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Weekly Update Volume 32, Issue 22

08/05/2002

 LITIGATION

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

CAA, PREVENTION OF SIGNIFICANT DETERIORATION (PSD) PERMIT, BEST AVAILABLE CONTROL TECHNOLOGY (BACT):

The Ninth Circuit held that EPA did not abuse its discretion or act arbitrarily or capriciously in invalidating a state-granted PSD permit and finding that a state environmental agency's BACT determination did not comply with the CAA. A mine operator in a remote location submitted an application to the state environmental agency requesting permission to increase the amount of nitrogen oxides (NOx) emitted from one of its generators and specifying the technology it intended to use. The state agency found that a different, more costly technology was BACT for the generator. The mine operator then amended its application, offering to implement the less costly technology on all six of its generators, including those not subject to BACT standards, and on a proposed seventh generator. The state agency accepted the operator's proposal because it would reduce total NOx output from the mine to a level comparable to that which would result if the more costly technology were installed on one existing generator and the proposed new generator. In a letter to the state agency, EPA stated that the more costly technology was BACT for the two generators at issue and that the PSD program does not allow the imposition of a limit that is less stringent than BACT even if the equivalent emission reductions are obtained by imposing new controls on other emission units. EPA then issued three enforcement orders stating that the state's authorization of the mine's construction and installation of new equipment was not in compliance with the CAA and the state's SIP. The plain text, structure, and history of the CAA compel the conclusion that the administrative orders fell within EPA's enforcement and oversight authority. Because EPA based its orders on the finding that the state agency had not complied with the BACT requirement, the orders were authorized by the plain language of CAA §§113(a)(5) and 167. The legislative history of the Act further supports EPA's authority to issue the enforcement orders. Although the state has discretion to make BACT determinations as the permitting authority, the CAA provides for EPA enforcement when the state issues a permit based on an improper determination. And while CAA §169(3) gives the state discretion to determine BACT, nothing in §169(3)'s definition of BACT limits EPA’s authority. Thus, the state's BACT determination is not insulated from the oversight and enforcement authority assigned to EPA in other sections of the CAA. Additionally, EPA was not arbitrary or capricious in determining that the state agency's BACT determination did not fulfill all requirements of the CAA. Alaska v. United States Environmental Protection Agency, Nos. 00-70166 et al. (9th Cir. July 30, 2002) (18 pp.).

CWA, INDUSTRIAL PRETREATMENT PROGRAM, CONTRACTUAL OBLIGATIONS:

The Sixth Circuit held that two consent decrees that addressed, among other things, the amount of pollutants to be discharged into a sewage treatment system were fair and reasonable and did not breach or unconstitutionally impair a county's preexisting contractual obligations to a company that used the system. The company helped finance the construction and subsequent upgrading of the sewage treatment system and was a beneficiary of a service agreement declaring that the intent and purpose of the system was to provide the maximum possible service to each contractee. When the county attempted to adopt an ordinance that limited the amount of pollutants allowed to be discharged into the system, the company and other users of the sytem sued the county, arguing that the ordinance violated their service agreements. The state court found for the company and the county was enjoined from enforcing the ordinance. While an appeal of the state court judgment was pending, EPA brought suit against the county and state based on the county's failure to have a proper industrial pretreatment program in place. The county claimed that the failure was due in part to the service agreeements. The county, therefore, terminated all service agreements with companies and municipalities in the county. The county and municipalities then negotiated a new service agreement that incorporated an ordinance similar to the one previously enjoined by the state court. A consent decree between the county and municipalites that incorporated the new agreement, including the new ordinance, was entered in district court. EPA also entered into a consent decree with the state and county that incorporated the new ordinance. The company then appealed the district court's entry of the decrees. Although the company did not consent to the decrees, the district court did not abuse its discretion in finding the decrees fair and reasonable. In addition, the district court properly found that the termination of service agreements did not breach or unconstitutionally impair preexisting contractual obligations of the county to the company. Although some provisions in the ordinance are in conflict with provisions of the original service agreement, the impairment of the service agreement was not substantial. Additionally, the original service agreement with the company was lawfully terminated, and the company failed to show that enforcement of the ordinance resulted in curtailment of the company's discharges of industrial pollutants into the system prior to the effective date of the termination. United States v. County of Muskegon, No. 00-1170 (6th Cir. July 26, 2002) (11 pp.).

SOVEREIGN IMMUNITY, SMCRA, STATE COAL MINING PROGRAM:

The Third Circuit held that the Eleventh Amendment bars all but two claims brought by citizen groups in federal court against a state official accused of failing to implement, administer, enforce, and maintain a federally approved state coal mining program under SMCRA. The citizen groups' claims that the official failed to perform various nondiscretionary duties regarding the state's reclamation bonding program fall outside the Ex parte Young exception to the Eleventh Amendment. The Eleventh Amendment prohibits a federal court from considering a claim that a state official violated state law in carrying out his or her official responsibilities. Here, the OSM approved the state's coal mining program and its bonding system. As such, jurisdiction for the administration and enforcement of the program passed on to the state. Whether, in practice, the state program meets the minimum standards set forth in SMCRA is a matter for the federal oversight body--the OSM-- to decide, not for the federal courts. Additionally, the groups incorrectly argued that the state program was incorporated into federal law through its codification in the Code of Federal Regulations (C.F.R.). Nothing in SMCRA explicitly or implicitly incorporates state law into federal law or directs the OSM to do so, and the C.F.R. section reserved for the state program does not set forth any portion of the state's OSM-approved regulations and statutes. Even if the OSM had the authority under SMCRA or the U.S. Constitution to transform state law into federal law, which it does not, simply referring to a state statute or regulation in the C.F.R. does not invest it with federal authority. Further, the state official does not have a federally imposed duty to implement specific state provisions that triggers the Ex parte Young exception. Two of the citizen groups' claims, however, that allege that the state official failed to submit certain required information to the OSM are based purely on federal law and, thus, are not barred by the Eleventh Amendment. Pennsylvania Federation of Sportsmen's Clubs, Inc. v. Hess, Nos. 00-2139, 01-1683 (3d Cir. July 24, 2002) (27 pp.).

ESA LISTING, FOIA, ATTORNEY-CLIENT PRIVILEGE, WORK-PRODUCT PRIVILEGE:

The Third Circuit held that a district court properly ordered the DOI and the U.S. Department of Commerce to disclose documents that the agencies argued were protected under either the attorney-client or work-product privilege exceptions to FOIA in a suit regarding the ESA listing of the Atlantic salmon in seven rivers in Maine. The district court incorrectly held that in order for the documents to be protected by the attorney work-product privilege under FOIA, the DOI must not only identify the litigation for which each document was prepared but also establish that counsel prepared the document primarily for litigation purposes. Instead, the documents are protected if, in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation. The error here, however, was harmless because the DOI failed to make any correlation between the disputed documents and the litigation for which the documents were created. Additionally, the district court properly found the documents unprotected by the attorney-client privilege. The DOI failed to demonstrate a confidential factual communication and also failed to explain how the withheld legal analysis would reveal any such fact if it existed. Maine v. United States Department of the Interior, No. 01-1234 (1st Cir. July 30, 2002) (27 pp.).

CERCLA, CRIMINAL LAW, SENTENCING:

The Tenth Circuit held that a district court properly determined the sentence for an individual who pleaded guilty to aiding and abetting the injection of hazardous waste and the disposal of hazardous waste without a permit in violation of CERCLA. The individual agreed to have the waste illegally disposed of in a salt injection well, but some of the waste was disposed of into an overflow pit and the remaining waste was loaded onto a trailer where it dripped onto various roadways. The district court properly considered the actions of the individual's co-conspirators in setting the sentence. Although the waste was deposited by the co-conspirators in a manner that the individual did not know about, it was abundantly foreseeable that the hazardous waste would end up in places other than the intended injection well, whether at the site of the well, in transport to the well, at the site in loading and unloading, or on the roadways. The fact that the amount of hazardous waste found on the roadways ended up being more than might have been anticipated or that the amount on the roadways was the product of intentional conduct nevertheless keeps it within the scope of what was originally planned by the participants. Additionally, the district court was not bound by the plea agreement to grant the individual a downward adjustment in his offense level even though the terms of the agreement allowed for it. Further, the district court did not err by refusing to grant a downward departure from the sentencing guidelines. United States v. Freeman, No. 01-5200 (10th Cir. July 23, 2002) (4 pp.).

HAZARDOUS WASTE, UNLAWFUL TRANSPORTATION, SENTENCING:

The Ninth Circuit affirmed a district court decision convicting an individual of illegally transporting hazardous waste. The jury instruction defining "waste" mirrored the regulation defining "waste." Additionally, there was sufficient evidence for a rational jury to have found, beyond a reasonable doubt, that the chemicals at issue were waste and that the individual regarded them as such. Further, the district court did not err in admitting hazardous waste manifests or photographs of the chemicals, or in denying a new trial based on alleged new impeachment evidence. Moreover, the district court did not err in refusing to enhance the individual's sentence for obstruction of justice, nor did it err when it departed downward four levels for mitigating factors not accounted for in the sentencing guidelines. United States v. Rasmussen, Nos. 01-50496, -50533 (9th Cir. July 26, 2002) (3 pp.).

CWA, JURISDICTION, WETLANDS:

A district court held that wetlands in a planned development are not adjacent to navigable waters and, thus, are outside the U.S. Army Corps of Engineers' jurisdiction. After a development company had begun work on the property, the Corps issued a cease-and-desist order stating that the company was in violation of CWA §§404 and 301(a) for dredging and filling wetlands without a permit. The development company did not believe that its work violated the CWA and so continued on schedule. The Corps instituted the present action seeking to enforce its claim to §404 jurisdiction. The wetlands on the property, however, are not adjacent to navigable waters. The only connections between navigable waters and the wetlands on the property are drainage ditches and ephemeral streams. Nevertheless, the Corps argued that there was a surface water or hydrological connection between the wetlands and the navigable waters because rain and water flow into the ditches and streams at various times and seasons, thereby making them waters of the United States. However, when Congress passed the CWA it did not vest the Corps with the power to expand its jurisdiction by continually redefining the jurisdiction that the Act granted it. The Corps may argue that since water from the wetlands may sometimes enter navigable waters via drainage ditches and ephemeral streams it should and does have jurisdiction over such wetlands, but it cannot support such an argument based on any valid regulation under the CWA. United States v. RGM Corp., No. 2:01cv719 (E.D. Va. July 25, 2002) (Morgan, J.) (14 pp).

CAA, MAJOR MODIFICATIONS, PRECONSTRUCTION PERMIT:

A district court held that a gas and electric company violated the CAA by failing to obtain a preconstruction permit before making modifications to its facility even though there were no actual increases in emissions of pollutants after the changes were made. Based on the CAA and its implementing regulations, owners and operators are required--before commencing construction--to project or predict the post-project emissions rate to determine whether a permit is required. In addition, EPA is authorized under the CAA to take such measures as necessary to prevent the construction or modification of a nonconforming facility. Because the Act specifically contemplates that an enforcement action to prevent construction may be brought before the modification of a facility is complete, Congress must have intended the determination in such an action to be based on projections of emissions increases. Any other construction of the CAA and its regulations would turn the preconstruction permitting program on its head and would allow sources to begin construction without a permit while they wait to see if emissions would actually increase. Thus, whether the company's project required a preconstruction permit must be determined by reviewing evidence of the projected post-project emissions increases, not by reviewing evidence of the actual post-project emissions data. United States v. Southern Indiana Gas & Electric Co., No. IP99-1692-C-M/S (S.D. Ind. July 18, 2002) (McKinney, J.) (7 pp.).

TARGHEE NATIONAL FOREST, REVISED FOREST PLAN (RFP), PUBLIC APPEAL:

A district court held that a U.S. Forest Service ruling on an environmental group's appeal to the RFP of the Targhee National Forest was untimely and, thus, prevented the group from developing a full administrative record that could be used to challenge Forest Service projects tiered to the RFP. Under the Forest Service regulation 36 C.F.R. §217.8(f)(1), the Forest Service must issue a decision on an RFP appeal within 160 days of notice of appeal. The group filed its appeal in 1997, but the Forest Service did not issue a decision on the appeal until 2002. Thus, as the Forest Service concedes, the response was untimely. Further, the group has standing to challenge the Forest Service's failure to respond because the group suffered an injury-in-fact when the Forest Service's failure to issue a decision caused the group the procedural harm of preventing full development of an administrative record that the group could use for appeals and subsequent litigation. Moreover, although the Forest Service ruled on the group's RFP appeal, the case is not moot because the justiciable controversy before the court is the group's ability to develop a full administrative record to challenges of two projects tiered to the Targhee RFP. The Forest Service's delay in ruling on the RFP appeal led to an uninformed record for review of the group's challenge to the two projects. This issue is not moot, and a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the practice's legality. In addition, by refusing to rule on RFP appeals within the required time while also approving projects tiered to the RFP, the Forest Service is preventing administrative appellants from developing full administrative records on the projects and from seeking judicial review of the forest plan. This practice is not contemplated by the regulations and is arbitrary and capricious. The Forest Service is not precluded from devoting agency resources to developing projects tiered to the RFP during pending RFP appeals, but the Service may not advance the project to the scoping stage and seek public review until a decision has been issued on an RFP appeal. Therefore, the Forest Service is enjoined from implementing projects tiered to an RFP until a decision has been rendered on an RFP appeal. Native Ecosystems Council v. Reese, No. CV 01-172-M-DWM (D. Mont. July 25, 2002) (Molloy, J.) (6 pp.).

RCRA, CITIZEN SUIT, MERCURY CONTAMINATION, REMEDIATION:

A district court held that the former owner of a chemical manufacturing facility must fund an independent study to determine if mercury remediation downriver from the facility is required, and if so, the precise content of the appropriate remediation plan. Based on the testimony and evidence offered at trial, the presence of mercury downriver from the facility, resulting from the facility's activities, may present an imminent and substantial endangerment to public health and the environment. The evidence clearly demonstrates that mercury levels are elevated in the river's downriver sediments and that the mercury is bioavailable, entering biota, and biomagnifying throughout the food web. As a result, dangerously high levels of mercury may be present in fish and other seafood consumed by the public and may present an imminent and substantial endangerment to the environment. The former owner is therefore liable for the cost of undertaking a scientific study of mercury contamination downriver from the facility. Additionally, the environmental groups that brought suit against the owner have standing. The individual members of the group suffered actual injury that is fairly traceable to the owner's conduct and may be redressed by an independent river study and remediation. Maine People's Alliance v. Holtrachem Manufacturing Co., No. 00-69-B-C (D. Me. July 29, 2002) (Carter, J.) (34 pp.).

SOLID WASTE DISPOSAL ACT (SWDA), CWA, CITIZEN SUITS, NOTICE:

A district court held that an individual that voluntarily abandoned his SWDA hazardous substance claims against two companies cannot assert the exception to the 60-day notice requirement for citizen suits under the SWDA and the CWA. The individual brought SWDA and CWA citizen suits against two companies that allegedly were discharging pollutants to an Alabama stream. Although the SWDA and the CWA both require a 60-day delay from the date of notice before a citizen suit can be filed, the SWDA provides an exception that allows immediate filing if the citizen suit alleges violations involving hazardous waste under SWDA subchapter III. The individual's initial complaint included SWDA subchapter III claims, but after filing suit, the individual voluntarily amended his complaint omitting the subchapter III claims. Although circuit precedent allows non-subchapter III claims to be brought along with subchapter III claims in a suit filed prior to expiration of the 60-day delay period, the individual's claims can be distinguished from the precedent. The circuit precedent dealt with subchapter III claims that either were viable at that point in the proceedings or that came to a natural demise. In this case, the individual voluntarily abandoned his subchapter III claims by amending his complaint. However, the circuit precedent is based on the exigencies of enforcing hazardous waste violations. By voluntarily abandoning his subchapter III claims, the exigencies are no longer present and no longer outweigh the policy considerations supporting the 60-day delay period. Thus, with the subchapter III claims out of the case, the individual has failed to fulfill the mandatory condition precedent to filing suit under the CWA. Atwell v. KW Plastics, No. Civ.A. 01-A-1188-N (M.D. Ala. July 18, 2002) (Albritton, J.) (5 pp.).

EMINENT DOMAIN, PRIOR PUBLIC USE DOCTRINE:

New York's highest court held that a school construction authority properly appropriated property being held by a redevelopment group in order for the authority to build a new school. The property is 1 of 7 parcels that New York City leased to the redevelopment group in 1978 for 90 years under an urban renewal plan. Despite the group's objections to the contrary, the school construction authority properly provided the mayor of the city with written notice of its intention to use the property. Additionally, the prior public use doctrine does not bar condemnation of the property. While the state legislature has stated that urban redevelopment is a superior public use, it has also stated that there can be no higher priority than creating a physical environment in the schools that fosters rather than impedes the education of children. In this case, the school authority seeks to condemn the property in order to relieve two school districts from severe overcrowding. Moreover, while the state constitution gives the state legislature the power to establish urban renewal projects, it does not confer any protection on redevelopers against condemnation. Westchester Creek Corp. v. New York City School Construction Authority, No. 98 (N.Y. July 9, 2002) (6 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA proposed NESHAPs for the site remediation source category. 67 FR 49397 (7/30/02).
  • EPA finalized the reinstatement of the redesignation to attainment for the one-hour ozone NAAQS for the Kentucky portion of the Cincinnati-Hamilton area. 67 FR 49600 (7/31/02).

HAZARDOUS & SOLID WASTES:

  • EPA entered into a proposed administrative settlement under CERCLA in connection with the Glen Dale TCE site in Glen Dale, West Virginia. 67 FR 49691 (7/31/02).
  • EPA proposed to exclude certain waste generated at the University of California--E.O. Lawrence Berkeley National Laboratory from the lists of hazardous wastes. 67 FR 49649 (7/31/02).
  • EPA approved revisions to Michigan's hazardous waste management program under RCRA. 67 FR 49617 (7/31/02).
  • EPA codified its prior approval of New York's hazardous waste management program and incorporated by reference authorized provisions of the state's regulations. 67 FR 49864 (8/1/02).

WATER QUALITY:

  • EPA announced that Arizona submitted a request for approval of the Arizona Pollutant Discharge Elimination System program. 67 FR 49916 (8/1/02).

WETLANDS:

  • FWS established the requirements for participation in the National Coastal Wetlands Conservation Grant Program, authorized by the Coastal Wetlands Planning, Protection, and Restoration Act, and provided guidance for the program's administration. 67 FR 49264 (7/30/02).
  • The U.S. Army Corps of Engineers proposed to establish programmatic regulations for the Comprehensive Everglades Restoration Plan. 67 FR 50539 (8/2/02).
  • DOE released a statement of floodplain and wetlands findings for the proposed demolition of a decommissioned sewage treatment plant located on the Pantex Plant near Amarillo, Texas. 67 FR 50424 (8/2/02).

WILDLIFE:

  • FWS proposed special migratory bird hunting regulations for certain tribes on federal Native American reservations, off-reservation trust lands, and ceded lands for the 2002-2003 migratory bird hunting season. 67 FR 49175 (7/29/02).
  • NMFS received a permit application for the incidental take of ESA-listed adult and juvenile sea turtles associated with otherwise lawful commercial fall gill net fisheries for flounder operating in Pimlico Sound, North Carolina. 67 FR 49009 (7/29/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. City of Anderson, Indiana, No. IP 02-1103 C M/S (S.D. Ind. July 18, 2002). A settling CWA defendant must pay a $250,000 civil penalty and must implement specified compliance measures concerning the operation and improvement of its sewer system and wastewater treatment plant. 67 FR 49951 (8/1/02).
  • United States v. Asarco Inc., No. 98-49-H-CCL (D. Mont. July 18, 2002). A settling CWA defendant that discharged plant process wastewater from its smelting facility to the East Helena, Montana, POTW in excess of monthly average effluent limits for lead and zinc must pay a $100,000 civil penalty, must perform several supplemental environmental projects estimated to be worth $169,852, and must provide other consideration worth $15,480. 67 FR 49951 (8/1/02).
  • United States v. Axel Johnson Inc., No. 7:00-CV-252-F(1) (E.D.N.C. July 22, 2002). A settling CERCLA defendant must pay $5,700,000 in past and future EPA response costs incurred and to be incurred at the Potter Septic Tank Service Pits Superfund site in Sandy Creek, North Carolina. 67 FR 49951 (8/1/02).
  • United States v. H.K. Porter Co., No. 96-579 (W.D. Pa. July 16, 2002). Settling CERCLA defendants must pay $200,000 in past U.S. response costs incurred at the Bollinger Steel Superfund site in Ambridge, Pennsylvania, must pay $50,000 in civil penalties, and must take certain steps to sell the site property and pay the proceeds to the United States in reimbursement of response costs. 67 FR 49952 (8/1/02).
  • In re Metal Management, Inc., No. 00-4303 (Bankr. D. Del. July 11, 2002). A settling CERCLA defendant must consent to an allowed general unsecured claim in the amount of $397,000 with regard to the Consolidated Iron & Metal Superfund site in Newburgh, New York. 67 FR 49952 (8/1/02).
  • California v. Ramirez, No. 01-CV-0270-BTM-JFS (S.D. Cal. July 12, 2002). A settling CWA defendant must provide or contract for secondary treatment servies for the South Bay International Wastewater Treatment Plant in San Diego, California, or otherwise cease violations of certain effluent standards and limitations applicable to the plant's discharges. 67 FR 49953 (8/1/02).

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

THE CONGRESS

COMMITTEE ACTION

  • S. 1961 (water programs) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-228, 148 Cong. Rec. S7469 (daily ed. July 29, 2002). The bill would improve the financial and environmental sustainability of the water programs of the United States.
  • S. 2734 (small business; drought) was reported by the Committee on Small Business and Entrepreneurship. S. Rep. No. 107-230, 148 Cong. Reg. S7744 (daily ed. July 31, 2002). The bill would provide emergency assistance to non-farm small business concerns that have suffered economic harm from the devastating effects of drought, with an amendment in the nature of a substitute.
  • H.R. 5263 (appropriations; USDA) was reported by the House Committee on Appropriation. H. Rep. No. 107-623, 148 Cong. Rec. H5993 (daily ed. July 26, 2002). The bill would make appropriations for the USDA and related agency programs for the fiscal year ending September 30, 2003.

BILLS INTRODUCED

  • S. 2813 (Smith, R-N.H.) (water programs) would improve the financial and environmental sustainability of the water programs of the United States. 148 Cong. Rec. S7469 (daily ed. July 29, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2815 (Smith, R-N.H.) (CAA) would amend the CAA to reduce air pollution through expansion of cap-and-trade programs and would provide an alternative regulatory classification for units subject to the cap-and-trade programs. 148 Cong. Rec. S7469 (daily ed. July 29, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2830 (Roberts, R-Kan.) (agriculture) would provide emergency disaster assistance to agricultural producers. 148 Cong. Rec. S7744 (daily ed. July 31, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • H.R. 5240 (Davis, R-Va.) (Northern Neck National Heritage Area) would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Northern Neck National Heritage Area in Virginia. 148 Cong. Rec. H5993 (daily ed. July 26, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5244 (Dingell, D-Mich.) (solid waste) would direct the Administrator of EPA to carry out certain authorities under an agreement with Canada respecting the importation of municipal solid waste. 148 Cong. Rec. H5993 (daily ed. July 26, 2002). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5248 (Hayworth, R-Ariz.) (public lands) would provide legal exemptions for certain activities of the National Park Service, U.S. Forest Service, FWS, or the BLM undertaken in federally declared disaster areas. 148 Cong. Rec. H5993 (daily ed. July 26, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 5260 (Hastings, D-Fla.) (drought) would amend the Small Business Act to include "drought" in the definition of "disaster" for purposes of the disaster loan program administered by the Small Business Administration. 148 Cong. Rec. H5994 (daily ed. July 26, 2002). The bill was referred to the Committee on Small Business.
  • H.R. 5261 (Kirk, R-Ill.) (CAA) would prohibit the issuance of new source permits under the CAA for certain sources that would result in the deposition of mercury into the Great Lakes System. 148 Cong. Rec. H5994 (daily ed. July 26, 2002). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5266 (Barton, R-Tex.) (CAA) would amend the CAA to reduce air pollution through expansion of cap-and-trade programs and would provide an alternative regulatory classification for units subject to the cap-and-trade program. 148 Cong. Rec. H5994 (daily ed. July 26, 2002). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5274 (Clayton, D-N.C.) (Northeastern North Carolina Heritage Area) would direct the Secretary of the Interior to conduct a study on the suitability and feasibility of establishing the Northeastern North Carolina Heritage Area in North Carolina. 148 Cong. Rec. H5995 (daily ed. July 26, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5275 (Costello, D-Ill.) (nuclear safety) would provide for the external regulation of nuclear safety and occupational safety and health at nonmilitary energy laboratories owned or operated by the DOE. 148 Cong. Rec. H5995 (daily ed. July 26, 2002) The bill was referred to the Committees on Science, Energy and Commerce, and Education and the Workforce.
  • H.R. 5279 (Eshoo, D-Cal.) (rangeland) would amend the Forest and Rangeland Renewable Resources Planning Act of 1974 and related laws to strengthen the protection of native biodiversity and ban clearcutting on federal lands and would designate certain federal lands as Ancient Forests, Roadless Areas, Watershed Protection Areas, and Special Areas where logging and other intrusive activities are prohibited. 148 Cong. Rec. H5995 (daily ed. July 26, 2002). The bill was referred to the Committees on Agriculture, and Resources.
  • H.R. 5281 (Flake, R-Ariz.) (public lands) would provide temporary legal exemptions for certain land management activities of the federal land management agencies undertaken in federally declared disaster areas. 148 Cong. Rec. H5995 (daily ed. July 26, 2002). The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 5283 (Hayworth, R-Ariz.) (land exchange) would direct the Secretary of Agriculture to exchange certain land in Arizona. 148 Cong. Rec. H5995 (daily ed. July 26, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5295 (Miller, R-Fla.) (land conveyance) would direct the Secretary of the Interior to convey to Florida certain lands under the administrative jurisdiction of the FWS for use as a State Park. 148 Cong. Rec. H5995 (daily ed. July 26, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5302 (Radanovich, R-Cal.) (land exchange) would facilitate a Forest Service land exchange that will eliminate a private in-holding in the Sierra National Forest in California and provide for the permanent enjoyment by the Boy Scouts of America of a parcel of National Forest System land currently used under a special use permit. 148 Cong. Rec. H5995 (daily ed. July 26, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5309 (Shadegg, R-Ariz.) (wildfire) would authorize the Regional Foresters to exempt tree-thinning projects, which are necessary to prevent the occurrence of wildfire likely to cause extreme harm to the forest ecosystem, from laws that give rise to legal causes of action that delay or prevent such projects. 148 Cong. Rec. H5995 (daily ed. July 26, 2002). The bill was referred to the Committees on Agriculture, and Resources.

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

  • Jan Pronk, United Nations (U.N.) Secretary General Kofi Annan's special adviser on the upcoming World Summit on Sustainable Development (WSSD), told the BBC that the U.N.'s current approach--seeking consensus (type 1) agreements on some relatively noncontroversial issues, leaving more contentious matters to voluntary (type 2) agreements--is a "risky" strategy. "Type 2 is for the many countries which are willing to go further. It will let them setup networks with other countries, with business and with nongovernmental organizations," Pronk said. "The cynics can certainly say this is something that may let unenthusiastic governments agree very little. But the developing countries want agreement on a text first and then the topping up through type 2 agreements. That's pragmatism, the only possible approach. This is a U.N. conference, and countries have been told they'll have to negotiate an outcome. It is a risky strategy. But you have to take risks." See http://news.bbc.co.uk/2/hi/science/nature/2159552.stm
  • "President Bush cannot afford not to be there. Nobody will understand if he doesn't show up," Pronk added. More than 100 countries' leaders have indicated officially that they will attend the WSSD, including 58 heads of state, 40 heads of government, 7 vice presidents, and 1 crown prince. South Africa has invited delegates to arrive a couple of days early to jump-start discussions. U.S. Undersecretary of State for Economic, Business and Agricultural Affairs Alan
    Larson refused to confirm reports that Secretary of State Colin Powell will head the U.S. delegation. James Connaughton, chairman of the White House Council on Environmental Quality, said the United States was continuing to work with the U.N. and developing nations on acceptable language for the final declaration and action plan.
  • The U.N. Environment Program completed its assessment of proposed amendments by governments to modify international bans on trading in endangered wildlife. See http://www.un.org/apps/news/story.asp?NewsID=4310&Cr=CITES&Cr1=environment
  • The European Commission formally requested all Member States to provide information on progress made in controlling substances that damage the ozone layer. Member States were required to provide this information by December 31, 2001, under the terms of the European Union's (EU's) Ozone Regulation. The Ozone Regulation obliges Member States to report on systems established for recovering ozone-depleting substances, the facilities installed, the qualification requirements for personnel, and the quantities recovered. The requests sent to Member States take the form of "letters of formal notice," the first stage of infringement procedures under Article 226 of the EC Treaty. In the absence of a satisfactory response within two months, the Commission may issue formal requests ("reasoned opinions") to Member States to set up the systems required under the Ozone Regulation, following which continued failure to report may result in court action. See http://europa.eu.int (press releases).

  • Austria, Belgium, Germany, Greece, Italy, Spain, Portugal, and the United Kingdom are being referred to the European Court of Justice for noncompliance with certain obligations under EU legislation on waste. In addition, together with Finland and France, several of these Member States have received formal requests to comply with other obligations under EU waste legislation. See http://europa.eu.int (press releases).
  • A draft North American Regional Action Plan on Dioxins and Furans and Hexachlorobenzene was issued by the Commission for Environmental Cooperation. Comments are due September 16. See http://www.cec.org/programs_projects/pollutants_health/smoc/smoc-rap.cfm?varlan=english
  • Cambodia's government approved the establishment of a 1 million-acre protected forest in the Cardamom Mountains. See http://www.conservation.org/xp/CIWEB/newsroom/press_releases/070802.xml
  • The System for the Vigilance of the Amazon (SIVAM), a $1.4 billion radar system designed to detect illegal logging activity, was launched. See http://news.bbc.co.uk/1/hi/world/americas/2151222.stm

CLIMATE CHANGE

  • Brazilian President Fernando Henrique Cardoso, following up on his nation's ratification of the Kyoto Protocol, urged other South American countries to follow Brazil's lead at a meeting in Guayaquil, Ecuador. He was very critical of the United States, stating that "the response to climate change does not accept unilateralist and isolationist attitudes because this is a global issue that affects all peoples and regions. The consequences of global warming, particularly on less developed countries, makes it imperative to adopt new paths to development and cooperation, on the international level and in Brazil."
  • A World Resources Institute report, Changing Oil: Emerging Environmental Risks and Shareholder Value in the Oil and Gas Industry, said that shareholders in some large companies could see losses of more than 6% of their investments due to prospective actions to address climate change and increasing constraints on access to energy reserves. The report said Occidental, Repsol, and Unocal bear the highest risk, with Burlington, Valero, and Sunoco facing fewer pressures. See http://capmarkets.wri.org/publication.cfm?PubID=3719
  • Russia's government proposed that Japan agree to modernize electric generating facilities in Siberia, reducing carbon dioxide emissions, in exchange for reduction credits taken by Japan.
  • Tokyo Electric Power Co. said it had reduced its carbon dioxide emissions 5.2% from year-earlier levels. See http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20020730b8.htm
  • New Zealand's parliament recessed for elections without voting out a Kyoto ratification bill. See http://www.nzherald.co.nz
  • 57% of Canadian business leaders surveyed by the Financial Post said greenhouse emissions could be cut drastically with little economic impact. See http://www.nationalpost.com/search/site/story.asp?id=231C60BA-7DBA-43EE-BD72-927D56A779BB
  • Alberta Premier Ralph Klein apparently won support for his proposal that a meeting of premiers be held to discuss Kyoto ratification issues. Quebec Premier Bernard Landry said he supports ratification; Klein opposes.
  • Cars and light trucks produce one-fifth of U.S. carbon dioxide emissions, and overall emissions are increasing at a rapid rate after years of rising rapidly in the United States, according to a report issued by Environmental Defense. "Each year, automakers roll out fleets of cars and trucks that add increasing amounts of carbon dioxide to the atmosphere," said John DeCicco of Environmental Defense. "Over the past decade, they have put their design and marketing talents into anything but addressing their products' harm to the planet and liability for oil dependence." See http://www.environmentaldefense.org/documents/2220_AutomakersCorporateCarbonBurdens.pdf

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