Jump to Content

Weekly Update Volume 35, Issue 20

07/18/2005

LITIGATION

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


ROADLESS AREAS, MOOTNESS:

The Tenth Circuit dismissed as moot environmental organizations' appeal of a district court decision holding that the roadless rule, which prohibits construction in inventoried roadless areas on National Forest System lands, violated NEPA and the Wilderness Act. During the pendency of the appeal, the Forest Service adopted a final rule that replaces the roadless rule, thereby rendering the appeal moot. The challenged portions of the rule no longer exist, and the alleged procedural deficiencies of the roadless rule are now irrelevant because the replacement rule was promulgated in a new and separate rulemaking process. Wyoming v. United States Department of Agriculture, No. 03-8058, 35 ELR 20144 (10th Cir. July 12, 2005) (13 pp.).


ESA, APA, JUDICIAL REVIEW:

The D.C. Circuit affirmed the dismissal of a home builder association's claims that the FWS violated the ESA and APA in its promulgation of survey protocols to detect the endangered quino checkerspot butterfly in southern California. The association argued that the FWS violated the ESA's and APA's notice and comment provisions in promulgating the protocols. The protocols, however, do not constitute final agency action. Although they mark the consummation of the decisionmaking process, the protocols do not impose legal obligations. Thus, they are not subject to judicial review and the association's claims were properly dismissed for lack of jurisdiction. National Ass'n of Home Builders v. Norton, No. 04-5048, 35 ELR 20143 (D.C. Cir. July 8, 2005) (16 pp.).


ESA, CONSULTATION REQUIREMENTS:

The Ninth Circuit held that the U.S. Army Corps of Engineers' decisions to forgo ESA §7 consultations based on its determination that two residential developments in Arizona would have no effect on the cactus ferruginous pygmy-owl was not arbitrary and capricious. Federal agencies need only initiate consultation with the FWS after determining that its actions will affect a listed species or its habitat. Although the FWS can request the action agency to enter into formal consultation, it cannot force the action agency to enter into consultation after such a request. And the Corps' no-effect determinations rested on the firm foundation that no pygmy-owls had been found to live within either project area. Defenders of Wildlife v. Flowers, Nos. 03-16884, -16887, 35 ELR 20145 (9th Cir. July 12, 2005) (17 pp.).


CONSTITUTIONAL LAW, STANDING, EQUAL PROTECTION:

The Tenth Circuit dismissed a Florida resident's claims that three Wyoming statutes unconstitutionally limit hunting opportunities for nonresidents. The individual lacks standing to challenge the "guide statute" that creates two classes of hunters--resident and nonresident--for wilderness hunting because he failed to demonstrate a cognizable injury in fact. And the "fee statute," which assesses much higher hunting license fees on out-of-state residents, and the "quota statute," which reserves to Wyoming residents a majority of the available licenses for exotic game, are rationally related to a number of legitimate ends and, therefore, do not violate the Fourteenth Amendment's Equal Protection Clause. Schutz v. Thorne, No. 03-8051, 35 ELR 20146 (10th Cir. July 12, 2005) (22 pp.).


NATIVE AMERICANS, INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT (ISDEAA):

The Ninth Circuit held that a Native American tribe is ineligible for funding under the mandatory contracting provisions of the ISDEAA to implement a salmon and steelhead restoration project in the Trinity River basin. The restoration projects are designed to benefit the public as a whole rather than the tribe in particular. Thus, the ISDEAA's mandatory contracting provisions do not apply. Nor did the Bureau of Reclamation violate its trust obligation to the Tribe by determining that contracts for the restoration work itself should be negotiated under the discretionary, rather than the mandatory, provisions of the ISDEAA. Hoopa Valley Indian Tribe v. Ryan, No. 03-16940, 35 ELR 20142 (9th Cir. July 8, 2005) (14 pp.).


CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), HISTORIC PRESERVATION:

A California appellate court held that a city cannot disregard the mitigating conditions it placed on the demolition of certain buildings in its approval of a redevelopment project without conducting a supplemental CEQA review. The city claimed that the demolition at issue was not part of the redevelopment project, yet it is beyond dispute that the demolition of the buildings at issue have always been part of the redevelopment plan. Having placed these conditions on the demolition segment of the redevelopment project, the city cannot simply ignore them. The city must therefore vacate and set aside its approval of any application for a demolition permit that does not comply with those conditions until and unless those conditions are modified or deleted following a proper CEQA review. However, the court rejected claims that the original environmental impact report is inadequate in its discussion of the historical and cultural significance of the existing buildings. Lincoln Place Tenants Ass'n v. City of Los Angeles, Nos. B172979, B174028, 35 ELR 20147 (Cal. App. 2d Dist. July 13, 2005) (29 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 corrected, amended, and revised certain provisions of the Highway Diesel Rule, adopted on January 18, 2001 (66 FR 5002), and the Nonroad Diesel Rule, adopted on June 29, 2004 (69 FR 38958). 70 FR 40899 (7/15/05).

  • EPA proposed to correct, amend, and revise certain provisions of the Highway Diesel Rule and the Nonroad Diesel Rule; this rule was approved as a direct final rule (see above). 70 FR 40951 (7/15/05).

  • EPA amended NESHAPs for primary copper smelting to correct the monitoring requirements for control systems other than baghouses and venturi wet scrubbers. 70 FR 40674 (7/14/05).

  • EPA revised the test procedures of various EPA programs for controlling highway and nonroad engine emissions in order to create unified testing requirements for all engines and to streamline laboratory efforts for EPA and industry. 70 FR 40419 (7/13/05).

  • EPA approved Virginia's small municipal waste combustor plan for implementing emission guideline requirements under the CAA. 70 FR 39931 (7/12/05).

  • EPA proposed to approve Virginia's small municipal waste combustor plan that would implement emission guideline requirements under the CAA; this rule was also approved as a direct final rule (see above). 70 FR 39975 (7/12/05).

  • EPA proposed performance standards for stationary compression ignition internal combustion engines; the performance standards would require all new, modified, and reconstructed stationary compression engines to use the best demonstrated system of continuous emission reduction that considers costs, non-air quality health, and environmental and energy impacts. 70 FR 39904 (7/11/05).

  • SIP Approvals: Idaho (open burning crop residue disposal requirements), 70 FR 39662 (7/11/05). Missouri (nitrogen oxide), 70 FR 40193 (7/13/05).

  • SIP Proposal: Maryland (attainment plan), 70 FR 40949 (7/15/05).

HAZARDOUS AND SOLID WASTE:



  • EPA and various California state regulatory agencies entered into a proposed administrative de minimis settlement with 257 settling parties in connection with the Casmalia Disposal site in Santa Barbara County, California; the settling parties will pay over $4,300,000 to EPA. 70 FR 41011 (7/15/05).

  • EPA entered into a proposed de minimis settlement with 27 settling parties concerning the Casmalia Disposal site in Santa Barbara County, California; the settlement would resolve liability for response costs incurred or to be incurred at the site and for potential natural resource damage claims. 70 FR 41011 (7/15/05).

  • EPA simplified the toxics release inventory requirements to improve reporting efficiency and effectiveness, reduce burden, and promote data reliability and consistency across Agency programs. 70 FR 39949 (7/12/05).

PESTICIDES:



  • EPA proposed regulations that would ensure continued review of pesticides using procedures that provide for public participation and transparency in an efficient manner. 70 FR 40276 (7/13/05).

  • EPA announced the availability of the human health risk assessment for the soil fumigant 1,3-Dichloropropene (1,3-D), which is commonly referred to as telone. 70 FR 40345 (7/13/05).

  • EPA announced the availability of the human health risk assessment and related documents for the pesticide dazomet. 70 FR 40341 (7/13/05).

  • EPA announced the availability of the human health risk assessment and related documents for the pesticide metam sodium. 70 FR 40336 (7/13/05).

  • EPA announced the availability of the human health and environmental fate and effects risk assessments and related documents for the fumigant methyl bromide. 70 FR 40339 (7/13/05).

  • EPA announced the availability of the human health and environmental fate and effects risk assessments and related documents for the chlorinated triazine pesticide simazine. 70 FR 40348 (7/13/05).

  • EPA announced the availability of the tolerance reassessment decision for the pesticide cyhexatin. 70 FR 40342 (7/13/05).

  • EPA entered into a proposed settlement agreement that would establish a series of deadlines for the Agency to make "effects determinations" on certain pesticides to determine their potential effects on the Barton Springs Salamander or its designated critical habitat. 70 FR 40025 (7/12/05).

WATER:



  • EPA tentatively approved revisions to Pennsylvania's public water system supervision program; the revisions would improve the control of microbial pathogens in drinking water, including the protozoan Cryptosporidium, and would improve the filter backwash recycling rule. 70 FR 40352 (7/13/05).

  • EPA proposed to approve North Dakota's revisions to its Public Water System Supervision Primacy Program after the state adopted federal regulations for the arsenic rule and the long-term 1 enhanced surface water treatment rule. 70 FR 39774 (7/11/05).

WILDLIFE:



  • FWS announced the availability of the final comprehensive conservation plan and EIS for Maine Coastal Islands National Wildlife Refuge. 70 FR 41055 (7/15/05).

  • FWS announced its intention to prepare a comprehensive conservation plan and EA for Upper Ouachita National Wildlife Refuge pursuant to NEPA. 70 FR 40397 (7/13/05).

  • FWS announced a 90-day finding on a petition to list a distinct population segment of the roundtail chub in the Lower Colorado River basin and to list the headwater chub as endangered or threatened under the ESA. 70 FR 39986 (7/12/05).

  • FWS proposed to add six refuges to the list of areas open for hunting and/or sport fishing programs, to increase the activities available at seven other refuges, and to implement refuge-specific regulations for those activities. 70 FR 40154 (7/12/05).

  • FWS issued 14 permits in response to applications for the incidental take of threatened and endangered species between April 21, 2004, and May 31, 2005, in California, Hawaii, Idaho, Nevada, Oregon, and Washington. 70 FR 39786 (7/11/05).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Beckman Coulter, Inc. No. 98-CV-4812 (D.N.J. June 24, 2005). Settling CERCLA defendants must pay $12,500,000, plus interest, to reimburse the United States and New Jersey for a portion of the costs incurred at the Combe Fill South Landfill Superfund site in Chester and Washington Townships, New Jersey; the settling parties must also pay any money remaining in their litigation escrow account. 70 FR 40733 (7/14/05).

  • United States v. Estate of Jones, No. 1:05cv770 (E.D. Va. June 30, 2005). A settling CERCLA defendant must pay a total of $856,000 in reimbursement of past response costs relating to the Sam Jones Junkyard Site in Gainesville, Virginia; the Department of the Army and the General Services Administration must also pay a total of $67,000 in reimbursement of past response costs. 70 FR 40734 (7/14/05).

  • In re Kaiser Aluminum Corp., No. 02-10429 (Bankr. D. Del. June 30, 2005). Settling CERCLA defendants must pay $68,292 to resolve claims relating to the Mica Landfill site in Spokane County, Washington. 70 FR 40734 (7/14/05).

  • United States v. Volkswagen of America, Inc., No. 1:05-cv-01193-GK (D.D.C. June 15, 2005). A settling CAA defendant must pay a $1,100,000 civil penalty and improve its emission defect investigation and reporting system of the 1999-2001 model year Golf, Jetta, and New Beetle light-duty vehicles. 70 FR 40735 (7/14/05).

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


THE CONGRESS

COMMITTEE ACTION:



  • S. 364 (coastal and ocean mapping), was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 109-102, 151 Cong. Rec. S8217 (daily ed. July 13, 2005). The bill would establish a program within NOAA to integrate federal coastal and ocean mapping activities.

BILLS INTRODUCED:



  • S. 1381 (Corzine, D-N.J.) (nuclear facility licensing), would require the NRC to consider certain criteria in relicensing nuclear facilities and to provide for an independent assessment of the Oyster Creek Nuclear Generating Station by the National Academy of Sciences before any relicensing of that facility. 151 Cong. Rec. S8134 (daily ed. July 12, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1387 (Chafee, R-R.I.) (cultural heritage and land management plan), would provide for an update of the Cultural Heritage and Land Management Plan for the John H. Chafee Blackstone River Valley National Heritage Corridor to extend the authority of the John H. Chafee Blackstone River Valley National Heritage Corridor Commission, to authorize the undertaking of a special resource study of sites and landscape features within the Corridor, and to authorize additional appropriations for the Corridor. 151 Cong. Rec. S8217 (daily ed. July 13, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1390 (Inouye, D-Haw.) (coral reef conservation), would reauthorize the Coral Reef Conservation Act of 2000. 151 Cong. Rec. S8217 (daily ed. July 13, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1391 (Lautenberg, D-N.J.) (TSCA), would amend TSCA to reduce the exposure of children, workers, and consumers to toxic chemical substances. 151 Cong. Rec. S8217 (daily ed. July 13, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1400 (Chafee, R-R.I.) (water and wastewater), would amend the Federal Water Pollution Control Act and the SDWA to improve water and wastewater infrastructure in the United States. 151 Cong. Rec. S3801 (daily ed. July 14, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1402 (DeWine, R-Ohio) (importation of carp), would amend 18 U.S.C. §42 to prohibit the importation and shipment of certain species of carp. 151 Cong. Rec. S3801 (daily ed. July 14, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1409 (Murkowski, R-Ark.) (SDWA), would amend the SDWA Amendments of 1996 to modify the grant program to improve sanitation in rural and native villages in the state of Alaska. 151 Cong. Rec. S3802 (daily ed. July 14, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1410 (Chafee, R-R.I.) (migratory birds), would reauthorize the Neotropical Migratory Bird Conservation Act. 151 Cong. Rec. S3802 (daily ed. July 14, 2005). The bill was referred to the Committee on Environment and Public Works.

  • H.R. 3251 (Harris, R-Fla.) (offshore drilling), would permanently prohibit the conduct of offshore drilling on the outer continental shelf off the state of Florida. 151 Cong. Rec. H5750 (daily ed. July 12, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3253 (Menendez, D-N.J.) (air quality), would study and improve the air quality inside school buses. 151 Cong. Rec. H5750 (daily ed. July 12, 2005). The bill was referred to the Committee on Energy and Commerce, and to the Committee on Education and the Workforce.

  • H.R. 3263 (Wamp, R-Tenn.) (energy), would limit the impact of growing energy use on the economy, environment, and national security of the United States through reductions in energy demand. 151 Cong. Rec. H5800 (daily ed. July 13, 2005). The bill was referred to the Committee on Energy and Commerce, the Committee on Ways and Means, and the Committee on Financial Services.

  • H.R. 3274 (Saxton, R-N.J.) (CAA), would amend the Internal Revenue Code of 1986 to extend the deduction for qualified clean-fuel vehicle refueling property and amend the CAA to make ethanol fuels more available to motorists. 151 Cong. Rec. H5800 (daily ed. July 13, 2005). The bill was referred to the Committee on Ways and Means, and to the Committee on Energy and Commerce.

  • H.R. 3278 (Allen, D-Or.) (fishing quotas), would amend the Magnuson-Stevens Fishery Conservation and Management Act to establish requirements for fishing quota systems. 151 Cong. Rec. H5912 (daily ed. July 14, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3280 (Boyd, D-Fla.) (coastal barriers), would exempt certain coastal barrier areas in Florida from limitations on federal expenditures and financial assistance under the Coastal Barriers Resources Act and from limitations on flood insurance coverage under the National Flood Insurance Act of 1968. 151 Cong. Rec. H5912 (daily ed. July 14, 2005). The bill was referred to the Committee on Resources and the Committee on Financial Services.

  • H.R. 3281 (Kanjorski, D-Pa.) (wildlife refuge), would direct the Secretary of the Interior to establish the Cherry Valley National Wildlife Refuge in northeastern Pennsylvania. 151 Cong. Rec. H5912 (daily ed. July 14, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3300 (Graves, R-Mo.) (ESA), would amend the ESA to authorize species recovery agreements under which the federal government is obligated to make annual payments or provide other compensation for activities that improve the recovery of one or more species listed under that Act. 151 Cong. Rec. H5913 (daily ed. July 14, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3314 (Stupak, D-Mich.) (national forests), would direct the Secretary of Agriculture to transfer certain land within the Ottawa National Forest to the Lac Vieux Desert Band of Lake Superior Chippewa Indians. 151 Cong. Rec. H5913 (daily ed. July 14, 2005). The bill was referred to the Committee on Agriculture.

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


IN THE STATES

New State Development Highlights:



  • The Maine Department of Marine Resources is proposing a 10- and 45-day season for sea urchin harvesting in 2005-2006 because of continuing stock declines.

  • The New Hampshire Department of Environmental Services is proposing changes to the Ambient Groundwater Quality Standards, Env-Ws 1403.05, to add new health-based standards for various contaminants, establish consistency with the most recent health information, and make requirements consistent with the federal SDWA.

  • The Virginia Air Pollution Control Board is proposing a revision to its regulations for the control and abatement of air pollution to establish a new source review permit program.

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

ECUADORIAN TRIBE DEMANDS A HALT TO OIL DEVELOPMENT:



  • The Ecuadorian government will investigate the impact of planned oil development in Yasuni National Park in response to demands from the indigenous Huaorani population. The Huaorani requested an end to road building and oil development in the park, which overlaps with their traditional territory, and a transparent audit of the impacts from the planned road, pipeline, drilling platforms, and processing plant. See http://www.ens-newswire.com/ens/jul2005/2005-07-14-02.asp

EU WARNS MEMBER STATES TO COMPLY WITH ENVIRONMENTAL RULES:



  • The European Commission issued its final warning on July 11 against 12 countries for failing to conduct environmental impact assessments for major projects, as required by EU law. The Commission also warned eight countries to comply with laws on the proper disposal of electrical waste, such as old computers. If the countries do not comply with the warnings, they may be facing the European Court of Justice, which can issue fines for breaches of EU directives. See http://news.bbc.co.uk/2/hi/europe/4672997.stm

INDONESIA FILES CHARGES AGAINST A U.S. MINING COMPANY AND EXECUTIVE:



  • Greenwire reports that Indonesia filed charges on July 11 against Newmont Mining Corp. and its top U.S. executive in the country, alleging that Newmont's Minahasa gold mine on Sulawesi Island polluted a bay, sickening villagers and contaminating fish. Indonesian officials state that the executive could face a $78,000 fine and 15 years in jail. Newmont, the world's largest gold producer, denied the charges. See http://www.rockymountainnews.com/drmn/business/article/0,1299,DRMN_4_3919802,00.html

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


Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to orders@eli.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


ELR STAFF

Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Caroline Hermann, Associate Editor
Allison Watkins, Contributing Editor
Carolyn Fischer, Editorial Associate
William J. Straub, Desktop Publisher
April King, Editorial Assistant
Rachel Harris, Editorial Assistant
Erin Webreck, Publications Intern