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Weekly Update Volume 34, Issue 7

03/01/2004

LITIGATION

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

ATOMIC ENERGY ACT (AEA), APA, JURISDICTION:

The Second Circuit held that it lacked jurisdiction over the NRC's decision denying environmental groups' request that the licensing of two nuclear power plants in New York be conditioned on several safety-related changes in the wake of the September 11, 2001, terrorist attacks. The NRC denied the group's request to implement a permanent no-fly zone over the plants, a defense system to protect this no-fly zone, and conversion of the spent-fuel storage at the plants to a dry cask system. The group argued that the court had jurisdiction to review the NRC's decision because it constituted an abdication of the NRC's statutory duty to protect and ensure the health and safety of the public. The group, however, failed to point to an NRC policy expressly abdicating any relevant statutory responsibility. Nor could the court infer a general NRC policy of abdication. The NRC's conclusion that the problem before it was being adequately addressed by other governmental agencies and its consequent decision to leave the matter to those agencies cannot amount to an "abdication" of its statutory duty under the AEA to insure that the public health and safety is adequately protected. Relying on other governmental bodies to address a risk is not equivalent to ignoring the risk. The NRC, therefore, did not abdicate its statutory duties in refusing to implement the specific requests nor in turning the issue over to other agencies, and, thus, jurisdiction could not arise on that basis.Riverkeeper v. Collins, No. 03-4313 (2nd Cir. Feb. 24, 2004) (28 pp.).

ATOMIC ENERGY ACT (AEA), NUCLEAR WASTE POLICY ACT (NWPA):

The D.C. Circuit held that NWPA §10155(h) did not repeal or supersede the NRC's authority under the AEA to license private away-from-reactor storage facilities and, therefore, denied petitions for review. The issue arose when a group of Goshute Indians entered into a lease with a private waste company to build an away-from-reactor storage facility on their reservation. Utah and different members of the Goshute Indians filed petitions for review. Despite the petitioners' arguments to the contrary, the NRC was authorized to license onsite and away-from-reactor spent nuclear fuel storage facilities for private nuclear generators. Neither the text of §10155(h) nor the NWPA's structure or legislative history indicates that Congress intended to limit the NRC's licensing authority under the AEA. Further, the text of §10155(h), read in light of Subtitle B of the NWPA, demonstrates that Congress did not intend to repeal or supersede the NRC's authority under the AEA. Section 10155(h) itself contains no prohibitory language, and the NRC had authority under the AEA to regulate private away-from-reactor storage facilities. In fact, §10155(h) was written to ensure that the DOE would not take over private facilities to fulfill its NWPA obligations and to clarify that private generators were not obligated under the NWPA to exhaust all away-from-reactor options prior to receiving federal assistance.Bullcreek v. Nuclear Regulatory Commission, No. 03-1018 (D.C. Cir. Feb. 24, 2004)(12 pp.).

MINING, AIR QUALITY, APA:

The D.C. Circuit held that the Mine Safety and Health Administration (MSHA) failed to provide an adequate explanation for its decision to withdraw its proposed air quality rule. The MSHA originally proposed a rule to review air quality standards in 1989 and adopted the first phase of the rule in 1994. In 2002, however, it withdrew the remainder of the proposed rule. The court raised the issue of jurisdiction sua sponte and determined that it could hear the miners' claim that the proposed rule was unlawfully withdrawn in order to protect its future jurisdiction, per the All Writs Act. As for the merits, the MSHA's withdrawal of the proposed air quality rule was arbitrary and capricious under the APA. The MSHA cited a change in agency priorities, the possible adverse effect of a similar case, and the staleness of the record as reasons for withdrawing the rule. The court, however, deemed these reasons inadequate. The court therefore remanded the issue to the MSHA to either proceed with the air quality rulemaking or to give a reasoned account of its decision not to do so.International Union, United Mine Workers of America v. United States Department of Labor, No. 02-1356 (D.C. Cir. Feb. 20, 2004) (8 pp.).

ESA, APPELLATE REVIEW:

The Ninth Circuit dismissed environmental organizations' appeal of a lower court order invalidating and remanding a National Marine Fisheries Service (NMFS) rule that designated as threatened naturally spawned coho salmon but not hatchery spawned coho. When the lower court remanded the rule to the NMFS for additional consideration and the NMFS failed to appeal, environmental organizations intervened under Federal Rule of Civil Procedure 24(a)(2) because the NMFS no longer represented their interests. The organizations, however, may not appeal the remand order because it is not a final judgment for purposes of appellate review. They will have ample opportunity to obtain review by participating in the public rulemaking process the NMFS intends to take to formulate ESA listing standards for salmon. If the organizations determine that the resulting rule is unlawful and adverse to its interests, it could then challenge the NMFS' action in district court and, if necessary, appeal that decision to the Ninth Circuit. Accordingly, the court lacks jurisdiction over the entire remand order, including its provision setting aside the NMFS' ESA listing. In addition, the remand order did not have the practical effect of granting an injunction and thus is not subject to an interlocutory appeal.Alsea Valley Alliance v. Department of Commerce, Nos. 01-36071, -36154 (9th Cir. Feb. 24, 2004) (12 pp.).

CALIFORNIA COASTAL ACT, CALIFORNIA TIMBERLAND PRODUCTIVITY ACT (TPA), Z'BERG-NEJEDLY FOREST PRACTICE ACT (FPA):

A California appellate court held that the state coastal commission lacks authority to require a county to mandate additional criteria for timberland production zoning within the coastal zone and rejected the commission's treatment of coastal zone timberland production rezoning applications as local coastal plan (LCP) amendments necessitating commission certification. Given that timberland production zoning did not constitute a change in the use of timberland, the California Coastal Act did not require rezoning applications to be certified as LCP amendments. Further, treating timberland production rezoning requests as LCP amendments constituted the imposition of additional criteria for timber production zoning in violation of the TPA. The court also held that the county’s zone district regulations impermissibly regulate the conduct of timber operations, thereby contradicting the FPA. For that reason, they are expressly preempted. The FPA also preempts local riparian and helicopter regulations that pertain to timber harvesting.Big Creek Lumber Co. v. County of Santa Cruz, No. H023778 (Cal. Ct. App. Feb. 17, 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).

AGRICULTURE:

  • USDA's Natural Resources Conservation Service announced publication of the National Animal Agriculture Conservation Framework, a blueprint intended to assist livestock and poultry producers with voluntary efforts to foster environmentally sound and economically viable production.69 FR 9299(2/27/04).

AIR:

  • EPA withdrew a direct final rule (68 FR 75782) granting the Virgin Islands an exemption from CAA §165(a) requirements for prevention of significant deterioration construction permits; the agency received adverse comment.69 FR 9215(2/27/04).
  • EPA announced a proposed amendment to the second partial consent decree in the CAA citizen suitSierra Club v. Leavitt, No. 1:00CV02206 (D.D.C. Sept. 14, 2000), in which the plaintiffs sought to require EPA to make final determinations on the success of several ozone and particulate matter nonattainment areas in meeting pertinent air quality standards by specified attainment dates.69 FR 8406(2/24/04).

DRINKING WATER:

  • EPA announced the formation of the Water Security Working Group, associated with the National Drinking Water Advisory Council, that will help develop voluntary best security practices and policies for drinking water and wastewater facilities.69 FR 9312(2/27/04).
  • EPA approved revisions to Texas's underground injection control program under SDWA §1422.69 FR 8565(2/25/04).
  • EPA approved and codified the Texas Railroad Commission's underground injection control program for brine mining wells.69 FR 8824(2/26/04).

HAZARDOUS AND SOLID WASTES:

  • EPA conditionally excluded wastewater treatment plant sludge generated by conversion coating on aluminum processes at a DaimlerChrysler Corporation plant in Detroit, Michigan, from RCRA hazardous waste regulations.69 FR 8828(2/26/04).
  • EPA announced a public hearing on a proposed rule that would allow conditional exclusions from hazardous and solid waste regulations for solvent-contaminated industrial wipes sent to laundries and dry cleaners for cleaning and reuse; the rule was proposed on November 20, 2003 (68 FR 65596).69 FR 8353(2/24/04).

MINING:

  • OSM announced the dates and locations for five public hearings on the "excess spoil/stream buffer zone rule," which the office proposed on January 7, 2004 (69 FR 1036), and is intended to minimize adverse environmental effects related to the construction of excess spoil fill during Appalachian mining and also clarify the circumstances under which mining activities may be allowed within the 100-foot "stream buffer zone."69 FR 8899(2/26/04).

PESTICIDES:

  • EPA announced the availability of human health and environmental fate and effects risk assessments and related documents for the herbicide benfluralin, a chemical registered for use on crops, ornamental plants, and commercial and residential turf.69 FR 8640(2/25/04).

RISK ASSESSMENT:

  • EPA announced the availability of a report,Generic Ecological Assessment Endpoints, prepared by an EPA risk assessment forum technical panel.69 FR 8656(2/25/04).

TRANSPORTATION:

  • DOT's Federal Highway Administration (FHWA) promulgated a final rule allowing for the development and implementation of management systems for transportation facilities serving the National Wildlife Refuge System.69 FR 9483(2/27/04).
  • FHWA promulgated a final rule allowing for the development of management systems for transportation facilities serving the national forests and grasslands.69 FR 9476(2/27/04).
  • FHWA promulgated a final rule allowing for the development of management systems for transportation facilities under National Park Service jurisdiction.69 FR 9469(2/27/04).

WILDLIFE:

  • FWS designated critical habitat for the Santa Ana sucker, a fish species listed as threatened under the ESA and that, after experiencing population declines across most of its range, now exists in three noncontiguous populations in three different stream systems in southern California.69 FR 8839(2/26/04).
  • NOAA announced temporary, 15-day restrictions on lobster trap/pot and anchored gillnet fisherman operating in a 1,896-square mile area east of Portsmouth, New Hampshire, to provide protection to an aggregation of North Atlantic right whales.69 FR 9570(2/25/04).
  • NOAA requested public comment on the new National Estuary Restoration Inventory, an online, publicly accessible database of estuary habitat restoration projects implemented around the country.69 FR 8628(2/25/04).
  • FWS proposed to permanently extend regulations governing take of the threatened Preble's meadow jumping mouse that exempt certain activities related to rodent control, ongoing agriculture, landscape maintenance, existing water uses, noxious weed control, and ongoing ditch maintenance activity from ESA §9 take prohibitions.69 FR 8359(2/24/04).
  • FWS removed the Mariana mallard and the Guam broadbill from the ESA List of Endangered and Threatened Wildlife because all available information indicates that both species are extinct.69 FR 8116(2/23/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. J.R. Simplot Co., No. CV-S-04-0162-KJD-PAL (D. Nev. Feb. 12, 2004). A settling defendant whose activities at a silica sand processing plant in Overton, Nevada, violated CAA permitting and new source review requirements and the state's SIP must install air pollution control equipment and modify processes at the facility, modify the facility's permits, and pay a civil penalty of $525,000.69 FR 8986(2/26/04).
  • United States v. Sporting Goods Properties, Inc., No. 3:04 CV 242 (PCD) (D. Conn. Feb. 11, 2004). A settling CERCLA defendant must pay approximately $250,000 to compensate natural resource damages and reimburse assessment costs associated with the release of hazardous substances at the Remington Gun Club--Lordship Point Gun Club site of Stratford, Connecticut, and also must plant indigenous grass at the site.69 FR 8986(2/26/04).

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

THE CONGRESS

COMMITTEE ACTION:

  • S. 741 (Federal Food, Drug, and Cosmetic Act), was reported by the Committee on Health, Education, Labor, and Pensions. S. Rep. No. 108-226, 150 Cong. Rec. S1457 (daily ed. Feb. 23, 2004). The bill would amend the Federal Food, Drug, and Cosmetic Act with regard to new animal drugs.
  • H.R. 2707 (water; public lands), was reported by the Committee on Resources. H. Rep. No. 108-424, Pt. 1, 150 Cong. Rec. H574 (daily ed. Feb. 24, 2004). The bill would direct the Secretaries of the Interior and Agriculture, acting through the U.S. Forest Service, to carry out a demonstration program to assess potential water savings through control of Salt Cedar and Russian Olive on forests and public lands administered by the DOI and the U.S. Forest Service.

BILLS INTRODUCED:

  • S. 2101 (Levin, D-Mich.) (Keweenaw National Historic Park), would decrease the matching funds requirement and authorize additional appropriations for Keweenaw National Historical Park in the state of Michigan. 150 Cong. Rec. S1457 (daily ed. Feb. 23, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2105 (Lautenberg, D-N.J.) (shore protection), would improve the federal shore protection program. 150 Cong. Rec. S1518 (daily ed. Feb. 24, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2110 (Grassley, R-Iowa) (ethanol), would amend the Internal Revenue Code of 1986 to extend the Highway Trust Fund provisions through March 31, 2004, and would add the volumetric ethanol excise tax credit. 150 Cong. Rec. S1518 (daily ed. Feb. 24, 2004). The bill was referred to the Committee on Finance.
  • S. 2134 (Feinstein, D-Cal.) (forest land), would authorize the Secretary of Agriculture and the Secretary of the Interior to enter into an agreement or contract with Native American tribes meeting certain criteria to carry out projects to protect Indian forest land. 150 Cong. Rec. S1683 (daily ed. Feb. 26, 2004). The bill was referred to the Committee on Indian Affairs.
  • S. 2139 (Clinton, D-N.Y.) (occupational illness), would provide coverage under the Energy Employees Occupational Illness Compensation Program for individuals employed at atomic weapons employer facilities during periods of residual contamination. 150 Cong. Rec. S1683 (daily ed. Feb. 26, 2004). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 2140 (Cantwell, D-Wash.) (Mount Rainier National Park), would expand the boundary of the Mount Rainier National Park. 150 Cong. Rec. S1683 (daily ed. Feb. 26, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 3819 (Baird, D-Wash.) (Fort Clatsop National Memorial), 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. 150 Cong. Rec. H574 (daily ed. Feb. 24, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3822 (McCollum, D-Minn.) (Animal Health Protection Act), would amend the Animal Health Protection Act to direct the Secretary of Agriculture to establish an electronic nationwide livestock identification system. 150 Cong. Rec. H574 (Feb. 24, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 3828 (Biggert, R-Ill.) (DOE funding), would authorize funding for University Nuclear Science, Engineering, and Health Physics Programs at the DOE for fiscal years 2005 through 2008. 150 Cong. Rec. H632 (daily ed. Feb. 25, 2004). The bill was referred to the Committee on Science.
  • H.R. 3833 (Crowley, D-N.Y.) (natural gas), would direct the Secretary of Transportation to establish a pilot program to facilitate the use of natural gas buses at public airports through grants for energy demonstration and commercial application of energy technology, and for other purposes. 150 Cong. Rec. H632 (daily ed. Feb. 25, 2004). The bill was referred to the Committee on Transportation and Infrastructure, and to the Committee on Science.
  • H.R. 3834 (Davis, D-Fla.) (desalination), would direct the Secretary of Energy to make incentive payments to the owners or operators of qualified desalination facilities to partially offset the cost of electrical energy required to operate such facilities. 150 Cong. Rec. H632 (daily ed. Feb. 25, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3843 (Udall, D-Colo.) (Rocky Flats), would better provide for compensation for certain persons injured in the course of employment at the Rocky Flats site in Colorado. 150 Cong. Rec. H632 (daily ed. Feb. 25, 2004). The bill was referred to the Committee on the Judiciary, and to the Committee on Education and the Workforce.
  • H.R. 3845 (Calvert, R-Cal.) (beach restoration), would amend the Act of August 13, 1946, to raise the maximum amount that may be allotted by the Secretary of the Army for the construction of small shore and beach restoration and protection projects. 150 Cong. Rec. H698 (daily ed. Feb. 26, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 3846 (Pombo, R-Cal.) (forest land), would authorize the Secretary of Agriculture and the Secretary of the Interior to enter into an agreement or contract with Native American tribes meeting certain criteria to carry out projects to protect Indian forest land. 150 Cong. Rec. H698 (Feb. 26, 2004). The bill was referred to the Committee on Resources and to the Committee on Agriculture.
  • H.R. 3852 (Acevedo-Vila, D-P.R.) (weatherization assistance), would extend the benefits of the weatherization assistance program under part A of title IV of the Energy Conservation and Production Act to Puerto Rico and the U.S. Virgin Islands. 150 Cong. Rec. H699 (daily ed. Feb. 26, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3860 (Peterson, R-Penn.) (national trails), would amend the National Trails System Act to clarify federal authority relating to land acquisition from willing sellers for the majority of the trails in the System. 150 Cong. Rec. H699 (daily ed. Feb. 26, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3864 (Slaughter, D-N.Y.) (occupational illness), would provide coverage under the Energy Employees Occupational Illness Compensation Program for individuals employed at atomic weapons employer facilities during periods of residual contamination. 150 Cong. Rec. H699 (daily ed. Feb. 26, 2004). The bill was referred to the Committee on the Judiciary and to the Committee on Education and the Workforce.

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:

  • The Seventh Conference of Parties to the Convention on Biological Diversity concluded in Kuala Lumpur with a declaration stating that ministers are "alarmed that biological diversity is being lost at an unprecedented rate as a result of human activity." Some environmental groups were disappointed that the statement was not specific and did not include an emphasis on the need for additional funding for biodiversity protection programs. Representatives from Latin American countries were reportedly distressed that the document did not address bio-piracy. It did include a statement to the effect that an effective international regime for access to and sharing of genetic resources be developed. The declaration also called for the development of global standards to protect sea life by 2012, and urged ratification of the United Nations (U.N.) Cartagena Protocol on Biosafety. During the conference, Irish Environment Minister Martin Cullen urged the United States to ratify the U.N. Convention on Biological Diversity. One hundred eighty-eight other countries have already done so. Seehttp://www.iisd.ca/biodiv/cop7/
  • Bangladesh warned that a proposed Indian inter-basin water transfer project would have serious adverse effects. "In fact, the very existence of Bangladesh will be at stake if the project is implemented," said Bangladeshi Environment and Forest Minister Shajahan Siraj. "The project will adversely affect availability of water, which will have a very adverse impact on agriculture, irrigation, fisheries and navigation," Siraj said. "It is [clear] that the $112 billion mega project will cause salinity, intrusion, desertification, drying up of wetlands, lowering of water tables, decreasing water flow of rivers, pollution of groundwater and arsenic contamination." Seehttp://www.bangladesh-web.com/view.php?hidDate=2004-02-20&hidType=TOP&hidRecord=0000000000000000001616
  • Munich Re, in its report entitledTopics geo--Annual Review of Natural Catastrophes 2003, observed that "after three years of relative calm, no fewer than five great natural catastrophes occurred in 2003: tornadoes/severe weather events in the U.S. (May), earthquake in Algeria (May), heat wave/forest fires in Europe (July to August), heat wave/drought/forest fires in the U.S. (October to November), and the earthquake in Iran (December). Altogether, the approximately 700 natural hazard events recorded claimed more than 75,000 lives--almost seven times as many as in the previous year." It predicted that global warming would result in increased economic loss. "Neither human beings, buildings and infrastructure nor the agricultural and livestock sectors are prepared for such extremes," Munich Re said. "We would be well advised to prepare ourselves for dramatic changes." Seehttp://www.munichre.com
  • A report issued by the U.S. group Union of Concerned Scientists,Gone to Seed, asserted that poor controls on the production and distribution of seeds from genetically modified crops designed for industrial or pharmaceutical application presents "back door" risks to food supplies.
  • The Rotterdam Convention came into force. Seehttp://www.pic.int/
  • The 24th Annual Symposium on Sea Turtle Biology and Conservation was held in San Jose, Costa Rica. Conservation International released areportthat concludes that the Pacific Ocean leatherback turtle, whose population has decreased by 97% over the the last 22 years, could become extinct within a decade.

CLIMATE CHANGE:

  • The European Commission rejected calls to change its position concerning the ratification of the Kyoto Protocol and its full implementation by the European Union. "The Protocol represents a significant first step towards realizing the goal of stabilizing atmospheric levels of greenhouse gases at safe levels. We cannot and we will not back down in the fight against human induced climate change," said the President of the Commission, Romano Prodi. "Furthermore, economic growth and climate change policies are compatible and, if action is taken at an early stage, economic gains can be made. Implementing policies and measures such as energy-efficiency projects can help to decouple economic growth and the growth in emissions, in addition to achieving social and environmental benefits such as improved health," he stated.
  • A "secret report" commissioned by the Pentagon and then "suppressed" concluded, according to theLondon Observer, that as a result of global warming, during the next 20 years "major European cities will be sunk beneath rising seas as Britain is plunged into a 'Siberian' climate by 2020. Nuclear conflict, mega-droughts, famine and widespread rioting will erupt across the world." The threat to the world posed by warming, the report allegedly asserts, is greater than that presented by terrorism. The study was authored by Peter Schwartz, a CIA consultant and former head of planning at Royal Dutch/Shell Group, and by Doug Randall of the California-based Global Business Network. Seehttp://observer.guardian.co.uk/international/story/0,6903,1153513,00.html
  • Canadian Environment Minister David Anderson cited the report in stating that while he did not expect that the United States would ratify the Protocol, he believes that the Bush Administration will begin a "parallel" process to reduce domestic emissions. "I suspect it is going to be very difficult for the American administration to continue with its position given the increasing evidence of this being a major, major global problem." He also said that he believes Alberta's opposition to Kyoto implementation is lessening. "The rumblings have changed substantially in the past year," he said.
  • A study, prepared by University of Queensland's Center for Marine Studies and commissioned by the Worldwide Fund for Nature, concluded that 95% of the coral on the Great Barrier Reef will die by 2050 due to rising water temperatures. Seehttp://news.independent.co.uk/world/environment/story.jsp?story=494192
  • The British journalPhilosophical Transactions published a study that concludes that average temperatures in the Amazon rainforest will likely increase half a degree Celsius within 20 years and up to 8 degrees Celsius by the end of the century.

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

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