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Weekly Update Volume 34, Issue 12

04/26/2004

 

LITIGATION

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

 

NEPA, PRELIMINARY INJUNCTION:

A district court issued a preliminary injunction ordering the U.S. Navy to stop its plans to construct a practice landing field located just a few miles from a large migratory bird refuge. The balance of the harm weighs heavily in the favor of the residents and environmental groups challenging the Navy's decision. If a preliminary injunction were not issued, the Navy will begin acquiring land, which will result in irreparable harm to landowners and the environment, yet a preliminary injunction would not impose too excessive of a burden on the Navy or on the public. Further, the residents and groups raised serious, substantial, and difficult questions as to whether the Navy acted arbitrarily and capriciously under NEPA in deciding to construct the landing field. They presented evidence that the Navy failed to take a hard look at the environmental effects of the landing field, that it failed to analyze alternatives, and that it failed to assess the project's cumulative impacts. And despite the Navy's duty to protect the public, train its pilots, and maintain national security, the public interest is not served by compromising environmental due process and proceeding with a project that may later be found to be in violation of NEPA. Washington County, N.C. v. United States Department of the Navy, Nos. 2:04-CV-3-BO(2), -2-(BO)2 (E.D.N.C. Apr. 20, 2004) (Boyle, J.) (19 pp.).

TAKINGS, ESA, PROTECTED HABITAT:

The Federal Circuit held that the FWS' denial of an incidental take permit authorizing logging on 40 acres of protected owl habitat was neither a physical nor a regulatory taking. Contrary to the lower court's decision, the landowners' claim is ripe. Although the FWS invited the landowners to continue discussions as to their logging plans, the permit denial was clearly final. Nevertheless, the landowners' temporary takings claim failed. The permit denial was not a physical taking because regulatory restrictions on the use of property do not constitute physical takings. Further, the ESA and the incidental take permit process serve a legitimate public purpose. Nor did the permit denial constitute a categorical taking because the landowners were not deprived of all economically viable use of the timber on their 200-acre parcel. Last, no regulatory taking occurred because no economic injury was shown to have resulted from the alleged taking. Seiber v. United States, No. 03-5010 (Fed. Cir. Apr. 19, 2004) (25 pp.).

TAKINGS, PUBLIC USE:

The Eleventh Circuit held that a city did not violate the Public Use Clause requirement of the Takings Clause when it paved over landowners' property with asphalt. Paving a portion of the landowners' property was rationally related to a conceivable public purpose and did not violate their rights to substantive due process. Further, there is no legal basis on which the landowners may simply assert that the city, as opposed to individual city officials acting illegally, deprived them of their property because the landowners' complaint does not spell out the connection between the individual officers' actions and the city itself, nor does it articulate a theory under which the city may be held liable. Garvie v. City of Walton Beach, Fla., No. 03-10886 (11th Cir. Apr. 20, 2004) (11 pp.).

WETLANDS, SENTENCING:

The Eleventh Circuit upheld the conviction and sentence of an individual that unlawfully discharged pollutants into U.S. wetlands without a permit. The lower court properly applied a four-level enhancement under U.S. Sentencing Guidelines (U.S.S.G) §2Q1.3(b)(1)(A) because the government proved that the individual engaged in repeated, unlawful dumping of pollutants into federally protected wetlands without a permit. Further, the four-level enhancement under U.S.S.G. §2Q1.3(b)(4) does not constitute impermissible double counting because the individual's failure to procure a permit was a distinct offense from his mishandling of environmental pollutants. United States v. Perez, No. 02-16627 (11th Cir. Apr. 20, 2004) (16 pp.).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved

THE FEDERAL AGENCIES

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

  

AIR:

  • EPA promulgated NESHAPs for iron and steel foundries; when fully implemented, the standards should reduce hazardous air pollutant emissions associated with such foundries by more than 820 tons per year. 69 FR 21905(4/22/04).
  • EPA promulgated NESHAPs for plastic parts and products surface coating operations located at major sources for hazardous air pollutants. 69 FR 20967 (4/19/04).
  • EPA proposed NESHAPs for hazardous waste combustors, including hazardous waste burning incinerators, cement kilns, lightweight aggregate kilns, industrial/commercial/institutional boilers and process heaters, and hydrochloric acid production furnaces; the proposed standards would implement CAA §112(d) by requiring that the affected operations meet emission standards that reflect the application of maximum achievable control technology. 69 FR 21197 (4/20/04).

DRINKING WATER:

  • EPA tentatively approved and requested public comment on revisions to Puerto Rico's public water supply supervision program concerning the program's public notification and radionuclides rules. 69 FR 21831 (4/22/04).
  • EPA tentatively approved revisions to North Carolina's public water system supervision program that make minor changes to the lead and copper, arsenic, radionuclide, and filter backwash rules. 69 FR 21098 (4/20/04).
  • EPA announced the availability of and requested comment on draft final guidelines for a voluntary tribal drinking water operator certification program developed by the Agency to provide operators of drinking water systems in Native American country opportunities for training, to provide non-state organizations baseline standards for certifying such system operators, and to establish a consistent method of assessing, tracking, and addressing the training and certification needs of such operators. 69 FR 20874 (4/19/04).

ENERGY:

  • DOE's Energy Information Administration announced its disclosure limitation policy for statistical information based on annual survey data collected concerning renewable fuels, alternative fueled vehicles, and alternative transportation fuels. 69 FR 20867 (4/19/04).

HAZARDOUS AND SOLID WASTES:

  • EPA revised RCRA regulations to allow hazardous waste generators who are members of the Agency's National Environmental Performance Track Program to accumulate hazardous waste without a RCRA permit or interim status for up to 180, or in some cases, 270 days, and to simplify reporting requirements for members governed by CAA maximum available control technology provisions. 69 FR 21737 (4/22/04).
  • EPA requested information from stakeholders concerning the effectiveness of the RCRA hazardous waste generator regulatory program and areas for potential program improvement; the Agency plans to use the information to determine whether changes to the program are warranted. 69 FR 21800 (4/22/04). 
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Falcon Refinery Superfund in Ingleside, Texas; the settling party must pay $120,078.52 to the EPA Hazardous Substances Superfund as reimbursement of past response costs. 69 FR 21098 (4/20/04).
  • EPA granted a petition to exclude certain liquid waste generated by the OxyVinyls LP facility in Houston, Texas, from RCRA hazardous waste regulations so long as the waste is disposed of according to relevant Texas pollutant discharge elimination system standards. 69 FR 21754 (4/22/04).
  • EPA proposed to authorize changes to Indiana's hazardous waste program under RCRA. 69 FR 21077 (4/20/04).
  • EPA authorized revisions to South Dakota's hazardous waste program under RCRA. 69 FR 21963 (4/23/04).

PESTICIDES:

  • EPA granted an experimental use permit to Syngenta Seeds, allowing the use of approximately 23.74 grams of the plant-incorporated protected Bacillus thuingiensis VIP3A insect control protein as expressed in Event COT102 cotton plants on 4,195 acres of cotton to evaluate the substance's use in controlling cotton bollworm and tobacco budworm. 69 FR 21533 (4/21/04).

RISK ASSESSMENT:

  • EPA's Science Advisory Board announced the formation of the Formaldehyde Review Panel, which will assess a recent toxicological review of formaldehyde for consistency with the Agency's proposed revised cancer guidelines and principles of mode-of-action modeling. 69 FR 21525 (4/21/04).

WETLANDS:

  • The Federal Interagency Mitigation Workgroup, sponsored by EPA, NOAA, the Department of Commerce, the U.S. Army Corps of Engineers, DOD, DOI and FWS, USDA and the Natural Resources Conservation Service, and DOT, announced the availability of a draft federal guidance on the use of off-site and out-of-kind compensatory mitigation under CWA §404 intended to provide direction for the application of existing regulations and policies concerning the appropriate use of such mitigation in the §404 wetland permitting program. 69 FR 22028 (4/23/04).

WILDLIFE:

  • FWS proposed to designate Louisville, Kentucky; Memphis, Tennessee; and Houston, Texas, as ports authorized under the ESA for the direct importation and exportation of wildlife and wildlife products. 69 FR 21806 (4/22/04).
  • FWS determined that the beluga sturgeon, a fish valued for its production of beluga caviar and threatened by habitat modification and degradation, over-exploitation for trade, limited natural reproduction, and pollution, is threatened under the ESA. 69 FR 21425 (4/21/04).
  • FWS announced that three petitions to list the greater sage-grouse, a bird species dependent on sagebrush and sand-steppe habitat, as threatened or endangered under the ESA present substantial information indicating that listing may be warranted. 69 FR 21484 (4/21/04).
  • FWS announced that a petition to remove the Stephens' kangaroo rat from the ESA list of endangered species, where it was placed in 1988, presents substantial information suggesting that removal could be warranted. 69 FR 21567 (4/21/04).
  • FWS found that a petition to list the Colorado River cutthroat trout as threatened or endangered under the ESA did not present substantial scientific or commercial information to warrant listing. 69 FR 21151 (4/20/04).
  • NOAA announced temporary restrictions on lobster trap/pot and anchored gillnet fishermen in an approximately 1,347 square nautical mile area east of Boston, Massachusetts, through April 30, 2004; the restrictions are intended to protect an aggregation of North Atlantic right whales and are consistent with requirements of the Atlantic large whale take reduction plan. 69 FR 21070 (4/20/04).
  • NOAA's National Marine Fisheries Service renewed its affirmative finding under the Marine Mammal Protection Act that El Salvadorian-flag purse seine vessels or such vessels operating under El Salvador's jurisdiction may continue to import into the United States yellowfin tuna harvested in compliance with the International Dolphin Conservation Program in the eastern tropical Pacific Ocean. 69 FR 20862 (4/19/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Bullion Beck Mining Co., No. 2:04CV00311 TS (D. Utah Apr. 7, 2004). Settling defendants under CERCLA liable for U.S. response costs associated with the release or threatened release of hazardous substances at the Eureka Mills NPL site in Eureka, Utah, must provide various in-kind contributions of materials necessary for site cleanup, allow EPA to construct response action structures on property owned by some defendants and provide for the operation and maintenance of such structures, and promise to perform operation and maintenance work necessary to maintain the remedy at the site. 69 FR 21860 (4/22/04).
  • United States v. Burlington Northern Co., No. 04-0319-CV-NKL (W.D. Mo. Apr. 9, 2004). Two settling defendants under CERCLA must perform removal action at the Armour Road Superfund site in North Kansas City, Missouri, and four other settling defendants must pay $530,000 into an escrow account that will be used by the two first-referenced defendants in conducting and financing the removal action. 69 FR 21861 (4/22/04).
  • United States v. Moulis Co., No. 04 C 616 (N.D. Ill. Apr. 15 2004). Settling defendants under the CWA and the Rivers and Harbors Appropriation Act of 1899 who filled wetlands on their property without a permit and installed a boat ramp and associated structures at Fox Lake Harbor Marina (in Illinois) without a permit must pay a civil penalty, contribute to a wetland restoration fund, remove all fill materials from the wetland impact area, remove the ramp and associated structures or purchase and similarly abandon another ramp at the lake, and refrain from mowing, cutting, clearing, cultivating, dredging, excavating, farming, filling, dewatering, draining, or otherwise disturbing the wetland impact area in any manner. 69 FR 21861 (4/22/04).
  • United States v. GTE Operations Support Inc., No. 04-1644 (D.N.J. Apr. 7, 2004). Settling de minimis defendants under CERCLA must pay $81,667.30 in past and future U.S. response costs associated with the A.O. Polymer Superfund site in Sparta Township, New Jersey, plus interest (at the CERCLA rate) if they fail to make the payment within 30 days. 69 FR 21862 (4/22/04).
  • United States v. Kerr-McGee Chemical LLC, No. 04 C 2001 (N.D. Ill. Apr. 13, 2004). A settling defendant under CERCLA must pay past U.S. response costs of $640,000 associated with four operable units at the Lindsay Light II Superfund removal site in Chicago, Illinois. 69 FR 21862 (4/22/04).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

THE CONGRESS
  

PUBLIC LAWS:

  • H.R. 2584 (Utrok Atoll, Marshall Islands), which would provide for the conveyance to the Utrok Atoll local government a decommissioned NOAA ship, was signed into law by President Bush on April 13, 2004. Pub. L. No. 108-219 (daily ed. Apr. 19, 2004).

CHAMBER ACTION:

  • S. 1814 (federal lands transfer), which would transfer federal lands between the Secretary of Agriculture and the Secretary of the Interior, was passed by the Senate. 150 Cong. Rec. S4162-64 (daily ed. Apr. 20, 2004).
  • H.R. 3118 (building designation), which would designate the Orville Wright Federal Building and the Wilbur Wright Federal Building in Washington, D.C., was passed by the Senate, clearing the measure for the President. 150 Cong. Rec. S4162-64 (daily ed. Apr. 20, 2004).

COMMITTEE ACTION:

  • H.R. 2693 (Pombo, R-Cal.) (Marine Mammal Protection Act), was reported by the Committee of the Whole House on the State of the Union. H. Rep. No. 108-464, 150 Cong. Rec. H2198 (daily ed. Apr. 20, 2004). The bill would reauthorize the Marine Mammal Protection Act of 1972.

BILLS INTRODUCED:

  • S. 2319 (Alexander, R-Tenn.) (hydroelectric power), would authorize and facilitate hydroelectric power licensing of the Tapoco Project. 150 Cong. Rec. S4096 (daily ed. Apr. 19, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2334 (Clinton, D-N.Y.) (forests), would designate certain National Forest System land in Puerto Rico as components of the National Wilderness Preservation System. 150 Cong. Rec. S4300 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2337 (Stabenow, D-Mich.) (water quality), would establish a grant program to support coastal and water quality restoration activities in states bordering the Great Lakes, and for other purposes. 150 Cong. Rec. S4300 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2342 (Warner, R-Va.) (forests), would designate additional National Forest System lands in Virginia as wilderness, to establish the Seng Mountain and Crawfish Valley scenic areas, to provide for the development of trail plans for the wilderness areas and scenic areas, and for other purposes. 150 Cong. Rec. S4300 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • H.R. 4189 (Lucas, R-Okla.) (Environmental Quality Incentives Program), would modify and improve the funding structure of the Environmental Quality Incentives Program. 150 Cong. Rec. H2265 (daily ed. Apr. 21, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 4196 (Kirk, R-Ill.) (military lands), would authorize the conveyance of certain environmentally sensitive land at former Fort Sheridan, Illinois, to ensure the permanent protection of the lands. 150 Cong. Rec. H2371 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Armed Services.
  • H.R. 4202 (Boucher, D-Va.) (forests), would designate additional National Forest System lands in Virginia as wilderness, to establish the Seng Mountain and Crawfish Valley scenic areas, to provide for the development of trail plans for the wilderness areas and scenic areas, and for other purposes. 150 Cong. Rec. H2371 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Agriculture and to the Committee on Resources.
  • H.R. 4206 (Cunningham, R-Cal.) (energy efficiency), would provide for various energy efficiency programs and tax incentives, and for other purposes. 150 Cong. Rec. H2371 (daily ed. Apr. 22, 2004). The bill was referred to the Committees on Energy and Commerce, on Ways and Means, and Financial Services.
  • H.R. 4210 (LoBiondo, R.-N.J.) (fishing), would amend the Farm Credit Act of 1971 to support the commercial fishing industry. 150 Cong. Rec. H2371 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 4215 (Velazquez, D-N.Y.) (hazardous substances), would amend the Public Health Service Act to prohibit discrimination regarding exposure to hazardous substances, and for other purposes. 150 Cong. Rec. H2372 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H. Res. 606 (Weller, R-Ill.) (lands), would commend Kankakee County, the Kankakee River Basin Partnership, the Illinois Department of Natural Resources, The Nature Conservancy, the Illinois Clean Energy Community Foundation, and local citizens for their work in preserving the Kankakee Sands Ecosystem in Kankakee County, Illinois. 150 Cong. Rec. H2372 (daily ed. Apr. 22, 2004). The bill was referred to the Committee on Resources.

 

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

IN THE STATES

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Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

GENERAL:

  • In a statement issued on Earth Day, the World Bank said that millions of children are suffering from diseases from pollution and unsafe water supplies.
  • Seven "grassroots environmental heroes" were awarded the Goldman Environmental Prize.
  • Tatiana Zaharchenko, a Visiting Scholar at the Environmental Law Institute, said in a presentation at the Wilson Center in Washington, D.C. that the United Nations (U.N.) Economic Commission for Europe's 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) has had a significant impact in post-Soviet states.
  • The U.N. Environment Program and the Asian Development Bank published the Greater Mekong Subregion Atlas of the Environment.
  • The U.S. Energy Information Administration issued a report which concludes that global demand for all forms of energy will likely increase by 54% by 2025; oil consumption will increase by at least 40 million barrels per day. Global oil production would need to increase by 44 million barrels per day to meet the increased demand. The strongest growth in energy use will be in developing countries, particularly China and India.

EUROPE:

  • Plantlife International said that 17 of the 30 species of stoneworts, an underwater plant, are in "catastrophic decline" in waters off the United Kingdom. See http://www.plantlife.org.uk/
  • The European Commission (EC) signaled its disapproval of several amendments included in the European Parliament's vote in first reading on a new directive on batteries. The vote came less than six months after the Commission proposed the new Directive in November 2003. Among the most significant amendments tabled by the Parliament is a different collection target for portable (i.e., normal household) batteries, corresponding to 50% of the annual sales as of two years ago. The Commission's proposal contemplated a general collection target of 160 grams per inhabitant and year (corresponding to four to five batteries). In addition, the Commission proposed an additional target of 80% of the nickel-cadmium batteries disposed annually in each Member State. The Commission's proposed collected target was identified as the most cost-efficient target. Moreover, these proposals, according to the Commission, take account of the unpredictable life span of batteries and the fact that consumers often hoard them before bringing them to a collection point, which makes it difficult to link battery collection to annual sales, as well as of the special environmental concerns that nickel-cadmium batteries raise. The Commission will therefore reject the respective amendments. The Commission will introduce a modified proposal, accepting some of the amendments and rejecting others. The EC Council will then formulate its opinion on the proposed Directive in a common position. The co-decision procedure will end when the European Parliament and the Council reach agreement and formally adopt the Directive. After publication in the Official Journal and its entry into force, Member States will have 18 months to transpose the obligations of the Directive into national legislation. See http://europa.eu.int/comm/environment/waste/batteries/index.htm

CLIMATE CHANGE:

  • The European Parliament approved a new Directive that will allow European companies participating in emissions trading to count credits from emission reduction projects around the world towards their obligations under the European Union's (EU's) emissions trading program. The Parliament's vote came less than nine months after the EC proposed the Directive in July 2003. The Council is expected to formally approve the proposed Directive at one of its next meetings. Once formally adopted, the Directive will be published in the Official Journal and enter into force on the day of publication. Member States will then have 12 months to transpose it into national legislation. See http://europa.eu.int/comm/environment/climat/home_en.htm
  • The German constitutional court rejected a challenge to the country's 1999 tax on fossil fuels and electricity. Seehttp://news.bbc.co.uk/2/hi/europe/3643139.stm
  • Andrei Illarionov, a leading economic advisor to Russian President Vladimir Putin, described the Kyoto Protocol as, economically speaking, akin to "an international gulag or Auschwitz", except that "in a gulag, people were at least given the same rations, which did not lessen from one day to the next." "But the Kyoto Protocol proposes decreasing rations day by day," he declared. "The Kyoto Protocol is a death treaty because its main purpose is to stifle economic growth and economic activity. "If you set quotas on each of us requiring us to cut greenhouse gas emissions by 58 percent over a course of a certain period of time, we will have to turn into dwarves or babies, or to stop [inhaling], which would have quite predictable results on our [bodies]," he said. But the London Independent reported that Russia may ratify the Protocol given assurances to Putin by EC President Romano Prodi that the EU will open its markets to Russian energy companies. Russian Industry and Energy Minister Viktor Khristenko said that ratification could occur if the EU supports Russia's accession to the World Trade Organization.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

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