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Weekly Update Volume 40, Issue 13

05/03/2010

LITIGATION 

PUBLIC LAND, STANDING, INJUNCTIONS:

The U.S. Supreme Court reversed and remanded a court order precluding the government from transferring to the Veterans of Foreign Wars (VFW) a cross and the federal land on which it stood in exchange for privately owned land elsewhere in the Mojave National Preserve. VFW members placed the cross in the preserve to honor American soldiers who died in World War I. A visitor of the preserve who was offended by the presence of the cross filed suit under the Establishment Clause and sought an injunction requiring the government to remove the cross. A district court granted the injunction. While the government's appeal was pending, Congress passed the Department of Defense Appropriations Act, 2004, a portion of which directed the Secretary of the Interior to engage in a land transfer with the VFW. The Ninth Circuit then affirmed the district court's injunction. The visitor returned to the district court, challenging the statutory land transfer. The district court held that the land transfer was an invalid attempt to keep the cross on display and granted the visitor's motion to enforce the 2002 injunction. The Ninth Circuit affirmed. The Supreme Court held that the visitor had standing to maintain the instant action because a party that obtains a judgment in its favor acquires a "judicially cognizable" interest in ensuring compliance with that judgment. However, the district court erred in enjoining the government from implementing the land-transfer statute on the premise that the relief was necessary to protect the visitor's rights under the 2002 injunction. A court may order an injunction only after taking into account all the circumstances bearing on the need for prospective relief. Here, the district court did not engage in the appropriate inquiry. The matter was therefore remanded. Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C.J., joined, and in which Alito, J., joined in part. Roberts, C.J., filed a concurring opinion. Alito, J., filed an opinion concurring in part and concurring in the judgment. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined. Breyer, J., filed a dissenting opinion.Salazar v. Buono, No. 08-472, 40 ELR 20132 (U.S. Apr. 28, 2010).

PUBLIC LAND, GRAZING:

The Ninth Circuit held that the U.S. Forest Service did not act arbitrarily or capriciously in deciding to cancel an individual's grazing permit in the Santa Rosa Ranger District of the Humboldt-Toiyabe National Forest. The Forest Service’s administrative procedures leading up to the termination of the individual's grazing permit afforded him due process. Before the Forest Service finally cancelled his grazing permit, it provided the individual with ample procedures, pre- and post-deprivation, to ensure that he could present his side of the story. The individual also was given ample notice and an opportunity to demonstrate or achieve compliance with his permit pursuant to the APA. And the Forest Service had a reasonable basis for canceling the individual's 2005 permit based on the violations occurring in the 2005 grazing season alone. The court, therefore, affirmed a lower court's grant of summary judgment in favor of the government.Buckingham v. Secretary of the U.S. Department of Agriculture, No. 09-15893, 40 ELR 20131 (9th Cir. Apr. 29, 2010).

NATURAL GAS, CONSTRUCTION PERMIT:

The D.C. Circuit denied a petition to review FERC's approval of a construction project that would allow a natural gas importer to import greater quantities of liquefied natural gas and distribute it in gaseous form. The petitioner, a utility, argued that higher volumes of regasified liquefied natural gas would pass through its piping system as a result of the expansion, which in turn would pose an increased risk of unsafe natural gas leakage. But by imposing a post-expansion limit on the project that matched the pre-expansion limit, FERC satisfactorily ensured that the expansion will not result in an increased risk of unsafe natural gas leakage.Washington Gas & Light Co. v. Federal Energy Regulatory Commission, No. 09-1100, 40 ELR 20129 (D.C. Cir. Apr. 27, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, OIL REFINERY:

A California appellate court affirmed in part and reversed in part a lower court decision ruling in favor of a community group that challenged a city's environmental review of an oil refinery construction project. The lower court properly ruled that the environmental impact report (EIR) fails as an informational document because its project description is inconsistent and obscure as to whether the project enables the refinery to process heavier crude. Furthermore, the EIR completely fails to properly establish, analyze, and consider an environmental baseline. The lower court also correctly concluded that the EIR fails to define mitigation measures for greenhouse gas emissions. The city's decision to approve the project--after giving the city council final approval over a mitigation plan that the refinery formulates a year later outside the EIR process--violates the California Environmental Quality Act. The time to analyze the impacts of the project and to formulate mitigation measures to minimize or avoid those impacts was during the EIR process, before the project was brought to the planning commission and city council for final approval. The lower court, however, erred in finding that the city unlawfully segmented its environmental review of the project by failing to analyze, as part of the project itself, a proposed hydrogen pipeline that would transport excess hydrogen to other hydrogen consumers. There was no improper segmentation of a larger project here.Communities for a Better Environment v. City of Richmond, No. A125618, 40 ELR 20130 (Cal. App. 1st Dist. Apr. 26, 2010).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AIR:

  • EPA announced a new equivalent method for measuring ozone concentrations in the ambient air.75 FR 22126(4/27/10).
  • EPA finalized emission standards for new Category 3 marine diesel engines installed on U.S. vessels.75 FR 22896(4/30/10).
  • EPA finalized its designation of ocean-dredged material disposal sites offshore of the Siuslaw River in Oregon pursuant to the Marine Protection, Research, and Sanctuaries Act.75 FR 22524(4/29/10).
  • EPA withdrew a direct final rule amending the general provisions for the Mandatory Greenhouse Gas Reporting Rule, published on March 16, 2010, due to adverse comments.75 FR 22699(4/30/10).
  • EPA proposed to add gold mine ore processing and production to the list of source categories subject to regulation under the CAA as well as NESHAPs for this category.75 FR 22470(4/28/10).
  • EPA issued an advance notice of proposed rulemaking for comment to evaluate the health risks of leaded aviation gasoline in piston engine-powered aircraft.75 FR 22440(4/28/10).
  • EPA entered into a proposed consent decree under the CAA that requires the Administrator to respond to a petition seeking EPA's objection to a Title V operating permit issued to the J.P. Pulliam Generating Station in Green Bay, Wisconsin, by June 4, 2010.75 FR 22786(4/30/10).
  • EPA entered into a proposed settlement agreement under the CAA that requires the Agency to respond to a petition seeking EPA's objection to issuance of an air permit for the Woodside Landfill in Walker, Louisiana, by May 28, 2010.75 FR 22787(4/30/10).
  • EPA announced the availability of data concerning the Clean Air Interstate Rule nitrogen oxide ozone season trading program's new unit set-aside allowance allocations for Delaware and the District of Columbia.75 FR 22127(4/27/10).
  • SIP Proposal: Wisconsin (redesignation of Manitowoc and Door counties to attainment for the 1997 eight-hour ozone standard)75 FR 22047(4/27/10).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement agreement under CERCLA that requires the settling party to pay certain U.S. response costs incurred at the Chemical Leaman Tank Lines, Inc., Superfund site in Logan Township, New Jersey.75 FR 22785(4/30/10).

MINING:

  • OSM announced preparation of an EIS under NEPA to analyze the effects of potential rule revisions under SMCRA to improve protection of streams from the adverse impacts of surface coal mining operations.75 FR 22723(4/30/10).
  • OSM proposed to approve an amendment to Texas' regulatory program under SMCRA; the amendment revises annual permit fee regulations to improve operational efficiency.75 FR 21534(4/26/10).

OFFICE OF THE PRESIDENT:

  • The president issued Executive Order No. 13539, establishing the President's Council of Advisors on Science and Technology.75 FR 21973(4/27/10).

RULEMAKING:

  • The federal agencies issued their semiannual regulatory agendas providing specific information on the status of regulations under development and revision. EPA's agenda can be found at75 FR 21872(4/26/10).

WATER:

  • EPA Region 1 announced the availability of draft NPDES general permits for remediation facility discharges to certain waters of Massachusetts and New Hampshire.75 FR 21625(4/26/10).

WILDLIFE:

  • NOAA-Fisheries issued a final determination to list the Puget Sound/Georgia Basin distinct population segments of yelloweye and canary rockfish as threatened and the bocaccio rockfish as endangered under the ESA.75 FR 22276(4/28/10).
  • FWS announced its 12-month finding on a petition to list the Susan's purse-making caddisfly as endangered under the ESA; the Agency determined that listing is not warranted at this time.75 FR 22012(4/27/10).
  • FWS announced its 90-day finding on a petition to list the Mohave ground squirrel as endangered under the ESA; the Agency determined that listing may be warranted and has initiated a status review.75 FR 22063(4/27/10).
  • FWS announced its 90-day finding on a petition to list the harlequin butterfly, a butterfly endemic to Puerto Rico, as endangered under the ESA and to designate critical habitat; it determined that listing may be warranted.75 FR 21568(4/26/10).
  • FWS announced the availability of proposed guidelines setting forth best practices for safely and nonlethally deterring polar bears from damaging private and public property and endangering the public.75 FR 21571(4/26/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Saporito, No. 07-cv-03169 (N.D. Ill. Apr. 22, 2010). A settling CERCLA defendant will not be required to pay U.S. response costs incurred at the Crescent Plating Works Superfund site in Chicago, Illinois, due to inability to pay.75 FR 22843(4/30/10).
  • United States v. Big River Zinc Corp., No. 3:10-cv-00276-DRH-CJP (S.D. Ill. Apr. 15, 2010). A settling CAA defendant must pay a $250,000 civil penalty for violation of the new source performance standards at its plant in Sauget, Illinois, and must either install a scrubber system before resuming its zinc-roasting operation or shut it down within five years.75 FR 22626(4/29/10).
  • United States v. Kogan Realty Enterprises, LLC, No. 1:10-cv-249 (S.D. Ohio Apr. 19, 2010). A settling Residential Lead-Based Paint Hazard Reduction Act defendant that owns 128 housing units in 22 separate properties in the Cincinnati, Ohio, area must certify that it is complying with residential lead paint notification requirements, must submit a plan for and perform window replacement work, must abate lead-based paint hazards on friction and impact surfaces, must stabilize other lead-based paint hazards, and must pay a $5,000 administrative penalty.75 FR 21660(4/26/10).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Note: Citations below are to theCongressional Record(Cong. Rec.).

Committee Action:

  • H.R. 509 (wildlife)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-173, 156 Cong. Rec. S2642 (daily ed. Apr. 26, 2010). The bill would reauthorize the Marine Turtle Conservation Act of 2004.
  • H.R. 3537 (wildlife) was reported by the Committee on Environment and Public Works. S. Rep. No. 111-174, 156 Cong. Rec. S2642 (daily ed. Apr. 26, 2010). The bill would amend and reauthorize the Junior Duck Stamp Conservation and Design Program Act of 1994.

Bills Introduced:

  • S. 3261 (Hutchison, R-Tex.) (National Heritage Area) would establish the Buffalo Bayou National Heritage Area in the state of Texas. 156 Cong. Rec. S2708 (daily ed. Apr. 27, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3279 (Wyden, D-Or.) (tree planting)would reauthorize the national small business tree planting program. 156 Cong. Rec. S2802 (daily ed. Apr. 29, 2010). The bill was referred to the Committee on Small Business and Entrepreneurship.
  • H.R. 5144 (Green, R-Tex.) (National Heritage Area)would establish the Buffalo Bayou National Heritage Area in the state of Texas. 156 Cong. Rec. H2935 (daily ed. Apr. 27, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5152 (Gingrey, R-Ga.) (boundary adjustment) would adjust the boundary of the Kennesaw Mountain National Battlefield Park to include the Wallis House and Harriston Hill. 156 Cong. Rec. H2936 (daily ed. Apr. 27, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5153 (Herseth Sandlin, D-S.D.) (boundary adjustment)would amend the Minuteman Missile National Historic Site Establishment Act of 1999 to modify the boundary of the Minuteman Missile National Historic Site in South Dakota. 156 Cong. Rec. H2936 (daily ed. Apr. 27, 2010). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture.
  • H.R. 5155 (Jones, R-N.C.) (wildlife) would direct the Secretary of Commerce to conduct an aerial assessment of sea turtle populations in U.S. waters. 156 Cong. Rec. H2936 (daily ed. Apr. 27, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5156 (Matsui, D-Cal.) (energy)would provide for the establishment of a Clean Energy Technology Manufacturing and Export Assistance Fund to assist U.S. businesses with exporting clean energy technology products and services. 156 Cong. Rec. H2936 (daily ed. Apr. 27, 2010). The bill was referred to the Committee on Foreign Affairs and the Committee on Energy and Commerce.
  • H.R. 5164 (Altmire, D-Pa.) (Energy Policy Act)would amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out programs to develop and demonstrate two small modular nuclear reactor designs. 156 Cong. Rec. H3013 (daily ed. Apr. 28, 2010). The bill was referred to the Committee on Energy and Commerce and the Committee on Science and Technology.
  • H.R. 5174 (Tonko, D-N.Y.) (alternative fuels) would amend the Internal Revenue Code of 1986 to modify the credit for qualified fuel cell motor vehicles by maintaining the level of credit for vehicles placed in service after 2009 and by allowing the credit for certain off-highway vehicles. 156 Cong. Rec. H3014 (daily ed. Apr. 28, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5180 (Shea-Porter, D-N.H.) (National Marine Fisheries Service)would establish an Ombudsman Office within the National Marine Fisheries Service. 156 Cong. Rec. H3077 (daily ed. Apr. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5192 (Lummis, R-Wyo.) (national forests)would require the Secretary of Agriculture to designate national forests or portions of national forests in western states as locations for demonstration projects to prevent or mitigate the effect of pine beetle infestations and conduct forest restoration activities, to authorize the emergency removal of dead and dying trees to address public safety risks in western states, and to make permanent the stewardship contracting authorities available to the Forest Service. 156 Cong. Rec. H3077 (daily ed. Apr. 29, 2010). The bill was referred to the Committee on Agriculture and the Committee on Natural Resources.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2010, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The states below have updates this week:

AlaskaHawaiiMassachusettsGeorgiaIndianaMaine

ALASKA

Water:

GEORGIA

Air:

HAWAII

Land Use:

  • The Department of Land and Natural Resources seeks public comment on the proposed withdrawal of sections of the Kahikinui Forest Reserve for designation as the Nakula Natural Area Reserve. Written comments are due May 10, 2010 Seehttp://hawaii.gov/dlnr/chair/pio/nr/2010/NR10-050.pdf/view

INDIANA

  • The Air Pollution Control Board will hold a public hearing on amendments to 326 Ind. Admin. Code 6.8-2-8 and 326 Ind. Admin. Code 7-4.1-5, concerning the particulate matter and sulfur dioxide emission limitations at Cargill, Inc., in Hammond, Indiana. The hearing will be September 1, 2010. Seehttp://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-476

MAINE

Toxic Substances :

  • The Department of Environmental Protection seeks public comment on its proposal to repeal the siting requirements for underground oil storage facilities, Code Me. R. §691. Those siting requirements have been incorporated in Code Me. R. §692, governing the siting of both underground and aboveground oil storage facilities. Comments are due June 1, 2010. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/042810.htm

Energy:

  • The Public Utilities Commission will hold a public hearing on a rulemaking to repeal and replace its rules at Code Me. R. §420, Safety Standards for Natural Gas Transmission and Distribution Systems and Liquefied Natural Gas Facilities, that set forth safety standards for natural gas transmission and distribution systems and liquefied natural gas facilities. The hearing will be held on May 20, 2010.  Comments may be received no later than June 21, 2010. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/042810.htm

MASSACHUSSETTS

Air:

Water:

  • The Department of Environmental Protection seeks public comment on the proposed amendments to the 2010 integrated list of waters.  In addition to the actual proposed listing of the individual categories of waters, the report presents a brief history of water quality management in Massachusetts and presents the methodology that is currently employed for assessing and reporting on the status of Massachusetts' waters. Comments are due June 11, 2010. Seehttp://www.mass.gov/dep/water/resources/tmdls.htm#info

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

AUSTRALIA DELAYS EMISSIONS TRADING SCHEME

Australian Prime Minister Kevin Rudd campaigned on tough climate action. As one of the world's highest per capita carbon emitters, he had hoped that the proposed Carbon Pollution Reduction Scheme (CPRS) would reduce the country's emissions by as much as 25 percent from 2000 levels by 2020. Initially scheduled to start in July 2011, the scheme would require industrial polluters to purchase carbon emission licenses. Due to opposition in the Senate, Australia will now delay instituting CPRS until 2013, at the earliest. Australia's inaction may reflect changing politics within the country. Tony Abbott, Liberal party leader, has stated, "It would be premature for Australia to adopt such a scheme ahead of other countries." For the full story, visithttp://news.bbc.co.uk/2/hi/asia-pacific/8645767.stm.

EUROPEAN RENEWABLE ENERGY EXPECTS RETURNING DEMAND

Two of Europe's leading renewable energy industry suppliers, Denmark-based Vestas and Norway's Renewable Energy Corp (REC), anticipate that demand for renewable energy will increase in the second half of the year. Suppliers of renewable energy material suffered in 2009 and the first half of 2010 due to the global financial crisis. As the economy recovers, infrastructure projects are increasing. Vestas, the leading wind turbine producer, should reach its target for order intake this year, overcoming a slow first quarter. "We are going to see a 2010 that is heavily backloaded both in terms of revenues and earnings," explained Ditlev Engel, Vestas Chief Executive. REC, the largest producer of solar-grade silcon used in solar panels, also expects increases, despite a decrease in demand from Germany, one of the business' key markets. REC forecasts that growth in other markets will compensate for uncertainty regarding Germany. For the full story, visithttp://www.reuters.com/article/idUSTRE63R3UE20100428.

NORWAY AND RUSSIA REACH AGREEMENT OVER ARCTIC BORDERS

An agreement reached this week by Norwegian Prime Minister Jens Stoltenberg and Russian President Dmitry Medvedev will end a border dispute over a region of the Barents Sea rich in oil and natural gas. The agreement allows Norway to begin exploring the area. Norway's oil production has fallen by more than 50 percent since its peak of 2 million barrels a day early in the last decade. Although greater exploration of natural gas has compensated for diminishing oil resources, the deal provides a means to revive the country's oil industry. Until the agreement was reached, Norway was considering opening up the Lofotens to exploration, an action strongly contested by Norway's environmental community. For the full story, visithttp://www.reuters.com/article/idUSTRE63T1IP20100430.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

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