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Weekly Update Volume 40, Issue 14

05/10/2010

LITIGATION 

LAND TRUSTS, TAKINGS, DUE PROCESS:

The First Circuit dismissed a land trust's claim that a statute revoking its title to lands in a canal area amounted to a taking and violated its due process rights. The statute amended Law 489, which among other things, created the land trust and transferred to the trust title to certain lands that had originally belonged to public agencies of the commonwealth and the municipality of San Juan. The amending statute revoked the trust's title to those lands and returned title to the agencies. The trust argued that the transfer of lands back to public agencies does not meet the “public use” requirement of the Takings Clause. It claimed that the alleged taking is not for public use because it serves no legitimate purpose and undercuts the purposes of Law 489. But there can be no doubt that the statute's transfer to public ownership is for public use under the Takings Clause. The amending statute revokes the transfer of public agencies' lands to the trust and returns the lands to public ownership. This transfer to public ownership reflects Puerto Rico's judgment that the goals of rehabilitating and revitalizing the canal will be better served, and will be consistent with other missions of its public agencies, if these agencies, rather than the trust, again hold and administer the lands in the canal area they once owned.Fideicoiso de la Tierra Del Caño Martin Peña v. Fortuño, No. 09-2569, 40 ELR 20133 (1st Cir. Apr. 28, 2010).

NATIONAL TRAIL SYSTEMS ACT, TAKINGS, CLASS ACTIONS:

The Federal Circuit held that landowners seeking compensation for the alleged taking of their respective reversionary property interests under the National Trail Systems Act were permitted to opt in to a class action lawsuit against the government. The landowners alleged that the conversion of a railroad line into a public hiking trail under the Trails Act resulted in a Fifth Amendment taking of their reversionary property interests. The lower court dismissed the claim on the grounds that it was barred by the statute of limitations. The limitations period for filing a takings claim ends six years after the government files its Notice of Interim Trail Use or Abandonment. Although one landowner filed a class action complaint and sought class certification prior to the expiration of the limitations period, none of the 20 other putative class members opted in to the suit as named party plaintiffs prior to the expiration of the period. The Federal Circuit reversed, holding that the running of the six-year limitations period was tolled for all putative members of the opt-in class in this case. When, as here, a class action complaint is filed within the limitations period as to one named plaintiff, putative class members are permitted to opt in under Court of Federal Claims Rule 23 after expiration of the limitations period, when class certification is sought prior to expiration of the period, but the complaint is not amended to add other named plaintiffs as putative class members until after expiration of the period.The statute of limitations is tolled during the period the Court of Federal Claims allows putative class members to opt in to the class.Bright v. United States, No. 2009-5048, 40 ELR 20134 (Fed. Cir. May 3, 2010).

TRANSFER, RIVER DREDGING:

A district court denied the U.S. Army Corps of Engineer's motion to transfer to the U.S. District Court of Delaware various claims filed against it by environmental groups and the New Jersey Department of Environmental Protection arising out of the Corps' plan to deepen 102 miles of the Delaware River along the New Jersey, Delaware, and Pennsylvania borders. The Corps sought transfer on the grounds that a similar case had already been filed in the District of Delaware. But the New Jersey Department of Environmental Protection's case could not have been properly brought in the District of Delaware and, therefore, transfer of this action would not be proper. Additionally, the local interests in this case weigh heavily against transfer to the District of Delaware. Plaintiffs allege violations of NEPA, CAA, CWA, and CZMA that if proven would directly impact New Jersey residents who have an interest in having a New Jersey court decide the issues. The project contemplates disposing of millions of cubic yards of river sediment within New Jersey. Disposal of this sediment in New Jersey has the potential to negatively impact the soil, air, and water quality within the state. Further, the claims brought by Plaintiffs arose in New Jersey because the claims involve issues raised by the dredging of the Delaware River between New Jersey and Pennsylvania. Therefore, the Corps failed to show that adjudicating these cases in Delaware would not only be proper but also more convenient than adjudicating the cases in New Jersey.New Jersey v. United States Army Corps of Engineers, Nos. 09-5591, -5889, 40 ELR 20135 (D.N.J. Apr. 26, 2010) (Pisano, J.).

RCRA, CERCLA, JURISDICTION:

A district court dismissed a city's RCRA and the California Hazardous Substances Account Act against the United States in a dispute concerning the environmental remediation of Old Hammer Field in Fresno, California. The site, presently occupied by an airport, was used by the United States as an Army base during World War II. CERCLA §113(h) bars federal courts from exercising jurisdiction over “any challenges” to removal or remedial environmental response actions taken pursuant to CERCLA §104 while those response actions are ongoing. Here, the city’s evidence is insufficient to create a genuine dispute of material fact that CERCLA §120 applies to the site cleanup and not §104. All remediation efforts are taking place on city-owned property, implicating §104, not §120, and the activities in question are "remedial activities." Thus, the city's RCRA cause of action is a “challenge” to a cleanup plan that removes jurisdiction under CERCLA §113(h). In addition, the court lacks subject matter jurisdiction to hear the California Hazardous Substances Account Act claim because the United States has not waived sovereign immunity.City of Fresno v. United States, No. CV-F-06-1559-OWW-TAG, 40 ELR 20136 (E.D. Cal. Apr. 22, 2010) (Wanger, J.).

INSURANCE, POLLUTION EXCLUSION:

A district court denied an insurer's partial motion for summary judgment on claims that it must indemnify a lead smelter in an underlying lawsuit concerning bodily injury and property damage arising out of the smelter's operations near Herculaneum, Missouri. The insurer argued that coverage is barred by the policies’ pollution exclusion. At issue is whether lead is a pollutant under the terms of the policies. But the court could not state as a matter of law that lead, in all of its forms as relevant here, is a pollutant within the meaning of the pollution exclusion. The company has established the existence of material facts concerning whether the underlying claims arise out of, in addition to smelter emissions, its other lead-related activities and that it may have reasonable expectations for coverage with respect to some of those activities. The company has also established that lead is a useful commercial product for which there is significant demand. Thus, it would be premature and overly simplistic to hold as a matter of law, on the existing record, that “lead is a pollutant” under the pollution exclusion.Hartford Accident & Indemnity Co. v. Doe Run Resources Corp., No. 4:08-CV-1687 CAS, 40 ELR 20137 (E.D. Mo. Apr. 26, 2010) (Shaw, J.).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA and the National Highway Traffic Safety Administration issued a joint final rule to establish new standards for light-duty vehicles to reduce greenhouse gas emissions and to improve fuel economy.75 FR 25324(5/7/10).
  • EPA authorized a critical use exemption from the phaseout of methyl bromide for 2010 under the stratospheric ozone protection program.75 FR 23167(5/3/10).
  • EPA entered into a proposed consent decree under the CAA that requires the Agency to take final action no later than April 29, 2011, on SIPs from various states with regard to the 1997 eight-hour ozone NAAQS.75 FR 24946(5/6/10).
  • EPA reclassified the San Joaquin Valley, the South Coast Air Basin, the Coachella Valley, and the Sacramento metro areas in California as nonattainment for the 1997 eight-hour ozone NAAQS.75 FR 24409(5/5/10).
  • SIP Approvals:California (volatile organic compound (VOC) emissions for the Placer County air pollution control district, the Sacramento metropolitan air quality management district, the San Joaquin Valley unified air pollution control district, and the South Coast air quality management district)75 FR 24406(5/5/10); (nitrogen oxide emissions for the San Joaquin Valley unified air pollution control district)75 FR 24408(5/5/10). Indiana (VOC automobile refinishing rules)75 FR 24404(5/5/10).
  • SIP Proposals:California (VOC emissions for the Placer County air pollution control district, the Sacramento metropolitan air quality management district, the San Joaquin Valley unified air pollution control district, and the South Coast air quality management district; see above for direct final rule)75 FR 24544(5/5/10). New York (conditional approval of the reasonably available control technology requirement and measure analysis)75 FR 23640(5/4/10). Oregon (eight-hour ozone NAAQS for the Portland portion of the Portland/Vancouver air quality maintenance area and the Salem-Keizer area transportation study air quality area)75 FR 24844(5/6/10). Washington (eight-hour ozone NAAQS for the Vancouver portion of the Portland/Vancouver air quality maintenance area)75 FR 24542(5/5/10).
  • SIP Withdrawal: New Mexico (interstate transport of pollution rule of April 8, 2010)75 FR 23167(5/3/10).

ENERGY:

  • DOE announced its intention to revise existing energy efficiency enforcement regulations for certain consumer products and commercial and industrial equipment and requested comment.75 FR 25121(5/7/10).

TOXIC SUBSTANCES:

  • EPA finalized revisions to the Lead Renovation, Repair, and Painting Program rule published April 22, 2008, amending opt-out and recordkeeping provisions.75 FR 24802(5/6/10).
  • EPA announced that it will propose regulations to address lead-based hazards and lead-safe practices in the renovation, repair, and painting of public and commercial buildings.75 FR 24848(5/6/10).
  • EPA proposed several revisions to the 2008 Lead Renovation, Repair, and Painting Program rule, addressing concerns about dust-lead hazards to younger children.75 FR 25038(5/6/10).

WATER:

  • EPA gave tentative approval to Alabama's public water system supervision program.75 FR 23264(5/3/10).
  • EPA received a petition to determine whether adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Pleasant Bay/Chatham Harbor, Massachusetts.75 FR 25247(5/7/10).

WILDLIFE:

  • FWS proposed to remove its regulations implementing the Fish and Wildlife Conservation Act of 1980 due to a lack of funds.75 FR 24862(5/6/10).
  • FWS announced a 90-day finding on a petition to list the Hermes copper butterfly as a threatened or endangered species under the ESA and to designate critical habitat; the Agency found that listing may be warranted and initiated a status review.75 FR 23654(5/4/10).
  • NOAA-Fisheries announced a 12-month finding on a petition to list the largetooth sawfish as endangered or threatened under the ESA and to designate critical habitat; the Agency proposed to list the species as endangered, but not to designate critical habitat.75 FR 25174(5/7/10).

DOJ NOTICE OF SETTLEMENT:

  • United States v. AGC Flat Glass North America, Inc., No. 1:10-cv-00069-IMK (N.D. W. Va. Apr. 28, 2010). Settling CERCLA defendants must pay $168,524.08, plus interest, in U.S. response costs incurred at the Princeton Enterprises Superfund site in Clarksburg, West Virginia.75 FR 24744(5/5/10).

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

THE CONGRESS

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

Committee Action:

  • S.3294 (Crapo, R-Idaho) (public land) would establish certain wilderness areas in central Idaho and authorize various land conveyances involving National Forest System land and BLM land in central Idaho. 156 Cong. Rec. S3006 (daily ed. Apr. 30, 2010). The bill was referred to the Committee on Energy and Natural Resources

Bills Introduced:

  • S.3296 (Inhofe, R-Okla.) (EPA) would delay the implementation of certain final EPA rules in states until accreditation classes are held in the states for at least one year. 156 Cong. Rec. S3091 (daily ed. May 4, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S.3303 (Bennet, D-Colo.) (public land) would establish the Chimney Rock National Monument in the state of Colorado. 156 Cong. Rec. S3091 (daily ed. May 4, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S.3305(Menendez, D-N.J.) (oil) would amend the Oil Pollution Act of 1990 to require oil polluters to pay the full cost of oil spills. 156 Cong. Rec. S3091 (daily ed. May 4, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S.3306 (Menendez, D-N.J.) (oil)would amend the Internal Revenue Code of 1986 to require polluters to pay the full cost of oil spills. 156 Cong. Rec. S3091 (daily ed. May 4, 2010). The bill was referred to the Committee on Finance.
  • S.3308 (Nelson, D-Fla.) (energy)would suspend certain activities in the outer continental shelf until the date on which the joint investigation into the Deepwater Horizon incident in the Gulf of Mexico has been completed. 156 Cong. Rec. S3164 (daily ed. May 5, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S.3310 (Johnson, D-S.D.) (public land) would designate certain wilderness areas in the National Forest System in the state of South Dakota. 156 Cong. Rec. S3164 (daily ed. May 5, 2010). The bill was referred to the Committee on Energy and Natural Resources.  
  • S. 3322 (Voinovich, R-Ohio) (energy)would amend the Atomic Energy Act of 1954 to establish a United States Nuclear Fuel Management Corporation. 156 Cong. Rec. S3358 (daily ed. May 6, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3324 (Brown, D-Ohio) (energy)would amend the Internal Revenue Code of 1986 to extend the qualifying advanced energy project credit. 156 Cong. Rec. S3358 (daily ed. May 6, 2010). The bill was referred to the Committee on Finance .
  • S.3313 (Reid, D-Nev.) (mining) would withdraw certain land located in Clark County, Nevada, from location, entry, and patent under the mining laws and disposition under all laws pertaining to mineral and geothermal leasing or mineral materials. 156 Cong. Rec. S3164 (daily ed. May 5, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R.5021 (Harman, D-Cal.) (energy efficiency)would improve the energy efficiency of outdoor lighting. 156 Cong. Rec. H3123 (daily ed. May 4, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R.5205 (Simpson, R-Idaho) (public land) would establish certain wilderness areas in central Idaho and authorize various land conveyances involving National Forest System land and BLM land in central Idaho. 156 Cong. Rec. H3123 (daily ed. May 4, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R.5212 (Kirkpatrick, D-Ariz.) (land conveyance) would amend Public Law No. 105-344 to authorize the Secretary of Agriculture to convey to the Blue Ridge Unified School District that portion of the Woodland Lake Park tract in the Apache-Sitgreaves National Forest in the state of Arizona containing the Big Springs Environmental Study Area. 156 Cong. Rec. H3200 (daily ed. May 5, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R.5213 (Garamendi, D-Cal.) (energy) would amend the Outer Continental Shelf Lands Act to permanently prohibit offshore drilling on the outer continental shelf off the coast of California, Oregon, and Washington. 156 Cong. Rec. H3201 (daily ed. May 5, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R.5214 (Holt, D-N.J.) (oil) would require oil polluters to pay the full cost of oil spills. 156 Cong. Rec. H3201 (daily ed. May 5, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R.5217 (Heller, R-Nev.) (energy) would provide for distribution to states of revenues under the Geothermal Steam Act of 1970 as provided in that Act. 156 Cong. Rec. H3201 (daily ed. May 5, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R.5219 (Heller, R-Nev.) (mining) would withdraw certain land located in Clark County, Nevada, from location, entry, and patent under the mining laws and disposition under all laws pertaining to mineral and geothermal leasing or mineral materials. 156 Cong. Rec. H3201 (daily ed. May 5, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5241 (Capps, D-Cal.) (oil)would establish an independent, nonpartisan commission to investigate the causes and impact of, and evaluate and improve the response to, the explosion, fire, and loss of life on and sinking of the Mobile Drilling Unit Deepwater Horizon and the resulting uncontrolled release of crude oil into the Gulf of Mexico, and to ensure that a similar disaster is not repeated. 156 Cong. Rec. H3272 (daily ed. May 6, 2010). The bill was referred to the Committees on Natural Resources, and Transportation and Infrastructure.
  • H.R. 5248 (Pallone, D-N.J.) (energy) would amend the Outer Continental Shelf Lands Act to prohibit the leasing of any area of the outer continental shelf for the exploration, development, or production of oil, gas, or any other mineral. 156 Cong. Rec. H3272 (daily ed. May 6, 2010). The bill was referred to 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:

ArizonaColoradoFloridaCaliforniaDelawareIllinois

ARIZONA

General:

  • The Department of Environmental Quality seeks public comment on proposed FY 2011 fee increases. Fees will be increased for Air Quality Fees, Aquifer Protection Permit Fees and other fees for water quality protective services, Solid Waste Program Fees, and Hazardous Waste Program Fees. Comments are due July 1, 2010. Seehttp://www.azsos.gov/aar/2010/19/pubinfo.pdf

CALIFORNIA

Air:

  • The Air Resources Board will conduct a public hearing on proposed amendments to Cal. Code Regs. tit. 17, §93118.5, and Cal. Code Regs. tit. 13, §2299.5, relating to commercial harbor craft. The amendments will further reduce emissions of diesel particulate matter and oxides of nitrogen from diesel engines on commercial harbor craft operating in any California port, roadstead, or terminal facility, or within all California inland waters; all California estuarine waters; and within 24 nautical miles, except as otherwise specified in this proposal, of the California baseline. The hearing will be June 24, 2010. Seehttp://www.arb.ca.gov/regact/2010/harborcraft10/harborcraft10.htm

COLORADO

Air:

DELAWARE

Air:

Hazardous & Solid Waste:

FLORIDA

Water:

ILLINOIS

Energy:

  • The Illinois Environmental Protection Agency will hold a public hearings on proposed amendments to Ill. Admin. Code tit. 35, §275, Alternate Fuels Program. The proposal would amend Illinois regulations to reflect amendments to the Alternate Fuels Act. Amendments to the Act eliminated defined years in which applicants were permitted to apply for rebates, expanded the definition of alternate fuel and domestic renewable fuel, added the definition of biodiesel fuel, clarified that owners of vehicles using domestic renewable fuel or alternate fuel may receive a fuel cost differential rebate, and added an exception allowing large vehicles purchased outside of Illinois to be eligible, in certain circumstances, to apply for a rebate. The hearing will be June 8 and 10, 2010. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue19.pdf(pp. 6538-39)

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

INTERNATIONAL

COURT RULING DETERMINES PRICE OF NATURAL GAS IN INDIA

A recent Indian Supreme Court ruling will bring greater clarity to the country's energy industry. Ending a dispute between the Ambani brothers, the Court determined that India's government holds the authority to set prices for the country's natural resources. Five years ago, the brothers had come to an agreement between their respective companies on the price of natural gas extracted from a field off India's coast. Two years after this private agreement, the Indian government set natural gas prices from the same field at 79 percent higher than the brothers' agreed-upon value. In the judgment, the justices defend the government's right to protect the country's natural resources and describe the brothers' agreement as a private pact between family members. Lawyers within India comment that the familial nature of the agreement turns the dispute into a singular case that will not affect other public contracts between companies. For the full story, visithttp://tiny.cc/dfig9.

GERMANY APPROVES CUTS TO SOLAR POWER INCENTIVES

Germany's Bundestag lower house of parliament approved cuts to solar power incentives that will take effect this July. Rooftop solar power incentives will experience a one-off cut of 16 percent, and open field installation incentives will be reduced by 15 percent. The cuts will also remove all incentives for farmland solar installments. In 2011, additional incentive cuts to those outlined in the German Renewable Energy Act of one percentage point will occur if new installment exceeds 3.5 gigawatts over the course of the year. The reduction in solar power incentives was prompted by oversupply of solar products and resulting price declines of as much as 50 percent over the past year. In an effort to compete with Asian producers, the country is emphasizing cheaper, more efficient production. Norbert Roettgen, German Environment Minister, explains, "Our solution is innovation instead of subsidies." For the full story, visithttp://tiny.cc/yoscy.

CHINA'S DEMAND FOR POWER FROM OIL AND COAL RISING SHARPLY

Despite ambitious goals for clean-energy production and reduction of greenhouse gas emissions, China's dependence on oil and gas continues to rise. Having experienced the largest six-month increase in tonnage ever of human-caused greenhouse gas emissions by a single country, China leaders held a meeting this week to discuss concerns regarding increasing energy use and decreasing energy efficiency. The country's heightened use of fossil fuels is driven by a shift away from export industries such as clothing and toward steel and cement manufacturing. Increases in the country's fossil fuel use are likely to continue as car ownership rises and the economic stimulus program invests in public works projects. China's current five-year plan calls for a decline by 2010 in the energy needed for each unit of economic output by 20 percent compared to 2005 levels. Without significant policy changes, meeting this target seems unlikely. For the full story, visithttp://tiny.cc/luy7a.

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

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