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Weekly Update Volume 34, Issue 32

11/15/2004

LITIGATION

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

ESA, CRITICAL HABITAT:

A district court vacated and remanded the FWS' designation of critical habitat in North Carolina for the wintering piper plover. The FWS may only designate occupied critical habitat in areas where the pertinent physical or biological features of the bird are currently found and where the physical or biological features may require special management consideration or protection. Nor may the FWS attempt to designate as unoccupied those lands it considers occupied and for which it has failed to make the proper showings required by statute. The FWS also failed to adequately evaluate the economic impacts of designating critical habitat, and it failed to comply with NEPA. Cape Hatteras Access Preservation Alliance v. United States Department of the Interior, No. 03-217 (RCL), 34 ELR 20136 (D.D.C. Nov. 1, 2004) (Lamberth, J.) (43 pp.) (Plaintiffs' counsel included Lawrence R. Liebesman of Holland & Knight LLP in Washington, D.C.).

RADIOACTIVE WASTE, RIPENESS:

The Ninth Circuit held unripe nonprofit groups' action to obtain a declaration that a DOE order that outlines the management of defense radioactive waste is invalid. Delayed review will not cause any real cognizable hardship, but intervention at this point would unduly interfere with the administrative process and the courts would benefit greatly from a reification of the issues through further factual development.Natural Resources Defense Council v. Abraham, No. 03-35711, 34 ELR 20133 (9th Cir. Nov. 5, 2004) (12 pp.).

CONSTITUTIONAL LAW, FIRST AMENDMENT, SPECIAL-USE PERMIT:

The Ninth Circuit upheld an individual's misdemeanor conviction for using National Forest System land in a gathering of over 75 other persons without a special-use permit. The conviction did not violate his First Amendment rights because the group-use permit scheme leaves open ample alternatives for communication. In addition, he knew a permit was required yet participated in the event knowing that a permit was not obtained. Nor was he selectively prosecuted.United States v. Adams, No. 03-30474, 34 ELR 20134 (9th Cir. Nov. 8, 2004) (9 pp.).

TIMBER HARVEST PLANS, ENVIRONMENTAL ASSESSMENT:

A California appellate court upheld the dismissal of an environmental group's suit challenging the state forest department's approval of six timber harvest plans. The department proceeded in the manner required by law in determining the geographic assessment area, and substantial evidence supports the department's findings regarding cumulative impacts. The department adequately considered all the information before it prior to approving the plans, responded to public comment, and addressed concerns regarding cumulative impacts. In addition, it properly assessed the potential impacts of herbicide use, and substantial evidence supports the department's finding of no significant adverse environmental impacts from the use of pesticides.Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection, Nos. C043687, C043825, 34 ELR 20135 (Cal. App. 3d Dist. Nov. 9, 2004) (47 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 partially granted and partially denied three petitions by the New York Public Interest Research Group that objected to state operating permits issued under the CAA to the Keyspan Generation Far Rockaway Station, Motiva Enterprises LLC, and the New York City Department of Environmental Protection North River Water Pollution Control Plant, and partially granted and partially denied a petition by the New York State Department of Environmental Protection requesting that EPA object to the department's own CAA state operating permit for the North River plant.69 FR 64924(11/9/04).
  • EPA's National Center for Environmental Assessment requested that interested parties submit relevant research studies to help EPA develop and refine the scientific information base that the Agency will use to update its air quality criteria for lead and the associated supplement, last modified in 1986 and 1990, respectively.69 FR 64926(11/9/04).

HAZARDOUS AND SOLID WASTES:

  • EPA removed an immediate final rule published on September 10, 2004, (69 FR 54765) that approved Minnesota's research, development, and demonstration permit requirements for the state's municipal solid waste landfill program because EPA received adverse comment.69 FR 65381(11/12/04).
  • EPA authorized changes in Maine's hazardous waste program under RCRA.69 FR 64861(11/9/04).

NATURAL RESOURCES:

  • USDA's Natural Resources Conservation Service in Indiana proposed to modify conservation practice standards in the state's field guide concerning prescribed burning, manure transfer, and pumping plants.69 FR 65144(11/10/04).

PESTICIDES:

  • EPA announced the availability of and requested public comment on risk assessments, preliminary risk reduction options, and other documents prepared during the tolerance reassessment decision process for the pesticide cyhexatin.69 FR 65178(11/10/04).
  • EPA granted and denied emergency exemptions under FIFRA to various states over the period April 1 to June 30, 2004, to control unforeseen pest outbreaks.69 FR 65183(11/10/04).

TOXIC SUBSTANCES:

  • EPA's National Center for Environmental Assessment announced the availability of an online resource,IRIS Track, that provides information on the progress of chemical assessments underway in the integrated risk information system (IRIS) program, including milestone dates for IRIS assessments and reviews; the resource is available athttp://www.epa.gov/iris.69 FR 65176(11/10/04).

WATER QUALITY:

  • EPA announced the availability of a document presenting EPA's revised assessment of method detection limit and minimum level of quantitation procedures, which ascertain detection and quantitation capabilities of test procedures under the CWA.69 FR 64707(11/8/04).
  • EPA withdrew proposed revisions to the regulations for the definition and procedures of the method detection limit, to the definition of minimum level of quantitation, and the procedure for developing it after receiving adverse comments from the majority of the commentators.69 FR 64710(11/8/04).

WILDLIFE:

  • NMFS published a final rule implementing 2004 management measures intended to prevent overfishing of the eastern tropical Pacific Ocean tuna stocks, per recommendations of the Inter-American Tropical Tuna Commission that have been approved by the Department of State under the Tuna Conventions Act; the rule closes the purse seine fishing for tuna in the convention area from December 13 through December 31, 2004, and closes the U.S. longline fishery in the convention area for the remainder of 2004 if the bigeye tuna catch there reaches the reported level of catch made in 2001.69 FR 65382(11/12/04).
  • NMFS proposed a series of management measures intended to reduce incidental mortality and bycatch of the western North Atlantic coastal bottlenose dolphin stock in the mid-Atlantic coastal gillnet fishery and eight other coastal fisheries operating within the dolphin's range, and to reduce the incidental take of sea turtles in North Carolina and Virginia state waters by amending current, seasonal restrictions on large mesh gillnet fisheries operating in the mid-Atlantic region.69 FR 65127(11/10/04).
  • FWS determined that listing the desert cymopterus, a tortoise endemic to the western Mojave Desert, as federally threatened or endangered is not warranted at this time, and requested that the public submit to the Service any new information concerning the species that could help FWS monitor its status.69 FR 64884(11/9/04).
  • FWS found that a petition to list to the white-tailed prairie dog as federally threatened or endangered did not present substantial scientific or commercial information indicating that listing is warranted, and requested that the public submit to the Service new information about the species that could help FWS monitor its status and encourage its conservation.69 FR 64889(11/9/04).
  • FWS announced the availability of the draft economic analysis and draft EA for the proposed designation of critical habitat for the Sacramento Mountains checkerspot butterfly under the ESA.69 FR 64712(11/8/04).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Cabot Corp., No. 03-CV-1991 (D.N.J. Oct. 19, 2004). Settling CERCLA defendants must pay $720,000 to reimburse EPA and/or DOJ response costs associated with the King of Prussia Superfund site in Winslow Township, New Jersey; the United States, on behalf of the Department of Defense and associated agencies potentially liable for such costs, must pay $270,000 to Superfund.69 FR 65454(11/12/04).

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

CLIMATE CHANGE:

  • The European Commission accepted a second set of eightnational allocation plansfor 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 condition that technical changes are made. This will make them automatically acceptable, without requiring a second assessment by the Commission.
  • TheArctic Climate Impact Assessmentwas published. It concludes that the area is warming at a rate twice as fast as the global average.

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

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