Jump to Content

Weekly Update Volume 34, Issue 23

08/16/2004

 

LITIGATION

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

FERC, NATURAL GAS ACT (NGA), PREEMPTION:

The Eighth Circuit affirmed a lower court decision that federal law preempts conflicting state pipeline regulations and, thus, governs the upgrade of a natural gas pipeline in Iowa. Iowa Code chapter 479A and its implementing provisions, which provide for various pipeline reporting and inspection requirements and require the restoration of agricultural land following pipeline work, regulate in a field that is occupied by federal law and thus are preempted by the NGA. The NGA specifically provides that FERC will oversee the construction and maintenance of natural gas pipelines through the issuance of certificates of public convenience and necessity. Further, many of FERC's regulations relate to environmental concerns, including soil preservation and land restoration--the very areas Iowa wishes to regulate.Northern Natural Gas Co. v. Iowa Utilities Board, No. 03-1889, 34 ELR 20071 (8th Cir. Aug. 11, 2004) (12 pp.).

ESA, CRITICAL HABITAT, NORTHWEST FOREST PLAN:

The Ninth Circuit reversed a lower court decision to find that biological opinions issued by the FWS on timber harvests and critical habitat for the Northern spotted owl improperly relied on an unlawful regulatory definition of "adverse modification" and impermissibly substituted late successional reserves (LSRs) for critical habitat. The agency’s finding that loss of critical habitat was not an "adverse modification" because of the existence of suitable external habitat is arbitrary and capricious and is contrary to law. The agency's interpretation of adverse modification would require appreciable diminishment of critical habitat necessary for survival before the adverse modification standard could ever be met. In addition, suitable alternative habitat, here LSRs, is no substitute for designated critical habitat. Simply because the spotted owl has suitable alternative habitat in the form of non-critical habitat LSRs has no bearing on whether there is adverse modification of critical habitat. This interpretation would thwart the goals of the ESA, which aims to create critical habitat necessary for species' survival as well as recovery. The FWS' reliance on the Northwest Forest Plan for its jeopardy analysis under ESA §7, however, was proper without more evidence showing that the plan was inadequate or incorrect.Gifford Pinchot Task Force v. United States Fish & Wildlife Service, No. 03-35279, 34 ELR 20068 (9th Cir. Aug. 6, 2004) (30 pp.).

NEPA, INTERIOR BOARD OF LAND APPEALS (IBLA):

The Tenth Circuit reversed a lower court decision to reinstate three oil and gas leases, previously denied by the IBLA, because the BLM failed to comply with NEPA. The BLM concluded that two existing NEPA analyses satisfied the NEPA requirements with regard to issuance of the leases. One of these documents, however, did not address coal bed methane development, and the second document did not address two of the three parcels at issue in this case. The IBLA concluded that the existing NEPA analyses were insufficient to allow the BLM to take a "hard look" at the environmental impacts of the proposed coal bed methane development, but a district court reversed. Contrary to the district court's finding, the IBLA's conclusion that additional NEPA documents were needed was supported by substantial evidence in the administrative record. The record also supported the IBLA's conclusion that the proposed action raised significant new environmental concerns that had not been addressed by the existing NEPA documents. The IBLA's decision, therefore, was not arbitrary or capricious.Pennaco Energy, Inc. v. United States Department of the Interior,No. 03-8062, 34 ELR 20072 (10th Cir. Aug. 10, 2004) (27 pp.).

CERCLA, CONTRACT SETTLEMENT ACT OF 1944 (CSA):

The Federal Circuit held that the government must reimburse a company for CERCLA response costs incurred at a bomber plant the company built and operated for the government during World War II. The termination agreement set forth in the parties' contract preserved the company's reimbursement for costs not known at the time of contracting and thus extends to later-arising environmental liability. Because the company's claim was exempted from settlement by the terms of the termination agreement, the government's liability under the CSA was not released. And since the CSA explicitly contemplated later-arising claims, the company's claim for reimbursement is not barred even though the originating events are long past. Liability for cleanup did not arise until after enactment of CERCLA and other environmental laws, and the claim was timely made after it arose.Ford Motor Co. v. United States, No. 03-5092, 34 ELR 20070 (Fed Cir. Aug. 10, 2004) (21 pp.).

CAA, OZONE-DEPLETING SUBSTANCES, VACATUR:

The D.C. Circuit vacated an EPA rule authorizing the use of two ozone-depleting foam insulation agents as substitutes for an ozone-depleting chemical scheduled to be phased out in 2003. EPA’s reliance on economic constraints requires reversal of its rule. EPA argued that the rule relied on technical constraints, yet technical considerations intersect with economic considerations. Because EPA has not yet offered its interpretation as to whether CAA §612(c) permits it to consider costs, the court cannot properly evaluate the rule. And because CAA §307(d)(9) provides that a court may reverse an EPA action, vacatur rather than remand is the only remedy the court was authorized to impose. In addition, the company challenging the rule had standing since its commercial concerns about possible lost sales due to the approval of the ozone-depleting substitutes fell within the zone of interests contemplated by Congress.Honeywell International, Inc. v. Environmental Protection Agency, No. 02-1294, 34 ELR 20065 (D.C. Cir. July 23, 2004) (34 pp.).

DOLPHIN PROTECTION CONSUMER INFORMATION ACT, INTERNATIONAL DOLPHIN CONSERVATION PROGRAM ACT (IDPCA):

A district court granted environmental groups' motion to preliminarily enjoin the Secretary of Commerce from implementing his finding under the IDPCA that the intentional deployment on, or encirclement of, dolphins with purse seine nets is not having a significant adverse impact on depleted dolphin stocks in the Eastern Tropical Pacific ocean. The Secretary's finding would permit tuna caught in the Eastern Tropical Pacific ocean using purse seine nets that are deployed to chase and encircle dolphins to be sold and marketed in the United States using the label "dolphin safe" so long as no dolphins are observed to have been killed or seriously injured during the set in which the tuna was harvested. The groups demonstrated that they are likely to succeed on their claim that the final finding is contrary to the best available scientific evidence and that the Secretary's explanation for his decision runs counter to the evidence before the agency. In addition, a temporary change in the label will likely cause irreparable injury to dolphins, create consumer confusion, and involve significant administrative efforts. And maintaining the current standard for another few months to allow the court the opportunity to fully adjudicate this action on the merits will both avoid the risk of irreparable injury to depleted dolphin stocks and further the public interest.Earth Island Institute v. Evans, No. C 03-0007 TEH, 34 ELR 20069 (N.D. Cal. Aug. 10, 2004) (Henderson, J.) (24 pp.).

PROPERTY LAW, EASEMENTS, CONDEMNATION:

A California appellate court affirmed a referee's decision that a proposed pipeline easement unreasonably interfered with a railroad right-of-way and proposed second track and that condemnation was not warranted. A railroad sought to move a pipeline existing in the railroad’s right-of-way in order to build a second track. The pipeline company refused to move the pipeline and filed a lawsuit to condemn a five-foot easement around the existing location of the pipeline. The parties agreed to use a referee to decide the case, and the referee found in favor of the railroad. The referee properly applied the doctrine of implied findings to the case. The state condemnation statute was also applied correctly. The referee properly analyzed possible alternate locations for the pipeline, and the record contains substantial evidence to support the referee's finding that the proposed easement was not located in the manner most compatible with the greatest public good.SFPP, L.P. v. Burlington Northern & Santa Fe Railway Co., No. F043498, 34 ELR 20066 (Cal. Ct. App. Aug. 5, 2004) (28 pp.).

PROPERTY LAW, PRESCRIPTIVE EASEMENT, NUISANCE:

A California appellate court affirmed a jury finding that established a prescriptive easement for a restaurant to cross its neighbor's property in order to make deliveries. To establish a claim of right to a prescriptive easement, the claimant need not believe he or she is legally entitled to use of the easement. Claim of right does not require a belief or claim that the use is legally justified. It simply means that the property was used without permission of the owner of the land. The court also affirmed the lower court finding that the landowners were liable for nuisance. The restaurant failed to stop wastewater from seeping onto the neighbor's property even though it had knowledge of the condition and sufficient control over the premises to obviate it.Felgenhauer v. Soni, No. B157490, 34 ELR 20067 (Cal. Ct. App. Aug. 5, 2004) (11 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 reclassified Imperial Valley as a serious nonattainment area for particulate matter having an aerodynamic diameter of 10 microns of less (PM10).69 FR 48794(8/11/04).
  • EPA proposed an exemption for refiners, importers, and blenders of gasoline subject to California's Phase III reformulated gasoline regulations from certain enforcement provisions in the federal reformulated gasoline regulations because the Agency believes that gasoline complying with the California regulations would provide emissions benefits equal to federal phase II reformulated gasoline and California's compliance and enforcement program would assure that the standards are met.69 FR 48835(8/11/04).
  • EPA responded to two citizen petitions requesting EPA to object to operating permits issued to two facilities by the Bay Area Air Quality Management District.69 FR 48863(8/11/04).
  • EPA proposed to amend the NESHAPs for byproduct coke oven batteries.69 FR 48358(8/9/04).

HAZARDOUS SUBSTANCES:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Imperial Refining Superfund site that requires the settling parties to pay $300,575.29 as payment of response costs to the hazardous substances Superfund.69 FR 49897(8/12/04).

LAND MANAGEMENT:

  • The U.S. Forest Service proposed to change the way it governs special use permits for outfitting and the way guides are conducted on National Forest System lands by increasing the maximum term for these authorizations from 5 to 10 years, thereby providing potential for greater business continuity.69 FR 50162(8/13/04).
  • The National Park Service proposed to designate areas and routes on Lake Superior and the mainland unit for use by snowmobiles, off-road motor vehicles, and ice augers or power engines within Apostle Islands National Lakeshore.69 FR 49844(8/12/04).

WATER QUALITY:

  • EPA proposed to approve revisions to the Louisiana Pollutant Discharge Elimination System that include a complete program description, a memorandum of agreement, and an attorney general's statement.69 FR 50203(8/13/04).
  • EPA tentatively approved revisions to West Virginia's public water system supervision program that would improve control of microbial pathogens in drinking water.69 FR 48873(8/11/04).
  • EPA gave notice of a proposed consent agreement and final order that would resolve penalties for CWA §301(a) violations.69 FR 49897(8/12/04).

WILDLIFE:

  • FWS announced that it will hold nine public hearings on its proposed rule to remove the Eastern Distinct Population Segment of the gray wolf from the list of endangered and threatened wildlife.69 FR 50147(8/13/04).
  • FWS proposed to designate 382,666 acres of critical habitat for the California tiger salamander pursuant to the ESA.69 FR 48649(8/10/04).
  • NOAA's National Marine Fisheries Service published its final list of fisheries for 2004, which reflects new information on interactions between commercial fisheries and marine mammals.69 FR 48423(8/10/04).
  • FWS issued the notice of a request by the Woodlands Operating Company, L.P. to amend a permit authorizing the incidental take of the threatened bald eagle.69 FR 48252(8/9/04).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. 3M Company, No. 2:04-cv-3331 (D. N.J. July 14, 2004). Settling CERCLA defendants must reimburse $1,149,902 in past EPA costs incurred at the Carlstadt Superfund site in New Jersey, and must perform the Operable Unit Two remedial action, which includes the treatment and stabilization of a hot spot area, the installation of a landfill cap over the fill area, improvement of the existing groundwater recovery system, and institutional controls.69 FR 48887(8/11/04).
  • United States v. Izzo Group, Inc., No. 1:04-CV-11689 (D. Mass. Aug. 2, 2004). Settling CERCLA defendants must reimburse $100,000, plus interest, in past EPA costs incurred at the Cohen Property Superfund site; the settlement also provides for payment of approximately $2,000,000 by the United States to reimburse EPA's response costs incurred at the site.69 FR 48888 (8/11/04).
  • United States v. Mallinckrodt, Inc., No. 4:02CV1488 (E.D. Mo. July 29, 2004). Settling CERCLA defendants must reimburse $45,713.12 in past EPA response costs incurred at the Great Lakes Container Corporation Superfund site in St. Louis, Missouri.69 FR 48888(8/11/04).
  • United States v. Hyponex Corp., No. 92-1940 (D. N.J. July 6, 2004). A settling CWA defendant is enjoined from discharging dredged or fill materials into U.S. waters, must implement a restoration plan to restore wetlands damaged by the unauthorized discharges at a site in Sussex County, New Jersey, must enhance other wetlands at that site, must pay $50,000, must place a conservation easement on over 1,000 acres of land at that site and transfer that property to an organization approved by the U.S. Army Corps of Engineers for the purpose of permanent protection and management of the transferred property, and must pay $125,000 to establish a fund to be used by the holder of the conservation easement.69 FR 48887(8/11/04).

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

THE CONGRESS

Congress is currently in recess but will reconvene September 7, 2004.

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:

  • Two directors of the Woods Hole Research Center,writingin theBoston Globe, criticized the World Bank for continuing to support projects that seek new sources for fossil fuels.
  • The Food and Agriculture Organization of the United Nations (U.N.), which called attention to a potentially devastating locust season last October, says the swarms now invading West Africa could cause $245 million in damage to crops and vegetation if aid is not forthcoming soon, and government officials say nearly 1 million people could go hungry if crops are destroyed by the infestation.
  • Pakistan and Italy celebrated the 50th anniversary of the first ascent of K-2, the world's second largest peak, with anannouncementof an Italian-funded environmental station to assist the U.N. Environment Program in researching the effects of airborne pollutants on the atmosphere.
  • Time Asiareportedthat floods and droughts in southeast Asia have been made worse by poor planning and government inefficiency. Government inaction on water-harvesting plans and pipe maintenance have worsened the effects of drought in some areas, while deforestation and poor flood-control infrastructure actually exacerbate seasonal monsoon problems.

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