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Weekly Update Volume 34, Issue 16

06/07/2004

 

 LITIGATION

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

TAKINGS, TRUSTS:

The Federal Claims Court held that an unsuitability determination for surface mining on land did not, in part, constitute a taking of property interests when a mere 10% diminution in value still left the land economically viable. The mineral royalty interests were held by separate legal entities, individuals who held legal title, and trust beneficiaries who held equitable title. As to the individually held rights, the court found a taking had occurred without compensation because the entirety of the mineral interests on the relevant parcel was covered by the unsuitability determination. As to the trustee-held rights, the trust only had a non-participating royalty interest in coal, not an executive right to mine coal, and the only economic expectation expressed was a common development scheme for coal production. Since the trust earned a substantial profit on the relevant parcel prior to the alleged taking, the trust did not suffer a compensable taking.Cane Tennessee, Inc. v. United States, No. 96-237L (Fed. Cl. May 28, 2004) (19 pp.).

CAA, NONATTAINMENT:

The Sixth Circuit upheld EPA's redesignation of Cleveland, Ohio, from nonattainment to attainment for particulate matter under CAA §107(d)(3)(E). An environmental group argued that EPA illegally waived statutory requirements when it redesignated the area to attainment by not fully approving the SIP but the court declined to determine whether Ohio's NSR program should have been fully approved prior to redesignation as no challenges to the rule were filed by the deadline. The court determined as reasonable EPA's interpretation that the NSR program is not a pollution control measure, but a permitting program under which those who want to construct a new major pollutant source, or modify an existing major pollutant source, must acquire a permit; it is not a contingency measure such as immediate emission reductions on existing sources. Finally, EPA's approval of Ohio's maintenance plan with contingency measures to provide a means to deal with likely violations was proper, and was not intended to cover every possible contingency.Greenbaum v. U.S. Environmental Protection Agency, No. 01-3132 (6th Cir. June 3, 2004) (12 pp.).

CAA, TRANSPORTATION CONTROL MEASURES, PUBLIC TRANSIT:

The Ninth Circuit amended its April 6, 2004 opinion and denied the petition for rehearing and petition for rehearing en banc on the issue that local transportation control measures, adopted as part of California's SIP to attain federal air quality standards in the San Francisco Bay Area, does not impose an enforceable obligation on the local transportation commission to increase public transit ridership. The amendments included changing the caption and footnote 1 from "Alameda County Transit District" with "Alameda-Contra Costa Transit District."Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission, No. 02-17352 (9th Cir. June 2, 2004) (25 pp.).

CAA, SNOWMOBILE EMISSIONS STANDARDS:

The D.C. Circuit upheld EPA's snowmobile emissions standards for CO and HC under CAA §213(a)(3) and (a)(4), remanding for further clarity, but vacated NOx standards that should be regulated under §213(a)(3), which specifically refers to NOx. EPA had statutory authority to regulate emissions from snowmobiles, considered as a separate category, upon finding that CO emissions contributed to ozone concentrations in more than one nonattainment areas, and that HC and NOx contributed to haze in Class I areas. However, EPA failed to adequately explain why its 2012 standards for cleaner, more efficient engines would exempt almost one-third of new snowmobiles when the technology to do so is currently available.Bluewater Network v. Environmental Protection Agency, No. 03-1003 (D.C. Cir. June 1, 2004) (34 pp.).

NEPA, ESA, NATIONAL FOREST MANAGEMENT ACT:

A district court granted a federal agency's motion to transfer venue to Idaho, contrary to the Indian tribe's forum choice in Oregon, since the land management project which includes the timber harvesting at issue, prescribed burning, road construction, weed control, and replanting of riparian areas is located on national forest lands in Idaho. The only relevant event that occurred in Oregon was the review and execution of a biological opinion on the impact of the timber sale on threatened Snake River Basin steelhead by the NMFS. The impact of the timber sales and associated activities in the national forest are substantially different from the focus of the cases pending in Oregon and are clearly within the competence of the District of Idaho to resolve. Nez Pierce Tribe v. National Oceanic & Atmospheric Administration Fisheries, No. CV 04-60-RE (D. Or. May 27, 2004) (Redden, J.) (20 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 entered into a proposed settlement agreement under the CAA inAISI/ACCCI Coke Oven Environmental Task Force v. U.S. Environmental Protection Agency, No. 03-1167 (D.C. Cir.), wherein the petitioners challenged the Agency's final rule concerning national emission standards for hazardous air pollutants produced by pushing, quenching, and battery stack operations at coke oven batteries (68 FR 18008).69 FR 31372(6/03/04).
  • EPA proposed to approve second 10-year maintenance plans for carbon monoxide (CO) and ozone after Washington demonstrated that the Central Puget Sound area will maintain air quality standards for CO and ozone through the year 2016.69 FR 30852(6/01/04).

DRINKING WATER:

  • EPA approved the use of three new analytical methods for inductively coupled plasma mass spectrometry; the methods are intended to make compliance determinations concerning uranium in drinking water more cost-effective, less laborious, and more sensitive.69 FR 31013(6/02/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative order on consent under CERCLA with approximately 130 de minimis settling parties associated with the Container Recycling Inc. Superfund site in Kansas City, Kansas, and requested public comment on the order.69 FR 31375(6/03/04).
  • EPA announced the deletion of the Combe Fill North Landfill Superfund site from the NPL after determining that all appropriate remedial actions were completed and no further fund-financed remedial action would be appropriate under CERCLA.69 FR 31022(6/02/04).

NATURAL RESOURCES:

  • USDA's Natural Resources Conservation Service (NRCS) announced the availability of a proposed change to the NRCS state technical guide for Arizona; the revision concerns the practice standard for nutrient management.69 FR 31344(6/03/04).

WILDLIFE:

  • NOAA's National Marine Fisheries Service (NMFS) designated the AT1 group of transient killer whales, found in waters off the Alaskan coast, as a depleted population stock of marine mammals under the Marine Mammal Protection Act.69 FR 31321(6/03/04).
  • NMFS proposed to suspend the interim policy addressing the role of hatchery-produced Pacific salmon and steelhead in listing determinations under the ESA and revise the policy so that it accounts for scientific research that has occurred since its implementation in 1995 and the implications of the September 12, 2001, decision by the U.S. District Court in Oregon, which held that the Service's exclusion of artificially propagated Oregon coast coho salmon from ESA status determinations for the species was improper because the artificially propagated salmon populations were part of the same distinct population segment as the natural Oregon coast coho salmon populations listed under the ESA.69 FR 31354(6/03/04).
  • FWS designated critical habitat for Braun's rock-cress, a perennial from the mustard family typically found on steep, wooded slopes with limestone formations; the plant was listed as endangered in 1995 and is endemic to two counties in Tennessee and three in Kentucky.69 FR 31459(6/03/04).
  • NMFS amended turtle excluder device (TED) regulations, which require most shrimp trawlers to use TEDs in the southeastern Atlantic and the Gulf of Mexico, so that shrimp trawlers can use a double cover flap TED with a modified flap design.69 FR 31038 (6/02/04).
  • NMFS considered regulations intended to reduce North Atlantic right whale mortalities associated with vessel collisions.69 FR 30864(6/01/04).
  • NOAA's National Marine Fisheries Service (NMFS) issued regulations to implement a 1981 treaty between the United States and Canada concerning Pacific coast albacore tuna vessels and port privileges, as authorized by recently passed legislation; the regulations establish vessel marking, recordkeeping, and reporting requirements for U.S. albacore tuna fishing vessel operators and vessel marking and reporting requirements for Canadian operators.69 FR 31531(6/04/04).
  • FWS found that a petition to remove the Peirson's milk-vetch from the ESA list of threatened species is not warranted; the plant, found only in the sand dunes of California's Imperial County and listed under the ESA in 1998, remains threatened throughout its range.69 FR 31532(6/04/04).
  • FWS proposed to designated critical habitat for the fish slough milk-vetch, a species listed as threatened under the ESA in 1998 and found in alkali flats in California; the Service proposed to designate 8,490 acres in the state's Mono and Inyo Counties.69 FR 31552(6/04/04).
  • FWS proposed to designate critical habitat for the Munz' onion, a species listed as threatened under the ESA in 1998 and endemic to southwestern Riverside County, California; the Service propose to designate 227 acres of federal land in that county while excluding 1,068 acres in the same area because the latter acreage is covered by approved habitat conservation plans.69 FR 31569(6/04/04).
  • FWS proposed to amend regulations implementing the Marine Mammal Protection Act to revise existing definitions of "authentic native articles of handicraft and clothing" to reflect the December 28, 1992, ruling inDidrickson v. U.S. Department of the Interior(D. Ala. July 17, 1991), wherein the court found that the Service's current definition, which allows the Service to regulate articles made from sea otter and restricts the time period within which regulated objects could have been produced, is inconsistent with the Act.69 FR 31582(6/04/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Ralph Bello, No. 3:01 CV 1568 (SRU) (D. Conn. May 26, 2004). Settling CERCLA defendants must collectively pay $150,000 to partially reimburse U.S. response costs incurred during soil cleanup removal action at the National Oil Service Superfund site in West Haven, Connecticut.69 FR 31638(6/04/04).
  • United States v. GC Quality Lubricants, Inc., No. 5:01cv03233HL (M.D. Ga. May 24, 2004). A settling defendant that violated CWA oil pollution prevention regulations at a petroleum-based lubricants facility in Macon, Georgia, must allow a general unsecured claim of $3,000,000 for the United States' recovery claim under the Oil Pollution Act for removal costs incurred at the facility and allow a general unsecured claim of $325,000 in penalties, subject to approval by the court inIn re GC Quality Lubricants, Inc., No. 01-54952 RFH (Bankr. M.D. Ga.); an additional settling defendant must pay a $75,000 penalty and allow a general unsecured claim of $3,000,000 for cost recovery, subject to approval by the court inIn re John Paul Jones, Jr., No. 01-55087-RFH (Bankr. M.D. Ga.); and the settling defendants must provide injunctive relief by ensuring the facility complies with federal oil pollution prevention regulations.69 FR 31639(6/04/04).
  • In re Lockwood Co., BK 93-80133 (Bankr. D. Neb. May 14, 2004). A settling defendants under CERCLA must transfer responsibility for a hazardous waste management unit in Gering, Nebraska, to a second defendant, and transfer funds remaining in the bankruptcy estate (net $52,000) to an escrow account, where they will be used to reimburse U.S. monitoring expenditures and fees incurred during maintenance of the management unit and to fund cleanup of the property on which the unit is located.69 FR 31639(6/04/04).
  • United States v. Weyerhaeuser Company, No. 4:04-CV-77-FL(1) (E.D.N.C. May 24, 2004). A settling CERCLA defendant must reimburse the EPA Hazardous Substances Superfund for response costs incurred after June 24, 2003, at the Weyerhaeuser Company Plymouth Wood Treating Plant Superfund site's Operable Unit 3 (a former chlorine plant) in Martin County, North Carolina, and also must conduct remedial design and remedial action to address releases and threatened releases of hazardous substances from the unit and in surrounding areas.69 FR 31640(6/04/04).

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

THE CONGRESS

PUBLIC LAWS:

  • H.R. 408 (Sleeping Bear Dunes National Lakeshore), which would provide for expansion of Sleeping Bear Dunes National Lakeshore, was signed into law on May 28, 2004. Pub. L. No.108-229 (daily ed. June 1, 2004).
  • H.R. 708 (Mendocino National Forest), which would require the conveyance of certain National Forest System lands in Mendocino National Forest, California, to provide for the use of the proceeds from such conveyance for National Forest purposes, was signed into law on May 28, 2004. Pub. L. No.108-230 (daily ed. June 1, 2004).
  • H.R. 856 (Tom Green County Water Control and Improvement District No. 1), which would authorize the Secretary of the Interior to revise a repayment contract with the Tom Green County Water Control and Improvement District No. 1, San Angelo project, Texas, was signed into law on May 28, 2004. Pub. L. No.108-231 (daily ed. June 1, 2004).
  • H.R. 1598 (Reclamation Wastewater and Groundwater Study and Facilities Act), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in projects within the San Diego Creek Watershed, California, was signed into law on May 28, 2004. Pub. L. No.108-233 (daily ed. June 1, 2004).

CHAMBER ACTION:

  • S. 2400 (National Defense Authorization Act for Fiscal Year 2005 Amendment), which would have challenged a U.S. Department of Energy plan to leave some radioactive waste from Cold War bombmaking operations buried in the ground at nuclear weapons sites, was rejected by the Senate. 150 Cong. Rec. S6395-S6421, S6425-40 (daily ed. June 3, 2004).

COMMITTEE ACTION:

  • H.R. 3785 (Everglades National Park Protection and Expansion Act of 1989), was reported by the Committee on Resources. H. Rept. No. 108-516, 150 Cong. Rec. H3604 (daily ed. June 1, 2004). The bill would authorize the exchange of certain land in Everglades National Park.
  • H.R. 4114 (Migratory Bird Treaty Reform Act of 2004), was reported with an amendment to the Committee of the Whole House on the State of the Union. H. Rept. No. 108-520, 150 Cong. Rec. H3779-80 (daily ed. June 3, 2004). The bill would amend the Migratory Bird Treaty Act to exclude non-native migratory bird species from the application of that Act.
  • H.R. 2619 (Kilauea Point National Wildlife Refuge Expansion Act of 2004), was reported with an amendment to the Committee of the Whole House on the State of the Union. H. Rept. No. 108-522, 150 Cong. Rec. H3779-80 (daily ed. June 3, 2004). The bill would provide for the expansion of Kilauea Point National Wildlife Refuge.

BILLS INTRODUCED:

  • S. 2482 (Clinton, D-N.Y.), would amend the Marine Protection, Research, and Sanctuaries Act of 1972 to prohibit the dumping of dredged material in certain bodies of water. 150 Cong. Rec. S6274 (daily ed. June 1, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2488 (Inouye, R-Okla.), would establish a program within the National Oceanic and Atmospheric Administration and the United States Coast Guard to help identify, assess, reduce, and prevent marine debris and its adverse impacts on the marine environment and navigation safety, in coordination with non-Federal entities, and for other purposes. 150 Cong. Rec. S6348 (daily ed. June 2, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2489 (Inouye, R-Okla.), would establish a program within the National Oceanic and Atmospheric Administration to integrate Federal coastal and ocean mapping activities. 150 Cong. Rec. S6348 (daily ed. June 2, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2490 (Inouye, R-Okla.), would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to establish vessel ballast water management requirements, and for other purposes. 150 Cong. Rec. S6348 (daily ed. June 2, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2495 (Breaux, D-La.), would strike limitations on funding and extend the period of authorization for certain coastal wetland conservation projects. 150 Cong. Rec. S6450 (daily ed. June 3, 2004). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 4470 (Vitter, R-La), would amend the Federal Water Pollution Control Act to extend the authorization of appropriations for the Lake Pontchartrain Basin Restoration Program from fiscal year 2005 to 2010. 150 Cong. Rec. H3604 (daily ed. June 1, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4475 (Graves, R-Mo.), would amend the Endangered Species Act of 1973 to focus conservation efforts under that Act on the 109 species most in danger of extinction, and for other purposes. 150 Cong. Rec. H3605 (daily ed. June 1, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4482 (Bishop, D-N.Y.), would amend the Marine Protection, Research, and Sanctuaries Act of 1972 to prohibit the dumping of dredged material in certain bodies of water. 150 Cong. Rec. H3719 (daily ed. June 2, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4490 (Grijalva, D-Ariz.), would provide for acquisition of subsurface mineral rights to land owned by the Pascua Yaqui Tribe and land held in trust for the Tribe, and for other purposes. 150 Cong. Rec. H3719 (daily ed. June 2, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4492 (Regula, R-Ohio), would amend the Omnibus Parks and Public Lands Management Act of 1996 to extend the authorization for certain national heritage areas, and for other purposes. 150 Cong. Rec. H3719 (daily ed. June 2, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4503 (Barton, R-Tex.), would enhance energy conservation and research and development, to provide for security and diversity in the energy supply for the American people, and for other purposes. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4507 (LoBiondo, R-N.J.), would ensure the continuation and improvement of coastal restoration. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4508 (Nunes, R-Cal.), would amend the National Parks and Recreation Act of 1978 to require the Secretary to permit continued use and occupancy of certain privately owned cabins in the Mineral King Valley in the Sequoia National Park. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Resources.
  • H.Con.Res. 441 (Knollenberg, R-Mich.), would recognize the essential role of nuclear power in the national energy policy of the United States and support the increased use of nuclear power and the construction and development of new and improved nuclear power generating plants. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4513 (Pombo, R-Cal.), would provide that in preparing an environmental assessment or environmental impact statement required under section 102 of the National Environmental Policy Act of 1969 with respect to any action authorizing a renewable energy project, no Federal agency is required to identify alternative project locations or actions other than the proposed action and the no action alternative, and for other purposes. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4514 (Pombo, R-Cal.), would provide for exploration, development, and production of oil and gas resources on the Arctic Coastal Plain of Alaska, and for other purposes. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4515 (Pombo, R-Cal.), would promote natural gas production from the abundant natural gas hydrate resources on the outer Continental Shelf and Federal lands in Alaska by providing royalty incentives, and for other purposes. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4516 (Biggert, R-Ill.), would require the Secretary of Energy to carry out a program of research and development to advance high-end computing. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Science.
  • H.R. 4517 (Barton, R-Tex.), would provide incentives to increase refinery capacity in the United States. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Energy and Commerce.

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

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfmto view the complete section.

 

 

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

INTERNATIONAL

GENERAL:

  • TheLondon Independentreportedthat two Cambridge University researchers have found that twice as many animals are living in the canopy of the rainforest as previously thought.
  • Brazil's Agriculture Ministry said that foreign news reporters and nongovernmental groups were trying to weaken the country's farming sector by associating farm activity with deforestation in the Amazon. "There are strong indications that behind these stories is the objective of damaging the image of Brazil's competitive farm sector in the world," the ministry said in a statement. Particularly responsible, Brazil said, are representatives with countries with large argicultural subsidy programs."It is inevitable to suspect that such reports reflect the discomfort that the growth of Brazil's agribusiness is causing international competitors," it said. "That is, the worry of the beneficiaries of protectionism in developed countries with the competitiveness of our agriculture." Brazil is the world's largest producer of coffee, orange juice, and sugar, and will soon lead the world in soybean production. But Environment Minister Marina Silva told senators that cattle breeding, exploration of wood and soy cultivation are the three main causes of deforestation.
  • Widespread destruction and loss of life in eastern Haiti was caused by rainfall made worse by deforestation.
  • Representatives from 20 central and eastern European countries met in Sarajevo to discuss cooperation in ozone protection.
  • The Food and Agriculture Organization's fishing body for the Eastern Central Atlantic region, the Fishery Committee for the Eastern Central Atlantic, said that member countries should begin reporting on catch levels of non-tuna species in waters off of the west coast of Africa. Seehttp://www.fao.org/newsroom/en/news/2004/43912/index.html
  • World Bank President James Wolfensohn wrote in theBangkok Postthat "alarmingly slow" progress has been made since the 2000 U.N. Millennium Summit.
  • An international water management conference was held in Jordan.
  • The Renewables 2004 conference was held in Bonn.
  • The group WWF issued areportwhich concluded that decreases in the sea turtle population adversely affect the economies of coastal areas that benefit from tourism.

CLIMATE CHANGE:

  • TheArctic Climate Impact Assessmentreport was released. It concluded that global warming is affecting the Arctic twice as fast as the rest of the world. "There is dramatic climate change happening in the Arctic right now ... about two to three times the pace of the whole globe," said Assessment Chairman Robert Corell, a senior fellow at the American Meteorological Society. "If you want to know what the rest of the planet is going to see in next generation, watch out for the Arctic in the next five to 10 years."
  • Astudydrafted by WWF and the European Biomass Industry Association concluded that biomass has great potential to reduce greenhouse gas emissions. According to WWF, "biomass provides a cost-effective and carbon-neutral source of energy that could provide 15% (from the current 1%) of the electricity demand from industrialized countries by 2020. It could supply power to 100 million homes, and is equivalent to replacing about 400 traditional large power stations. The report further shows that the substantial increase of biomass for clean power production would require less than 2% of land from industrialized nations and will not compete with food production and nature conservation."
  • Electric power plants are the number one air polluter in North America, accounting for almost half of all industrial air emissions in 2001, according to areportissued by the Commission for Environmental Cooperation (CEC). The CEC noted, however, that "overall in North America, air releases decreased by 18 percent from 1998 to 2001. However, air releases, including smokestack emissions, continued to account for almost two-thirds of the chemicals released by companies on-site. For electric power plants, the decrease in toxic air releases was half the rate of other sectors over the same time period." "We're still pumping more chemicals into the air than all other methods of release combined. We've shown that it's possible to reduce pollution, but cleaner air requires industry, government and the public to work together for cleaner fuels, conservation and more renewable energy," said William Kennedy, executive director of the CEC.
  • In a study published inNature, scientists from the University of Oslo concluded that underwater volcanoes may have caused massive changes in the earth's climate 55 million years ago and that huge amounts of methane are currently trapped in volcanoes today.
  • One of the United Kingdom's leading scientists, James Lovelock, wrote in anarticlepublished in theLondon Indepenentthat the threat from global warming is so great that nuclear power should be relied up to provide energy. It does not release carbon dioxide and renewable energy sources cannot be tapped quickly enough to prevent significant global effects. "If we had 50 years or more we might make these our main sources," Lovelock wrote. "But we do not have 50 years; the Earth is already so disabled by the insidious poison of greenhouse gases that even if we stop all fossil fuels burning immediately, the consequences of what we have already done will last for 1,000 years."

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

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 LITIGATION

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

TAKINGS, TRUSTS:

The Federal Claims Court held that an unsuitability determination for surface mining on land did not, in part, constitute a taking of property interests when a mere 10% diminution in value still left the land economically viable. The mineral royalty interests were held by separate legal entities, individuals who held legal title, and trust beneficiaries who held equitable title. As to the individually held rights, the court found a taking had occurred without compensation because the entirety of the mineral interests on the relevant parcel was covered by the unsuitability determination. As to the trustee-held rights, the trust only had a non-participating royalty interest in coal, not an executive right to mine coal, and the only economic expectation expressed was a common development scheme for coal production. Since the trust earned a substantial profit on the relevant parcel prior to the alleged taking, the trust did not suffer a compensable taking.Cane Tennessee, Inc. v. United States, No. 96-237L (Fed. Cl. May 28, 2004) (19 pp.).

CAA, NONATTAINMENT:

The Sixth Circuit upheld EPA's redesignation of Cleveland, Ohio, from nonattainment to attainment for particulate matter under CAA §107(d)(3)(E). An environmental group argued that EPA illegally waived statutory requirements when it redesignated the area to attainment by not fully approving the SIP but the court declined to determine whether Ohio's NSR program should have been fully approved prior to redesignation as no challenges to the rule were filed by the deadline. The court determined as reasonable EPA's interpretation that the NSR program is not a pollution control measure, but a permitting program under which those who want to construct a new major pollutant source, or modify an existing major pollutant source, must acquire a permit; it is not a contingency measure such as immediate emission reductions on existing sources. Finally, EPA's approval of Ohio's maintenance plan with contingency measures to provide a means to deal with likely violations was proper, and was not intended to cover every possible contingency.Greenbaum v. U.S. Environmental Protection Agency, No. 01-3132 (6th Cir. June 3, 2004) (12 pp.).

CAA, TRANSPORTATION CONTROL MEASURES, PUBLIC TRANSIT:

The Ninth Circuit amended its April 6, 2004 opinion and denied the petition for rehearing and petition for rehearing en banc on the issue that local transportation control measures, adopted as part of California's SIP to attain federal air quality standards in the San Francisco Bay Area, does not impose an enforceable obligation on the local transportation commission to increase public transit ridership. The amendments included changing the caption and footnote 1 from "Alameda County Transit District" with "Alameda-Contra Costa Transit District."Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission, No. 02-17352 (9th Cir. June 2, 2004) (25 pp.).

CAA, SNOWMOBILE EMISSIONS STANDARDS:

The D.C. Circuit upheld EPA's snowmobile emissions standards for CO and HC under CAA §213(a)(3) and (a)(4), remanding for further clarity, but vacated NOx standards that should be regulated under §213(a)(3), which specifically refers to NOx. EPA had statutory authority to regulate emissions from snowmobiles, considered as a separate category, upon finding that CO emissions contributed to ozone concentrations in more than one nonattainment areas, and that HC and NOx contributed to haze in Class I areas. However, EPA failed to adequately explain why its 2012 standards for cleaner, more efficient engines would exempt almost one-third of new snowmobiles when the technology to do so is currently available.Bluewater Network v. Environmental Protection Agency, No. 03-1003 (D.C. Cir. June 1, 2004) (34 pp.).

NEPA, ESA, NATIONAL FOREST MANAGEMENT ACT:

A district court granted a federal agency's motion to transfer venue to Idaho, contrary to the Indian tribe's forum choice in Oregon, since the land management project which includes the timber harvesting at issue, prescribed burning, road construction, weed control, and replanting of riparian areas is located on national forest lands in Idaho. The only relevant event that occurred in Oregon was the review and execution of a biological opinion on the impact of the timber sale on threatened Snake River Basin steelhead by the NMFS. The impact of the timber sales and associated activities in the national forest are substantially different from the focus of the cases pending in Oregon and are clearly within the competence of the District of Idaho to resolve. Nez Pierce Tribe v. National Oceanic & Atmospheric Administration Fisheries, No. CV 04-60-RE (D. Or. May 27, 2004) (Redden, J.) (20 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 entered into a proposed settlement agreement under the CAA inAISI/ACCCI Coke Oven Environmental Task Force v. U.S. Environmental Protection Agency, No. 03-1167 (D.C. Cir.), wherein the petitioners challenged the Agency's final rule concerning national emission standards for hazardous air pollutants produced by pushing, quenching, and battery stack operations at coke oven batteries (68 FR 18008).69 FR 31372(6/03/04).
  • EPA proposed to approve second 10-year maintenance plans for carbon monoxide (CO) and ozone after Washington demonstrated that the Central Puget Sound area will maintain air quality standards for CO and ozone through the year 2016.69 FR 30852(6/01/04).

DRINKING WATER:

  • EPA approved the use of three new analytical methods for inductively coupled plasma mass spectrometry; the methods are intended to make compliance determinations concerning uranium in drinking water more cost-effective, less laborious, and more sensitive.69 FR 31013(6/02/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative order on consent under CERCLA with approximately 130 de minimis settling parties associated with the Container Recycling Inc. Superfund site in Kansas City, Kansas, and requested public comment on the order.69 FR 31375(6/03/04).
  • EPA announced the deletion of the Combe Fill North Landfill Superfund site from the NPL after determining that all appropriate remedial actions were completed and no further fund-financed remedial action would be appropriate under CERCLA.69 FR 31022(6/02/04).

NATURAL RESOURCES:

  • USDA's Natural Resources Conservation Service (NRCS) announced the availability of a proposed change to the NRCS state technical guide for Arizona; the revision concerns the practice standard for nutrient management.69 FR 31344(6/03/04).

WILDLIFE:

  • NOAA's National Marine Fisheries Service (NMFS) designated the AT1 group of transient killer whales, found in waters off the Alaskan coast, as a depleted population stock of marine mammals under the Marine Mammal Protection Act.69 FR 31321(6/03/04).
  • NMFS proposed to suspend the interim policy addressing the role of hatchery-produced Pacific salmon and steelhead in listing determinations under the ESA and revise the policy so that it accounts for scientific research that has occurred since its implementation in 1995 and the implications of the September 12, 2001, decision by the U.S. District Court in Oregon, which held that the Service's exclusion of artificially propagated Oregon coast coho salmon from ESA status determinations for the species was improper because the artificially propagated salmon populations were part of the same distinct population segment as the natural Oregon coast coho salmon populations listed under the ESA.69 FR 31354(6/03/04).
  • FWS designated critical habitat for Braun's rock-cress, a perennial from the mustard family typically found on steep, wooded slopes with limestone formations; the plant was listed as endangered in 1995 and is endemic to two counties in Tennessee and three in Kentucky.69 FR 31459(6/03/04).
  • NMFS amended turtle excluder device (TED) regulations, which require most shrimp trawlers to use TEDs in the southeastern Atlantic and the Gulf of Mexico, so that shrimp trawlers can use a double cover flap TED with a modified flap design.69 FR 31038 (6/02/04).
  • NMFS considered regulations intended to reduce North Atlantic right whale mortalities associated with vessel collisions.69 FR 30864(6/01/04).
  • NOAA's National Marine Fisheries Service (NMFS) issued regulations to implement a 1981 treaty between the United States and Canada concerning Pacific coast albacore tuna vessels and port privileges, as authorized by recently passed legislation; the regulations establish vessel marking, recordkeeping, and reporting requirements for U.S. albacore tuna fishing vessel operators and vessel marking and reporting requirements for Canadian operators.69 FR 31531(6/04/04).
  • FWS found that a petition to remove the Peirson's milk-vetch from the ESA list of threatened species is not warranted; the plant, found only in the sand dunes of California's Imperial County and listed under the ESA in 1998, remains threatened throughout its range.69 FR 31532(6/04/04).
  • FWS proposed to designated critical habitat for the fish slough milk-vetch, a species listed as threatened under the ESA in 1998 and found in alkali flats in California; the Service proposed to designate 8,490 acres in the state's Mono and Inyo Counties.69 FR 31552(6/04/04).
  • FWS proposed to designate critical habitat for the Munz' onion, a species listed as threatened under the ESA in 1998 and endemic to southwestern Riverside County, California; the Service propose to designate 227 acres of federal land in that county while excluding 1,068 acres in the same area because the latter acreage is covered by approved habitat conservation plans.69 FR 31569(6/04/04).
  • FWS proposed to amend regulations implementing the Marine Mammal Protection Act to revise existing definitions of "authentic native articles of handicraft and clothing" to reflect the December 28, 1992, ruling inDidrickson v. U.S. Department of the Interior(D. Ala. July 17, 1991), wherein the court found that the Service's current definition, which allows the Service to regulate articles made from sea otter and restricts the time period within which regulated objects could have been produced, is inconsistent with the Act.69 FR 31582(6/04/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Ralph Bello, No. 3:01 CV 1568 (SRU) (D. Conn. May 26, 2004). Settling CERCLA defendants must collectively pay $150,000 to partially reimburse U.S. response costs incurred during soil cleanup removal action at the National Oil Service Superfund site in West Haven, Connecticut.69 FR 31638(6/04/04).
  • United States v. GC Quality Lubricants, Inc., No. 5:01cv03233HL (M.D. Ga. May 24, 2004). A settling defendant that violated CWA oil pollution prevention regulations at a petroleum-based lubricants facility in Macon, Georgia, must allow a general unsecured claim of $3,000,000 for the United States' recovery claim under the Oil Pollution Act for removal costs incurred at the facility and allow a general unsecured claim of $325,000 in penalties, subject to approval by the court inIn re GC Quality Lubricants, Inc., No. 01-54952 RFH (Bankr. M.D. Ga.); an additional settling defendant must pay a $75,000 penalty and allow a general unsecured claim of $3,000,000 for cost recovery, subject to approval by the court inIn re John Paul Jones, Jr., No. 01-55087-RFH (Bankr. M.D. Ga.); and the settling defendants must provide injunctive relief by ensuring the facility complies with federal oil pollution prevention regulations.69 FR 31639(6/04/04).
  • In re Lockwood Co., BK 93-80133 (Bankr. D. Neb. May 14, 2004). A settling defendants under CERCLA must transfer responsibility for a hazardous waste management unit in Gering, Nebraska, to a second defendant, and transfer funds remaining in the bankruptcy estate (net $52,000) to an escrow account, where they will be used to reimburse U.S. monitoring expenditures and fees incurred during maintenance of the management unit and to fund cleanup of the property on which the unit is located.69 FR 31639(6/04/04).
  • United States v. Weyerhaeuser Company, No. 4:04-CV-77-FL(1) (E.D.N.C. May 24, 2004). A settling CERCLA defendant must reimburse the EPA Hazardous Substances Superfund for response costs incurred after June 24, 2003, at the Weyerhaeuser Company Plymouth Wood Treating Plant Superfund site's Operable Unit 3 (a former chlorine plant) in Martin County, North Carolina, and also must conduct remedial design and remedial action to address releases and threatened releases of hazardous substances from the unit and in surrounding areas.69 FR 31640(6/04/04).

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

THE CONGRESS

PUBLIC LAWS:

  • H.R. 408 (Sleeping Bear Dunes National Lakeshore), which would provide for expansion of Sleeping Bear Dunes National Lakeshore, was signed into law on May 28, 2004. Pub. L. No.108-229 (daily ed. June 1, 2004).
  • H.R. 708 (Mendocino National Forest), which would require the conveyance of certain National Forest System lands in Mendocino National Forest, California, to provide for the use of the proceeds from such conveyance for National Forest purposes, was signed into law on May 28, 2004. Pub. L. No.108-230 (daily ed. June 1, 2004).
  • H.R. 856 (Tom Green County Water Control and Improvement District No. 1), which would authorize the Secretary of the Interior to revise a repayment contract with the Tom Green County Water Control and Improvement District No. 1, San Angelo project, Texas, was signed into law on May 28, 2004. Pub. L. No.108-231 (daily ed. June 1, 2004).
  • H.R. 1598 (Reclamation Wastewater and Groundwater Study and Facilities Act), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in projects within the San Diego Creek Watershed, California, was signed into law on May 28, 2004. Pub. L. No.108-233 (daily ed. June 1, 2004).

CHAMBER ACTION:

  • S. 2400 (National Defense Authorization Act for Fiscal Year 2005 Amendment), which would have challenged a U.S. Department of Energy plan to leave some radioactive waste from Cold War bombmaking operations buried in the ground at nuclear weapons sites, was rejected by the Senate. 150 Cong. Rec. S6395-S6421, S6425-40 (daily ed. June 3, 2004).

COMMITTEE ACTION:

  • H.R. 3785 (Everglades National Park Protection and Expansion Act of 1989), was reported by the Committee on Resources. H. Rept. No. 108-516, 150 Cong. Rec. H3604 (daily ed. June 1, 2004). The bill would authorize the exchange of certain land in Everglades National Park.
  • H.R. 4114 (Migratory Bird Treaty Reform Act of 2004), was reported with an amendment to the Committee of the Whole House on the State of the Union. H. Rept. No. 108-520, 150 Cong. Rec. H3779-80 (daily ed. June 3, 2004). The bill would amend the Migratory Bird Treaty Act to exclude non-native migratory bird species from the application of that Act.
  • H.R. 2619 (Kilauea Point National Wildlife Refuge Expansion Act of 2004), was reported with an amendment to the Committee of the Whole House on the State of the Union. H. Rept. No. 108-522, 150 Cong. Rec. H3779-80 (daily ed. June 3, 2004). The bill would provide for the expansion of Kilauea Point National Wildlife Refuge.

BILLS INTRODUCED:

  • S. 2482 (Clinton, D-N.Y.), would amend the Marine Protection, Research, and Sanctuaries Act of 1972 to prohibit the dumping of dredged material in certain bodies of water. 150 Cong. Rec. S6274 (daily ed. June 1, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2488 (Inouye, R-Okla.), would establish a program within the National Oceanic and Atmospheric Administration and the United States Coast Guard to help identify, assess, reduce, and prevent marine debris and its adverse impacts on the marine environment and navigation safety, in coordination with non-Federal entities, and for other purposes. 150 Cong. Rec. S6348 (daily ed. June 2, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2489 (Inouye, R-Okla.), would establish a program within the National Oceanic and Atmospheric Administration to integrate Federal coastal and ocean mapping activities. 150 Cong. Rec. S6348 (daily ed. June 2, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2490 (Inouye, R-Okla.), would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to establish vessel ballast water management requirements, and for other purposes. 150 Cong. Rec. S6348 (daily ed. June 2, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2495 (Breaux, D-La.), would strike limitations on funding and extend the period of authorization for certain coastal wetland conservation projects. 150 Cong. Rec. S6450 (daily ed. June 3, 2004). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 4470 (Vitter, R-La), would amend the Federal Water Pollution Control Act to extend the authorization of appropriations for the Lake Pontchartrain Basin Restoration Program from fiscal year 2005 to 2010. 150 Cong. Rec. H3604 (daily ed. June 1, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4475 (Graves, R-Mo.), would amend the Endangered Species Act of 1973 to focus conservation efforts under that Act on the 109 species most in danger of extinction, and for other purposes. 150 Cong. Rec. H3605 (daily ed. June 1, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4482 (Bishop, D-N.Y.), would amend the Marine Protection, Research, and Sanctuaries Act of 1972 to prohibit the dumping of dredged material in certain bodies of water. 150 Cong. Rec. H3719 (daily ed. June 2, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4490 (Grijalva, D-Ariz.), would provide for acquisition of subsurface mineral rights to land owned by the Pascua Yaqui Tribe and land held in trust for the Tribe, and for other purposes. 150 Cong. Rec. H3719 (daily ed. June 2, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4492 (Regula, R-Ohio), would amend the Omnibus Parks and Public Lands Management Act of 1996 to extend the authorization for certain national heritage areas, and for other purposes. 150 Cong. Rec. H3719 (daily ed. June 2, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4503 (Barton, R-Tex.), would enhance energy conservation and research and development, to provide for security and diversity in the energy supply for the American people, and for other purposes. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4507 (LoBiondo, R-N.J.), would ensure the continuation and improvement of coastal restoration. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4508 (Nunes, R-Cal.), would amend the National Parks and Recreation Act of 1978 to require the Secretary to permit continued use and occupancy of certain privately owned cabins in the Mineral King Valley in the Sequoia National Park. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Resources.
  • H.Con.Res. 441 (Knollenberg, R-Mich.), would recognize the essential role of nuclear power in the national energy policy of the United States and support the increased use of nuclear power and the construction and development of new and improved nuclear power generating plants. 150 Cong. Rec. H3780 (daily ed. June 3, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4513 (Pombo, R-Cal.), would provide that in preparing an environmental assessment or environmental impact statement required under section 102 of the National Environmental Policy Act of 1969 with respect to any action authorizing a renewable energy project, no Federal agency is required to identify alternative project locations or actions other than the proposed action and the no action alternative, and for other purposes. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4514 (Pombo, R-Cal.), would provide for exploration, development, and production of oil and gas resources on the Arctic Coastal Plain of Alaska, and for other purposes. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4515 (Pombo, R-Cal.), would promote natural gas production from the abundant natural gas hydrate resources on the outer Continental Shelf and Federal lands in Alaska by providing royalty incentives, and for other purposes. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4516 (Biggert, R-Ill.), would require the Secretary of Energy to carry out a program of research and development to advance high-end computing. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Science.
  • H.R. 4517 (Barton, R-Tex.), would provide incentives to increase refinery capacity in the United States. 150 Cong. Rec. H3784 (daily ed. June 4, 2004). The bill was referred to the Committee on Energy and Commerce.

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:

  • TheLondon Independentreportedthat two Cambridge University researchers have found that twice as many animals are living in the canopy of the rainforest as previously thought.
  • Brazil's Agriculture Ministry said that foreign news reporters and nongovernmental groups were trying to weaken the country's farming sector by associating farm activity with deforestation in the Amazon. "There are strong indications that behind these stories is the objective of damaging the image of Brazil's competitive farm sector in the world," the ministry said in a statement. Particularly responsible, Brazil said, are representatives with countries with large argicultural subsidy programs."It is inevitable to suspect that such reports reflect the discomfort that the growth of Brazil's agribusiness is causing international competitors," it said. "That is, the worry of the beneficiaries of protectionism in developed countries with the competitiveness of our agriculture." Brazil is the world's largest producer of coffee, orange juice, and sugar, and will soon lead the world in soybean production. But Environment Minister Marina Silva told senators that cattle breeding, exploration of wood and soy cultivation are the three main causes of deforestation.
  • Widespread destruction and loss of life in eastern Haiti was caused by rainfall made worse by deforestation.
  • Representatives from 20 central and eastern European countries met in Sarajevo to discuss cooperation in ozone protection.
  • The Food and Agriculture Organization's fishing body for the Eastern Central Atlantic region, the Fishery Committee for the Eastern Central Atlantic, said that member countries should begin reporting on catch levels of non-tuna species in waters off of the west coast of Africa. Seehttp://www.fao.org/newsroom/en/news/2004/43912/index.html
  • World Bank President James Wolfensohn wrote in theBangkok Postthat "alarmingly slow" progress has been made since the 2000 U.N. Millennium Summit.
  • An international water management conference was held in Jordan.
  • The Renewables 2004 conference was held in Bonn.
  • The group WWF issued areportwhich concluded that decreases in the sea turtle population adversely affect the economies of coastal areas that benefit from tourism.

CLIMATE CHANGE:

  • TheArctic Climate Impact Assessmentreport was released. It concluded that global warming is affecting the Arctic twice as fast as the rest of the world. "There is dramatic climate change happening in the Arctic right now ... about two to three times the pace of the whole globe," said Assessment Chairman Robert Corell, a senior fellow at the American Meteorological Society. "If you want to know what the rest of the planet is going to see in next generation, watch out for the Arctic in the next five to 10 years."
  • Astudydrafted by WWF and the European Biomass Industry Association concluded that biomass has great potential to reduce greenhouse gas emissions. According to WWF, "biomass provides a cost-effective and carbon-neutral source of energy that could provide 15% (from the current 1%) of the electricity demand from industrialized countries by 2020. It could supply power to 100 million homes, and is equivalent to replacing about 400 traditional large power stations. The report further shows that the substantial increase of biomass for clean power production would require less than 2% of land from industrialized nations and will not compete with food production and nature conservation."
  • Electric power plants are the number one air polluter in North America, accounting for almost half of all industrial air emissions in 2001, according to areportissued by the Commission for Environmental Cooperation (CEC). The CEC noted, however, that "overall in North America, air releases decreased by 18 percent from 1998 to 2001. However, air releases, including smokestack emissions, continued to account for almost two-thirds of the chemicals released by companies on-site. For electric power plants, the decrease in toxic air releases was half the rate of other sectors over the same time period." "We're still pumping more chemicals into the air than all other methods of release combined. We've shown that it's possible to reduce pollution, but cleaner air requires industry, government and the public to work together for cleaner fuels, conservation and more renewable energy," said William Kennedy, executive director of the CEC.
  • In a study published inNature, scientists from the University of Oslo concluded that underwater volcanoes may have caused massive changes in the earth's climate 55 million years ago and that huge amounts of methane are currently trapped in volcanoes today.
  • One of the United Kingdom's leading scientists, James Lovelock, wrote in anarticlepublished in theLondon Indepenentthat the threat from global warming is so great that nuclear power should be relied up to provide energy. It does not release carbon dioxide and renewable energy sources cannot be tapped quickly enough to prevent significant global effects. "If we had 50 years or more we might make these our main sources," Lovelock wrote. "But we do not have 50 years; the Earth is already so disabled by the insidious poison of greenhouse gases that even if we stop all fossil fuels burning immediately, the consequences of what we have already done will last for 1,000 years."

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

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