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Weekly Update Volume 32, Issue 25

09/09/2002

LITIGATION

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

RCRA, FINANCIAL ASSURANCES, OVERFILING:

The Tenth Circuit held that EPA may seek to enforce RCRA's financial assurances requirements against an engineering company even though the state of Colorado already initiated an enforcement action against the company for the same violations under the state's RCRA-approved program. The state filed suit against the company but did not demand financial assurances even though EPA requested it to do so. EPA, therefore, filed its own suit against the company demanding financial assurances. The company argued that because an authorized state program operates in lieu of the federal program, EPA may not file an enforcement action after the state has done so. The company argued that the term "program" in RCRA §3006(b) incorporates the exclusive responsibility to enforce criminal provisions. The statute, however, does not define "program," and the meaning of the term is ambiguous. Because RCRA is ambiguous regarding whether EPA overfiling is permissible, the court deferred to EPA's reasonable interpretation of the Act. EPA argued that the term "program" refers only to the administration of the regulatory program, not to its enforcement, and that §3006(b) simply provides that once authorization has taken place, state requirements replace federal requirements. The wording of §3006 lends support to EPA's interpretation because the administration of authorized state programs and the enforcement of state regulations are addressed in separate clauses of the relevant sentence. It is reasonable to conclude that while §3006(b) prevents EPA from denying the effect of a state permit, it does not prevent EPA from taking action when a violation occurs. Additionally, EPA's suit is not barred by res judicata. United States v. Power Engineering Co., No. 01-1217 (10th Cir. Sept. 4, 2002) (6 pp.).

FLPMA, NEPA, OFF-ROAD VEHICLES (ORVs), FEDERAL LANDS, WILDERNESS STUDY AREAS (WSAs):

The Tenth Circuit reversed and remanded a district court decision holding that it lacked subject matter jurisdiction to review an environmental group's claims that the BLM violated FLPMA and NEPA by not properly managing ORV use on federal lands classified as WSAs. The BLM has a nondiscretionary, mandatory duty under FLPMA to prevent the impairment of WSAs. Although the BLM correctly argued that it has considerable discretion to determine what constitutes impairment and what action it should take, those arguments go to the merits of the present suit and to the possible remedy if impairment is found, not to whether federal courts possess subject matter jurisdiction to order the BLM to comply with FLPMA's nonimpairment mandate. Further, while courts must give deference to the BLM's interpretation of FLPMA's nonimpairment mandate, the nonimpairment obligation itself is not wholly discretionary. In addition, the court may compel agency action under the APA. The BLM argued that the APA only applies to final agency actions. However, the failure of an agency to carry out its mandatory, nondiscretionary duty by an established deadline or within a reasonable time period may be considered final agency action, even if the agency might have hypothetically carried out its duty through some non-final action. Further, the fact that the BLM has taken some action to address impairing ORV activity is insufficient, standing alone, to remove the case from review. Similarly, a colorable claim of failing to adhere to land use plan duties provides the court with subject matter jurisdiction to consider whether the BLM's failure to act warrants relief under the APA. The BLM's mandatory, nondiscretionary duty to carry out the activities described in the land use plans does not arise only when the BLM undertakes a future, site-specific project. Finally, the BLM should be required to take a hard look at the increased ORV use and its effect on the WSAs regardless of its plans to conduct NEPA analysis in the future. Southern Utah Wilderness Alliance v. Norton, No. 01-4009 (10th Cir. Aug. 29, 2002) (18 pp.).

CONTRACTUAL LIABILITY, CONTAMINATION, OIL REFINERY, BANKRUPTCY:

The Fifth Circuit affirmed a district court decision allocating liability among past and present owners for contamination at an oil refinery site. The refinery was built in 1929 by a gasoline company. In 1984 it was spun off to a wholly owned subsidiary of the company that agreed to assume all responsibility for environmental contamination at the refinery. In 1986, the subsidiary sold the refinery to another company. The purchase agreement and deed for this transfer included covenants preventing subsequent owners from seeking contribution from the subsidiary or from compelling the subsidiary to take remedial action at the site. The company then declared bankruptcy in 1992, and the bankrupt company's creditors foreclosed the property and sold the site to the current owner. During the bankruptcy proceeding, a term sheet was executed that included provisions governing the allocation of environmental liability between the current owner and the bankrupt company. The current owner then filed a declaratory action in bankruptcy court to clarify how the purchase agreement, deed, and term sheet allocated environmental responsbility among the parties. The parties appealed to the district court, and this appeal followed. The bankruptcy court properly exercised jurisdiction over the gasoline company. Because the gasoline company formerly owned the contaminated property that is at the center of this dispute, the gasoline company is necessarily implicated in this action. Additionally, the current owner's claims against the gasoline company and the subsidiary are not barred by the "circuity of action" doctrine. Although the subsidiary is entitled to indemnification from the bankrupt company under the terms of a prior settlement agreement, the current owner did not agree to indemnify the bankrupt company, either expressly or impliedly, in the term sheet. Thus, the term sheet does not create an implied indemnity by the current owner in favor of the subsidiary. In addition, under the term sheet, the current owner did not assume responsibility for all unknown environmental contamination at the refinery. Instead, the term sheet only allocated post-foreclosure environmental liability to the current owner. Further, the subsidiary is not a third-party beneficiary of the term sheet and is, therefore, not entitled to its benefits. Finally, the covenants set forth in the purchase agreement and deed between the subsidiary and the bankrupt company are not binding on the current owner. The covenants do not touch and concern the land since they convey no benefits to the refinery. Refinery Holding Co. v. TRMI Holdings, Inc., No. 01-50107 (5th Cir. Aug. 22, 2002) (22 pp.).

CZMA, HYDROELECTRIC PLANTS, CONSISTENCY CERTIFICATION, STATE AND COUNTY PERMITS:

The Ninth Circuit denied petitions to review FERC orders dismissing companies' applications for licenses to build hydroelectric plants because the companies failed to apply for the necessary certifications. The companies' proposed projects were located in Washington's coastal zone; therefore, as required by the CZMA, the companies needed the state to certify that the projects were consistent with the state's coastal zone management program. The state, in turn, required approval from the county where the projects were to be sited before it would consider whether to certify the projects' consistency with state coastal protection. The companies filed consistency certifications with the state environmental agency, but failed to submit further information requested by the state agency and refused to seek a county permit, also requested by the state agency. The companies argued that the projects were not in a coastal zone, that the state agency waived its chance to object, and that the companies' consistency certification was complete, but FERC properly denied the companies' applications. FERC was not acting arbitrarily or capriciously when it relied on the NOAA-approved coastal zone map to require state coastal zone certification before issuing a license to the companies. The companies' challenge relating to the coastal zone is actually a collateral attack on NOAA's approval of the state's coastal zone and cannot be brought in front of FERC, which does not have the authority to determine a state's coastal zone. Additionally, the companies' argument that applying for county permits would have been futile because county regulations prohibit hydropower projects at the proposed sites is of little relevance to evaluating a consistency certification. Absent an application for and denial of a permit, there is no way to know that the licensing authority could not have issued a variance. Further, the state did not waive its consistency requirements or its right to object to the projects. Although the companies filed their certificates in 1992 and the state had yet to review them by 2000, well past the six-month limit to object to a consistency declaration under the CZMA, the clock would only start running once the applications were complete. Here, the companies failed to submit county permits; thus, the state could not review the applications. The state coastal zone management statute in effect in 1992 did not explicitly state that a county permit was necessary for a consistency certification, but language in the statute suggested a permitting requirement and the state gave fair notice to the companies that it would not begin review of the consistency certifications without the county permits. Finally, the state's requirement for a county-issued permit does not strip the federal government of its exclusive grant of authority to issue licenses for hydropower projects. Mountain Rhythm Resources v. Federal Energy Regulatory Commission, Nos. 00-70357, -70963 (9th Cir. Aug. 23, 2002) (24 pp.).

FEDERAL ADVISORY COMMITTEE ACT (FACA), SOUTHERN EVERGLADES RESTORATION ALLIANCE (SERA), "ADVISORY COMMITTEE":

The Eleventh Circuit reversed and remanded a district court decision dismissing a Native American tribe's claim that the SERA had violated the FACA and that its actions, including advice to federal agencies, were void. The SERA was a group funded in part by federal agencies to assist in the restoration of the Everglades. The tribe claimed that the SERA was an advisory committee within the FACA, and, as such, was subject to the Act's requirements. After the tribe filed its claims, the SERA disbanded, but the tribe also sought to enjoin several federal agencies' use of the SERA's advice. The district court held that the tribe had standing to bring the lawsuit, but held that the SERA did not fall within the plain meaning of the FACA definition of "advisory committee." However, applying the plain meaning rule of statutory construction, the SERA is an advisory committee within the meaning of the FACA. The Act defines an advisory committee as any committee, board, commission, council, conference, panel, task force, or other similar group that is established or utilized by the President or an agency in the interest of obtaining advice or recommendation for one or more federal agencies or officers. The SERA was an entity established by federal agencies in the interest of obtaining advice or recommendation and coordination regarding their respective activities, especially projects relating to the Everglades. Thus, the SERA was an advisory committee. Moreover, the district court erred when it held that the FACA only applies to those groups or entities that present a danger of undue influence by special interests, which the district court determined to be committees, unlike the SERA, that had at least one non-governmental entity representing private interests. Any interest in protecting the government's decisionmaking from undue influence of special interests does not trump the plain language of the FACA. In addition, the tribe alleged sufficient injury to qualify for standing, but the tribe's claims against the nonexistent SERA and its former executive director are moot. Miccosukee Tribe of Indians of Florida v. Southern Everglades Restoration Alliance, No. 01-16226 (11th Cir. Sept. 4, 2002) (26 pp.).

LANDFILL, INVERSE CONDEMNATION, INTERSTATE COMMERCE:

The Sixth Circuit affirmed a district court decision that a county's denial of a company's permit application to operate a landfill on its property was not a taking under state law and did not violate the Commerce Clause or the Sherman Antitrust Act. The company did not meet the requirements to demonstrate that a taking occurred. The company failed to show that there is no productive use to which it can put its property or that all economically productive use of the property has been lost due to government action. Additionally, the denial of the permit did not discriminate against interstate commerce in violation of the Commerce Clause. There was no discriminatory purpose or intent behind the county's actions. The company presented no evidence that the county's specific inclusion of state counties in its out-of-area designation for the proposed landfill constituted an exclusion of non-state areas as possible sources of waste, or that the statements of one member of the panel that denied the company's permit influenced the other members of the panel. Finally, the county did not violate the Sherman Antitrust Act by willfully acting to acquire and maintain a monopoly when it denied the company's permit and chose to run the county's landfill itself. Blue Ribbon Properties, Inc. v. Hardin County Fiscal Court, No. 00-6345 (6th Cir. Aug. 15, 2002) (10 pp.).

BREACH OF CONTRACT, LAND DEVELOPMENT, WETLANDS PERMIT:

The Ninth Circuit affirmed a district court holding that a city did not breach a contract with a developer by failing to obtain the wetlands permits necessary for the development of an apartment complex and shopping center. Nothing in the contract obligated the city to obtain the wetlands permits. Although the city had an obligation to cooperate with the developer on such matters, the contract language unambiguously makes clear that the developer was intended to obtain whatever permits were needed for its planned development. It may be that the developer was not obligated to get the permits, but failing to do so, it has no contractual basis to blame the city if it could not complete its planned development. Additionally, the city did not breach the implied covenant of good faith. Tacoma Promenade v. City of Tacoma, No. 01-35143 (9th Cir. Aug. 20, 2002) (4 pp.).

BIOLOGICAL OPINION, BULL TROUT, TIMBER SALES:

A district court granted environmental groups' motions for a temporary restraining order and a preliminary injunction pending the final adjudication on the merits of a biological opinion issued by the FWS regarding the impact of four timber sales in the Willamette National Forest on bull trout. Because no further activity will occur at two of the sites until 2003, the court's opinion and order dealt only with the remaining two timber sales. The bull trout was listed as a threatened species under the ESA in June 1998. In 2000, the FWS issued a programmatic biological opinion and concluded that there would be no jeopardy to the bull trout from the timber projects where the standards and guidelines of the Aquatic Conservation Strategy (ACS), as set forth in the Northwest Forest Plan, were implemented. However, in the FWS' 2002 biological opinion, which concluded that there would be no take of the bull trout from any of the timber sales, there is no discussion or analysis of consistency with ACS objectives. After initiating suit to invalidate the 2002 biological opinion, the groups filed the instant motions. Despite the FWS' argument to the contrary, the 2002 biological opinion is a final agency action and therefore subject to review. Because the 2002 opinion did not contain an incidental take permit, it raised the potential of liability if a bull trout is taken, which is a legal consequence. Similarly, the ability of the FWS to use the no jeopardy conclusion in the 2002 opinion in defense of its actions in a future proceeding is an appreciable legal consequence. Additionally, there are serious questions on the merits as to whether the FWS acted arbitrarily and capriciously in failing to analyze the specific timber sales to determine whether they are consistent with ACS objections. There is no analysis of the extent of the short-term degradation of the watershed or of the consequences arising from the increase in road density in the context of ACS objectives. Further, because the construction, reconstruction, and use of roads associated with timber sales have been identified as major causes of the decline of the bull trout, it seem incongruous for the FWS to conclude that those activities will have no likelihood of causing harm to the bull trout. There are also serious questions as to FWS' determination that bull trout are not in the vicinity of any of the timber sales sites. Finally, the Ninth Circuit has previously stated that when considering ESA cases, the balance of hardships and public interest should tip heavily in favor of the bull trout. The groups' motions were therefore granted. Cascadia Wildlands Project v. U.S. Fish & Wildlife Service, No. CV 02-747-RE (D. Or. Aug. 7, 2002) (Redden, J.) (13 pp.).

CAA, CITIZEN SUIT, DISCOVERY:

A district court held that it lacked power under the CAA to grant an environmental group's request to compel EPA to disclose information addressing EPA's nationwide administration of CAA petitions. The group submitted petitions under the CAA to EPA. When EPA failed to respond to the petitions within the 60-day time limit, the group brought citizen suits seeking to compel EPA to respond to the petitions, and later, seeking to discover information on EPA's delayed response to similar petitions. The court, however, lacks power under the CAA to grant equitable relief beyond the specific petitions before it. The discovery the group seeks is not related to granting or denying the specific petitions that the group filed with EPA. Rather, the group desires broad programmatic relief to remedy what it perceives to be flaws in EPA's system for responding to petitions. Both the structure of the CAA and its legislative history indicate that Congress intended that the available remedies were limited to those expressly provided for in the Act. Under the CAA, the district court has jurisdiction to compel EPA to perform purely ministerial acts or duties, not to order EPA to make particular judgmental decisions. This grant of authority under the CAA indicates that a court's powers are limited to resolving on a case-by-case basis the individual petitions before it. The group, therefore, is not entitled to discovery. New York Public Interest Research Group, Inc. v. Whitman, Nos. 02-cv-337 (ESH), -338 (ESH) (D.D.C. Aug. 22, 2002) (Huvelle, J.) (12 pp.).

GROUNDWATER CONTAMINATION, INSURANCE, COVERAGE:

A district court held that insurance companies may have a duty to indemnify a chemical company that was sued by municipalities for groundwater contamination. The insurance companies provided the chemical company with comprehensive general liability coverage from 1956 through 1976 under a series of six policies. Although the chemical company manufactured the pesticide that caused the groundwater contamination at issue in the 1950s, the contamination was not discovered until 1979. Nevertheless, the insurance companies may have to indemnify the chemical company because the injury giving rise to the underlying suit may have occurred during the policy period. Under the injury-in-fact approach to determining whether coverage is triggered, insurance coverage is triggered when there is actual property damage. Further, the policies are unambiguous and the chemical company's interpretation in favor of coverage is reasonable. Thus, insurance coverage is triggered if the chemical company can show at trial that the groundwater was tangibly injured by the pesticides and that this injury gave rise to liability. Additionally, coverage is not limited by the scope of the underlying claims. Coverage is triggered by property damage that occurs within the policy period that gives rise to liability even if that liability arises after the policy period. Further, the policies do not require that the injured tangible property belong to the municipalities, which own the right to extract the contaminated water but not the water itself. Dow Chemical Co. v. Fireman's Fund Insurance Co., No. 96-75832 (E.D. Mich. Aug. 28, 2002) (Tarnow, J.) (23 pp.).

MICHIGAN NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT (NREPA), "NO WAKE" ORDINANCE, ABSTENTION:

A district court held that it must abstain from hearing a case brought by property owners who claimed that a county ordinance making the lake on which their property sits a "no wake" lake is invalid under the NREPA and constitutes a taking in violation of their state and federal constitutional rights. The Burford abstention doctrine, which is used to avoid conflict with a state's administration of its own affairs, is applicable in this case. Although the state environmental agency is not a named party, it is clearly involved in the dispute because the agency's action was statutorily required to be involved with the adoption of the no wake ordinance. Additionally, there are difficult questions of state law that transcend the issues in this case, such as the proper procedure for adopting ordinances under the NREPA. Further, abstention under the Pullman doctrine is appropriate. The Pullman doctrine applies where an unclear state law is involved and a clarification of state law would likely obviate the necessity of deciding the federal claim question. Here, the case involves the proper application of the NREPA, both procedurally and substantively. Further, if the state courts decide that the ordinance does not violate the NREPA, the property owners' constitutional claims would likely need not be considered. Moreover, the fact that the property owners are seeking money damages does not mean that abstention is unwarranted. The court therefore dismissed the case without prejudice so it could be considered by the Michigan courts. Andrews v. Holly Township, No. 01-74433 (E.D. Mich. Aug. 21, 2002) (Cohn, J.) (15 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA withdrew certain amendments that were included in the direct final rule published on June 12, 2002, (67 FR 40169) related to the Tier 2/Gasoline Sulfur program because of adverse comments. 67 FR 54743 (8/26/02).
  • EPA entered into a proposed settlement in Sierra Club v. U.S. Environmental Protection Agency, No. 02-1135 (D.C. Cir. Aug. 15, 2002), which concerns the final rule entitled "National Emission Standard for Hazardous Air Pollutants for Source Categories: General Provisions; and Requirements for Control Technology Determinations for Major Sources in Accordance with Clean Air Act §112(g) and 112(j)," published on April 5, 2002, (67 FR 16582). 67 FR 54804 (8/26/02).
  • EPA entered into a proposed settlement agreement to address a lawsuit entitled Louisiana Environmental Action Network v. Whitman, No. 02-226-B-M2 (M.D. La.), in which the complainants sought to compel EPA to respond to two administrative petitions to object to state operating permits issued by the Louisiana Department of Environmental Quality. 67 FR 56288 (9/3/02).
  • EPA partially granted and partially denied a petition submitted by the Sierra Club to object to a state operating permit issued to Doe Run Buick Mine and Mill in Boss, Missouri. 67 FR 56288 (9/3/02).
  • EPA announced the availability of a final document entitled Health Assessment Document for Diesel Engine Exhaust. 67 FR 56290 (9/3/02).
  • EPA announced that it notified the Lubrizol Corporation, manufacturer of a motor-vehicle diesel fuel known as PuriNOX, of Alternative Tier 2 heath-effects testing requirements for PuriNOX Generation 2 Winter Diesel Fuel Emulsion (Winter PuriNOX) under the fuel and fuel additive registration testing requirements. 67 FR 54804 (8/26/02).
  • EPA proposed to find that the Wallula, Washington, nonattainment area attained the NAAQS for particulate matter with an aerodynamic diameter of 10 micrometers or less as of December 31, 2001. 67 FR 56249 (9/3/02).

DRINKING WATER:

  • EPA announced the availability of a draft report entitled Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs. 67 FR 55249 (8/28/02).

HAZARDOUS & SOLID WASTES:

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Rogers Fibre Mill Superfund site in Bar Mills, Maine. 67 FR 55254 (8/28/02).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the Motorola 52nd Street Superfund site in Phoenix, Arizona. 67 FR 56832 (9/5/02).
  • EPA approved South Carolina's UST program for petroleum and hazardous substances. 67 FR 55160 (8/28/02).

NATURAL RESOURCES:

  • NOAA announced the availability of a final report entitled Fair Market Value Analysis for Fiber Optic Cable Permit in National Marine Sanctuaries. 67 FR 55201 (8/28/02).
  • The National Park Service prepared a director's order setting forth its policies and procedures governing the conduct of resource damage assessment and restoration activities under the civil damage provisions of the Park System Resources Protection Act and other related laws. 67 FR 56311 (9/3/02).

PESTICIDES:

  • EPA announced the availability of a pesticide registration notice entitled Guidance for Submitting Requests for Threshold of Regulation Decisions. 67 FR 55253 (8/28/02).
  • EPA announced that it forwarded to the Secretary of Agriculture a draft proposed rule that would update data requirements for conventional pesticide products to reflect current scientific knowledge and understanding and to support the Agency's mandate to better protect sensitive subpopulations from pesticide risks. 67 FR 56970 (9/6/02).

TRANSPORTATION:

  • DOT's Research and Special Programs Administration proposed to change some of the safety standards for hazardous liquid and carbon dioxide pipelines. 67 FR 56970 (9/6/02).

WATER QUALITY:

  • EPA announced the availability of the Effluent Guidelines Program Plan for 2002/2003, which describes the Agency's ongoing effluent guidelines development efforts. 67 FR 55012 (8/27/02).
  • EPA seeks comments on whether to approve or disapprove revisions to Pennsylvania's authorized NPDES program. 67 FR 55841 (8/30/02).

WETLANDS:

  • DOE announced that it has prepared a floodplain/wetland assessment in connection with its proposal to construct and operate access control and traffic improvement measures at Los Alamos National Laboratory. 67 FR 55829 (8/30/02).

WILDLIFE:

  • FWS determined that the Robbins' cinquefoil is no longer an endangered species under the ESA. 67 FR 54968 (8/27/02).
  • FWS proposed to delist the Truckee barberry from the list of endangered and threatened plants. 67 FR 56254 (9/3/02).
  • FWS announced the initiation of a new status review for the westslope cutthroat trout in the United States pursuant to a recent court order and the ESA. 67 FR 56257 (9/3/02).
  • The National Marine Fisheries Service decided not to designate critical habitat for the Western Arctic stock of bowhead whales in the U.S. Beaufort and Chukchi Seas. 67 FR 55767 (8/30/02).

  • FWS prescribed special early season migratory bird hunting regulations for certain tribes on federal Native American reservations, off-reservation trust lands, and ceded lands. 67 FR 55659 (8/29/02).

  • FWS prescribed the hunting seasons, hours, areas, and daily bag and possession limits for various migratory birds for the 2002-03 season. 67 FR 55623 (8/29/02).

  • EPA announced the availability of a final document, Ecological Risk Assessment for the Middle Snake River, Idaho. 67 FR 57009 (9/6/02).
  • NOAA is closing the waters of Pamlico Sound, North Carolina, to fishing with large-mesh gillnets from September 1 through December 15 each year to protect migrating sea turtles. 67 FR 56931 (9/6/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Lamplight Equestrian Center, Inc., No. 00 C 6486 (N.D. Ill. Aug. 23, 2002). A settling CWA defendant that caused fill and/or dredged material to be discharged into U.S. waters located at a wetland in Wayne, Illinois, must pay a civil penalty and is prohibited from discharging any pollutant into waters of the United States unless the discharge complies with the CWA and its implementing regulations. 67 FR 57031 (9/6/02).
  • United States v. Liberty Property Trust, No. 02-6896 (E.D. Pa. Aug. 23, 2002). Settling CERCLA defendants must pay $83,750 in past response costs incurred at the North Penn Area Seven Superfund site in Montgomery County, Pennsylvania. 67 FR 57032 (9/6/02).
  • United States v. Pollio, No. 3:00CV02451 (GLG) (D.N.J. Aug. 5, 2002). Settling CERCLA defendants must pay $106,000 in past U.S. response costs incurred at the Somers Industrial Finishing Corporation Superfund site in the Town of Somers, Connecticut, must perform certain maintenance activities at the site, must record a deed notice, and must market the site and provide EPA with the net sale proceeds. 67 FR 56583 (9/4/02).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 351 (Solid Waste Disposal Act; mercury), which would amend the Solid Waste Disposal Act to reduce the quantity of mercury in the environment by limiting the use of mercury fever thermometers and improving the collection and proper management of mercury, was passed by the Senate. 148 Cong. Rec. S8329 (daily ed. Sept. 5, 2002).
  • H.R. 1070 (Great Lakes), which would amend the CWA to authorize EPA to make grants for remediation of sediment contamination in areas of concern and to authorize assistance for research and development of innovative technologies for such purposes, was passed by the House. 148 Cong. Rec. H6009 (daily ed. Sept. 3, 2002).

COMMITTEE ACTION:

  • S. 238 (water resources) was reported by the House Committee on Resources. H. Rep. No. 107-638, 148 Cong. Rec. S8091 (daily ed. Sept. 3, 2002). The bill would authorize the Secretary of the Interior to conduct feasibility studies on water optimization in the Burnt River, Malheur River, Owyhee River, and Powder River basins in Oregon.
  • S. 1079 (brownfields) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-244, 148 Cong. Rec. S8091 (daily ed. Sept. 3, 2002). The bill would amend the Public Works and Economic Development Act of 1965 to provide assistance to communities for the redevelopment of brownfield sites.
  • S. 1105 (land acquisition) was reported by the House Committee on Resources. H. Rep. No. 107-639, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would provide for the expeditious completion of the acquisition of state of Wyoming lands within the boundaries of the Grand Teton National Park.
  • H.R. 2099 (Vancouver National Historic Reserve) was reported by the House Committee on Resources. H. Rep. No. 107-627, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would amend the Omnibus Parks and Public Lands Management Act of 1996 to provide adequate funding authorization for the Vancouver National Historic Reserve.
  • H.R. 2534 (Los Angeles River and San Gabriel River) was reported by the House Committee on Resources. H. Rep. No. 107-628, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would authorize the Secretary of the Interior to conduct a special resource study of the Lower Los Angeles River and San Gabriel River watersheds in California.
  • H.R. 3223 (water resources) was reported by the House Committee on Resources. H. Rep. No. 107-629, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would authorize the Secretary of the Interior, through the Bureau of Reclamation, to construct the Jicarilla Apache Nation Municipal Water Delivery and Wastewater Collection Systems in New Mexico.
  • H.R. 3449 (George Washington Birthplace National Monument) was reported by the House Committee on Resources. H. Rep. No. 107-631, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would revise the boundaries of the George Washington Birthplace National Monument.
  • H.R. 3534 (Native American lands) was reported by the House Committee on Resources. H. Rep. No. 107-632, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would provide for the settlement of certain land claims of Cherokee, Choctaw, and Chickasaw Nations to the Arkansas Riverbed in Oklahoma.
  • H.R. 4638 (water resources) was reported by the House Committee on Resources. H. Rep. No. 107-63, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would reauthorize the Mni Wiconi Rural Water Supply Project.
  • H.R. 4708 (land conveyance) was reported by the House Committee on Resources. H. Rep. No. 107-641, 148 Cong. Rec. H6084 (daily ed. Sept. 5, 2002). The bill would authorize the Secretary of the Interior to convey certain facilities to the Fremont-Madison Irrigation District.
  • H.R. 4727 (dams) was reported by the House Committee on Transportation and Infrastructure. H. Rep. No. 107-626, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would reauthorize the national dam safety program.
  • H.R. 4739 (wastewater infrastructure) was reported by the House Committee on Resources. H. Rep. No. 107-635, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of a project to reclaim and reuse wastewater within and outside of the service area of the City of Austin Water and Wastewater Utility, Texas.
  • H.R. 4822 (Upper Missouri River Breaks National Monument) was reported by the House Committee on Resources, H. Rep. No. 107-642, 148 Cong. Rec. H6084 (daily ed. Sept. 5, 2002). The bill would clarify that the Upper Missouri River Breaks National Monument does not include within its boundaries any privately owned property.
  • H.R. 4917 (land exchange; water resources) was reported by the House Committee on Resources. H. Rep. No. 107-63, 148 Cong. Rec. H6059 (daily ed. Sept. 3, 2002). The bill would provide for an exchange of lands with the United Water Conservation District of California to eliminate private inholdings in the Los Padres National Forest.
  • H.R. 4938 (water resources; Native American lands) was reported by the House Committee on Resources. H. Rep. No. 107-643, 148 Cong. Rec. H6084 (daily ed. Sept. 5, 2002). The bill would direct the Secretary of the Interior, through the Bureau of Reclamation, to conduct a feasibility study to determine the most feasible method of developing a safe and adequate municipal, rural, and industrial water supply for the Santee Sioux Tribe of Nebraska.
  • H.R. 5157 (public transit) was reported by the House Committee on Transportation and Infrastructure. H. Rep. No. 107-644, 148 Cong. Rec. H6084 (daily ed. Sept. 5, 2002). The bill would amend section 5307 of title 49, United States Code, to allow transit systems in urbanized areas that, for the first time, exceeded 200,000 in population according to the 2000 census to retain flexibility in the use of federal transit formula grants in fiscal year 2003.
  • H.R. 5169 (CWA; wastewater) was reported by the House Commitee on Transportation and Infrasttructure. H. Rep. No. 107-645, 148 Cong. Rec. H6084 (daily ed. Sept. 5, 2002). The bill would amend the CWA to enhance the security of wastewater treatment works.

BILLS INTRODUCED:

  • S. 2897 (Jeffords, I-Vt.) (animal conservation; marine turtles) would assist in the conservation of marine turtles and the nesting habitats of marine turtles in foreign countries. 148 Cong. Rec. S8092 (daily ed. Sept. 3, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2899 (Landrieu, D-La.) (Atchafalaya National Heritage Area) would establish the Atchafalaya National Heritage Area, Louisiana. 148 Cong. Rec. S8092 (daily ed. Sept. 3, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5316 (Kolbe, R-Ariz.) (national forests) would establish a user fee system that provides for an equitable return to the federal government for the occupancy and use of National Forest System lands and facilities by organizational camps that serve the youth and disabled adults of America. 148 Cong. Rec. H6059 (daily ed. Sept. 4, 2002). The bill was referred to the Committees on Agriculture, and Resources.
  • H.R. 5318 (Duncan, R-Tenn.) (land exchange) would provide for an exchange of certain private property in Colorado and certain federal property in Utah. 148 Cong. Rec. H6059 (daily ed. Sept. 4, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5319 (McInnis, R-Colo.) (NEPA; forest fires) would improve the capacity of the Secretary of Agriculture and the Secretary of the Interior to expeditiously address wildfire prone conditions on National Forest System lands and other public lands that threaten communities, watersheds, and other at-risk landscapes through the establishment of expedited environmental analysis procedures under NEPA. 148 Cong. Rec. H6059 (daily ed. Sept. 4, 2002). The bill would also establish a predecisional administrative review process for the Forest Service, expand fire management contracting authorities, and authorize appropriations for hazardous fuels reduction projects. The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 5327 (Gibbons, R-Nev.) (land conveyance) would direct the Secretary of Agriculture to convey certain land in the Lake Tahoe Basin Management Unit, Nevada, to the Secretary of the Interior, in trust for the Washoe Indian Tribe of Nevada and California. 148 Cong. Rec. H6059 (daily ed. Sept. 4, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5328 (Gibbons, R-Nev.) (land conveyance) would direct the Secretary of Agriculture to convey certain land to Lander County, Nevada, and the Secretary of the Interior to convey certain land to Eureka County, Nevada, for continued use as cemeteries. 148 Cong. Rec. H6059 (daily ed. Sept. 4, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5329 (Goodlatte, R-Va.) (FIFRA) would amend FIFRA with respect to public health pesticides. 148 Cong. Rec. H6059 (daily ed. Sept. 4, 2002). The bill was referred to the Committee on Agriculture.
  • H.R. 5341 (Taylor, R-N.C.) (national forests) would authorize and direct the Secretary of Agriculture to take actions to promptly address the risk of fire and insect infestation in National Forest System lands. 148 Cong. Rec. H6084 (daily ed. Sept. 5, 2002). The bill was referred to the Committees on Agriculture, and Resources.
  • H.R. 5342 (Thun, R-S.D.) (Black Hills National Forest) would require the Secretary of Agriculture to conduct a demonstration forest management project in the Black Hills National Forest in South Dakota and Wyoming. 148 Cong. Rec. H6084 (daily ed. Sept. 5, 2002). The bill was referred to the Committee on Resources.

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

INTERNATIONAL

GENERAL:

  • The World Summit on Sustainable Development (WSSD) concluded with adoption, in the absence of a vote or dissent, of an action plan that is long on aspirations and short on deadlines. The plan includes measures to protect fisheries and provide improved sanitation in developing countries. It also includes a statement in support of increasing reliance upon renewable energy sources, and endorses the concept of the creation of a "world solidarity fund" for poverty eradication. Nongovernmental organizations were disappointed at the outcome; some walked out of the closing session, while others stressed that some progress had been made. The United States was successful in avoiding the inclusion of specific timetables in the language involving renewable energy. The final document simply notes a "sense of urgency" to increase the market share of renewables.
  • "This plan of implementation provides us with everything we need to make sustainable development happen over the next several years," said summit Secretary General Nitin Desai. "The test is whether governments, along with civil society and the private sector, can pursue the commitments that are in the document and take actions that achieve measurable results." "The issue of a target for renewable energy was a worthwhile goal," Desai said, "but the reality is that, with sustained action, we can build up the renewable energy industries to the point where they have the critical mass to compete with fossil fuel-generated energy. We have a commitment to make it happen, and now we need the follow-through."
  • The timetables that made it into the final document include 2015 for restoring fish stocks, 2004 for implementing the Global Program of Action for the Protection of the Marine Environment from Land-based Activities, 2005 for the implementation of food security strategies in Africa, and reducing biodiversity loss by 2010.
  • Venezuelan President Hugo Chavez, speaking for the Group 77 devleoping countries and for China, said he "would have wanted much more." "We've set out some generalities which perhaps some might see as retrograde from progress at previous summits," he said. "There's no dialogue. It seems to be a dialogue of the deaf. . . . It seems that we just come to read out a speech, to fulfill a task which has been imposed on us."
  • The European Union (EU) issued a declaration pledging to go beyond the language of the action plan. European Commission President Romano Prodi said: "We came to Johannesburg to launch a North-South pact which also encompasses the results of the Doha and Monterrey conferences. I welcome this relaunch of multilateralism which puts sustainable development firmly on the global agenda. Naturally we cannot be happy with everything we achieved but the results take us in the right direction. Reaching agreement is important but without implementation it means nothing. The EU will take the lead in implementing the outcome of Johannesburg because we are strongly committed to fighting poverty through trade and aid while protecting the environment. We owe it to the world to deliver."
  • United Nations (U.N.) Secretary General Kofi Annan said he was "pleased" with the outcome.
  • Secretary of State Colin Powell's speech was frequently interrupted by protestors. Much of the booing began when Powell criticized Zimbabwe's government. "President Bush and the American people have an enduring commitment to sustainable development," Powell said. Regarding the Kyoto Protocol, Powell said that "we are committed not just to rhetoric and to various goals. We are committed to a billion-dollar program to develop advanced technologies and reduce greenhouse gas emissions.
  • World Health Organization Director General Gro Harlem Brundtland introduced a new initiative to improve environmental conditions affecting children. See http://www.who.int/mediacentre/releases/who66/en/
  • European Commission President Romano Prodi and Danish Environment Minister Hans Christian Schmidt signed the EU-Africa "Water for Life" agreement with Nigerian President Olusegun Obansanjo and South African Water and Forestry Minister Ronny Kasrils. Danish Prime Minister and EU President Anders Fogh Rasmussen said that "water and sanitation are
    key to sustainable development, health, regional stability and economic stability. I believe we
    have the moral obligation to do the right thing: to provide clean drinking water and sanitation for every village, town and city on the planet. By doing so, every year we can save many millions of lives and prevent hundreds of millions of people from suffering from serious diseases." The agreement with eastern Europe, the Caucasus, and central Asia will be signed soon. Mediterranean and South American countries have signaled their intention to participate in the near future.
  • The United Kingdom, the European Commission, the World Bank, and the U.N. Development Program issued a report stressing the need for reduction in poverty.
  • The U.N. Environment Program issued a report at the WSSD that claims that by 2030, less than 10% of the natural habitat for great apes will exist in southern Africa and almost none will exist in Asia. See http://www.unep.org/Documents/Default.asp?DocumentID=264&ArticleID=3119
  • Former Thai Commerce Minister Supachai Panitchpakdi became World Trade Organization director general. He is the first representative of a developing country to hold the position.
  • Zambian President Levy Mwanawasa refused to reconsider his rejection of food aid containing genetically modified crops. Despite obvious evidence of mass hunger, he said Zambia had sufficient food stocks to last through December. "We have made a decision," the Zambian leader said. "We have rejected GM food. It is not a slight on donors. There is no conclusive evidence that it is safe. We wish not to use our people as guinea pigs in this experiment. Our decision is final."
  • Malawian Agriculture Minister Aleke Banda said his country would mill the genetically modified corn shipped to it.
  • "We've got to respect each government's decision on accepting food aid," said World Food Program official Judith Lewis. "But they've got to explain to their people how they justify turning this food away while children are literally eating dirt." U.S. Agriculture Secretary Ann Veneman said "it is disgraceful that instead of helping hungry people, these individuals and organizations are embarking on an irresponsible campaign to spread misinformation and create an atmosphere of fear."

CLIMATE CHANGE:

  • At the WSSD, delegates agreed to language referencing the Kyoto Protocol as a "key instrument for addressing climate change." It said that "states that have ratified the Kyoto Protocol" should "strongly urge states that have not already done so to ratify the Kyoto Protocol in a timely manner." And signatories agreed to reduce emissions to a level that "would prevent dangerous anthropogenic interference with the climate system."
  • German Chancellor Gerhard Schroeder said world leaders should "call upon all states to ratify the Kyoto Protocol as soon as possible so that it can enter into force by the end of this very year." And British Prime Minister Tony Blair said the United Kingdom will exceed its emissions targets, but that more is needed. "Kyoto is right, and it should be ratified by all of us, but Kyoto only slows the present rate of damage. To reverse it, we need to reduce dramatically the level of pollution," Blair said.
  • The World Bank launched the $100 million Community Development Carbon Fund in collaboration with the International Emissions Trading Association. See http://www.bday.co.za/bday/content/direct/1,3523,1168231-6078-0,00.html
  • Russian Prime Minister Mikhail Kasyanov announced at the WSSD that Russia will ratify the Kyoto Protocol "in the very near future." See http://news.bbc.co.uk/2/hi/world/europe/2233220.stm
  • Canadian Prime Minister Jean Chretien said at the summit that he will ask Parliament to vote on the Protocol by the end of the year. Approval is expected despite opposition by Alberta. Ratification by Canada and Russia will cause the agreement to go into force.
  • Chinese Prime Minister Zhu Rongji presented his country's instrument for ratification to the U.N. Secretary General during the WSSD. "The Chinese government believes that the United Nations Framework Convention on Climate Change and its Kyoto Protocol set forth the fundamental principles and provide an effective framework and a series of rules for international cooperation in combating climate change, and as such they deserve worldwide compliance," Zhu said.
  • Thailand's cabinet approved ratification, despite concerns voiced by some that ratification would adversely affect the nation's sovereignty. Ratification will not mean near-term reductions in greenhouse gas emissions.
  • Australian Prime Minister John Howard said ratification was a possibility.
  • The Japanese government said it would work with China, India, Indonesia, Malaysia, the Philippines, Thailand, and Vietnam to reduce their carbon dioxide emissions in exchange for credits pursuant to the Protocol's Clean Development Mechanism.

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

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