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Weekly Update Volume 35, Issue 4

02/07/2005

LITIGATION

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

AGRICULTURE, ORGANIC FOODS PRODUCTION ACT:

The First Circuit held that USDA regulations that permit synthetic substances to be used in processing organic foods are contrary to the plain language of the Organic Foods Production Act. Similarly, provisions creating an exception to the Act's 12-month requirement for dairy herds being converted to organic production violates the Act. And the court remanded the first count of the challenger's complaint ordering the lower court to clarify that 7 CFR §205.606 does not establish a blanket exemption to the national list of approved substances requirements for nonorganic agricultural products that are not commercially available. All other aspects of the regulations, however, were upheld. Harvey v. Veneman, No. 04-1379, 35 ELR 20022 (1st Cir. Jan. 26, 2005) (36 pp.).

WETLANDS, SWAMPBUSTER LEGISLATION, SUBSIDIES:

The Seventh Circuit held that a farmer who converted wetlands on his land to agricultural use was ineligible for federal agricultural subsidies under the swampbuster legislation. An exception to this legislation allows subsidies for wetlands that had been drained and farmed prior to December 23, 1985, reverted to wetland status after December 23, 1985, and then restored again to agricultural use. But because the farmer's land had reverted to wetland status prior to December 23, 1985, he was ineligible for the exception and lost all federal agricultural subsidies when he restored his land to agricultural use. And despite the farmer's arguments to the contrary, Congress does not lack authority to make agricultural subsidies contingent on preserving wetlands. Horn Farms, Inc. v. Johanns, Nos. 04-2948, -2909, 35 ELR 20025 (7th Cir. Feb. 2, 2005) (10 pp.).

ATTORNEYS FEES, "EQUITABLE":

The Eighth Circuit denied an environmental group's request for attorneys fees in an action stemming from violations of federal environmental laws because the group planned on keeping the money for itself. The group was originally represented by one law firm, but when the attorney representing them moved to another law firm, the group switched to that law firm as well. The case eventually settled, but before the settlement was reached and while the parties were negotiating, the original law firm, without the group's knowledge, directly negotiated with the defendants and came to an agreement by which the defendants paid a discounted amount of the firm's fees for work on the underlying actions. The group now seeks attorneys fees for work performed by the original firm, but rather than using the money to pay the attorneys who earned the fees and who had declared themselves satisfied with the fees already received, the group planned to keep the money for itself. Because this would be inequitable, the lower court properly denied the group's request for additional fees. Citizens Legal Environmental Action Network, Inc. v. Premium Standard Farms, Inc., No. 04-1748, 35 ELR 20023 (8th Cir. Feb. 1, 2005) (7 pp.).

ENERGY POLICY AND CONSERVATION ACT, PREEMPTION:

The Ninth Circuit held that the Energy Policy and Conservation Act does not preempt California appliance regulations requiring appliance manufacturers to submit data about their appliances, mark their appliances with brand name and performance information, and be subjected to compliance and enforcement rules. There is no indication that Congress intended to preempt state regulations requiring the submission of data to state government agencies. Nor are the marking requirements contained in the state regulations preempted by the Act. And if the state's substantive regulations are not preempted by federal law, then the relevant compliance and enforcement provisions are also not preempted. Air Conditioning & Refrigeration Institute v. Energy Resources Conservation & Development Commission, No. 03-16621, 35 ELR 20026 (9th Cir. Feb. 3, 2005) (22 pp.).

PROPERTY LAW, PRIVATE EASEMENTS:

A California appellate court affirmed a lower court decision enjoining defendant property owners from maintaining gates across a private roadway easement owned by plaintiff property owners. The lower court did not err in failing to consider whether the gates unreasonably interfered with the plaintiffs' use of the easement. The indenture conveying the easement expressly stipulates that the roadway is to be "kept open" and "wholly unobstructed." And there is no question that under the circumstances of this case, a locked or closed gate constitutes an obstruction in that it delays, impedes, and hinders the plaintiffs' use and enjoyment of their easement. Van Klompenburg v. Berghold, No. C045417, 35 ELR 20024 (Cal. App. 3d Dist. Jan. 31, 2005) (7 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 requested comment on two issues: whether the §185 fee provisions apply once the one-hour NAAQS is revoked, and the timing for determining what is an applicable requirement for purposes of anti-backsliding once the one-hour NAAQS is revoked; these issues were raised in a petition for reconsideration action of EPA's rule to implement the eight-hour ozone NAAQS. 70 FR 5600 (2/3/05).
  • EPA approved the adequacy of the motor vehicle emissions budgets in the Metro-East St. Louis, Illinois, one-hour ozone maintenance plan allowing Metro-East St. Louis to use the budget for future conformity determinations. 70 FR 5440 (2/2/05).
  • EPA offered animal feeding operations (AFOs) an opportunity to sign a voluntary air compliance agreement allowing the AFOs to share responsibility for funding of a nationwide emissions monitoring study leading to the development of techniques for emissions estimates and determination of and compliance to regulatory responsibilities. 70 FR 4977 (1/31/05).
  • EPA found that the motor vehicle emissions budget contained in the submitted Spokane, Washington, Carbon Monoxide Maintenance Plan and Redesignation Request is adequate for transportation conformity purposes. 70 FR 4119 (1/29/05).

FISHERIES:

  • NMFS announced the quota and other limitations to govern the harvest of bowhead whales by members of the Alaska Eskimo Whaling Commission for aboriginal subsistence whaling; the quota for 2005 is 75 bowhead whales struck. 70 FR 5612 (2/3/05).

NATURAL RESOURCES:

  • The USDA and the DOD signed a joint order that authorized the transfer of administrative jurisdiction from the USDA to the DOD of approximately 480 acres located in Nachitoches Parish, Louisiana; the joint order also transfers about 481.33 acres in Vernon Parish, Louisiana, from the DOD to the USDA. 70 FR 4090 (1/28/05).

PESTICIDES:

  • EPA drafted and forwarded to the Secretary of Agriculture a proposed rule that would establish procedures for conducting periodic reviews of pesticide registrations. 70 FR 5401 (2/2/05).
  • EPA announced the availability of its tolerance reassessment decision for the pesticide of methyl eugenol and asked for public comment on this document, related risk assessments, and other support documents so that EPA can ensure that all pesticides meet current health and food safety standards. 70 FR 5442 (2/2/05).

SOLID AND HAZARDOUS WASTES:

  • EPA denied the petition objecting to Louisiana state operating permits for the Light Hydrocarbon III and Cellulose plants at the Dow Chemical Company's facilities located in Plaquemine, Iberville Parish, Louisiana. 70 FR 6003 (2/4/05).
  • EPA deleted the Southern Maryland Wood Treating Superfund site from the NPL because EPA determined all appropriate response actions under CERCLA were completed. 70 FR 5932 (2/4/05).
  • EPA authorized changes to Georgia's hazardous waste program under RCRA after EPA determined that the changes satisfy all the requirements needed to qualify for final authorization. 70 FR 3896 (1/27/05).
  • The Research and Special Programs Administration determined that a number of DOT specification compressed gas cylinders seized by the Maine Department of Environmental Protection may have been marked as requalified in accordance with the hazardous materials regulations when the cylinders were not subjected to testing; thus, cylinders with compromised structural integrity may have been returned to service when they should have been condemned. 70 FR 3977 (1/27/05).

WATER QUALITY:

  • EPA proposed to revise the NPDES permit program regulations to include a statement addressing two circumstances for which it has determined that the application of a pesticide to waters of the United States consistent with the requirements of FIFRA does not constitute the discharge of a pollutant that requires a NPDES permit under the CWA. 70 FR 5100 (2/1/05).

WILDLIFE:

  • FWS announced a draft comprehensive conservation plan for Bon Secour National Wildlife Refuge, which includes proposals to identify, conserve, manage, enhance, and restore populations of native fish and wildlife species of coastal Alabama; restore natural diversity, abundance, and ecological functions of refuge habitats and associated plant communities; and conserve archaeological and natural resources on the refuge and promote conservation through interagency and private landowner cooperation, partnerships, and land protection programs. 70 FR 6033 (2/4/05).
  • FWS notified the public that it will gather the necessary information to prepare Comprehensive Conservation Plans describing how FWS plans to manage a few National Wildlife Refuges in Minnesota and Wisconsin for the next 15 years. 70 FR 5694 (2/3/05).
  • FWS proposed to delist the Preble's meadow jumping mouse after reviewing the best scientific and commercial information indicating that the mouse is not a discrete taxonomic entity, does not meet the definition of a subspecies, and was listed in error. 70 FR 5411 (2/2/05).
  • FWS announced its five-year review of seven listed threatened or endangered species (the lesser long-nosed bat, the black-capped vireo, the Yuma clapper rail, the Pima pineapple cactus, the gypsum wild-buckwheat, the Mesa Verde cactus, and the Zuni fleabane) to ensure that classification of these species as threatened or endangered on the ESA list is accurate. 70 FR 5463 (2/2/05).
  • FWS proposed listing the Salt Creek tiger beetle as endangered since the only three remaining populations of the six known ones are small and highly threatened by further habitat destruction, degradation, and fragmentation. 70 FR 5117 (2/1/05).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Aetna Inc., No. 97-1863 (W.D. Pa. Jan. 6, 2005). Settling CERCLA defendants must pay proportionate shares of all past and future response costs incurred and to be incurred at the Breslub Penn Superfund site totaling $890,000; federal agencies that had wastes treated and/or disposed of at the site have to pay a proportional share of the same response costs. 70 FR 5697 (2/3/05).

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

THE CONGRESS

BILLS INTRODUCED:

  • S. 203 (Thomas, R-Wyo.) (mineral royalties), would reduce temporarily the royalty required to be paid for sodium produced on federal lands. 51 Cong. Rec. S647 (daily ed. Jan. 31, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 204 (Landrieu, D-La.) (Atchafalaya National Heritage Area), would establish the Atchafalaya National Heritage Area in the state of Louisiana. 51 Cong. Rec. S647 (daily ed. Jan. 31, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 206 (Cantwell, D-Wash.) (Ice Age Floods National Geologic Trail), would designate the Ice Age Floods National Geologic Trail. 51 Cong. Rec. S647 (daily ed. Jan. 31, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 207 (Landrieu, D-La.) (national historic park), would adjust the boundary of the Barataria Preserve Unit of the Jean Lafitte National Historical Park and Preserve in the state of Louisiana. 51 Cong. Rec. S647 (daily ed. Jan. 31, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 208 (Levin, D-Mich.) (FWPCA), would amend the FWPCA to direct the Great Lakes National Program Office of EPA to develop, implement, monitor, and report on a series of indicators of water quality and related environmental factors in the Great Lakes. 51 Cong. Rec. S647 (daily ed. Jan. 31, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 213 (Bingaman, D-N.M.) (land conveyance), would direct the Secretary of the Interior to convey certain federal land to Rio Arriba County, New Mexico. 51 Cong. Rec. S647 (daily ed. Jan. 31, 2005). The bill was referred to the Committee on Committee on Energy and Natural Resources .
  • S. 214 (Bingaman, D-N.M.) (transboundary aquifers), would authorize the Secretary of the Interior to cooperate with the states on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping, and modeling program for priority transboundary aquifers. 51 Cong. Rec. S647 (daily ed. Jan. 31, 2005). The bill was referred to the Committee on Committee on Energy and Natural Resources .
  • S. 260 (Inhofe, R-Okla.) (wildlife habitat), would authorize the Secretary of the Interior to provide technical and financial assistance to private landowners to restore, enhance, and manage private land to improve fish and wildlife habitats through the Partners for Fish and Wildlife Program. 51 Cong. Rec. S886 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 261 (Lieberman, D-Conn.) (Arctic National Wildlife Refuge), would designate a portion of the Arctic National Wildlife Refuge as wilderness. 51 Cong. Rec. S886 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 262 (Feinstein, D-Cal.) (Angel Island Immigration Station), would authorize appropriations to the Secretary of the Interior for the restoration of the Angel Island Immigration Station in the state of California. 51 Cong. Rec. S886 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 263 (Akaka, D-Hawaii) (paleontological resources), would provide for the protection of paleontological resources on federal lands. 51 Cong. Rec. S886 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 264 (Akaka, D-Hawaii) (Reclamation Wastewater and Groundwater Study and Facilities Act), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize certain projects in the state of Hawaii. 51 Cong. Rec. S886 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 272 (Clinton, D-N.Y.) (national forests), would designate certain National Forest System land in the Commonwealth of Puerto Rico as components of the National Wilderness Preservation System. 51 Cong. Rec. S978 (daily ed. Feb. 3, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 276 (Johnson, D-S.D.) (Wind Cave National Park), would revise the boundary of the Wind Cave National Park in the state of South Dakota. 51 Cong. Rec. S978 (daily ed. Feb. 3, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 293 (Murkowski, R-Alaska) (land conveyance), would provide for the continuation of higher education through the conveyance of certain public lands in the state of Alaska to the University of Alaska. 51 Cong. Rec. S979 (daily ed. Feb. 3, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 518 (Kind, D-Wis.) (neotropical migratory birds), would require the Secretary of the Interior to refine the DOI program for providing assistance for the conservation of neotropical migratory birds. 51 Cong. Rec. H348 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 522 (Baker, R-La.) (Atchafalaya National Heritage Area), would establish the Atchafalaya National Heritage Area, Louisiana. 51 Cong. Rec. H348 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 537 (Deal, R-Ga.) (fisheries mitigation programs), would ensure the continuation of successful fisheries mitigation programs. 51 Cong. Rec. H349 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Resources.
  • H.R. 539 (Fortuño, R-P.R.) (national forest lands), would designate certain National Forest System land in the Commonwealth of Puerto Rico as components of the National Wilderness Preservation System. 51 Cong. Rec. H349 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 541 (Gibbons, R-Nev.) (land conveyance), would direct the Secretary of Agriculture to convey certain land to Lander County, Nevada, and the Secretary of the Interior to convey certain land to Eureka County, Nevada, for continued use as cemeteries. 51 Cong. Rec. H349 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 542 (Gibbons, R-Nev.) (land conveyance), would direct the Secretary of the Interior to convey certain land in Washoe County, Nevada, to the Board of Regents of the University and Community College System of Nevada. 51 Cong. Rec. H349 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 546 (Herseth, D-S.D.) (Wind Cave National Park), would revise the boundary of the Wind Cave National Park in the state of South Dakota. 51 Cong. Rec. H349 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 553 (Kanjorski, D-Pa.) (solid waste), would authorize certain states to prohibit the importation of solid waste from other states. 51 Cong. Rec. H350 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 567 (Markey, D-Mass.) (Arctic National Wildlife Refuge), would preserve the Arctic coastal plain of the Arctic National Wildlife Refuge, Alaska, as wilderness in recognition of its extraordinary natural ecosystems and for the permanent good of present and future generations of Americans. 51 Cong. Rec. H351 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 585 (Radanovich, R-Cal.) (federal land management planning), would require federal land managers to support, and to communicate, coordinate, and cooperate with, designated gateway communities, to improve the ability of gateway communities to participate in federal land management planning conducted by the Forest Service and agencies of the DOI, and to respond to the impacts of the public use of the federal lands administered by these agencies. 51 Cong. Rec. H352 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources, and in addition to the Committee on Agriculture.
  • H.R. 586 (Radanovich, R-Cal.) (pack and saddle stock animals), would preserve the use and access of pack and saddle stock animals on public lands, including wilderness areas, national monuments, and other specifically designated areas, administered by the National Park Service, BLM, FWS, or the Forest Service where there is a historical tradition of such use. 51 Cong. Rec. H352 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources, and to the Committee on Agriculture.
  • H.R. 593 (Rogers, R-Mich.) (Solid Waste Disposal Act), would amend the Solid Waste Disposal Act to authorize states to restrict receipt of foreign municipal solid waste. 51 Cong. Rec. H352 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 599 (Udall, D-Colo.) (restoration activities on federal lands), 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. 51 Cong. Rec. H352 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources, and to the Committee on Agriculture.
  • H.R. 606 (Woolsey, D-Cal.) (Angel Island Immigration Station, California), would authorize appropriations to the Secretary of the Interior for the restoration of the Angel Island Immigration Station in the state of California. 51 Cong. Rec. H352 (daily ed. Feb. 2, 2005). The bill was referred to the Committee on Resources.

Copyright© 2005, 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.cfm to view the complete section.

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

INTERNATIONAL

BIOLOGICAL DIVERSITY:

  • The United Nations Environment Programme's Secretariat of the Convention on Biological Diversity is holding its 10th meeting of the Subsidiary Body on Scientific, Technical, and Technological Advice February 7 through 11, 2005, in Bangkok, Thailand. See http://www.biodiv.org/doc/meeting.aspx?mtg=SBSTTA-10

WORLD WETLANDS DAY:

  • February 2, 2005, was World Wetlands Day. Throughout the week, many wetlands events were held around the world and many new Ramsar sites were designated. See http://www.ramsar.org/w.n.html

THREE GORGES PROJECT:

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

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