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Weekly Update Volume 32, Issue 17

06/10/2002

 LITIGATION

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

CWA, TOTAL MAXIMUM DAILY LOADS (TMDLs), NONPOINT SOURCES:

The Ninth Circuit held that EPA did not exceed its statutory authority in identifying the Garcia River under CWA §303(d)(1)(A) and establishing the Garcia River TMDL even though the river is polluted only by nonpoint sources of pollution. After EPA established a TMDL for the Garcia River, the tree harvesting activities of landowners who own property in the Garcia River watershed were restricted. The landowners then challenged EPA’s authority to impose TMDLs on rivers polluted only by nonpoint sources of pollution and sought a determination of whether the Act authorized the Garcia River TMDL. CWA §303(d) requires states to identify and compile a list of waters for which certain effluent limitations are not stringent enough to implement the applicable water quality standards for such waters. Effluent limitations pertain only to point sources of pollution. Thus, EPA interpreted the phrase "are not stringent enough" as triggering the identification requirement both for waters as to which effluent limitations apply but do not suffice to attain water quality standards and for waters as to which effluent limitations do not apply at all to the pollution sources impairing the water. EPA's regulations concerning §303(d)(1) lists and TMDLs apply whether a body receives pollution from a point source, a nonpoint source, or a combination of the two. In light of the current regulations and the Agency’s understanding of those regulations, as well as the delegated authority of EPA to interpret the CWA, the Agency’s interpretation is entitled to deference. Moreover, the Agency's position is supported by the statute. Section 303(d) and the TMDL requirements of the CWA are best read to include waters impaired only by nonpoint sources of pollution. The landowners' federalism concerns were also unfounded. Pronsolino v. Nastri, Nos. 00-16026, -16027 (9th Cir. May 31, 2002) (32 pp.).

SMCRA, ABANDONED MINE RECLAMATION FUND, STANDING:

The Sixth Circuit dismissed a coal mining association's claim against the Secretary of the Interior seeking to force the federal government to turn over approximately $1.3 billion allegedly due to the commonwealth of Kentucky under SMCRA's abandoned mine reclamation fund. After the association filed suit, the lower court granted the Secretary's motion to dismiss, finding that he had no duty to disburse the funds at issue without a prior congressional appropriation. The lower court, however, need not have reached this substantive question because the association failed to establish that it had standing to sue. Plaintiffs cannot rest their claims on legal duties owed to others in order to assert standing. Here, the association's claimed entitlement to a writ of mandamus is premised on the Secretary's failure to allocate sufficient money from the fund to the commonwealth of Kentucky, not to the association. Similarly, it did not assert its own rights, but those of the commonwealth, and, therefore, failed to establish standing to sue under the general federal jurisdictional statute. Finally, the association failed to properly rely upon the one statutory provision of SMCRA that might have afforded them a remedy. SMCRA §520 specifically provides a remedy to individuals who seek to enforce compliance with its provisions as long as the prospective plaintiff gives the Secretary 60 days' notice prior to filing suit. Here, the association failed to comply with this notice provision. Coal Operators & Assocs. v. Babbitt, No. 00-6320 (6th Cir. June 3, 2002) (5 pp.).

CAA, ASBESTOS, SENTENCING:

The Third Circuit vacated and remanded an individual's sentence for asbestos cleanup violations. The individual pleaded guilty to knowingly violating the CAA as well as to the obstruction of justice and was sentenced to 51 months in jail. The district court correctly applied a six-level enhancement for the continuous or repetitive discharge of a hazardous substance. Similarly, a four-level enhancement was properly applied to his sentence because his actions resulted in a cleanup that required substantial expenditure. Likewise, a two-level upward adjustment for being a supervisor of criminal activity was warranted because the individual exercised some degree of control over the actions of others. The district court, however, erred in applying a four-level enhancement against the individual for an unpermitted offense. The CAA does not impose a permit requirement prior to asbestos cleanup; it only requires notice of the cleanup to the government. And because the individual was charged with violating the federal requirements of the CAA, his apparent violation of a city permit, quite independent of the CAA, cannot be the basis for an enhancement of his sentence. United States v. Chau, Nos. 00-2720, -2721 (3d Cir. June 4, 2002) (10 pp.).

WATER SERVICE, ENCROACHMENT, ATTORNEYS FEES:

The Tenth Circuit upheld a district court decision that a water company's outstanding indebtedness and continuing service to an area prohibited a competitor from encroaching on the company's water service area, but reversed the district court's award of attorney fees to the company. After a resident failed to comply with the company's requirements for establishing water service, the competitor provided the resident water service. The water company demanded that its competitor disconnect the water line because it encroached upon the company's territory protected by §1926(b) of the Consolidated Farm and Rural Development Act. The competitor then filed the underlying action in federal court seeking a declaratory judgment that 7 U.S.C. §1926(b)'s monopoly protection is unavailable to the company. To invoke protection under §1926(b), a qualified water association must have a continuing indebtedness to the Farmers Home Administration (FmHA) and must have provided or made available service to the disputed area. Here, the company remains indebted on what were originally FmHA loans, therefore, the district court did not err in concluding that the company satisfied the indebtedness element of §1926(b). Further, the company satisfied the second prong of §1926(b). The company, therefore, was entitled to §1926(b) protection. The district court, however, erroneously awarded the company attorneys fees under 42 U.S.C. §1988(b). The state only granted the competitor informal permission to provide water service to the resident. It did not order or request that the competitor do so. The competitor's actions, therefore, were not taken under color of state law. Moongate Water Co. v. Butterfield Park Mutual Domestic Water Ass'n., No. 01-2166 (10th Cir. June 3, 2002) (8 pp.).

NATIONAL FORESTS, PUBLIC SCHOOLS, STANDING, FUND ALLOCATION:

The Ninth Circuit upheld a district court decision dismissing school districts and parents' action against the Washington state treasurer and superintendent of education to stop the state from reducing the school districts' state-mandated aid by the amount of federal forest funds it receives. Under 16 U.S.C. §500, the federal government pays states, such as Washington, 25% of all moneys received from national forests within their borders to be spent as the state legislature prescribes for the benefit of public schools and public roads of counties in which a national forest is situated. Washington distributed these funds to forest land counties, but decided that forest land counties must disburse half of the money directly to school districts. The state then credited the amount of that disbursement toward the amount of state-mandated aid that would otherwise be paid to the school districts. Parents of children who attend the public schools in a forest land county and a number of school districts filed suit seeking to restrain the state treasurer and superintendent of education from reducing the districts’ state-mandated aid in this way. They sought an order requiring them instead to pay school districts in forest land counties their full allocation of forest funds and their full state-mandated aid. The school districts, however, lacked standing. School districts are a political subdivision of the state, and political subdivisions of a state may not challenge the validity of a state statute in federal court. And while the parents, on behalf of their childeren, have sufficiently shown injury in fact, their ability to redress concerns about their children’s education through the requested relief is problematic because the connection between §500 and the quality of education delivered by any particular district is attenuated. Nevertheless, §500 allows the Washington legislature to decide how to spend federal forest funds for the benefit of public schools or roads in forest land counties, and its decision to apportion some of those funds directly to school districts in forest land counties comports with §500. The statute does not constrain how the state allocates its own money, or how school districts spend theirs. Okanogan School District #105 v. Superintendent of Public Instruction for the State of Washington, No. 00-36096 (9th Cir. June 3, 2002) (16 pp.).

NEPA, U.S. WATERS, DEVELOPMENT, PRELIMINARY INJUNCTION:

A district court granted an environmental group's motion for a preliminary injunction to enjoin a developer from engaging in any activities authorized by a U.S. Corps of Engineers permit allowing the construction of road crossings and other facilities over U.S. waters in Phoenix, Arizona. Although the development area is desert, washes run east to west throughout the entire parcel. The group argued that the Corps' EA for the project was too narrow in scope because the Corps simply looked at the washes and not at the entire parcel of land. Serious questions exist as to the merits of the case. The washes and the land are part and parcel of the same project. Although U.S. waters constitute only about 5% of the total area, the washes are a dominant feature of the land and no development of the property could occur without affecting the washes. Thus, although the land itself is private property, federal control of the entire area could be extensive due to the strands of public water running throughout it. Further, the Corps limited its review to the area immediately adjacent to the crossings, yet the location of the uplands and washes dictate where construction will be. In addition, the balance of hardships tips in favor of the environmental group. If the desert land is disrupted, it cannot be restored. The court, therefore, granted the injunction and suspended the permit. Save Our Sonoran, Inc. v. Flowers, No. CV-02-00761-PHX-SRB (D. Ariz. May 30, 2002) (Martone, J.) (4 pp.).

TAKINGS, MINERAL RIGHTS, NUISANCE:

The Pennsylvania Supreme Court reversed a district court decision holding that the designation of the Clearfield County Goss Run Watershed as unsuitable for mining under the Pennsylvania Surface Mining Conservation and Reclamation Act (PaSMCRA) was a taking. Various property owners who had mining interests in the watershed argued that the regulation that designated their land as unsuitable for mining constituted a taking of their property without just compensation. A lower court struck the regulation only with regard to those mining areas that were economically feasible, and both the property owners and the commonwealth appealed. The lower court correctly held that only property with value can be taken. However, the court's analysis was inadequate. The court failed to identify the appropriate horizontal conceptualization of the property to use in its takings analysis. In addition, the relevant parcel for purposes of determining whether a taking occurred should include both mineral and surface rights, but the lower court considered only the mineral estate. The court must look into whether the property owners also had an interest in the surface estate in order to determine whether a categorical taking occurred under Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992). Moreover, the court never conducted a traditional takings analysis under Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978). Further, the court incorrectly held that there was no authority that would permit the commonwealth to prohibit a property owner from mining just because it would destroy the population of trout. To the contrary, if the property owners' proposed use would unreasonably interfere with the publics' right to unpolluted water, the use, as a nuisance, may be prohibited without compensation. On remand, the court must horizontally define the relevant property, must conduct a Lucas and Penn Central analysis of the property, and must determine whether the proposed use would constitute a nuisance. Additionally, one of the owners whose property was transfered from one trust to another had standing. Machipongo Land & Coal Co. v. Commonwealth, No. J-172-2001 (Pa. May 30, 2002) (44 pp.).

ZONING, USE VARIANCE, MOOTNESS:

The New York Court of Appeals held that residents' challenge to a local zoning board's grant of a use variance to a developer for the construction of 20 condominiums and boat slips on waterfront property is moot. The site was formerly used as a marina, but ultimately went into bankruptcy. The residents challenged the board's decision in state court, but did not seek a preliminary injunction until after the trial court denied their petition. The appellate court affirmed the denial. By the time the instant court granted leave to appeal, the construction was nearly complete. Under the circumstances present in this case, the residents' appeal is moot. The nature of the challenge does not extend beyond these parties and the proposed use. The petitioners did not contest the issuance of building permits or a residential use, but protested that the proposed use was too intensive. Acting in accordance with the use variance and unchallenged building permits, the developer proceeded to demolish the marina and repair the bulkhead--to the benefit of the residents--and make other improvements to and arrangements for the property. Thus, there has been substantial completion of the project. Further, the residents failed to seek a temporary restraining order or preliminary injunctive relief at any time during which the matter was pending before the trial court. Their half-hearted request for injunctive relief was made only after the trial court's decision upholding the variance. Dreikausen v. Zoning Board of Appeals of Long Beach, No. 73 (N.Y. June 6, 2002) (10 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA amended the generic maximum achievable control technology NESHAPs, which set forth standards for four major hazardous air pollutant source categories, pursuant to a settlement agreement. 67 FR 39301 (6/7/02).
  • EPA proposed amendments to the NESHAPs for the hard and decorative chromium electroplating and chromium anodizing tanks. 67 FR 38809 (6/5/02).
  • EPA announced the availability of public comments received in response to the White Paper, "Study of Unique Gasoline Fuel Blends (Boutique Fuels), Effects on Fuel Supply and Distribution and Potential Improvements." 67 FR 38666 (6/5/02).
  • EPA changed the existing source compliance date of the NESHAP for pesticide active ingredient production to December 23, 2003. 67 FR 38200 (6/3/02).
  • EPA removed an amendment included in an April 13, 2001, final rule that related to the Tier 2/Gasoline Sulfur program; the amendment being removed concerns the definition of "small refiner" for those refiners that acquire and/or reactivate a refinery that was shutdown or was non-operational between January 1, 1998, and January 1, 1999. 67 FR 38337 (6/3/02).
  • EPA amended its federal operating permits program for stationary sources of air pollution in Indian country in order to comply with a D.C. Circuit order that vacated and remanded a portion of a regulation that stated EPA will treat areas for which EPA believes the Indian country status is "in question." 67 FR 38327 (6/3/02).
  • EPA made minor modifications to its reformulated gasoline (RFG) regulations to reflect changes in the covered areas for the federal RFG program and to delete obsolete language and clarify existing language in the provisions listing the federal RFG covered areas. 67 FR 38398 (6/4/02).
  • EPA announced that as of March 10, 1999, the Agency no longer requires federal RFG to be sold in seven southern counties in Maine. 67 FR 38495 (6/4/02).

DRINKING WATER:

  • EPA determined that the existing federal underground injection control regulations are adequate to prevent all subclasses of Class V injection wells not included in the December 7, 1999, rulemaking for Class V motor vehicle waste disposal wells and large-capacity cesspools from endangering underground sources of drinking water. 67 FR 39583 (6/7/02).
  • EPA issued the preliminary regulatory determinations for nine priority contaminants on the drinking water contaminant candidate list. 67 FR 38222 (6/3/02).
  • EPA Region 8 announced that each motor vehicle waste disposal well in Colorado, Montana, or South Dakota, or in Indian country in North Dakota, Utah, or Wyoming, must either be closed or covered by a class V underground injection control permit application no later than January 1, 2007. 67 FR 38403 (6/4/02).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA announced which states have submitted notifications to the Agency under 40 C.F.R. §271.27 and, thus, have interim authorization for the corrective action management units amendments rule, which was promulgated on January 22, 2002 (67 Fed. Reg. 2962). 67 FR 38418 (6/4/02).

SMCRA PROGRAM APPROVALS:

  • OSM removed two instructions to the state of Kentucky pertaining to required amendments to its regualtory program under SMCRA because the instructions were previously satisfied and nothing further is required by the state. 67 FR 39290 (6/7/02).

  • OSM proposed to reconsider its position on a required amendment to Kentucky's regulatory program under SMCRA. 67 FR 38917 (6/6/02).

  • OSM proposed to approve an amendment to West Virginia's regulatory program under SMCRA. 67 FR 38919 (6/6/02).

  • OSM proposed to approve an amendment to Kentucky's regulatory program under SMCRA. 67 FR 38446 (6/4/02).

TOXIC SUBSTANCES:

  • EPA approved Colorado's lead-based paint abatement program. 67 FR 39385 (6/7/02).

  • The Agency for Toxic Substances and Disease Registry (ATSDR) announced the availability of a draft guidance manual that outlines the latest methods for chemical mixtures health assessment, and also announced the availability of six draft interaction profiles for certain priority mixtures that are of special concern to ATSDR. 67 FR 38280 (6/3/02).

WATER QUALITY:

  • EPA issued a summary of data it has collected and comments it has received since its January 3, 2001 (66 Fed. Reg. 424), proposal to establish technology-based effluent limitations guidelines and pretreatment standards for the metal products and machinery point source category. 67 FR 38751 (6/5/02).

WILDLIFE:

  • FWS proposed to designate critical habitat for the gulf sturgeon. 67 FR 39105 (6/6/02).

  • FWS proposed to designate critical habitat for the Rio Grande silvery minnow. 67 FR 39205 (6/6/02).

  • NOAA announced its 90-day finding for a petition to reclassify the Northern and Florida Panhandle subpopulations of the loggerhead turtle, now listed as threatened throughout their range, as distinct population segments with endangered status and to designate critical habitat under the ESA; NOAA found that the petitioned action may be warranted. 67 FR 38459 (6/4/02).

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

THE CONGRESS

CHAMBER ACTION

  • H.R. 2941 (brownfields), which would facilitate the provision of assistance by HUD for the cleanup and economic redevelopment of brownfields, was passed by the House. 148 Cong. Rec. H3095 (daily ed. June 4, 2002). The bill would clarify that funding can be provided to brownfield environmental cleanup and economic development under HUD's Community Development Block Grant program.

COMMITTEE ACTION

  • H.R. 3380 (Great Smoky Mountains National Park; natural gas pipelines) was reported by the House Committee on Resources. H. Rep. No. 107-491, 148 Cong. Rec. H3228 (daily ed. June 5, 2002). The bill would authorize the Secretary of the Interior to issue right-of-way permits for natural gas pipelines within the boundary of the Great Smoky Mountains National Park.
  • H.R. 4609 (Rathdrum Prairie/Spokane Valley Aquifer) was reported by the House Committee on Resources. H. Rep. No. 107-492, 148 Cong. Rec. H3228 (daily ed. June 5, 2002). The bill would direct the Secretary of the Interior to conduct a comprehensive study of the Rathdrum Prairie/Spokane Valley Aquifer, located in Idaho and Washington.

BILLS INTRODUCED

  • S. 2574 (Allard, R-Colo.) (land transfer) would amend the Clear Creek County, Colorado, Public Lands Transfer Act of 1993 to provide additional time for Clear Creek County to dispose of certain lands transferred to the county under the Act. 148 Cong. Rec. S4890 (daily ed. June 3, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2575 (Smith, R-N.H.) (federal lands) would preserve the sovereignty of the United States over property owned by the United States and would preserve state sovereignty over federal lands and would preserve private property rights in non-federal property surrounding federal property. 148 Cong. Rec. S4967 (daily ed. June 4, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2576 (Bingaman, D-N.M.) (national heritage) would establish the Northern Rio Grande National Heritage Area in New Mexico. 148 Cong. Rec. S4967 (daily ed. June 4, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2579 (Bond, R-Mo.) (CAA) would amend the CAA to limit access to off-site consequences analysis information in order to reduce the risk of criminal release from stationary sources. 148 Cong. Rec. S5041 (daily ed. June 5, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2585 (Craig, R-Idaho) (Native American lands) would direct the Secretary of the Interior to disclaim any federal interest in lands adjacent to Spirit Lake and Twin Lakes in Idaho resulting from possible omission of lands from an 1880 survey. 148 Cong. Rec. S5041 (daily ed. June 5, 2002). The bill was referred to the Committee on Energy and Natural Resources. A companion bill, H.R. 4874, was introduced in the House this period.
  • S. 2587 (Murkowski, R-Alaska) (navigable waters) would establish the Joint Federal and State Navigable Waters Commission of Alaska. 148 Cong. Rec. S5041 (daily ed. June 5, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2588 (Feinstein, D-Cal.) (electricity generation; air pollution) would prohibit the exportation of natural gas from the United States to Mexico for use in electric energy generation units near the U.S. border that do not comply with air quality control requirements that provide air quality protection that is at least equivalent to the protection provided by requirements applicable in the United States. 148 Cong. Rec. S5041 (daily ed. June 5, 2002). The bill was referred to the Committee on Banking, Housing, and Urban Affairs. A companion bill, H.R. 4867, was introduced in the House this period.
  • S. 2589 (Murkowski, R-Alaska) (Denali National Park; snow machines) would provide for the prohibition of snow machines within the boundaries of the "Old Park'' within the boundaries of Denali National Park and Preserve. 148 Cong. Rec. S5041 (daily ed. June 5, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4859 (Nethercutt, R-Wash.) (Native American lands; hydroelectric power) would provide for equitable compensation of the Spokane Tribe of Indians of the Spokane Reservation in settlement of claims of the tribe concerning the contribution of the tribe to the production of hydropower by the Grand Coulee Dam. 148 Cong. Rec. H4859 (daily ed. June 4, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4865 (Inslee, D-Wash.) (national forest; roadless areas) would protect inventoried roadless areas in the National Forest System. 148 Cong. Rec. H3229 (daily ed. June 5, 2002). The bill was referred to the Committees on Agriculture, and Resources.
  • H.R. 4867 (Hunter, R-Cal.) (electricity generation; air pollution) would prohibit the exportation of natural gas from the United States to Mexico for use in electric energy generation units near the U.S. border that do not comply with air quality control requirements that provide air quality protection that is at least equivalent to the protection provided by requirements applicable in the United States. 148 Cong. Rec. H3229 (daily ed. June 5, 2002). The bill was referred to the Committee on International Relations. A companion bill. S. 2588, was introduced in the Senate this period.
  • H.R. 4870 (Hansen, R-Utah) (Mount Naomi Wilderness Area) would make certain adjustments to the boundaries of the Mount Naomi Wilderness Area. 148 Cong. Rec. H3229 (daily ed. June 5, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4874 (Otter, R-Idaho) (Native American lands) would direct the Secretary of the Interior to disclaim any federal interest in lands adjacent to Spirit Lake and Twin Lakes in Idaho resulting from possible omission of lands from an 1880 survey. 148 Cong. Rec. H3229 (daily ed. June 5, 2002). The bill was referred to the Committee on Resources. A companion bill, S. 2585, was introduced in the Senate this period.
  • H.R. 4876 (Weldon, R-Fla.) (shoreline protection) would modify the project for shoreline protection in Brevard County, Florida. 148 Cong. Rec. H3229 (daily ed. June 5, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4892 (Paul, R-Tex.) (federal lands) would restore to the original owners certain lands that the federal government took for military purposes in 1940. 148 Cong. Rec. H3291 (daily ed. June 6, 2002). The bill was referred to the Committees on Resources, and Government Reform.
  • H.R. 4893 (Peterson, D-Minn.) (land conveyance) would authorize the Secretary of Agriculture to convey certain lands and improvements associated with the National Forest System in Pennsylvania. 148 Cong. Rec. H3291 (daily ed. June 6, 2002). The bill was referred to the Committee on Agriculture.
  • H.R. 4894 (Quinn, R-N.Y.) (brownfields) would amend Public Works and Economic Development Act of 1965 to provide assistance for brownfield site redevelopment. 148 Cong. Rec. H3291 (daily ed. June 6, 2002). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4895 (Saxton, R-N.J.) (pelagic longline fishing) would establish within the National Marine Fisheries Service a pelagic longline highly migratory species bycatch and mortality reduction research program. 148 Cong. Rec. H3291 (daily ed. June 6, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4900 (Watts, R-Okla.) (climate change) would establish a National Climate Change Vulnerability and Resilience Program. 148 Cong. Rec. H3291 (daily ed. June 6, 2002). The bill was referred to the Committee on Science.

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

IN THE STATES

To see archived versions of State UPDATE, please go to the State UPDATE section of the UPDATE archive.

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

INTERNATIONAL

GENERAL

  • The fourth and final global preparatory meeting for the World Summit on Sustainable Development (WSSD) ended in Bali, Indonesia, with about 6,000 delegates failing to acheive consensus on a draft plan, prepared by Johannesburg preparatory committee head Emil Salimto, to reduce poverty, improve sanitation and access to electricity, preserve ecosystems, reform consumption patterns, and address pressing environmental issues in Africa. The follow-up three-day ministerial meeting also failed to reach agreement on an action plan, with a number of issues likely to be carried over to the WSSD itself. Disputes about international aid and development assistance dominanted discussions. U.S. delegates said developing country attendees were seeking "too much, too soon." European Union Environment Commissioner Margot Wallstrom said a lack of consensus has far-reaching implications. "I'm afraid that the ultimate loss could be the loss of this whole concept of sustainable development," she said, "because people would then be able to say it doesn't work, it doesn't work in practice, you cannot translate it into something concrete." See http://www.un.org/News/Press/docs/2002/envdev653.doc.htm. See http://baliprepcom.org and http://www.johannesburgsummit.org/
  • At the Bali meeting, the United Nations (U.N.) Development Program released "Capacity 2015," a plan intended to address capacity development needs in developing countries. See http://www.undp.org/dpa/pressrelease/releases/2002/june/06jun02.html And European Union environment ministers endorsed a plan to enhance acess to clean water supplies in developing countries. See http://www.dailystarnews.com/200205/31/n2053113.htm#BODY2
  • Also, the Natural Resources Defense Council (NRDC) issued a survey finding that only 45 national leaders had, so far, confirmed their attendance at the WSSD. "We are very concerned that at this late stage of the preparatory process, so many national leaders still have not yet announced their intent to go to the World Summit," said Jacob Scherr of the NRDC.
  • The U.N. Environment Program said it would conduct an environmental analysis of conditions in the Palestinian territories. See http://www.un.org/apps/news/story.asp?NewsID=3842&Cr=environment&Cr1=Palestine

CLIMATE CHANGE

  • The U.S. Environmental Protection Agency submitted its annual climate change report, Climate Action Report 2002, see http://www.epa.gov/globalwarming/publications/car/, to the U.N. It conceded that human activity is at least partially responsible for global warming, and that climate change is in fact occuring. But President Bush subsequently said that the report was the opinion of "bureaucrats" and repeated his opposition to the Kyoto Protocol. "I read the report put out by the bureaucracy," Bush said. "The Kyoto treaty would severely damage the United States' economy, and I don't accept that. . . . I accept the alternative we put out, that we can grow our economy and, at the same time, through technologies, improve our environment." White House spokesman Ari Fleischer restated the view that there remains "considerable uncertainty" about the extent and causes of global warming, and noted, along with U.S. EPA officials, that the document did not intend to suggest a new regulatory approach. See http://www.washingtonpost.com/wp-dyn/articles/A61082-2002Jun4.html
  • The Competitive Enterprise Institute filed a petition, see http://www.cei.org/gencon/027,03040.cfm, with the Adminstration seeking a halt on further distribution of the report, which it termed "fatally flawed" and an example of "junk science." See http://www.cei.org/gencon/003,03041.cfm The New York Times, in an editorial, criticized Bush for not endorsing broader regulatory initiatives even before the President distanced himself from the EPA report. See http://www.nytimes.com/2002/06/03/opinion/03MON1.html
  • Eileen Claussen of the Pew Center on Global Climate Change penned a Times op-ed to the same effect. See http://www.nytimes.com/2002/06/07/opinion/07CLAU.html
  • And the Boston Globe was also critical. See http://www.boston.com/dailyglobe2/156/editorials/Bush_vs_the_EPA+.shtml
  • British Environment Secretary Margaret Beckett said that she predicts the U.S. will change its mind on Kyoto. "I personally believe that as we go on with the Kyoto Protocol . . . there is every possibility that in the fullness of time, the American business community and interests in America that can see America losing out as a result of some of these things will start to rethink and start to increase the pressure on America itself."
  • Delegates from the U.N. Framework Convention on Climate Change countries, including the United States, met in Bonn to prepare for late October's conference of the parties meeting in New Delhi. See http://unfccc.int/press/prel2002/pressrel030602.pdf
  • Greece became the last member of the European Union to ratify Kyoto; Japan forwarded its ratification to the U.N.; Australian Prime Minister John Howard firmly stated that his country would not ratify. 74 countries have now ratified the Protocol. They represent approximately 40% of the 1990 emissions of carbon dioxide, about 15% shy of what is necessary for the treaty to be in force. The U.S. accounts for over 36% of the 1990 total. See http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?np20020606b4.htm
  • Japanese Prime Minister Junichiro Koizumi said that Environment Minister Hiroshi Oki and Foreign Minister Yoriko Kawaguchi would send letters to the U.S. and Russia urging them to ratify. See http://www.japantoday.com/e/?content=news&id=218990 He added that "it will by no means be easy for Japan to achieve the commitment to reduce greenhouse gas emissions as stipulated in the Kyoto Protocol." See http://www.asahi.com/english/international/K2002060600552.html
  • Howard said that "[f]or us to ratify the protocol would cost us jobs and damage our industry. That is why the Australian government will continue to oppose ratification." In a speech to Parliament, he added that "[t]he idea that you can sign up to a protocol that would facilitate the export of dirty industries from this country into developing countries and therefore facilitate the flight of jobs from this country . . . would hurt this country." See http://canberra.yourguide.com.au/detail.
  • The U.N. Environment Program, reporting on the results of an expedition to the Himalayans, reported that the glacier scaled on Mount Everest in 1953 by Sir Edmund Hillary and Tenzing Norgay has retreated by about five kilometers. Roger Payne, Sports and Development Director at the International Mountaineering and Climbing Federation (UIAA), an expedition leader, said "[i]t is clear that global warming is emerging as one, if not the, biggest threat to mountain areas. The evidence of climate change was all around us, from huge scars gouged in the landscapes by sudden, glacial floods to the lakes swollen by melting glaciers. But it is the observations of some of the people we met, many of whom have lived in the area all their lives, that really hit home." See http://www.unep.org/Documents/Default.asp?ArticleID=3080&DocumentID=253

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