BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 30 2002 Number 1

[Pages 1-64]
PRIVATE PROPERTY RIGHTS AND THE ENVIRONMENT AFTER PALAZZOLO
James S. Burling*

Abstract:  With the ascendancy of environmentalism in American law has come a renewed focus on private property rights. That in turn has rekindled the debate over whether our ability to use private property is a fundamental right rather than an essentially revocable right that derives from the government. This debate was recently played out in Palazzolo v. Rhode Island where the United States Supreme Court addressed several elements of regulatory takings doctrine: When is a claim against government ripe? Does an acquirer of already regulated property have the same rights to challenge the regulation and bring a takings claims as the owner at the time the regulations were adopted? Whether there can be a regulatory taking if some use and value remains in the property, albeit a greatly diminished use and value, or if use and value is diminished on only a portion of a property.

This Article focuses on these questions in light of the Supreme Court’s holdings in Palazzolo, as potentially modified in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. Attention will be focused on the role that environmental protection concerns play in determining whether a regulation constitutes a regulatory taking, including a discussion of wetlands and the public trust doctrine.

[Pages 65-100]
ON HISTORY, TAKINGS JURISPRUDENCE, AND PALAZZOLO: A REPLY TO JAMES BURLING
Timothy J. Dowling*

Abstract:  The so-called property rights movement has hailed Palazzolo v. Rhode Island as a landmark win for landowners, a blockbuster breakthrough that will end “smart growth,” curtail other land use controls, and lead to manifold victories for claimants under the Takings Clause of the Fifth Amendment. James Burling’s piece on Palazzolo is more of the same, proclaiming the ruling to be a decisive win in an age-old, ideological battle. This Article shows that Burling’s take on the ruling is wishful thinking. He errs in his description of history, takings jurisprudence, and Palazzolo. Palazzolo is but a small, incremental development in the case law from which both takings claimants and defendants may draw support. The Court’s most recent takings ruling, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, reaffirms that the vast bulk of land use controls and other community protections do not implicate the Takings Clause.

[Pages 101-136]
UNREASONABLE EXPECTATIONS: WHY PALAZZOLO HAS NO RIGHT TO TURN A SILK PURSE INTO A SOW'S EAR
Patrick A. Parenteau*

Abstract:  Did the State of Rhode Island commit a regulatory taking when it denied Anthony Palazzolo the right to fill the salt marsh on his property? The answer suggested here is no. Under “background principles” of state property and nuisance law, in particular the public trust doctrine, owners of coastal property in Rhode Island have never enjoyed an unqualified right to fill tidal wetlands. In the absence of the express or implied permission of the state, no one has the right to fill, and thereby destroy, these important public trust resources. The remand of the Palazzolo case affords the Rhode Island courts an opportunity to clarify the scope and effect of the public trust doctrine and provide guidance for other state courts facing similar challenges.

[Pages 137-154]
PALAZZOLO AND THE DECLINE OF JUSTICE SCALIA'S CATEGORICAL TAKINGS DOCTRINE
Michael C. Blumm*

Abstract:  This Article maintains that despite the fact that the Palazzolo decision gave the landowner victories by relaxing ripeness hurdles to filing takings cases and rejecting the government’s “notice rule”—under which the existence of preexisting regulations would defeat takings claims—the chief significance of the case is the Court’s signal that it will reject attempts to expand categorical rules in takings cases. According to this view, Palazollo will be remembered for the decline of Justice Scalia’s categorical approach to takings, as reflected in his Lucas opinion, and for the triumph of multi-factor balancing championed by Justice Brennan’s Penn Central opinion. A postscript to the Article contends that the Court’s Tahoe-Sierra decision, decided while the Article was in press, confirms these predictions.

[Pages 155-162]
THE SUPREME COURT'S PALAZZOLO DECISION-ITS BARK IS WORSE THAN ITS BITE
Sheldon Whitehouse* & Michael Rubin**

[Pages 163-170]
PALAZZOLO ON REMAND: THERE WAS NO TAKING UNDER PENN CENTRAL
Edward G. Bohlen*

[Pages 171-190]
ANALYTICAL CHRONOLOGY OF PALAZZOLO V. RHODE ISLAND*

[Pages 191-242]
ALEXANDER V. SANDOVAL: WHY A SUPREME COURT CASE ABOUT DRIVER'S LICENSES MATTERS TO ENVIRONMENTAL JUSTICE ADVOCATES
Lisa S. Core*

Abstract:  Environmental justice litigants have used federal courts to challenge actions on the part of federal fund recipients that have a disparate impact, regardless of intent. In the environmental justice context, it is nearly impossible to provide evidence of discriminatory intent. Unfortunately, the federal courts have all but eliminated a private right of action to enforce violations of federal agency regulations enacted pursuant to Title VI of the Civil Rights Act of 1964 that prohibit such an impact. It is plain that the courts will not imply a private right of action to enforce these regulations. The question remains whether litigants may use an alternative enforcement mechanism, 42 U.S.C.  1983, to sue for violations of their Title VI rights. The answer is not simple because the purported rights are regulatory, and the current Supreme Court has made clear that evidence of congressional intent is required.

[Pages 243-274]
RADIOACTIVE ROULETTE: SHOULD THE NUCLEAR REGULATORY COMMISSION BE REGULATING THE UNITED STATES ARMY CORPS OF ENGINEERS' FUSRAP ACTIVITIES?
Matthew Hughey*

Abstract:  The Formerly Utilized Sites Remedial Action Program was created in 1974 to clean up radioactive waste at sites used in the nation’s early atomic energy and atomic weapons programs. For over two decades, this program was administered by the Department of Energy and its predecessor agencies. In 1997, responsibility for FUSRAP was shifted to the United States Army Corps of Engineers. The transfer did not occur without controversy. Congress transferred the program with little legislative direction. Almost immediately, questions arose about the Corps’ authority to administer to program without appropriate permits from the Nuclear Regulatory Commission. Since 1997, the NRC has repeatedly asserted that it does not have the authority to govern the remediation activities of another agency in the federal government. This Note explores the reasons why NRC regulation of the Corps’ FUSRAP activities is not only proper, but should be undertaken in the interests of public health and safety.