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You Can Check Out But You Can Never Leave: The Story Of San Remo Hotel -- The Supreme Court Relegates Federal Takings Claims To State Courts Under A Rule Intended To Ripen The Claims For Federal Review, J David Breemer Jan 2006

You Can Check Out But You Can Never Leave: The Story Of San Remo Hotel -- The Supreme Court Relegates Federal Takings Claims To State Courts Under A Rule Intended To Ripen The Claims For Federal Review, J David Breemer

Boston College Environmental Affairs Law Review

On June 20, 2005, the Supreme Court of the United States issued its decision in San Remo Hotel, L.P. v. City of San Francisco, holding that property owners with “takings” claims arising under the Fifth Amendment could not obtain federal review after litigating in state court in compliance with the ripeness requirements of Williamson County Regional Planning Commission v. Hamilton Bank. The case presented the specific question of whether federal takings claimants could invoke an exception to claim and issue preclusion doctrines under England v. Louisiana State Board of Medical Examiners because Williamson County forced them to involuntarily litigate ...


The Public Trust Doctrine And Natural Law: Emanations Within A Penumbra, George P. Smith, Michael W. Sweeney Jan 2006

The Public Trust Doctrine And Natural Law: Emanations Within A Penumbra, George P. Smith, Michael W. Sweeney

Boston College Environmental Affairs Law Review

In American jurisprudence, the public trust doctrine emerged as a means of protecting certain limited environmental interests, such as coastal waterways and fishing areas, which were preserved for the benefit of the public and distinguished from grants of private ownership. However, modern scholars have called for an expansive application of the public trust doctrine, citing the growing inventory of “changing public needs” in the environmental context, such as the need for improved air and water quality, and the conservation of natural landscape. This Article examines the history and scope of the public trust doctrine to determine how modern resource management ...


Excuses, Excuses: The Application Of Statutes Of Repose To Environmentally-Related Injuries, Andrew A. Ferrer Jan 2006

Excuses, Excuses: The Application Of Statutes Of Repose To Environmentally-Related Injuries, Andrew A. Ferrer

Boston College Environmental Affairs Law Review

Injuries resulting from environmental conditions created by improvements to real property have always been commonplace. Across jurisdictions, however, there is some evidence to suggest that defendants may be able to escape liability for certain environmentally-related injuries by invoking statutes of repose. Although statutes of repose may protect defendants from prejudice in court and relieve them of past obligations, they may also prevent injured plaintiffs from obtaining redress in court where their injuries were latent or undiscoverable. This Note explores the nature and purpose of statutes of repose, discusses whether they might be used by defendants during environmental litigation by addressing ...


Mandatory Inclusionary Zoning--The Answer To Affordable Housing Problem, Brian R. Lerman Jan 2006

Mandatory Inclusionary Zoning--The Answer To Affordable Housing Problem, Brian R. Lerman

Boston College Environmental Affairs Law Review

Affordable housing has always been a problem in the United States. Cities and towns originally engaged in forms of discrimination through exclusionary zoning to exclude low-income residents. While many of the social attitudes persist today, the question is how to encourage new affordable housing development. This Note introduces the concept of inclusionary zoning as a successful method for creating affordable housing. The Note examines the constitutional analyses used for land use ordinances. Then, the Note evaluates existing affordable housing programs, distinguishing between the eastern approach and the western approach. The eastern approach—represented by New Jersey, Massachusetts, and Montgomery County ...


Civil Liability For Wartime Environmental Damage: Adapting The United Nations Compensation For The Iraq War , Keith P. Mcmanus Jan 2006

Civil Liability For Wartime Environmental Damage: Adapting The United Nations Compensation For The Iraq War , Keith P. Mcmanus

Boston College Environmental Affairs Law Review

There is little doubt that war has a deleterious effect on the natural environment of battlegrounds. Customary principles of international law, as well as more formal instruments such as treaties, address wartime environmental protection. An analysis of these mechanisms reveals that they are inadequate to ensure protection and restoration of environmental resources damaged during war. Thus, a mechanism is needed for assessing civil liability against nations for any wartime environmental damage. The United Nations Compensation Commission (UNCC), created to compensate victims of the Persian Gulf War, is a mechanism that if modified could fill this void. This Note focuses on ...


Development Aid In An Environmental Context: Using Microfinance To Promote Equitable And Sustainable Water Use In The Nile Basin, Shreevani Suvarna Jan 2006

Development Aid In An Environmental Context: Using Microfinance To Promote Equitable And Sustainable Water Use In The Nile Basin, Shreevani Suvarna

Boston College Environmental Affairs Law Review

Water resource management plays a critical role in everything from the viability of individual communities to regional political stability. Nowhere is this more apparent than in the Nile Basin. The Nile Basin Initiative (NBI) is a recent effort to overcome historical clashes over use of the Nile’s waters in order to achieve a basin-wide framework for transboundary cooperation. One element of NBI focuses on community-level action in furtherance of transboundary cooperation, and includes a microgrant program to help achieve its goals. Signiªcantly, however, NBI does not include a microcredit program. This Note argues that, in light of the deep ...


Behind The Curve: The National Media's Reporting On Global Warming, Matthew F. Pawa, Benjamin A. Krass Jan 2006

Behind The Curve: The National Media's Reporting On Global Warming, Matthew F. Pawa, Benjamin A. Krass

Boston College Environmental Affairs Law Review

In July 2004, eight States, the City of New York and three land trusts filed suit against five electric power corporations for contributing to global warming. The complaints allege that the defendants are the largest global warming polluters in the United States. The plaintiffs seek an injunction under the federal common law of public nuisance, or in the alternative, under state nuisance law, to require the power companies to reduce their emissions of carbon dioxide. Press coverage of the plaintiffs’ global warming case so far has been mixed. The press has generally failed to understand several of the important legal ...


Modern Media's Environmental Coverage: What We Don't Know Can Hurt Us, Jane Akre, Steve Wilson Jan 2006

Modern Media's Environmental Coverage: What We Don't Know Can Hurt Us, Jane Akre, Steve Wilson

Boston College Environmental Affairs Law Review

Jane Akre and Steve Wilson had more than fifty years experience as broadcast journalists before becoming Whistleblowers against Rupert Murdoch’s News Corporation, Fox. Steve has worked as an investigative reporter on the network and local level, a program syndicator and currently is at WXYZ in Detroit as Chief Investigative Reporter. Jane has been an anchor at CNN and at various local stations from California to Atlanta as well as consumer, crime, health and investigative reporter. Together they were the first journalists to blow the whistle on the internal workings of a newsroom.


"Reframing" The Presentation Of Environmental Law And Policy, Charlotte Ryan, Samuel Alexander Jan 2006

"Reframing" The Presentation Of Environmental Law And Policy, Charlotte Ryan, Samuel Alexander

Boston College Environmental Affairs Law Review

In 1995, Congress, with the support of the Clinton administration, passed the Personal Responsibility and Work Opportunity Reconciliation Act, a sweeping welfare reform designed to appease conservative critics of 1960s War on Poverty programs. In the last decade, conservatives have intensified a comparable campaign to dismantle environmental programs and regulatory agencies established during the 1970s through the efforts of the environmental movement. Conservatives’ calls for market forces to replace governmental environmental protection programs echo the arguments of conservative opponents of welfare. Similarly, contemporary battles over environmental policy are being waged in the mass media arena. Therefore, it behooves environmental advocates ...


Environmental Attorneys And The Media: Guidelines For Effectiveness, John M. Stanton Jan 2006

Environmental Attorneys And The Media: Guidelines For Effectiveness, John M. Stanton

Boston College Environmental Affairs Law Review

It is often difficult for a public interest advocate to compete with wealthy interests that have vastly greater resources at their disposal and opposing policy preferences. In order to level this playing field, advocates can effectively employ media strategies that allow the public to participate in the public policy debate. This public awareness can often be very effective in influencing the course of the debate and sensitizing policy makers to the competing interests at stake. Accordingly, media tools and goals should be considered at the outset of strategy development, and should inform everything from a project’s title to its ...


Nepa And Environmental Justice: Integration, Implementation, And Judicial Review, Uma Outka Jan 2006

Nepa And Environmental Justice: Integration, Implementation, And Judicial Review, Uma Outka

Boston College Environmental Affairs Law Review

The purpose of the National Environmental Policy Act (NEPA) is to assure “for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings,” a goal that is essential to environmental justice. Although NEPA provides the structure for federal environmental decisionmaking, is it effective as a tool for addressing environmental justice concerns? This Essay addresses NEPA’s limitations and potential for this purpose, and assesses the role of case law and judicial review in shaping this integrative process. To do so, it considers the environmental justice implications of NEPA’s structural gaps—including exemptions, categorical exclusions, and so-called “functional equivalents ...


Attorneys' Fees And The Conflict Between Rule 68 And The Clean Water Act's Citizen Suit Provision, Daniel E. Burgoyne Jan 2006

Attorneys' Fees And The Conflict Between Rule 68 And The Clean Water Act's Citizen Suit Provision, Daniel E. Burgoyne

Boston College Environmental Affairs Law Review

Environmental “citizen suit” statutes provide incentives for citizens to bring enforcement actions by awarding successful plaintiffs reasonable attorneys’ fees. Defendants have attempted to use Federal Rule of Civil Procedure 68 to block a successful plaintiff’s recovery of attorneys’ fees. Under Rule 68, defendants may offer to allow a judgment to be issued against them for a fixed dollar amount. Plaintiffs may either accept this judgment offer or proceed to trial. If plaintiffs proceed to trial, however, they must receive a judgment more favorable than the offer or pay the defendants’ litigation costs. Defendants argue that the word “costs” as ...


Shifting The Burden: Potential Applicability Of Bush V. Gore To Hazardous Waste Facility Siting, Alison E. Hickey Jan 2006

Shifting The Burden: Potential Applicability Of Bush V. Gore To Hazardous Waste Facility Siting, Alison E. Hickey

Boston College Environmental Affairs Law Review

Since its inception in the 1980s, advocates of the environmental justice movement have attempted to remedy the disproportionate siting of hazardous waste facilities in minority neighborhoods by employing the Equal Protection Clause. These lawsuits have thus far been largely unsuccessful because of litigants’ inability to prove intentional discrimination by government actors in such siting decisions. However, in the 2000 decision issued by the U.S. Supreme Court in Bush v. Gore, the mere potential for discriminate impact of a decision made by government actors was sufficient to trigger a strict scrutiny analysis under the Equal Protection Clause. While the decision ...


The Project Bioshield Prisoner's Dilemma: An Impetus For The Modernization Of Programmatic Environmental Impact Statements, David M. Shea Jan 2006

The Project Bioshield Prisoner's Dilemma: An Impetus For The Modernization Of Programmatic Environmental Impact Statements, David M. Shea

Boston College Environmental Affairs Law Review

Passage of the Project BioShield Act of 2004 evinced an executive and legislative desire to increase government-controlled laboratory space dedicated to studying dangerous pathogens. Pursuant to this Act, the National Institutes of Health (NIH) awarded generous construction grants to research universities nationwide. Unsurprisingly, siting disputes have subsequently arisen over the placement of several of these proposed laboratories in densely populated areas. Because NIH chose not to complete a programmatic environmental impact statement (PEIS), the potential litigation endgames are suboptimal. This fuels a larger debate over the relevance of PEISs in general in light of their recognized value but sporadic invocation ...


Indigenous Peoples' Environmental Rights: Evolving Common Law Perspectives In Canada, Australia, And The United States, Peter Manus Jan 2006

Indigenous Peoples' Environmental Rights: Evolving Common Law Perspectives In Canada, Australia, And The United States, Peter Manus

Boston College Environmental Affairs Law Review

Common law decisions on the environment-related interests of indigenous peoples that have emerged from the high courts of Canada, Australia, and the United States over the past several decades show a spectrum of approaches to fundamental issues. These issues include the questions of whether sovereign nations should acknowledge such environmental interests as legal rights and, if so, how they may do so in a manner that is both fair to indigenous peoples and achievable in the face of competing nonindigenous interests. In tracing the development of common law on indigenous peoples’ environmental rights in the three nations, this Article offers ...


Governments And Unconstitutional Takings: When Do Right-To-Farm Laws Go Too Far?, Terence J. Centner Jan 2006

Governments And Unconstitutional Takings: When Do Right-To-Farm Laws Go Too Far?, Terence J. Centner

Boston College Environmental Affairs Law Review

State anti-nuisance laws, known as right-to-farm laws, burden neighboring property owners with nuisances. The purpose of the laws is to protect existing investments by offering an affirmative defense. Activities that are not a nuisance when commenced cannot become a nuisance due to changes in land uses by neighbors. While most state laws involve a lawful exercise of the state’s police powers, a right-to-farm law may set forth protection against nuisances that is so great that it operates to effect a regulatory taking. Judicial rulings that two Iowa right-to-farm laws went too far in reducing neighbors’ constitutionally protected rights augur ...


Confrontation On Sandy Neck: Public Road Access Rights, Endangered Species Protections, And Municipal Liability, Jillian K. Mooney Jan 2006

Confrontation On Sandy Neck: Public Road Access Rights, Endangered Species Protections, And Municipal Liability, Jillian K. Mooney

Boston College Environmental Affairs Law Review

Sandy Neck’s barrier beach in Barnstable, Massachusetts provides critical habitats for piping plovers and other threatened species listed by the Endangered Species Act (ESA) and the Massachusetts Endangered Species Act (MESA). To protect the species, the Town must regulate vehicle access to the beach and the nearby cottages. The cottage owners assert that the regulations amount to a regulatory taking of their access rights to the cottages. This Note proposes alternatives for the Town to protect the threatened species, without working a taking of the cottage owners’ access rights, recommending that the Town apply for an incidental take permit ...


When "Comprehensive" Prescriptive Easements Overlap Adverse Possession: Shifting Theories Of "Use" And "Possession", Will Saxe Jan 2006

When "Comprehensive" Prescriptive Easements Overlap Adverse Possession: Shifting Theories Of "Use" And "Possession", Will Saxe

Boston College Environmental Affairs Law Review

Human nature dictates that private ownership of land creates conflict among neighbors. In the realm of adverse possession and prescriptive easements, the law intervenes to settle these disputes. Adverse possession quiets conflict by providing the ripened possessor with title in fee simple absolute. In contrast, a prescriptive easement provides the holder with only a right of use. However, there are occasions when a prescriptive easement establishes a right of use so broad and encompassing that it amounts to a grant of de facto possession. Thus, such a “comprehensive prescriptive easement” enables the court to award the equivalent of possession while ...


Manufactured Nanomaterials: Avoiding Tsca And Osha Violations For Potentially Hazardous Substances, Peter J. Tomasco Jan 2006

Manufactured Nanomaterials: Avoiding Tsca And Osha Violations For Potentially Hazardous Substances, Peter J. Tomasco

Boston College Environmental Affairs Law Review

Public and private spending on nanotechnology research and development continues to increase. At the same time, government agencies around the world are spending millions to assess the potential risks to nanotechnology workers, the public, and the environment. However, innovative and opportunistic manufacturers are not waiting for test results before forging ahead. This Note focuses on the obligation of such manufacturers under the Toxic Substances Control Act (TSCA) to report and/or test nanomaterials for their effects on health, safety, and the environment prior to their release into the stream of commerce. In addition, this Note addresses the duty of manufacturers ...


Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater Jan 2006

Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater

Boston College Environmental Affairs Law Review

The functional linkages between law and media have long been significant in shaping American democratic governance. Over the past thirty-five years, environmental analysis has similarly become essential to shaping international and domestic governmental policy. Environmentalism—focusing as it does on realistic interconnected accounting of the full potential negative consequences as well as benefits of proposed actions, policies, and programs, over the long term as well as the short term, with careful consideration of all realistic alternatives— provides a legal perspective important for societal sustainability. Because environmental values and norms are often in tension with established industrial interests that resist public ...