BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 29 2002 Number 2

[Pages 143-228]
THE FORM AND SUBSTANCE OF ENVIRONMENTAL JUSTICE: THE CHALLENGE OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR ENVIRONMENTAL REGULATION
Tseming Yang*

Abstract:  EPA’s Title VI disparate impact regulations have become a key component of its efforts to address environmental justice issues. However, EPA’s proposed implementation of these regulations through its Draft Title VI Guidance raises serious difficulties. Its attempt to combine civil rights and environmental law doctrines in a whole-sale fashion exposes significant tensions in the regulatory premises between these areas of law. The tensions are evident in how the Guidance approaches issues of minority protections, incommensurable values, and the limits of regulatory intervention. However, there are also important parallels that substantive understandings of discrimination and environmental degradation share. In particular, the role of ration-ally self-interested actions in shaping discriminatory and environment-ally degrading behavior suggests that EPA must not only change how it regulates but also what its regulations focus on. EPA’s Title VI regulation can serve an important function within such efforts to adjust both the form of its regulatory approaches as well as the substantive focus of regulatory solutions.

[Pages 229-280]
THE CONSTITUTIONS OF SUSTAINABLE CAPITALISM AND BEYOND
Bruce Ledewitz*

Abstract:  As environmental crises mount, the law and forms of governance must change. This article explores the challenges provided by recent sustainability literature to the law. As the article demonstrates, the sustainability literature, while it contains economic analysis and solutions to environmental problems, does not systematically address the questions pertaining to the design of law and political institutions. To that end, this article poses the challenge to the legal profession, particularly law schools and their students, to incorporate sustainability into their worldview.

[Pages 281-310]
APPLYING RICO TO ECO-ACTIVISM: FANNING THE RADICAL FLAMES OF ECO-TERROR
Xavier Beltran*

Abstract:  The Racketeering Influenced Corruption Act has increasingly been used to prosecute environmental protest groups. The increased use of RICO raises purposive and interpretative questions pertaining to the applicabilitye of RICO in the context of environmental activism. This note argues that RICO is not an appropriate response because it is not efficacious and likely only to fan the flames of eco-terror.

[Pages 311-342]
FOIA EXEMPTION FIVE: WILL IT PROTECT GOVERNMENT SCIENTISTS FROM UNFAIR INTRUSION?
Dianna G. Goldenson*

Abstract:  The Freedom of Information Act (FOIA) gives the public a right to acquire a great deal of governmental information, possibly leading to the lawful disclosure of unpublished governmental research. Such early disclosure would amount to an unfair intrusion into the scientific process by effectively robbing scientists of the opportunity to publish their research in their own time. Moreover, forcing scientists to expose their findings in this manner could damage their careers and seriously discourage them from working for government agencies altogether. Such a loss of technical expertise would directly and adversely effect the quality of all government agency decisions regarding scientific issues. The topic of this Note, FOIA’s Exemption Five, provides a possible avenue of protection for unpublished research by creating a deliberative process privilege that shields predecisional deliberative memoranda from public scrutiny. It will be up to the judiciary to interpret Exemption Five to include such unpublished research, and thereby protect government scientists and scientific agency decision-making as a whole.

[Pages 343-398]
THE ROLE OF TRANSPARENCY AND PUBLIC PARTICIPATION IN INTERNATIONAL ENVIRONMENTAL AGREEMENTS: THE NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION
Mark R. Goldschmidt*

Abstract:  In the debate concerning the enforcement measures of international environmental agreements, some scholars argue that transparency and public participation are two aspects of agreements that are more successful at altering domestic environmental behavior than are coercive enforcement measures. The North American Agreement on Environmental Cooperation allows a citizen of a NAFTA country to file a complaint with the Commission for Environmental Cooperation alleging that a NAFTA country is failing to effectively enforce its domestic environmental laws. In light of the citizen submissions and the factual records published to date, the NAAEC has thus far successfully achieved one of its primary goals: to promote a transparent environmental regime that emphasizes public participation. This Note examines the NAAEC’s citizen submission process as an example of transparency and public participation in an international environmental agreement. Further, this Note argues that the citizen submission process more effectively influences long-term domestic environmental behavior than do coercive enforcement measures.

[Pages 399-426]
APPLICATION OF THE PRIMARY JURISDICTION DOCTRINE TO CLEAN AIR ACT CITIZEN SUITS
Michael Penney*

Abstract:  Increasingly, defendant’s to environmental citizen suits are urging judges to apply the primary jurisdiction doctrine. The doctrine grants judges the discretion to transfer court claims to administrative agencies where the agencies share jurisdiction over the claim. Judges determine whether to apply the primary jurisdiction doctrine based on considerations of efficiency and the relative competence between the court and agency with regard to the matter. While commentators have analyzed the application of the primary jurisdiction doctrine to Resource Conservation and Recovery Act citizen suits, no such analysis exists for the application of the primary jurisdiction doctrine to Clean Air Act suits. This note sets out that analysis and concludes that judges should apply an open-ended analysis when determining whether to apply the primary jurisdiction doctrine to Clean Air Act citizen suits.