BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 28 2000 Number 1

[Pages 1-38]
THE LINK BETWEEN PROTECTING NATURAL RESOURCES AND THE ISSUE OF ENVIRONMENTAL JUSTICE
Barry E. Hill* Nicholas Targ**

Abstract:  Communities frequently raise environmental justice issues when decisions are made without taking into consideration how people, including people living in low-income and minority communities, are linked to their surrounding environment. Different communities use and relate to their environment in different ways and face different levels of environmental harms and risks. Thus, to avoid disproportionate impacts, it is critical that each community’s environmental needs and vulnerabilities be understood and considered before decisions are made. Existing statutory authority provides ample opportunity for decisionmakers to involve communities in the decisionmaking process and to consider how they use and relate to their environment and the natural resources services that their environment provides. This article analyzes the integration of environmental justice concerns into the U.S. Environmental Protection Agency’s decisionmaking process with special attention given to permits issued under the Resource Conservation and Recovery Act. In addition, through case study analysis, the article examines how environmental justice issues have been addressed by: EPA in the establishment of water quality criteria under the Clean Water Act; the Nuclear Regulatory Commission’s and the Department of the Interior’s application of the National Environmental Policy Act; and the Army Corps of Engineers’ decisionmaking process under Section 404 of the Clean Water Act.

[Pages 39-78]
APPROPRIATE REGULATION OF ANTIBIOTICS IN LIVESTOCK FEED
Robyn L. Goforth* Carol R. Goforth**

Abstract:  For decades, antibiotics have been widely used, saving lives and reducing suffering. Such drugs are routinely employed among both human and farm animal populations. However, scientific data now links the use of antibiotics at subtherapeutic levels in livestock feed to the spread of antibiotic resistant bacteria in the human population. After examining the current research, this Article concludes that despite short-term economic benefits associated with the widespread use of antibiotics in agriculture, the risk to human health justifies a change in policy. This Article recommends a number of steps to minimize the spread of antibiotic resistance. The primary changes would be to phase out the use of antibiotics as livestock feed additives, and to refuse to approve new drugs for this purpose. In either instance, this use would be permissible if the drug sponsor provides convincing evidence that the agricultural use of its particular antibiotic presents no appreciable risk to human health.

[Pages 79-118]
SKI RESORTS AND NATIONAL FORESTS: RETHINKING FOREST SERVICE MANAGEMENT PRACTICES FOR RECREATIONAL USE
James Briggs*

Abstract:  Skiing, as recognized by Congress, is a popular, healthful, and life-enriching use of National Forest Land. In 1986, Congress passed legislation to make it easier for ski resort developers to obtain permits, but a textual bias in the Forest Service’s implementing regulations and attacks by environmentalists both in the courts and literally at the sites has largely defeated that intent. Also, the Forest Service recently proposed new restrictions on Colorado’s White River National Forest that, among others, would limit ski resorts to the size of their current permits. This Comment will explore the Forest Service’s proposal in the context of the ongoing debate over National Forest resource management. It will compare the current system with EPA’s Project XL, which rewards superior performance and innovation in environmental protection. This Comment suggests that an approach to National Forest resource management that incorporates the rationales of Project XL would ameliorate the protection of our National Forests and the relationship between the Forest Service, developers, recreational users, and environmentalists.

[Pages 119-162]
THE BILL OF ATTAINDER CLAUSE: A NEW WEAPON TO CHALLENGE THE OIL POLLUTION ACT OF 1990
Alison C. Carrigan*

Abstract:  SeaRiver Maritime, Exxon Oil Company’s United States shipping subsidiary, recently challenged section 5007 of the Oil Pollution Act of 1990 as a bill of attainder. SeaRiver Maritime is the owner and operator of the former Exxon Valdez, which was renamed the SeaRiver Mediterranean following the Valdez’s infamous spill in Alaska’s Prince William Sound in 1989. SeaRiver Maritime argued that section 5007, which prohibits any vessel that has spilled more than one million gallons of oil into the marine environment from ever re-entering Prince William Sound, is an unconstitutional legislative punishment, and that this portion of the Oil Pollution Act was meant to apply only to the SeaRiver Mediterranean. This Comment examines the Oil Pollution Act’s primary provisions and the Act’s Prince William Sound provisions, which include section 5007. Further, this Comment explains the reasons for the constitutional prohibition on bills of attainder and the modern analysis to which courts subject legislation challenged under the Bill of Attainder Clause. Finally, this Comment argues that SeaRiver Maritime’s claim fails both prongs of the Supreme Court’s bill of attainder analysis and that section 5007 is legal and valid as enacted.

[Pages 163-190]
SHAPING NUCLEAR WASTE POLICY AT THE JUNCTURE OF FEDERAL AND STATE LAW
Lawrence Flint*

Abstract:  Nuclear waste has long been the Achilles’ heel of the civilian nuclear power industry. The spent nuclear fuel that reactors generate remains radioactive for hundreds of thousands of years, however, all the spent fuel that has been generated to date is stored in temporary, short-term facilities. As the federal government struggles to develop a permanent solution, many temporary storage facilities are nearing capacity. A few states in which civilian reactors are located have placed severe constraints on the construction of additional needed storage, potentially causing the shutdown of the federally-licensed reactors. In part because of this pressure from the states, Congress has sought to create a federal, centralized interim storage facility while development of a permanent repository proceeds. This controversial effort has yet to succeed. This note will suggest that a new approach to the interim storage problem is necessary—one that involves granting the federal government exclusive authority over nuclear waste storage facilities.

[Pages 191-228]
NUCLEAR POWER RATE REGULATION AFTER EASTERN ENTERPRISES: ARE RATEPAYERS BEING TAKEN FOR A RIDE?
Claire A. Watkins*

Abstract:  The electric industry’s monopolistic reign is coming to an end. The movement toward deregulation is exposing as flawed the electric industry’s decision to build nuclear power plants for the generation of electricity. One such flaw is the miscalculation of decommissioning costs. Without a monopoly, nuclear power plant owners have no guaranteed rate base to pay the high costs of decommissioning. As a result, owners are lobbying the state legislatures and Congress to require recovery of these costs. This comment questions whether it is constitutional to require ratepayers to pay for such costs after they no longer receive service from a power plant. Through an analysis of Justice O’Connor’s opinion in Eastern Enterprises v. Apfel, which establishes that economic regulation can be a taking, the argument is presented that ratepayers may be able to challenge rate regulation after the termination of service as an unconstitutional taking.