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Weekly Update Volume 35, Issue 17

06/20/2005

LITIGATION

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

PROPERTY LAW, SUBMERGED LANDS:

The U.S. Supreme Court overruled Alaska's exceptions to a special masters report recommending that summary judgment be granted in favor of the United States in a dispute concerning title to two areas of submerged lands. The first area underlies waters in the Alexander Archipelago that are more than three nautical miles from the coast of the mainland or any individual island. Alaska failed to demonstrate that these waters were historic inland waters or, in the alternative, that they qualified as inland waters under the juridical bay theory. The second area in dispute consists of submerged lands beneath the inland waters of Glacier Bay. The United States properly rebutted the presumption that title to these submerged lands passed to Alaska at statehood. Under §6(e) of the Alaska Statehood Act, the United States expressed its intent to retain ownership over all federal refuges and reservations set aside for the protection of wildlife. This expression of intent encompassed Glacier Bay National Monument, which was set aside "for the protection of wildlife." Kennedy, J., delivered the opinion of the Court. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, C.J., and Thomas, J., joined. Alaska v. United States, No. 128, Orig., 35 ELR 20112 (U.S. June 6, 2005) (50 pp.).

CAA, PREVENTION OF SIGNIFICANT DETERIORATION (PSD), MODIFICATION:

The Fourth Circuit affirmed a lower court's grant of summary judgment in favor of a power company charged with modifying its power plants without first obtaining permits in violation of the CAA's PSD provisions. The company updated its coal-fired generation units in order to extend the life of the units and to allow the units to increase their daily hours of operation. EPA argued that the projects will lead to an increase in actual yearly emissions and, therefore, they constitute "major modifications" that require the company to obtain permits. Congress, however, mandated that the PSD definition of "modification" be identical to the new source performance standard (NSPS) definition of "modification," which requires an increase in hourly--not yearly--rate of emissions. The different purposes of the NSPS and PSD programs cannot override that mandate. Here, the projects would not increase the hourly rate of emissions. Thus, they were not subject to the CAA's PSD provisions. United States v. Duke Energy Corp., No. 04-1763, 35 ELR 20121 (4th Cir. June 15, 2005) (19 pp.).

CWA, NPDES GENERAL PERMIT, STORMWATER DISCHARGES:

The Seventh Circuit denied in part, dismissed in part, and stayed in part petitions challenging EPA's final NPDES general permit for stormwater discharges from construction activities. The general permit, among other things, requires operators to submit a notice of intent (NOI) to be covered under the general permit and to submit a storm water pollution prevention plan (SWPPP). Because NOIs and the SWPPPs are not permits or permit applications, the CWA's public notice and hearing requirements do not apply. Likewise, an environmental group's ESA claims fail because the filing of an NOI and the creation of a SWPPP by a private actor does not constitute "federal action." Hence, the ESA's consultation requirements do not apply. In addition, the group lacked standing to challenge other, nonprocedural aspects of the permit. Last, the court stayed consideration of the oil and gas industry's petition pending a decision from the Fifth Circuit as to whether they are required to obtain a permit in the first instance. Texas Independent Producers & Royalty Owners Ass'n v. Environmental Protection Agency, Nos. 03-3277 et al., 35 ELR 20117 (7th Cir. June 13, 2005) (31 pp.).

CWA, TMDLs:

The Ninth Circuit held that EPA acted within its authority in approving California's TMDL for the Los Angeles River despite EPA's earlier promulgation of its own TMDL when California originally failed to make a timely submission. Several cities filed suit challenging EPA's authority to approve the state's superseding TMDL. But neither the CWA nor its implementing regulations specify or imply that EPA is barred from approving a state submitted TMDL after the EPA has established its own. In fact, states are authorized to submit TMDLs from time to time, and EPA is required either to approve or disapprove the TMDL upon submission by a state. City of Arcadia v. United States Environmental Protection Agency, No. 03-16309, 35 ELR 20122 (9th Cir. June 15, 2005) (8 pp.).

CWA, GREAT LAKES, WATER EFFLUENT TOXICITY LIMITATIONS:

The Sixth Circuit denied a group of agencies' and companies' petitions challenging final decisions by EPA that Indiana's and Ohio's proposed regulatory schemes governing toxic discharges into the Great Lakes were inconsistent with the Agency's Final Water Quality Guidance for the Great Lakes System. Both states argued that their regulatory schemes are at least as protective of the environment as the guidance, if not more so. But given that Indiana's averaging of toxicity will call for fewer water effluent toxicity limitations than a system using maximum values, EPA's conclusion that the scheme would be less protective of the environment was far from being arbitrary or capricious. As for Ohio's scheme, the state's "weight of the evidence" approach to establishing toxicity limits necessarily grants the permitting authority wide discretion not afforded by the guidance. Further, Ohio's scheme would allow certain toxic discharges to go unregulated in instances where no biological data was available, thereby allowing pollution where the guidance would not. And the "scientifically indefensible" exception to the guidance does not apply to either proposal. Northeast Ohio Regional Sewer District v. United States Environmental Protection Agency, Nos. 00-4502, 01-3379, 35 ELR 20125 (6th Cir. June 16, 2005) (8 pp.) (The Water Quality Guidance for the Great Lakes System is available from the ELI Guidance & Policy Collection, Document No. AD01208).

CERCLA, FOREIGN CLAIMANTS:

The Ninth Circuit held that CERCLA does not provide relief to foreign claimants. Consequently, citizens and residents of the Philippines cannot compel the U.S. government to perform a preliminary assessment and cleanup of alleged contamination to a vacated U.S. military base in their country. The statutory presumption against extraterritoriality is consistent with the legislative purpose underlying CERCLA, and there is no evidence that Congress expressly or implicitly intended to authorize suits under CERCLA by foreign claimants allegedly affected by contamination occurring on a U.S. military base located in a foreign country. Moreover, the U.S. government no longer controlled the site when this litigation commenced. Further, this conclusion is consistent with other provisions of CERCLA, its legislative history, and the available academic commentary on the statute’s extraterritorial application. Nor does this conclusion conflict with international law. Arc Ecology v. United States Department of the Air Force, No. 04-15031, 35 ELR 20123 (9th Cir. June 15, 2005) (20 pp.).

FISHERIES, LACEY ACT, FORFEITURE PROCEEDINGS:

The Ninth Circuit held that an importer of King crab may not assert the "innocent owner defense" in forfeiture proceedings. Under the Civil Asset Forfeiture Reform Act, 18 U.S.C. §983, the innocent owner defense cannot be asserted when the property to be forfeited is "contraband or other property that it is illegal to possess." Here, the government alleged that the crab had been taken, possessed, transported, and sold in violation of the fishing and resource protection laws of the Russian Federation. Thus, the crab at issue was imported, received, or acquired in violation of the Lacey Act, 16 U.S.C. §3372(a), and it constitutes "property that it is illegal to possess." United States v. 144,774 Pounds of Blue King Crab, No. 03-36006, 35 ELR 20113 (9th Cir. June 9, 2005) (12 pp.).

FOIA, FLOODPLAINS:

The Tenth Circuit dismissed an environmental group's action to compel the Federal Emergency Management Agency to produce electronic mapping files that identify the location of structures insured under its national flood insurance program. The group sought the information in conjunction with its study of endangered species in floodplain areas. The request, however, is exempt from disclosure under FOIA Exemption 6, which excludes "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The privacy interest at stake in this case, even if de minimis, outweighs the public interest, which is nonexistent, since the group was already possesses the hardcopy files. Forest Guardians v. United States Federal Emergency Management Agency, No. 04-2056, 35 ELR 20120 (10th Cir. June 15, 2005) (15 pp.).

CONSTITUTIONAL LAW, LIVESTOCK RANCHING:

The Ninth Circuit affirmed the dismissal of individuals' challenge to a Montana ballot initiative that regulates the licensing of alternative livestock ranches. The court is precluded from redeciding the individuals' takings claims because a final judgment was previously entered against them in a parallel state court case. And the court upheld the dismissal of their takings claim in federal court. Nor does the ballot initiative constitute impermissible retroactive legislation, violate the substantive due process clause, or place an unconstitutional burden on interstate commerce. Last, the Eleventh Amendment bars the individuals' property rights claims against the state. Spoklie v. Montana, No. 03-35857, 35 ELR 20116 (9th Cir. June 13, 2005) (16 pp.).

PLANT VARIETY PROTECTION ACT (PVPA), CONTRACT LAW:

The Federal Circuit upheld the dismissal of a farmer's claims that a seed company's soybean purchase agreements violated the PVPA's misbranding provision. The farmer wanted to use the seed purchased by the company for future crops. The company then told them that any attempt to save the seed would be a breach of the company's contractual and/or intellectual property rights. The farmer then filed a false marking claim under the PVPA because the seed is not protected by the PVPA. The company, however, did not reference the PVPA, any issued PVPA certificates, or any pending applications for plant variety protection in its agreements. Thus, there was no overt attempt to invoke the protections of federal law for seeds that do not qualify for that protection. Showmaker v. Advanta USA, Inc., No. 04-1502, 35 ELR 20118 (Fed. Cir. June 14, 2005) (7 pp.).

SOLID WASTE, ARRANGER LIABILITY:

The Supreme Court of Texas held that an equipment and chemical supplier who gave advice to a dry cleaning service regarding waste disposal is not subject to "arranger liability" under the Texas Solid Waste Disposal Act (SWDA). In addition to the "totality of the circumstances," the court focused on the degree of control that supplier actually exercised over the method or manner of disposal. Although the presence of authority to make disposal decisions is not necessarily a prerequisite for arranger status, such as when a party physically disposes of solid waste with no authority to do so, it is a key factor when arranger status is based on mere advice regarding disposal that another party is free to ignore. Given the absence of any obligation with regard to waste disposal decisions, the supplier's lack of ownership of or authority over the chemicals that the dry cleaner discarded, and the fact that the dry cleaner never ceded ultimate control over this aspect of its operations, the appellate court erred in holding that the supplier's advice rendered it a "person responsible for solid waste" under the Texas SWDA. In addition, the appellate court erred in holding the supplier liable as an arranger when it poured waste from a vial test down a drain because a fact exists as to whether the domestic sewage exclusion applies. The case was therefore reversed and remanded. R.R. Street & Co. v. Pilgrim Enterprises, Inc., No. 02-0758, 35 ELR 20115 (Tex. June 10, 2005) (41 pp.).

NATIVE AMERICANS, FISHING RIGHTS:

New York's highest court held that the Treaty of Canandaigua of 1794 does not vest members of the Tuscarora Indian Nation with off-reservation fishing rights on former Seneca lands. The case arose after a member of the Tuscarora Nation was charged with violating a fishing regulation. He argued that the regulation did not apply to him because it was not a "reasonable and necessary conservation measure." A state law or regulation may impair an off-reservation treaty fishing right only when (1) it represents a reasonable and necessary conservation measure, and (2) it does not discriminate against the Native American treaty rightholders. But the Tuscarora Nation's fishing rights on the land in question were wholly contingent on continued ownership of the land by the Seneca. When the Seneca divested themselves of their interest in the land by the Treaty of Big Tree of 1797, the Tuscarora right to free use and enjoyment ended. Hence, the fishing regulation may be applied to members of the Tuscarora fishing off-reservation just as it applies to everyone else who ice fishes within the state. Whether the regulation is a reasonable and necessary conservation measure is inapposite. People v. Patterson, No. 91, 35 ELR 20124 (N.Y. June 14, 2005) (11 pp.).

SOIL AND GROUNDWATER CONTAMINATION, CLEANUP COSTS:

A California appellate court held that a jury's award cleanup costs to a property owner for contamination stemming from an oil company's leaking pipeline must be reduced because the oil company did not obtain any benefits from the leak. Not only did the gasoline leakage result in a loss of product for the oil company, but it meant that pipelines either had to be repaired or abandoned and replaced by different pipelines at substantial cost. And the court rejected the notion that "benefits" includes the avoidance of remediation costs. All other aspects of the oil company's appeal, however, lack merit. The property owner had standing to sue, the trial court was not required to join another oil company as a co-plaintiff, and the oil company waived its arguments concerning the sufficiency of the evidence. The property owner's cross-appeal--challenging the trial court's decision to reduce costs and not to impose sanctions--equally lacked merit. Watson Land Co. v. Shell Oil Co., No. B155019, 35 ELR 20114 (Cal. App. 2d Dist. June 9, 2005) (29 pp.).

WATER, LAND USE, WELLS:

A California appellate court upheld a trial court decision denying property owners' petition for a writ of mandate ordering a county to issue permits to construct water wells on their property. The county refused to issue the permits because the owners failed to identify any person holding a "C-57" license pursuant to California Water Code §13750.5. The owners argued that §13750.5 applies only when the property owner contracts with another to construct a water well. Because they plan to construct the wells themselves, they claimed they are exempt from the licensing requirement. The statutory language of the Water Code, however, unambiguously requires a C-57 licensed contractor in all instances. Communications Relay Corp. v. County of Los Angeles, No. B176503, 35 ELR 20119 (Cal. App. 2d Dist. May 23, 2005) (10 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), NEGATIVE DECLARATION:

A California appellate court held that a city's approval of a residential development project and its adoption of a mitigated negative declaration under CEQA was improper. The project may have significant, unmitigated environmental impacts on animal wildlife and traffic. An environmental impact report must therefore be prepared. Mejia v. City of Los Angeles, No. B174453, 35 ELR 20126 (Cal. App. 2d Dist. June 16, 2005) (28 pp.).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA established a manufacturer-run, in-use emissions testing program for 2007 and later model year heavy duty diesel vehicles that will require engine manufacturers to measure exhaust emissions from their diesel engines using portable emissions measurement systems. 70 FR 34626 (6/14/05).
  • EPA determined that the Atlanta area attained the one-hour ozone NAAQS. 70 FR 34362 (6/14/05).
  • EPA concluded that no additional changes are necessary to the final rules promulgated on October 27, 2003, and December 24, 2003, concerning new source review and prevention of significant deterioration and denied requests for reconsideration. 70 FR 33850 (6/10/05).
  • EPA proposed to extend the deferral of the effective date of air quality designations for certain areas of the country that have entered into Early Action Compacts until December 31, 2006. 70 FR 33414 (6/8/05).
  • SIP approvals: Arizona, 70 FR 34371 (cleaner burning gasoline program; Phoenix one-hour ozone plan), and 70 FR 34358 (Maricopa County) (6/14/05); Georgia, 70 FR 34665 (Atlanta area) (6/15/05).
  • SIP proposals: California, 70 FR 34437 (particulate matter emissions) (6/14/05); Pennsylvania (reasonably available control technology), 70 FR 33852 (6/10/05).

FISHERIES:

  • NMFS renewed the affirmative under the Marine Mammal Protection Act (MMPA) that will allow yellowfin tuna harvested in the Eastern Tropical Pacific by Mexican-flag purse seine vessels or purse seine vessels operating under Mexican jurisdiction to be imported into the United States. 70 FR 35227 (7/17/05).
  • NMFS also issued an affirmative finding under the MMPA that will allow yellowfin tuna harvested in the Eastern Tropical Pacific by Spanish-flag purse seine vessels or purse seine vessels operating under Spanish jurisdiction to be imported into the United States. 70 FR 33735 (6/9/05).
  • NMFS completed an updated ESA status review of the Cherry Point stock of Pacific herring and determined that listing is not warranted at this time. 70 FR 33122 (6/7/05).

HAZARDOUS AND SOLID WASTE:

  • EPA amended a variety of testing and monitoring requirements in the RCRA hazardous and non-hazardous solid waste regulations and for certain CAA regulations that relate to hazardous waste combustors; the amendments would allow more flexibility when conducting RCRA-related sampling and analysis. 70 FR 34592 (6/14/05).
  • EPA proposed to add a diisononyl phthalate category to the list of toxic chemicals subject to the reporting requirements under EPCRA §313 and §6607 of the Pollution Prevention Act. 70 FR 34440 (6/14/05).
  • EPA notified the public of a proposed administrative settlement agreement regarding a removal action at the former Family Golf Course in Chicago, Illinois; under the proposed agreement, the settling parties will pay $71,256.08 into a special account. 70 FR 34474 (6/14/05).
  • EPA entered into an agreement under CERCLA §122(h)(1) for recovery of past costs incurred at the Forty-Third Street Bay Drum Superfund site in Tampa, Florida. 70 FR 32772 (6/6/05).
  • EPA authorized changes to Louisiana's hazardous waste program under RCRA. 70 FR 33856 (6/10/05).
  • EPA authorized changes to the Texas hazardous waste program under RCRA. 70 FR 34380 (6/14/05).
  • EPA proposed to grant final authorization to Louisiana's hazardous waste program under RCRA; this rule was also approved as a direct final rule (see above). 70 FR 33878 (6/10/05).

MINING:

  • OSM proposed to approve an amendment to the Virginia regulatory program under SMCRA that would revise the Virginia coal surface mining reclamation regulations. 70 FR 355204 (6/17/05).

NATURAL GAS:

  • FERC reaffirmed its determinations in Order No. 2005, which established requirements governing the conduct of open seasons for proposals to construct Alaska natural gas transportation projects, including procedures for allocations of capacity. 70 FR 35027 (6/16/05).

NATURAL RESOURCES:

  • The U.S. Forest Service clarified regulations concerning when a notice of intent to operate and/or a plan of operation is needed for mining operations on National Forest System lands. 70 FR 32713 (6/6/05).

TOXIC SUBSTANCES:

  • EPA notified the public and requested comment on a waiver request from Illinois from the Agency's asbestos-in-schools program. 70 FR 34477 (6/14/05).

WATER:

  • DOI directed the Bureau of Reclamation to develop additional Colorado River management strategies to address operations of Lake Powell and Lake Mead under low reservoir conditions. 70 FR 34795 (6/15/05).
  • The Bureau of Reclamation announced the availability of water management plans that it has preliminarily approved under the Central Valley Project Improvement Act. 70 FR 34149 (6/13/05).

WILDLIFE:

  • FWS announced the availability of the post-delisting monitoring plan for the Tinian monarch. 70 FR 33523 (6/8/05).
  • FWS designated approximately 8,007 acres of critical habitat in Mono and Inyo Counties, California, for the federally threatened Fish Slough milk-vetch under the ESA. 70 FR 33795 (6/9/05).
  • FWS designated 176 acres of federal land within the Cleveland National Forest at Elsinore Peak in California as critical habitat for the federally endangered Munz's onion. 70 FR 33033 (6/7/05).
  • FWS announced that a draft comprehensive conservation plan and EA for the Northern Mississippi National Wildlife Refuge Complex are available for review and comment. 70 FR 34146 (6/13/05).

WORKER SAFETY:

  • The Mine Safety and Health Administration revised its existing standards addressing diesel particulate matter exposure in underground metal and nonmetal mines. 70 FR 32867 (6/6/05).
  • OSHA is conducting a review of the lead in construction standard pursuant to §610 of the Regulatory Flexibility Act and §5 of Executive Order 12866 on Regulatory Planning and Review. 70 FR 32739 (6/6/05).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Newdunn Associates, LLP, No. 2:01cv508 (E.D. Va. May 20, 2005). A settling CWA defendant that allegedly discharged pollutants into waters of the United States without a permit must restore the impacted areas, perform mitigation, and pay a civil penalty. 70 FR 33760 (6/9/05).
  • United States v. BP America Production Co., No. 05-CV 156J (D. Wyo. June 6, 2005). Settling SDWA and CWA defendants must pay a total of $1,327,446 in penalties and must perform certain injunctive relief to provide a series of supplemental environmental projects for the benefit of the Eastern Shoshone Tribe and the Northern Arapaho Tribe that live at the Wind River Indian Reservation near Fremont County, Wyoming. 70 FR 35117 (6/16/05).
  • United States v. B&B Mines, Inc., No. 05-CV-992-EWN-OES (D. Colo. May 31, 2005). Settling CERCLA defendants must perform certain response actions at the Wellington/Oro French Creek Superfund site in Summit County, Colorado, and preserve it as open space. 70 FR 35118 (6/16/05).

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

THE CONGRESS

CHAMBER ACTION:

  • H.R. 2744 (Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act for FY 2006), which would make appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies for the fiscal year ending September 30, 2006, was passed by the House. 151 Cong. Rec. H2744 (daily ed. June 8, 2005).

COMMITTEE ACTION:

  • S. 10 (energy security), was reported by the Committee on Energy and Natural Resources. H. Rep. No. 109-121, 151 Cong. Rec. S6298 (daily ed. June 9, 2005). The bill would enhance the energy security of the United States.
  • H.R. 38(National Wild and Scenic Rivers System), was reported by the Committee on Resources. H. Rep. No. 109-125, 151 Cong. Rec. H4485 (daily ed. June 14, 2005). The bill would designate a portion of the White Salmon River as a component of the National Wild and Scenic Rivers System.
  • H.R. 539 (National Wilderness Preservation System), was reported by the Committee on Resources. H. Rep. No. 109-126, 151 Cong. Rec. H4485 (daily ed. June 14, 2005). The bill would designate certain National Forest System land in the commonwealth of Puerto Rico as components of the National Wilderness Preservation System; with an amendment.
  • H.R. 599 (restoration), was reported by the Committee on Resources. H. Rep. No. 109-129 Pt. 1, 151 Cong. Rec. H4486 (daily ed. June 14, 2005). The bill would provide a source of funds to carry out restoration activities on federal lands under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture, and for other purposes.
  • H.R. 774 (national parks), was reported by the Committee on Resources. H. Rep. No. 109-108, 151 Cong. Rec. H4294 (daily ed. June 8, 2005). The bill would adjust the boundary of Rocky Mountain National Park in the state of Colorado.
  • H.R. 853 (property restrictions), was reported by the Committee on Resources. H. Rep. No. 109-109, 151 Cong. Rec. H4294 (daily ed. June 8, 2005). The bill would remove certain restrictions on the Mammoth Community Water District's ability to use certain property acquired by that district from the United States.
  • H.R. 975 (public lands), was reported by the Committee on Resources. H. Rep. No. 109-128 Pt. 1, 151 Cong. Rec. H4485 (daily ed. June 14, 2005). The bill would provide consistent enforcement authority to BLM, the National Park Service, FWS, and the Forest Service to respond to violations of regulations regarding the management, use, and protection of public lands under the jurisdiction of these agencies, and for other purposes.
  • H.R. 1428 (National Fish and Wildlife Foundation), was reported by the Committee on Resources. H. Rep. No. 109-112, 151 Cong. Rec. H4295 (daily ed. June 8, 2005). The bill would authorize appropriations for the National Fish and Wildlife Foundation, and for other purposes.

BILLS INTRODUCED:

  • S. 1194 (Obama, D-Ill.) (nuclear regulation), would direct the NRC to establish guidelines and procedures for tracking, controlling, and accounting for individual spent fuel rods and segments. 151 Cong. Rec. S6225 (daily ed. June 8, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 1195 (Stevens, R-Alaska) (offshore aquaculture), would provide the necessary authority to the Secretary of Commerce for the establishment and implementation of a regulatory system for offshore aquaculture in the U.S. exclusive economic zone, and for other purposes. 151 Cong. Rec. S6225 (daily ed. June 8, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1198 (Stabenow, D-Mich.) (Solid Waste Disposal Act (SWDA)), would amend the SWDA to authorize states to restrict receipt of foreign municipal solid waste, to implement the Agreement Concerning the Transboundary Movement of Hazardous Waste between the United States and Canada, and for other purposes. 151 Cong. Rec. S6225 (daily ed. June 8, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 1201 (Cornyn, R-Tex.) (natural gas), would prevent certain discriminatory taxation of natural gas pipeline property. 151 Cong. Rec. S6225 (daily ed. June 8, 2005). The bill was referred to the Committee on Finance.
  • S. 1202 (Allard, R-Colo.) (environmental assistance), would provide environmental assistance to nonfederal interests in the state of Colorado. 151 Cong. Rec. S6225 (daily ed. June 8, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 1203 (Hagel, R-Neb.) (greenhouse gas reduction), would amend the Internal Revenue Code of 1986 to provide tax incentives for the investment in greenhouse gas intensity reduction projects, and for other purposes. 151 Cong. Rec. S6225 (daily ed. June 8, 2005). The bill was referred to the Committee on Finance.
  • S. 1205 (Inhofe, R-Okla.) (carbon dioxide), would require a study of the effects on disadvantaged individuals of actions by utilities intended to reduce carbon dioxide emissions, and for other purposes. 151 Cong. Rec. S6225 (daily ed. June 8, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1208 (Alexander, R-Tenn.) (windmills), would provide for local control for the siting of windmills. 151 Cong. Rec. S6298 (daily ed. June 9, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1210 (Harkin, D-Iowa) (biobased fuels), would enhance the national security of the United States by providing for the research, development, demonstration, administrative support, and market mechanisms for widespread deployment and commercialization of biobased fuels and biobased products. 151 Cong. Rec. S6298 (daily ed. June 9, 2005). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 1215 (Gregg, R-N.H.) (coastal areas), would authorize the acquisition of interests in underdeveloped coastal areas in order better to ensure their protection from development. 151 Cong. Rec. S6299 (daily ed. June 9, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1219 (Burns, R-Mont.) (water rights), would authorize certain tribes in the state of Montana to enter into a lease or other temporary conveyance of water rights to meet the water needs of the Dry Prairie Rural Water Association, Inc. 151 Cong. Rec. S6299 (daily ed. June 9, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1222 (Stevens, R-Ark.) (Oil Spill Liability Trust Fund), would amend the Internal Revenue Code of 1986 to reinstate the Oil Spill Liability Trust Fund tax and to maintain a balance of $3 billion in the Oil Spill Liability Trust Fund. 151 Cong. Rec. S6299 (daily ed. June 9, 2005). The bill was referred to the Committee on Finance.
  • S. 1224 (Boxer, D-Cal.) (oceans), would protect the oceans. 151 Cong. Rec. S6299 (daily ed. June 9, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1232 (Lautenberg, D-N.J.) (CAA), would amend the CAA to increase production and use of renewable fuel and to increase the energy independence of the United States, and for other purposes. 151 Cong. Rec. S6481 (daily ed. June 14, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 1238 (Feinstein, D-Cal.) (Public Lands Corps Act), would amend the Public Lands Corps Act of 1993 to provide for the conduct of projects that protect forests, and for other purposes. 151 Cong. Rec. S6481 (daily ed. June 14, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1250 (Reid, D-Nev.) (Great Ape Conservation Act), would reauthorize the Great Ape Conservation Act of 2000. (151 Cong. Rec. S6658 (daily ed. June 15, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 1251 (Allard, R-Colo.) (natural resource damage settlement), would authorize the Secretary of Energy to purchase certain essential mineral rights as part of a comprehensive natural resource damage settlement. 151 Cong. Rec. S6658 (daily ed. June 15, 2005). The bill was referred to the Committee on Armed Services.
  • H.R. 2779(Herger, R-Cal.)(ESA), would amend the ESA to enable federal agencies responsible for the preservation of threatened species and endangered species to rescue and relocate members of any of those species that would be taken in the course of certain reconstruction, maintenance, or repair of federal or nonfederal manmade flood control levees. 151 Cong. Rec. H4187 (daily ed. June 7, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2828 (Inslee, D-Wash.) (energy), would ensure that the United States leads the world in developing and manufacturing next generation energy technologies to grow the economy of the United States, to create new highly trained, highly skilled American jobs, to eliminate American overdependence on foreign oil, and to address the threat of global warming. 151 Cong. Rec. H4354 (daily ed. June 9, 2005). The bill was referred to the Committees on Energy and Commerce; Science, Ways, and Means; Financial Services; Transportation and Infrastructure; Education and the Workforce; Government Reform; and Agriculture.
  • H.R. 2843 (Green, D-Tex.) (hazardous materials transport), would prohibit the use of remote control locomotives to carry hazardous materials. 151 Cong. Rec. H4355 (daily ed. June 9, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 2846 (LoBiondo, R-N.J.) (coastal restoration), would ensure the continuation and improvement of coastal restoration. 151 Cong. Rec. H4355 (daily ed. June 9, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 2875 (Walden, R-Or.) (forests), would amend the Public Lands Corps Act of 1993 to provide for the conduct of projects that protect forests. 151 Cong. Rec. H4485 (daily ed. June 14, 2005). The bill was referred to the Committees on Resources; Agriculture; and Education and the Workforce.
  • H.R. 2895 (Lowey, D-N.Y.) (noise control), would reestablish the Office of Noise Abatement and Control within EPA. 151 Cong. Rec. H4485 (daily ed. June 14, 2005). The bill was referred to the Committee on Energy and Commerce and to the Committee on Transportation and Infrastructure.
  • H.R. 2899 (Moore, D-Wis.) (fuel), would amend the Internal Revenue Code of 1986 to extend and modify the credit for producing fuel from a nonconventional source. 151 Cong. Rec. H4485 (daily ed. June 14, 2005). The bill was referred to the Committee on Ways and Means.
  • H.R. 2903 (Baker, R-La.) (coastal areas), would provide protection, conservation, and restoration of the wetlands, estuaries, barrier islands, and related land and features in the Louisiana coastal area. 151 Cong. Rec. H4560 (daily ed. June 15, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 2910 (Bordallo, D-Guam) (radiation exposure compensation), would amend the Radiation Exposure Compensation Act to include the Territory of Guam in the list of affected areas with respect to which claims relating to atmospheric nuclear testing shall be allowed. 151 Cong. Rec. H4560 (daily ed. June 15, 2005). The bill was referred to the Committee on the Judiciary.
  • H.R. 2925 (Hinojosa, D-Tex.) (drought relief), would amend the Reclamation States Emergency Drought Relief Act of 1991 to extend the authority for drought assistance. 151 Cong. Rec. H4560 (daily ed. June 15, 2005). The bill was referred to the Committee on Resources.

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

IN THE STATES

New State Development Highlights:

  • The Florida Department of Environmental Protection is holding a public meeting to discuss implementation of the statewide invasive species management plan.
  • The Iowa Environmental Protection Commission is terminating its proposal to amend Chapter 65, "Animal Feeding Operations," Iowa Administrative Code. The proposed amendments were primarily intended to conform Iowa's regulations to amended regulations adopted by EPA, but a decision by the U.S. Court of Appeals for the Second Circuit, on February 28, 2005, vacated portions of EPA's amended regulations. As a result, the Department must significantly modify its proposed amendments to conform with the remaining EPA regulations.
  • The Michigan Department of Environmental Quality intends to revise and develop new Air Pollution Control Rules to comply with the EPA Clean Air Interstate Rule SIP Call. The proposed amendments will revise Michigan's Part 8, oxides of nitrogen (NOx), Rules 802 through 816; propose new NOx Rules 820 through 835; and propose new sulfur dioxide Rules 420 through 435.
  • The Missouri Air Conservation Commission is proposing a rule that provides procedures for collecting, recording, and submitting emission data and process information so that the state can calculate emissions for the purpose of state air resource planning.
  • The Utah Department of Environmental Quality is proposing a variety of drinking water quality rule amendments.

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

EUROPEAN COURT DECIDES ENVIRONMENTAL CASE IN RUSSIA:

  • The LondonTimes reported on June 10, 2005, that the European Court of Human Rights, in a landmark case, ruled in favor of a Russian woman suing the government for not relocating her from her apartment, which is polluted by a Russian steel plant. Nadezhda Fadeyeva won €6,000 (£4,000) plus legal expenses, and the Court ordered the government to improve her situation. A representative from the Russian human rights group Memorial, which represented Fadeyeva, explained, “Lots of people live in a comparable situation to Mrs Fadeyeva. Now they have a tool to fight against the companies that are polluting the air, water or soil around them.” See http://www.timesonline.co.uk/printFriendly/0,,1-3-1648257-3,00.html

OPPONENTS OF DISCHARGES TO CANADA LOOK TO CWA:

  • North Dakota is planning a flood control project that would redirect water from North Dakota’s Devil’s Lake into Manitoba’s Sheyenne River. The project faces opposition from Great Lakes states, the Canadian government, and several environmental groups, and InsideEPA reports that these opponents may have a new tool to oppose the project. The U.S. District Court for the Northern District of California ruled March 30 in Northwest Environmental Advocates v. EPA, 35 ELR 20075, that invasive species may be considered a pollutant. Because the proposed project will release invasives into Canada, opponents could assert that the diversion would violate the project's CWA permit. Opponents are also seeking review of the project by the International Joint Commission and plan to submit a complaint to the Inter-American Commission of Human Rights. See http://press.arrivenet.com/bus/article.php/648091.html

ITALY JOINS COUNTDOWN 2010 INITIATIVE:

  • On June 13, 2005, Italy formally agreed to join the Countdown 2010 initiative at the Convention on Biological Diversity Ad Hoc Open Ended Working Group on Protected Areas meeting in Montecatini, Italy. The Countdown aims to motivate all European governments, at all scales, to take the necessary action to halt the loss of biodiversity by 2010. See http://www.iucn.org/en/news/archive/2005/06/pr_countdown13june_en.pdf

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

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