BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 31 2004 Number 1

[Pages 1-26]
SOME THOUGHTS ON THE MERITS OF PRAGMATISM AS A GUIDE TO ENVIRONMENTAL PROTECTION
Joel A. Mintz*

Abstract:  Pragmatism, a philosophical movement that had considerable influence in the United States in the early twentieth century, has recently undergone an intellectual revival. In the 1980s, its precepts were applied to legal analysis and commentary by a diverse group of scholars who refer to themselves as “legal pragmatists.” Moreover, a number of philosophers and legal scholars have attempted to apply pragmatic thought to ethical aspects of protecting the non-human natural world. This Article surveys and evaluates selected aspects of that varied, provocative body of scholarship. After summarizing the fundamental principles espoused by pragmatic thinkers, the Article focuses on the writings of two neo-pragmatic scholars, Keith Hirokawa and Daniel Farber, whose works provide useful illustrations of pragmatic approaches to environmental laws and policies. It also assays the overall benefits and shortcomings of pragmatic analysis, both as a tool for environmental policymaking and as an aid to advocates of needed improvements in environmental laws.

[Pages 27-60]
WHO WANTS TO BE AN ENVIRONMENTAL JUSTICE ADVOCATE?: OPTIONS FOR BRINGING AN ENVIRONMENTAL JUSTICE COMPLAINT IN THE WAKE OF ALEXANDER V. SANDOVAL
Kyle W. La Londe*

[Pages 61-102]
ENVIRONMENTAL JUSTICE AND TITLE VI IN THE WAKE OF ALEXANDER v. SANDOVAL: DISPARATE-IMPACT REGULATIONS STILL VALID UNDER CHEVRON
David J. Galalis*

Abstract:  Disparate-impact regulations promulgated by EPA pursuant to Title VI of the Civil Rights Act of 1964, until recently, had shown promise as a private legal tool to obtain redress from the disparate siting of envi-ronmental harms in minority communities. Alexander v. Sandoval, how-ever, has held that there exists no private implied cause of action to en-force disparate-impact regulations. In so doing, the Court also strongly suggested that disparate-impact regulations, standing alone within EPA’s own administrative enforcement process, were invalid exercises of admin-istrative discretion under Title VI. The Court’s implicit reasoning, based upon Regents of the University of California v. Bakke, is unpersuasive because, contrary to Sandoval’s assertion, Bakke never held that there existed clear congressional intent to limit the scope of Title VI to intentional discrim-ination. Conversely, prior Supreme Court caselaw has never held that dis-parate-impact regulations are valid. Rather, an analysis under the holding of Chevron U.S.A. v. Natural Resources Defense Council is the only appropriate tool with which to prove the validity of disparate-impact regulations.

[Pages 103-148]
REEXAMINING THE MASSACHUSETTS NONDELEGATION DOCTRINE: IS THE "AREAS OF CRITICAL ENVIRONMENTAL CONCERN" PROGRAM AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY?
Benjamin M. McGovern*

Abstract:  In 1974, the Massachusetts Legislature delegated authority to develop statewide policies “regarding the acquisition, protection, and use of areas of critical environmental concern” to the Executive Office of Environmental Affairs (EOEA). As of 2003, this power has been parlayed into a program that regulates nearly a quarter of a million acres across seventy-five Massachusetts municipalities, and in some instances affects the vast majority of all land in a particular community. To be certain, delegations of legislative power like the one given to EOEA are necessary to make government work. It is also possible, however, for these delegations to be overbroad, as federal and state non-delegation doctrines draw lines in the sand that delegations cannot cross. In Massachusetts, one might be tempted to conclude that this limitation no longer exists, since the state judiciary has not invalidated a delegation of legislative power in thirty years. This Note examines whether the powers given to EOEA could reverse this trend, and revive the Massachusetts non-delegation doctrine.

[Pages 149-175]
ASTHMA AND PESTICIDES IN PUBLIC SCHOOLS: DOES THE ADA PROVIDE A REMEDY WHERE FIFRA FAILS TO PROTECT?
Anne Rajotte*

Abstract:  For students suffering from asthma exacerbated or induced by chemical pesticide use, the Americans with Disabilities Act (ADA) may provide a remedy to enjoin the use of chemical pesticides in public schools. The ADA has been used as a remedy for environmentally-related disabilities with mixed results. There have been successful challenges to the ADA used in this context based on the comprehensive regulatory nature of many environmental statutes. This Note will argue that a student who suffers from pesticide-induced asthma is protected by the ADA. Further, the challenges that have precluded relief under other environmental statutes would fail in this context because the scope of regulation of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is not wide enough to provide a private right of action. Because of this, the ADA provides a remedy that is not in conflict with FIFRA.