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Weekly Update Volume 34, Issue 30

10/25/2004

 LITIGATION

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

NEPA, APA, NATIONAL PARKS, SNOWMOBILES:

A district court vacated the National Park Service's (NPS') 2001 "snowcoach rule" that bans the use of snowmobiles in the Yellowstone and Grand Teton national parks. The court determined that the rule was the product of a "prejudged, political decision to ban snowmobiles from all the National Parks." According to the court, the NPS failed to take a hard look at the effects of emissions or noise of numerous snowcoaches entering the parks, and the issuance of the EIS, record of decision (ROD), and final rule were nothing more than pro forma compliance with the requirements of NEPA. The NPS also failed its obligation to involve and seriously consider the comments of cooperating agencies, and it deprived the public of meaningful participation in the NEPA process. In addition, the NPS violated the APA by failing to adequately explain its radical departure to ban snowmobiles in the parks. For all of these reasons, the court vacated and remanded the EIS, ROD, and snowcoach rule.International Snowmobile Manufacturers Ass'n v. Norton, No. 00-CV-229-B, 34 ELR 20116 (D. Wyo. Oct. 14, 2004) (40 pp.).

ESA, NEPA, MARINE MAMMALS PROTECTION ACT (MMPA), APA, STANDING:

The Ninth Circuit held that the world's cetaceans--whales, dolphins, and porpoises--do not have standing under the ESA, MMPA, NEPA, or APA to challenge the U.S. Navy's use of sonar during wartime conditions. The ESA authorizes "persons" to sue to protect animals whenever those animals are endangered or threatened. Animals are not authorized to sue in their own names to protect themselves. And because the MMPA and NEPA do not explicitly grant any person or entity standing to enforce those statutes, one must instead rely on the APA for standing purposes. But the APA does not define "person" to include animals.Cetacean Community v. Bush, No. 03-15866, 34 ELR 20120 (9th Cir. Oct. 20, 2004) (17 pp.).

TAKINGS, OYSTER FISHING, PRESCRIPTION:

The Louisiana Supreme Court threw out a $1.3 billion takings judgment awarded to oyster fisherman holding oyster leases in the Breton Sound area who allegedly suffered a compensable taking under the Louisiana Constitution as a result of the state's operation of a coastal restoration project that altered salinity levels in the waters covering the fishermen's leases. The vast majority of the fishermen are not entitled to compensation because their leases contained hold harmless and indemnity clauses that released the state from liability as a result of the project. Nor are the fishermen whose leases do not contain hold harmless clauses entitled to compensation. The state owns the water bottoms as well as the oysters and cannot "take" its own property. Further, no other private party can use these bottoms to fish for oysters, and the oyster statute under which the leases were issued neither mentions nor suggests that lessees are entitled to profits. Thus, their claims are "damages" claims rather than "takings" claims and the prescription period set forth in the state's private property damage statute, La. R.S. 9:5624, applies. Under that statute, the fishermen would have had to file their claims in 1993--two years after the project began. Because they did not file suit until 1994, any claims they had for damages are prescribed.Avenal v. State, No. 03-C-3521, 34 ELR 20122 (La. Oct. 19, 2004) (47 pp.).

CAA, TITLE V, NOTICE OF DEFICIENCY:

The Sixth Circuit denied an advocacy group's petition to review EPA's decision not to issue a notice of deficiency to the Ohio EPA for its allegedly inadequate implementation of the CAA Title V permit program. EPA does not dispute the deficiencies cited by the group. However, EPA's recognition of such deficiencies does not constitute a determination that Ohio was not "adequately administering and enforcing" its Title V program. More importantly, CAA §502(i)(1) gives EPA discretion on the use of its enforcement authority. In addition, the group's challenge to EPA's interpretation of CAA §502(b)(10), which requires a Title V facility to apply for a permit revision before making any modifications, was untimely.Ohio Public Interest Research Group, Inc. v. Whitman, Nos. 02-3805, -4116, 34 ELR 20123 (6th Cir. Oct. 21, 2004) (7 pp.).

CONSTITUTIONAL LAW, FIRST AMENDMENT, ANIMAL RIGHTS:

The Ninth Circuit held that an agricultural association's First Amendment Expression Policy, which prohibits individuals from demonstrating outside its rodeo and circus arena except in designated "free expression zones" that are located away from the building's entrances, is unconstitutional on its face. The association failed to show how the policy is "narrowly tailored" to achieve a "significant governmental interest." Although the association's interest in preventing traffic congestion and ensuring the safety of pedestrians and drivers is significant, it failed to meet its burden of proving that demonstrators handing out leaflets and carrying signs on the parking lots and walkways outside the arena would cause the congestion and danger to safety the association alleged. Nor is the policy is narrowly tailored. It prevents far more speech than is necessary to achieve the goals of preventing congestion and ensuring pedestrian and driver safety.Kuba v. 1-A Agricultural Ass'n, No. 02-16989, 34 ELR 20119 (9th Cir. Oct. 19, 2004) (24 pp.).

ESA, CZMA, NEPA, MMPA, STANDING:

The Ninth Circuit held that, except for its claims under the CZMA and the MMPA, a city's suit to enjoin the National Park Service's (NPS') development and rehabilitation of a former military base in California is dismissed. The city had standing for all of its claims. Nevertheless, the NPS took the requisite "hard look" under NEPA in developing its plans. In addition, the NPS made an informed decision under the ESA that its plans would not encroach on endangered butterfly habitat or jeopardize its continued existence, its biological assessment for salmonids was adequate, and no harm resulted from the NPS' tardiness in preparing the assessment. The NPS also was not required to seek authorization from the Secretary of Interior under the Migratory Bird Treaty Act, and its plans were not at odds with the NPS Organic Act or the Act Establishing the Golden Gate National Recreation Area. Nor did the NPS act arbitrarily or capriciously under the Concessions Management Improvement Act or the Omnibus Parks and Public Lands Management Act of 1996. The NPS' consistency determination, however, relied on a general claim of lack of funding and therefore was based on an improper ground under the CZMA. And the city's MMPA claim was remanded because the lower court erroneously held that the city lacked standing and therefore failed to reach the merits of this claim.City of Sausalito v. O'Neill, No. 02-16585, 34 ELR 20121 (9th Cir. Oct. 20, 2004) (69 pp.).

SMCRA, CALIFORNIA ENVIRONMENTAL QUALITY ACT:

A California appellate court held that a county correctly decided that a reclamation plan for a mining operation would not have a significant effect on the environment and properly approved the plan based on a negative declaration. The county provided a legally adequate description of the project, and the county did not improperly segment the reclamation plan project from a proposed mining expansion project. In addition, the county properly determined that the potential geologic, wildlife/habitat, and air quality impacts did not require an environmental impact report.El Dorado County Taxpayers for Quality Growth v. County of El Dorado, No. C044541, 34 ELR 20117 (Cal. 3d App. Dist. Sept. 14, 2004) (21 pp.).

GROUNDWATER, URBAN WATER MANAGEMENT:

A California appellate court reversed a lower court decision denying an environmental group's petition to challenge the urban water management plan for the Santa Clarita Valley. The plan provides that during dry periods, the water districts will take more water from groundwater deep below an aquifer, portions of which are contaminated with perchlorate. If perchlorate contamination impairs the water supply in dry years, the districts plan to restore full production capacity by treating the contaminated water. But the districts have no plan to cover the reduction while the treatment facilities are being built. Thus, the plan's description of the perchlorate contamination and the method for addressing that contamination is flawed because it fails to address the time needed to implement the available method for treating the contaminated water and it fails to describe the reliability of the groundwater supply during that implementation period. This gap is sufficient for reversal purposes, so the court did not address the group's other challenges to the plan.Friends of the Santa Clara River v. Castaic Lake Water Agency, No. F043273, 34 ELR 20118 (Cal. 5th App. Dist. Sept. 22, 2004) (17 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 announced the availability of an external review draft,Draft Proposed Sampling Program to Determine Extent of World Trade Center Impacts to the Indoor Environment, and the start of a 30-day comment period on the document.69 FR 61838(10/21/04).
  • EPA announced applicability determinations, alternative monitoring decisions, and regulatory interpretations associated with NESHAPs, new source performance standards, and the stratospheric ozone protection program.69 FR 61476(10/19/04).

DRINKING WATER:

  • EPA tentatively approved revisions to Wisconsin's public water system supervision program; the revisions include changes to the administrative penalty authority for public water systems, adoption of the consumer confidence report rule for all community water systems, adoption of the interim enhanced surface water treatment rule, adoption of the stage 1 disinfectants and disinfection byproducts rule, and the setting of new requirements limiting the formation of chemical disinfection byproducts in drinking water.69 FR 61379(10/18/04).

HAZARDOUS AND SOLID WASTES:

  • EPA and the DOJ entered into a proposed settlement agreement under CERCLA concerning the Bernstein Salvage Superfund site in Oskaloosa, Iowa.69 FR 61494(10/19/04).
  • EPA entered into a proposed settlement agreement under CERCLA concerning the Helena Chemical Company Superfund site in Hayti, Missouri.69 FR 61495(10/19/04).
  • The Department of Health and Human Services announced the availability of the 18th set of toxicological profiles consisting of a new draft and five updated drafts prepared for review and comment under CERCLA.69 FR 62050(10/22/04).
  • The Department of Health and Human Services announced the availability of an update and four new final toxicological profiles completing the second set developed for DOE.69 FR 62051(10/22/04).

PESTICIDES:

  • EPA announced its tolerance reassessment decision for the pesticide chlorimuron ethyl, ensuring that the pesticide meets current health and food safety standards.69 FR 61667(10/20/04).

WILDLIFE:

  • FWS, in cooperation with Alabama, Tennessee, and an environmental nonprofit group, proposed to reintroduce the endangered boulder darter and the threatened spotfin chub into their historical habitat in Shoal Creek in Alabama's Lauderdale County and Tennessee's Lawrence County.69 FR 61774(10/21/04).
  • NMFS proposed to allow the California Department of Transportation to incidentally take, by harassment, small numbers of sea lions, Pacific harbor seals, and gray whales during the construction of a replacement bridge for the east span of the San Francisco-Oakland Bay Bridge.69 FR 61656(10/20/04).
  • NMFS authorized the Naval Air Warfare Center Weapons Division to take three mammal species as necessitated by missile launch operations on San Nicolas Island, California.69 FR 61657(10/20/04).
  • NMFS authorized the University of California, San Diego Scripps Institution of Oceanography to take several marine mammal species as necessitated by the operation of a low-frequency sound source by the North Pacific Acoustic Laboratory.69 FR 61656(10/20/04).

DOJ NOTICES OF SETTLEMENT:

  • In re Federal-Mogul Global Corp., No. 01-10578 (Bankr. Ct. D. Del. Oct. 18, 2004). A settling CERCLA defendant must allow the United States a secured claim of $214,080.46 plus general unsecured claims totaling $1,451,201.00 for the recovery of response costs incurred at 14 sites.69 FR 62078(10/22/04).
  • United States v. Asarco Inc., No. 04-RB-2070 (CBS) (D. Colo. Oct. 6, 2004). A settling CERCLA defendant must perform certain remedial actions at the Vasquez Boulevard/Interstate 70 Superfund site in Denver, Colorado, including the removal and disposal of contaminated soils from 100 residential properties within the site, and must reimburse the United States and the state of Colorado for past and future response costs associated with the site.69 FR 61861(10/21/04).
  • United States v. Burlington Northern & Santa Fe Railway Co., No. CIV-04-1101 JH RHS (D.N.M. Sept. 29, 2004). A settling CERCLA defendant responsible for injury to and destruction and loss of wildlife habitat, groundwater resources, and other natural resources resulting from the release of hazardous substances from a wood treatment plant at the AT & SF Albuquerque Superfund site in Albuquerque, New Mexico, must pay $1.09 million in damages; $400,000 will be used by the DOI and the state to plan and implement projects to restore, replace, and/or acquire injured habitat resources; $661,192.60 will be used by the state to plan and implement projects to restore, replace, and/or acquire the equivalent of groundwater resources; and the remainder will be used to reimburse costs associated with assessing natural resource damages.69 FR 61861(10/21/04).
  • United States v. Burlington Northern & Santa Fe Railway Co., No. CIV-104-1102 RB WDS (D.N.M. Sept. 29, 2004). A settling CERCLA defendant responsible for the release of hazardous substances from a wood treatment plan owned and operated by the defendant's predecessor at the AT & SF Albuquerque Superfund site in Albuquerque, New Mexico, must remediate soil and groundwater contamination at the site-- including a plume of dense non-aqueous phase liquid in the upper zone of the Santa Fe formation aquifer--by implementing the EPA-selected remedial action for the site, must pay $324,980.74 in past EPA response costs, and must pay future response costs to be incurred by EPA and the state of New Mexico.69 FR 61862(10/21/04).
  • United States v. ConocoPhillips Co., No. H-04-3813, DOJ 90-5-1-1-07664 (S.D. Tex. Oct. 4, 2004). A settling defendant that violated CWA §301 by discharging effluent from a wastewater treatment facility at the Sweeny Refinery in Old Ocean, Texas, in violation of whole effluence toxicity limits and other effluent limits contained in its NPDES permit must take steps to comply with the CWA and the permit, must pay a $610,000 civil penalty, and must donate 128 acres to the Austin Woods Unit of the San Bernard National Wildlife Refuge as a supplemental environmental project.69 FR 61862(10/21/04).

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

THE CONGRESS

Congress is currently in recess but will reconvene November 16, 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:

  • The National Audubon Society'sState of the Birdsreportwas released. It concluded that more than 30% of the North American bird populations are in "significant decline."
  • The U.K.'s Department for Environment, Food and Rural Affairs (Defra)reportedthat farmland bird populations have decreased by 40% since 1970 but that the rate of decline is slowing.
  • Defra alsoproposedregulations that would limit the use of and eventually phase out perflurooctane sulphonate (PFOS), which is used in chrome plating, firefighting foams, the photographic industry, semi-conductors and in aviation hydraulic fluids.
  • The World Wildlife Fund (WWF)issueditsLiving Planet Report 2004; the report concluded that "humans currently consume 20 per cent more natural resources than the earth can produce, and that populations of terrestrial, freshwater and marine species fell on average by 40 per cent between 1970 and 2000."
  • The European Commission (EC)decidedto pursue legal action against Greece for failure to effectively protect the rare loggerhead sea turtle (Caretta caretta) on the island of Zakynthos. Greece was already condemned by the European Court of Justice in 2002 for this failure. The Court found that Greece was not doing enough to protect the breeding sites of the sea turtle on a number of beaches on Zakynthos. The EC will now send Greece a final written warning urging it to comply with the 2002 ruling.

CLIMATE CHANGE:

  • Russia's Duma ratified the Kyoto Protocol.
  • The ECaccepteda second set of eight national allocation plans for CO2 emission allowances. Six plans--from Belgium, Estonia, Latvia, Luxembourg, the Slovak Republic and Portugal--were accepted unconditionally. Another two--from Finland and France--were approved on the condition that technical changes are made. This will make them automatically acceptable, without requiring a second assessment by the EC. National allocation plans outline the number of CO2 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 allowances for over 2,100 plants, 15% of an estimated 12,000 in the EU25. In July, the EC approved 8 plans related to over 5,000 plants representing some 40% of expected allowances.
  • WWF'sLiving Planet Report 2004 alleged that the U.K. government underreports domestic CO2 emissions.
  • A coalition of environmental and aid agencies, The Working Group on Climate Change and Development, issued a report,Up in Smoke, which asserted that "global warming threatens to reverse human progress, and make the international targets on halving global poverty by 2015, known as the Millennium Development Goals, unattainable."

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

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