socially responsible investment (“SRI”), there is little evidence supporting its central claim: that it can affect a company’s cost of capital, thus inducing good behavior. Accordingly, this Note questions whether there are legal ramifications for a company that misrepresents its environmental and social practices, when such practices in fact do not affect the expected future cash flows of the company, the company’s cost of capital, and in turn, the price of the company’s stock. SEC Rule 10b-5 provides a private right of action for securities fraud, but requires that an investor sustain an economic loss as a result of a company’s material misrepresentation. If SRI cannot affect a company’s cost of capital, and ultimately its stock price, then Rule 10b-5 is unavailable—the economic loss element of the claim cannot be satisfied. The human motivations for SRI are complex, however, and financial professionals continue to make investment decisions based on companies’ social and environmental representations, which the companies continue to make, perhaps, to gain reputational benefit in the eyes of consumers. For these reasons, this Note argues that there should be a legal remedy for “green misrepresentations” that do not cause a drop in share price. It goes on to suggest that preventative measures be implemented because, regardless of the economic harm to the investor, there is a direct moral harm in being misled into supporting environmental practices counter to one’s beliefs, and an opportunity cost in foregoing investments that produce real-world benefits for the environment and society.

Rule 10b-5 at the Intersection of Greenwash and Green Investment: The Problem of Economic Loss

The global freshwater shortage has already reached crisis levels. The World Health Organization and UNICEF estimate that there are over 700 million people in the world without access to clean drinking water. While this crisis continues to intensify, a massive, game changing source of freshwater is floating in the Arctic and Antarctic oceans, slowly melting away: icebergs. This Note analyzes the potential for harvesting icebergs as a freshwater source on a global scale. By focusing on and illustrating the legal status of icebergs on the high seas, this Note seeks to demonstrate why icebergs are res nullius—existing in a legal vacuum. Proceeding under the substantiated assumption that icebergs are res nullius, this Note suggests that unilateral action by the United States is the most effective way to ascertain whether iceberg harvesting is, in fact, a practical solution to the global freshwater shortage. Further, if iceberg harvesting is established as such a solution, this Note suggests that unilateral U.S. action is also the most effective way to jumpstart an international iceberg harvesting industry. Finally, this Note proposes two regulatory options for how the U.S. Government can promulgate a legal regime to regulate a future iceberg harvesting industry.

Boston College Environmental Affairs Law Review (Vol. 42, Iss. 2)

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