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Weekly Update Volume 35, Issue 16

06/06/2005

LITIGATION

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

TAKINGS, "SUBSTANTIALLY ADVANCES" FORMULA:

The U.S. Supreme Court held that the "substantially advances" formula, announced in Agins v. City of Tiburon, 447 U.S. 255, 10 ELR 20361 (1980), is not an appropriate test for determining whether a government regulation effects a Fifth Amendment taking. The "substantially advances" formula prescribes an inquiry into the nature of a due process test, which has no proper place in the Court’s takings jurisprudence. Although Agins' reliance on due process precedents is understandable when viewed in historical context, the language the Court selected was imprecise. It suggests a means-ends test, asking, in essence, whether a regulation of private property is effective in achieving some legitimate public purpose. Such an inquiry is not a valid method of discerning whether private property has been "taken" for Fifth Amendment purposes. The "substantially advances" inquiry reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights or how any regulatory burden is distributed among property owners. Thus, a plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may proceed by alleging a "physical" taking, a total regulatory taking under Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 22 ELR 21104 (1992), a taking under Penn Central Transportation Co. v. New York City, 438 U. S. 104, 8 ELR 20528 (1978), or a land-use exaction violating the standards set forth in Nollan v. California Coastal Commission, 483 U. S. 825, 17 ELR 20918 (1987), and Dolan v. City of Tigard, 512 U. S. 374, 24 ELR 21083 (1994). O'Connor, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion. Lingle v. Chevron U.S.A., Inc., No. 04-163, 35 ELR 20106 (U.S. May 23, 2005) (23 pp.).

ESA, NO SURPRISES RULE, MOOTNESS:

The D.C. Circuit dismissed as moot the DOI's appeal of a district court order that remanded for further rulemaking and temporarily suspended the FWS' and NMFS' "no surprises rule." The government argued that the court exceeded its authority under the APA in issuing the order. The Services, however, have completed the required rulemaking, thereby rendering the appeal moot. Spirit of the Sage Council v. Norton, No. 03-5345, 35 ELR 20110 (D.C. Cir. May 31, 2005) (10 pp.).

CAA, FWPCA, SOLID WASTE DISPOSAL ACT (SWDA), WHISTLEBLOWER PROVISIONS:

The Sixth Circuit affirmed the dismissal of an individual's complaint that his employer, the DOJ, retaliated against him for protected behavior in violation of the whistleblower provisions of the CAA, the FWPCA, and the SWDA. The individual, an assistant U.S. attorney, cannot state a claim under the whistleblower provisions of these statutes premised on his investigation and prosecution of environmental crimes. Because his job as an assistant U.S. attorney included the investigation and prosecution of environmental crimes, he cannot be said to have risked his personal job security by performing the duties required of him. Therefore, he was not engaging in protected activities. In addition, his allegation that the DOJ retaliated against him for his contacts with a congressional office do not support his whistleblower claim. And even had he participated in an activity that is protected by the whistleblower provisions of the CAA, the SWDA, and the FWPCA, his claim is barred because it was not timely filed. Sassé v. United States Department of Labor, No. 04-3245, 35 ELR 20109 (6th Cir. May 31, 2005) (8 pp.).

NATIONAL FORESTS, CONSTITUTIONAL LAW:

The Ninth Circuit affirmed individuals' convictions for stringing ropes above a proposed logging and emergency medical helicopter landing site during a tree-sitting protest in the Bitterroot National Forest in Montana. Despite the individuals' argument to the contrary, 18 U.S.C. §1864(a), which prohibits the use of hazardous devices on federal land to obstruct the harvesting of timber, is not unconstitutionally vague as applied to visible and unmodified ropes strung above a proposed helicopter landing site. The statute provides fair warning to a person of common intelligence that it is a crime to hang ropes over a helicopter landing site with the intent to obstruct or harass the harvesting of timber. United States v. Wyatt, No. 04-30316, 35 ELR 20107 (9th Cir. May 26, 2005) (10 pp.).

NATIONAL FORESTS, APPEALS:

The Seventh Circuit upheld the dismissal of a nonprofit's untimely appeal of certain U.S. Forest Service projects. The nonprofit relied on the Service's statement as to the due date for the filings, but the statement was wrong and the Service therefore refused to hear them. Neither the doctrine of equitable tolling nor the doctrine of equitable estoppel excuse the lateness of the filing. The nonprofit could have filed in time had it exercised due diligence, and there is no evidence of affirmative misconduct by the Forest Service. Bensman v. United States Forest Service, No. 03-4041, 35 ELR 20111 (7th Cir. June 2, 2005) (40 pp.).

EMINENT DOMAIN, COMPENSATION:

A California appellate court affirmed a $495,850 judgment awarded to a developer in an eminent domain action concerning two parcels of land, each containing a manufactured home. The manufactured homes were "improvements pertaining to the realty" under the state's eminent domain law and as such were properly taken into account in determining the compensation award. Escondido Union School District v. Casa Sueños De Oro, Inc., No. D043104, 35 ELR 20108 (Cal. App. 4th Dist. May 26, 2005) (53 pp.).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

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

AGRICULTURE:

  • USDA proposed to implement the provision of the Farm Security and Rural Investment Act of 2002 that gives the Department authority to promulgate regulations for the operation and administration of the Senior Farmers' Market Nutrition Program. 70 FR 30589 (5/26/05).

AIR:

  • EPA made changes and clarifications to its rule implementing the eight-hour ozone NAAQS. 70 FR 30604 (5/26/05).
  • EPA announced a draft consent decree that requires it to take final action on certain SIP revisions concerning the Dallas/Fort Worth ozone nonattainment area. 70 FR 32327 (6/2/05).
  • EPA determined that the Las Vegas Valley nonattainment area in Nevada has attained the NAAQS for carbon monoxide by the applicable attainment date. 70 FR 31354 (6/1/05).
  • EPA announced that the motor vehicle emissions budget for 2019 in the Salt Lake City, Utah, carbon monoxide maintenance plan is adequate for transportation conformity purposes. 70 FR 30946 (5/31/05).
  • EPA received a petition requesting it to remove the chemical 4,4'-methylene diphenyl diisocyanate from the list of hazardous air pollutants contained in CAA §112(b)(1). 70 FR 30409 (5/26/05).
  • EPA solicited applications for the critical use exemption from the phaseout of methyl bromide for 2007 and beyond; the application process offers users of methyl bromide the opportunity to provide technical and economic information to support a critical use claim. 70 FR 29497 (5/23/05).
  • SIPs approvals: Maine, 70 FR 30370 (mobile equipment repair and refinishing and solvent cleaning operations), and 70 FR 30376 (smaller-scale electric generating units) (5/26/05).
  • SIP proposals: Maine, 70 FR 30406 (mobile equipment repair and refinishing and solvent cleaning operations), and 70 FR 30406 (smaller-scale electric generating units) (5/26/05); Texas, 70 FR 29470 (San Antonio area), and 70 FR 29466 (Austin area) (5/23/05).
  • SIP withdrawals: Pennsylvania, 70 FR 30377 (individual source), 70 FR 30377 (15 individual sources), and 70 FR 30378 (3 sources) (5/26/05).

FISHERIES:

  • NMFS proposed to require sea turtle conservation measures for all sea scallop dredge vessels fishing in the mid-Atlantic from May 1 through November 30 each year. 70 FR 30666 (5/27/05).
  • NMFS issued an incidental harassment authorization to the Boeing Company to take mammals by harassment during harbor activities related to the Delta IV/Evolved Expendable Launch Vehicle at the south Vandenberg Air Force Base in California. 70 FR 30702 (5/27/05).
  • NOAA issued a permit to the Animal Training and Research International Moss Landing Marine Laboratories in Moss Landing, California, to obtain up to four stranded, releasable California sea lions and up to two stranded, releasable Pacific harbor seals for public display. 70 FR 20088 (5/25/05).

HAZARDOUS AND SOLID WASTE:

  • EPA offered a de minimis settlement at the Florida Petroleum Reprocessors Superfund site in Davie, Florida, and will consider public comments until July 1, 2005. 70 FR 31463 (6/1/05).
  • EPA announced its approval of a rulemaking extension concerning the Project XL Final Rule for New York State Public Utilities. 70 FR 29913 (5/24/05).
  • EPA approved Minnesota's UST program pursuant to RCRA. 70 FR 29632 (5/24/05).
  • EPA authorized changes to Alabama's hazardous waste program under RCRA. 70 FR 32249 (6/2/05).
  • EPA proposed to authorize changes to Alabama's hazardous waste program under RCRA; this rule was also approved as a direct final rule (see above). 70 FR 32280 (6/2/05).

NATURAL RESOURCES:

  • The National Park Service designated areas where personal watercraft may be used in Bighorn Canyon National Recreation Area, Montana and Wyoming. 70 FR 31353 (6/1/05).
  • The Forest Service announced that it plans to adjust the land management plan revision process for the Grand Mesa, Uncompahgre, and Gunnison National Forests from compliance with the 1982 planning regulations to conformance with new planning regulations adopted in January 2005. 70 FR 20060 (5/25/05).

PESTICIDES:

  • EPA announced the availability of risk assessments and related documents for the fungicide chloroneb. 70 FR 30443 (5/26/05).

WATER:

  • EPA designated two open-water dredged material disposal sites, Central Long Island Sound and Western Long Island Sound, for the disposal of dredged material from harbors and navigation channels in the Long Island Sound vicinity in the states of Connecticut and New York. 70 FR 32498 (6/3/05).

WILDLIFE:

  • FWS announced that it plans to gather information necessary to prepare a comprehensive conservation plan and EA for the Mississippi Sandhill Crane National Wildlife Refuge. 70 FR 30478 (5/26/05).
  • FWS is seeking public comment on the designation of critical habitat for the Klamath River and Columbia River populations of bull trout. 70 FR 30000 (5/25/05).
  • FWS announced that it plans to gather information necessary to prepare a comprehensive conservation plan and EA for Bosque del Apache National Wildlife Refuge pursuant to NEPA. 70 FR 29532 (5/23/05).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Brook Village Associates Ltd. Partnership, No. 05-CV-195 (D.R.I. May 6, 2005). A settling CERCLA defendant must pay a total of $1,451,936 to EPA, DOI, and the state for damages incurred at the Centerdale Manor Restoration Project Superfund site in North Providence, Rhode Island. 70 FR 30484 (5/26/05).
  • United States v. Helena Chemical Co., No. 1:05-985 (D.S.C. Apr. 1, 2005). A settling CERCLA defendant must pay $998,500, plus interest, for past U.S. costs incurred in connection with the Helena Chemical Superfund sites in Fairfax, South Carolina, and in Tampa, Florida. 70 FR 30484 (5/26/05).
  • United States v. City of San Diego, No. 01-CV-0550B (S.D. Cal. May 3, 2005). A settling CWA defendant must inspect, rehabilitate, and replace portions of a sewer system in order to address sanitary sewer overflows and other violations of the CWA; must control root problems; must clean a specified amount of sewer pipe; must implement a grease blockage control program; must perform analyses of canyon-based sewer lines; and must perform projects relating to the capacity of the sewer system. 70 FR 30485 (5/26/05).
  • United States v. University of Nebraska, No. 8:30CV00038 (D. Neb. May 13, 2005). A settling CERCLA defendant must pay $71,939 in costs incurred at the former Nebraska Ordnance Plant Superfund site in Mead, Nebraska, and must impose certain restrictions on use of the property. 70 FR 32653 (6/3/05).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

COMMITTEE ACTION:

  • S. 606 (CAA), was reported by the Committee on Environment and Public Works. S. Rep. No. 109-74, 151 Cong. Rec. S6020 (daily ed. May 26, 2005). The bill would amend the CAA to eliminate methyl tertiary butyl ether from the U.S. fuel supply, to increase production and use of renewable fuel, and to increase the Nation's energy independence.
  • H. Res. 291 (energy and water), was reported by the Committee on Rules. H. Rep. No. 109-94, 151 Cong. Rec. H3767 (daily ed. May 23, 2005). The resolution would provide for consideration of the bill (H.R. 2419) making appropriations for energy and water development for the fiscal year ending September 30, 2006.

BILLS INTRODUCED:

  • S. 1091 (Salazar, D-Colo.) (gasification), would establish a federal incentive program as part of a national gasification strategy to stimulate commercial deployment of integrated gasification combined cycle and industrial gasification technology. 151 Cong. Rec. S5580 (daily ed. May 20, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1093 (Salazar, D-Colo.) (renewable energy), would reauthorize and revise the Renewable Energy Production Incentive program. 151 Cong. Rec. S5580 (daily ed. May 20, 2005). The bill was referred to the Committee on Finance.
  • S. 1096 (Corzine, D-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. 151 Cong. Rec. S5778 (daily ed. May 23, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1118 (Feingold, D-Wis.) (Reclamation Reform Act), would amend the Reclamation Reform Act of 1982 to reduce irrigation subsidies. 151 Cong. Rec. S5921 (daily ed. May 25, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1122 (McCain, R-Ariz.) (forest land), would authorize and direct the exchange and conveyance of certain National Forest land and other land in southeast Arizona. 151 Cong. Rec. S5921 (daily ed. May 25, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1133 (Byrd, D-W.V.) (clean coal technologies), would authorize the Secretary of Energy to develop and implement an accelerated research, development, and demonstration program for advanced clean coal technologies for use in coal-based generation facilities and to provide financial incentives to encourage the early commercial deployment of advanced clean coal technologies through the retrofitting, repowering, replacement, and new construction of coal-based electricity generating facilities and industrial gasification facilities. 151 Cong. Rec. S6021 (daily ed. May 26, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1151 (McCain, R-Ariz.) (greenhouse gases), would provide for a program to accelerate the reduction of greenhouse gas emissions in the United States by establishing a market-driven system of greenhouse gas tradeable allowances, to limit greenhouse gas emissions in the United States and reduce dependence upon foreign oil, to support the deployment of new climate change-related technologies, and ensure benefits to consumers. 151 Cong. Rec. S6021 (daily ed. May 26, 2005). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 2571 (Andrews, D-N.J.) (indoor air quality), would require the establishment of programs by the Administrator of EPA, the Director of the National Institute for Occupational Safety and Health, and the Secretary of Health and Human Services to improve indoor air quality in schools and other buildings. 151 Cong. Rec. H3892 (daily ed. May 24, 2005). The bill was referred to the Committee on Energy and Commerce and the Committee on Education and the Workforce.
  • H.R. 2618 (Renzi, R-Ariz.) (forest land), would authorize and direct the exchange and conveyance of certain National Forest land and other land in southeast Arizona. 151 Cong. Rec. H4072 (daily ed. May 25, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2658 (Baker, R-La.) (FWPCA), would amend the FWPCA to clarify the jurisdiction of the federal government over waters of the United States. 151 Cong. Rec. S6021 (daily ed. May 26, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 2665 (Engel, D-N.Y.) (fuel efficiency), would encourage the availability and use of motor vehicles that have improved fuel efficiency, in order to reduce the need to import oil into the United States. 151 Cong. Rec. H4139 (daily ed. May 26, 2005). The bill was referred to the Committee on Ways and Means, the Committee on Financial Services, and the Committee on Energy and Commerce.
  • H.R. 2684 (Kelly, R-N.Y.) (FWPCA), would authorize appropriations for state water pollution control revolving funds. 151 Cong. Rec. H4140 (daily ed. May 26, 2005). The bill was referred to the Committee on Transportation and Infrastructure.

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

New State Development Highlights:

  • The Delaware Department of Natural Resources and Environmental Control, Department of Agriculture, and Nutrient Management Commission will conduct public hearings to receive comments on proposed general permit regulations for concentrated animal feeding operations.
  • The Florida Department of Environmental Protection is holding a workshop on regulation of small non-NPDES domestic wastewater facilities.
  • The Massachusetts Department of Environmental Protection is proposing amendments to the low emissions vehicle program, which would, beginning with model year 2007, allow automobile manufacturers to earn and apply credits to their zero emission vehicle obligations through the early voluntary introduction of cleaner, advanced technology vehicles in Massachusetts.
  • The Minnesota Pollution Control Agency is seeking public input on the design of its Clean Air Interstate Rules and Clean Air Mercury Rules programs.

The following states contain new information in this issue:

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfm to view the complete section.

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

SOUTH AFRICA PASSES GMO LAW:

  • The Cape Times reported on June 1, 2005, that South Africa has passed a law that will hold consumers, not producers, liable for consequences of consuming genetically modified organisms (GMOs). The law, which was passed without public input and based on information about species not found in South Africa, does not meet the standards of the African Model Law on Biological Resources or the United Nations' Cartagena Protocol on Biosafety. See http://www.iol.co.za/index.php?set_id=1&click_id=14&art_id=vn20050601070016502C238220

EUROPEAN COMMISSION APPROVES ITALIAN EMISSIONS TRADING PLAN:

SWEDEN SEEKS LIABILITY LAWS FOR ANTARCTICA:

  • Reuters news service reported that Sweden will back a proposal at the 28th Antarctic Consultive Meeting that would make companies and organizations liable if they caused an oil spill or other disaster in the Antarctic, where tourists now outnumber scientists and have become a growing concern. The proposed liability agreement would force the 45 nations that have signed the Antarctic Treaty to introduce such liability laws for companies operating on the continent. The meeting, to be held in Sweden from June 6 through 17, will discuss how to manage the impact of the near 30,000 tourists who visit the Antarctic each year in addition to other issues such as bio-prospecting. See http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=8690393.

AUSTRALIAN ENVIRONMENTALISTS HOPE FOR BANNER CASE:

  • Australian Senator and Green Party leader Bob Brown filed an injuction on May 30, 2005, asking the Australian federal courts to stop logging in Tasmania's Wielangta Forest. Mr. Brown asserts that the forest is home to rare species, and he sees the case as a significant test of Australia's environmental laws. The Tasmanian government and unionists dismiss the case as a publicity stunt and a counterproductive attempt to create conflict. See http://www.abc.net.au/pm/content/2005/s1380390.htm

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

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