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Weekly Update Volume 32, Issue 13

05/06/2002

 LITIGATION

Note: The cases listed are available from the ELR Document Service.

DEVELOPMENT MORATORIA, REGULATORY TAKINGS, COMPENSATION:

The U.S. Supreme Court held that moratoria on development imposed during the process of devising a comprehensive land use plan do not constitute a per se taking of property requiring compensation under the takings clause of the U.S. Constitution. Unable to meet deadlines in a compact designed to protect and preserve a lake, a regional land planning agency issued development moratoria until the permanent land use plan required by the compact was developed. About two months after adoption of the land use plan, property owners in the area brought suit against the planning agency claiming that the moratoria and the final plan constituted takings of the land owners' property without just compensation. The Court granted certiorari limited to whether the moratoria ordered by the planning agency were per se takings of property requiring compensation under the takings clause and held that they were not. The Court has repeatedly recognized the distinction between physical takings, which involve application of per se rules, and regulatory takings, which are characterized by factual inquiries designed to examine and weigh all the relevant circumstances. Here, the property owners incorrectly applied physical takings rationale to regulatory cases to argue for a categorical rule that whenever the government imposes deprivation of all economically viable use of property, no matter how brief, it effects a taking. Supreme Court cases concerning regulatory takings have implicitly rejected the property owners' categorical approach. Moreover, these cases have not resolved the question of whether a regulation prohibiting any economic use of land for a period of time must be compensated. However, property owners' attempt to claim that all economically beneficial use of their land was deprived by focusing exclusively on the time the moratoria were in place must fail because to sever a portion of time from the fee simple estate and then ask whether the segment has been taken in its entirety ignores the Court's admonition to focus on the property as a whole. Further, fairness and justice will not be better served by a categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking. That rule would apply to numerous normal delays and would require changes in practices that have long been considered permissible exercises of police power. Justice Stevens delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsberg, and Breyer, JJ., joined. Rehnquist, C.J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, No. 00-1167 (S. Ct. Apr. 23, 2002) (57 pp.).

CWA, POLLUTANT DISCHARGE LIMITATIONS, PULP AND PAPER MILLS:

The D.C. Circuit denied environmental and industry groups' claims that EPA was arbitrary and capricious in its promulgation of pollutant discharge limitations for the bleached papergrade kraft and soda subcategory of the pulp and paper industry. Environmental groups claimed that EPA defined a technology option that it did not choose to implement as imposing in-plant limitations on regulated entities, thereby unlawfully inflating EPA's evaluation of the option's cost and invalidating EPA's cost-driven rejection of the option. There is nothing in the record, however, to suggest that EPA defined the option in a way that would have imposed in-plant restrictions. Because EPA did not establish in-plant limitations, there is no occasion to reach the environmental groups' contention that EPA was without authority to impose in-plant technology limitations. Additionally, the court declines to examine the environmental groups' claim that EPA erred by including the cost of oxygen delignification in its determination of the capital costs of extended technology for the rejected option because the groups failed to raise the contention during the administrative phase of the rulemaking process. Further, EPA provided more than adequate explanation of its economic analysis for the rejected option and used an appropriate analysis to predict the likely incident of bankruptcies in the cost analysis of the rejected option. Moreover, EPA acted both reasonably and within its authority in adopting a case-by-case approach to color pollution instead of a nationwide standard. Similarly, the industry groups' challenge to EPA's decision to set limits on the discharge of a pollutant and to require daily monitoring of the pollutant failed because EPA was within its authority and not arbitrary or capricious. Finally, EPA did not err in setting the monthly maximum effluent limitation to the 95th percentile of the distribution of monthly measurements rather than the 99th percentile. National Wildlife Federation v. Environmental Protection Agency, No. 99-1452 (D.C. Cir. Apr. 19, 2002) (22 pp.).

CWA, NPDES PERMIT, PRIMARY JURISDICTION DOCTRINE, BURFORD ABSTENTION, NOTICE:

A district court denied a gold mining company's motion to dismiss and motions for summary judgment in a CWA citizen suit action that an environmental group brought against the company for violating CWA §303 by discharging pollutants without an NPDES permit. The company argued that the group's claim should be dismissed under the primary jurisdiction doctrine or Burford abstention. However, the primary jurisdiction doctrine does not apply to this case. Although the company's application for an NPDES permit is pending before the state, the current action does not require the court to set effluent standards or write a permit for the company, which are functions within the special competency of the state. Instead, the court must determine if the company has been discharging pollutants from a point source without an NPDES permit, and it is competent to do so. Moreover, a remedial order from the court would not interfere or conflict with state or EPA orders regarding the company's discharges. Similarly, Burford abstention is not appropriate even though a state administrative proceeding regarding the company's application for a permit is proceeding. Under Burford abstention, a federal court sitting in equity must decline to interfere with proceedings of state administrative agencies if those proceedings are timely and subject to review. Here, there is no evidence of what action, if any, the state is taking on the company's NPDES permit application. Thus, based on the record, retaining jurisdiction over the citizen suit will not interfere with the proceedings or orders of an administrative agency. The company also argued that it should be granted summary judgment because the group failed to comply with the notice requirements of a CWA citizen suit. The group, however, met the CWA's notice requirements. Neither EPA nor the state had initiated actions against the company, and the group's 60-day notice letter meets CWA requirements even though it does not identify the exact pollutants that the company is discharging. Further, notice is deemed adequate when the alleged violator takes specific remedial action in response to the notice, thereby demonstrating an understanding of the alleged violation. Here, after the company received the group's CWA citizen suit notice, it applied for a permit. Sierra Club v. El Paso Gold Mines, Inc., No. 01-PC-2163 (D. Colo. Apr. 11, 2002) (Coan, J.) (18 pp.).

McCARRAN AMENDMENT, SOVEREIGN IMMUNITY, WATER RIGHTS:

The First Circuit held that federal sovereign immunity bars an action initiated by the commonwealth of Puerto Rico's environmental agency in an effort to impose restrictions on the U.S. Navy's extraction of waters from a river. During World War II, the Navy obtained a permit from the commonwealth to extract water from a river and built a hydroelectric plant, control of which was later transferred to the commonwealth. In consideration of the transfer, the commonwealth issued the Navy a permit granting it the right to continue use of the water supply for as long as the Navy's project remained operational. More than 40 years later, the commonwealth told the Navy that under the commonwealth's water law, the Navy needed to update its permit. The commonwealth failed to do anything about the renewal application submitted by the Navy for 13 years, at which point it ordered the Navy to cease its operations because it was withdrawing water from the river without a permit. The Navy then sued the commonwealth seeking confirmation of its right to withdraw water from the river as embodied by its previous permits and argued that the administrative water proceedings infringed the sovereign immunity of the United States. The commonwealth claimed that the ongoing proceedings fell within the waiver of sovereign immunity effected by the McCarran Amendment, which waives the sovereign immunity of the United States in suits for the general adjudication or administration of water rights. However, the waiver in the McCarran Amendment does not extend to purely administrative proceedings, such as the one initiated by the commonwealth. In crafting the Amendment, the U.S. Congress consistently used the word "suit" to describe the matters affected by the statutory waiver of federal sovereign immunity. The presumption is that Congress knew, and purposefully embraced, the particularized meaning of "suit" that refers to an "action in a judicial forum" when it chose to employ the word in the text of the Amendment. Nothing in the language or structure of the Amendment rebuts this presumption, and Congress' use of other terms virtually compels the conclusion that the repeated references to "suits" were fully calculated. The law under which the commonwealth initiated proceedings against the Navy, however, contemplates a purely administrative proceeding that will ordinarily terminate with a final order by the secretary of the environmental agency. Although a proceeding under the law leaves open the possibility of judicial review, that does not transmogrify the underlying proceeding into a suit. Because a proceeding under the law contains no significant judicial component, it is not equivalent to a suit and the McCarran Amendment does not apply. United States v. Commonwealth of Puerto Rico, No. 01-2124 (1st Cir. Apr. 24, 2002) (22 pp.).

TAKINGS, RIPENESS, WETLANDS, DREDGE AND FILL PERMIT:

The Court of Federal Claims held that cemetery owners' takings claims arising from their failure to obtain a CWA §404 permit from the U.S. Army Corps of Engineers are not ripe for review. In 1983, the property owners applied for a CWA §404 permit to dredge and fill 50 acres of the property, which the Corps denied. In 1995, the owners applied for another CWA §404 permit to do essentially the same thing for which they had been denied a permit in 1983. The Corps informed the owners that the application was incomplete, but nothing was done until 1997 when the owners submitted a new application. The Corps issued a public notice and request for public comment on the owners' application, to which it received many comments. These were forwarded to the owners, along with a request for additional information. Because the owners failed to formally respond or request additional time to respond by the 30-day deadline, the Corps withdrew the application.The owners then filed the instant action. The Corps' decision to withdraw the owners' permit application was not a final decision on the merits of the application, and, therefore, the takings claims are not ripe for review. U.S. Supreme Court and Federal Circuit precedent state that a withdrawal of a §404 permit for lack of necessary information is not a final decision for ripeness purposes. It is clear that the Corps' withdrawal of the owners' 1995 permit application was not a final decision on the merits of the application, but simply a postponement of a final decision until all of the necessary information is submitted. Additionally, in its letter to the owners withdrawing the application, the Corps did not effectively deny the owners' permit application or clearly demonstrate the futility of completing the process. When the letter is read in context, it is clear that the Corps did not finally reject the proposed project or indicate that it would not consider other less damaging on-site alternatives. Taken as a whole, the Corps' request for information, together with the public notice comments, suggest that a more modest permit application might well be accepted. Pax Christi Memorial Gardens, Inc. v. United States, No. 00-717L (Fed. Cl. Apr. 10, 2002) (19 pp.).

JURISDICTION, DUE PROCESS, DELINQUENT DEBTORS:

The Ninth Circuit held that the exhaustion requirement of 7 U.S.C. §6912(e) is not jurisdictional and that farmers' failure to exhaust their remedies is excused because their complaint against the USDA for taking money owed to them without notice alleged collateral, colorable constitutional claims. The farmers operate family farm businesses that receive contractual payments from farm programs administered by the USDA. Each farmer has at least one shareholder, member, or beneficiary who is a delinquent debtor on an agricultural loan administered by the USDA, although none of the farmers is a debtor. In order to recoup its losses, the USDA took pro-rata shares of contractual payments owed to the non-debtor farmers to satisfy delinquent debts owed by the individual debtors. The USDA notified the debtors of the intent to offset and of available administrative remedies, but, as a matter of policy, interpreted the regulations as not requiring such notice to be given to the non-debtor farmers. The district court did not decide the farmers' due process claims or any underlying factual issue and instead dismissed the farmers' complaint for lack of subject matter jurisdiction because of their failure to exhaust administrative remedies under 7 U.S.C. §6912(e). The farmers' failure to exhaust the administrative remedies, however, did not deprive the district court of subject matter jurisdiction. Nothing in §6912(e) mentions, defines, or limits federal jurisdiction. Instead, the language of §6912(e) is similar to language that in other cases was held to be merely a codification of the exhaustion requirement. Additionally, the farmers' failure to exhaust administrative remedies should be excused because they present collateral, colorable constitutional claims. The farmers' challenges are facial challenges to USDA policy and are asserted in light of constitutional law, as well as regulatory provisions. Pursuing these challenges in federal court does not interfere with the agency's process because there is no agency process by which these claims may be resolved. Further, the USDA took money owed to the farmers without notifying them of available administrative appeal rights and then denied them appeal rights, thus giving rise to a colorable denial of due process claim. Finally, exhaustion of the farmers' claims would be futile. McBride Cotton & Cattle Corp. v. Veneman, No. 00-17378 (9th Cir. Apr. 19, 2002) (16 pp.).

CONSTITUTIONAL LAW, CASE OR CONTROVERSY, ESA TAKE PROVISION:

The Fifth Circuit vacated a district court decision holding that the ESA's take provision was a valid exercise of Congress' enumerated powers because the case does not present a case or controversy under Article III of the U.S. Constitution. An individual that pumps water from the Edwards Aquifer in Texas alleged that the U.S. government and an environmental organization threatened to sue area water pumpers for ESA violations based upon the theory that the pumping of water from the Edwards Aquifer harmed endangered and threatened species and was a "take" under the ESA. The district court concluded that the case was ripe for review and that the individual had standing. On the merits, it held that Congress validly exercised its Commerce Clause and treaty powers in enacting the ESA's take provision. This suit, however, does not present justiciable issues. The individual failed to demonstrate that there was a specific and concrete threat of litigation against him sufficient to render his declaratory action an actual controversy and thus ripe for judicial review. A notice of intent to sue the individual individually as distinguished from the Edwards Aquifer board could be a sufficiently specific and concrete threat, but the individual failed to demonstrate that he received such a notice. The district court, therefore, was without jurisdiction to decide the case and its decision was vacated. Shields v. Norton, No. 00-50839 (5th Cir. Apr. 26, 2002) (6 pp.).

ESA, HUACHUCA WATER UMBEL, SOUTHWESTERN WILLOW FLYCATCHER:

A district court held that the FWS' final biological opinion (BO) for the U.S. Army's continued operations at Fort Huachuca, Arizona, which concluded in a finding of "no jeopardy" to the endangered water umbel and willow flycatcher, is arbitrary and capricious and in violation of the ESA. After a previous court case, the Army entered into consultation with the FWS as required by ESA §7 due to the significant threat posed by development and uncontrolled groundwater pumping at the fort and the Army's responsibility for that threat. The FWS issued a finding of jeopardy in relation to the Army's proposed activities in the area, and, thus, the draft BO contained a number of reasonable and prudent alternatives (RPAs) for the Army's activities. However, based on a memorandum of agreement (MOA) entered into by the Army and the FWS that outlined mitigation measures to protect the two species rather than imposing mandatory RPAs, the final BO contained a no jeopardy finding. The final BO is arbitrary, capricious, and not in accordance with law. It does not require the Army to balance its water use either on the base or in the subwatershed, to reduce reliance on groundwater pumping by any particular amount, or to achieve any measurable goals with respect to water recharge. Further, while the MOA includes a laundry list of possible mitigation measures related to water conservation and recharge that the Army may implement, it does not establish which projects have to be undertaken, when they must be taken, or what the conservation objectives are for the respective projects. Without such specificity, the mitigation measures in the final BO are merely suggestions. In addition, instead of including the necessary mitigation measures to address the long-term adverse impacts of the Army's proposed activities over the next 10 years, the final BO proposed to identify mitigation measures within 3 years. The FWS must assess the impacts of the Army's operations based on the best scientific evidence available today, not 3 years from now. In addition, the similarity between the provisions in the draft BO and the final BO belie the Army's assertion that the draft BO had to be modified because of a lack of authority to participate, implement, or fund the RPAs. The Army offers no evidence regarding their assertions and fails to explain why they may participate in a regional collaborative effort under the MOA but may not take the leadership role assigned it pursuant to the RPAs. Center for Biological Diversity v. Rumsfeld, No. Civ99-203 TUC ACM (D. Ariz. Apr. 11, 2002) (Marquez, J.) (16 pp.).

INSURANCE, ATTORNEYS FEES, SETTLEMENT:

The Eleventh Circuit certified to the Florida Supreme Court the question of whether an insured is entitled under state law to an award of attorneys fees incurred in enforcing a settlement agreement against an insurer. A steel company sought to recover remediation costs at an allegedly polluted site from its insurer. After the insurer issued a settlement offer to the company, but before the company accepted, a Florida Supreme Court decision altered the insurer's liability under the policy. Nevertheless, the company accepted the settlement offer. The insurer claimed that the offer had been rejected and that the settlement agreement was not valid. A district court held that the settlement was valid. The insurer appealed, and the company cross-appealed seeking attorneys fees. The appellate court held that the company may have a viable claim for attorneys fees incurred in connection with its motion to enforce the settlement agreement. On remand, a district court held that under Florida Statutes §627.428, the company could not recover fees incurred after a settlement agreement. However, state precedent interpreting §627.428 is conflicting. Thus, the question must be certified to the Florida Supreme Court. United States v. Pepper's Steel & Alloys, Inc., No. 01-11249 (11th Cir. Apr. 25, 2002) (4 pp.).

RCRA, CERCLA §104 CLEANUP, GASOLINE SPILL:

A district court held that individuals' RCRA and state law claims against a gasoline corporation that spilled 600,000 gallons of gasoline onto the individuals' property and a surrounding lake and creek are not barred because the state has not engaged in a CERCLA §104 removal action pursuant to RCRA statutory requirements. RCRA citizen suits are only barred to the extent of the scope and duration of a CERCLA cleanup order. Although the state was supervising remediation efforts at the site, there was no agreement between the state and the federal government pertaining specifically to the action and to the site, which is necessary for the state action to be conducted pursuant to CERCLA §104. Additionally, the state's authorization for its hazardous waste management program does not conclusively show that the state was using Superfund money under CERCLA §104 to supervise remediation at the site. Further, the individuals' allegation that present contamination to the land and water surrounding their property continues to pose imminent and substantial endangerment is sufficient to support their claim of a redressable injury. Finally, because the landowners may proceed with their RCRA claim, the court asserted supplemental jurisdiction over the individuals' state law claims. Abundiz v. Explorer Pipeline Co., No. Civ.3:00-CV-2029-H (N.D. Tex. Apr. 19, 2002) (Sanders, J.) (6 pp.).

NEPA, EA, PRELIMINARY INJUNCTION:

The Ninth Circuit affirmed a district court decision denying a county's request for a preliminary injunction to prevent a city from continuing the expansion of its municipal water supply reservoir along the Nestucca River in Oregon. After the U.S. Army Corps of Enginners determined that the project would not have a significant impact on the environment, it issued an EA and FONSI and granted the city's request for a CWA §404 dredge and fill permit. The county argued that the EA failed to describe mitigation measures and to adequately evaluate alternatives. While the Corps was required to develop mitigation measures to a reasonable degree, it was not required to develop a complete mitigation plan detailing the precise nature of the mitigation measures, nor were the mitigation measures intended to completely compensate for the adverse environmental impacts. Here, the Corps adequately described specific mitigation measures in the EA and CWA §404 permit that require the city to comply with dam safety regulations and to take certain steps to prevent erosion at wetland erosion sites and compensate for wetland loss caused by reservoir expansion. Moreover, the Corps considered a number of alternatives in evaluating the city's water needs. Because the Corps took the requisite hard look at the expansion project, the county's motion for a preliminary injunction was properly denied. Tillamook County v. U.S. Army Corps of Engineers, No. 01-35922 (9th Cir. Apr. 29, 2002) (8 pp.).

ROAD CLOSURE, NEPA, "HARD LOOK":

The Tenth Circuit held that the U.S. Forest Service did not violate NEPA and was not arbitrary or capricious in deciding to close numerous roads in a popular recreation area in the Dixie National Forest in an effort to reduce sedimentation in lakes. The Forest Service took an appropriately hard look under NEPA at all of the relevant environmental factors. The Service identified a specific need for action to correct the sedimentation entering the lakes from improper road location and drainage. That need, and the fact that substandard roads were a major source of the lake sediment problem, was amply documented by the Service over an extended period of time. Thus, it was not arbitrary or capricious for the Service to conclude that the roads in the recreation area were a major source of lake sedimentation that needed to be remedied. Additionally, the Service's use of a sediment yield prediction guide in its assessment was not contrary to NEPA's hard look requirement. Further, the Service's review contained an assessment of the impact of all current and foreseeable future uses and examined the direct, indirect, and cumulative effects of these activities in light of the proposed action. Moreover, the Service's finding that the project would have no significant impact on the quality of the human environment was not arbitrary or capricious. Utah Shared Access Alliance v. United States Forest Service, No. 00-4146 (10th Cir. Apr. 25, 2002) (7 pp.).

NEPA, ESA, RIPENESS, STANDING:

The Tenth Circuit reversed a district court decision holding that an environmental group's claims against DOE for failing to comply with NEPA or the ESA before issuing a road easement are not ripe. Although DOE contends that the road may never be built, the environmental group is challenging the granting of the easement, not the building of the road. A challenge to the failure of an agency to comply with NEPA procedures becomes ripe at the time the failure takes place, assuming the plaintiff has standing to bring the claim, and there is no reason why a procedural challenge to the failure of a federal agency to comply with the ESA's procedures should not be treated in the same manner. In addition, to establish an injury-in-fact from failure to perform a NEPA analysis, and therefore have standing, a litigant must show that the agency created an increased risk of actual, threatened, or imminent environmental harm in making its decision without following NEPA procedures and that this increased risk of environmental harm injures the litigant's concrete interest. Here the environmental group presented sufficient facts to show that the easement granted by DOE is a necessary step in the construction of a road to advance the expansion of the mining project, which has the potential of harming the environment. The environmental group further alleged facts sufficient to show that increased risk of environmental harm emanating from the uninformed decision of DOE to grant the easement affects the group's concrete interest. Thus, the environmental group alleged facts sufficient to establish injury-in-fact. Moreover, the alleged injury is fairly traceable to the failure of DOE to conduct a NEPA and ESA analysis, and the injury is redressable by judicial intervention requiring DOE to undertake a NEPA and ESA analysis. The environmental group, therefore, has standing, and its claims are ripe. Sierra Club v. United States Department of Energy, No. 01-1158 (10th Cir. Apr. 19, 2002) (6 pp.).

NEPA, TIMING OF COMPLIANCE, RIPENESS:

A district court held that an environmental group's claim that the DOD and a state military department violated NEPA by failing to prepare an EA in connection with plans to build a military center is not ripe. The state purchased property on which to build the joint federal-state military facility and initiated the land use application process. The DOD does not dispute that the project will require NEPA compliance and stated that the preparation of an EA is underway. However, at this stage of the project, no federal action has been taken and no federal decisions have been finally made that would have necessitated the completion of an EA. Although the state has acquired the proposed land, allocated funds, and sought and been issued county permits, the DOD has yet to decide where to site the project or even whether to fund its construction. Additionally, the DOD has conditioned its approval of construction of the project on a NEPA determination that the project would not significantly impact the environment. Further, the commitment of funding to the project made by the DOD does not demonstrate an irretrievable and irrevocable commitment of resources triggering NEPA. Northwest Environmental Defense Center v. Rumsfeld, No. 01-1489-HO (D. Or. Apr. 11, 2002) (Hogan, J.) (20 pp.) (Defense counsel included Michael W. Mosman of the U.S. Department of Justice, Washington, DC.)

NEPA, NATIONAL FOREST MANAGEMENT ACT (NFMA), POST-FIRE LOGGING:

A district court held that the U.S. Forest Service's EIS for a post-fire logging project on the Six Rivers National Forest violated NEPA and the NFMA and, therefore, enjoined the Service from any further implementation of the project until it prepares a supplemental EIS. The EIS fails to disclose and analyze scientific opinion in support of and in opposition to the conclusion that the project will reduce the intensity of future wildfires in the project area. Likewise, the Forest Service failed to address scientific evidence that opposes post-fire logging. Further, although the EIS contains a reasonably thorough analysis of the cumulative impact on soils, it fails to adequately disclose or analyze cumulative impacts on management indicator species, fuel break maintenance, or fire-fighting tactics. Similarly, while the project is not connected to other post-fire logging projects in the forest, the Service failed to adequately disclose and consider cumulative and similar actions in the EIS. The EIS also violates the NFMA by failing to demonstrate compliance with the Six Rivers National Forest forest plan with respect to soil porosity, but it complies with the NFMA in all other respects. Consequently, in light of the potential for detrimental effects on the environment and the unlikelihood that the Service or public will suffer harm during the pendency of an injunction, the court enjoined the implementation of the project until the Service prepares an adequate EIS. Sierra Club v. Bosworth, No. 01-3901 MMC (N.D. Cal. Apr. 17, 2002) (Chesney, J.) (26 pp.) (Plaintiffs' counsel included Marc D. Fink of the Western Environmental Law Center in Eugene, OR).

NEPA, CUMULATIVE IMPACTS, DALLAS FLOODWAY EXTENSION (DFE):

A district court granted summary judgment to an environmental group on their claim that the U.S. Army Corps of Engineers violated NEPA by failing to consider the cumulative impacts of construction of the DFE and related projects, but granted summary judgment to the Corps on the group's remaining NEPA claims. In a 1999 EIS for the DFE, the Corps failed to discuss the cumulative impacts resulting from a series of bridge, levee, and highway projects, including the DFE, that are part of a river development project. The Corps claimed that they did not address the other projects because they were not actual proposals and that they lacked sufficient detail to discuss the cumulative impacts of the DFE and these projects. However, regardless of whether any of the projects constitute actual proposals, there is a reasonable basis to believe that some or all of the projects will be implemented. The EIS does make some mention of the projects, but the statements are conclusory and fail to meet NEPA's requirements that an agency take a hard look at a project's environmental consequences, including cumulative impacts. The reasonably foreseeable construction of more levees, bridges, and highways in the same geographic area as the DFE will create environmental cumulative impacts that the Corps should have considered in its EIS. Consequently, the matter is remanded to the Corps for further consideration of cumulative impacts, and until the Corps complies with NEPA, further construction of the DFE is enjoined. The Corps, however, did not improperly manipulate computer models in order to increase flood elevation estimates and did not arbitrarily or capriciously omit from the EIS a discussion of an estimated seven-foot increase to projected flood models. In addition, the Corps adequately discussed the economic impacts of flooding in downtown Dallas and was not required to consider the raising of the existing floodway. Further, other related river construction projects were not sufficiently connected as to require analysis in the 1999 EIS, and the group provided insufficient arguments to convince the court that the Corps violated the APA by failing to follow a 1988 record of decision. Texas Committee on Natural Resources v. Van Winkle, No. CIV.A. 4:00CV384-Y (N.D. Tex. Apr. 10, 2002) (Means, J.) (40 pp.).

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA responded to two court decisions directing the Agency to reconsider heat input growth rates projected and used in setting nitrogen oxides (NOx) emission budgets in the NOx SIP Call and §126 rules, which were designed to reduce interstate transport of ozone and NOx; EPA has decided to continue to use the heat input growth rates developed in the rules. 67 FR 21867 (5/1/02).
  • EPA revised the compliance date and other deadlines for sources subject to the CAA §126 Rule published on January 18, 2000, that requires electric generating units (EGUs) and non-EGUs located in 12 states and the District of Columbia to reduce their NOx emissions through a NOx cap-and-trade program. The new compliance date is May 31, 2004. 67 FR 21521 (4/30/02).
  • EPA withdrew its final rule published on March 22, 2002, (67 FR 13508) to extend the compliance date of the pesticide active ingredient production NESHAP because it received adverse comment. 67 FR 21579 (5/1/02).
  • EPA proposed NESHAPs for metal furniture surface coating operations located at major sources of hazardous air pollutant emissions. 67 FR 20205 (4/24/02).
  • EPA extended the availability of limited production rights to manufacture methyl bromide solely for export to developing countries until January 1, 2005. 67 FR 21129 (4/29/02).
  • EPA published a guidance on the CERCLA §101(10)(H) federally permitted release definition as it applies to grandfathered sources under the CAA; the federally permitted release exemption pertains to the reporting requirements under CERCLA §103 and EPCRA §304. 67 FR 19750 (4/23/02).
  • EPA finalized updates for delegation of authority to Guam and the states of Arizona, California, Hawaii, and Nevada for federal new source performance standards and NESHAPs. 67 FR 20652 (4/26/02).
  • EPA approved Pennsylvania's CAA §§111(d)/129 plan for the control of air pollutant emissions from hospital/medical /infectious waste incinerators. 67 FR 22354 (5/3/02).

ENERGY:

  • DOE issued a notice forcasting the representative average unit costs of five residential energy sources for 2002: electricity ($24.27 per million British thermal units (Btu)); natural gas ($6.56 per million Btu); No. 2 heating oil ($7.79 per million Btu); propane ($9.53 per million Btu); and kerosene ($9.11 per million Btu). 67 FR 20104 (4/24/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Tomah Armory hazardous waste site in Tomah, Wisconsin. 67 FR 22080 (5/2/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Tomah Fairgrounds hazardous waste site in Tomah, Wisconsin. 67 FR 22080 (5/2/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122 in connection with the Taylor Lumber & Treating NPL Superfund site. 67 FR 21680 (5/1/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Hermiston Lab site in Hermiston, Oregon. 67 FR 21235 (4/30/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Metro Container Corporation site in Trainer, Pennsylvania. 67 FR 20510 (4/25/02).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the Gurley Pesticide Burial Superfund site in Selma, North Carolina. 67 FR 21679 (5/1/02).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the Leeds Silver Reclamation Superfund site in Leeds, Utah. 67 FR 19752 (4/23/02).
  • EPA withdrew its final authorization of revisions to Delaware's hazardous waste program under RCRA that was published on February 27, 2002, because it received adverse comments. 67 FR 20446 (4/25/02).
  • EPA withdrew its final authorization of a revision to Wisconsin's hazardous waste management program under RCRA that was published on March 1, 2002, because it received adverse comments. 67 FR 19517 (4/22/02).
  • EPA authorized revisions to Arkansas' hazardous waste program under RCRA. 67 FR 20038 (4/24/02).
  • EPA modified an exemption from the RCRA land disposal restrictions that was granted to Vickery Environmental, Inc., in Vickery, Ohio, to allow the facility to continue to inject certain RCRA-regulated hazardous wastes that will be banned from land disposal on May 20, 2002, into four Class I injection wells. 67 FR 20971 (4/29/02).

SMCRA PROGRAM APPROVALS:

  • OSM approved amendments to West Virginia's regulatory program under SMCRA. 67 FR 21903 (5/1/02).

  • OSM approved an amendment to Kentucky's regulatory program under SMCRA. 67 FR 21173 (4/30/02).

  • OSM proposed to approve an amendment to Pennsylvania's regulatory program under SMCRA. 67 FR 21187 (4/30/02).

TRANSPORTATION:

  • DOT's Research and Special Programs Administration (RSPA) proposed new requirements to enhance the security of hazardous materials transported in commerce. 67 FR 22028 (5/2/02).
  • RSPA proposed to amend requirements in the hazardous materials regulations pertaining to the transportation of radioactive materials based on changes contained in International Atomic Energy Agency regulations. 67 FR 21327 (4/30/02).

WATER QUALITY:

  • EPA reissused the general NPDES permit for Alaskan small suction dredging. 67 FR 22082 (5/2/02).
  • EPA announced the availability of the administrative record for 11 total maximum daily loads (TMDLs) for waters listed in the Calcasieu and Quachita river basins in Louisiana under CWA §303(d); EPA also announced the availability for comment of EPA determinations that TMDLs are not needed for 4 waterbody/pollutant combinations in the Calcasieu and Ouachita river basins because new data show that water quality standards are being met or a TMDL previously has been approved. 67 FR 19575 (4/22/02).
  • EPA announced final agency action on the 45 TMDLs prepared for waters listed in Louisiana's Mermentau and Vermilion/Teche river basins under CWA §303(d). 67 FR 21680 (5/1/02).
  • EPA announced final agency action on the 88 TMDLs prepared for waters listed in Louisiana's Mermentau and Vermilion/Teche river basins under CWA §303(d). 67 FR 22080 (5/2/02).

WETLANDS:

  • USDA issued a proposed rule setting out certain categorical minimal effect exemptions under the wetland conservation provisions of the Food Security Act of 1985. 67 FR 19699 (4/23/02).
  • DOE prepared a floodplain/wetland assessment in connection with its proposal to construct a mile-long road between two technical areas at the Los Alamos National Laboratory; a 200-foot segment of the road will cross a floodplain area within Pajarito Canyon. 67 FR 20102 (4/24/02).

WILDLIFE:

  • EPA entered into a proposed consent deree that would establish a series of deadlines for the Agency to begin consulting with the FWS and the National Marine Fisheries Service (NMFS) relative to certain pesticide uses and their potential effects on certain plant and fish species listed as threatened or endangered under the ESA. 67 FR 21232 (4/30/02).
  • FWS designated critical habitat for the San Bernardino kangaroo rat under the ESA. 67 FR 19811 (4/23/02).
  • The U.S. Army Corps of Engineers announced the availability of the draft Estuary Habitat Restoration Strategy. 67 FR 22415 (5/3/02).
  • NMFS announced that the aboriginal subsistance whaling quota for bowhead whales in 2002 is 75 bowhead whales struck. 67 FR 20055 (4/24/02).
  • NMFS redefined the geographic range of the endangered steelhead in southern California to include all steelhead and their progeny that occur in coastal river basins from the Santa Maria River (inclusive) to the U.S.-Mexico Border. 67 FR 21586 (5/1/02).
  • NMFS issued temporary restrictions to lobster trap and anchored gillnet fishing gear off Cape Ann, Massachusetts, during April and May to provide immediate protection to an aggregation of North Atlantic right whales. 67 FR 20699 (4/26/02).
  • NMFS is closing for a 2-week period all inshore and offshore waters 10 nautical miles seaward of the COLREGS demarcation line within the Leatherback Conservation Zone to fishing by shrimp trawlers required to have a turtle excluder device (TED) in each net rigged for fishing unless the TED has an escape opening large enough to exclude leatherback turtles. 67 FR 20054 (4/24/02).
  • NMFS is closing for a 2-week period all inshore and offshore waters 10 nautical miles seaward of the COLREGS demarcation line within the Leatherback Conservation Zone to fishing by shrimp trawlers required to have a TED installed in each net that is rigged for fishing, unless the TED has an escape opening large enough to exclude leatherback turtles. 67 FR 21585 (5/1/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Hi-Noon Petroleum, Inc., No. CV 02-27-GF-CSO (D. Mont. Apr. 3, 2002). A settling RCRA defendant that violated UST regulations at a convenience store in Browning, Montana, must pay a $23,125 penalty and must spend an additional $69,375 on a supplemental environmental project. 67 FR 20549 (4/25/02).
  • United States v. Manetas, No. G-00-758 (S.D. Tex. Mar. 6, 2002). A settling Oil Pollution Act defendant that allegedly discharged and/or controlled and directed to be discharged dredged or fill material into U.S. waters at a site located in LaMarque, Texas, without a permit must pay a $18,721 civil penalty and must perform certain mitigation projects. 67 FR 20550 (4/25/02).
  • United States v. Alexander City, Alabama, No. 02-W-428-E (M.D. Ala. Apr. 15, 2002). Two settling CWA defendants that allegedly caused interference with POTWs and pass through of untreated contaminants to navigable waters of the United States, and one settling defendant that dishcarged a pollutant from a point source to navigable U.S. waters in excess of permit limitations and failed to ensure compliance with its NPDES permit, must each pay a $10,000 civil penalty and must collectively perform a land acquisition supplemental environmental project valued at $197,000. 67 FR 22106 (5/2/02).
  • United States v. American Scrap Co., No. 1:99-CV-2047 (M.D. Pa. Apr. 22, 2002). A settling CERCLA defendant must pay $175,000 to the United States in connection with the Jack's Creek/Sitkin Smelting Superfund site in Mifflin County, Pennsylvania; under a second consent decree concerning the site, four settling defendants must pay a total of $189,578.18 consistent with each respective party's ability to pay. 67 FR 22107 (5/2/02).
  • United States v. Barretts Minerals Inc., No. 02-62-M-DWM (D. Mo. Apr. 9, 2002). A settling CWA defendant that violated permit limits for nitrate plus nitrite and total suspended solids and failed to monitor stream flow rates must pay a $40,000 civil penalty and must expend at least $74,000 to implement a supplemental environmental project consisting of rehabilitation of a roadway along Stone Creek in Madison County, Montana, to control stormwater runoff and sediment deposition. 67 FR 22107 (4/2/02).
  • United States v. F.P. Woll & Co., No. 02-CV-2331 (E.D. Pa. Apr. 22, 2002). A settling CERCLA defendant must pay $40,708 in past U.S. response costs incurred at the North Penn Area Six Superfund site in the Borough of Lansdale, Pennsylvania. 67 FR 22108 (5/2/02).
  • In re Fruit of the Loom, Inc., No. 99-4497(PJW) (Bankr. Ct. D. Del. Apr. 17, 2002). Under a settlement resolving claims of various governmental parties against settling CERCLA, RCRA, and Atomic Energy Act defendants in connection with violations at seven facilities nationwide, the following will be dedicated to fund response action or costs and natural resource damage assessment or restoration for the seven facilities: (1) $4,292,808 to be paid in full as an allowed administrative expense; (2) certain future proceeds from general liability insurance claims; (3) certain future recoveries from preferred shares of stock in one defendant corporation; and (4) certain proceeds from two defendant corporations' "cost cap" and pollution legal liability insurance policies. 67 FR 22108 (5/2/02).
  • United States v. General Motors Corp., No. 02 C 2345 (N.D. Ill. Apr. 25, 2002). Under one consent decree concerning the Byron Superfund site in Ogle County, Illinois, settling CERCLA defendants must construct a permanent water supply system to serve the Rock River Terrace subdivision near the site; under a second consent decree, the settling defendants must implement specified remedial measures, including installation of a cover over contaminated soils and groundwater monitoring activities, must pay $282,000 in past U.S. response costs incurred at the site, and must pay specified future response costs incurred by the United States. 67 FR 22109 (5/2/02).
  • United States v. MEC Oregon Racing, Inc., No. 02-CV-433-HA (D. Or. Apr. 3, 2002). Settling CWA defendants that dishcarged and may continue to discharge wastewater and other pollutants from a race track complex in Portland, Oregon, without an NPDES permit must pay a $100,000 civil penalty and must, among other things, remove all horses from the complex and prevent their return until routing of process wastewater to a sanitary sewer is complete, immediately institute best management practices to reduce discharge of process wastewater, pay stipulated penalties for any direct discharges of process wastewater occurring on or after February 15, 2002, apply for an NPDES permit, and cease all unpermitted discharges by April 30, 2005. 67 FR 22109 (5/2/02).

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

THE CONGRESS

CHAMBER ACTION

  • H.R. 4 (energy), which would enhance energy conservation, research, and development and would provide for security and diversity in the energy supply for the American people, was passed by the Senate. 148 Cong. Rec. S3342 (daily ed. Apr. 25, 2002).
  • H.R. 64 (EPA), which would provide for the establishment of the position of Deputy Administrator for Science and Technology of EPA, was passed by the House. H1702 (daily ed. Apr. 30, 2002).
  • H.R. 2109 (Virginia Key Beach), which would authorize the Secretary of the Interior to conduct a special resource study of Virginia Key Beach, Florida, for possible inclusion in the National Park System, was passed by the House. 148 Cong. Rec. H1699 (daily ed. Apr. 30, 2002).
  • H.R. 2628 (Muscle Shoals National Heritage Area), which would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Muscle Shoals National Heritage Area in Alabama, was passed by the House. 148 Cong. Rec. H1701 (daily ed. Apr. 30, 2002).
  • H.R. 3421 (Yosemite National Park), which would provide adequate school facilities within Yosemite National Park, was passed by the House. 148 Cong. Rec. H1696 (daily ed. Apr. 30, 2002).
  • H.R. 3909 (Gunn McKay Nature Preserve), which would designate certain federal lands in Utah as the Gunn McKay Nature Preserve, was passed by the House. 148 Cong. Rec. H1697 (daily ed. Apr. 30, 2002).

COMMITTEE ACTION

  • H.R. 2963 (Deep Creek Wilderness Area) was reported by the House Committee on Resources. H. Rep. No. 107-416, 148 Cong. Rec. H1532 (daily ed. Apr. 23, 2002). The bill would establish the Deep Creek Wilderness Area.
  • H.R. 3908 (North American Wetlands Conservation Act) was reported by the House Committee on Resources. H. Rep. No. 107-421, 148 Cong. Rec. H1688 (daily ed. Apr. 29, 2002). The bill would reauthorize the North American Wetlands Conservation Act.

BILLS INTRODUCED

  • S. 2220 (Jeffords, I-Vt.) (Solid Waste Disposal Act) would amend the Solid Waste Disposal Act to require implementation by brand owners of management plans that provide refund values for certain beverage containers. 148 Cong. Rec. S3014 (daily ed. Apr. 22, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2222 (Murkowski, R-Alaska) (land conveyance) would resolve certain conveyances and provide for alternative land selections under the Alaska Native Claims Settlement Act related to Cape Fox Corporation and Sealaska Corporation. 148 Cong. Rec. S3165 (daily ed. Apr. 23, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2243 (Hutichinson, R-Ark.) (water resources; flood control) would specify the amount of federal funds that may be expended for intake facilities for the benefit of Lonoke and White Counties, Arkansas, as part of the project for flood control, Greers Ferry Lake, Arkansas. 148 Cong. Rec. S3303 (daily ed. Apr. 24, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2333 (Reid, D-Nev.) (land conveyance) would convey land to the University of Nevada at Las Vegas Research Foundation for a research park and technology center. 148 Cong. Rec. S3303 (daily ed. Apr. 24, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2334 (Burns, R-Mont.) (Land donation) would authorize the Secretary of Agriculture to accept the donation of certain land in the Mineral Hill-Crevice Mountain Mining District in Montana. 148 Cong. Rec. S3435 (daily ed. Apr. 25, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • H.R. 4544 (Moore, D-Kan.) (Land conveyance) would authorize the conveyance of the Sunflower Army Ammunition Plant in Kansas. 148 Cong. Rec. H1489 (daily ed. Apr. 22, 2002). The bill was referred to the Committee on Armed Services.
  • H.R. 4552 (Hefley, R-Colo.) (national parks) would amend the National Park Service Concessions Management Improvement Act of 1998 regarding certain small contracts. 148 Cong. Rec. H5132 (daily ed. Apr. 23, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4572 (Dingell, D-Mich.) (CWA) would amend the CWA to increase certain criminal penalties. 148 Cong. Rec. H1619 (daily ed. Apr. 24, 2002). The bill was referred to the Committees on Transportation and Infrastructure, and the Committee on the Judiciary.
  • H.R. 4579 (Miller, R-Cal.) (ESA) would amend the ESA to ensure the recovery of our nation's declining biological diversity; would reaffirm and strengthen this Nation's commitment to protect wildlife; would safeguard our children's economic and ecological future; and would provide assurances to local governments, communities, and individuals in their planning and economic development efforts. 148 Cong. Rec. H1619 (daily ed. Apr. 24, 2002). The bill was referred to the Committees on Resources, and Ways and Means.
  • H.R. 4587 (Young, R-Alaska) (navigable waters) would establish the Joint Federal and State Navigable Waters Commission for Alaska. 148 Cong. Rec. H1619 (daily ed. Apr. 24, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4589 (Doolittle, R-Cal.) (wilderness areas; Multiple-Use Sustained-Yield Act (MUSY)) would provide for expedited decisions on wilderness study areas and would provide that lands designated as wilderness study areas for more than 15 years shall be used in accordance with MUSY. 148 Cong. Rec. H1672 (daily ed. Apr. 25, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 4601 (DeFazio, D-Or.) (land conveyance) would provide for the conveyance of a small parcel of BLM land in Douglas County, Oregon, to the county to improve management of and recreational access to the Oregon Dunes National Recreation Area. 148 Cong. Rec. H1673 (daily ed. Apr. 25, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4605 (Kucinich, D-Ohio) (Nuclear Waste Policy Act) would amend the Nuclear Waste Policy Act of 1982 with respect to transportation of nuclear waste. 148 Cong. Rec. H1673 (daily ed. Apr. 25, 2002). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.
  • H.R. 4609 (Nethercutt, R-Wash.) (water resources) would direct the Secretary of the Interior to conduct a comprehensive study of the Rathdrum Prairie/Spokane Valley Aquifer, located in Idaho and Washington. 148 Cong. Rec. H1673 (daily ed. Apr. 25, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4610 (Norton, D-D.C.) (Anacostia River) would direct the Administrator of EPA to carry out a pilot program for restoration of urban watersheds and community environments in the Anacostia River watershed in the District of Columbia and Maryland. 148 Cong. Rec. H1673 (daily ed. Apr. 25, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4611 (Olver, D-Mass.) (CAA) would amend the CAA to establish an inventory, registry, and information system of U.S. greenhouse gas emissions to inform the public and private sectors concerning, and encourage voluntary reductions in, greenhouse gas. 148 Cong. Rec. H1673 (daily ed. Apr. 25, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H. Res. 379 (Gekas, R-Pa.) (oil) would provide that certain actions should be taken with respect to the actions of OPEC and other oil-exporting countries and with respect to decreasing the dependency of the United States on foreign sources of oil. 148 Cong. Rec. H1153 (daily ed. Apr. 9, 2002). The bill was referred to the Committees on International Relations, and Energy and Commerce.
  • H.R. 4618 (Hunter, R-Cal.) (Magnuson-Stevens Fishery Conservation and Management Act) would amend the Magnuson-Stevens Fishery Conservation and Management Act to provide for the conservation of stocks of Pacific highly migratory species by directing the Secretary of Commerce to prohibit pelagic longline fishing in the exclusive economic zone off the coasts of California, Oregon, and Washington. 148 Cong. Rec. H1768 (daily ed. Apr. 30, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4619 (Nethercutt, R-Wash.) (flood control) would authorize the Secretary of the Army to provide a credit toward the non-federal share of the cost of the feasibility study for the project for flood control in the vicinity of Sprague, Lincoln County, Washington. 148 Cong. Rec. H1768 (daily ed. Apr. 30, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4620 (Otter, R-Idaho) (public lands; wilderness designation) would accelerate the wilderness designation process by establishing a timetable for the completion of wilderness studies on federal lands. 148 Cong. Rec. H1768 (daily ed. Apr. 30, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4622 (Radanovich, R-Cal.) (federal lands; public participation) would require federal land managers to support, and to communicate, coordinate, and cooperate with, designated gateway communities; would improve the ability of gateway communities to participate in federal land management planning conducted by the Forest Service and agencies of the DOI; and would respond to the impacts of the public use of the federal lands administered by these agencies. 148 Cong. Rec. H1769 (daily ed. Apr. 30, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 4638 (Thune, R-S.D.) (Water resources) would reauthorize the Mni Wiconi Rural Water Supply Project. 148 Cong. Rec. H2018 (daily ed. May 1, 2002). The bill was referred to the Committee on Resources.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfm to view the complete section.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved.

INTERNATIONAL

GENERAL

  • The aims of the 1992 Rio Conference have not been attained--indeed, the disparities between north and south have widened. This was the background to the adoption by the European Parliament's Development Committee of a report on a global partnership for sustainable development, which seeks to give fresh impetus to the world summit on sustainable development to be held in Johannesburg in August. The report argues that the poverty suffered by the majority of the planet's inhabitants and excessive consumption by the minority are the two major causes of environmental degradation. In the hope of attaining the "millenium objectives" (to reduce poverty by half by the year 2015) the Committee, while deploring the lack of a genuine solution following the Monterrey Conference, called on Member States to increase their development aid, first of all, to a European Union (EU) average of 0.39% of GDP and then to 0.7% by 2010. The Committee also urged EU Member States to agree on an immediate moratorium on debt servicing for all countries belonging to the group of heavily indebted poor countries and/or least developed countires and to waive all remaining bilateral debts for those countries. The Committee agreed that Sustainability Impact Assessments (SIAs) should be prepared for all major policy initiatives and called for SIAs to be a mandatory precondition for all EU trade agreements and programs. The committee also adopted an amendment calling for a halt to pressure on developing countries to open their markets to foodstuffs imported from the EU where there would be an adverse effect for small producers or food safety. See http://www.europa.int, European Parliament news reports.
  • European nuclear energy commission Loyola DePalacio, addressing the Industry Committee of the European Parliament, stressed the importance for Europe to set up systems to guarantee energy supplies in sufficient quantities while also emphasising safety. "In an enlarged Europe nuclear safety must not be neglected by either the Commission or the Member States," she said. She said that eight nuclear reactors in the candidate countries should be closed down because their safety standards had not been updated. But she noted two problems: an unwillingness to shoulder the cost of closing down nuclear plants and the difficulty of finding alternative energy sources, as some candidate countries being dependent on nuclear power for 80% of their energy. She noted that the lack of uniform standards in the candidate countries as well as in the EU means that Community-wide rules are needed.
  • A U.N. Food and Agriculture Organization official said that Ethiopia, which has not ratified the Stockholm Convention on Persistent Organic Pollutants, has between 900 and 1,000 chemically contaminated sites.
  • The Second Review Meeting of Contracting Parties to the Convention on Nuclear Safety was held in Vienna. Miroslav Gregoric, who presided, said "the commitment of states to all aspects of nuclear safety is higher than ever." He stressed that "there is a real dedication to international information sharing, learning from the lessons of others and to constant vigilance and improvement, focusing more on humanand organizational aspects and safety management --the key ingredients of nuclear safety culture." See http://www.iaea.org/worldatom/Press/P_release/2002/prn0207.shtml
  • The Environment Committee of the European Parliament voted to ensure that draft legislation giving the public access to environmental information does not financially cripple public agencies, such as national meteorological offices, which provide information to commercial users for a fee, as well as providing public information.
  • The European Court of Justice ruled that Italy has failed to fulfil its obligations under the directive on urban wastewater because discharges from Milan are released into sensitive areas without being subjected to specific treatment. The 1991 Directive on the treatment of urban wastewater has as its objective the protection of the environment from the adverse effects of wastewater discharges. It required the Member States to provide, by December 31, 1998, at the latest, collection systems for urban wastewater discharges into "sensitive areas" so that they could be subjected to more stringent treatment. Italian Decree-Law No 152 of 1999 identifies as sensitive areas, inter alia, the delta of the River Po and the north-west coast of the Adriatic Sea, from the mouth of the Adige to Pesaro, and the water-courses which flow into them over a distance of 10 kilometres from the coast. The city of Milan does not have a wastewater treatment plant, and the waste from the 2.7 million people living there is discharged without prior treatment into the Lambro-Olona river system, and then into the River Po.
  • New Zealand and Australia proposed that the International Whaling Commission, at its May 20-24 meeting, agree to set up a whale sanctuary area in the south Pacific. Japan is asking for a relaxation of the current moratorium on commercial whaling. "The U.S. is a whaling nation. Canada is a whaling nation. Russia is a whaling nation," said the lead Japanese delegate to the meeting, Joji Morishita. "But Japan is being singled out. There are cultural factors going back to the 1980s, when Japan-bashing was fashionable." See http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20020425b9.htm
  • Nigerian Regional Integration and Cooperation Minister Bimbola Ogunkelu urged African countries to cooperate in managing the continent's water resources in order to facilitate substainable development.

CLIMATE CHANGE

  • Newly appointed U.N. Intergovernmental Panel on Climate Change Chairman Rajendra Pachauri said that global warming could result in significant agriculture losses and the destruction of coastal areas. "In the next three, four, maybe five decades, we will see the impact of climate change, such as sea level rise, impact on agriculture, impact on water, impact on health because there are certain diseases and viruses which could increase." In an interview, he denied that the United States "lobbied" for his appointment.
  • The European Environment Agency published the European Union's (EU's) greenhouse gas
    emissions figures for the year 2000. They show that the EU has met its commitment under the United Nations Framework Convention on Climate Change to stabilize its emissions by the year 2000. Greenhouse gas emissions in the EU in 2000 were 3.5% lower than in the base year 1990. Environment Commissioner Margot Wallström welcomed the report, saying "[t]his is good news. It also shows that the EU has made progress towards reaching our Kyoto target of minus 8%." She added, however, that "it is worrying though that emissions rose slightly between 1999 and 2000--we need to reverse this trend again. Many Member States still have to make substantial efforts to reduce their greenhouse gas emissions." And commenting on her recent visit to the United States, she said "[w]e need to revitalise cooperation between the EU and the US on certain environmental issues. This visit has been a useful launch pad to move our cooperation forward. Obviously, we do not agree on everything and we have different approaches to tackling environmental problems. The Kyoto Protocol is one notable example. But we do need to work together on climate change and we have now identified some areas for joint cooperation. We have also agreed to work closer together in the preparations for the World Summit on Sustainable Development and on environment and health." See http://europa.eu.int
  • The Indian government held a workshop to increase awareness in the region about climate change and to discuss strategies.
  • British researchers released a report which notes that worldwide temperatures the first three months of this year were the highest ever recorded. The report also concluded that even if greenhouse gas emissions were halted, warming would increase due to previous emissions. See http://www.guardian.co.uk/Archive/Article/0,4273,4401775,00.html
  • The British Royal Society, concluding that the current Climate Change Levy is not working, said it would investigate alternatives. The Levy taxes energy use and has not reduced the level of emissions. "The UK's emissions of carbon dioxide increased by 1.5 percent last year, so the challenge is to introduce economic measures that discourage the burning of fossil fuels," society vice-president Eric Ash said in a statement. "The Climate Change Levy fails to meet this challenge fully," he added.
  • David Goldsack, a U.S.-based economist examining the economic impact of Protocol implementation in the United Kingdom, said "under the protocol growth would be slowed from 2.4 percent to 2.0 percent (of GDP) over the next 10 years--annual net job losses could be as high as one million."
  • The Intergovernmental Panel on Climate Change commenced study to define dangerous
    levels of human interference in the Earth's climate, Electricity Daily reported. The article reported that the study marks a shift from the panel's previous position that defining "dangerous anthropogenic interference" is more a political than a scientific question.
  • U.N. Economic and Social Commission for Asia and the Pacific Executive Secretary Kim Hak-Su called for greater public/private and developing/developed country cooperation in combatting global warming.
  • The International Energy Agency said that the United States should do more to reduce greenhouse gas emissions. The Agency noted that U.S. emissions rose 15.2% from 1990 to 1999, compared with 10.3% in OECD countries and 8.9% worldwide. The group projected U.S. emissions in 2020 to be 54% percent higher than in 1990. See http://www.iea.org/new/releases/2002/us.htm "The U.S. has withdrawn from the Kyoto Protocol but is committed to the United Nations Framework Convention on Climate Change that aims to stabilize greenhouse gas concentrations in the longer term," the agency said. "Difficult economic and sectoral issues will be at stake in any U.S. program on greenhouse gas emissions. These include the wish of the public to keep energy prices low, to exercise free choice in the composition of the automobile fleet, and the pivotal role of coal in securing energy supply. The U.S. government should nevertheless carry forward the debate on greenhouse gas emissions to define its aims and to develop a strategy for achieving them." See http://www.nytimes.com/aponline/business/AP-IEA-US-Energy.html
  • The European Parliament's Environment Committee discussed the proposed EU-wide emissions trading program. See http://www.euractiv.com/cgi-bin/cgint.exe/610690-573?targ=1&204&OIDN=1503328
  • The Brazilian Chamber of Deputies approved a bill that would ratify the Protocol. The measure now goes to the upper house, where it is certain to pass.
  • Canadian Environment Minister David Anderson denied press reports that a gas tax was being considered as a means of funding Protocol implementation. See http://www.nationalpost.com/search/story.html?f=/stories/20020427/53761.html&qs=kyoto
  • Several Canadian provincial premiers, including Ralph Klein of Alberta, Gordon Campbell of British Columbia, Nova Scotia's John Hamm, and Gary Doer of Manitoba, said they were not in favor of the Protocol and wanted, as an alternative, a "made-in-Canada" approach. Meanwhile, Prime Minister Jean Chrétien said Canada would not implement the Protocol in the absence of approval from the provinces. See http://www.nationalpost.com/search/story.html?f=/stories/20020426/39467.html&qs=kyoto and http://www.nationalpost.com/search/story.html?f=/stories/20020424/16602.html&qs=kyoto
  • A report, The Bottom Line on Kyoto: The Economic Benefits of Canadian Action, was released by the Tellus Institute. It favors ratification. See http://www.wwfcanada.org/en/news_room/nr_display_release.asp?release=02_04_23
  • Australian Prime Minister John Howard informed Japanese Prime Minister Junichiro Koizumi that Australia would not ratify the Protocol.
  • Meanwhile, New Zealand's government announced that it intends to implement a carbon tax to spur compliance with the Protocol. Although the tax would not go into effect until 2007, the concept is being criticized by business groups who are concerned about the economic impacts of ratification, given that the country's two biggest trading partners are the United States and Australia. Pete Hodgson, the government minister responsible for climate change policy, said that the proposed tax demonstrates "both environmental integrity and careful regard for the nation's economic interests." "New Zealand is taking climate change seriously," Hodgson added. "We have much to lose if global warming continues unchecked, and much to gain by contributing to the international effort to tackle it through the Kyoto Protocol." Business groups are proposing other approaches. See http://globalarchive.ft.com/globalarchive/article.html

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

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