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Semantic Hygiene For The Law Of Regulatory Takings, Due Process, And Unconstitutional Conditions—Making Use Of A Muddy Supreme Court Exactions Case, Zygmunt J.B. Plater, Michael O'Loughlin Jan 2018

Semantic Hygiene For The Law Of Regulatory Takings, Due Process, And Unconstitutional Conditions—Making Use Of A Muddy Supreme Court Exactions Case, Zygmunt J.B. Plater, Michael O'Loughlin

Boston College Law School Faculty Papers

An unfortunate amount of semantic confusion currently burdens the constitutional process of balancing private property rights and governmental public welfare protections. The Fifth Amendment contains both a general requirement of “due process,” and a corollary protection against unconstitutional “taking” of property. These are two separate protections, not just one. More than a century after the Takings Clause was drafted, an enigmatic decision, Pennsylvania Coal, expanded the clause to say that government regulations could cause such a diminution of private property value that they could unconstitutionally take that property, even with no physical appropriation (which is how the Framers had understood ...


While Trump Pledges Withdrawal From Paris Agreement On Climate, International Law May Provide A Safety Net, David A. Wirth Jun 2017

While Trump Pledges Withdrawal From Paris Agreement On Climate, International Law May Provide A Safety Net, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


Trump’S First Foreign Trip And The Fate Of The Paris Agreement: Reading The Tea Leaves From The G7 And Nato Summits, David A. Wirth May 2017

Trump’S First Foreign Trip And The Fate Of The Paris Agreement: Reading The Tea Leaves From The G7 And Nato Summits, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


The Paris Agreement As A New Component Of The Un Climate Regime, David A. Wirth Jan 2017

The Paris Agreement As A New Component Of The Un Climate Regime, David A. Wirth

Boston College Law School Faculty Papers

The Paris Agreement, which was adopted in December 2015 and entered into force less than a year later, is the newest instrument to be adopted in the United Nations-sponsored global climate regime. The Paris Agreement takes its place under the 1992 Framework Convention on Climate Change and next to the 1997 Kyoto Protocol and 2012 Doha Amendment. After describing the historical evolution of the UN climate regime employing the tools of international law, this Article explores the structural, institutional, and legal relationships between the new Paris Agreement and the prior development and content of UN-sponsored efforts on climate protection under ...


Cracking The American Climate Negotiators' Hidden Code: United States Law And The Paris Agreement, David A. Wirth Jan 2016

Cracking The American Climate Negotiators' Hidden Code: United States Law And The Paris Agreement, David A. Wirth

Boston College Law School Faculty Papers

The United States' position in, and conduct of, the negotiations leading to the Paris Agreement, as with almost all international diplomacy leading to reciprocal international undertakings conducted by that country, reflected not only internal politics, but also the constraints of domestic law. The United States is not unique in this respect, but it is unusual in the extent to, and manner in, which its municipal law constrains the creation of international commitments. This article disaggregates US international and domestic climate policy as it developed prior to the Paris negotiations and analyses how those dynamics played out on the multilateral stage ...


A Glimpse Into The Realpolitik Of Federal Land Planning, In Comparative Context With The Mysterious Nlupa And The Czma, Zygmunt J.B. Plater Aug 2015

A Glimpse Into The Realpolitik Of Federal Land Planning, In Comparative Context With The Mysterious Nlupa And The Czma, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

There is an old adage that “those who fail to plan, plan to fail.” Planning is a fundamentally rational, basal process shared at some level and to some degree by all, establishing and implementing frameworks to guide our human actions toward the accomplishment of various desired and defined objectives. Thoughtfully designed and implemented planning is no less rational and essential for governmental entities than it is for corporations and individuals.

This essay surveys an interesting comparison between two quite different federal approaches to directive land and resource management planning. On one hand, the analysis reviews the federal mandate for layered ...


The International And Domestic Law Of Climate Change: A Binding International Agreement Without The Senate Or Congress?, David A. Wirth Jul 2015

The International And Domestic Law Of Climate Change: A Binding International Agreement Without The Senate Or Congress?, David A. Wirth

Boston College Law School Faculty Papers

This Article asserts that neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States' becoming a party to a binding agreement to be adopted at the 21st Conference of the Parties to the UN Framework Convention on Climate Change, which is to be held in Paris in December 2015. Depending on the form of such an agreement, which is presently under negotiation, the President's Climate Action Plan could provide sufficient domestic legal authority for the conclusion of all or part of such a binding international instrument as an executive agreement, as well ...


This Time Is Different: Obama's Climate Change Opportunity, David A. Wirth Mar 2015

This Time Is Different: Obama's Climate Change Opportunity, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


The Environment, David A. Wirth Jan 2015

The Environment, David A. Wirth

Boston College Law School Faculty Papers

This chapter surveys settings under the auspices of international organizations and institutions that address the environment and highlights a number of underappreciated structural attributes of international environmental governance. A variety of approaches to treating environment on the multilateral level are categorized, resulting in a typology of both international institutional structures and the diversity of international instruments and policy tools available for promoting substantive international environmental policy. Utilizing examples that are intended to be illustrative of specific aspects of the challenges presented by international environmental policy and law rather than exhaustive, the piece concludes by examining the extent to which form ...


Things I Learned From A Very Small Fish (Tedxbeaconstreet Presentation), Zygmunt J.B. Plater Oct 2014

Things I Learned From A Very Small Fish (Tedxbeaconstreet Presentation), Zygmunt J.B. Plater

Snail Darter Documents

This talk was given at a local TEDx event, produced independently of the TED Conferences. A notorious story about a small endangered fish that traveled far through the corridors of American government; also a parable about citizen action, a parable perhaps even more useful because it’s true.

Deemed “The Most Extreme Environmental Case Ever”, Zygmunt Plater and a team students in Tennessee used the endangered little “snail darter” fish to help several hundred family farmers and fishermen block a pork-barrel dam that was going to destroy far more—in economic and ecological term—than it ever could produce. A ...


Joseph Sax, A Human Kaleidoscope, Zygmunt J.B. Plater Oct 2014

Joseph Sax, A Human Kaleidoscope, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Probably more than any other person most of us will ever have the opportunity of knowing, Joe Sax was kaleidoscopic in the way he projected his mind and lived his life as a scholar, teacher, and citizen seer. Shifting his analytical gaze from challenging context to challenging context, he repeatedly threw rich new patterns of perceptive light, thoughts broad and deep, onto a remarkable range of puzzles. Joe’s ability to think broadly and deeply influenced and reshaped the way that his students, friends, colleagues, and readers understood the intricacies, beauty, and challenges of the world around them. Others in ...


Human-Centered Environmental Values Versus Nature-Centric Environmental Values: Is This The Question?, Zygmunt J.B. Plater Apr 2014

Human-Centered Environmental Values Versus Nature-Centric Environmental Values: Is This The Question?, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The challenging background context for much of the discussion and cogitation in the panels and pages of this conference is the unfortunate fact that environmental protection law in virtually all its manifestations is currently faring rather poorly in the public policy arenas of national government. From the public health hazards of residual substances in consumer goods and human breast milk to the mighty troubles of human-caused climate disruption, many of the most significant structures of societal governance are locked in political and financial dysfunctions and impasses. Given the conference’s goal to “explore more deeply the relationship between environmental protection ...


Chapter 10: Our Citizen Briefing Points To The God Committee Staff, Zygmunt J.B. Plater Feb 2014

Chapter 10: Our Citizen Briefing Points To The God Committee Staff, Zygmunt J.B. Plater

Snail Darter Documents

Notes compiled in preparation for Zygmunt Plater's testimony before the "God Committee" - the Endangered Species Committee of the U.S. Department of the Interior - on January 23, 1979.

Manuscript section from The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Fish and Killed a River. Represents a portion of the original manuscript edited out when the text was condensed for publication.


Chapter 11: The Duncan-Baker Rider Amendmenton The 1980 Water Projects Appropriations Bill, Zygmunt J.B. Plater Feb 2014

Chapter 11: The Duncan-Baker Rider Amendmenton The 1980 Water Projects Appropriations Bill, Zygmunt J.B. Plater

Snail Darter Documents

Text of the amendment offered by Congressman John Duncan, Sr. to the 1980 Water Appropriations Bill, which authorized the completion of the Tellico Dam and Reservoir project despite the Supreme Court's finding that the project was in violation of the Endangered Species Act.

Manuscript section from The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Fish and Killed a River. Represents a portion of the original manuscript edited out when the text was condensed for publication.


Chapter 11: The First Defeat Of The Override Attempt—In The Senate Committee On Envt&Public Works, Zygmunt J.B. Plater Feb 2014

Chapter 11: The First Defeat Of The Override Attempt—In The Senate Committee On Envt&Public Works, Zygmunt J.B. Plater

Snail Darter Documents

Text of the amendment offered by Congressman John Duncan, Sr. to the 1980 Water Appropriations Bill, which authorized the completion of the Tellico Dam and Reservoir project despite the Supreme Court's finding that the project was in violation of the Endangered Species Act.

Manuscript section from The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Fish and Killed a River. Represents a portion of the original manuscript edited out when the text was condensed for publication.


Deep Dive: Greenhouse Implications Of Energy Policies Of International Financial Institutions, David A. Wirth Feb 2014

Deep Dive: Greenhouse Implications Of Energy Policies Of International Financial Institutions, David A. Wirth

Boston College Law School Lectures and Presentations

No abstract provided.


A Jeffersonian Challenge From Tennessee: The Notorious Case Of The Endangered “Snail Darter” Versus Tva’S Tellico Dam—And Where Was The Fourth Estate, The Press?, Zygmunt J.B. Plater Jul 2013

A Jeffersonian Challenge From Tennessee: The Notorious Case Of The Endangered “Snail Darter” Versus Tva’S Tellico Dam—And Where Was The Fourth Estate, The Press?, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

From the introduction:

For most if not all public interest issues in contemporary governance debates, there are in effect four branches of government, not three. For better or worse, the modern media constitute the essential public information source playing a determinative role in the intensely political internal processes of modern government at every level. To ignore the fundamental reality of this Fourth Estate 1 is not to fully understand modern civics and is to risk repeated shortfalls for citizen initiatives attempting to advance public welfare. In no other field is this proposition more evident than in the realm of governmental ...


Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth May 2013

Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth

Boston College Law School Faculty Papers

The challenge of global climate change has attracted recommendations for remediation from a number of professions, including engineering. The possibilities suggested for “geoengineering” the climate generally fall into one of two categories: (1) carbon capture and storage; and (2) solar radiation management. Specific and often controversial proposals include the aerial dispersion of aerosols, launching reflective gratings into orbit around the Earth, and seeding the oceans with iron filings. These proposals share a number of characteristics, including the following: (1) they can often be undertaken within the territorial jurisdiction of a single state or in areas beyond national jurisdiction; (2) they ...


Annotated Timeline Of Tva V. Hill And Related Events, Zygmunt J.B. Plater May 2013

Annotated Timeline Of Tva V. Hill And Related Events, Zygmunt J.B. Plater

Snail Darter Documents

Annotated timeline of TVA v. Hill and related events, created by Zygmunt B. Plater in Microsoft Excel. Derivative files are available in PDF and CSV formats.


The Tragedy Of The Carrots: Economics And Politics In The Choice Of Price Instruments, Brian D. Galle Apr 2012

The Tragedy Of The Carrots: Economics And Politics In The Choice Of Price Instruments, Brian D. Galle

Boston College Law School Faculty Papers

Externalities are one of the most fundamental market-failure justifications for government action, and pigouvian taxes and subsidies are standard tools for correcting them. Even so, neither the legal nor economic literatures offer any comprehensive account of when policy makers should prefer one to the other. This Article takes up that task. Prior efforts to distinguish between “carrots” and “sticks” have generally been limited to the context of pollution regulation, and I show here that even those are incomplete. I also extend the analysis to the case of positive externalities, where there is little prior literature to speak of. Overall I ...


Review Of The Law Of Adaptation To Climate Change: U.S. And International Aspects Edited By Michael B. Gerrard And Katrina Fischer Kuh, David A. Wirth Jan 2012

Review Of The Law Of Adaptation To Climate Change: U.S. And International Aspects Edited By Michael B. Gerrard And Katrina Fischer Kuh, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


Classic Lessons From A Little Fish In A Pork Barrel - Featuring The Notorious Story Of The Endangered Snail Darter And The Tva's Last Dam, Zygmunt J.B. Plater Jan 2012

Classic Lessons From A Little Fish In A Pork Barrel - Featuring The Notorious Story Of The Endangered Snail Darter And The Tva's Last Dam, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Canaries are small, fragile, sensitive creatures weighing no more than 20 grams, about seven-tenths of an ounce. They have become a familiar and significant metaphor, however, due to the important role they played as vivid warning indicators of substantial threats to human welfare. Because canaries are extremely sensitive to the presence of methane and carbon monoxide—deadly but odorless gases that seep from deep coal deposits—miners in England and the U.S. carried canaries in little cages along with them as they worked in underground coal seams. When the canaries began to sway and slump noticeably on their perches ...


The Exxon Valdez Resurfaces In The Gulf Of Mexico ... And The Hazards Of “Megasystem Centripetal Di-Polarity”, Zygmunt J.B. Plater Jun 2011

The Exxon Valdez Resurfaces In The Gulf Of Mexico ... And The Hazards Of “Megasystem Centripetal Di-Polarity”, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The 2010 BP Deepwater Horizon blowout spill in the Gulf of Mexico shocked the nation with the amount of oil and harm it unleashed upon the Gulf and its natural and human ecosystems. As details of the calamity became available, they revealed frustrating parallels to the 1989 Exxon Valdez oil spill in the Gulf of Alaska in terms of causation and impaired response capability. Similar systemic deficits characterized the actions of corporate managers and state and federal regulators in the oil industry of both Gulfs. In a “di-polar” system where industry and government regulators are supposed to counterbalance one another ...


Is Cap And Trade Fair To The Poor? Short-Sighted Households And The Timing Of Consumption Taxes, Brian D. Galle Jan 2011

Is Cap And Trade Fair To The Poor? Short-Sighted Households And The Timing Of Consumption Taxes, Brian D. Galle

Boston College Law School Faculty Papers

Many forms of consumption tax, including recent proposals to impose a tax on the use of carbon, impose disproportionate burdens on the poor. Commentators who propose mitigating this impact with tax rebates for low-income families have overlooked the importance of the timing of consumption for these households, as well as the difficulties of “smoothing” income from one time period to another. We survey a wide array of evidence suggesting that poor households lack affordable mechanisms for both borrowing and saving, such that a lump-sum rebate, or even monthly rebates, would not leave the household as well off as they were ...


Learning From Disasters: Twenty-One Years After The Exxon Valdez Oil Spill, Will Reactions To The Deepwater Horizon Blowout Finally Address The Systemic Flaws Revealed In Alaska?, Zygmunt J.B. Plater Nov 2010

Learning From Disasters: Twenty-One Years After The Exxon Valdez Oil Spill, Will Reactions To The Deepwater Horizon Blowout Finally Address The Systemic Flaws Revealed In Alaska?, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Twenty years ago, after the calamitous Exxon Valdez oil spill in Alaska’s Prince William Sound, the pervasive systemic flaws—that according to the Alaska Oil Spill Commission had made a major calamity not just possible but probable—were largely cloaked behind the figure of a captain with a drinking problem. In 2010, after suffering another horrific oil incident—this one almost 20 times! larger than the Exxon Valdez spill—the question for national energy law and policy is whether, this time around, we’ll acknowledge and implement the hard systemic lessons largely avoided two decades ago. The Deepwater Horizon ...


Setting It Straight: A Thirtieth Anniversary Gathering In Memory Of The Little Tennessee River And Its Valley, Zygmunt J.B. Plater Jan 2010

Setting It Straight: A Thirtieth Anniversary Gathering In Memory Of The Little Tennessee River And Its Valley, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

No abstract provided.


Setting It Straight: A Thirtieth Anniversary Gathering ... In Memory Of The Little Tennessee River And Its Valley, Zygmunt J.B. Plater Nov 2009

Setting It Straight: A Thirtieth Anniversary Gathering ... In Memory Of The Little Tennessee River And Its Valley, Zygmunt J.B. Plater

Snail Darter Documents

Distributed at an event to mark the 30th anniversary of the completing of the Tellico River Dam. The event is described as "A Reunion of Tellico Dam Resisters: farmers & landowners, sportsmen, the Eastern Band of Cherokees, & conservationts," held in Vonore, TN on November 14, 2009.


The International Organization For Standardization: Private Voluntary Standards As Swords And Shields, David A. Wirth Feb 2009

The International Organization For Standardization: Private Voluntary Standards As Swords And Shields, David A. Wirth

Boston College Law School Faculty Papers

Private voluntary standards such as the International Organization for Standardization's (ISO's) 14000 series have played an increasingly important role in encouraging corporations to adopt more sustainable business models on their own initiative and not in direct response to governmentally mandated requirements. ISO standards have a number of benefits, including promoting international uniformity; elevating environmental issues within an enterprise; promoting international trade; and providing a minimal level of environmental performance in countries with less than adequate regulatory infrastructure. Concerns about ISO standards include the relationship to public regulation; and ISO 14001's essentially procedural, as opposed to performance-based, character ...


Make Trade Rules Attuned To The Ecological Needs And Interests Of Future Generations: Cli Recommendation No. 15, David A. Wirth Jan 2009

Make Trade Rules Attuned To The Ecological Needs And Interests Of Future Generations: Cli Recommendation No. 15, David A. Wirth

Boston College Law School Faculty Papers

This recommendation observes that international trade agreements as currently structured do not establish minimum standards so as to protect the climate for present and future generations. Accordingly, it advocates potential strategies that could be employed in future rounds of international trade negotiations to mobilize the international trade regime in the pursuit of climate-friendly policies. These strategies include, among others, the elimination of climate-degrading subsidies, the liberalization of trade in climate-friendly goods and services, and the promotion of climate-friendly investments (particularly in the energy sector). In addition, the recommendation proposes a modification in trade rules to account for the greenhouse-gas intensity ...


International Trade Law: Cli Background Paper No. 10, David A. Wirth Jan 2009

International Trade Law: Cli Background Paper No. 10, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.