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Weekly Update Volume 34, Issue 21

07/26/2004

LITIGATION

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

LANDFILL, WENDELL H. FORD AVIATION INVESTMENT AND REFORM ACT (WENDELL FORD ACT):

The Third Circuit reversed a lower court decision and granted declaratory judgment for a waste management company stating that the Wendell Ford Act does not prohibit the building of a landfill because the company began construction prior to the effective date of the Act. The Wendell Ford Act replaced an earlier Federal Aviation Administration (FAA) act that imposed restrictions on landfills since these sites tend to attract birds that can present a safety problem for aircraft flying at low altitudes. The waste company had Article III standing to challenge the Act, and the issue of whether the landfill falls into the Act's grandfather clause was ripe for review. Relying on an FAA circular, the court interpreted the company's actions of installing monitoring wells as the "commencement" and "establishment" of the landfill facility. Because the company began construction of the landfill within the meaning of the FAA circular prior to the effective date of the Act, the landfill falls within the Act's grandfather clause.Khodara Environmental, Inc. v. Blakey, No. 02-4038, 34 ELR 20053 (3d Cir. July 21, 2004) (19 pp.).

NEPA, ESA:

The Ninth Circuit affirmed in part and reversed in part a lower court decision concerning challenges to a plan to redirect water from the Sacramento River basin back to the Trinity River in order to revive its chinook salmon, coho salmon, and steelhead trout populations. Contrary to the lower court's conclusion, the scope of the EIS and the range of alternatives considered therein were reasonable. Nor was a supplemental EIS required to discuss the National Marine Fisheries Service's (NMFS') biological opinion requiring mitigation of impacts to Sacramento River temperatures and the effect of the California energy crisis. The lower court, however, properly determined that mitigation measures insisted upon by the FWS and NMFS were invalid under the ESA since they constituted a major change.Westlands Water District v. United States Department of Interior, Nos. 03-15194 et al., 34 ELR 20054 (9th Cir. July 13, 2004) (43 pp.).

NEPA, ESA:

The Ninth Circuit affirmed a lower court decision that the U.S. Forest Service's issuance of a permit to operate a bison capture facility in Montana did not violate the ESA or NEPA. The Forest Service, along with the FWS, agreed that the facility might adversely affect certain bald eagle populations. The FWS therefore issued an incidental take statement that set forth certain helicopter hazing restrictions near the eagle nests. An environmental group argued that the Forest Service's failure to enforce the restrictions led to reproductive failure of the eagles. The group, however, failed to show a causal link between any alleged hazing violations and the reproductive failure. Thus, no prohibited take occurred under the ESA. In addition, the court declined to address the group's claim that the Forest Service was required to reinitiate formal consultation with the FWS after the reproductive failure because it was not raised below. Last, the Forest Service properly evaluated the impact of the bison capture facility and solicited public comment before issuing the permit and FONSI.Cold Mountain v. Garber, No. 03-35474, 34 ELR 20055 (9th Cir. July 14, 2004) (17 pp.).

CWA, CITIZENS SUIT:

The Ninth Circuit reversed a lower court's dismissal of an environmental group's CWA suit against a manufacturing company, finding that the group's intent to sue letter provided the company sufficient notice of its claims. The group properly notified the company of its intent to sue at least 60 days before filing its complaint under CWA §505(b)(1)(A). The letter's allegations regarding unpermitted stormwater discharges and inadequate reporting procedures were sufficiently supported with detailed information about the discharge dates and various contaminants. Moreover, the group filed its complaint in good faith. On remand, the lower court must decide whether the group's evidence of continuous and ongoing violations is sufficient to survive summary judgment.WaterKeepers Northern California, Inc. v. AG Industrial Manufacturing, Inc., Nos. 03-15023, -15631, 34 ELR 20056 (9th Cir. July 16, 2004) (18 pp.).

CONSTITUTIONAL LAW, WATER QUALITY:

The Ninth Circuit reversed a lower court decision to find a possible equal protection violation when a state water quality control board's overzealous regulation of a ski resort's water discharges may have been motivated by personal animus, but affirmed the decision on all remaining claims. When the board accused the resort of violating water quality standards, the resort sued the board for equal protection violations, arguing that it was similarly situated to other resorts but treated differently by being singled out for unique regulatory and enforcement treatment. Although the board articulated a rational basis for dealing with the violations through formal enforcement measures, there was a triable issue of fact regarding the board supervisor's justification for the disparate treatment. The court, therefore, reversed the lower court's grant of summary judgment on this issue. However, the lower court decision was affirmed on all remaining claims. Substantive due process claims based on governmental interference with property rights are foreclosed by the Fifth Amendment’s Takings Clause, and this prohibition extends even to claims that would be unsuccessful takings claims.Squaw Valley Development Co. v. Goldberg, No. 02-17346, 34 ELR 20051 (9th Cir. July 20, 2004) (26 pp.).

NATIONAL TRAILS SYSTEM ACT AMENDMENTS (RAILS-TO-TRAILS ACT), TAKINGS, EASEMENTS:

The Federal Circuit affirmed a lower court decision that a taking occurred when a property owner's interest in an unused railroad easement was converted to a public recreation trail under the Rails-to-Trails Act without just compensation. Under the shifting use rule as applied in California, a public transportation easement defined as one for railroad purposes is not stretchable into an easement for a recreational trail. Thus, the easement was converted into a new and different easement. And although the government has the legal power and is thus free to impose such new uses upon the fee interests held by the property owner, the private property interests taken are not free; the government must pay the just compensation mandated by the Constitution. A possible light rail system project is too speculative to deny protection of this right. The court did not address whether the railroad easement was abandoned, but did hold that the case was properly brought in federal court since the state court thoroughly explained its position on shifting use in transportation easements.Toews v. United States, No. 03-5129, 34 ELR 20052 (Fed Cir. July 21, 2004) (21 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 the emission limits, definitions, compliance provisions and performance test requirements of the national emission standards for chromium emissions from hard and decorative chromium electroplating and chromium anodizing tanks under §112 of the CAA.69 FR 42897(7/19/04).
  • EPA announced a complete petition from the Ketones Panel of the American Chemistry Council requesting EPA to remove the chemical methyl isobutyl ketone from the list of hazardous air pollutants; the completed petition will allow for the assessment of human impacts associated with the chemical and of the environmental impacts associated with the chemical's emissions.69 FR 42956(7/19/04).

  • EPA entered into a proposed consent decree in a lawsuit failed against it for failing to initiate a new source performance standard for stationary internal combustion engines.69 FR 43979(7/23/04).

  • EPA announced that the motor vehicle emission budgets in the Raleigh/Durham and Greensboro/Winston-Salem/High Point areas' one-hour ozone maintenance plan updates are adequate for transportation conformity purposes.69 FR 43980(7/23/04).
  • EPA approved Ohio's revision of the Cincinnati one-hour maintenance plan to include a new transportation conformity motor vehicle emissions budget for 2010 and to allocate a portion of the safety margin for nitrogen oxides.69 FR 43322(7/20/04).
  • EPA announced that the motor vehicle emissions budgets in the Provo, Utah, carbon monoxide redesignation and maintenance plan are adequate for conformity purposes.69 FR 43412(7/20/04).

WATER QUALITY:

  • EPA issued five NPDES general permits for wastewater lagoon systems that are treating primarily domestic wastewater located in Indian country in Montana, North Dakota, South Dakota, Utah, and Wyoming.69 FR 43847(7/22/04).

WILDLIFE:

  • FWS announced a five-year review of holy ghost ipomopsis and kuenzler hedgehog cactus under §4(c)(2)(A) of the ESA to ensure that the classification of species as threatened or endangered on the list of endangered and threatened wildlife and plants is accurate.69 FR 43622(7/21/04).
  • NOAA's National Marine Fisheries Service must establish a threshold level for mortality and serious injury to meet the zero mortality rate requirement established in the Marine Mammal Protection Act.69 FR 43345(7/20/04).
  • FWS announced that the draft comprehensive conservation plan and environmental assessment describing its proposal for management of the Fish Springs National Wildlife Refuge is available for public review and comment.69 FR 43429(7/20/04).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 2277 (Salt River Pima-Maricopa Indian Reservation), which would amend the Act of November 2, 1966 (80 Stat. 1112), to allow binding arbitration clauses to be included in all contracts affecting the land within the Salt River Pima-Maricopa Indian Reservation, was passed by the Senate. 150 Cong. Rec. S8427 (daily ed. July 19, 2004).
  • H.R. 1156 (Amending the Reclamation Wastewater and Groundwater Study and Facilities Act), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to increase the ceiling on the federal share of the costs of phase I of the Orange County, California, Regional Water Reclamation Project, was passed by the House. 150 Cong. Rec. H5929 (daily ed. July 19, 2004).
  • H.R. 2619 (Kilauea Point National Wildlife Refuge Expansion Act of 2003), which would provide for the expansion of Kilauea Point National Wildlife Refuge, was passed by the House. 150 Cong. Rec. H5932 (daily ed. July 19, 2004).
  • H.R. 2831 (Newlands Project Headquarters and Maintenance Yard Facility Transfer Act), which would authorize the Secretary of the Interior to convey the Newlands Project Headquarters and Maintenance Yard Facility to the Truckee-Carson Irrigation District, was passed by the House. 150 Cong. Rec. H5930 (daily ed. July 19, 2004).
  • H.R. 2991 (Inland Empire Regional Water Recycling Initiative), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Inland Empire regional recycling project and in the Cucamonga County Water District recycling project, was passed by the House. 150 Cong. Rec. s H5933 (daily ed. July 19, 2004).
  • H.R. 3785 (Exchange of Certain Lands in Everglades National Park), which would authorize the exchange of certain lands in Everglades National Park, was passed by the House. 150 Cong. Rec. H5935 (daily ed. July 19, 2004).
  • H.R. 3819 (Lewis and Clark National Historical Park Designation Act of 2004),which would redesignate Fort Clatsop National Memorial as the Lewis and Clark National Historical Park to include in the park sites in the state of Washington as well as the state of Oregon, was passed by the House. 150 Cong. Rec. H5936 (daily ed. July 19, 2004).
  • H.R. 3874 (Conveying Certain Federal lands in Riverside County, California), which would convey for public purposes certain federal lands in Riverside County, California, that have been identified for disposal, was passed by the House. 150 Cong. Rec. H5928 (daily ed. July 19, 2004 ).
  • H.R. 4115 (Salt River Pima-Maricopa Indian Reservation), which would amend the Act of November 2, 1966, to allow binding arbitration clauses to be included in all contracts affecting the land within the Salt River Pima-Maricopa Indian Reservation, was passed by the House. 150 Cong. Rec. H5921 (daily ed. July 19, 2004).
  • H.R. 4158 (Conveyance to the Government of Mexico of a Decommissioned NOAA Ship),which would provide for the conveyance to the Government of Mexico of a decommissioned NOAA ship, was passed by the House. 150 Cong. Rec. H5941 (daily ed. July 19, 2004).
  • H.R. 4170 (Department of the Interior Volunteer Recruitment Act of 2004), which would authorize the Secretary of the Interior to recruit volunteers to assist with, or facilitate, the activities of various agencies and offices of the DOI, was passed by the House. 150 Cong. Rec. H5942 (daily ed. July 19, 2004).
  • H.R. 4492 (Amending the Omnibus Parks and Public Lands Management Act of 1996),which would amend the Omnibus Parks and Public Lands Management Act of 1996 to extend the authorization for certain national heritage areas, was passed by the House. 150 Cong. Rec. H5922 (daily ed. July 19, 2004).
  • H.R. 4625 (Soda Ash Royalty Reduction Act of 2004), which would reduce temporarily the royalty required to be paid for sodium produced on federal lands, was passed by the House. 150 Cong. Rec. H5943 (daily ed. July 19, 2004).

COMMITTEE ACTION:

  • S. 1996 (Native Americans; irrigation), was reported by the Committee on Indian Affairs. S. Rep. No. 108-311, 150 Cong. Rec. S8473 (daily ed. July 20, 2004). The bill would enhance and provide to the Oglada Sioux Tribe and Angostura Irrigation Project certain benefits of the Pick-Sloan Missouri River basin program.
  • S. Res. 404 (Smokey the Bear), was reported by the Committee on the Judiciary. 150 Cong. Rec. S8473 (daily ed. July 20, 2004). The resolution would designate August 9, 2004, as "Smokey Bear's 60th Anniversary."
  • H.R. 4170 (DOI volunteers), was reported by the Committee on Resources. H. Rep. No. 108-613, 150 Cong. Rec. H5982 (daily ed. July 19, 2004). The bill would authorize the Secretary of the Interior to recruit volunteers to assist with, or facilitate, the activities of various agencies and offices of the DOI.
  • H.R. 4492 (national heritage areas), was reported by the Committee on Resources. H. Rep. No. 108-611, 150 Cong. Rec. H5982 (daily ed. July 19, 2004). The bill would amend the Omnibus Parks and Public Lands Management Act of 1996 to extend the authorization for certain national heritage areas.
  • H.R. 4625 (sodium), was reported by the Committee on Resources. H. Rep. No. 108-612, 150 Cong. Rec. H5982 (daily ed. July 19, 2004). The bill would reduce temporarily the royalty required to be paid for sodium produced on federal lands.

BILLS INTRODUCED:

  • S. 2691 (Lieberman, D-N.Y.) (Long Island Sound), would establish the Long Island Sound Stewardship Initiative. 150 Cong. Rec. S8473 (daily ed. July 20, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2699 (Snowe, R-Me.) (Rockland Harbor), would deauthorize a certain portion of the project for navigation, Rockland Harbor, Maine. 150 Cong. Rec. S8474 (daily ed. July 20, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2703 (Hutchison, R-Tex.) (coastal barrier), would provide for the correction of a certain John H. Chafee Coastal Barrier Resources System map. 150 Cong. Rec. S8548 (daily ed. July 21, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2709 (Smith, R-Or.) (forests), would provide for the reforestation of appropriate forest cover on forest land derived from the public domain, and for other purposes. 150 Cong. Rec. S8548 (daily ed. July 21, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4865 (Bereuter, R-Neb.) (National Trails System Act), would amend the National Trails System Act to authorize an additional category of national trail known as a national discovery trail, to provide special requirements for the establishment and administration of national discovery trails, and to designate the cross country American Discovery Trail as the first national discovery trail. 150 Cong. Rec. H6126 (daily ed. July 20, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4869 (Gilchrest, R-Md.) (Marine Mammal Protection Act), would amend the Marine Mammal Protection Act of 1972 to authorize appropriations for the John H. Prescott Marine Mammal Rescue Assistance Grant Program, and for other purposes. 150 Cong. Rec. H6127 (daily ed. July 20, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4876 (Simmons, R-Conn.) (Long Island Sound), would establish the Long Island Sound Stewardship Initiative. 150 Cong. Rec. H6127 (daily ed. July 20, 2004). The bill was referred to the Committee on Resources and the Committee on Transportation and Infrastructure.
  • H.R. 4884 (Grijalva, D-Ariz.) (boundary adjustment), would adjust the boundary of the Yuma Crossing National Heritage Area. 150 Cong. Rec. H6556 (daily ed. July 21, 2004). The bill was referred to the Committee on Resources.
  • H.R. 4887 (Kingston, R-Ga.) (boundary adjustment), would adjust the boundary of the Cumberland Island Wilderness, to authorize tours of the Cumberland Island National Seashore, and for other purposes. 250 Cong. Rec. H6556 (daily ed. July 21, 2004). The bill was referred to the Committee on Resources.
  • H. Res. 727 (Delahunt, D-Mass.) (whales), would express the sense of the House of Representatives regarding the policy of the United States at the 56th Annual Meeting of the International Whaling Commission. 150 Cong. Rec. H5983 (daily ed. July 19, 2004). The resolution was referred to the Committee on International Relations.

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:

  • Member countries participating in the International Whaling Commission's annual meeting in Sorrento, Italy, rejected a proposal by Japan to allow members to vote in secret. The vote, a victory for conservation groups, was 29-24.
  • The Associated Press reported that Plodprasop Suraswadi, permanent secretary of the Natural Resources and Environment Ministry, was transferred from his post pending the outcome of an investigation that he authorized a private zoo to export 200 tigers to China, a potential violation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
  • The group WWF said that increased tourism in the Mediterranean region is affecting freshwater supplies.
  • The group Forest Trends issued areporton the contribution to the conservation of tropical forests made by indigenous populations.
  • The European Commission (EC) claimed that Italy is in violation of 23 European Union (EU) environmental directives.
  • Other claims were brought against Austria, Germany, Portugal, and the United Kingdom.
  • The EC authorized the placing on the market of the genetically modified maize known as NK603 for import and processing. This decision is valid for 10 years and results from an application submitted by Monsanto. Imports of the maize, whether in bulk shipments, bags, or other containers, will have to be labeled as containing genetically modified maize.
  • The United Nations (U.N.) Environment Programsaidthat it would partner with institutional investors to develop, by September 2005, a set of principles to guide environmentally and socially responsible investment.
  • The U.N. International Strategy for Disaster Reduction issued a report,Living With Risk: A Global Review of Disaster Reduction Initiatives, which urges a greater focus upon disaster prevention and mitigation strategies.

CLIMATE CHANGE:

  • Twostudiespublished in the journalScienceconcluded that oceans have absorbed nearly half the carbon dioxide released by humans during the last two centuries.
  • TheLondon Telegraphreportedthat a new German-Swiss study concludes that the sun is burning brighter than any time in the past 1,000 years and that its increased radiation output is at least in part responsible for changes in the global climate. "While the established view remains that the sun cannot be responsible for all the climate changes we have seen in the past 50 years or so, this study is certainly significant," said climatologist Bill Burrows, a member of the British Royal Meteorological Society. "It shows that there is enough happening on the solar front to merit further research. Perhaps we are devoting too many resources to correcting human effects on the climate without being sure that we are the major contributor."

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

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