BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 27 2000 Number 2

[Pages 193-242]
JOHN C. CALHOUN BECOMES THE TENTH JUSTICE: STATE SOVEREIGNTY, JUDICIAL REVIEW, AND ENVIRONMENTAL LAW AFTER JUNE 23, 1999
David Milton Whalin*

Abstract. The past several years have witnessed a five Justice majority of the Supreme Court enunciating increasingly severe limitations upon Congress’ Article I powers. One effort by these five Justices has emanated from a unique explication of the Eleventh Amendment which began with Seminole Tribe v. Florida in 1996 and was expanded by three decisions announced on June 23, 1999. This Quartet of decisions has significantly limited congressional power. This doctrine, the author contends, represents a revival of the Calhounian nullification doctrine which was a primary intellectual underpinning of southern secession in the last century. [Justice Souter asserts that it is a revival of “industrial due process.”] The article examines the doctrine as explicated by Seminole Tribe and its progeny as it establishes severe limits on Congressional power, enunciates an undefined doctrine of concurrent sovereignty between the states and the federal government, declares that the use of property is not within the ambit of the Due Process Clause of the Fourteenth Amendment, and reallocates the demarcation of the separation of powers by declaring that federal courts will not only ask what Congress did, but also why Congress did it, and whether Congress had sufficient evidentiary support to do it. The article surveys the impact this Quartet of decisions may have upon environmental law by examining the impact upon the jurisdictional reach of the Clean Water Act, whether a state may be held liable as a potentially responsible party under CERCLA by a private party, whether there is a new basis to challenge the National Ambient Air Quality Standards of the Clean Air Act, the implications for takings litigation, and the potential impact upon delegated authority and citizen suits. With the advent of the Calhounian Quartet, the article concludes, one is sailing upon uncharted seas without a compass, much less a global positioning system.

[Pages 243-278]
THE NATIONAL PARK SERVICE'S PROPOSED BAN: A NEW APPROACH TO PERSONAL WATERCRAFT USE IN THE NATIONAL PARKS
Karen D'Antuono*

Abstract. Personal watercraft, with their capacity for high speed and easy maneuverability, generate considerable safety and environmental concerns at the national, state, and local levels. These vessels, more commonly known as jet skis and waverunners, are currently present in thirty-two of the eighty-seven units of the National Park System that allow motorized boating. Responding to high accident rates as well as to harms caused to aquatic wildlife and vegetation by the vessels, the National Park Service proposed a general ban on personal watercraft within units of the National Park System. The proposed ban is the first comprehensive solution to personal watercraft use on the national level. It is expected to be finalized sometime in the year 2000. This Comment suggests that such a ban is both legal and desirable. It also suggests that exemptions from the ban should be granted on a very limited basis.

[Pages 279-306]
EXACTIONS, SEVERABILITY AND TAKINGS: WHEN COURTS SHOULD SEVER UNCONSTITUTIONAL CONDITIONS FROM DEVELOPMENT PERMITS
Michael T. Kersten*

Abstract. Due to a variety of factors in the last half-century, local governments have increasingly relied upon exactions to finance new development projects. Developers and land owners have challenged these development conditions as abuses of the police power or as violations of the United States Constitution’s Equal Protection, Due Process and Takings Clauses. Recently, the Supreme Court has departed from its long tradition of deference to municipalities by heightening judicial scrutiny of challenged exactions. If a court finds an exaction to be unconstitutional, the court typically severs the exaction from the permit and enforces the remaining permit as if it were whole. By thus enforcing permits minus their conditions, courts allow developers to proceed unhindered and prevent municipalities from mitigating the harmful externalities or recouping the public costs resulting from development. The inefficiencies and inequalities created by this heightened review could be mitigated by applying the severability doctrine established in contract and public law to the law of landuse exactions. Applying the severability analysis would restore an element of certainty to municipal regulators by reducing their incentive to over-regulate development, and benefit both developers and municipalities by allowing a more efficient and equitable method of permitting development.

[Pages 307-339]
ENSURING THE FULL FREEDOM OF RELIGION ON PUBLIC LANDS: DEVILS TOWER AND THE PROTECTION OF INDIAN SACRED SITES
George Linge*

Abstract. Federal land management agencies historically have disregarded American Indian cries for protection of sacred sites on public lands, and the federal judiciary consistently has supported such action according to a formalistic interpretation of the Religion Clauses of the First Amendment. This Note takes issue with the pattern of religious oppression in the context of public land management by positing a more inclusive, “full,” conception of religious freedom under the First Amendment. This Note then analyzes the recent controversy at Devils Tower National Monument as an important opportunity to break the trend and embrace Indian religious freedoms around sacred sites on public lands.