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Weekly Update Volume 34, Issue 8

03/15/2004

 LITIGATION

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

ESA, COMMERCE CLAUSE:

The US Supreme Court denied certiorari in an appeal concerning the application of the ESA to a commercial housing development that threatened the continued existence of the arroyo southwestern toad, an endangered species. The Court's refusal to hear the developer's challenge lets stand lower court rulings that protect the species. Specifically, the district court held that the ESA's application to private lands in order to protect an endangered species that lives entirely within one state does not violate the Commerce Clause. The DC Circuit affirmed, holding that the ESA's application to the development was a constitutional exercise of federal authority.Rancho Viejo, LLC v. Norton, No. 03-761 (US Mar. 2, 2004).

CERCLA, CONSTITUTIONAL LAW, JURISDICTION, ADMINISTRATIVE ORDERS:

The DC Circuit held that CERCLA §113(h) does not bar a company's claim that the unilateral administrative order regime of CERCLA §§106, 107(c)(3), and 113(h) violates the Due Process Clause of the Fifth Amendment. EPA argued, and the lower court agreed, that the company lacked jurisdiction because §113(h) postpones judicial review of any action under CERCLA until EPA seeks to enforce its remedial orders in court or the PRP sues to recoup its expenses for undertaking the cleanup. Section 113(h), however, does not bar preenforcement review of facial constitutional challenges to CERCLA. The plain language of section §113(h) bars preenforcement review of agency actions only under CERCLA §§104 and 106(a). Here, the company's due process challenge is not a challenge to the way in which EPA is administering the statute in any particular removal or remedial action or order, but rather to the CERCLA statute itself. As such, it does not fit within the plain text of §113(h)'s reference to "any challenges to removal or remedial action selected" under §104, "or to review any order issued" under §106(a).General Electric Co. v. Environmental Protection Agency, No. 03-5114 (DC Cir. Mar. 2, 2004) (12 pp.).

CWA, NEPA, WETLANDS:

The Tenth Circuit upheld the US Army Corps of Engineers' issuance of a CWA §404 dredge and fill permit for the construction of a golf course and upscale housing development. Contrary to environmental groups' claim, the Corps' level of effort and documentation in its CWA alternatives analysis and its conclusion that the 359-acre proposal was the least damaging practicable alternative were not arbitrary or capricious. Even assuming that the groups' suggested alternatives may incrementally reduce impacts to bald eagles by removing specific features from the 400-meter radius around their nests, the record suggests that these measures would not be significant relative to the impact on eagles of the development as a whole. Similarly, the Corps' decision not to prepare an EIS and its consideration of alternatives under NEPA was not arbitrary and capricious.Greater Yellowstone Coalition v. Flowers, No. 03-8034 (10th Cir. Mar. 2, 2004) (44 pp.).

TAKINGS, SUBJECT MATTER JURISDICTION, ROOKER-FELDMAN DOCTRINE:

The Eighth Circuit upheld the dismissal of property owners' takings and conspiracy claims against the United States, a local water district, two cities, and private real estate developers. The owners' primary allegation was that the appellees, individually and in concert, effected various regulatory and physical takings of the owners' property and conspired to prevent them from receiving just compensation. The owners' takings claims against the United States were properly dismissed because the US Court of Federal Claims has exclusive subject matter jurisdiction over takings claims against the United States that exceed $10,000 in amount, and here the owners' claims exceed that amount. The lower court also properly dismissed the owners' federal claims against the remaining appellees. The owners failed to provide evidence of a conspiracy sufficient to survive summary judgment on their claim under 42 U.S.C. §1985. Further, to the extent the owners' alleged constitutional injury stems from claims adjudicated in a prior state court judgment, the lower court lacked jurisdiction under the Rooker-Feldman doctrine because the owners are essentially challenging the state judgment as inadequate and are "asking the federal court for the same remedy requested in the state court action: just compensation." Moreover, the state claims may be unripe because the owners failed to appeal the sufficiency of the state court jury award. Thus, the lower court should have dismissed these claims for lack of subject matter jurisdiction rather than on collateral estoppel grounds. The lower court, however, properly declined to exercise jurisdiction over the owners' supplemental state law claims.Johnson v. City of Shorewood, Nos. 02-3562 et al. (8th Cir. Mar. 5, 2004) (14 pp.).

MAGNUSON-STEVENS FISHERY CONSERVATION AND RECOVERY ACT, MOOTNESS, PUBLIC COMMENT:

The First Circuit held that Framework Adjustment 14 to the Atlantic Sea Scallop Fishery Management Plan, which adjusts certain restrictions on sea scallop fishing in the Atlantic coastal waters, is lawful. The environmental groups' challenge to the substance of Framework 14 is not moot even though it expired and was replaced by Framework 15. Where, as here, a challenged regulation continues to the extent that it is only superficially altered by a subsequent regulation, the court is capable of meaningful review. Nevertheless, the district court's entry of summary judgment in favor of the National Marine Fisheries Service (NMFS) was proper. The groups failed to show that the NMFS acted irrationally in implementing Framework 14 without imposing additional closures of scallop harvesting. Further, the Magnuson-Stevens Act does not mandate public comment for framework adjustments such as Framework 14, which can be characterized as an "action" rather than a "regulation." Last, the public comment period required under the APA had been waived for good cause, and any error on the NMFS' part in doing so was harmless.Conservation Law Foundation v. Evans, No. 02-2664 (1st Cir. Feb. 26, 2004) (20 pp.).

TAKINGS, DEVELOPMENT MORATORIUM, REZONING:

The Texas Supreme Court held that a development company cannot recover on takings claims arising from a city's 15-month moratorium on development and subsequent rezoning of the company's land that reduced the number of residences that could be built on the property. Contrary to the rulings of the lower courts, the rezoning was not a taking. The city’s rezoning substantially advanced legitimate government interests. Further, although the rezoning clearly had a severe economic impact on the company, the property was still worth four times what it cost, despite the rezoning. In addition, while the rezoning significantly interfered with the company's reasonable, investment-backed expectations, the investment backing its expectations at the time of rezoning was minimal and it expectations were speculative. Moreover, the rezoning was general in character and not exclusively directed at the company. Similarly, the moratorium was not a taking. It substantially advanced legitimate government interests and it did not go so far as to constitute a taking. The company did not show what economic impact it suffered from the moratorium as distinct from the rezoning. Nor does the record show how the company's reasonable, investment-backed expectations excluded the possibility of a 15-month delay on its development plans. Last, the court remanded the case to determine whether the company vested its development rights by filing a plat during a hiatus in the moratorium.Sheffield Development Co. v. City of Glenn Heights, No. 02-0033 (Tex. Mar. 5, 2004) (34 pp.).

NEW JERSEY SPILL COMPENSATION AND CONTROL ACT, AFFIRMATIVE DEFENSES:

The New Jersey Superior Court granted in part and denied in part the New Jersey Department of Environmental Protection's motion to strike all affirmative defenses raised by former owners and operators of three gas stations from which the department sought natural resource damages for groundwater contamination under the New Jersey Spill Act. The department argued that the Spill Act on its face provides only a few limited defenses: for acts of war, God, or sabotage (but only for major facilities and vessels), as well as innocent purchaser and lender liability defenses. The court, however, rejected this interpretation and held that the owners and operators retained almost all of their defenses. Although the Spill Act limits liability defenses available to otherwise liable owners and operators of major facilities and vessels, the statute contains no such limitations with respect to any other persons who may be liable under the Act. The Spill Act does not limit common law defenses to strict liability or to defenses relating to causation, damages, the US and New Jersey Constitutions, or the New Jersey Administrative Procedures Act. Only those defenses that were inapplicable to the department's strict liability statutory claims, including certain defenses to negligence claims, were struck. The court also ruled that the claims were not subject to a statute of limitations defense. The court, however, ordered that any of the stricken defenses applicable to natural resource damages be preserved and ruled upon at a later stage.New Jersey Department of Environmental Protection v. Exxon/Mobil Corp., No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Jan. 16, 2004) (Sabatino, J.S.C.) (20 pp.) (Defense counsel included Lanny S. Kurzweil of McCarter & English, LLP, in Newark, NJ).

Copyright© 2004, Environmental Law Institute, Washington, DC All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AGRICULTURE:

  • USDA's Farm Service Agency promulgated a rule for implementation, subject to the availability of funds, of the Tree Assistance Program authorized by the Farm Security and Rural Investment Act of 2002.69 FR 9744(3/2/04).

AIR:

  • EPA promulgated NESHAPs for stationary combustion turbines and adopted a final formaldehyde emission standard for all new or reconstructed stationary combustion turbines in four of the eight stationary combustion turbine subcategories.69 FR 10511(3/5/04).
  • EPA amended the refrigerant recycling rule, promulgated under CAA §608, in order to clarify how the requirements of §608 apply to refrigerants that are used as substitutes for chlorofluorocarbon and hydrochlorofluorocarbon refrigerants.69 FR 11945 (3/12/04).
  • EPA is making information available to the public related to a July 11, 2000, proposed rule under the Significant New Alternatives Policy Program that reviews alternatives to class I and class II ozone depleting substances.69 FR 11358(3/10/04).
  • EPA denied a petition under CAA §612(d), the Significant New Alternatives Policy Program, to consider the hydrocarbon blend HC-12a as a substitute for CFC-12 (dichlorodifluoromethane) in end uses other than industrial process refrigeration.69 FR 9754(3/2/04).
  • EPA approved the Virgin Islands' petition for exemption from CAA §165(a) requirements mandating a prevention of significant deterioration permit to construct prior to construction of a new gas turbine at the Virgin Islands Water and Power Authority facility in St. Thomas.69 FR 10332(3/5/04).
  • EPA approved a negative declaration by the Pennsylvania Department of Environmental Protection certifying that small municipal waste combustion units subject to CAA §§111(d)/129 requirements do not exist within its pollution control jurisdiction, excluding the jurisdiction of the Health Department air pollution control agencies in Allegheny and Philadelphia counties.69 FR 10165(3/4/04).
  • EPA approved revisions to Arizona's Cleaner Burning Gasoline program that replace the interim program with a permanent one, amend winter program limits on types of gasoline supplied, and remove minimum oxygen content requirements for summertime gasoline.69 FR 10161(3/4/04).
  • EPA approved revisions to South Carolina's plan for implementing and enforcing emission guidelines applicable to existing commercial and solid waste incineration units constructed on or before November 30, 1999.69 FR 9554(3/1/04).
  • EPA approved Puerto Rico's state plan to implement and enforce EPA's emissions guidelines in order to fulfill the requirements of CAA §§111(d)/129 for commercial and industrial solid waste incineration units.69 FR 11537(3/11/04).

CLIMATE CHANGE:

  • EPA announced thatThe Draft Inventory of US Greenhouse Gas Emissions and Sinks: 1990-2002is available for public review; the document, required by the U.N. Framework Convention on Climate Change, summarizes annual US emissions of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, as well as estimates the carbon sequestration of US forests.69 FR 9623(3/1/04).
  • DOE's Office of Science announced that it is accepting applications for the Integrated Assessment of Climate Change Research Program, which funds research to develop and improve methods and tools used in integrated assessments of climate change.69 FR 10690(3/8/04).

DRINKING WATER:

  • EPA tentatively approved and requested public comment on revisions to Delaware's public water system supervision program.69 FR 10043(3/3/04).
  • EPA proposed optional monitoring for disinfection profiling requirements specified in the national primary drinking water regulations, a detection limit for the uranium methods contained in the regulations, and an earlier compliance date for some components of the long term one enhanced surface water treatment rule.69 FR 9781(3/2/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative order on consent with the Union Pacific Railroad Company concerning the Northwest Oil Drain Superfund site in Salt Lake City, Utah; the settlement requires Union Pacific to pay $100,000 to the Hazardous Substances Superfund as partial reimbursement of past EPA response costs.69 FR 10042(3/3/04).
  • EPA approved revisions to Delaware's hazardous waste program under RCRA.69 FR 10171(3/4/04).
  • EPA approved revisions to Idaho's hazardous waste management program under RCRA. 69 FR 11322 (3/10/04).
  • EPA approved revisions to Massachusetts hazardous waste program under RCRA.69 FR 11801(3/12/04).

NATURAL GAS:

  • DOT's Research and Special Programs Administration clarified that the operation, maintenance, and fire protection requirements of its Office of Pipeline Safety regulations for liquefied natural gas facilities apply to those facilities that are in existence or under construction as of March 31, 2000.69 FR 11330(3/10/04).

PESTICIDES:

  • EPA requested comment on an application for modification of an experimental use permit to allow an additional 2,500 acres in any of 26 states to be planted with the plant-incorporated protectants ZMIR39 x MON810 combined insecticidal trait stacked corn hybrids, and Bacillus thuringiensis Cry3Bb1 protein and Bacillus thuringiensis Cry1Ab delta-endotoxin and the genetic material necessary for their production in corn.69 FR 10040(3/3/04).

TOXIC SUBSTANCES:

  • The Department of Health and Human Services' Agency for Toxic Substances and Disease Registry announced the availability of new final toxicological profiles for atrazine, malathion, and pyrethrins and pyrethroids, and updated final profiles for fluorides, selenium, and sulfur mustard.69 FR 10048(3/3/04).

WATER QUALITY:

  • EPA announced the availability of and requested comment on the draftNational Coastal Condition Report II, which describes the state of US coastal waters and is intended to increase public awareness of coastal waters pollution and facilitate more informed decisions concerning protection of these waters.69 FR 11011(3/9/04).
  • USDA's Natural Resources Conservation Service in Indiana proposed to issue a new conservation practice standard for drainage water management; the new standard would apply to conservation systems that treat highly erodable land and/or wetlands.69 FR 9798(3/2/04).
  • EPA announced the availability of and requested public comment on a draft total maximum daily load document identifying segments and associated pollutants of nitrates/nitrites, phosphorus, and total suspended solids in the Wabash River in Mercer County, Ohio.69 FR 10231(3/4/04).

WILDLIFE:

  • FWS determined that four subspecies of the island fox, a species that inhabits the six largest islands off the southern coast of California, are endangered under the ESA: the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz island fox, and Santa Catalina island fox.69 FR 10335(3/5/04).
  • FWS proposed regulations for the nonessential experimental populations of the western distinct population segment of the gray wolf, a segment for which the Service plans to propose delisting under the ESA once all states occupied by the segment have approved wolf management plans.69 FR 10956(3/9/04).
  • NOAA's National Marine Fisheries Service (NMFS) announced that in November 2003 the international Commission for the Conservation of Antarctic Marine Living Resources, of which the United States is a member, adopted conservation and management measures concerning fishing in the commission's convention area, pending member approval; the measures are in effect with respect to the United States.69 FR 10207(3/4/04).
  • NMFS issued an incidental harassment authorization for take of marine mammals incidental to on-ice seismic operations conducted by ConocoPhillips Alaska Inc., from Cape Halkett to Oliktot Point in the Beaufort Sea.69 FR 10209(3/4/04).
  • NMFS requested recent scientific and commercial information concerning the eastern North Pacific Southern Resident stock of killer whales to inform the deliberations of a biological review team evaluating the validity of listing the stock as endangered or threatened under the ESA.69 FR 9809(3/2/04).
  • NMFS announced temporary restrictions on lobster trap/pot and anchored gillnet fisherman in areas totaling approximately 1,896 square nautical miles (in February) and 1,580 square nautical miles (in March) east of Portsmouth, New Hampshire, for 15 days, to protect an aggregation of North Atlantic right whales.69 FR 9760(3/2/04).
  • NMFS issued a one-year letter of authorization to the 30th Space Wing of the US Air Force to harass seals and sea lions incidental to rocket and missile launches at Vandenburg Air Force Base in California.69 FR 9810(3/2/04).
  • FWS authorized the incidental take of the endangered Preble's meadow jumping mouse by the Castle Rock Development Company and Castle Rock Land Company on company lands in Douglas County, Colorado.69 FR 9638(3/1/04).
  • NMFS announced the availability of its 2004 strategic plan for fisheries research, a document required by the Magnuson-Stevens Fishery Conservation and Management Act.69 FR 10992(3/9/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Kanaway Seafoods, Inc., No. A04-0039 CV (JWS) (D. Alaska Feb. 13, 2004). A settling defendant under the CWA who over a three-year period failed on multiple days to meet several NPDES discharge and reporting requirements specified in the general permit for Alaskan seafood processors must pay a civil penalty of $110,000 and perform injunctive relief at a seafood processing facility in Ketchikan, Alaska.69 FR 10061(3/3/04).
  • United States v. Princeton Gamma-Tech, No. 91-809 (AET) (D.N.J. Feb. 11, 2004). A settling defendant under CERCLA must pay $14,204,000 to the United States and $7,296,000 to New Jersey as reimbursement for past and future response costs and natural resource damages associated with the Montgomery Township Housing Development Superfund site in Somerset County, New Jersey.69 FR 10061(3/3/04).
  • United States v. Reunion Industries, Inc., No. C-04-0671 (MHP) (N.D. Cal. Feb. 18, 2004). A settling defendant under CERCLA must pay EPA $100,000 in installments over three years to settle liability for past response costs associated with the release or threatened release of hazardous substances at the Gambonini Mercury Mine site in Marin County, California.69 FR 10062(3/3/04).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 741 (Minor Use and Minor Species Animal Health Act), which would amend the Federal Food, Drug, and Cosmetic Act with regard to new animal drugs, was passed by the Senate after agreeing to the committee amendment in the nature of a substitute. 150 Cong. Rec. S2365-75 (daily ed. Mar. 8, 2004).
  • H.R. 506 (Galisteo Basin Archaeological Sites Protection Act), which would provide for the protection of archaeological sites in the Galisteo Basin in New Mexico, was passed by the Senate, clearing the measure for the President. 150 Cong. Rec. S2253 (daily ed. Mar. 4, 2004).
  • H.R. 2059 (Fort Bayard National Historic Landmark Act), which would designate Fort Bayard Historic District in the state of New Mexico as a National Historic Landmark, was passed by the Senate, clearing the measure for the President. 150 Cong. Rec. S2253 (daily ed. Mar. 4, 2004).
  • H.R. 3850 (Surface Transportation Extension Act), which would provide an extension of highway, highway safety, motor carrier safety, transit, and other programs funded out of the Highway Trust Fund pending enactment of a law reauthorizing the Transportation Equity Act for the 21st Century, was passed by the Senate, clearing the measure for the President. 150 Cong. Rec. S1884 (daily ed. Feb. 27, 2004).

COMMITTEE ACTION:

  • S. 213 (Middle Rio Grande Project), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 229, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would clear title to certain real property in New Mexico associated with the Middle Rio Grande Project.
  • S. 524 (boundary adjustment), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-230, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would expand the boundaries of the Fort Donelson National Battlefield to authorize the acquisition and interpretation of lands associated with the campaign that resulted in the capture of the fort in 1862.
  • S. 943 (water storage), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-231, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would authorize the Secretary of the Interior to enter into one or more contracts with the city of Cheyenne, Wyoming, for the storage of water in the Kendrick Project, Wyoming.
  • S. 960 (water resources), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-232, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize certain projects in the state of Hawaii and to amend the Hawaii Water Resources Act of 2000 to modify the water resources study.
  • S. 1107 (recreational fees), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-233, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would enhance the Recreational Fee Demonstration Program for the National Park Service.
  • S. 1167 (boundary adjustment), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-234, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would resolve the boundary conflicts in Barry and Stone Counties in the state of Missouri.
  • S. 1516 (reclamation projects), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-235, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would further the purposes of the Reclamation Projects Authorization and Adjustment Act of 1992 by directing the Secretary of the Interior, acting through the commissioner of Reclamation, to carry out an assessment and demonstration program to assess potential increases in water availability for Bureau of Reclamation projects and other uses through control of salt cedar and Russian olive.
  • S. 1576 (boundary adjustment), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-236, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would revise the boundary of Harpers Ferry National Historical Park.
  • S. 1577 (hydroelectric project), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-237, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would extend the deadline for commencement of construction of a hydroelectric project in the state of Wyoming.
  • S. 1848 (Bend Pine Nursery Land Conveyance Act), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-238, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would amend the Bend Pine Nursery Land Conveyance Act to direct the Secretary of Agriculture to sell the Bend Pine Nursery Administration Site in the state of Oregon, with an amendment in the nature of a substitute.
  • S. 2178 (National Park System), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-239, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would make technical corrections to laws relating to certain units of the National Park System and to National Park programs.
  • H.R. 408 (Sleeping Bear Dunes National Lakeshore), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-240, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would provide for expansion of Sleeping Bear Dunes National Lakeshore.
  • H.R. 417 (Cibola National Wildlife Refuge), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-241, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would revoke a Public Land Order with respect to certain lands erroneously included in the Cibola National Wildlife Refuge, California.
  • H.R. 708 (land conveyance), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-242, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would require the conveyance of certain National Forest System lands in Mendocino National Forest, California, to provide for the use of the proceeds from such conveyance for National Forest purposes.
  • H.R. 856 (water; repayment contract), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-243, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would authorize the Secretary of the Interior to revise a repayment contract with the Tom Green County Water Control and Improvement District No. 1, San Angelo project, Texas.
  • H.R. 1598 (reclamation project), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 108-244, 150 Cong. Rec. S2439 (daily ed. Mar. 9, 2004). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in projects within the San Diego Creek Watershed, California.

BILLS INTRODUCED:

  • S. 2142 (Lautenberg, D-N.J.) (coastal heritage trail), would authorize appropriations for the New Jersey Coastal Heritage Trail Route. 150 Cong. Rec. S1891 (daily ed. Feb. 27, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2162 (Crapo, R-Idaho) (Inland Northwest Economic Adjustment Strategy), would implement the Inland Northwest Economic Adjustment Strategy. 150 Cong. Rec. S2105 (daily ed. Mar. 3, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2167 (Cantwell, D-Wash.) (national historic park), would establish the Lewis and Clark National Historical Park in the states of Oregon and Washington. 150 Cong. Rec. S2223 (daily ed. Mar. 4, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2169 (Graham, D-Fla.) (water resource projects), would modify certain water resources projects for the Apalachicola, Chattahoochee, and Flint Rivers in Alabama, Florida, and Georgia. 150 Cong. Rec. S2223 (daily ed. Mar. 4, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 2172 (Campbell, R-Colo.) (Native Americans), would make technical amendments to the provisions of the Indian Self Determination and Education Assistance Act relating to contract support costs. 150 Cong. Rec. S2301 (daily ed. Mar. 8, 2004). The bill was referred to the Committee on Indian Affairs.
  • S. 2173 (Campbell, R-Colo.) (historic sites), would further the purposes of the Sand Creek Massacre National Historic Site Establishment Act of 2000. 150 Cong. Rec. S2301 (daily ed. Mar. 8, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2178 (Domenici, R-N.M.) (National Park System), would make technical corrections to laws relating to certain units of the National Park System and to National Park program. 150 Cong. Rec. S2440 (daily ed. Mar. 9, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2180 (Campbell, R-Colo.) (land exchange), would direct the Secretary of Agriculture to exchange certain lands in the Arapaho and Roosevelt National Forests in the state of Colorado. 150 Cong. Rec. S2440 (daily ed. Mar. 9, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2181 (Campbell, R-Colo.) (boundary adjustment), would adjust the boundary of Rocky Mountain National Park in the state of Colorado. 150 Cong. Rec. S2440 (daily ed. Mar. 9, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2188 (Feingold, D-Wis.) (US Army Corps of Engineers), would provide for reform of the Corps of Engineers. 150 Cong. Rec. S2543 (Mar. 10, 2004). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 3874 (Bono, R-Cal.) (federal land conveyance), would convey for public purposes certain federal lands in Riverside County, California, that have been identified for disposal. 150 Cong. Rec. H752 (daily ed. Mar. 2, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3883 (Gilchrest, R-Md.) (Atlantic striped bass), would reauthorize the Atlantic Striped Bass Conservation Act. 150 Cong. Rec. H830 (daily ed. Mar. 3, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3886 (Neugebauer, R-Tex.) (wetlands), would amend the Food Security Act of 1985 to expand the pilot program for the enrollment of certain wetlands and its buffer acreage in the conservation reserve program to include the enrollment of certain playas and its buffer acreage. 150 Cong. Rec. H830 (daily ed. Mar. 3, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 3890 (Hart, R-Pa.) (steel and aluminum energy conservation), would reauthorize the Steel and Aluminum Energy Conservation and Technology Competitiveness Act of 1988. 150 Cong. Rec. H870 (daily ed. Mar. 4, 2004). The bill was referred to the Committee on Science.
  • H.R. 3892 (Hart, R-Pa.) (hazardous waste remediation reserves), would amend the Internal Revenue Code of 1986 to encourage businesses to establish hazardous waste remediation reserves. 150 Cong. Rec. H870 (daily ed. Mar. 4, 2004). The bill was referred to the Committee on Ways and Means.
  • H.R. 3900 (Capps, D-Cal.) (water treatment), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of permanent facilities for the GREAT project to reclaim, reuse, and treat impaired waters water in the area of Oxnard, California. 150 Cong. Rec. H871 (daily ed. Mar. 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3902 (Garrett, R-N.J.) (Wild and Scenic Rivers Act), would amend the Wild and Scenic Rivers Act to designate portions of the Musconetcong River in the state of New Jersey as a component of the National Wild and Scenic Rivers System. 150 Cong. Rec. H871 (daily ed. Mar. 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3909 (Ryun, R-Kan.) (heritage areas), would establish the Bleeding Kansas and the Enduring Struggle for Freedom National Heritage Area. 150 Cong. Rec. H871 (Mar. 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3932 (Nunes, R-Cal.) (hydroelectric project), would amend Public Law 99-338 to authorize the continued use of certain lands within the Sequoia National Park by portions of an existing hydroelectric project. 150 Cong. Rec. H1011 (Mar. 10, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3940 (Dingell, D-Mich.) (Solid Waste Disposal Act), would amend the Solid Waste Disposal Act to provide for secondary containment to prevent methyl tertiary-butyl ether and petroleum contamination. 150 Cong. Rec. H1070 (daily ed. Mar. 11, 2004). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3944 (Calvert, R-Cal.) (land conveyance), would provide for the conveyance of a small parcel of Natural Resources Conservation Service property in Riverside, California. 150 Cong. Rec. H1071 (daily ed. Mar. 11, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 3945 (Calvert, R-Cal.) (Water; reclamation and reuse), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of a project to reclaim and reuse wastewater within and outside of the service area of the City of Corona Water Utility, California. 150 Cong. Rec. H1071 (daily ed. Mar. 11, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3946 (Camp, R-Mich.) (maritime sites), would direct the Secretary of the Interior to conduct a study of maritime sites in the state of Michigan. 150 Cong. Rec. H1071 (daily ed. Mar. 11, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3954 (Hunter, R-Cal.) (boundary discrepancy), would authorize the Secretary of the Interior to resolve boundary discrepancies in San Diego County, California, arising from an erroneous survey conducted by a government contractor in 1881 that resulted in overlapping boundaries for certain lands. 150 Cong. Rec. H1071 (daily ed. Mar. 11, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3955 (Israel, D-N.Y.) (exploration and development), would require the Securities and Exchange Commission to require public companies to disclose their payments to foreign governments for the purposes of natural resources exploration, development, and extractions rights. 150 Cong. Rec. H1071 (daily ed. Mar. 11, 2004). The bill was referred to the Committee on Financial Services.
  • H. Res. 382 (Vitter, R-La.) (National Wildlife Refuge System), would affirm that the intent of Congress in passing the National Wildlife Refuge System Improvement Act of 1997 was to allow hunting and fishing on public lands within the National Wildlife Refuge System and declare that the purpose of reserving certain lands as public lands is to make them available to the public for reasonable uses. 150 Cong. Rec. H1072 (daily ed. Mar. 11, 2004). The resolution was referred to the Committee on Resources.
  • H. Res. 548 (Manzullo, ) (environmental systems), would recognize the contributions of environmental systems and the technicians who install and maintain them to our quality of life. 150 Cong. Rec. H752 (daily ed. Mar. 2, 2004). The resolution was referred to the Committee on Energy and Commerce.

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, DC All rights reserved.

INTERNATIONAL

GENERAL:

  • The group BirdLife International issued a report,State of the World's Birds 2004, which contends that 12% of the world's known bird species are endangered, and that 179 are "critically" endangered and could become extinct soon.
  • An article published inNew Scientist contended that ecotourism is causing animals to become lose weight, become stressed, and even die. Changes in behavior, heart rate, and hormone production have been noted. "Transmission of disease to wildlife, or subtle changes to wildlife health through disturbance of daily routines or increased stress levels, while not apparent to the casual observer, may translate to lower survival and breeding," said Philip Seddon of the University of Otago in New Zealand.
  • The U.S. submitted a request to the United Nations (U.N.) Environment Program Ozone Secretariat seeking additional exemptions from the Montreal Protocol to allow additional use of methyl bromide (23 million pounds in 2005) for meat processors, tobacco farmers, and flower growers. The U.S. has sought more exemptions from the Protocol than all other parties combined. The request will be considered at a meeting March 24-26.
  • A new system for documentation and labeling of genetically modified (GM) organisms was endorsed by parties to the Cartagena Protocol on Biosafety. Seehttp://www.un.org/apps/news/printnews.asp?nid=9909
  • Locations in Kenya, Brazil, Ivory Coast, India, Indonesia, Mexico and Uganda were selected for the implementation of a research study on below-ground biodiversity. Seehttp://www.unep.org/documents/default.asp?documentid=270&articleid=3180
  • Kenyan Environment Minister Newton Kulundu said that Botswana, Namibia and South Africa should not be allowed one-time ivory sales because of violations of the Convention on Trade in Endangered Species. "Any trade in ivory must be regulated, otherwise it will trigger off a massacre of the remaining African elephants," Kulundu said. He stated that , Cameroon, the Central African Republic, Ethiopia, Ghana, Mali, Tunisia and Uganda supported Kenya's position.
  • Representatives from Burundi, the Democratic Republic of the Congo, Egypt, Eritrea, Ethiopia, Kenya, Rwanda, Sudan, Tanzania and Uganda met to discuss peaceful ways of resolving disputes over access to Nile River water.
  • British Environment Secretary Margaret Beckett announced that the U.K. had authorized the commercial cultivation of GM corn (Chardon LL maize, which is used for cattle feed). The corn is not grown in any other EU member country, although similar maize has been cultivated in the US for a number of years. Seehttp://news.independent.co.uk/uk/environment/story.jsp?story=499666
  • Norwegian Institute of Gene Ecology Scientific Director Terje Traavik released a report which claimed that individuals living close to GM crop fields in the Philippines are suffering from increased skin rashes, fevers, and respiratory illnesses. Monsanto responded by saying that "there have been no documented cases of allergic reactions to Bt maize after seven years of broad commercial use on millions of hectares in the US, Canada, Argentina, Spain and South Africa, starting in 1996." Seehttp://www.guardian.co.uk/international/story/0,3604,1157210,00.html

CLIMATE CHANGE:

  • EU environment ministers rejected calls by Italy to reconsider implementation of the Kyoto Protocol in the absence of ratification by Russia. "We have unanimous commitment to the Kyoto process. There has been no proposal for an alternative if Russia doesn't ratify," said European Commission Environment Commissioner Margot Wallström. All provisions of the Protocol entered into force for the EU. "Now we have adopted all the necessary EU legislation to carry out our commitments under the Kyoto protocol," said Commissioner Wallström. "This means that we are fully implementing this important Protocol even before it has entered into force at international level. As a strong bloc of soon-to-be 25 countries, the [EU] has a special responsibility to show global leadership and pave the way for other countries to follow suit." A new decision of the European Parliament and Council provides procedures for accounting, reporting and review of emissions, replacing and extending the previous Greenhouse Gas Monitoring Mechanism Decision, which only covered requirements arising from the 1992 UNFCCC. In addition, it addresses reporting and monitoring issues related to the EU's "Burden Sharing Agreement," under which each Member State has accepted an individual target for limiting or reducing its greenhouse gas emissions. The new rules will allow Member States and the EU to monitor their progress towards meeting their reduction targets and take additional measures if necessary. The Decision also provides for coordination between the EU and the Member States during the UN compliance and review procedures envisaged by the Protocol. Within the EU, the Commission has to assess progress annually and, if necessary, propose suitable measures. Seehttp://europa.eu.int/comm/environment/climat/home_en.htm
  • Consultants contended that Poland's national allocation plan for emissions trading was "under-researched, under-funded and under-consulted," according to anarticlein theWarsaw Business Journal.
  • Industries subject to emission controls in Finland will be allowed to increase their carbon dioxide emissions for the next three years, according to a plan prepared by the Ministry of Trade and Industry. Seehttp://www.helsinki-hs.net/news.asp?id=20040303IE7
  • In Australia, the states of Victoria and New South Wales were said to be considering adoption of a Kyoto-like emission trading program. Seehttp://www.theage.com.au/articles/2004/03/06/1078464695035.html
  • A study published in the journalNature concluded that faster-growing tree varieties are dominating forests in the Amazon, a result of climate change. Seehttp://news.independent.co.uk/world/environment/story.jsp?story=499968
  • A study published in the British Royal Geographical Society's journalAreaconcluded that geography influences how much carbon dioxide is produced by various countries, a theory that is inconsistent with the Protocol's approach of looking at economic development. Countries with colder average minimum temperatures produced more carbon dioxide in meeting heating requirements, as did larger nations with developed transportation networks. In contrast, countries with high-altitude lakes produced less carbon dioxide. Seehttp://www.rgs.org/category.php?Page=mainpublications
  • Copyright© 2004, Environmental Law Institute, Washington, DC All rights reserved. 

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