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Weekly Update Volume 32, Issue 33

11/25/2002

LITIGATION

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

CERCLA §113, CONTRIBUTION, PRPs:

The Fifth Circuit reversed a district court holding that a PRP that had not been subject to a CERCLA §§106 or 107(a) action could not bring a CERCLA §113 contribution claim against another PRP to recover response costs incurred at a contaminated site in Texas. After prodding by the state environment agency but before any EPA CERCLA §§106 or 107(a) action, the PRP owner of the site began to clean up the property. The owner then sought contribution from the previous owner. The district court held that the current owner could not seek contribution, and the owner appealed. A divided panel of the Fifth Circuit affirmed the district court after reading the CERCLA §113(f)(1) phrase "during or following any civil action under §§106 or 107(a)" as a prerequisite to bringing a contribution action. The owner sought and received en banc review. The en banc majority concluded that CERCLA §113(f)(1) does not constrain a PRP from suing other PRPs for contribution only during or following a §§106 or 107(a) action. The plain meaning of §113(f)(1) does not limit contribution actions only to those circumstances where a §§106 or 107(a) action has been filed. CERCLA §113(f)(1) provides that a contribution action "may" be brought after a §§106 or 107(a) action, not that it shall only be brought after such actions. Further, numerous other circuit court decisions allow a §113 contribution action in the absence of a §§106 or 107(a) action. Moreover, requiring a §§106 or 107(a) action as a prerequisite to a §113 contribution action would hinder CERCLA's policy goals by slowing the reallocation of costs and by discouraging voluntary cleanup activities. In addition, the legislative history of CERCLA does not clearly address the prerequisites for a contribution action. Aviall Services, Inc. v. Cooper Industries, Inc., No. 00-10197 (5th Cir. Nov. 14, 2002) (40 pp.).

CERCLA, CONTRACTS, INDEMNITY, ANTI-DEFICIENCY ACT (ADA):

The Court of Federal Claims held that the ADA ban on open-ended indemnification clauses in government contracts prohibited a manufacturer from recovering from the government CERCLA response costs incurred at an ordnance plant the manufacturer built and operated for the government during World War II. The manufacturer entered a contract with the government to produce ordnance for the war, and that contract included reimbursement and indemnification clauses. Although the supplement terminating that contract could not be produced by either party, evidence from nine secondary sources indicated that the supplement included a preservation of reimbursement and indemnification clauses. The reimbursement and indemnification clauses were drafted broadly enough to be properly interpreted to place the risk of unknown liabilities on the government, including liability for costs incurred pursuant to CERCLA. Further, since there are no allegations that the events causing the manufacturer's liability occurred as a result of activities conducted at any other time than during operation of the plant on behalf of the government, it must be assumed that the CERCLA liability arises out of or in connection with performance of the work under the contract. However, the ADA provides that an officer of the United States may not involve the government in a contract or obligation for the payment of money before an appropriation is made or unless authorized by law. The open-ended indemnification clause in the manufacturer's contract for operation of the ordnance works is, therefore, unenforceable because it has no appropriated funding or express statutory authority. Likewise, the ADA relates to both the reimbursement and indemnification clauses in the contract. E.I. DuPont de Nemours & Co. v. United States, No. 99-101 C (Fed. Cl. Nov. 13, 2002) (22 pp.).

WILDERNESS ACT, NEPA, GRAZING, PREDATOR CONTROL:

The Ninth Circuit affirmed a district court decision that the U.S. Animal and Plant Health Inspection Service and the U.S. Forest Service did not violate the Wilderness Act or NEPA by killing mountain lions in the Santa Teresa Wilderness in Arizona in order to protect private livestock in the wilderness area. The Wilderness Act and the Arizona Wilderness Act do not expressly prohibit predator control in wilderness areas. The Acts do, however, allow all preexisting grazing operations to continue in areas later designated wilderness, and private livestock grazing implicitly includes operations such as lethal predator control to support grazing. Therefore, the court defers to the Forest Service's conclusion that the Wilderness Act authorizes predator control as one of the flexible opportunities to manage grazing. Moreover, congressional grazing guidelines do not address the conflict between predator control and grazing in wilderness areas. Further, the Forest Service manual's purported bar on predator control does not control because the manual does not have the force of law and is not entitled to deference. In addition, the Forest Service used existing environmental assessments to consider the effects of predator control in the Santa Teresa Wilderness to satisfy NEPA. Such reliance was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Forest Guardians v. Animal & Plant Health Inspection Service, No. 01-15239 (9th Cir. Oct. 31, 2002) (6 pp.).

CONSTITUTIONAL LAW, TEMPORARY TAKINGS, MINING AND GAS LEASES, WASTE ISOLATION AND PILOT PLANT (WIPP):

The Court of Federal Claims held that in the wake of the holding in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S. Ct. 1465, 32 ELR 20627 (2002), the BLM's denial from 1994 to 1998 of applications by oil lease holders to drill wells in the area of the WIPP was not a taking requiring compensation. Before the Tahoe decision, the court had found the BLM's denial of the drilling applications to have been a temporary taking requiring compensation of $1,137,808. Tahoe, however, required the application of the temporary takings analysis of Penn Central Transportation Co. v. New York City, 438 U.S. 104, 8 ELR 20528 (1978), in all takings cases where there is anything less than a complete elimination of value. Under the Penn Central factors, the oil lease holders had reasonable investment-backed expectations of drilling on the leased lands. Moreover, the BLM's denial of the drilling applications denied the lease holders economic use of their land, but not to the degree that the court had determined in its original holding. Using the economic impact test, the court determined that the cost of the delay was only five percent of the economic value of the leases. However, the BLM denied the applications in order to determine if drilling in the vicinity of the WIPP posed a serious threat to public health and welfare. Where the purpose of a regulation is to prevent injury to the public, compensation for a taking is not required. Therefore, although the leaseholders had investment-backed expectations, the importance of the government action to public health and safety and the negligible economic impact negate the leaseholders' takings claim. Bass Enterprises Production Co. v. United States, No. 95-52L (Fed. Cl. Nov. 13, 2002) (11 pp.).

MINERAL RIGHTS, EASEMENTS, PIPELINE RELOCATION:

The Tenth Circuit held that the owner of surface and mineral property rights that wishes to mine areas underlying existing gas pipelines owned by a gas pipeline company must pay for that company's relocation of its pipelines. The pipeline company holds pipeline easements across the property in question, and a district court held that the easements were sufficient to give the pipeline company the right to require the mineral rights owner to pay for relocating the pipelines. The easements, however, do not explicitly require the mineral rights owner to pay for the relocation because the pipeline company is using the pipelines to transport gas belonging to a separate corporate entity, an arrangement not contemplated by the express terms of the easements. Nevertheless, because the parties have had extensive prior dealings over a number of years in which the mineral rights owner has acquiesced to the use of the pipelines to transmit gas owned by companies other than the pipeline company, the mineral rights owner has waived any claim to invoke the easement language alone as a bar to paying for the cost of relocating the pipelines. The district court's grant of summary judgment in favor of the pipeline company was therefore affirmed. Hazard Coal Corp. v. Kentucky West Virginia Gas Co., No. 01-5179 (6th Cir. Nov. 13, 2002) (8 pp.).

INSURANCE, POLLUTION LIABILITY, USTs:

The Sixth Circuit affirmed a district court decision that by failing to notify its insurer of a suit and subsequent judgment against it, a Michigan UST removal company did not trigger coverage or indemnification under the policy. The company argued that the district court should not have granted summary judgment because a question of fact exists as to whether a special relationship arose between the company and its insurance agency sufficient to bind the insurer to the representations of the agent. According to the company, its insurance agent represented that the insurer provided continuous coverage without an extended discovery rider. Under state law, an insurance agent whose principal is an insurance company has no duty to advise a potential insured about coverage limits, except in cases where a special relationship arises between the agent and the insured. A special relationship between an insurance agent and a policy holder only exists when certain conditions are met. Here, however, a special relationship does not exist because the insurance agent was an independent agent, and independent agents are the agent of the insured, not the insurer. Thus, the company is unable to raise a genuine issue of fact sufficient to show a special relationship that would bind the insurer to any representation of coverage. Boerman v. American Empire Surplus Lines Insurance Co., No. 01-2547 (6th Cir. Nov. 1, 2002) (3 pp.).

INSURANCE, FIRST-PARTY INSURANCE, ASBESTOS, "PHYSICAL LOSS OR DAMAGE":

The Third Circuit affirmed a district court holding that a port authority failed to introduce evidence of physical loss or damage necessary to recover the expense of asbestos abatement at various buildings and structures under its first party insurance policy. The authority's first-party insurance policies insure it for all "physical loss or damage" occurring during the policy period. When the presence of large quantities of asbestos in the air of a building is such as to make the structure uninhabitable and unusable, there has been a distinct loss to its owner. However, if asbestos is present in components of a structure, but is not in such form or quantity as to make the building unusable, the owner has not suffered a loss. According to the district court, a physical loss or damage under the authority's policy occurs only if an actual release of asbestos fibers from asbestos containing materials has resulted in contamination of the property such that its function is nearly eliminated or destroyed, the structure is made useless or uninhabitable, or there exists an imminent threat of release of a quantity of asbestos fibers that could cause such loss of utility. The authority failed to produce evidence concerning the manifestation of an imminent threat of asbestos contamination, and the inability to do so forecloses any viable claim for expenses under the first-party insurance policy. Port Authority of New York & New Jersey v. Affiliated FM Insurance Co., No. 01-2513 (3d Cir. Nov. 14, 2002) (14 pp.).

CAA, COMMERCE CLAUSE, ASBESTOS REMOVAL, SENTENCING:

The Fifth Circuit held that the CAA's asbestos work practice standards and asbestos reporting provision do not violate the Commerce Clause, and, therefore, an individual's conviction for violating the work practice standards and reporting provision is affirmed. The individual purchased a building in Houston, Texas, that the seller disclosed contained asbestos. Instead of hiring a licensed company to remove the asbestos, the individual hired unlicensed workers that did not comply with the CAA's asbestos work practice standards or the asbestos reporting requirements. After an explosion at the building, a district court convicted the individual of failure to comply with the asbestos work standards and failure to give notice of an asbestos release, and he was sentenced to 27-33 months in prison. The individual appealed arguing that the CAA violated the Commerce Clause. However, although the CAA's asbestos work practice standards and reporting requirements are intrastate activities, they substantially impact interstate commerce under the aggregate effects test. Asbestos removal is a commercial activity, as was the individual's purchase and renovation of a building containing asbestos. The CAA does not contain any kind of jurisdictional element that restricts EPA's authority to promulgate work practice standards and reporting requirements, and the standards and requirements themselves do not have such a jurisdictional element. The individual's activities once aggregated also posed a threat to the interstate real estate market by providing the individual a commercial advantage and by limiting the commercial opportunities for asbestos removal companies. Further, the district court properly instructed the jury on the jurisdictional element of the Commerce Clause and on the scienter requirements for violation of the CAA asbestos work practice standards and reporting requirements. The district court, however, erred by refusing to grant the sentence enhancements due to the individual's repeated asbestos discharges to the environment and leadership of an extensive criminal activity. The evidence conclusively proves that there was a discharge of asbestos to the environment, and because the individual supervised numerous other participants in the asbestos removal, he was an organizer or leader of an extensive criminal activity. United States v. Ho, No. 01-20460 (5th Cir. Oct. 31, 2002) (22 pp.).

CAA, NOISE CONTROL ACT (NCA), CITIZEN SUITS:

A district court held that it lacked jurisdiction to hear residents' CAA and NCA claims against a company that was extracting earth crust materials, at times through the use of explosives, to extract land fill for commercial use. The residents failed to give notice to the company prior to commencing their suit. Their complete failure to comply with, or even attempt to comply with, the notification requirements mandated by the citizen suit provisions of the CAA and NCA indicates that the residents did not intend to assert claims arising under federal law. In addition, the citizen suit provisions of the CAA and NCA only provide for injunctive remedies. Because the residents sought monetary damages, their complaint is inconsistent with the remedies and claims available under the CAA and NCA. The court, therefore, dismissed the residents' CAA and NCA claims. And because the court dismissed the residents' federal claims, it declined to exercise supplemental jurisdiction over their claims brought under Puerto Rico law. Maysonet v. Drillex, S.E., No. CIV. 00-2420(SEC) (D.P.R. Oct. 30, 2002) (Casellas, J.) (4 pp.).

ESA, CRITICAL HABITAT DESIGNATION, ECONOMIC IMPACT ANALYSES:

A district court vacated and remanded two FWS rules designating critical habitat for the arroyo southwestern toad and the Riverside fairy shrimp due to the FWS' faulty economic analyses for designating the habitats. After the FWS promulgated the rules, the Tenth Circuit issued its opinion in New Mexico Cattle Growers Ass'n v. United States Fish & Wildlife Service, 248 F.3d. 1277, 31 ELR 20614 (10th Cir. 2001), which held that the FWS baseline approach for critical habitat designations was erroneous. The baseline approach only examines economic impacts solely attributable to the critical habitat designation for the species, but not economic impacts attributable to different causes. In New Mexico Cattle Growers, the Tenth Circuit required a full economic analysis of all economic impacts of a critical habitat designation, regardless of whether those impacts are attributable coextensively to other causes. In light of New Mexico Cattle Growers, the FWS and the building associations that challenged the rules designating the two species moved to vacate and remand the critical habitat designations due to their use of the baseline approach, but intervening environmental groups opposed the vacatur and remand. Remand, however, is required since the critical habitat designations for both species were based on arbitrary and capricious economic analyses. All parties agree that the FWS erred by using the baseline approach and not analyzing impacts coextensively attributable to other causes. Moreover, vacatur is appropriate. The FWS' use of the baseline approach constituted serious substantive error, and vacating the critical habitat designations is unlikely to compromise the conservation needs of the two species. Further, the intervenors identified no specific threat to the two species or the designated critical habitat. Therefore, the two rules are vacated and remanded to the FWS, which has 21 months to complete the new critical designations. Building Industry Legal Defense Foundation v. Norton, No. 01-2311 (JDB) (D.D.C. Oct. 30, 2002) (Bates, J.) (18 pp.).

CWA, STANDING, INJURY:

A district court held that two individuals lacked standing to challenge the U.S. Army Corps of Engineers' issuance of a permit to a developer for the construction of a sewer line from a housing development to a county pumping station. The individuals previously challenged the Corps' issuance to the county of an individual construction permit for a sewage interceptor and nationwide permits for construction of a wastewater treatment system. The court set aside the permits as arbitrary and capricious. The county revised its permit application, omitting the sewage interceptor. The Corps issued nationwide permits for the construction, and the individuals again challenged their issuance. Soon after, the developer, allegedly acting under an agreement with the county, applied to the Corps for a permit to build a sewer line from its housing development to the current wastewater treatment system, with a quarter of the sewer to lie along the easement originally intended for the sewage interceptor. If the Corps issued the county permits for a new wastewater treatment system, the final effluent from the development would discharge to a different stream. The Corps issued the developer's permit, and the individuals challenged its issuance. Thereafter, the court determined that the nationwide permits issued for the county's second application were arbitrary and capricious and remanded the case to the Corps. The developer then moved to dismiss the individuals' challenge for lack of standing. The individuals failed to allege an imminent injury necessary for standing. They alleged that the developer's permit will allow discharge of effluent from the housing project to a stream bordering their farm, but this injury cannot occur unless the Corps, on remand, issues a permit for the county's new wastewater system. Under the current system, the development's effluent would not discharge to the stream impacting the individuals' farm. Although the Corps may issue the relevant permits for the wastewater system, the court cannot presume that such permits will be issued. Thus, the complained of injury is not imminent. Likewise, the individuals' complained of cause of the injury is not the developer's permit, but the permit that the Corps may issue to the county for the wastewater system. Therefore, the individuals failed to satisfy the causation requirement of standing. Moreover, the individuals' requested relief of setting aside the developer's permit would not impact the potential issuance of the county permit for the wastewater treatment system. Thus, setting aside the developer's permit would not redress the alleged harm to the stream bordering the individuals' farm. In addition, the individuals cannot amend their original complaint to attempt to add an injury sufficient for standing. Crutchfield v. United States Army Corps of Engineers, No. CIV.A. 3:02CV594 (E.D. Va. Oct. 31, 2002) (Payne, J.) (15 pp.).

TAKINGS, JUST COMPENSATION:

The New York Court of Appeals held that the proper method of determining just compensation for the state's temporary regulatory taking of 39 apartments requires not only the sale value of the property, but also interest on the sale value. In 1985, the owner of the 39 apartments planned to convert the apartments to condominiums after terminating a hospital's lease of the apartments due to noncompliance with the state rent control two-year residency and landlord subleases approval requirements. Before termination, a state law was enacted exempting hospitals from the rent control residency and approval requirements. In 1995, the hospital exemption was invalidated as a law with no legitimate state interest that was intended only to benefit the hospital leasing the apartments. The apartment owner subsequently sought and received a judgment that a taking had occurred. In determining compensation, the lower court determined that the best use value of the apartments would be sale as condominiums, and the compensation would be the difference between the value of the sale of the apartments as condominiums in 1985 as opposed to their sale value in 1995. The lower court would not award interest on the difference in sale value. However, both the state and federal constitutions require that owners receive just compensation when private property is taken for public use. Just compensation puts the property owner in the same relative position it would have enjoyed had the taking not occurred. Moreover, it is assumed that a person who receives the monetary value of the property as of the date of the taking has a beneficial use for those funds, and interest is a measure of the rate of the return on the property owner's money had there been no delay in payment. Thus, just compensation requires the apartment owner to be awarded interest on the 1985 sale proceeds. 520 East 81st Street Associates v. State, No. 134 (N.Y. Nov. 14, 2002) (9 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 added 23 area source categories of hazardous air pollutants to the previous lists developed under the Integrated Urban Air Toxics Strategy. 67 FR 70427 (11/22/02).
  • EPA entered into a proposed consent decree in American Lung Ass'n v EPA, No. 02-2239 (D.D.C.), under CAA §113(g) that establishes a time frame for EPA to promulgate designations for the 8-hour ozone NAAQS. 67 FR 70070 (11/20/02).
  • EPA delegated authority to Iowa, Kansas, Missouri, Nebraska, Lincoln-Lancaster County, Nebraska, and Omaha, Nebraska, for implementation and enforcement of new source performance standards, NESHAPs, and maximum achievable control technology. 67 FR 70170 (11/21/02).

HAZARDOUS & SOLID WASTES:

  • EPA proposed to enter into a de minimis administrative order on consent under CERCLA §122(g) in connection with the Interstate Lead Company Superfund site in Leeds, Alabama. 67 FR 69528 (11/18/02).
  • EPA proposed to enter into an administrative order on consent under CERCLA §122(g) in connection with the Prestige Chemical Company Superfund site in Senoia, Georgia. 67 FR 69528 (11/18/02).
  • EPA approved revisions to Georgia's hazardous waste program under RCRA. 67 FR 69690 (11/19/02).

NATIONAL FORESTS:

  • The Forest Service issued an interim rule to provide authority for Regional Foresters to authorize contracting officers to extend the contract performance time on certain National Forest System timber sale contracts to facilitate the harvest of damaged timber from private or other non-National Forest System lands. 67 FR 70165 (11/21/02).

SMCRA DISAPPROVAL:

  • OSM disapproved an amendment to Kentucky's regulatory program under SMCRA. 67 FR 70007 (11/20/02).

WATER QUALITY:

  • EPA approved several test procedures for measuring the toxicity of effluents and receiving waters. 67 FR 69951 (11/19/02).

WETLANDS:

  • DOE proposed to revise its floodplain and wetland environmental review requirements to add flexibility and remove unnecessary procedural burdens. 67 FR 69480 (11/18/02).

WILDLIFE:

  • National Marine Fisheries Service (NMFS) determined that listing the southern population of bocaccio, a fish, as a threatened species under the ESA is not warranted at this time. 67 FR 69704 (11/19/02).
  • NMFS received a petition to revise the critical habitat for the endangered western North Atlantic right whale. 67 FR 69708 (11/19/02).
  • NMFS announced that it received a petition to designate a group of killer whales as a depleted stock under the Marine Mammal Protection Act and is soliciting comments on the petition. 67 FR 70407 (11/22/02).

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

THE CONGRESS

PUBLIC LAWS

  • H.R. 5200 (public lands; Clark County, Nevada), which establishes wilderness areas, promotes conservation, improves public land, and provides for high quality development in Clark County, Nevada, was signed into law by President Bush on November 6, 2002. Pub. L. No. 107-282, 148 Cong. Rec. D1124 (daily ed. Nov. 13, 2002).

CHAMBER ACTION

  • S. 198 (noxious and invasive weeds), which would require the Secretary of the Interior to establish a program to provide assistance through states to eligible weed management entities to control or eradicate harmful, nonnative weeds on public and private land, was passed by the Senate. 148 Cong. Rec. S11639 (daily ed. Nov. 19, 2002).
  • S. 606 (EPA), which would provide additional authority to the EPA Office of Ombudsman, was passed by the Senate. 148 Cong. Rec. S11656 (daily ed. Nov. 19, 2002).
  • S. 990 (Pittman-Robertson Wildlife Restoration Act), which would amend the Pittman-Robertson Wildlife Restoration Act to improve the provisions relating to wildlife conservation and restoration programs, was passed by the House. 148 Cong. Rec. H8912 (daily ed. Nov. 14, 2002).
  • S. 1816 (land conveyance), which would provide for the continuation of higher education through the conveyance of certain public lands in Alaska to the University of Alaska, was passed by the Senate. 148 Cong. Rec. S11647 (daily ed. Nov. 19, 2002).
  • S. 1907 (land exchange), which would direct the Secretary of the Interior to convey certain land to the city of Haines, Oregon, was passed by the House, clearing the measure for the President. 148 Cong. Rec. H8912 (daily ed. Nov. 14, 2002).
  • S. 1946 (national trails), which would amend the National Trails System Act to designate the Old Spanish Trail as a National Historic Trail, was passed by the House, clearing the measure for the President. 148 Cong. Rec. H8912 (daily ed. Nov. 14, 2002).
  • S. 2063 (land exchange), which would authorize the Secretary of Agriculture to sell or exchange all or part of certain administrative sites and other land in the Ozark-St. Francis and Ouachita National Forests and to use funds derived from the sale or exchange to acquire, construct, or improve administrative sites, was passed by the Senate. 148 Cong. Rec. S11799 (daily ed. Nov. 20, 2002).
  • S. 2222 (land conveyance), which would resolve certain conveyances and provide for alternative land selections under the Alaska Native Claims Settlement Act related to Cape Fox Corporation and Sealaska Corporation, was passed by the Senate. 148 Cong. Rec. S11643 (daily ed. Nov. 19, 2002).
  • S. 2556 (water resources; conveyance), which would authorize the Secretary of the Interior to convey certain facilities to the Fremont-Madison Irrigation District in Idaho, was passed by the Senate. 148 Cong. Rec. S11645 (daily ed. Nov. 19, 2002).
  • S. 2670 (wildfire control), which would establish institutes to conduct research on the prevention of, and restoration from, wildfires in forest and woodland ecosystems of the interior West, was passed by the Senate. 148 Cong. Rec. S11641 (daily ed. Nov. 19, 2002).
  • S. 2872 (hydroelectric power), which would reinstate and extend the deadline for commencement of construction of a hydroelectric project in Illinois, was passed by the Senate. 148 Cong. Rec. S11649 (daily ed. Nov. 19, 2002).
  • H.R. 37 (national trails), which would amend the National Trails System Act to update the feasibility and suitability studies of 4 national historic trails and provide for possible additions to such trails, was passed by the Senate. 148 Cong. Rec. S11637 (daily ed. Nov. 19, 2002).
  • H.R. 451 (Mount Nebo Wilderness Area), which would make certain adjustments to the boundaries of the Mount Nebo Wilderness Area, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11649 (daily ed. Nov. 19, 2002).
  • H.R. 706 (land conveyance), which would direct the Secretary of the Interior to convey certain properties in the vicinity of the Elephant Butte Reservoir and the Caballo Reservoir, New Mexico, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 980 (Moccasin Bend National Historic Site), which would establish the Moccasin Bend National Archaeological District in Tennessee as a unit of Chickamauga and Chattanooga National Military Park, was passed by the Senate. 148 Cong. Rec. S11636 (daily ed. Nov. 19, 2002).
  • H.R. 1712 (National Park of American Samoa), which would authorize the Secretary of the Interior to make adjustments to the boundary of the National Park of American Samoa to include certain portions of the islands of Ofu and Olosega within the park, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 1776 (Buffalo Bayou National Heritage Area), which would authorize the Secretary of the Interior to study the suitability and feasibility of establishing the Buffalo Bayou National Heritage Area in Houston, Texas, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 1814 (national trails), which 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, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 1870 (land sale), which would provide for the sale of certain real property within the Newlands Project in Nevada, to the city of Fallon, Nevada, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 1906 (Pu'uhonua O Honaunau National Historical Park), which would amend the Act that established the Pu'uhonua O Honaunau National Historical Park to expand the boundaries of that park, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 1925 (Waco Mammoth Site), which 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, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 1989 (fisheries), which would reauthorize various fishing conservation management programs, was passed by the Senate. 148 Cong. Rec. S11793 (daily ed. Nov. 20, 2002).
  • H.R. 2099 (Vancouver National Historic Reserve), which would amend the Omnibus Parks and Public Lands Management Act of 1996 to provide adequate funding authorization for the Vancouver National Historic Reserve, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 2109 (Virginia Key Beach Park), which would authorize the Secretary of the Interior to conduct a special resource study of Virginia Key Beach Park in Biscayne Bay, Florida, for possible inclusion in the National Park System, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 2115 (water resources), which 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 Lakehaven Utility District in Washington state, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 2187 (U.S. Navy; mineral leasing), which would amend title 10, United States Code, to make receipts collected from mineral leasing activities on certain naval oil shale reserves available to cover environmental restoration, waste management, and environmental compliance costs incurred by the United States with respect to the reserves, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11793 (daily ed. Nov. 20, 2002).
  • H.R. 2385 (land conveyance), which would convey certain property to the city of St. George, Utah, in order to provide for the protection and preservation of certain rare paleontological resources on that property, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11650 (daily ed. Nov. 19, 2002).
  • H.R. 2595 (land conveyance), which would direct the Secretary of the Army to convey a parcel of land to Chatham County, Georgia, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11343 (daily ed. Nov. 18, 2002).
  • H.R. 2628 (Muscle Shoals National Heritage Area), which would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Muscle Shoals National Heritage Area in Alabama, was passed by the Senate, clearing the measure for the President.
  • H.R. 2818 (Sand Mountain Wilderness; land conveyance), which would authorize the Secretary of the Interior to convey certain public land within the Sand Mountain Wilderness Study Area in Idaho to resolve an occupancy encroachment dating back to 1971, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 2828 (water resources), which would authorize payments to certain Klamath Project water distribution entities for amounts assessed by the entities for operation and maintenance of the project's transferred works for 2001 and would authorize refunds to such entities of amounts collected by the Bureau of Reclamation for reserved works for 2001, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 2937 (land conveyance), which would provide for the conveyance of certain public land in Clark County, Nevada, for use as a shooting range, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 2990 (water resources), which would amend the Lower Rio Grande Valley Water Resources Conservation and Improvement Act to authorize additional projects under that Act, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 3048 (Alaska lands), which would resolve the claims of Cook Inlet Region, Inc., to lands adjacent to the Russian River in Alaska, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 3401 (land conveyance), which would provide for the conveyance of Forest Service facilities and lands comprising the Five Mile Regional Learning Center in California to the Clovis Unified School District and would authorize a new special use permit regarding the continued use of unconveyed lands comprising the Center, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 3858 (New River Gorge National River), which would modify the boundaries of the New River Gorge National River, West Virginia, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 3908 (National American Wetlands Conservation Reauthorization Act), which would reauthorize the North American Wetlands Conservation Act, was passed by the Senate, 148 Cong. Rec. S11154 (daily ed. Nov. 14, 2002), and the House, clearing the measure for the President. 148 Cong. Rec. H9018 (daily ed. Nov. 14, 2002).
  • H.R. 3909 (Gunn McKay Nature Preserve), which would designate certain federal lands in Utah as the Gunn McKay Nature Preserve, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 3954 (wild and scenic rivers), which would designate certain waterways in the Caribbean National Forest in the Commonwealth of Puerto Rico as components of the National Wild and Scenic Rivers System, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 3955 (National forests; wilderness), which would designate certain National Forest System lands in the Commonwealth of Puerto Rico as components of the National Wilderness Preservation System, was passed by the House. 148 Cong Rec. H8888 (Nov. 14, 2002).
  • H.R. 4129 (water resources), which would amend the Central Utah Project Completion Act to clarify the responsibilities of the Secretary of the Interior with respect to the Central Utah Project, would redirect unexpended budget authority for the Central Utah Project for wastewater treatment and reuse and other purposes, would provide for prepayment of repayment contracts for municipal and industrial water delivery facilities, and would eliminate a deadline for such prepayment, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 4638 (water resources), which would reauthorize the Mni Wiconi Rural Water Supply Project, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 4727 (dam safety), which would reauthorize the national dam safety program, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11154 (Nov. 14, 2002).
  • H.R. 4750 (wilderness), which would designate certain lands in California as components of the National Wilderness Preservation System, was passed by the House, 148 Cong. Rec. H8923 (daily ed. Nov. 14, 2002), and the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 4874 (federal lands), which would direct the Secretary of the Interior to disclaim any federal interest in lands adjacent to Spirit Lake and Twin Lakes in Idaho resulting from possible omission of lands from an 1880 survey, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 4883 (hydrographic services), which would reauthorize NOAA's hydrographic services, was passed by the House, 148 Cong. Rec. H8881 (daily ed. Nov. 14, 2002), and the Senate, clearing the measure for the President. 148 Cong. Rec. S11797 (daily ed. Nov. 20, 2002).
  • H.R. 4944 (Belle Grove National Historical Park), which would designate the Cedar Creek and Belle Grove National Historical Park as a unit of the National Park System, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 4953 (federal lands), which would direct the Secretary of the Interior to grant to Deschutes and Crook Counties in Oregon a right-of-way to West Butte Road, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 5097 (Salt River Bay National Historical Park), which would adjust the boundaries of the Salt River Bay National Historical Park and Ecological Preserve located in St. Croix, Virgin Islands, was passed by the House. 148 Cong. Rec. H8890 (Nov. 14, 2002).
  • H.R. 5099 (endangered fish), which would extend the periods of authorization for the Secretary of the Interior to implement capital construction projects associated with the endangered fish recovery implementation programs for the Upper Colorado and San Juan River Basins, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 5436 (hydroelectric power), which would extend the deadline for commencement of construction of a hydroelectric project in Oregon, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S11652 (daily ed. Nov. 19, 2002).
  • H.R. 5512 (Mount Ranier National Park), which would provide for an adjustment of the boundaries of Mount Rainier National Park, was passed by the House. 148 Cong. Rec. H8890 (daily ed. Nov. 14, 2002).
  • H.R. 5513 (land exchange), which would authorize and direct the exchange of certain land in Arizona between the Secretary of Agriculture and Yavapai Ranch Limited Partnership, was passed by the House. 148 Cong. Rec. H8890 (daily ed. Nov. 14, 2002).

COMMITTEE ACTION

  • S. 556 (CAA) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-347, 148 Cong. Rec. S11573 (daily ed. Nov. 19, 2002). The bill would amend the CAA to reduce emissions from electric powerplants, and for other purposes.
  • S. 1655 (exotic animals) was reported by the Senate Committee on Environment and Public Works. S. Rep. No., 148 Cong. Rec. S11078 (daily ed. Nov. 14, 2002). The bill would amend title 18, United States Code, to prohibit certain interstate conduct relating to exotic animals.
  • S. 2065 (air quality; native American lands) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-346, 148 Cong. Rec. S11573 (daily ed. Nov. 19, 2002). The bill would provide for the implementation of air quality programs developed pursuant to an Intergovernmental Agreement between the Southern Ute Indian Tribes and Colorado concerning Air Quality Control on the Southern Ute Indian Reservation.

BILLS INTRODUCED

  • S. 3152 (Allen, R-Va.) (Coastal Barrier Resources System) would clarify the boundaries of the Plum Island Unit of the Coastal Barrier Resources System. 148 Cong. Rec. S10888 (daily ed. Nov. 13, 2002). The bill was referred to the Committee on Environment and Public Works.

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:

  • As reported in the last issue, the Convention on International Trade in Endangered Species (CITES), at a meeting in Chile, ruled that Botswana, South Africa, and Namibia could engage in ivory sales under strict controls. The ivory--a maximum of 30 tons in South Africa, 20 in Botswana and10 in Namibia--must come from existing stocks taken from elephants that died of natural causes or as a result of a government-regulated problem-animal control program. The trade cannot begin before 2004 and must be conducted pursuant to CITES verification of effective domestic control mechanisms. Trading can be discontinued if CITES finds violations or determines that trading is increasing poaching in other areas of Africa. Zambia's and Zimbabwe's requests were turned down. CITES rejected a proposal for annual sales, instead insisting on a one-off sale. In response, Namibian Environment and Tourism Minister Philemon Malima said that Namibia may withdraw from CITES and sell off its ivory stockpiles on its own. "We will pull out of CITES if they are not responding positively," Malima said. "If we don't get a positive response from CITES, what will be the use of being a member of a body that prevents us from carving our tusks?" Meanwhile, South Africa denied reports that it withheld evidence of poaching in the Kruger National Park in order to secure CITES' decision on ivory trading.
  • CITES closed out its meeting by reversing its position on protection of the Black Sea bottlenose dolphin, overturning a decision made last week. The group also voted to create international accords to protect the Asian snow leopard and clouded leopard, and to require reports from member countries on illicit trades in bear bile. But Australia dropped its request for protection of the Patagonian toothfish, also known as the Chilean sea bass.
  • Ashok Khosla, the founder of India's Office of Environmental Planning and Coordination, received the U.N. Environment Program's Sasakawa Environment Prize.
  • The Prestige, an oil tanker carrying 70,000 metric tons of fuel oil, split in two and later sank 150 miles off the Atlantic coast of Spain. Spanish authorities suspended fishing along a 60-mile stretch of coast between Roncudo and Cape Tourinan. European Union (EU) Transport Commissioner Loyola de Palacio urged EU member states to outlaw the use of single-hulled tankers in European waters. At least 50 miles of coastline was affected. See http://www.guardian.co.uk/international/story/0,3604,843617,00.html and http://news.bbc.co.uk/2/hi/europe/2500573.stm
  • The World Bank's board unveiled a new rural development strategy that includes additional investment in agricultural and rural development.
  • A tanker washing out its tanks at sea off the English coast produced a five-mile slick eight miles off the coast of East Anglia. See http://news.bbc.co.uk/2/hi/uk_news/england/2499551.stm
  • The Secretariat of the Commission for Environmental Cooperation of North America (CEC) recommended to the CEC Council that a factual record be developed for the Ontario Logging submission (SEM-02-001). The submission alleges that Canada is failing to effectively enforce Section 6(a) of the Migratory Bird Regulations adopted under the Migratory Birds Convention Act, 1994 (MBCA), with regard to logging in Ontario. See http://www.cec.org/citizen
  • The European Commission proposed a plan to reduce emissions of sulfur dioxide and particulate matter from ships. Environment Commissioner Margot Wallström said that "the Commission's new strategy to reduce ship emissions gives the maritime industry a timely opportunity to improve its green credentials. The new, stricter limits for sulphur in marine fuels that we are proposing to establish will reduce sulfur dioxide emissions in the EU by over 500,000 tonnes every year. These reductions will be targeted to deliver the greatest possible benefits--in ports and coastal areas close to where people live, and in acid-sensitive ecosystems in northern Europe. Working together with Member States and industry, we want to create a clean new future for marine transport in the EU." The proposal would require a 1.5% sulfur limit for marine fuels used by all seagoing vessels in the North Sea, English Channel, and Baltic Sea, in line with the International Maritime Organization's MARPOL Annex VI sulphur limits, set the same limit for marine fuels used by passenger vessels on regular services to or from any port within the EU, and impose a 0.2% sulfur limit on fuel used by ships while they are at berth in ports inside the EU.
  • The EU agreed upon a new directive on public access to environmental information, which will replace existing Directive 90/313/EC on the freedom of access to information on the environment. The new directive is intended to comply with the Aarhus Convention. The Directive provides that every natural or legal person, regardless of citizenship, nationality or domicile, has a right of access to environmental information held by or produced by public authorities, for instance data on emissions and discharges into the environment, their impact on public health, or results of environmental impact assessments. Within two years time, the Member States must have implemented the Directive in their respective national legislations.
  • Parties to the Ramsar Convention on Wetlands began their eighth triennial conference in Valencia, Spain with the election of Spanish Environment Ministry Secretary General Maria del Carmen Martorell Pallas as president. See http://www.ramsar.org/index_cop8.htm
  • The Italian environmental organization Legambiente said that fully one-third of Italy's 36 World Heritage sites are at risk. "The threats range from polluted water to constructions invading protected areas, but the main problem is knowing how to appreciate and take care of Italy's riches," said Federica Sacca of Legambiente. "Both funds and a change of attitude are needed, or some of these treasures could be lost forever." See http://www.legambiente.com/

CLIMATE CHANGE:

  • China's Environmental Protection Administration said it was extending a sulfur dioxide emission trading program, currently in place in Shandong, Shanxi, Jiangsu, and Henan provinces, and in the cities of Shanghai, Tianjin, and Liuzhou, to Guangdong, Hong Kong and Macao. Jiangsu Province has trading regulations in place, and Shanghai will soon follow.
  • Alberta Environment Minister Lorne Taylor again stated that the province "owns" its natural resources, and said it would come up with a national alternative to the Kyoto Protocol. See http://www.alertnet.org/thenews/newsdesk/N19233228
  • Japan's Environment Ministry said it would test an emissions trading program in the Mie prefecture beginning in January, with some 30 firms expected to be involved. See http://quotes.freerealtime.com/dl/frt/N?art=C2002111700321x1906&SA=Latest%20News
  • Australia said it was entering into a cooperative agreement with the United States to drop 3,000 climate data-collection devices into oceans. Meanwhile, former Liberal Party leader John Hewson was hired by the New South Wales government to lobby for Australia to ratify the Kyoto Protocol. See http://abc.net.au/news/scitech/2002/11/item20021119221730_1.htm
  • Former Shell Australia chair Peter Duncan is also involved in the lobbying effort. See http://abc.net.au/news/politics/2002/11/item20021118080328_1.htm

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

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