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Weekly Update Volume 32, Issue 26

09/16/2002

LITIGATION

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

CAA, CONSENT DECREE, HEAVY-DUTY DIESEL ENGINES:

A district court denied heavy-duty diesel engine manufacturers' motions to modify consent decrees they entered into with EPA to settle claims that they violated the CAA and its implementing regulations by selling engines that emitted excess pollution and by failing to disclose how the engines operated in real world conditions. A key component of the decree requires the manufacturers to meet by October 1, 2002, engine emission standards that will not otherwise be applicable until January 2004. The manufacturers sought a modification of this requirement on the grounds that unanticipated cost increases make compliance with the decree substantially more onerous. The cost increases, however, are not nearly as substantial as the manufacturers allege, nor were they unanticipated. In addition, the manfuacturers argue that enforcement of the decree will be a detriment to the public interest. The manufacturers claim that as a result of the cost increases, the trucking industry is engaging in a build-up or "pre-buy" of current engines before the October 2002 deadline goes into effect, and that there will be a corresponding period of depressed demand or "no-buy" after the deadline. Due to these pre-buy and no-buy periods, the manufacturers contend that older, dirtier engines will remain on the road longer, substantially decreasing the reduction in emissions under the decree. EPA, however, provided substantial reason to doubt the manufacturers' estimates of the extent of the pre-buy and no-buy and their impact on the emissions reductions achievable under the decree. Even if the manufacturers' figures are true, the decree will still offer substantial public health benefits. In addition, the decree clearly provides that EPA's model year 2004 non-conformance penalties will be applied to engine manufacturers who do not meet the October 2002 deadline. And one of the manufacturers lacked standing to challenge EPA's approval of certain emission control strategies developed by other engine manufacturers to comply with the decrees. United States v. Caterpillar, Inc., Nos. 98-2544 (HHK), -2548 (HHK) (D.D.C. Sept. 5, 2002) (Kennedy, J.) (27 pp.).

CWA, NAVIGABLE WATERS, CONSENT DECREE:

The Seventh Circuit affirmed a district court decision refusing a developer's motion to vacate a 1992 consent decree he entered into with EPA in light of the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2001) (SWANCC). When they entered into the consent decree, EPA and the developer were operating under the view set forth in Hoffman Homes, Inc. v. EPA, 961 F.2d 1310, 22 ELR 21148 (7th Cir. 1992), that EPA could not regulate isolated, intrastate wetlands. Years later, in SWANCC, the Supreme Court held that the U.S. Army Corps of Engineers exceeded its authority in extending the definition of "navigable waters" under the CWA to include intrastate waters used by migratory birds. After the Court's decision in SWANCC, the developer filed a motion to vacate the 1992 consent decree arguing that the decision eliminated EPA's authority to regulate the wetlands at issue. Specifically, the developer argued that the SWANCC decision was a significant change in law, thereby requiring the consent decree to be vacated or modified under Fed. R. Civ. P. 60(b)(5). The SWANCC decision, however, does not alter the parties' reliance on Hoffman Homes. In SWANCC, the Court merely held that the definition of "waters of the United States" in the migratory bird rule exceeds the authority granted to the Corps under CWA §404. This limited holding does not represent a significant change in law such that it would be equitable to vacate or modify the consent decree. Moreover, the SWANCC decision is not relevant to the consent decree because EPA did not assert authority over the developer's property under the migratory bird rule. In fact, the consent decree operated on the premise that the migratory bird rule did not authorize EPA to regulate otherwise isolated wetlands. Similarly, the consent decree's reservation-of-jurisdiction clause does not justify vacating or modifying the decree. United States v. Krilich, No. 01-2746 (7th Cir. Sept. 9, 2002) (18 pp.).

CWA, WHOLLY PAST VIOLATIONS, MOOTNESS:

A district court held that an environmental group could go forward with its citizen suit against a sewer authority for CWA violations at a wastewater treatment plant in Puerto Rico, but that the group lacked standing to enforce the NPDES permit of a second plant. The group has standing to enforce the first plant's NPDES permit but it failed to demonstrate an injury-in-fact with regard to the second plant. Nevertheless, the group's CWA citizen suit adequately stated a claim for which relief may be granted. Although the first plant is sealed off and diverts effluent to the second plant, it is questionable whether the seal is sufficient to prevent the occurrence of discharges from the plant in the future. Moreover, because it is reasonable to infer from the evidence that the sealed plant has incurred post-complaint CWA violations, and because a genuine issue of material fact remains as to whether the past violations could occur again, the groups' claims are not based on "wholly past" violations. The court also rejected the authority's argument that the sealed plant's diversion of effluent to the second plant does not constitute an ongoing violation of the CWA. Because the second plant discharged directly into a river, discharges diverted from the sealed plant to the second plant are discharges from a point source into navigable waters. Similarly, the group gave adequate notice regarding its pretreatment claims, and the authority failed to support its argument that the pretreatment regulations do not apply to the sealed plant. Last, the group's claim is not moot. Although one of the plants is sealed, this evidence is not sufficient to prove that future discharges are not possible. Puerto Rico Campers' Ass'n v. Puerto Rico Aqueduct & Sewer Authority, No. CIV.97-1493(JAG/GAG) (D.P.R. Aug. 23, 2002) (Gelpi, J.) (18 pp.).

SOLID WASTE DISPOSAL ACT (SWDA), WHISTLEBLOWER PROTECTION, NONSTATUTORY REVIEW, SOVEREIGN IMMUNITY:

The First Circuit upheld a district court order enjoining the U.S. Department of Labor (DOL) and three Rhode Island employees from proceeding in an administrative adjudication of the employees' claims that the state had retaliated against them in violation of the SWDA's whistleblower provision. An administrative law judge (ALJ) for the DOL awarded the employees monetary relief, but the district court held that the administrative proceedings were barred by sovereign immunity principles. On appeal, a civil liberties organization, writing as amicus curiae, argued that the state impermissibly sought review of agency action that was not yet final under the APA. Although the administrative proceedings were not final when the state filed its claim because the Secretary of Labor had yet to make a final determination on the employees' claims, the absence of final agency action does not necessarily render the state's claim unreviewable. Under the circumstances of this case, nonstatutory review is an appropriate vehicle for the state to vindicate its claim of immunity. In addition, the district court properly issued the injunction. A state's traditional immunity from suit extends to administrative proceedings initiated and prosecuted by private citizens. Further, the state has not waived its immunity, nothing in the SWDA indicates that Congress abrogated states' immunity, the Ex Parte Young doctrine does not apply, and the federal government's role in this case does not bar the state's sovereign immunity. However, the Secretary of Labor is not precluded from intervening in the enjoined proceedings, thereby removing the sovereign immunity bar. The court, therefore, modified the injunction to allow the Secretary to intervene in the case should she so choose. Rhode Island Department of Environmental Management v. United States, Nos. 00-2326, 01-1543 (1st Cir. Aug. 30, 2002) (41 pp.).

CONTRACT LAW, SPECIAL USE PERMITS, STATUTE OF LIMITATIONS:

The Tenth Circuit reversed the dismissal of the U.S. government's cross-claim against a teacher for damages suffered as a result of a Buffalo Creek fire in the Pike National Forest. The fire was allegedly caused by the teacher's students while on a field trip in the forest. The teacher obtained a special use permit from the U.S. Forest Service for the field trip, and the permit stated that the policy holder would be liable to the government for any and all damages the United States may suffer as a result of the permit. Landowners brought suit against the students, the teacher, and the government, and the government filed a cross-claim against the teacher to enforce the terms of the permit. The district court dismissed the government's cross-claim, holding that it failed to file a timely notice in accordance with the Colorado Governmental Immunity Act (CGIA). The government's cross-claim, however, was brought to enforce a right arising basically under federal contract rights. The permit was a federal permit, and the court has previously held that special use permits such as the one in this case are contracts. Moreover, the permit's terms make no reference to negligence or other bases for liability characteristic of a tort claim. Therefore, the 6-year statute of limitations for federal contract claims applies rather than the 180-day limitations period set forth in the CGIA. King v. United States, No. 00-1486 (10th Cir. Sept. 5, 2002) (7 pp.).

INSURANCE, COVERAGE, NOTICE:

A district court held that insurers are not obligated to defend or indemnify a manufacturing company for the costs of environmental remediation efforts undertaken at three of its manufacturing and waste disposal sites or for the costs of defending underlying environmental claims. The company learned of a contamination problem subjecting it to potential liability for remediation at one of the sites in 1982. Under the policies, therefore, the company had knowledge of an "occurrence" in 1982 that gave rise to an obligation to notify its insurers. The company, however, did not notify the insurers until 1984. The company's obligation to give notice regarding a second site arose no later than 1982 when EPA proposed to place the site on the Superfund NPL. Yet the company did not notify the insurers until 1984, which was not "as soon as practicable" within the meaning of the insurance policies. As for the third site, a claim was filed in 1984 that, under the policies, gave rise to the obligation to give notice immediately. But the company did not provide notice until 1988. In addition, the company has no sufficient explanation for the delays. Thus, the insurers have no duty to defend or indemnify the manufacturer. Olin Corp. v. Insurance Co. of North America, No. 84 Civ.1968(TPG) (S.D.N.Y. Aug. 28, 2002) (Griesa, J.) (6 pp.).

TIMBER SALE, NEPA, PRELIMINARY INJUNCTION:

A district court issued an injunction ordering the U.S. Forest Service to supplement its EA for a timber sale in the Nez Perce National Forest in Idaho, but denied environmental groups' motion to enjoin any logging in connection with that sale. The Forest Service's chosen alternative for the sale, as discussed in the EA, called for 3 million board feet (mmbf) of logging over about 3,340 acres of land. The Forest Service, however, informed prospective bidders that the sale would be about 9.5 mmbf over about 800 acres. The Forest Service then issued a supplemental information report in which it concluded that the change from the original EA was not significant. Because the Forest Service knew that the final design of the sale would be 9.5 mmbf over 800 acres prior to issuing its EA for the sale, the environmental groups are likely to prevail on their legal procedural claims. The Forest Service privately analyzed and decided what to do on information that it did not share with the public or with the other agencies involved. Nevertheless, logging has already begun on the site, and the groups are unlikely to prevail on their substantive claims. The court, therefore, remanded the matter to the Forest Service so it could supplement the EA as necessary and comply with NEPA. Friends of the Clearwater v. McAllister, No. CV-02-106-M-DWM (D. Mont. Aug. 23, 2002) (Molloy, J.) (6 pp.).

NATIONAL FORESTS, TIMBER SALES, MOOTNESS, FINAL AGENCY ACTION:

The Ninth Circuit held that environmental groups' NEPA and National Forest Management Act (NFMA) claims against the U.S. Forest Service for approving a timber sale in the Payette National Forest are not moot even though the sale is complete. The groups argued that the sale unlawfully harmed old growth species in violation of the NFMA and NEPA. A district court dismissed the groups' claims, and this appeal followed. The Forest Service argued that the groups' claims were moot because logging is complete. The completion of activity, however, is not the hallmark of mootness. Rather, a case is moot only where no effective relief for the alleged violation can be given. Here, the groups sought injunctive relief and requested "such further relief as may be necessary and appropriate to avoid further irreparable harm." Thus, although the sale is over and the logged trees cannot be brought back, the court below could order other measures to help mitigate the damage caused by the sale. As for the merits of the case, the lower court erroneously dismissed the groups' NFMA claim alleging defects in the Forest Service's forest-wide management practices. Although forest-wide management practices are not final agency actions, the groups challenged the practices only to the extent that they affect the lawfulness of a final agency action--the approval of the timber sale. The district court, however, properly dismissed the groups' NEPA claim because the Forest Service took the requisite "hard look" at the environmental effects of the sale. Neighbors of Cuddy Mountain v. Alexander, No. 01-35184 (9th Cir. Sept. 5, 2002) (25 pp.).

PROPERTY CONTAMINATION, STATUTE OF LIMITATIONS, DISCOVERY:

A district court denied manufacturers' motions to dismiss property owners' common law claims against them for allegedly contaminating the owners' land. The manufacturers argued that the property owners' claims were time-barred under New York law. Under state law, the property owners had either three years from the date of discovery of their injury, or one year from the date on which they discovered or reasonably should have discovered the cause of their injury. In addition, if the property owners discovered or should have discovered the cause of their injury more than two years after they discovered the injury itself, state law, as modified by CERCLA §309, provides that they would have had one year from the date of the discovery of the cause of the injury to file suit. Here, however, genuine issues of material fact exist as to when the property owners discovered, or reasonably should have discovered, the injury at issue and the cause of that injury. Although information about chemical contamination in the area was disseminated to the public during the mid 1990s, there is no evidence in the record that demonstrates conclusively that the property owners were aware of any contamination emanating from the manufacturer's facilities before 2000. Whether the property owners were on notice of contamination prior to then is for a jury to decide. Lessord v. General Electric Co., No. 01-CV-6103L (W.D.N.Y. Aug. 29, 2002) (Larimer, J.) (22 pp.) (Plaintiffs' counsel included Alan J. Knauf of Knauf Shaw LLP in Rochester, N.Y.).

TAKINGS, RIPENESS, RESTRICTIVE COVENANT:

The Seventh Circuit held that a local planning commission violated property owners' Fifth Amendment rights by vacating a restrictive covenant in their neighborhood for a private purpose. The commission vacated the covenant, which restricted development to single-family homes, in order to allow a developer to build commercial property on three lots in the neighborhood. Uninhabitated houses stood on the lots at issue. Because the property owners failed to exhaust their remedies in state court before filing suit in federal court, the commission argued that their claim was not ripe. Here, however, the state's inverse condemnation procedure would have been inadequate to address the property owners' injury. This futility therefore exempts them from the exhaustion requirements of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). In addition, the commission unconstitutionally applied Indiana's vacation statute to the property owners. Under Indiana law, a restrictive covenant is a constitutionally protected property interest. Because the commission took away the property owners' ability to enforce this interest, their property right was taken by state action. Further, the commission did not follow legislative determinations of what constitutes a valid public use and did not provide any facts that demonstrate that the covenant vacation is substantially related to a public interest. The commission therefore violated the public use requirement of the Takings Clause by vacating the restrictive covenant for a private purpose. Indiana's vacation statute, however, is not unconstitutional on its face. The statute can be constitutionally applied, and the U.S. Constitution does not prohibit specific delegations of state legislative power. Daniels v. Area Plan Commission of Allen County, No. 01-1158 (7th Cir. Sept. 11, 2002) (42 pp.).

PROSECUTORIAL MISCONDUCT, JUDGE-SHOPPING:

A district court denied a petition for habeas corpus relief submitted by an individual who was convicted for a variety of charges stemming from his involvement in a private waste disposal cartel. The individual argued that he was denied his due process rights by the prosecutor's alleged selection of the judge who presided over his case. The individual claimed that the prosecutor selected the judge because of her allegedly pro-prosecution bias. The practice of judicial assignment at the time of the individual's case permitted prosecutors to engage in judge-shopping. Although prosecutorial judge-shopping gives the appearance of partiality, the appearance of partiality alone is not grounds for habeas corpus relief. Rather, a showing of actual prejudice is required. Numerous court decisions that have examined a judicial assignment scheme similar to the one in question here have held that a petitioner must show actual prejudice in order to warrant relief. Here, the individual did not suffer actual prejudice. He was not stripped of his right to a bench trial, he was not prejudiced during arraignment, and he was not prejudiced by the judge's pretrial rulings. Nor was he prejudiced by the judge's sentencing. The individual also argued that a jury instruction given by the judge diluted the standard of proof beyond a reasonable doubt. The judge's instruction, however, was not improper. The court, therefore, denies the individual's petition. Francolino v. Kuhlman, No. 01 Civ. 3882(AGS) (S.D.N.Y. Sept. 3, 2002) (Schwartz, J.) (44 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 amended the NESHAPs for radionuclides other than radon-222 and radon-220 from facilities owned or operated by DOE and from federal facilities other than NRC licensees and not covered by Subpart H. 67 FR 57159 (9/9/02).
  • EPA revised the geographical boundaries of three air quality control regions (AQCRs) in Louisiana: the Southern Louisiana-Southeast Texas AQCR; the Shreveport-Texarkana-Tyler AQCR; and the Monroe-El Dorado AQCR. 67 FR 57332 (9/10/02).
  • DOE announced the availability of reports summarizing the agency's compliance with the annual alternative fuel vehicle acquisition requirement for its fleet for fiscal years 1999 and 2000. 67 FR 57419 (9/10/02).
  • EPA removed the new source performance standards (NSPS) sections from the South Dakota SIP because the Agency previously delegated to the state the authority to implement and enforce the NSPS program. 67 FR 57520 (9/11/02).
  • EPA announced that it has designated one new equivalent method for measuring concentrations of sulfur dioxide in ambient air and one new equivalent method for measuring concentrations of ozone in ambient air. 67 FR 57811 (9/12/02).
  • EPA announced the applicability determinations, alternative monitoring decisions, and regulatory interpretations that it has made under the new source performance standards, NESHAPs, and the stratospheric ozone protection program. 67 FR 58028 (9/13/02).

HAZARDOUS & SOLID WASTES:

  • EPA entered into a proposed administrative order on consent under CERCLA §122(h) in connection with the Jasper County/Tri-State Mining Area Site, Operable Unit No. 1, in Jasper County, Missouri. 67 FR 58051 (9/13/02).
  • EPA entered into a second de minimis settlement under CERCLA §122(g) in connection with the Beede Waste Oil Superfund site in Plaistow, New Hampshire. 67 FR 57426 (9/10/02).
  • EPA approved revisions to Oregon's hazardous waste program under RCRA. 67 FR 57335 (9/10/02).
  • EPA proposed to approve revisions to Minnesota's hazardous waste program under RCRA. 67 FR 57191 (9/9/02).

PESTICIDES:

  • EPA issued a list identifying pests of significant public health importance pursuant to FIFRA §28(d). 67 FR 57597 (9/11/02).

RADIOACTIVE WASTE:

  • EPA will be holding public hearings in connection with its proposal to revise the "Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant's Compliance with the Disposal Regulations." 67 FR 57189 (9/9/02).
  • EPA announced the availability of DOE documents for public comment: "CCP-PO-001--Revision 4, May 31, 2002--CCP Transuranic Waste Characterization Quality Assurance Project Plan" and "CCP-PO-002--Revision 4, May 31, 2002--CCP Transuranic Waste Certification Plan." 67 FR 57190 (9/9/02).

WATER QUALITY:

  • EPA proposed technology-based effluent limitations guidelines and new source performance standards for the concentrated aquatic animal production point source category. 67 FR 57871 (9/12/02).
  • EPA announced the availabilty of a draft guidance for the prevention and control of urban runoff. 67 FR 57228 (9/9/02).
  • NOAA announced a consistency apppeal under CZMA from New York's objection to the Millenium Pipeline Company's proposed natural gas pipeline that would extend from the Canadian border in Lake Erie and cross the Hudson River. 67 FR 57220 (9/9/02).

WILDLIFE:

  • The National Marine Fisheries Service issued a final rule that allows the transfer of incidental take permits and enhancement of survival permits associated with Safe Harbor Agreements with Assurances or Candidate Conservation Agreements with Assurances. 67 FR 57970 (9/13/02).
  • FWS designated critical habitat for the northern Great Plains breeding population of the piping plover under the ESA. 67 FR 57637 (9/11/02).
  • FWS, in cooperation with the Rosebud Sioux Tribe, the U.S. Forest Service, and the U.S. Bureau of Indian Affairs, proposed to reintroduce endangered black-footed ferrets into south-central South Dakota on the Rosebud Sioux Reservation. 67 FR 57558 (9/11/02).

WORKER SAFETY:

  • OSHA revised the construction industry safety standards to require that traffic control signs, signals, barricades, or devices protecting workers conform to Part VI of either the 1988 Edition of the Federal Highway Administration (FHwA) Manual on Uniform Traffic Control Devices (MUTCD), with 1993 revisions, or the Millennium Edition of the FHwA MUTCD, instead of the American National Standards Institute D6.1-1971, Manual on Uniform Traffic Control Devices for Streets and Highways. 67 FR 57722 (9/12/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Centel Corp., No. 02-4090 (D.S.D. Aug. 30, 2002). A settling CERCLA, CWA, and Oil Pollution Act defendant must pay $1.9 million in past U.S. response costs incurred at the Fawick Park site in Sioux Falls, South Dakota, and must waive any claims it might have against the United States relating to removal activities at the site. 67 FR 57852 (9/12/02).
  • United States v. Sprague Energy Corp., No. 7:01-CV-14-F(1) (E.D.N.C. Aug. 29, 2002). Settling CERCLA defendants that failed to comply with the terms of an administrative order on consent must pay $7 million in past U.S. response costs incurred at the Old ATC Refinery site in Wilmington, North Carolina, and in penalties and punitive damages. 67 FR 57852 (9/12/02).

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

THE CONGRESS

COMMITTEE ACTION

  • S. 1028 (land conveyance; water resources) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-253, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would direct the Secretary of the Interior to convey certain parcels of land acquired for the Blunt Reservoir and Pierre Canal Features of the initial stage of the Oahe Unit, James Division, South Dakota, to the Commission of Schools and Public Lands and the Department of Game, Fish, and Parks of the State of South Dakota for the purpose of mitigating lost wildlife habitat, on the condition that the current preferential leaseholders shall have an option to purchase the parcels from the Commission.
  • S. 1638 (national parks; French Colonial Heritage Area) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-254, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would authorize the Secretary of the Interior to study the suitability and feasibility of designating the French Colonial Heritage Area in the State of Missouri as a unit of the National Park System.
  • S. 1944 (Gunnison National Park) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-255, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would revise the boundary of the Black Canyon of the Gunnison National Park and Gunnison Gorge National Conservation Area in the State of Colorado.
  • S. 2519 (national parks; Coltville Site) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-256, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would direct the Secretary of the Interior to conduct a study of Coltsville in the State of Connecticut for potential inclusion in the National Park System.
  • S. 2571 (Santa Monica Mountains National Recreation Area) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-157, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would direct the Secretary of the Interior to conduct a special resources study to evaluate the suitability and feasibility of establishing the Rim of the Valley Corridor as a unit of the Santa Monica Mountains National Recreation Area
  • H.R. 37 (national trails) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-259, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would amend the National Trails System Act to update the feasibility and suitability studies of four national historic trails and provide for possible additions to such trails.
  • H.R. 38 (Homestead National Monument) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-160, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would provide for additional lands to be included within the boundaries of the Homestead National Monument of America in Nebraska.
  • H.R. 1776 (national heritage areas; Buffalo Bayou) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-262, 148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would authorize the Secretary of the Interior to study the suitability and feasibility of establishing the Buffalo Bayou National Heritage Area in west Houston, Texas.
  • H.R. 1814 (national trails) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-263 (daily ed. Sept. 9, 2002). The bill would amend the National Trails System Act to designate the Metacomet-Monadnock-Mattabesett Trail extending through western Massachusetts and central Connecticut for study for potential addition to the National Trails System.
  • H.R. 1925 (national parks; Waco Mammoth Site) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-264, 1148 Cong. Rec. S8383 (daily ed. Sept. 9, 2002). The bill would direct the Secretary of the Interior to study the suitability and feasibility of designating the Waco Mammoth Site Area in Waco, Texas, as a unit of the National Park System.
  • H.R. 3880 (CAA; transportation conformity) was reported by the House Committee on Energy and Commerce. H. Rep. No. 107-649, 148 Cong. Rec. H6128 (daily ed. Sept. 9, 2002). The bill would provide a temporary waiver from certain transportation conformity requirements and metropolitan transportation planning requirements under the CAA and under other laws for certain areas in New York where the planning offices and resources have been destroyed by acts of terrorism..
  • H.R. 5039 (water resources) was reported by the House Committee on Resources. H. Rep. No. 107-648, 148 Cong. Rec. H6128 (daily ed. Sept. 9, 2002). The bill would direct the Secretary of the Interior to convey title to certain irrigation project property in the Humboldt Project, Nevada, to the Pershing County Water Conservation District, Pershing County, Lander County, and Nevada.

BILLS INTRODUCED

  • S. 2920 (Baucus, D-Mont.) (hazardous fuels) would expedite procedures for hazardous fuels reductions activities. 148 Cong. Rec. S8426 (daily ed. Sept. 10. 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • H.R. 5345 (Hunter, R-Cal.) (Native American lands) would establish a moratorium on approval by the Secretary of the Interior of relinquishment of a lease of certain tribal lands in California. 148 Cong. Rec. H6129 (daily ed. Sept. 9, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5357 (Bereuter, R-Neb.) (USDA) would provide for the review of agriculture mergers and acquisitions by the USDA and to outlaw unfair practices in the agriculture industry. 148 Cong. Rec. H6129 (daily ed. Sept. 9, 2002). The bill was referred to the Committees on Agriculture, and Judiciary.
  • H.R. 5358 (Inslee, D-Wash.) (wildfires) would ensure that funds made available to implement the National Fire Plan on National Forest System lands and other public lands are used to reduce the threat of catastrophic wildfire in the wildland-urban interface, would support community and private land wildfire control efforts, and would require that receipts generated from hazardous fuels reduction projects are returned to the Treasury. 148 Cong. Rec. H6171 (daily ed. Sept. 10, 2002). The bill was referred to the Committees on Resources, and Agriculture.

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 press gave thumbs down to the World Summit on Sustainable Development (WSSD), claiming that it accomplished little. "The only genuine consensus reached at the summit was that it should probably be the last mega-conference of its kind," the Australian said. "It's not worth the estimated 100 million U.S. dollars to get that kind of resolution, but it's a start." "The very concept of attempting to answer so many life-threatening questions in such a cacophony of divergent interests almost led to the doom of summit," said Gulf Today. "Success would have come only if the proposals had been made binding on governments." "The money wasted in Johannesburg would be enough for several poverty alleviation programs," said Ukrayina Moloda. "Nations such as the United States, Australia and Canada, with the assistance of many international companies, managed to undermine proceedings," the South China Morning Post said. "They ensured that accords were watered down to the point of making them ineffective or meaningless." "The plan of implementation was created, but it did not contain any new promises that will result in increased aid and measures to encourage exports from underdeveloped nations," Asahi Shimbun said. And the New York Times asserted that "Washington missed an opportunity to display the kind of leadership that would help it in its other international pursuits."
  • Senior management of the World Bank issued a report disagreeing with an internal analysis which cautioned that a proposed 1,070 kilometer oil pipeline between Chad and Cameroon would have adverse environmental impacts. "Management believes that the bank has made exceptional efforts to apply its policies and procedures and to pursue concretely its mission statement," the report stated. "Given these actions, management does not agree that, as a result, the requestors' rights or interests have been, or will be, directly and adversely" affected by the proposed project. The Bank would put up $140 of the $4 billion needed for construction.
  • A comprehensive assessment of environmental conditions in Afghanistan began. See http://www.unep.org/Documents/Default.asp?DocumentID=264&ArticleID=3129
  • Australia commenced an effort to reduce international poaching of the Patagonian toothfish--Chilean sea bass--asking that it be listed as endangered by the United Nations.
  • Delegates from 47 signatory countries to the 1959 Antarctic Treaty met in Warsaw. And a meeting on protection of elephants was held in Nairobi under the auspices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. See http://www.cites.org/eng/news/calendar.shtml
  • World Food Program head James Morris said that Zambia was allowing milled genetically modified food (GMF) to be distributed in refuge camps. Unmodified corn is being obtained from South Africa. Zambian Home Affairs Minister Luckson Mapushi said Morris was incorrect. "The position of government rejecting GMF was a national one which applies to all categories of persons living in Zambia," Mapushi said. "This applies to all refugees, including those living in camps and receiving food aid from the WFP." See http://www.iol.co.za/index.php?click_id=84&art_id=qw1031734980642B251&set_id=1

CLIMATE CHANGE:

  • The British Antarctic Survey, reporting to the British Association for the Advancement of Science, said that thousands of species of Antarctic marine animals were threatened by global warming. "We are talking about thousands of species," scientist Lloyd Peck said. "If the models are correct, and if the temperatures do get there, we are likely to lose at least large populations of these species--scallops, bivalve mollusks, the giant isopods, the giant sea spiders. In fact, every species we have looked at so far falls into that category." An increase in ocean water temperature of 3 degrees Celsius is, according to the researchers, quite possible and would trigger massive marine loss. See http://www.guardian.co.uk/globalwarming/story/0,7369,789030,00.html
  • Thai Science, Technology and Environment Minister Sonthaya Khunpleum said that Thailand had decided not to sell carbon credits to developed countries pursuant to the Kyoto Protocol. "The government does not mean to shut the door on the mechanism," Sonthaya said. "However, we believe that Thailand has the potential to implement the projects ourselves and has no need to rely on rich countries." "The prime minister said Thailand would absolutely refuse to let anyone use us to claim carbon credits," said government spokesman Yongyut Tiyapairat. After the decision was criticized by the U.N. Environment Program and others, the government announced that it established a committee to examine the issue. See http://news.xinhuanet.com/english/2002-09/12/content_559091.htm
  • The Australian newspaper, in a piece written by an editorial writer, endorsed Kyoto ratification. See http://www.theaustralian.news.com.au/common/story_page/0,5744,5064027%255E16946,00.html.
  • Victoria and New South Wales agreed to increase political efforts to secure ratification. BP and BHP Billiton said they supported ratification. See http://news.com.au/common/story_page/0,4057,5044169%255E421,00.html
  • Alexander Belyakov, chairman of the Russian Duma natural resources committee, said that Russia would benefit economically from ratification.
  • 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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