Weekly Update Volume 32, Issue 35
Note: The cases listed are available from the ELR Document Service.
The Fifth Circuit affirmed in part and reversed in part an EPA decision affirming Texas' SIP for the Beaumont-Port Arthur area, extending the ozone attainment deadline for the area, and determining that no additional control measures were required in that area to satisfy the statutory requirement for implementation of RACM. EPA abused its discretion by extending the ozone attainment deadline for the Beaumont area based on pollution transport and by approving the SIP as adequate based on the extension. The CAA's numerous provisions addressing the issue of pollution transport and extensions of attainment dates clearly indicate that Congress fully understood the issue at hand and intended not to authorize EPA to extend attainment dates as it did in this case. The CAA specifies when EPA may extend attainment deadlines to account for upwind emissions that jeopardize an area's ability to achieve attainment without requiring reclassification of the area. EPA did not act arbitrarily or capriciously, however, in rejecting a number of control measures and limiting the menu of RACMs to those that would advance the date of attainment for use in the Beaumont area. The Beaumont area's attainment demonstration contained all RACMs required under the CAA, which EPA has interpreted as imposing a duty to implement only those control measures that contribute to attainment as expeditiously as practicable. Additionally, EPA did not need to require an analysis of all transport control measures specifically listed in the CAA, and properly concluded that potential measures requiring intensive and costly implementation were not RACMs because they could not be readily implemented due to excessive administrative burden or local conditions such as high costs. Sierra Club v. United States Environmental Protection Agency, No. 01-60537 (5th Cir. Dec. 11, 2002) (21 pp.).
The Fourth Circuit vacated a district court decision that EPA violated its statutory obligations under the Radon Act by issuing a report that analyzed the effects of secondhand smoke on human health and categorized secondhand smoke as a known human carcinogen. The district court erred in hearing the case brought by tobacco manufacturers because the report was not a final agency action and, therefore, the court lacked subject matter jurisdiction. Although the report was the consummation of EPA's decisionmaking process, it did not give rise to legal consequences, rights, or obligations. Additionally, the Radon Act explicitly prohibits the report from having any regulatory effect. The district court's conclusion that the report carried indirect regulatory effects sufficient to convert the report into reviewable final agency action was erroneous. The U.S. Supreme Court has held that agency action that carries no direct and appreciable legal consequences is not reviewable. Even if other agencies have relied on the report in imposing tobacco related restrictions, these regulations are not direct consequences of the report, but are the product of independent agency decisionmaking. The actions and consequences complained of by the tobacco manufacturers did not legally flow from the report nor are they the result of legal rights or consequences created by the report. Flue-Cured Tobacco Cooperative Stabilization Corp. v. United States Environmental Protection Agency, Nos. 98-2407, -2473 (4th Cir. Dec. 11, 2002) (16 pp.).
The Federal Circuit held that an individual lacked standing to bring a Fifth Amendment takings claim against the government on behalf of a corporation because he failed to maintain his shareholder status throughout the litigation. The individual was the sole shareholder and vice-president of a corporation that owned a number of sewage and water treatment plants in Louisiana and several other states. In 1998, EPA sued the corporation for CWA violations. The parties entered into a consent decree, but an inspection subsequently revealed a total of 661 violations of the consent decree. EPA and the state of Louisiana petitioned a district court for appointment of a receiver to ensure the corporation's compliance with the consent decree. Meanwhile, the corporation filed for bankruptcy under Chapter 11, and a trustee was appointed to oversee the reorganization by the bankruptcy court. The district court then ordered the appointment of a receiver to ensure compliance with the consent decree. The receiver was the same person as the trustee in bankruptcy, and was granted "expansive discretionary" powers. The individual, on behalf of the corporation, filed a complaint before the Court of Federal Claims arguing that the appointment of a receiver with such broad powers constituted a taking under the Fifth Amendment. The court found in favor of the government, and the individual appealed. A plaintiff bringing a derivative action in the Court of Federal Claims must be a shareholder at the time suit is brought. Moreover, when a plaintiff bringing an action on behalf of the corporation is the legal owner of the stock at the time of filing but does not maintain shareholder status throughout the course of the litigation, the plaintiff no longer has standing to bring the action. Here, the individual was a shareholder when he filed in the Court of Federal Claims in spring of 2000. However, his shares were canceled under the plan of reorganization in bankruptcy, approved on September 15, 2000. The individual therefore did not maintain his shareholder status throughout the litigation and as such his standing to bring the takings claim terminated. Because the court decided this case on standing grounds, it did not reach the issue of whether the bankruptcy trustee abandoned the takings claim such that the individual was free to bring it on behalf of the corporation. Nor did the court address the Court of Federal Claims' analysis regarding whether the individual, on the merits, presented a valid takings claim. Johnson v. United States, No. 01-5143 (Fed. Cir. Dec. 3, 2002) (Gajarsa, J.) (3 pp.).
A district court denied a corporation's motion to dismiss the commonwealth of Pennsylvania's CERCLA and HSCA suit against it for reimbursement of costs allegedly incurred in response to the release and threat of release of hazardous substances at a Superfund site owned by the corporation's predecessor. The corporation argued that the commonwealth failed to state a claim for which relief can be granted under CERCLA. The commonwealth, however, claimed that the corporation is liable under CERCLA as a successor corporation under the "substantial continuity" theory, and the substantial continuity theory is an accepted theory of successor liability. The commonwealth's complaint also provided the corporation with sufficient notice that the substantial continuity test subjected it to liability. Similarly, the commonwealth adequately stated a claim under the HSCA. The factual allegations in the complaint sufficiently demonstrated the nature and basis for its claim that the corporation is liable under the HSCA as a corporate successor, and Pennsylvania law requires nothing more when pleading successor liability. Pennsylvania v. Concept Sciences, Inc., No. 02-2888 (E.D. Pa. Dec. 2, 2002) (Baylson, J.) (8 pp.).
The Second Circuit affirmed a district court decision that 95% of funds held in trust accounts, which derive from sales of Indonesian liquefied natural gas, are owned by the Republic of Indonesia and, therefore, a power company may not seek to attach the funds under the Foreign Sovereign Immunities Act. The case arose after a power company and an oil and gas company owned and controlled by the Republic of Indonesia entered into contracts for the development of geothermal energy extraction facilities in West Java. In 1998, however, due to political instability and the eventual collapse of the existing regime, the projects were cancelled. An arbitration panel awarded the power company damages for lost investments of $111.1 million and lost profits of $150 million plus interest and fees. Pursuant to the Federal Arbitration Act, the power company sought to enforce the award in the U.S. District Court for the Southern District of Texas. The Texas district court entered judgment in favor of the power company and permitted the company to register the judgment in a number of federal district courts, including the Southern District of New York. In New York, the power company sought to attach 15 trust accounts at a bank that contained funds from the sale of liquefied natural gas extracted in Indonesia under "production sharing contracts" that are governed by Indonesian law. The New York district court correctly analyzed the Indonesian law that controls the ownership of the funds and correctly concluded that most, but not all, of the funds belonged to Indonesia. Pursuant to Indonesian law, Article 5(2) of Government Regulation 41 of 1982 vested ownership of all funds, except for a portion called the "Retention," in the Republic of Indonesia. Therefore, the only portion of the funds that the power company could attach was the 5% portion--i.e., the Retention--that belonged to the oil and gas company. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, Nos. 02-7513(L) et al. (2d Cir. Dec. 10, 2002) (20 pp.).
A district court dismissed a landowner's takings claims against the U.S. Army Corps of Engineers and Minnesota state agencies for rejecting his proposed wetland replacement plan and ordering him to remove an access road on the property and to restore the wetlands on his lots. The landowner built an access road on his property in conjunction with his plan to develop a residential development. He then applied for an after-the-fact permit from the Corps and submitted a wetland replacement plan to the state pursuant to state law. The various agencies then learned that the land contained more wetlands than initially thought, and the Corps denied the landowner's permit and ordered him to remove the access road. The state rejected his proposed wetland replacement plan, revoked its CWA §401 certification to the Corps that the project could be achieved consistent with the state's water quality standards, and ordered the landowner to restore the wetlands on his property. The landowner then filed suit. Sovereign immunity, however, precluded the court from deciding his challenge to the Corps' restoration order. The APA does not provide for judicial review of the restoration order, therefore, sovereign immunity has not been waived. Similarly, the court lacked subject matter jurisdiction to consider the landowner's claim that the Corps violated Executive Order No. 12,630, which requires governmental agencies to prepare a takings implication assessment for its actions. No right of action exists to enforce the order. In addition, the Eleventh Amendment barred his claims regarding the state agencies' certification decision and restoration order because the state agency defendants did not waive their Eleventh Amendment immunity from suit in federal court. The court also rejected the landowner's alternative argument that the state agencies' actions constitute a taking without just compensation. Until the landowner seeks relief in a state court inverse condemnation action and relief is denied, his claim is not ripe. Lastly, res judicata barred the landowner's claims that he detrimentally relied on statements made by a county about the access road. Bailey v. United States Army Corps of Engineers, No. 02-639 (RHK/RLE) (D. Minn. Nov. 21, 2002) (Kyle, J.) (30 pp.).
A district court dismissed environmental groups' action to enjoin New York City's program of ground and aerial spraying designed to eradicate mosquitoes that spread the West Nile Virus. A court previously held that the spraying of insecticides in conformity with their EPA-approved label did not violate the CWA. Here, the labels for the insecticides being used by the city indicated that they were to be used for residential and recreational areas where adult mosquitos are present in vegetation surrounding parks, woodlands, swamps, marshes, overgrown areas, and golf courses. The groups argued that the spraying of insecticides directly over the rivers, bays, sound, and ocean surrounding the city as part of the prevention program violated the terms of the labels and, therefore, violated the CWA. The groups' evidence, however, established no more than technical violations of FIFRA, which, if actionable at all, are only actionable if the action is commenced by the Attorney General or EPA. Allowing an action under the CWA would circumvent Congress' intent not to provide a private right of action for FIFRA violations. Moreover, the court already rejected the groups' argument that if spraying was not done in strict compliance with the approved label, a private party could bring suit under the CWA. No Spray Coalition, Inc. v. City of New York, No. 00 Civ.5395 JSM (S.D.N.Y. Nov. 26, 2002) (Martin, J.) (3 pp.).
The Eleventh Circuit affirmed a district court decision dismissing a national building supply retail chain's suit against a chemical manufacturing company for failing to warn the chain about the dangers involved in the storage and handling of a pool chlorinating product, the active ingredient of which contains calcium hypochlorite (cal-hypo), a registered pesticide under FIFRA. The case arose after a fire destroyed one of the chain's stores in Georgia. The chain conceded that claims concerning deficiencies with EPA-approved product warning labels are preempted by FIFRA but argued that its claims concerned not the product's warning labels, but rather the company's common law duty under Georgia law to disclose to its retailers information known only to the company concerning the propensity of cal-hypo products to burn at such intensity as to overwhelm automatic sprinkler systems. The chain was provided with guidelines concerning the handling, storage, and hazards of the company's pool chemical products in addition to the EPA-approved warning labels on the product prior to the fire. Despite warnings in the guidelines that contaminated cal-hypo may react violently and result in an intense fire or explosion, that a cal-hypo fire probably would not be contained by a sprinkler system alone, and that the fire department must be called, the chain argued that the company breached its duty of disclosure by not disclosing the results of the burn tests for cal-hypo. The guidelines, however, fall within the purview of FIFRA, thus, the chain's claim is preempted. FIFRA §2(p) defines "labeling" as "other written, printed, or graphic matter . . . accompanying the product" at any time. Here, the guidelines, which are other written, printed, or graphic matter, accompany the product. The guidelines clearly relate to the storage, handling, and hazards of the product, each of which is covered by the EPA-approved label. Further, the guidelines are not generally made available to the public. Rather, they are provided by the company to its pool product retail merchandisers. The guidelines, therefore, constitute "labeling" under FIFRA, and any claims concerning the sufficiency of the warnings in the guidelines are preempted. Lowe's Home Centers, Inc. v. Olin Corp., No. 02-10518 (11th Cir. Dec. 6, 2002) (8 pp.).
A district court dismissed a seed company's state-law negligence, strict liability, breach of warranty, and false advertising claims against an herbicide manufacturer because the claims are preempted by FIFRA. The EPA-approved label for the herbicide stated that it could be used on seed corn and that such use would not result in a loss of yield. Nevertheless, the seed company's crop was damaged after the herbicide was applied. Because the company's claims are premised on the inadequacy of the EPA-approved label, its claims are preempted by FIFRA. The company argued that its claims are premised on the inadequacy of statements relating to pesticide efficacy, that is, statements regarding whether the product actually works and whether it will harm the crop it is supposed to protect. FIFRA's preemption clause, however, extends to claims for damages premised on the inadequacy of statements related to pesticide efficacy. The case law interpreting FIFRA's preemption clause as well as the clause itself support this conclusion. The company's claims were, therefore, dismissed. Dahlman Farms, Inc. v. FMC Corp., No. CIV.01-986 JEL/JGL (D. Minn. Dec. 2, 2002) (Lancaster, J.) (9 pp.).
A district court held that New Jersey's discovery rule does not toll a property owner's environmental contamination claims against the seller and, therefore, the claims are barred by the six-year statute of limitations. The owner purchased the property in 1983, and after conducting an environmental investigation of the site in 1992, it filed suit against the seller in 1994. The seller then filed a motion to dismiss the owner's strict liability, negligence, fraud, and breach of contract claims. New Jersey's discovery rule delays the onset of the statute of limitations until the party bringing suit learns, or reasonably should have learned, of a state of facts giving rise to a cause of action. Thus, with respect to environmental claims, tolling under the discovery rule is not dependent on whether actual sampling results have been taken, but whether there are enough indications of environmental contamination to put the plaintiff on reasonable notice of a need to investigate further. Although the owner conducted an environmental investigation in 1992, the record contained no genuine question of material fact regarding whether the owner had knowledge of environmental hazards on the property in late 1987. Under New Jersey law, therefore, the owner had six years from that point in which to pursue a cause of action but did not do so. The court, therefore, granted summary judgment to the seller on these claims. New West Urban Renewal Co. v. Viacom, Inc., No. 01-707 (D.N.J. Nov. 18, 2002) (Orlofsky, J.) (22 pp.).
An EPA administrative law judge (ALJ) held that a facility is liable under RCRA for violating emission standards for equipment leaks and for failing to label equipment, but denied EPA's motion for an accelerated decision as to claims that the facility failed to keep closure devices secured in the closed position when hazardous waste was present in a tank. The violations EPA complained of were discovered during an inspection of the facility for compliance with the applicable requirements of RCRA and the facility’s hazardous waste permit. The facility violated RCRA regulations governing the air emission standards for pumps and valves “in light liquid service.” The facility is an owner or operator of a facility that treats, stores, or disposes of hazardous waste, and it manages hazardous waste, with the requisite organic concentration of 10 percent by weight, in a unit subject to the permitting requirements. Moreover, EPA established that the facility's pumps and valves were “in light liquid service” as that term is defined in the applicable regulations. Thus, there are no genuine issues of material fact with regard to this count and EPA is entitled to judgment as a matter of law. The ALJ, however, denied EPA's motion for an accelerated decision as to the facility's liability for tank violations. During the walk-through inspection of the facility, an EPA inspector observed an open manhole lid on top of a tank that contained a low level of liquid. EPA maintained that because the facility was neither performing routine inspection or maintenance, nor removing accumulated sludge or residue, the facility violated RCRA by failing to keep the closure devices secured in the closed position when hazardous waste was present in the tank. EPA, however, failed to demonstrate that hazardous waste was in the tank. Further, because neither party presented sufficient evidence concerning the presence of hazardous waste in the tank, the ALJ denied the facility's motion to dismiss as well. Additionally, the ALJ rejected the facility’s contention that the tank was not subject to regulation. Neither the regulations regarding “empty containers” nor EPA guidance regarding the 90-day accumulation of hazardous waste in tanks can absolve the facility of its alleged liability. Lastly, because the facility admitted to the allegations set forth in EPA's complaint, it was held liable for violating RCRA regulations governing the labeling of equipment. In re Chemtron Corp., No. RCRA-05-2001-0017 (EPA ALJ Dec. 2, 2002) (24 pp.).
An EPA administrative law judge (ALJ) grants in part and denies in part EPA's motion for an accelerated decision as to a company's liability for violating RCRA in connection with its munitions manufacturing facility. EPA charged, and the company admitted, that it failed to provide a required soil sample analysis, failed to meet certain groundwater requirements, failed to conduct an evaluation of two drums of scrap ammunition to determine whether it was hazardous, and failed to report all solid waste management units in violation of its permit. Thus, the company was found liable for these violations. The ALJ, however, denied EPA's motion with regard to its complaint that the company engaged in the unpermitted treatment of hazardous waste. EPA alleged that in firing ammunition at its gunnery range for testing purposes, the company shredded the shotshell wad waste, thereby reducing its volume and “treating” the hazardous waste within the meaning of RCRA. An evidentiary hearing is necessary to resolve this issue. As to EPA's claim that the company accumulated a hazardous waste material at its facility for more than 90 days in violation state law and its permit, EPA's motion was granted only with regard to two 55-gallon drums of scrap ammunition. Material issues of fact exist as to the other drums EPA cited in its complaint. Similarly, the facility admitted to some of the violations EPA complained of concerning the facility's failure to store hazardous waste in compliance with its hazardous waste permit. Material issues of fact, however, exist as to whether the facility is liable for all the violations complained of by EPA. The company also raised questions of fact regarding its alleged employee training violations and its alleged failure to minimize the possibility of a release of hazardous waste, and it raised questions of law as to whether some of its drums are exempt from the hazardous waste testing regulations. EPA's motion for accelerated decision on these counts, therefore, was denied. Lastly, the ALJ denied EPA's request for a penalty assessment as to those claims for which the company was found liable. For the most part, those alleged violations that have not been resolved appear to be factually related to the violations that have been established. Thus, little is to be gained from deciding at this early stage what may turn out to be only a portion of the penalty issue. Moreover, EPA has not shown that there exists no questions of material fact relating to the civil penalty issue. In re Federal Cartridge Co., No. RCRA-05-2002-0003 (EPA ALJ Dec. 6, 2002) (9 pp.).
Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved
Note: Citations below are to the Federal Register (FR).
- EPA entered into a proposed consent decree under CAA §113(g) to address two lawsuits alleging that the EPA Administrator failed to meet a mandatory 60-day deadline for granting or denying petitions seeking the Agency's objection to 11 CAA Title V operating permits issued by the New York State Department of Environmental Conservation and 8 Title V operating permits issued by the Georgia Environmental Protection Division. 67 FR 76403 (12/12/02).
- EPA proposed amendments to the rule establishing requirements for case-by-case determinations under CAA §112(j) and to the general provisions for NESHAPs. 67 FR 72875 (12/9/02).
- EPA announced that it has designated a new equivalent method for measuring concentrations of particulate matter having an aerodynamic diameter of 10 microns or less in the ambient air. 67 FR 76174 (12/11/02).
- EPA approved a negative declaration submitted by the U.S. Virgin Islands that there are no existing small municipal waste combustion units in the territory. 67 FR 76116 (12/11/02).
HAZARDOUS & SOLID WASTES:
- EPA entered into a proposed administrative order of consent under CERCLA §122(h)(1) in connection with the New Hanover County Burn Pit Superfund site in Wilmington, North Carolina. 67 FR 76742 (12/13/02).
- EPA entered into a proposed consent decree with a security company to resolve violations of the CAA, the CWA, EPCRA, and their implementing regulations at numerous facilities. 67 FR 76744 (12/13/02).
- The federal agencies issued their semiannual regulatory agendas providing specific information on the status of regulations under development and revision. (12/9/02).
- EPA announced a new voluntary pilot project, entitled Sustainable Futures, to encourage the application of pollution prevention principles during the development of new chemicals submitted as premanufacture notices under TSCA §5. 67 FR 76281 (12/11/02).
- EPA announced the availability of EPA decisions identifying water quality limited segments and associated pollutants in Arizona and Nevada to be listed under CWA §303(d)(2), which requires that states submit and EPA approve or disapprove lists of waters for which existing technology-based pollution controls are not stringent enough to attain or maintain state water quality standards and for which total maximum daily loads must be prepared. 67 FR 76404 (12/12/02).
- EPA entered into a proposed consent agreement and final order requiring the respondent to pay $40,000 to the Oil Spill Liability Trust Fund as a penalty for alleged violations of CWA §311 involving the discharge of oil into U.S. waters and the failure to prepare and maintain a spill prevention, control, and countermeasure plan. 67 FR 72946 (12/9/02).
- DOE announced that it has prepared a floodplain/wetland assessment in connection with its plans to construct a multiple permeable reactive barrier within Mortandad Canyon at Los Alamos National Laboratory. 67 FR 72926 (12/9/02).
- FWS designated critical habitat for the Otay tarplant under the ESA. 67 FR 76029 (12/10/02).
- FWS announced the availability of the final recovery plan for the Bruneau hot springs snail. 67 FR 72967 (12/9/02).
- OSHA proposed fire protection standards for shipyard employment that were developed through a negotiated rulemaking process. 67 FR 76213 (12/11/02).
DOJ NOTICES OF SETTLEMENTS:
- United States v. Abb, Inc., No. AMD02CV3858 (D. Md. Nov. 26, 2002). Settling CERCLA defendants, 477 PRPS, and 15 federal agencies must pay approximately $2.68 million in past and future EPA response costs incurred and to be incurred at the Spectron, Inc. Superfund site near Elkton, Maryland. 67 FR 76191 (12/11/02).
- United States v. Kennecott Holdings Corp., No. 2:02-CV-1228 (DAK) (D. Utah Nov. 14, 2002). A settling CERCLA defendant must perform certain operations and maintenance activities concerning two of the operable units at the Kennecott South Zone site in Salt Lake County, Utah, and must reimburse EPA $307,545.64. 67 FR 76191 (12/11/02).
- United States v. Trident Seafoods Corp., No. A02-281 CV (RRB) (D. Alaska Nov. 13, 2002). A settling CWA defendant that engaged in the unauthorized and illegal discharge of pollutants into Tongass Narrows and Akutan Harbor from its seafood processing facilities in Ketchikan and Akutan, Alaska, and that violated its NPDES permit must remediate its underwater waste piles, must eliminate for three years all of its discharges of seafood processing wastes into the Tongass Narrows, must implement improved operation and maintenance measures at its Ketchikan facility, must pay a $96,000 civil penalty, and must conduct a supplemental environmental project involving an economic study evaluating treatment alternatives for its seafood processing wastes. 67 FR 76192 (12/11/02).
Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.
Congress is currently not in session but will meet again January 7, 2003, to convene the 108th Congress.
Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.
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.
- Emilio Lora-Tamayo, the head of a Spanish panel created to study the Prestige disaster, said that the tanker could continue to leak oil for the next 5 to 39 months. It is now releasing approximately 125 tons of fuel each day from 14 cracks. Spain's Development Minister, Francisco Alvarez, said the tanker has already leaked up to 18,000 tons of its 77,000-ton cargo. And, speaking out on the incident for the first time, Prime Minister Jose Maria Aznar admitted that the government made some initial mistakes in its response in addressing "the worst ecological catastrophe ever in Spain." See http://www.cnn.com/2002/WORLD/europe/12/11/spain.slick/index.html
- The sixth conference of parties to the 1989 Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal was held in Geneva. "With some 150 million [metric] tons of hazardous wastes produced every year, the industrial world needs to accelerate its investments in cleaner production technologies and processes that can reduce wastes," U.N. Environment Program Executive Director Klaus Toepfer said. "Governments and industry must also work together to improve recycling systems and treatment plants. In all cases, poorer countries and communities must not be forced to shoulder the burdens of our industrial economy by being on the receiving end of hazardous wastes that they did not create." See http://www.enn.com/direct/display-release.asp?id=7899
- South Africa, Mozambique and Zimbabwe opened Africa's largest wildlife park, the Great Limpopo Transfrontier Park. It combines South Africa's Kruger National Park, Mozambique's Limpopo Park, and Zimbabwe's Gonarezhou National Park into one park that is approximately the size of Belgium. "The successful merging of our individual parks into the Limpopo Transfrontier Park tells us that nothing is impossible," said South African President Thabo Mbeki. "Yet this increases the challenge on all of us to ensure that we create the correct conditions for the balanced development and advancement of our countries." About 20,000 people live within the boundaries of the park. Opposition politicians in South Africa voiced concern over continued political and economic unrest in Zimbabwe. See http://www.news24.com/News24/Africa/News/0,1113,2-11-1447_1295711,00.html
- The Asian Development Bank approved a $33 million loan to Indonesia for the rehabilitation and management of coral reefs. See http://www.adb.org/Documents/News/2002/nr2002242.asp
- The groups WWF and Traffic released a report contending that there is "evidence that organized gangs including the Russian mafia and drugs cartels are increasingly involved in [the] global trade [in endangered species]." The report argues that poor international policing efforts and open borders within the European Union are encouraging the activity. WWF representative Stuart Chapman spoke of "potential links between the global illegal wildlife trade and the drugs, arms, and human trade." He said police "need the necessary powers to apprehend and deter wildlife trade criminals." See http://news.bbc.co.uk/1/hi/scotland/2556731.stm
- Canada's House of Commons voted in favor of ratification of the Kyoto Protocol, with members of the Bloc Quebecois and the New Democrat parties joining the majority Liberal Party in a 195-77 vote. Prime Minister Jean Chretien, saying that ratification should be complete by the end of the month, exclaimed that "it's a great day for Canada, a great day for the environment and a great day for the future of our kids. "It was an incredibly stupid decision and without precedent to adopt an international accord with enormous economic ramifications . . . for this country and to do so without a plan," replied Canadian Alliance leader Stephen Harper. "When we don't know what to expect, we should expect the worst," he said. "Ratification was really just a political act, and there's still a tremendous amount of work that needs to be done to pull together a plan that makes sense for Canadians," said Canadian Chamber of Commerce President Nancy Anthony. "The discussion is moving in the right direction, but we should have been having this discussion a year ago and not days before ratification." Alberta Premier Ralph Klein hinted at a constitutional challenge.
- Canada's Natural Resources Minister, Herb Dhaliwal, said the federal government would cap the amount industry would have to pay to cut emissions of carbon dioxide and other greenhouse gases at C$15 ($9.60) per ton. See http://www.alertnet.org/thenews/newsdesk/N09313713
- Canada's Environment Minister, David Anderson, said the vote would put increased pressure on the Bush Administration to change its mind about Kyoto. "We certainly believe that Canada adopting the Kyoto target and introducing measures will be encouragement for people . . . nationally across the United States to fight more vigorously within their own jurisdictions for a similar commitment," he said. "As time goes on we're going to see more extreme weather events, more recognition that certain states of the American south--such as Florida and the Carolinas--are going to wind up looking a bit like North Africa," Anderson added. "I don't rule out a switch at the U.S. federal level at all before Mr. Bush steps down, on the assumption he gets a second term, within the next six years. If he doesn't get a second term I think it might be even more likely."
- New Zealand formally ratified the Protocol. "Climate change is a global problem and a concerted international effort is required to combat it," Prime Minister Helen Clark said at the signing. "The Kyoto Protocol is the international community's response to climate change and New Zealand is playing its part." She added that "agriculture, the engine of our economy, has been exempted from charges on its emissions and we will tackle those emissions through research. We look ahead to the post-Kyoto era with confidence." See http://reuters.com/newsArticle.jhtml?type=scienceNews&storyID=1878645
- If Russia goes along, the Protocol will go into force, as at least 55 states contributing at least 55% of the industrialized world's 1990 greenhouse gas emissions must ratify. See http://www.canoe.ca/EdmontonNews/es.es-12-11-0016.html
- Greenland's ice cap and ice in the Arctic Ocean melted at record levels this summer, according to U.S. scientists. "This was the craziest summer I've seen up there," said Mark Serreze, a researcher at the U.S. National Snow and Ice Data Center. I was really surprised by this." He also criticized the U.S. government's position that more research is needed. "The longer we wait, the longer we procrastinate, and the bigger our problems will be in the future," Serreze said.
- European Union environment ministers agreed to a program plan to require major industries to join a carbon dioxide emissions trading market beginning in 2005 to encourage greater emissions cuts. The decision was announced after a European Environment Agency report said that without further measures the 15-member nation bloc would reduce emissions of carbon dioxide and five other industrial gases by 4.7% by 2010 instead of by its Kyoto Protocol goal of 8% between 1990 and 2012. Companies whose emissions exceed a designated level could buy allowances for the excess from companies with emissions below the threshold, or face penalties of $40 per metric ton beyond the limit. The fine would be increased to $100 per metric ton in 2008. Six sectors would participate, including electricity and heating, steel, cement, glass, brickmaking, and paper and cardboard. The chemical industry and aluminum production industries may also be included, and emissions trading may be extended to other greenhouse gases. Participation would not be mandatory for all companies until 2008 if it can be proven that a national regulatory approach would be equally effective.
- European Union Environment Commissioner Margot Wallstroem singled out Spain, Portugal, and Ireland for criticism, but stressed that "more than half of the member states are not on track to reach their burden-sharing targets." She emphasized that "meeting the Kyoto target is not a question of technical feasibility but of political will," and noted that Germany and Britain have done the best job of trying to meet Kyoto goals. She added that the biggest problem is emissions from cars and trucks, noting that "this is the sector where we need urgent action," as emissions from transport had increased by 18% during the 1990s. See http://abcnews.go.com/wire/World/ap20021210_638.html
Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.
Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to firstname.lastname@example.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.
J. William Futrell, Publisher
John H. Turner, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Michael O'Grady, Associate Editor
Samantha Diesenhouse, Associate Editor
Carolyn Fischer, Editorial Associate
William J. Straub, Desktop Publisher
Jenny Kissinger, Customer Service
April King, Editorial Assistant