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Weekly Update Volume 32, Issue 8

03/11/2002

 LITIGATION

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

FEDERAL POWER ACT (FPA), UNBUNDLED RETAIL TRANSMISSIONS, JURISDICTION:

The U.S. Supreme Court held that FERC did not exceed its jurisdiction by including unbundled retail transmissions within the scope of one of its open access requirements and that FERC's decision not to regulate bundled retail transmissions was a stautorily permissible policy choice. FERC did not exceed its jurisdiction by including unbundled retail transmissions within the scope of its open access requirements. Billing rates are unbundled when the cost of transmission is separate from the cost of electrical energy. New York argued that FERC is preempted from exercising jurisdiction. The FPA, however, gives FERC jurisdiction over the transmission of electric energy in interstate commerce without regard to whether the transmissions are sold to a reseller or directly to a consumer. Additionally, unbundled interstate transmissions of electric energy have never been subject to regulation by the states. Further, FERC's decision not to regulate bundled retail transmissions was appropriate. Contrary to what an energy company claimed, FERC did not state that it lacked jurisdiction to regulate bundled retail transmissions. Rather, FERC chose not to assert its jurisdiction because it felt it was not necessary and that the jurisdictional issues raised did not need to be resolved in the present context. Stevens, J., delivered the opinion of the Court. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia and Kennedy, JJ., joined. New York v. Federal Energy Regulatory Commission, No. 00-568 (U.S. Mar. 4, 2002) (42 pp.).

WATER POLLUTION, SOIL POLLUTION, EVIDENCE OF CAUSATION:

The Fifth Circuit affirmed a district court holding that individuals failed to provide sufficient evidence of causation and damages to reach the jury on either water or soil pollution claims brought against an oil company. The individuals own the surface estate of a ranch. The mineral estate of the ranch is separate from the surface estate and owned by an oil company. The individuals sued the oil company claiming that the company's negligent operations contaminated the ranch's soil as well as an aquifer that provided drinking water for the ranch. The individuals' two expert witnesses on water contamination, however, failed to present sufficient evidence that the company caused the pollution of the aquifer and failed to show the extent of the damage resulting from that contamination. Similarly, the individuals' experts on soil contamination failed to establish a legally sufficient evidentiary basis for a reasonable jury to find for the individuals on essential elements of their soil pollution claims. Rather, any finding of liability would require the jurors to speculate as to both the cause of the pollution and the extent of the damage to the surface estate. Therefore, the district court's dismissal of the individuals' claims was affirmed. Anthony v. Chevron USA, Inc., No. 00-50710 (5th Cir. Mar. 1, 2002) (8 pp.).

FALSE CLAIMS ACT (FCA), DISCLOSURE, QUI TAM:

The Tenth Circuit affirmed in part and remanded in part a district court decision in a suit brought under the FCA by an individual and joined in by the U.S. government concerning pollution, environmental law violations, and breach of contract claims at a nuclear weapons plant operated for DOE. The district court properly concluded that the individual was an original source of the information on which his FCA allegations were based. The individual adduced sufficient proof to establish that he had direct and independent knowledge of the information on which his FCA claims were based. The court remands, however, the issue of whether the required pre-litigation disclosure to the government was made. Additionally, the district court correctly concluded that relators have standing to litigate qui tam claims. The district court also properly held that the FCA's qui tam provisions do not violate the Appointments Clause or Take Care Clause of Article II of the U.S. Constitution. Further, the district court did not err in denying the government's motion for a new trial or by dismissing with prejudice its claim for common law fraud. Moreover, the district court did not err by not instructing the jury to find that the contractor operating the plant for DOE breached its contract.United States v. Rockwell International Corp., Nos. 99-1351 et al. (10th Cir. Mar. 4, 2002) (19 pp.).

CERCLA, CLEANUP, COST RECOVERY, CONTRIBUTION:

The Eleventh Circuit affirmed in part and reversed in part a district court decision in a breach of contract and CERCLA cost recovery and contribution case between an environmental engineering firm and a city. After EPA filed a CERCLA complaint against the city for groundwater contamination due to a leaking landfill, the city hired the engineering firm to conduct cleanup. The contract between the city and the firm contained a pay-when-paid clause in recognition of the fact that the city was depending on reimbursement from the state environmental agency to pay the firm for the cleanup work. During the course of the firm's work at the site, a contractor under the supervision of the firm illegally dumped fill into wetlands causing additional cleanup costs. Moreover, the firm deficiently performed tests for a hydraulic barrier and then used the results of the faulty test in the design of the barrier. The city ultimately fired the firm and refused to pay the firm for some of its work. During this time, the city brought two separate lawsuits to recover the costs of the cleanup from those who had caused the pollution in the first place. The firm eventually sued the city under breach of contract, CERCLA, and state law for failure to pay for work done under the contract. The city brought counterclaims for professional malpractice, breach of contract, and CERCLA contribution. The district court correctly set off against the city's counterclaim award the sum the city had recovered when it settled its previous CERCLA lawsuit. The damages the city sought in its previous CERCLA lawsuit overlapped with its counterclaim award in its lawsuit with the firm. Additionally, the district court's decision to award prejudgment interest was within the range of legitimate choices given the applicable law and the circumstances of the case. The court erred, however, in failing to reduce the amount of the prejudgment interest. The maximum amount on which prejudgment interest should have been awarded is the portion of the firm's award it would have recovered if the city's counterclaim had been subtracted from that award instead of being erased by the setoff. In addition, the firm forfeited its right to have the court consider its post-trial motion for judgment as a matter of law that the city's professional malpractice claim was barred by the statute of limitations because the firm failed to make a motion for judgment as a matter of law at the close of all the evidence. The district court erred, however, in preventing the firm from recovery under CERCLA on the basis of the contract's pay-when-paid clause. Blasland, Bouck & Lee, Inc. v. City of North Miami, No. 00-14975 (11th Cir. Mar. 1, 2002) (17 pp.).

MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT (MAGNUSON-STEVENS ACT), NATIVE AMERICAN FISHING RIGHTS:

The Ninth Circuit affirmed in part and reversed in part a district court decision upholding National Marine Fisheries Service (NMFS) regulations providing a Native American tribe an allocation of the Pacific whiting fishery. In the 1850s, Washington state entered into several treaties known as the Stevens Treaties with Native American tribes regarding fishing rights. The Stevens Treaties entitled the tribes to take 50% of the free-swimming fish within their usual and accustomed (U&A) fishing areas. Over a century later, the U.S. Congress passed the Magnuson-Stevens Act, which allowed the NMFS to issue fishery management regulations. The Magnuson-Stevens Act required any NMFS regulations to be consistent with applicable Native American treaty rights. In 1996, the NMFS issued a regulation that defined the tribe's U&A fishing area to extend to 40 miles off the coast of Washington state and that allocated to the tribe 15,000 metric tons of Pacific whiting. In 1999, the NMFS issued another regulation increasing the tribe's allocation of Pacific whiting to 32,500 metric tons. Several commercial fishing organizations challenged the regulations arguing that the treaty rights could not be recognized as applicable law under the Magnusosn-Stevens Act because there had been no judicial adjudication of tribal treaty rights to Pacific whiting. Such an adjudication, however, is unnecessary. Under U.S. Supreme Court and circuit court precedent, a tribe need not prove its historic fishing of a particular area or a particular fish. The Stevens Treaties reserved to the tribes the right to take fish, and that right extends to any species. Moreover, the Secretary of Commerce, as represented by the NMFS, appropriately recognized that the tribe's U&A fishing rights extended beyond the customary three-mile territorial limit. The Stevens Treaties do not provide a geographic limitation, and prior precedent recognized that the tribe's historic fishing grounds extended 40 miles out to sea. Nevertheless, the 1999 NMFS regulation is inconsistent with the scientific principles of the Magnuson-Stevens Act and, therefore, must be remanded. The Act requires that regulatory allocations of fish and the extent of tribal fishing rights be based on the best scientific information available. The 1999 regulation was issued pursuant to a negotiated agreement between NOAA and the tribe. As such, it is totally devoid of any scientific rationale. Consequently, the 1999 regulation is arbitrary and capricious, and, on remand, the NMFS must promulgate a new allocation based on the best available science or provide further scientific justification for the 1999 allocation. Midwater Trawlers Cooperative v. Department of Commerce, Nos. 00-35717, -35853 (9th Cir. Mar. 5, 2002) (19 pp.).

CAA, ASBESTOS NESHAPS, CRIMINAL SENTENCING:

The Second Circuit affirmed a district court conviction and sentencing of an individual for six counts of violating the CAA's asbestos NESHAPs. The individual argued that the CAA requires proof of specific knowledge of the regulations violated and that the district court improperly increased his sentence under the U.S. Sentencing Guidelines (USSG) §2Q1.2(b)(4). However, the government satisfies the knowledge element for purposes of a CAA conviction if it proves that the defendant knew that the substance involved in the alleged violations was asbestos. The government sufficiently established that the individual knew the substance involved was asbestos. In addition, the individual failed to raise before the district court the argument that USSG §2Q1.2(b)(4) does not apply to the CAA asbestos requirements because §2Q1.2(b)(4) only applies to permits required by a federal statute or a state regulatory scheme to which a federal statute has expressly delegated permit authority. The CAA neither requires a permit for asbestos removal nor expressly delegates to the states such authority. Nevertheless, issues not raised before a district court are generally forfeited on appeal unless there is a showing of plain error on the part of the lower court. The error, if any, in this case was not plain. United States v. Hunter, No. 00-1532 (2d Cir. Feb. 22, 2002) (2 pp.).

TAKINGS, WETLANDS:

The Court of Federal Claims denied the government's motion for summary judgment in a case brought by an individual alleging that the government's order to the individual to cease maintenance and operation of a drainage system on the individual's property and to restore portions of the property to their prior condition as wetlands constituted a taking. It is unclear from the record whether a nexus exists between 30 acres of the individual's property and an interstate water. Should the facts indicate that the 30 acres are not connected to an interstate waterway in any manner, then the U.S. Supreme Court's ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 121 S. Ct. 675, 31 ELR 20382 (2002), renders the issue of whether a taking occurred moot because the Court ruled in that case that the Corps no longer has authority to regulate isolated ponds and wetlands not connected to interstate commerce. Additionally, the size of the parcel as a whole remains in dispute. This factual dispute is relevant in establishing what the parcel as a whole is for the purpose of determining the economic impact of the regulation on the individual. Brace v. United States, No. 98-897 L (Fed. Cl. Feb. 11, 2002) (10 pp.).

CWA, CITIZEN SUIT, SALMON FARMS:

A district court found a salmon farmer guilty of violating the CWA by discharging pollutants without a NPDES permit in Machias and Pleasant Bays off the coast of Maine. Based on the undisputed facts and the broad reading of the term "pollutant" in the CWA, the escaping non-North American origin salmon, the copper used on the sea cages, the fish feed containing poultry parts and carophyll, the medicine given to the fish, and the salmon feces and urine all fall within the definition of pollutant under the Act. Moreover, as these items are put in the water by the farmer as part of its operation, they do not naturally occur in the bay and are, therefore, additions to the water. Additionally, the farms are located in Machias and Pleasant Bays and, thus, are clearly within the definition of navigable waters. Further, the farms are point sources under the CWA. Although aquatic animal production facilities are nonpoint sources under EPA regulations, concentrated aquatic animal production facilities (CAAPFs) are point sources and, therefore, prohibited from discharging pollutants without a NPDES permit. The farmer's conclusion that the phrase "ponds, raceways, and similar structures" in the regulations governing CAAPFs excludes its net pen operations due to their offshore location is contrary to EPA statements. Letters written by the Agency demonstrate that EPA interprets the regulations as encompassing net pen sea farms. Further, the Act's definition of point source and the caselaw identifying various point sources do not support the farmer's conclusions that the phrase "ponds, raceways, or other similar structures" relates only to facilities with discrete discharging pipes or its conclusion that its net pen operations cannot be considered point sources. Instead, the CWA and the caselaw lead to the conclusion that the release of pollutants from the farmer's pens into the bay constitutes an identifiable, discernible, confined, and discrete emission or conveyance into the water. Therefore, the environmental group that filed a citizen suit against the farmer met its summary judgment burden of demonstrating that the farmer has been and currently is discharging pollutants without a NPDES permit in violation of the CWA. Moreover, the court rejected the farmer's affirmative defenses that it is exempt from a zero-discharge standard under a narrow exception, that the environmental group's claims are barred by laches, and that the environmental group's claims are barred by equitable estoppel. United States Public Interest Research Group v. Atlantic Salmon of Maine, LLC, No. 00-151-B-C (D. Me. Feb. 19, 2002) (Kravchuck, J.) (38 pp.).

CWA, CITIZEN SUIT, SALMON FARMS:

A district court found a salmon farmer guilty of violating the CWA by discharging pollutants without a NPDES permit in Cobscook Bay off the coast of Maine. Based on the undisputed facts and the broad reading of the term "pollutant" in the CWA, the escaping non-North American origin salmon, the copper used on the sea cages, the fish feed containing poultry parts and carophyll, the medicine given to the fish, and the salmon feces and urine all fall within the definition of pollutant under the Act. Moreover, as these items are put in the water by the farmer as part of its operation and do not naturally occur in the bay, they are additions to the water. Additionally, the farms are located in Cobscook Bay and, thus, are clearly within the definition of navigable waters. Further, the farms are point sources under the CWA. Therefore, the environmental group that filed a citizen suit against the farmer met its summary judgment burden of demonstrating that the farmer has been and currently is discharging pollutants without a NPDES permit in violation of the CWA. United States Public Interest Research Group v. Stolt Sea Farm, No. 00-149-B-C (D. Me. Feb. 19, 2002) (Kravchuck, J.) (38 pp.).

CWA, CITIZEN SUIT, SALMON FARMS, STANDING:

A district court held that individuals who are members of an environmental group have standing to bring a CWA citizen suit against a salmon farmer for the illegal discharge of pollutants into water. All three of the individuals provide sufficient averments to satisfy the injury-in-fact requirement. They all described how concern over discharges from the farmer's operations has caused them to reduce the amount of fish and shellfish from the bay that they consume. Additionally, the individuals' concerns about the consumption of shellfish and other food from the bay as a result of discharges from the farms are fairly traceable to the farmer's conduct. Finally, an order enjoining unlicensed discharges from the farmer's operation and/or penalizing the farmer for ongoing violation of the CWA would provide a meaningful remedy for the injuries attested to by the individuals. United States Public Interest Research Group v. Heritage Salmon, Inc., No. 00-150-B-C (D. Me. Feb. 19, 2002) (Kravchuck, J.) (19 pp.).

JURISDICTION, DUE PROCESS:

A district court held that although it had jurisdiction to hear an individual's claim for damages for the disruption of his construction project, the individual's due process rights were not violated. The individual was granted the necessary permits to begin preparing the site for the construction of a 168-unit apartment building. After a citizen group filed suit to enjoin construction, the city issued a stop work order (SWO). An appeal of the SWO was denied on the grounds that the preliminary permits may have been issued based on inaccurate site information on the environmental impact screening form (EISF) filed by the individual. After submitting a revised EISF and filing suit in the district court, the SWO was rescinded. Resolution of the individual's claim that the suspension of its permits deprived him of procedural due process will not require the court to intrude unduly into sensitive areas of local policy or regulation, therefore, the court had jurisdiction to hear the case. The individual's due process rights, however, were not violated. The permits issued to the individual were not building permits and did not confer property rights. None of the permits issued was a prerequisite to construction that stood apart from the need for a building permit. Rather they were some of the many steps toward issuance of a building permit. Further, the language in the code under which the permits were issued is discretionary and makes very clear that the issuance of a partial permit comes with no promises. Moreover, the individual's substantive due process and Equal Protection claims failed. 3883 Connecticut, LLC v. District of Columbia, No. CIV.A.00-2453(JR) (Robertson, J.) (D.D.C. Feb. 28, 2002) (14 pp.).

TAKINGS, SAN FRANCISCO HOTEL CONVERSION ORDINANCE (HCO):

The California Supreme Court reversed an appellate court decision that a hotel did not need to obtain a conditional use permit before converting from residential to strictly tourist use and that a conversion fee required by the HCO constituted a taking. Although the hotel rented vacant rooms in the summer and occasionally in the winter, both of which were permitted under the HCO, it was zoned as a residential hotel. The hotel applied to the city for approval to rent all the rooms to tourists rather than to long-term renters. The city consented, but only after requiring the hotel to obtain a conditional use permit and to help replace the residential units the city claimed would be lost by the conversion, which the hotel elected to do by paying an in lieu fee to a government fund for the construction of low and moderate income housing. The appellate court erred in concluding that the hotel did not have to obtain a conditional use permit for full tourist use of the hotel. Because tourist use of the hotel before enactment of the HCU's conditional use requirements neither encompassed all the hotel's units nor occurred full time without regard to residential occupancy and demand, the hotel owners' proposal to convert to full-time tourist use constitutes an expansion of the hotel's historical use requiring conditional use authorization. Additionally, the in lieu fees assessed under the HCO and paid by the hotel are not entitled to heightened scrutiny under the takings clauses of the U.S. or California Constitutions. Further, the in lieu fees did not constitute a taking. The HCO neither targets an arbitrary small group of property owners nor deprives all the burdened properties of so much of their value, without any corresponding benefit, as to constitute a taking on its face. Moreover, the in lieu fee has a relevant connection to the tourist use of the hotel. The fee was based on the number of units designated residential that were proposed for conversion, and the residential designation of the hotel's rooms was reasonably based on the hotel management's own report on the use of the rooms. Nowhere do the hotel owners allege that the hotel was at any time entirely in tourist use, as would be required to support their claim that the housing replacement fee has no connection at all to the hotel's historical use, and, thus, their claim fails to state a cause of action. San Remo Hotel L.P. v. City & County of San Francisco, No. S091757 (Cal. Mar. 4, 2002) (85 pp.).

INSURANCE, RES JUDICATA, CLAIM PRECLUSION:

A California appellate court affirmed a lower court decision that res judicata barred a manufacturer's declaratory relief action seeking a declaration that insurers must indemnify the manufacturer for claims brought against it for harm caused by the discharge of chemicals to groundwater at a California site. In a prior action, a court held that the insurers had no duty or obligation to indemnify the manufacturer for any liability incurred with respect to the alleged discharge of waste materials. The manufacturer now claims that the prior decision does not apply to new claims because the new claims address ammonimum perchlorate, which was not one of the chemicals at issue in the prior action. The prior deicsion, however, specifically covers the ammonium perchlorate claims. The prior action applied to all past and future claims arising from the release of all waste materials at the site. Although the manufacturer claims that the prior decision is too broad and covers matters not litigated in that action, the manufacturer cannot now object to that decision. It should have challenged the breadth of the prior judgment while the case was pending, but it failed to do so. Moreover, although state law divides res judicata for declaratory judgments into two aspects--claim preclusion and issue preclusion--for certain declaratory judgments, a declaratory judgment is final and conclusive for those matters that appear on the face of the judgment. Here, even though the prior decision was a declaratory judgment, it conclusively addressed the matter of the insurers' duty to indemnify the manufacturer for any liability arising from the alleged contamination at the site. Further, a declaratory judgment's conclusive claim preclusion effect is not only limited to issues actually litigated and determined, but also to matters stated in the declaratory judgment. Thus, res judicata for declaratory judgments is not limited to preclusion of those issues actually litigated. Even assuming that the prior decision is only conclusive as to issues actually litigated, the manufacturer's present action would be barred because the gravaman of the action--whether the insurers had an obligation to provide coverage for all chemical releases at the site--is the same in both actions. Aerojet-General Corp. v. American Excess Insurance Co., C030874 (Cal. Ct. App. Feb. 28, 2002) (29 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA entered into a proposed settlement under CAA §113(g) in American Foundrymen's Society v. EPA, No. 00-1208 (D.C. Cir.), which concerns NESHAPs for secondary aluminum production. 67 FR 9972 (3/5/02).
  • EPA approved a negative declaration submitted by Indiana that it does not need regulations covering existing small municipal waste combustor units. 67 FR 10620 (3/8/02).

DRINKING WATER:

  • EPA proposed an analytical method and an associated minimum reporting level for the analysis of Aeromonas to support the Unregulated Contaminated Monitoring Regulation's List 2 monitoring of 120 large and 180 small public water systems from January 1, 2003, through December 31, 2003. 67 FR 10531 (3/7/02).

 

HAZARDOUS WASTES & SUBSTANCES:

  • EPA proposed to exclude wastewater treatment plant sludge generated by 11 automobile assembly facilities in Michigan from the RCRA lists of hazardous wastes. 67 FR 10341 (3/7/02).
  • EPA entered into a prospective purchaser agreement under CERCLA in connection with the Recticon/Allied Steel Superfund site in Parkerford, Pennsylvania. 67 FR 10208 (3/6/02).
  • EPA entered into a proposed settlement under CERCLA §122(h) in connection with the Carroll & Dubies site located in the Town of Deer Park, New York. 67 FR 9973 (3/5/02).
  • The Research and Special Programs Administration amended the Hazardous Materials Regulations by revising the "List of Hazardous Substances and Reportable Quantities" that appears in the table, "Hazardous Substances other than Radionuclides." 67 FR 9926 (3/5/02).

NATIONAL FORESTS:

  • The U.S. Forest Service transmitted to Congress the final boundaries of the Big Sur, Sisquoc, and Sespe National Wild and Scenic River in California. 67 FR 9953 (3/5/02).

TOXIC SUBSTANCES:

  • EPA received a self-certification letter from Colorado stating that Colorado's lead-based paint abatement program is at least as protective of human health and the environment as the federal program under TSCA. 67 FR 10205 (3/6/02).

UST PROGRAM:

  • EPA proposed to grant final approval to Nebraska to operate its UST program in lieu of the federal program. 67 FR 10353 (3/7/02).

WATER QUALITY:

  • The U.S. Coast Guard is seeking comment on the development of a ballast water treatment goal and an interim ballast treatment standard pursuant to the Nonindigenous Aquatic Nuisance Prevention and Control Act and the National Invasive Species Act, which require the Coast Guard to regulate ballast water management practices to prevent the discharge of shipborne ballast water from releasing harmful nonindigenous species into U.S. waters of the Great Lakes, and to issue voluntary guidelines to prevent the introduction of such species through ballast water operations in other U.S. waters. 67 FR 9632 (3/4/02).
  • EPA made a tentative affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of the Peconic Estuary in the County of Suffolk, New York. 67 FR 10208 (3/6/02).

WILDLIFE:

  • FWS proposed critical habitat for 32 of 37 species listed under the ESA known historically from the island of Lanai, Hawaii, within 8 critical habitat units totalling approximately 19,405 acres (7,853 hectares) on the island of Lanai. 67 FR 9805 (3/4/02).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Transcontinental Gas Pipe Line Corp., No. H-02-0387 (S.D. Tex. Feb. 1, 2002). A settling CWA and RCRA defendant that owns and operates a natural gas pipeline that streches from Texas to New York must perform corrective action consisting of solid and groundwater cleanup of hazardous wastes along its pipeline, must perform PCB cleanup work, must complete a stormwater discharge monitoring program, and must pay a $1.4 million civil penalty. 67 FR 9781 (3/4/02).

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

THE CONGRESS

CHAMBER ACTION

  • 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 House. 148 Cong. Rec. H705 (daily ed. Mar. 6, 2002).
  • H.R. 1883 (water resources), which would authorize the Secretary of the Interior to conduct a feasibility study on water optimization in the Burnt River, Malheur River, Owyhee River, and Powder River basins in Oregon, was passed by the Senate. 148 Cong. Rec. H706 (daily ed. Mar. 6, 2002).
  • H.R. 1963 (national trails), which would amend the National Trails System Act to designate the route taken by American soldier and frontiersman George Rogers Clark and his men during the Revolutionary War to capture the British forts at Kaskaskia and Cahokia, Illinois, and Vincennes, Indiana, for study for potential addition to the National Trails System, was passed by the House. 148 Cong. Rec. H707 (daily ed. Mar. 6, 2002).

COMMITTEE ACTION

  • S. 1979 (energy; tax incentives) was reported by the Senate Committeeon Finance. S. Rep. No. 107-140, 148 Cong. Rec. S1394 (daily ed. Mar. 1, 2002). The bill would provide energy tax incentives.
  • H.R. 706 (land conveyance) was reported by the House Committee on Resources. H. Rep. No. 107-368, 148 Cong. Rec. H779 (daily ed. Mar. 7, 2002). The bill 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.

BILLS INTRODUCED

  • S. 1987 (Smith, R-N.H.) (Corps of Engineers) would provide for reform of the Corps of Engineers. 148 Cong. Rec. S1536 (daily ed. Mar. 5, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 1999 (Johnson, D-S.D.) (water resources) would reauthorize the Mni Wiconi Rural Water Supply Project. 148 Cong. Rec. S1675 (daily ed. Mar. 7, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 3800 (Dingell, D-Mich.) (hydroelectric power) would amend the Federal Power Act to reform the hydroelectric licensing process. 148 Cong. Rec. H633 (daily ed. Feb. 27, 2002). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3802 (Hayworth, R-Ariz.) (environmental review; land conveyances) would amend the Education Land Grant Act to require the Secretary of Agriculture to pay the costs of environmental reviews with respect to conveyances under that Act. 148 Cong. Rec. H633 (daily ed. Feb. 27, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3808 (McInnis, R-Colo.) (public lands; enforcement) would provide consistent enforcement authority to BLM, the National Park Service, and the Forest Service to respond to violations of regulations regarding the management, use, and protection of the public lands, National Park System lands, and National Forest System lands. 148 Cong. Rec. H633 (daily ed. Feb. 27, 2002). The bill would also clarify the purposes for which collected fines may be used. The bill was referred to the Committees on Resources, and Agriculture.
  • H.R. 3817 (Visclosky, D-Ind.) (Indian Dunes National Lakeshore; land donations) would amend the Act entitled "An Act to provide for the establishment of the Indiana Dunes National Lakeshore, and for other purposes" to clarify the authority of the Secretary of the Interior to accept donations of lands that are contiguous to the Indiana Dunes National Lakeshore. 148 Cong. Rec. H633 (daily ed. Feb. 27, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3853 (Radanovich, R-Cal.) (public lands) would make technical corrections to laws passed by the 106th Congress related to parks and public lands. 148 Cong. Rec. H687 (daily ed. Mar. 5, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3858 (Rahakk, D-W. Va.) (New River Gorge) would modify the boundaries of the New River Gorge National River in West Virginia. 148 Cong. Rec. H736 (daily ed. Mar. 6, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3876 (Cannon, R-Utah) (San Rafael Western Frontier National Heritage Area) would establish the San Rafael Western Frontier National Heritage Area in Utah. 148 Cong. Rec. H736 (daily ed. Mar. 6, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3880 (Fossella, R-N.Y.) (CAA; transportation conformity) 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. 148 Cong. Rec. H736 (daily ed. Mar. 6, 2002). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.
  • H.R. 3881 (Hefley, R-Colo.) (water resources) would authorize the Secretary of the Interior to engage in studies relating to enlarging Pueblo Dam and Reservoir and Sugar Loaf Dam and Turquoise Lake Fryingpan-Arkansas Project in Colorado. 148 Cong. Rec. H736 (daily ed. Mar. 6, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3886 (Rothman, D-N.J.) (airport noise pollution) would require EPA to conduct a feasibility study for applying airport bubbles as a method of identifying, assessing, and reducing the adverse environmental impacts of airport ground and flight operations and improving the overall quality of the environment. 148 Cong. Rec. H737 (daily ed. Mar. 6, 2002). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.
  • H.R. 3888 (Stearns, R-Fla.) (land conveyance) would provide for the conveyance of the National Forest System lands underlying the George Kirkpatrick Dam on the Ocklawaha River near Palatka, Florida, and related lands to Florida. 148 Cong. Rec. H737 (daily ed. Mar. 6, 2002). The bill was refered to the Committee on Agriculture.
  • H.R. 3896 (Baker, R-La.) (mineral rights) would repeal the reservation of mineral rights made by the United States when certain lands in Livingston Parish, Louisiana, were conveyed by Public Law 102-562. 148 Cong. Rec. H780 (daily ed. Mar. 7, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3908 (Hansen, R-Utah) (wetlands) would reauthorize the North American Wetlands Conservation Act. 148 Cong. Rec. H780 (daily ed. Mar. 7, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3909 (Hansen, R-Utah) (Gunn McKay Nature Preserve) would designate certain federal lands in Utah as the Gunn McKay Nature Preserve. 148 Cong. Rec. H780 (daily ed. Mar. 7, 2002). The bill was referred to the Committee on Resources.
  • H.R. 3916 (Maloney, D-Conn.) (population) would provide a U.S. voluntary contribution to the United Nations Population Fund. 148 Cong. Rec. H781 (daily ed. Mar. 7, 2002). The bill was referred to the Committee on International Relations.
  • H.R. 3920 (Thune, R-S.D.) (ESA) would amend the ESA to establish special requirements for determining whether the black-tailed prairie dog is an endangered species or threatened species. 148 Cong. Rec. H781 (daily ed. Mar. 7, 2002). The bill was referred to the Committee on Resources.

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

IN THE STATES

To view archived versions of State UPDATE, please see the State UPDATE section of the UPDATE archive

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

INTERNATIONAL

GENERAL

  • Nitin Desai, chair of the upcoming World Summit on Sustainable Development (Rio + 10 Summit, Aug. 26-Sept. 4) said improved citizen participation (a major ELI initiative is underway in this area), better urban planning, energy management, and improved access to clean water are the chief challenges.
  • The Envisat satellite was launched from an Ariane-5 rocket. Europe's largest, it will track greenhouse gases, oil slicks, tropical forests, and ocean levels. See http://www.nature.com/nsu/020225/020225-12.html
  • The United States and Vietnam held talks on how to address the environmental consequences of Agent Orange use. They agreed to jointly conduct research but did not discuss compensation for victims.
  • The Transport Committee of the European Parliament said that a proposed aircraft noise reduction directive should be modified; the proposed exemption allowing the noisiest aircraft registered in developing countries to continue operating should be time-limited to a period of 10 years and exempted aeroplanes must be prevented from moving to other airports in the Community. Light aircraft should not be brought within the scope of the directive, the Committee argued, and noise restriction measures should be non-discriminatory on the grounds of nationality or origin of the aircraft manufacturer.
  • The Parliament's Environment Committee is proposing stricter health rules on the use of animal by-products that are not intended for human consumption. It said that by-products from animals approved for human consumption should be used in animal feed, cosmetics, and medicinal products; reuse within the same species (pigs eating pigs or animal cannibalism) should be banned; and that the new regulation should be sufficiently flexible to be adapted to technological developments and new scientific findings.
  • The Committee also condemned the slow implementation of the European Union's urban waste water directive. The aim of the directive, adopted in 1991, is to protect the environment from the effects of the discharge of urban waste water and biodegradable waste water from the food processing industry. The Committee said it was "scandalous that obligations to provide information were so inadequately fulfilled that even in 2001 it was not possible to verify compliance with the first deadline (the end of 1998)."
  • The European Commission said that cadmium batteries for electric vehicles must be replaced with safer substitutes by 2005. The Directive on end-of-life vehicles adopted in 2000 includes a general ban on heavy metals, and states that lead, mercury, cadmium, and hexavalent chromium will be banned on July 1, 2003, unless a derogation is provided. These derogations are possible only if the use of heavy metals in certain applications is unavoidable. The proposal will now receive the opinion of a regulatory Committee before final adoption by the Commission. Environment Commissioner Margot Wallström said: "Through the implementation of the End-of-Life Vehicles Directive, we are sending a clear signal that cadmium should be replaced in vehicle batteries by the end of 2005. As these batteries are used in electric cars, and we obviously want to ensure the expansion of the market for such zero-emission vehicles, it is important that the transition to the available substitutes does not disrupt the electric vehicle market. Our proposal seeks to end this use of cadmium while ensuring the growth in the use of electric vehicles."
  • Norway's parliament approved a controversial natural gas project in the Barents Sea.
  • The UN Commission on the Status of Women heard from speakers who said that women should play a pivotal role in promoting sustainable development. See http://www.un.org/News/Press/docs/2002/wom1324.doc.htm
  • The UN Forum on Forests was held in New York City. See http://www.un.org/News/Press/docs/2002/envdev625.doc.htm

CLIMATE CHANGE

  • European environment ministers reaffirmed their faith in the Kyoto Protocol and called for ratification by European Union members by June 1. Jaume Matas, Spain's environment minister, said "for the European Union, this is the best instrument to fight climate change, the
    most serious environmental problem that humanity is facing." The ministers were unable, however, to agree on the long troubling issue of how to set national limits on greenhouse gas emissions. They will be set by the European Commission. See http://www.guardian.co.uk/international/story/0,3604,661888,00.html
  • President of the European Commission Romano Prodi said "today is an historical moment
    for European efforts to combat climate change. I am very pleased that the Council has now
    approved the Kyoto Protocol thus enabling the EU to proceed with its ratification. I am confident that Member States will take the necessary steps in order to allow for a simultaneous ratification together with the European Community before 1 June 2002. Once again, the EU is exercising leadership in addressing this global environmental problem, as we have done in Bonn and Marrakech last year. We can only tackle climate change effectively through a multi-lateral process. I urge our partners both in the developed and in the developing countries to also ratify the Kyoto Protocol soon. We want the Protocol to enter into force before the World Summit on Sustainable Development this summer."
  • Environment Commissioner Margot Wallström stated "this is indeed a good day for the climate and for sustainable development. The scientific evidence on climate change is stronger than ever. All countries have to act, but the industrialised countries have to take the lead. To protect our climate we will have to reduce emissions. We all know that even the targets in the Kyoto Protocol are only a first step if we want to prevent the severe consequences that climate change could have." She added that "the European Commission has already proposed measures to reduce emissions at the lowest economic cost, including an EC-wide emissions trading scheme to begin in 2005. Further proposals are in the pipeline. However, all Member States have to take their responsibility to ensure that they meet their burden-sharing targets."
  • Scientists and policymakers at the World Commission on Forests and Sustainable Development meeting in Winnipeg said global warming is having a significant adverse effect on forests by making them more vulnerable to drought, fires, and pest infestations.
  • Harlan Watson, primary climate change negotiator for the United States, said that full implementation of the Kyoto Protocol would not help small island nations such as Tuvalu (which has threatened to sue the U.S. and Australia). "I would say to them that, if they do have a problem with sea levels rising, Kyoto will not stop that. The overall temperature of the Earth has been warming for the last 10,000-plus years....Kyoto will not slow that down one whit....The South Pacific is very volcanically unstable on the sea floor...so you have some natural subsidence occurring anyway. Islands are appearing and disappearing all the time."
  • Jordan said it would ratify the Protocol. See http://www.jordantimes.com/Wed/homenews/homenews2.htm And Japan's government will submit a ratification proposal to Parliament on March 12.
  • British Environment Secretary Margaret Becker submitted a Kyoto ratification proposal to Parliament. The Conservative Party's environment spokesperson, Peter Ainsworth, said his party would not oppose ratification but that Kyoto was largely "symbolic." "It represents acknowledgment of the challenge that climate change represents rather than a blueprint for meeting that challenge," he added.
  • Canadian Environment Minister David Anderson said the U.S. should do more to address climate change. "Ms. Whitman already has my views on the fact that I think the American plan doesn't go far enough," Minister Anderson said. "But, that said, within (the plan) there may be some opportunities for beefing it up, for bringing it more in conformity with Kyoto's approaches." But Anderson also said that Canada will seek substantial Kyoto credits, amounting to as much as 70 megatonnes of greenhouse gas reductions, for exports of natural gas and hydroelectricity. After two days of meetings, the U.S. and Canada reached an agreement to work together to reduce greenhouse gas emissions and to exchange technology information. "We have many measures that are common to our respective approaches. We will enhance the two countries' existing and future efforts, especially in the energy area," said Minister Anderson. "Our twin-track approach will allow us to work with the U.S. in the North American context while we pursue international solutions under the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol." See http://www.ec.gc.ca/Press/2002/020307-2_n_e.htm

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