BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 28 2001 Number 2-3

[Pages 229-350]
CONTROL OF HAZARDOUS AIR POLLUTION
Arnold W. Reitze, Jr.* Randy Lowell, Esq.**

Abstract:  This article begins with an overview of ecosystem and human health impacts of hazardous air pollutants (HAPs) and is followed by a synopsis of the early efforts to control HAPs that were based on common law and the Clean Air Act (CAA) prior to 1990. In the CAA Amendments of 1990 Congress added a twenty-fold expansion of the statutory provisions aimed at the control of HAPs . In the decade that followed the Environmental Protection Agency (EPA) has generated thousands of pages of rules and guidance to implement the 1990 statutory changes. This article provides an analysis of these requirements and the program created to implement them. Several categories of HAPs are the subject of a more in depth analysis including asbestos, synthetic organic chemicals, and emissions from incineration. The article then examines the requirements aimed at preventing accidental catastrophic environmental releases of HAPs and the risk management plans that must be developed by about 70,000 facilities that handle regulated chemicals. The emergency planning and reporting requirements imposed in 1986 by the Emergency Planning and Community Right to Know Act (EPCRA) also are addressed.

[Pages 351-362]
Appendices

[Pages 363-398]
DOES APPLICATION OF THE APA'S "COMMITTED TO AGENCY DISCRETION" EXCEPTION VIOLATE THE NONDELEGATION DOCTRINE?
Amee B. Bergin*

Abstract:  An overly broad delegation implicates two conflicting doctrines: the nondelegation doctrine and the “committed to agency discretion” exception to judicial review. Under a traditional application of the nondelegation doctrine, courts strike down delegations that lack an intelligible principle as unconstitutional, reasoning that Article I implicitly prohibits Congress from giving away its legislative power. Such a ruling renders the agency powerless, because the agency has no authority to act under the failed delegation. Conversely, by prohibiting courts from reviewing agency actions in cases where there is “no law to apply,” the “committed to agency discretion” exception affords an agency unfettered discretion when it acts under the authority of an overly broad delegation. As such, these two doctrines, which employ essentially the same test, dictate contradictory results. Moreover, if applied to administrative rulemaking, the “committed to agency discretion” exception would be unconstitutional because it would violate the nondelegation doctrine.

[Pages 399-428]
THE POSSIBILITY AND CONSEQUENCES OF THE RECOGNITION OF PRESCRIPTIVE AVIGATION EASEMENTS BY STATE COURTS
David Casanova*

Abstract:  As an increasingly greater number of Americans travel by air, the amount of flights required to accommodate this greater demand must necessarily increase. To cope with the greater number of flights, either new airports must be built or existing airports must expand their operations. Neighboring residents of these new or expanded airports will be burdened by the noise associated with the increased air traffic. This Note takes a state by state look at the ability of airports to acquire prescriptive avigation easements that shield the airports from lawsuits by those neighboring residents affected by airport operations. The Note analyzes the status of prescriptive avigation easements in several states that have already addressed the issue of their recognition, examines the consequences of the recognition of prescriptive avigation easements, and studies the trend toward the recognition of prescriptive avigation easements that may be influential to the large majority of states that have not yet addressed this issue.

[Pages 429-458]
COMPENSATING THE LEAD POISONED CHILD: PROPOSALS FOR MITIGATING DISCRIMINATORY DAMAGE AWARDS
Laura Greenberg*

Abstract:  Traditional determinations of tort damages disadvantage plaintiffs in lead paint litigation. When courts rely heavily on race-based statistics and closely scrutinize the achievements of the plaintiff’s family, low-income and minority plaintiffs suffer the immediate consequences. This method of compensation reinforces the notion that the tort system reflects the realities of current economics, complete with all its inequities. As this Note suggests, however, the tort system should strive to mitigate these discriminatory realities rather than remaining complacent and content with the status quo. Adopting race-neutral statistics and comprehending the psychological theory of resiliency will allow courts to begin the damage calculation from a more optimistic and less discriminatory perspective.

[Pages 459-496]
NRD TRUSTEES: TO WHAT EXTENT ARE THEY TRULY TRUSTEES?
Laura Rowley*

Abstract:  Several federal environmental statutes have empowered the federal government to appoint executive branch agencies to act as trustees on behalf of the public to oversee the process of collecting damages from responsible parties, and restoring natural resources that have been damaged on public lands. This Note will focus on the question of whether these natural resource damages (NRD) trustees created by federal statute have a common law fiduciary duty to the public, some lesser obligation, or no fiduciary duty at all. This Note concludes that courts have not held executive branch NRD trustees to a common law fiduciary duty, but instead have granted them typical agency deference. Finally, this Note suggests that courts should hold NRD trustees to an enforceable fiduciary duty, similar to the one applied to government trustees under the Indian trust doctrine.

[Pages 497-532]
THE AMERICAN ENVIRONMENTAL MOVEMENT: SURVIVING THROUGH DIVERSITY
Stacy J. Silveira*

Abstract:  This Note examines the transformation of the American environmental movement into a social movement. First, it provides a history of the American environmental movement. The environmental movement is traced from its origins as an upper-class movement with a wilderness-centered ideology, to its transformation into a richer more diverse membership and an ideology inclusive of the urban environment. Next, the theoretical underpinnings of the environmental movement in social movement theory are highlighted. Finally, the question of whether grassroots environmental groups should protest or litigate, and how the legal system can be strategically used by grassroots environmental groups, is examined.