Jump to Content

Weekly Update Volume 34, Issue 19

07/12/2004

LITIGATION

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

OUTER CONTINENTAL SHELF LANDS ACT (OCSLA), MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT:

The First Circuit upheld the dismissal of a citizens group's lawsuit challenging the construction of a meteorological and oceanographic data tower in Nantucket Sound. The tower was built in the outer continental shelf and is clearly outside Massachusetts' territorial jurisdiction. In 1986, however, Congress passed a bill declaring all of Nantucket Sound to be within the jurisdiction of Massachusetts for purposes of the Magnuson-Stevens Act. The group claimed that this provision authorizes Massachusetts to regulate the construction of the tower. Contrary to the group's assertions, removal of the case to federal court was proper because the group's claims arose under federal law under OCSLA §1333(a)(2). The tower was built within the outer continental shelf, and Congress has explicitly incorporated state law on the outer continental shelf as federal law. As for the merits, the group's complaint that the tower required state approval was properly dismissed. The Magnuson-Stevens Act did not grant to the Commonwealth sufficiently broad authority to regulate the construction of a tower in federal waters in Nantucket Sound. None of the state statutes on which the group relied apply to the construction of the data tower, and even if the statutes did apply, they would be inconsistent with federal law and thus inapplicable under the OCSLA.Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, No. 03-2323, 34 ELR 20037 (1st Cir. June 28, 2004) (29 pp.).

NEPA, FEDERAL HIGHWAY ADMINISTRATION (FHwA):

The Sixth Circuit held that a district court improperly failed to vacate or modify an injunction that prevented the FHwA from revisiting its decision regarding a highway extension. An environmental group sued to enjoin construction, stating that the project required an EIS. The lower court granted the injunction, which precluded the FHwA from the necessary planning to complete an EIS. The FHwA then withdrew its FONSI and sought a voluntary remand of its decision, but the lower court denied the agency's motion and refused to modify the injunction. The lower court improperly failed to vacate or modify the injunction because in doing so it precluded the agency from acting to comply with the very statute that formed the basis for the group's lawsuit, and the court articulated no tenable reason for continuing injunctive relief against the FHwA.Citizens Against the Pellissippi Parkway Extension, Inc., v. Mineta, No. 02-6536, 34 ELR 20045 (6th Cir. July 7, 2004) (6 pp.).

CAA, NAAQS, OZONE:

The Seventh Circuit denied an environmental group's petition to review EPA's approval of the ozone SIP and maintenance plan for the St. Louis metropolitan area. The court rejected the petitioner's argument that the area's maintenance plan was deficient. An area need not use photochemical grid modeling as part of its maintenance plan. That is not an inevitable reading of the CAA, but EPA is entitled to deference. Nor does the St. Louis area lack a proper "applicable" implementation plan for the area under CAA §110. An "applicable" plan is not the same as the area's pre-attainment plan. Rather, an "applicable" plan is only limited to those measures that have proved to be necessary to achieve compliance.Sierra Club v. Environmental Protection Agency, Nos. 03-2839, -3329, 34 ELR 20043 (7th Cir. July 6, 2004) (9 pp.).

RCRA, SOLID WASTE:

The Ninth Circuit held that grass residue remaining after harvesting Kentucky bluegrass is not solid waste under RCRA and that the Act does not prohibit growers' general practice of open burning. The court rejected a citizens group's argument that open burning is the discarding of waste. The group failed to demonstrate that there is a genuine issue of material fact as to whether the residue is solid waste. Rather, open burning provides indisputable essential benefits. Grass residue is reused to fertilize bluegrass fields, facilitates open burning, reduces the need for pesticide use by reducing insects, and increases the soil's sunlight absorption.Safe Air For Everyone v. Meyer, No. 02-35751, 34 ELR 20041 (9th Cir. July 1, 2004) (33 pp.).

WILDERNESS ACT, NEPA:

The Eleventh Circuit held that the National Park Service (NPS) violated §113(c) of the Wilderness Act when it ran tourist vans through Cumberland Island, Georgia. Section 113(c) bars motor vehicles in wilderness areas except as necessary to administer the area for purposes of the Act, and offering motorized transportation to park visitors through the wilderness area does not qualify for this exception. The NPS also violated NEPA when it failed to consider environmental impacts from the tours. The action did not qualify for a categorical exclusion under the Act. The agency, therefore, should have conducted a formal, written review.Wilderness Watch & Public Employees for Environmental Responsibility v. Mainella, No. 03-15346, 34 ELR 20038 (11th Cir. June 28, 2004) (23 pp.).

CAA, NONROAD ENGINES:

The D.C. Circuit held that EPA's letter to a trade association reiterating its earlier position on emissions labeling of nonroad engines did not constitute a reviewable agency action and, thus, the court dismissed the case for lack of jurisdiction under CAA §307(d). In its letter, EPA stated that manufacturers could produce engines not covered by an EPA certificate of conformity since they would be sold outside the United States, even though the engines were physically identical to certified engines. The trade association understood this destination-specific labeling to promulgate a new regulation, thereby violating 40 CFR pt. 89 because there was no notice-and-comment period held. Since the letter did not reflect any change in the regulations or in EPA's interpretation of those regulations, there was no reviewable agency action and, thus, the court had no jurisdiction to hear the case.Independent Equipment Dealers Ass'n. v. Environmental Protection Agency, No. 03-1020, 34 ELR 20036 (D.C. Cir. June 25, 2004) (14 pp.).

CERCLA, NPL, APA:

The D.C. Circuit denied petitions to review EPA's decision to include an industrial site bordering the Hudson River on the NPL. EPA's decision was reasonable and supported by the record, and the companies challenging the listing were given sufficient notice of the inclusion. EPA's listing properly identified the site, and it did not have to discuss potential response actions at this early stage. EPA also properly included a fishery adjacent to the site because it was in the surface water pathway of the released hazardous coal tar substances, the contamination of which posed a threat to the human food chain. The fishery landowner was adequately notified that the parcel would be included on the NPL by the proposed listing, yet the landowner forfeited its opportunity to challenge the listing when it failed to comment on the proposed listing.Honeywell International, Inc. v. Environmental Protection Agency, No. 02-1371, 34 ELR 20039 (D.C. Cir. June 29, 2004) (15 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, HOUSING, AGRICULTURE, ENDANGERED SPECIES:

A California appellate court denied an environmental group's petition to compel a city to rescind its approval of an environmental impact report (EIR) for the development of a former military base despite the group's claims of insufficient evidence to support conclusions regarding impacts in housing, agricultural resources, and biological resources. The EIR sufficiently concluded that the cumulative impacts of the project, which will create jobs and bring people into the area, will have a substantial but not adverse impact on housing growth. The project is also consistent with the city's general plan, which calls for an improved jobs-housing relationship. In addition, the EIR's conclusion that it is not feasible to mitigate the impact of developing 3,100 acres of agricultural land was supported by the evidence. Last, the EIR reasonably concluded that, with certain proposed mitigation measures, the project's impact on three endangered species will be insignificant.Defend The Bay v. City of Irvine,No. G032062, 34 ELR 20040 (Cal. Ct. App. June 29, 2004) (18 pp.).

CALIFORNIA SAFE DRINKING WATER & TOXIC ENFORCEMENT ACT (PROPOSITION 65):

A California appellate court held that a health care company adequately established that its chemical plasticizer (DEHP) posed no significant risk of causing cancer in humans and, thus, was exempt from Proposition 65 warning requirements. Under Proposition 65, a business must provide a warning when it exposes the public to a chemical that is on a list of chemicals known to the state to cause cancer in animals, but is not required if the business can show the exposure poses no significant risk of causing cancer in humans. The court rejected a state health agency argument that failing to require a warning for DEHP amounted to a de facto delisting of DEHP instead of simply exempting it from the warning requirements because the company provided sufficient evidence that there is no significant carcinogenic risk. The agency also failed to establish that Proposition 65 does not allow a business to bring a declaratory relief action to determine exemption from the warning requirement. Moreover, the lower court did not abuse its discretion in granting the company declaratory relief because a controversy existed between the agency and company. The lower court also properly applied the preponderance of evidence burden of proof to establish DEHP presented no significant risk of cancer to humans since the more stringent clear and convincing evidence standard was beyond the intent of Proposition 65. Finally, the company adequately proved that DEHP does not cause liver cancer in humans and was not required to prove that DEHP does not pose the possibility of causing cancer of any kind.Baxter Healthcare Corp. v. Denton, No. C043352, 34 ELR 20042 (Cal. Ct. App. July 1, 2004) (52 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

A California appellate court held that a lower court did not err when it denied an environmental group's writ seeking to set aside approval of a development project because the town did not comply with CEQA. The group had standing to seek a writ because it exhausted its administrative remedies by objecting to approval of the project during the public comment period. Nevertheless, the town provided adequate notice of the project, indicated that significant environmental impacts may exist, and stated where the draft environmental impact report (EIR) could be reviewed. Further, since CEQA does not require tenant-specific review of previously approved uses, the town was not obliged to identify the end user so long as the new owner's use was consistent with what had already been approved. And although the group properly raised issues of traffic, land use, noise, the Mojave ground squirrel, and air quality at the administrative level, its remaining objections were waived because it failed to raise them during public comment or in the writ petition. As for the merits, the EIR sufficiently complied with CEQA in analyzing the environmental implications of the project and provided the public with knowledge of the impacts.Maintain Our Desert Environment v. Town of Apple Valley, No. E033904, 34 ELR 20044 (Cal. Ct. App. July 2, 2004) (44 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 amended several sections of the standards of performance for stationary gas turbines in 40 CFR part 60, subpart GG, which would codify several alternative testing and monitoring procedures that EPA has routinely approved; the amendments also reflect changes in nitrogen oxides emission control technologies and turbine design since those standards were enacted.69 FR 41364(7/8/04).
  • EPA seeks comments concerning recommendations from a workshop about developing codes and standards for truck stop electrification, which is new technology designed to reduce long-duration truck engine idling while still supplying the necessary power to truck components for heating, cooling, and other needs. The comments used will serve to develop a better national consensus.69 FR 41256(7/8/04).
  • EPA announced applicability determinations, alternative monitoring decisions, and regulatory interpretations made under the new source performance standards, NESHAPs, and the stratospheric ozone protection program.69 FR 41261(7/8/04).
  • EPA amended new source performance standards, which already limited emissions of nitrogen oxides from the combustion of fossil fuels and other fuels and wastes; the amendments announced a facility-specific nitrogen oxide standard for a steam generating unit combusting fossil fuels and chemical byproduct wastes simultaneously located at the Weyerhaeuser Company facility in North Carolina.69 FR 40774(7/7/04).
  • EPA amended the CAA transportation conformity rule to finalize several provisions that were proposed last year; provisions include criteria and procedures for the new eight-hour ozone and fine particulate matter NAAQS.69 FR 40081(7/1/04).
  • EPA stayed the equipment replacement provision in the CAA new source review routine maintenance, repair, and replacement exclusion, now in theCode of Federal Regulations.69 FR 40276(7/1/04).
  • EPA announced its reconsideration and requested public comment on certain issues concerning the revised regulations governing the major new source review programs mandated by CAA title I parts C and D.69 FR 40285(7/1/04).
  • EPA proposed amendments to appendix C to 40 CFR part 63, which would add a test procedure to the original tests that calculate the site-specific fraction of organic compounds biodegraded in a biological treatment unit; the new test procedure would be in compliance with wastewater rules that regulate volatile organic compounds.69 FR 39392(6/30/04).
  • EPA adopted new emission standards for nonroad diesel engines and fuel and associated new test procedures, certification requirements, and provisions to facilitate the early introduction of clean technologies and clean nonroad diesel fuel; the engine standards will begin to take effect in the 2008 model year and will be phased in over a series of years, and the fuel controls--primarily aimed at achieving sulfur reductions--will be phased in beginning in mid-2007.69 FR 38957(6/29/04).
  • EPA issued an advance notice of proposed rulemaking concerning the Agency's intention to propose new emission standards and related provisions for new locomotive engines and new compression-ignition marine engines with per cylinder displacement of less than 30 liters; the regulatory program would be modeled after EPA's 2007/2010 highway and "tier 4" nonroad diesel engine programs and would focus on achieving large reductions in particulate matter and air toxics emissions through application of high-efficiency catalytic after-treatment control technologies.69 FR 39275(6/29/04).

HAZARDOUS AND SOLID WASTES:

  • EPA, in compliance with CERCLA and RCRA, proposed an administrative de minimis settlement concerning the Casmalia Disposal Site in Santa Barbara County, California, which would resolve the liabilities of 192 settling parties, paying a total of $11,900,000 to EPA, for the Casmalia Disposal Site.69 FR 41477(7/9/04).
  • EPA proposed a settlement agreement, under §113(g) of the CAA, to address a lawsuit filed by Sierra Club who claimed EPA failed to respond in a timely manner to their petition challenging Georgia's Title V operating permit for Cargill Vegetable Oil Mill.69 FR 41262(7/8/04).
  • EPA proposed to authorize changes to Connecticut's hazardous waste program under RCRA that update the state's regulations to meet federal requirements in place through January 1, 2001.69 FR 40568(7/6/04).

INTERNATIONAL:

  • The U.S. Department of Commerce's International Trade Administration announced plans for an environmental technologies trade mission to Hong Kong and Beijing and Shanghai, China, from October 26 through November 2, 2004; the event is intended to offer U.S. firms a timely opportunity to access fast-growing markets for U.S. environmental equipment and technologies such as solid waste and water treatment and air pollution control equipment.69 FR 40624(7/6/04).

NATURAL RESOURCES:

  • USDA requested written comments for an interim rule that implements technical amendments to clarify the regulations regarding the requirement for filing a notice of intent or a plan of operations for locatable mineral operations on National Forest System lands.69 FR 4143(7/9/04).

NEPA:

  • USDA's Forest Service announced revisions to procedures for implementing regulations, required by NEPA and the Council on Environmental Quality, that govern actions that can be categorically excluded from documentation in an environmental assessment or impact statement; the revisions create two new categorical exclusions allowed when special use authorizations involving administrative changes are amended or replaced, and the authorizations do not propose changes in authorized facilities or the scope or intensity of authorized activities.69 FR 40591(7/6/04).

PESTICIDES:

  • EPA announced the availability of documents, which are the human health and environmental risk assessments for thiram, that were developed as part of its process for making pesticide reregistration eligibility decisions and tolerance reassessments consistent with the Federal Food, Drug, and Cosmetic Act, as amended by the Food Quality Protection Act.69 FR 40479(7/2/04).
  • EPA forwarded a draft final rule, as required by FIFRA, to the Secretary of Agriculture, which would create greater flexibility related to glove use in requirements of the 1992 worker protection standard.69 FR 39395(6/30/04).
  • EPA announced the availability of a preliminary risk assessment and related documents for the antimicrobial pesticide zinc pyrithione (also known as zinc omadine), a fungicide-algaecide used in various personal care and industrial product applications; public comment on these documents will inform EPA's re-registration eligibility decision for the chemical.69 FR 38895(6/29/04).

POLLUTION:

  • The coast guard clarified a final rule that changes regulations for vessels equipped with ballast water tanks bound for ports or places within the United States. 69 FR 40768 (7/7/04).

RESOURCE MANAGEMENT:

  • BLM may convey the mineral interests owned by the United States to allow consolidation of surface and subsurface of minerals ownership where there are no known mineral values or where the reservation interferes with or precludes non-mineral development.69 FR 39954(7/1/04).
  • DOI's Bureau of Reclamation announced the availability of and requested comment on "Criteria for Development Refuge Water Management Plans," a document that attempts to provide a common methodology for efficient use of water by federal wildlife refuges, state wildlife management areas, and resource conservation districts that receive water pursuant to the Central Valley Project Improvement Act.69 FR 36101(6/28/04).

RULEMAKING:

  • The federal agencies issued their semiannual regulatory agendas, providing specific information on the status of regulations under development and revision. (6/28/04).

WATER QUALITY:

  • EPA implemented §316(b) of the CWA through NPDES permits, establishing national requirements and procedures for certain existing power producing facilities that employ a cooling water intake structure and are designed to withdraw 50 million gallons per day or more of water from rivers, streams, lakes, reservoirs, estuaries, oceans, or other waters of the United States for cooling purposes.69 FR 41693(7/9/04).
  • EPA proposed water quality criteria for bacteria for coastal recreation waters and Great Lakes waters in states and territories that do not have water quality standards for bacteria, which comply with the requirements of §303(i) of the CWA.69 FR 41743(7/9/04).
  • EPA announced revisions of the Massachusetts Rhode Island public water system supervision programs so that they can meet the requirements of the SDWA.69 FR 41478(7/9/04).
  • EPA, authorized by §304(a) of the CWA to develop, publish, and occasionally revise criteria recommendations for water to accurately reflect the most current scientific knowledge, announced its reevaluation of the current aquatic life criteria for ammonia to determine if a revision is needed based on new toxicity data for aquatic organisms.69 FR 41264(7/8/04).

WILDLIFE:

  • NOAA's National Marine Fisheries Service (NMFS) conducted public meetings concerning an advanced notice of proposed rulemaking, where NMFS considered regulations to implement a strategy to reduce mortalities to North Atlantic right whales due to vessel collisions.69 FR 41447(7/9/04).
  • FWS, under ESA and the Marine Mammal Protection Act, withdrew two manatee refuges in Florida from those designated as federally established manatee protection areas; these areas will remain protected under Florida's state law.69 FR 40805(7/7/04).
  • NOAA implemented new sea turtle bycatch and bycatch mortality mitigation measures for all Atlantic vessels that have pelagic longline gear onboard and have been issued (or are required to have) federal highly migratory species limited access permits; the new measures include circle hook and bait requirements and mandatory possession and use of sea turtle release equipment to reduce bycatch mortality.69 FR 40733(7/6/04).
  • FWS and NOAA announced the availability of an EA for an interagency consultation on regulatory actions, which is evaluating the environmental effects of establishing counterpart regulations pursuant to §7 of the ESA, under FIFRA counterpart regulations and they also announced the opening of a comment period on the environmental assessment.69 FR 40347(7/2/04).
  • FWS and the Forest Service established regulations for seasons, harvest limits, methods, and means related to taking of wildlife for subsistence uses in Alaska during the 2004-05 regulatory year.69 FR 40222(7/1/04).
  • FWS designated 26 river and stream segments in the Mobile River Basin, which encompasses approximately 1,093 miles of river and stream channels, as critical habitat under the ESA for three threatened (fine-lined pocketbook, orange-nacre mucket, and Alabama moccasinshell) and eight endangered freshwater mussels (Coosa moccasinshell, ovate clubshell, southern clubshell, dark pigtoe, southern pigtoe, triangular kidneyshell, southern acornshell, and upland combshell).69 FR 40171(7/1/04).
  • FWS, in accordance with the Marine Mammal Protection Act of 1972, gave a notice that letters of authorization to take polar bears incidental to oil and gas industry exploration activities in the Beaufort Sea and adjacent northern coast of Alaska have been issued.69 FR 39499(6/30/04).
  • FWS proposed to exempt international, foreign, and interstate commerce in certain beluga sturgeon products from threatened species permits normally required under the ESA to allow countries in the beluga sturgeon's range a six-month, permit-free period within which to develop and submit reports and management measures concerning the sturgeon to FWS.69 FR 38863(6/29/04).
  • NMFS proposed to amend regulations governing takings of marine mammals incidental to operations of the U.S. Navy's Surveillance Towed Array Sensor System Low Frequency Active sonar; NMFS and the Navy determined that because testing and training operations associated with the sonar system constitute military readiness activities under the the National Defense Authorization Act of 2004, references to "small numbers" and a "specified geographical region" contained in the prior rule (67 FR 46712) sanctioning the taking of marine mammals via harassment incidental to certain deployments of the sonar system should be removed.69 FR 38873(6/29/04).
  • The Federal Subsistence Board, a panel composed of Forest Service and FWS officials, announced the closure of federal subsistence salmon fisheries in Afognak Bay, Alaska, as part of the board's continuing management of seasons, harvest limits, methods, and means of fish and shellfish taking for subsistence uses in Alaskan public lands.69 FR 36016(6/28/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Mallinckrodt, Inc., No. 4:02CV1488 (E.D. Mo. June 18, 2004). Settling defendants must reimburse $24,197.20 to EPA in past response costs for contributing small and unknown amounts of lead to the Great Lakes Container Corporation Superfund Site in St. Louis, Missouri.69 FR 41550(7/9/04).
  • United States v. Dart Container Corporation of Pennsylvania, No. 04-2208 (E.D. Pa. June 17, 2004). Settling CERCLA defendants must pay $413,206 to the hazardous substance superfund site to reimburse response costs associated with potential liability for the superfund site.69 FR 39964 (7/1/04).
  • United States v. Genesis Energy, Inc., No. 2:04cv217BN (S.D. Miss. June 24, 2004). Settling CWA defendants must pay a $1,000,000 civil penalty, $500,000 to the United States and $500,000 to Mississippi; the defendants also must perform a land acquisition and conservation supplemental environmental project at a cost of at least $2,000,000 as well as conduct natural resource and restoration projects.69 FR 39964(7/1/04).
  • United States v. Holyoke Water Power Company,No. 04-30119-MAP (D. Mass. June 22, 2004). A settling CERCLA defendant must pay $500,000 in natural resource damages to the federal trustees and to the executive office of environmental affairs of Massachusetts; of this amount, $155,000 will be used to reimburse the trustees' assessment costs and $345,000 will be used to continue implementation of restoration projects.69 FR 39965(7/1/04).
  • United States. v. Motiva Enterprises LLC,No. H-01-0978 (S.D. Tex. June 17, 2004). Settling CAA defendants must transfer the responsibility for implementation of injunctive relief programs in Delaware City.69 FR 39965(7/1/04).
  • United States v. Phelps Dodge Sierrita, Inc., No. 04-312 TUC FRZ (D. Ariz. June 21, 2004). A settling CAA defendant must comply with all applicable CAA requirements and pay a civil penalty of $1,400,000, split between the United States and Arizona.69 FR 39966(7/1/04).
  • United States v. Puerto Rico Electric Power Authority,No. 93-2527 (D. P.R. June 21, 2004). A settling CAA defendant must adhere to and not contest EPA's interpretation of "method 9" (an EPA technical method), switch to using a fuel oil with a lower sulfur content, implement nitrogen oxide reduction measures, use diesel fuel for cold start up of its boilers, pay a penalty of $300,000, and pay $200,000 to further fund additional environmental projects identified in the consent decree.69 FR 39966(7/1/04).

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

THE CONGRESS

CHAMBER ACTION:

  • H.R. 1856 (Harmful Algal Bloom and Hypoxia Research Amendments Act of 2003), which would reauthorize the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998, was passed by the House. 150 Cong. Rec. H5214 (daily ed. July 7, 2004).
  • H.R. 3846 (Tribal Forest Protection Act), which would authorize the Secretary of Agriculture and the Secretary of the Interior to enter into an agreement or contract with Indian tribes meeting certain criteria to carry out projects to protect Indian forest land, was passed by the Senate, clearing the measure for the President. 150 Cong. Rec. S7527 (daily ed. June 25, 2004).
  • H.R. 4614 (Energy and Water Development Appropriations Act for FY 2005), which would make appropriations for energy and water development for the fiscal year ending September 30, 2005, was passed by the House. 150 Cong. Rec. H5074 (daily ed. June 25, 2004).

COMMITTEE ACTION:

  • S. 180 (National Heritage Area), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-292, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would establish the National Aviation Heritage Area.
  • S. 211 (National Heritage Area), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-293, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would establish the Northern Rio Grande National Heritage Area in the state of New Mexico.
  • S. 323 (National Heritage Area), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-294, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would establish the Atchafalaya National Heritage Area, Louisiana.
  • S. 1241 (National Historic Site), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-295, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would establish the Kate Mullany National Historic Site in the state of New York.
  • S. 1727 (dams; appropriations), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-296, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would authorize additional appropriations for the Reclamation Safety of Dams Act of 1978.
  • S. 1957 (transboundary aquifers), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-297, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would authorize the Secretary of the Interior to cooperate with the states on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping, and modeling program for priority transboundary aquifers.
  • S. 2046 (land exchange), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-298, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would authorize the exchange of certain land in Everglades National Park.
  • S. 2180 (land exchange), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-285, 150 Cong. Rec. S7518 (daily ed. June 25, 2004). The bill would direct the Secretary of Agriculture to exchange certain lands in the Arapaho and Roosevelt National Forests in the state of Colorado.
  • S. 2243 (hyrdoelectric project), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-286, 150 Cong. Rec. S7518 (daily ed. June 25, 2004). The bill would extend the deadline for commencement of construction of a hydroelectric project in the state of Alaska.
  • S. 2319 (hydroelectric power), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-299, 150 Cong. Rec. S7749 (daily ed. July 7, 2004). The bill would authorize and facilitate hydroelectric power licensing of the Tapoco Project.
  • H.R. 1648 (water distribution), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-287, 150 Cong. Rec. S7518 (daily ed. June 25, 2004). The bill would authorize the Secretary of the Interior to convey certain water distribution systems of the Cachuma Project, California, to the Carpinteria Valley Water District and the Montecito Water District.
  • H.R. 1732 (water recycling), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-288, 150 Cong. Rec. S7518 (June 25, 2004). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Williamson County, Texas, Water Recycling and Reuse Project, and for other purposes.
  • H.R. 2828 (water resources), was reported by the Committee on Resources. H. Rep. No. 108-573 Pt. 1, 150 Cong. Rec. H5148 (daily ed. June 25, 2004). The bill would authorize the Secretary of the Interior to implement water supply technology and infrastructure programs aimed at increasing and diversifying domestic water resources.
  • H.R. 3209 (irrigation), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-289, 150 Cong. Rec. S7518 (daily ed. June 25, 2004). The bill would amend the Reclamation Project Authorization Act of 1972 to clarify the acreage for which the North Loup division is authorized to provide irrigation water under the Missouri River Basin project.
  • H.R. 3247 (public lands), was reported by the Committee on the Judiciary. H. Rep. No. 108-511 Pt. 2, 150 Cong. Rec. H5194 (daily ed. July 6, 2004). The bill would provide consistent enforcement authority to the BLM, the National Park Service, the FWS, and the Forest Service to respond to violations of regulations regarding the management, use, and protection of public lands under the jurisdiction of these agencies, to clarify the purposes for which collected fines may be used, and for other purposes.
  • H.R. 3819 (National Historical Park), was reported by the Committee on Resources. H. Rep. No. 108-570, 150 Cong. Rec. H5148 (daily ed. June 25, 2004). The bill would redesignate Fort Clatsop National Memorial as the Lewis and Clark National Historical Park, would include in the park sites in the state of Washington as well as the state of Oregon, and for other purposes.
  • H.R. 4362 (Bonneville Power Administration), was reported by the Committee on Resources. H. Rep. No. 108-582 Pt. 1, 150 Cong, Rec. H5194 (daily ed. July 6, 2004). The bill would authorize the Secretary of the Interior to accept a parcel of federal land in the state of Washington in trust for the Nisqually Tribe, to ensure that the acceptance of such land does not adversely affect the Bonneville Power Administration.
  • H.R. 4766 (appropriations), was reported by the Committee on Appropriations. H. Rep. No. 108-584, 150 Cong. Rec. H5330 (daily ed. July 7, 2004). The bill would make appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies for the fiscal year ending September 30, 2005.
  • H. Res. 694 (energy and water development), was reported by the Committee on Rules. H. Rep. No. 108-569, 150 Cong. Rec. H5069 (daily ed. June 24, 2004). The resolution would provide for consideration of the bill H.R. 4614 making appropriations for energy and water development for the fiscal year ending September 30, 2005, and for other purposes.

BILLS INTRODUCED:

  • S. 2583 (Clinton, D-N.Y.) (renewable energy), would promote the use of anaerobic digesters by agricultural producers and rural small businesses to produce renewable energy and improve environmental quality. 150 Cong. Rec. S7434 (daily ed. June 24, 2004). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2590 (Alexander, R-Tenn.) (outer continental shelf), would provide a conservation royalty from outer continental shelf revenues to establish the Coastal Impact Assistance Program, to provide assistance to states under the Land and Water Conservation Fund Act of 1965, to ensure adequate funding for conserving and restoring wildlife, to assist local governments in improving local park and recreation systems, and for other purposes. 150 Cong. Rec. S7435 (daily ed. June 24, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2598 (Akaka, D-Haw.) (public land), would protect, conserve, and restore public land administered by DOI or the U.S. Forest Service and adjacent land through cooperative cost-shared grants to control and mitigate the spread of invasive species, and for other purposes. 150 Cong. Rec. S7435 (daily ed. June 24, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2605 (Craig, R-Idaho) (Snake River Basin), would direct the Secretary of the Interior and the heads of other federal agencies to carry out an agreement resolving major issues relating to the adjudication of water rights in the Snake River Basin, Idaho, and for other purposes. 150 Cong. Rec. S7435 (daily ed. June 24, 2004). The bill was referred to the Committee on Indian Affairs.
  • S. 2606 (Chafee, R-R.I.) (estuaries), would amend FWPCA to reauthorize the National Estuary Program. 150 Cong. Rec. S7518 (daily ed. June 25, 2004). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 4686 (Kind, D-Wis.) (Mississippi River), would revitalize the Mississippi River. 150 Cong. Rec. H4926 (daily ed. June 24, 2004). The bill was referred to the Committee on Transportation and Infrastructure, and to the Committee on Resources.
  • H.R. 4688 (Gilchrest, R-Md.) (Chesapeake Bay), would amend FWPCA to reauthorize the Chesapeake Bay Program. 150 Cong. Rec. H4926 (daily ed. June 24, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4690 (Hastings, R-Wash.) (land transfer), would transfer certain lands along the Cle Elum River in the state of Washington to the administrative jurisdiction of the Secretary of the Interior, would support a land exchange involving a portion of such lands, and for other purposes. 150 Cong. Rec. H4926 (daily ed. June 24, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4691 (Hefley, R-Colo.) (water resources), would authorize the Secretary of the Interior to engage in a feasibility study relating to long-term water needs for the area served by the Fryingpan-Arkansas Project, Colorado, and for other purposes. 150 Cong. Rec. H4926 (daily ed. June 24, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4696 (McHugh, R-N.Y.) (renewable energy), would promote the use of anaerobic digesters by agricultural producers and rural small businesses to produce renewable energy and improve environmental quality. 150 Cong. Rec. H4927 (daily ed. June 24, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 4700 (McInnis, R-Colo.) (White River National Forest), would provide special authority to the Secretary of Agriculture to convey certain Forest Service administrative sites in the White River National Forest in Colorado, would reserve the proceeds from such conveyances to help resolve the facilities needs of that national forest, and for other purposes. 150 Cong. Rec. H4927 (daily ed. June 24, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4706 (Rahall, D-W.Va.) (fisheries), would amend the Magnuson-Stevens Fishery Conservation and Management Act to provide for stewardship of fishery resources for the American public, and for other purposes. 150 Cong. Rec. H4927 (daily ed. June 24, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4712 (Tiahrt, R-Kan.) (OSH Act), would amend the OSH Act with respect to enforcement provisions. 150 Cong. Rec. H4927 (daily ed. June 24, 2004). The bill was referred to the Committee on Education and the Workforce.
  • H.R. 4716 (Waters, D-Cal.) (National Park System), would authorize the Secretary of the Interior to study the suitability and feasibility of designating Ballona Bluff, located in Los Angeles, California, as a unit of the National Park System, and for other purposes. 150 Cong. Rec. H5149 (daily ed. June 25, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4717 (Otter, R-Idaho) (drinking water), would allow small public water systems to request an exemption from the requirements of any national primary drinking water regulation for a naturally occurring contaminant, and for other purposes. 150 Cong. Rec. H5149 (daily ed. June 25, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4718 (Lewis, R-Ky.) (agriculture), would amend the Internal Revenue Code of 1986 to provide a credit to certain agriculture-related businesses for the cost of protecting certain chemicals. 150 Cong. Rec. H5149 (daily ed. June 25, 2004). The bill was referred to the Committee on Ways and Means.
  • H.R. 4725 (Carson, D-Okla.) (Wild and Scenic Rivers Act), would amend the Wild and Scenic Rivers Act to designate a segment of the Glover River in the state of Oklahoma as a component of the National Wild and Scenic Rivers System. 150 Cong. Rec. H5149 (daily ed. June 25, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4731 (Gerlach, R-Pa.) (Estuaries), would amend FWPCA to reauthorize the National Estuary Program. 150 Cong. Rec. H5149 (daily ed. June 25, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4756 (Clay, D-Mo.) (National Park System), would authorize the Secretary of the Interior to conduct a study to determine the suitability and feasibility of designating the Soldiers' Memorial Military Museum located in St. Louis, Missouri, as a unit of the National Park System. 150 Cong. Rec. H5195 (daily ed. July 6, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4761 (Davis, D-Fla.) (FWPCA), would amend FWPCA to extend the pilot program for alternative water source projects. 150 Cong. Rec. H5195 (daily ed. July 6, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4762 (Pallone, D-N.J.) (mercury), would require the Secretary of Health and Human Services to ensure that the public is provided adequate notice and education on the effects of exposure to mercury through the development of health advisories and by requiring that such appropriate advisories be posted, or made readily available, at all businesses that sell fresh, frozen, and canned fish and seafood where the potential for mercury exposure exists. 150 Cong. Rec. H5195 (daily ed. July 6, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4774 (Filner, D-Cal.) (CAA), would amend the CAA to delay the effect of reclassifying certain nonattainment areas adjacent to an international border, and for other purposes. 150 Cong. Rec. H5330 (daily ed. July 7, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4775 (Reyes, D-Tex.) (water reclamation), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the El Paso, Texas, water reclamation, reuse, and desalinization project, and for other purposes. 150 Cong. Rec. H5330 (daily ed. July 7, 2004). The bill was referred to the Committee on Resources.
  • H. Con. Res. 468 (Schakowsky, D-Ill.) (freshwater resources), would express the sense of Congress with respect to the world's freshwater resources. 150 Cong. Rec. H5150 (daily ed. June 25, 2004). The concurrent resolution was referred to the Committee on International Relations, the Committee on Financial Services, and the Committee on Ways and Means.

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:

  • International Atomic Energy Agency Director General Mohamed ElBaradei said that Russia is willing to build a "state-of-the-art" geological depository for imported spent nuclear fuel. Alexander Rumyantsev, the head of Russia's nuclear agency, confirmed his country's interest. "Russia has experience in reprocessing combustible waste," Rumyantsev said after meeting with ElBaradei and Russian President Vladimir Putin. But he said operation of such a facility is years away. Russia's Duma passed legislation in 2001 allowing the importation of spent fuel.
  • The European Commission (EC) announced legal action against 13 Member States for noncompliance with two European Union (EU) laws on water. Nine Member States--Belgium, Finland, Germany, Italy, Luxembourg, the Netherlands, Portugal, Sweden, and the United Kingdom--received final written warnings, which call on them to urgently put in place all the necessary national legislation to comply with the EU Water Framework Directive. It had to be transposed into national law by December 2003. The Commission also sent first written warnings to France, Greece, Ireland, Italy, Portugal, Spain, and the United Kingdom for failing to meet a December 2000 deadline for installing proper treatment for wastewater discharges from cities and towns with more than 15,000 inhabitants.
  • The EC also sent first written warnings to Austria, France, Germany, Ireland, Italy, Luxembourg, Portugal, Spain, and the United Kingdom, urging them to do more to tackle air pollution in many of their urban areas, with regard to nitrogen dioxide and particulate matter. Under EU environmental legislation, the nine Member States should have drawn up pollution-reduction plans for areas with high concentrations of nitrogen dioxide and particulate matter by the end of December 2003.
  • Australia announced a ban on shipping and fishing covering one-third of the Great Barrier Reef, creating the world's largest protected marine network. "In terms of an insurance policy for the future of the reef, it's an incredibly important step, to ensure that the reef is there as a major economic driver, just as it is a natural icon for the country," Great Barrier Reef Marine Park spokesman Bruce Kingston said. Local fishermen are being compensated for loss of income.
  • Members of the Lusaka Agreement on Cooperative Enforcement Operations Against Illegal Trade in Wild Fauna and Flora began an investigation to determine whether 6.5 metric tons of ivory seized in Singapore in 2002 passed through South African or Tanzanian ports.
  • The first World Conference on Organic Seed was held. Seehttp://www.fao.org/newsroom/en/news/2004/47867/index.html
  • China said it plans to create a 16,800 reserve in its largest lake for the endangered Yangtze River dolphin.
  • The World Conservation Union (IUCN) and WWF released estimates from the African Rhino Specialist Group which suggest that the black rhino population is increasing. "Africa's critically endangered black rhinoceros could be on its way to recovery if present trends continue," the organizations said. "The latest findings show black rhino numbers have increased to just over 3,600, a rise of 500 over the last two years." Increased law enforcement activity and new habitat areas, particularly in South Africa, were said to be responsible.
  • The IUCN planned to add several more varieties of shark and ray to itsRed List of Threatened Species.

CLIMATE CHANGE:

  • The EC accepted eight national allocation plans for carbon dioxide emission allowances. Five plans--from Denmark, Ireland, the Netherlands, Slovenia, and Sweden--were accepted unconditionally. Another three--from Austria, Germany, and the United Kingdom--were approved on the condition that technical changes are made. This will make them automatically acceptable, without requiring a second assessment by the Commission. National allocation plans outline the number of carbon dioxide emission allowances that Member States intend to allocate to energy-intensive industrial plants, so they can participate in emissions trading from January 2005. The decision clears over 5,000 plants of an estimated 12,000 in the EU25. They will receive over 40% of the allowances expected to be put into circulation. Seehttp://europa.eu.int/comm/environment/climat/emission_plans.htm
  • The EC also sent two Member States--Greece and Italy--first written warnings because they have not yet submitted their national emissions trading allocation plans. The plans have to outline the number of emission allowances that Member States intend to allocate to their industries. In addition, the Commission also sent final written warnings to all EU15 Member States except Austria, Germany, France, and Sweden for not fully transposing the Emissions Trading Directive into national law, as required by December 31, 2003. Environment Commissioner Margot Wallström said: “Last year, the Member States unanimously decided to give a central role to emissions trading as the key instrument for the EU to implement its Kyoto Protocol obligations. They made this choice because emissions trading is the most cost-effective way to meet our Kyoto target. While I am pleased that the Commission was able to approve a first batch of eight national allocation plans today, I am disappointed that some Member States are slow in taking the measures necessary to ensure a smooth start of emissions trading next year. If the EU wants to retain its leadership in fighting climate change, it can best demonstrate its determination through the emissions trading scheme, and all Member States need to be on board." Seehttp://europa.eu.int/comm/environment/climat/emission.htm
  • Astudyfunded by the International Rice Research Institute and the Agricultural Research Division of the University of Nebraska concluded that rice yields decreased by 10% after an average daily temperature increase of 1.8 degrees Fahrenheit, demonstrating a link between higher nighttime temperatures and lower crop yield. Studies of corn and soybeans have also shown smaller yields. Rice provides approximately 20% of the world's dietary supply.
  • Norwegian Minister of Environment Knut Arild Hareide said Norway intends to create a national greenhouse gas emissions trading program and will seek mutual recognition under Article 25 of European Union Directive 2003/87/EC. The program will be in place by January 1, 2005, covering carbon dioxide emissions.
  • TheLos Angeles Timesreported that researchers in California are concerned that global warming could be threatening the state's water supply by causing snow melts in the Sierra Nevada mountains to occur weeks ahead of schedule. "The mountain ranges are essentially draining and drying earlier," said Dan Cayan, director of the Climate Research Division at the Scripps Institution of Oceanography. "I would say there's enormous concern about this."
  • A computer at the National Center for Atmospheric Research (U.S.) concluded that global warming will cause temperatures to rise faster than had previously been estimated. Data from the computer, the Community Climate System Model or CCSM3, will be presented to the Intergovernmental Panel on Climate Change.

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

Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to orders@eli.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

ELR STAFF

Leslie Carothers, Publisher
John H. Turner, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Caroline Hermann, Assistant Editor
Carolyn Fischer, Editorial Associate
William J. Straub, Desktop Publisher
April King, Editorial Assistant