BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 31 2004 Number 3

[Pages 501-528]
THE ECONOMIC DYNAMICS OF ENVIRONMENTAL LAW: COST-BENEŠT ANALYSIS, EMISSIONS TRADING, AND PRIORITY-SETTING
David M. Driesen*

Abstract:  An economic dynamic approach to environmental law offers a more promising avenue for regulatory reform that the current static-efficiency-based approach. An economic dynamic approach seeks to emulate the creativity and innovation that free markets sometimes produce, instead of the efficiency that the economists ascribe to it for purposes of economic modeling. Environmental law must cope with a predictable set of economic dynamics. Population and consumption increases tend to increase pollution and natural resource destruction over time while empowering dirty old industries. We need a reform agenda focused on regulatory design that encourages innovations adequate to cope with significant environmental change over time. Such an agenda would emphasize changes in regulatory process to reduce the influence of existing dirty industries, regulatory designs that encourage innovation, and creative efforts to circumvent problems with languid and sometimes ineffectual governmental decisionmaking processes.

[Pages 529-554]
THE GOALS OF ENVIRONMENTAL LEGISLATION
Thomas O. McGarity*

Abstract:  In the past thirty years, Congress has enacted and revised numerous statutes involving environmental protection. Federal public policy toward environmental pollution has evolved during this time to respond to changing societal needs and new information about the impacts of federal regulation. This Essay will discuss the two broad categories into which regulatory goals of agencies fall: acceptable risk goals and pollution reduction goals. Each of these broad categories, in turn, contains subcategories. Environmental legislation often contains a mix of these goals, and only by examining the complex interaction among them, can the statutory language that specifies the implementation details correctly be understood. Current suggestions for reform would implement a single, simplistic cost-benefit analysis. The present, complex regulatory system allows regulations to meet varying goals, and Congress should be wary of attempts to impose perfection through unidimensional approaches to setting environmental policy.

[Pages 555-590]
CLIMATE CHANGE, CULTURAL TRANSFORMATION, AND COMPREHENSIVE RATIONALITY
Douglas A. Kysar*

Abstract:  Economic cost-benefit analysis aims to evaluate regulatory proposals by identifying, monetizing, and comparing the proposals’ expected positive and negative consequences. The methodology has been received critically in the area of environmental, health, and safety regulation, where scientific uncertainty, difficulties of valuation, and uncommonly long time horizons are said to render cost-benefit analysis especially problematic. This Essay reviews such criticisms through a discussion of the use of cost-benefit analysis in the particular context of climate change policymaking. In this context, generic criticisms of cost-benefit analysis in the environmental, health, and safety area become even more pronounced, raising significant doubt about the methodology’s philosophical and practical appropriateness as a guide for climate change.

[Pages 591-606]
COST-BENEFIT ANALYSIS, STATIC EFFICIENCY, AND THE GOALS OF ENVIRONMENTAL LAW
Matthew D. Adler*

Abstract:  The Essay suggests that environmental law may properly be sensitive to nonwelfarist and distributive considerations as well as overall human welfare. It summarizes the author’s revisionary view of CBA as a decision-procedure roughly tracking overall welfare that incorporates an objectivist rather than preferentialist view of well-being, and that has a role to play even within a nonutilitarian of moral framework. And it explains that CBA does not (pace Driesen) involve a static conception of efficiency, a presupposition that technological change is exogeneous, or an assumption that individuals act rationally.

[Pages 607-616]
THE ECOLOGICAL DYNAMICS OF ENVIRONMENTAL LAW AND POLICY
Jack Manno*

Abstract:  Environmental laws and policies influence the direction of environmental science in complex ways. An emphasis on static efficiency in the design and implementation of law and policy creates incentives for scientists to ask questions that are narrowly focused on the most predictable and measurable environmental variables. Policies designed to protect or restore the emergent properties of ecosystems encourage scientists to ask questions about ecosystem dynamics and the relationship between human activities and the loss or degradation of ecosystem services. Answering such questions is essential for the ecological sciences to advance. This essay addresses three manifestations of policies that can improve understanding of ecological dynamics: the precautionary principle, adaptive management, and the ecosystem approach to environmental management.

[Pages 617-648]
SHIFTING THE BOUNDARY BETWEEN THE SECTIONS 402 AND 404 PERMITTING PROGRAMS BY EXPANDING THE DEŠNITION OF FILL MATERIAL
Nathaniel Browand*

Abstract:  The section 404 permitting program has endured a history of divergent interpretations from both the agencies that operate the program and the courts. In 2002, these agencies, the Army Corps of Engineers and EPA, redefined fill material to include many activities under the section 404 program that did not appear to be included under the previous definition. One of these activities is the disposal of excess dirt and bedrock in the Nation’s waters from strip mining operations. Efforts to thwart this disposal activity have been met with increasing resistance by the courts, while efforts to minimize the adverse environmental effects of this type of disposal have forced the Army Corps to propose developing a coordinated permit process with other involved agencies. This Note argues that the new definition of fill material expands the scope of the section 404 program to include activities that at one time were or could have become subject to regulation under EPA’s more rigorous section 402 program.

[Pages 649-682]
THE PRAGMATIC MIGRATORY BIRD TREATY ACT: PROTECTING "PROPERTY"
Hye-Jong Linda Lee*

Abstract:  In 1916, the United States of America entered into a treaty with the United Kingdom, acting on behalf of Canada, to protect migratory birds from unrestrained killing. Two years later, Congress enacted the Migratory Bird Treaty Act (MBTA) to give effect to this convention. The United States subsequently entered into similar agreements with Mexico in 1936, Japan in 1972, and the Soviet Union in 1976, which were thereafter incorporated into the provisions of the MBTA. The MBTA’s prohibition against pursuing, hunting, taking, capturing, or killing any migratory bird, or any part, nest, or egg of such birds, however, is not motivated by the desire to protect human property interests. This Note explores America’s attachment to wildlife as property under the terms of the conventions, the statutory language, the history, and the caselaw pertaining to the MBTA, with specific focus on the curious distinction between wild and captive-bred mallard ducks.

[Pages 683-722]
MAINE AQUACULTURE, ATLANTIC SALMON, AND INERTIA: WHAT IS THE FUTURE FOR MAINE'S NET PEN SALMON INDUSTRY?
Brian R. Price II*

Abstract:  The Environmental Protection Agency (EPA) has for years failed to create regulations that would govern discharges from aquaculture facilities under the Clean Water Act (CWA). As recent cases from Maine have shown, this failure caused salmon producing aquaculture companies to do very little to reduce the effluent they released directly into the Atlantic. Under the Clean Water Act, however, such polluting is prohibited. Furthermore, under the Endangered Species Act (ESA), additional regulations probably would be imposed on these companies to protect the endangered wild Atlantic salmon that inhabit the rivers and ocean near these facilities. Recent regulations proposed by EPA, however, are probably not stringent enough to meet the statutory requirements of either the CWA or the ESA. While the cleanliness of our waters and the diversity of species should be maintained at the least, these goals can hopefully be reconciled with the growth of an important part of the local and national economy.

[Pages 723-759]
THE UTILITY AND EFFICACY OF THE RLUIPA: WAS IT A WASTE?
Sara Smolik*

Abstract:  The Religious Land Use and Institutionalized Persons Act was Congress’s second attempt to undo the Supreme Court’s decision in Employment Division, Department of Human Resources v. Smith, and thus increase the level of scrutiny used in evaluating land use laws under the Free Exercise Clause. This Note first analyzes the constitutionality of the Act, concluding that the Supreme Court would likely find the Act unconstitutional, even though lower federal courts may hesitate to do so. Second, regardless of the constitutionality of the Act, this Note concludes that it does not serve the purpose it was designed for, as the exceptions written into Smith cover the situations the Act was designed to “protect.” More detrimentally, the mere existence of the Act dissuades further development of free exercise jurisprudence.