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Weekly Update Volume 40, Issue 3

01/25/2010

LITIGATION

WATER RIGHTS, INTERVENTION:

The U.S. Supreme Court held that an energy company and a water supply company can intervene in a water rights dispute between North Carolina and South Carolina but that a city may not. South Carolina filed suit against North Carolina seeking an equitable apportionment of the Catawba River's waters. Three nonstate parties filed motions to intervene, but only two of them--the energy and water supply companies--satisfied the appropriate intervention standard. An intervenor whose state is already a party has the burden of showing some compelling interest in its own right, apart from its interest in a class with all other citizens and creatures of the state, that is not properly represented by the state. Here, the water supply company has sufficiently compelling interests in the litigation that are unlike the interests of other citizens of the states, and neither state can properly represent those interests in this litigation. Likewise, the energy company demonstrated unique and compelling interests, and neither state is situated to represent those interests. The city's interest, however, is not sufficiently unique and will be properly represented by North Carolina. Alito, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, and Breyer, JJ., joined. Roberts, C.J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, Ginsburg, and Sotomayor, JJ., joined.South Carolina v. North Carolina, No. 138, 40 ELR 20019 (U.S. Jan. 20, 2010).

ENERGY EFFICIENCY , PRELIMINARY INJUNCTION

A district court denied a manufacturer's motion for preliminary injunction to retain the "Energy Star" energy efficiency label that DOE ordered it to remove from approximately 40,000 of its refrigerators. The central issue in the case was the proper procedures for testing the energy efficiency of the refrigerators at issue. On the likelihood of success prong, the manufacturer argued that DOE's actions violated the procedural and substantive requirements of the APA. The manufacturer further argued that DOE was depriving it of its constitutionally protected property and liberty interests by requiring it to remove the Energy Star label. After considering these and other arguments, the court disagreed with the manufacturer. The court found that, based on the facts of the case, there was no likelihood of success on the APA arguments. In regards to the due process challenges, the court found that, even if the manufacturer had a constitutionally protected property interest in maintaining the Energy Star labels on its refrigerators, it would not be entitled to anything more than a contractual claim since any rights that it may have had with respect to the labels arose from its licensing agreement with DOE. Moreover, being required to remove the label from certain refrigerators in no way broadly precluded the manufacturer from its chosen trade or business so as to implicate a due process liberty interest.LG Electronics U.S.A., Inc. v. DOE, 09-2297, 40 ELR 20018 (D.D.C. Jan. 18, 2010) (Bates, J.).

MAGNUSON-STEVENS FISHERY CONSERVATION & MANAGEMENT ACT, CATCH QUOTA ALLOCATIONS

The Ninth Circuit affirmed a lower court decision that the Secretary of Commerce did not arbitrarily and capriciously modify the catch quota allocations for Pacific cod under the Magnuson-Stevens Fishery Conservation and Management Act. A fishing boat operator argued that the allocation was not based on the best scientific information available and that it failed to satisfy the stated objectives of the fishery management plan in violation of the Act. But the Secretary provided ample justification for using the catch data that he relied on in determining allocations, even though he used certain historical data while other, more recent data were discounted. And although the operator's allocation was reduced for the benefit of coastal Alaskan residents, the Secretary's allocation was justified. The fishery management plan's stated objectives provide that allocations be based on, among other things, socioeconomic considerations. The court also rejected the operator's claims that the Secretary violated §211(a) of the American Fisheries Act by adversely impacting non-AFA vessels such as itself. In sum, the Secretary is allowed to sacrifice the interest of some groups of fishermen for the benefit of the fishery as a whole.Fishermen’s Finest Inc. v. Locke, 08-36024, 40 ELR 20017 (9th Cir. Jan. 19, 2010).

INSURANCE, DUTY TO DEFEND

A district court held that an insurance company has a duty to defend a shooting range operator in an underlying CWA, RCRA, and nuisance lawsuit concerning the discharge of lead shot into the environment. The duty to defend arises when there is a possibility that a claim may be covered by the insurance policy. Here, it is possible that the operator will be ordered to take action to clean up or remediate the existing contamination, and cleanup and remediation costs qualify as property damage under the terms of the policy. In addition, although the policy excludes coverage for damage to property owned, occupied by, or rented to the operator, the complaint adequately alleges damage to third-party property in the form of water, wetlands, and groundwater. And despite the intentional discharge of lead shot at the shooting range, the complaint could support a claim for damages to third-party property based on the accidental, or unintentional, conduct of the operator. And the nuisance claims do not fall outside the policy period.Douglas Ridge Rifle Club v. St. Paul Fire & Marine Insurance Co., No. 08-29, 40 ELR 20021 (D. Or. Jan. 8, 2010) (Acosta, M.J.).

WATER RIGHTS, CONSTITUTIONAL LAW, CONTRACTS

A California court voided an agreement between California and the four major Southern California water agencies (Metropolitan Water District, Imperial Irrigation District, Coachella Valley Water District, and San Diego County Water Authority) concerning the allocation of water from the Colorado River. The agreement, under which California must pick up the tab for any mitigation costs exceeding the capped contribution of the other parties, violates the California Constitution. The mitigation costs, while contingent, are projected to cost well in excess of the constitutional debt limit, but the obligation is not conditioned upon an appropriation by the state legislature. It therefore contractually binds future legislators' hands in contravention of the state constitution. Were the court to validate the agreement, executive agencies of the state would be able to contract for amounts well over the constitutional debt limit where some amount is contingent but everyone knows there is a very real possibility that the debt limit amount will be exceeded by simply adding language saying the obligation is an "unconditional contractual obligation of the state not conditioned upon an appropriation by the legislature." The court, however, stayed the effectiveness of the judgment until the deadline to file a notice of appeal expires.In re QSA Cases, No. JC4353, 40 ELR 20020 (Cal. Super. Ct. Jan. 13, 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 extended by one year the deadline for promulgating initial area designations for the ozone NAAQS that were promulgated in March 2008; the new deadline is March 12, 2011.75 FR 2936(1/19/10).
  • EPA updated the outer continental shelf air regulations for New Jersey.75 FR 3617(1/22/10).
  • EPA updated the outer continental shelf air regulations for Alaska .75 FR 3387(1/21/10).
  • EPA updated the outer continental shelf air regulations for Alaska regarding emissions user fees.75 FR 3392(1/21/10).
  • EPA proposed to the update the outer continental shelf air regulations for Alaska regarding emissions user fees; see above for direct final rule.75 FR 3423(1/21/10).
  • EPA proposed to extend the deadline for promulgating initial area designations for the ozone NAAQS that were promulgated in March 2008 (see above for direct final rule).75 FR 2938(1/19/10).
  • SIP Approval:California (volatile organic compound (VOC) emissions for the San Joaquin Valley air pollution control district)75 FR 2796(1/19/10).
  • SIP Proposals:California (nitrogen oxide emissions for the San Joaquin Valley unified air pollution control district)75 FR 3680(1/22/10). Kentucky (1997 eight-hour ozone NAAQS for the Owensboro attainment area through 2020)75 FR 3183(1/20/10). Ohio (conditional approval of revisions to VOC regulations)75 FR 3668(1/22/10).

WILDLIFE:

  • NOAA-Fisheries announced its 12-month determination to deny a petition to revise the critical habitat designation for elkhorn and staghorn corals in four areas of Florida, Puerto Rico, and the U.S. Virgin Islands.75 FR 3711(1/22/10).
  • FWS announced its 12-month finding on a petition to remove the California/Oregon/Washington population of the marbled murrelet from the list of endangered and threatened wildlife under the ESA; the Agency determined that removing the murrelet from the list is not warranted.75 FR 3424(1/21/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Davenport Realty Trust, No. 1:07-cv-00010-PB (D.N.H. Jan. 8, 2010). A settling CERCLA defendant must pay $120,000 in U.S. response costs incurred at the Beede Waste Oil Superfund site in Plaistow, New Hampshire.75 FR 2887(1/19/10).
  • United States v. City & County of Denver, No. 1:97-cv-1611 (D. Colo. Jan. 8, 2010). A settling CERCLA party must implement certain institutional controls at the Denver Radium Superfund site, and the United States must pay Denver $550,000 in response costs relating to the site but is released from a having to pay a local disposal fee for its remedial actions at the site.75 FR 2888(1/19/10).

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

THE CONGRESS

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

Chamber Action

  • H.R. 3759 (BLM Contract Extension Act), which would grant economy-related contract extensions of certain timber contracts between the Secretary of the Interior and timber purchasers, was passed by the House. 156 Cong. Rec. H151 (daily ed. Jan. 19, 2010).
  • H.R. 3254 (Taos Pueblo Indian Water Rights Settlement Act),which would approve the Taos Pueblo Indian Water Rights Settlement Agreement, was passed by the House. 156 Cong. Rec. H272 (daily ed. Jan. 20, 2010).
  • H.R. 1065 (White Mountain Apache Tribe Water Rights Quantification Act), which would resolve water rights claims of the White Mountain Apache Tribe in the state of Arizona, was passed by the House. 156 Cong. Rec. H290 (daily ed. Jan. 20, 2010).

Committee Action

  • S. 313 (water rights)was reported by the Committee on Indian Affairs. S. Rep. No. 111-119, 156 Cong. Rec. S52 (daily ed. Jan. 21, 2010). The bill would resolve water rights claims of the White Mountain Apache Tribe in the state of Arizona.
  • S. 375 (water rights)was reported by the Committee on Indian Affairs. S. Rep. No. 111-118, 156 Cong. Rec. S52 (daily ed. Jan. 21, 2010). The bill would authorize the Crow Tribe of Indians water rights settlement.
  • S. 965 (water rights)was reported by the Committee of Indian Affairs. S. Rep. No. 111-117, 156 Cong. Rec. S51 (daily ed. Jan. 20, 2010). The bill would approve the Taos Pueblo Indian Water Rights Settlement Agreement.
  • S. 1105 (water infrastructure) was reported by the Committee of Affairs. S. Rep. No. 111-115, 156 Cong. Rec. S51 (daily ed. Jan. 20, 2010). The bill would develop water infrastructure in the Rio Grande Basin and approve the settlement of the water rights claims of the Pueblos of Nambe, Pojoaque, San Ildefonso, and Tresuque.
  • H.R. 3538 (national forests)was reported by the Committee on Natural Resources. H. Rep. No. 111-398, 156 Cong. Rec. H193 (daily ed. Jan. 19, 2010). The bill would authorize the continued use of certain water diversions located on National Forest System land in the Frank Church-River of No Return Wilderness and the Selway-Bitterroot Wilderness in the state of Idaho.
  • H. Res. 1017 (water rights)was reported by the Committee on Rules. H. Rep. No. 111-399, 156 Cong. Rec. H193 (daily ed. Jan. 19, 2010). The resolution would provide for consideration of H.R. 3254, approving the Taos Pueblo Indian Water Rights Settlement Agreement; H.R. 3342, authorizing the Secretary of the Interior to develop water infrastructure in the Rio Grande Basin and to approve the settlement of the water rights claims of the Pueblos of Nambe, Pojaoque, San Ildefonso, and Tesuque; and H.R. 1065, resolving water rights claims of the White Mountain Apache Tribe in the state of Arizona.

Bills Introduced

  • S. 2933 (Voinovich, R-Ohio) (national parks)would authorize the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of designating the Colonel Charles Young Home in Xenia, Ohio, as a unit of the National Park System. 156 Cong. Rec. S51 (daily ed. Jan. 20, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2941 (Bingaman, D-N.M.) (nuclear testing) would authorize supplemental ex gratia compensation to the Republic of the Marshall Islands for impacts of the nuclear testing program of the United States. 156 Cong. Rec. S51 (daily ed. Jan. 20, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2946 (Stabenow, D-Mich.) (water) would direct the Secretary of the Army to take action with respect to the Chicago waterway system to prevent the migration of bighead and silver carps into Lake Michigan. 156 Cong. Rec. S122 (daily ed. Jan. 21, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. Joint Res. 26 (Stabenow, D-Mich.) (air) would disapprove a rule submitted by EPA relating to the endangerment finding and the cause or contribute findings for greenhouse gases under CAA §202(a). 156 Cong. Rec. S122 (daily ed. Jan. 21, 2010). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 4474 (Minnick, D-Idaho) (national forests)would authorize the continued use of certain water diversions located on National Forest System land in the Frank Church-River of No Return Wilderness and the Selway-Bitterroot Wilderness in the state of Idaho. 156 Cong. Rec. H265 (daily ed. Jan. 20, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4477 (Bishop, D-N.Y.) (hazardous waste) would require the Secretary of Defense to establish a medical surveillance system to identify members of the Armed Forces exposed to chemical hazards resulting from the disposal of waste in Iraq and Afghanistan and to prohibit the disposal of waste by the Armed Forces in a manner that would produce dangerous levels of toxins. 156 Cong. Rec. H265 (daily ed. Jan. 20, 2010). The bill was referred to the Committee on Armed Services.
  • H.R. 4485 (Hall, R-Tex.) (land transfer)would require transfer of the 1002 Area of Alaska to the state of Alaska. 156 Cong. Rec. H325 (daily ed. Jan. 21, 2010). The bill was referred to the Committee on Natural Resources and the Committee on Foreign Affairs.
  • H.R. 4488 (Filner, D-Cal.)(wildlands firefighting)would implement updated pay and personnel policies in order to improve the recruitment and retention of qualified federal wildland firefighters and to reduce the government's reliance on the more costly services of non-federal wildfire resources. 156 Cong. Rec. H325 (daily ed. Jan. 21, 2010). The bill was referred to the Committees on Oversight and Government Reform, Natural Resources, Agriculture, and Armed Services.
  • H.R. 4491 (Speier, D-M.P.) (national parks)would authorize the Secretary of the Interior to conduct a study of alternatives for commemorating and interpreting the role of the Buffalo Soldiers in the early years of the National Parks. 156 Cong. Rec. H326 (daily ed. Jan. 21, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4493 (Bordallo, D-Guam) (marine national monument)would provide for the enhancement of visitor services, fish and wildlife research, and marine and coastal resource management on Guam related to the Marianas Trench Marine National Monument. 156 Cong. Rec. H325 (daily ed. Jan. 21, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4497 (Hastings, D-Fla.) (wildlife)would expand the workforce of veterinarians specialized in the care and conservation of wild animals and their ecosystems and develop educational programs focused on wildlife and zoological veterinary medicine. 156 Cong. Rec. H325 (daily ed. Jan. 21, 2010). The bill was referred to the Committees on Agriculture, Natural Resources, and Ways and Means.
  • H. Res. 1020 (Markey, D-Colo.) (national parks)would honor the 95th anniversary of the signing of the Rocky Mountain National Park Act. 156 Cong. Rec. H265 (daily ed. Jan. 20, 2010). The resolution was referred to the Committee on Natural Resources.
  • H. Res. 1027 (Sablan, D-Cal.) (oceans)would recognize the 50th anniversary of the historic dive to the Challenger Deep in the Mariana Trench, the deepest point in the world's oceans, on January 23, 1960, and its importance to marine research, ocean science, a better understanding of the planet, and the future of human exploration. 156 Cong. Rec. H325 (daily ed. Jan. 21, 2010). The resolution was referred to the Committee on Science and Technology.

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:

ArkansasLouisianaNevadaFloridaMainePennsylvaniaIndianaMontana 

ARKANSAS

Energy:

FLORIDA

Fisheries:

  • The Fish and Wildlife Conservation Commission will hold a meeting on proposed amendment to Fla. Admin. Code r. 68-1.003, Florida Fish and Wildlife Conservation Commission Grants Program; 68-5.001, Introduction of Non-native Species into the State; 68-5.002, Conditional Non-native Species; 68-5.003, Prohibited Non-native Species; 68A-1.004, Definitions; 68A-4.004, Possession of Wildlife or Freshwater Fish or the Carcasses Thereof; and 68A-9.002, Permits to Take Wildlife or Freshwater Fish for Justifiable Purposes. The meeting will be February 17-18, 2010. Seehttps://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2010/3602/3602doc.pdf(pp. 137-47)

INDIANA

Toxic Substances:

  • The Department of Environmental Management will hold a public hearing on proposed amendments to Ind. Admin. Code tit. 318, r. 1, concerning inspection and cleanup of properties contaminated with chemicals used in the illegal manufacture of controlled substances. The hearing will be February 24, 2010. Seehttp://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-671

LOUISIANA

Air:

  • The Department of Environmental Quality proposed to adopt La. Admin. Code tit. 33:III §§2201 and 2202, Control of Emissions of Nitrogen Oxides. The rules would provide a new contingency plan to further control emissions of nitrogen oxides from facilities located in the Baton Rouge area and the region of influence in the event that U.S. EPA notifies the department that the Baton Rouge area has exceeded the 1997 eight-hour NAAQS for ozone and contingency has been triggered. Seehttp://www.doa.la.gov/osr/reg/1001/1001.pdf(pp. 59-63)

MAINE

Hazardous & Solid Waste:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Code Me. R. §§400, Solid Waste Management Rules General Provisions; 401, Landfill Disposal Facilities; and 409, Processing Facilities/Amendments. The amendments would establish standards and requirements related to the use of residuals from the processing of construction and demolition debris as cover or grading material in landfills; the requirements of solid waste processing facilities to recycle or reuse wastes accepted at the facility to the maximum extent practicable and in no case less than 50%; and the definition of "residual." The hearing will be February 18, 2010. Seehttp://www.maine.gov/dep/rwm/rules/rulemaking.htm

MONTANA

Toxic Substances:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Mont. Admin. R. 17.56.506, 17.56.507, 17.56.607, 17.56.608, pertaining to reporting of confirmed releases and release categorization. The hearing will be February 3, 2010. Seehttp://deq.mt.gov/dir/legal/Notices/17-300pro.pdf

NEVADA

Energy:

PENNSYLVANIA

Air:

  • The Environmental Quality Board proposed amendments to 25 Pa.Code §129, Large Appliance and Metal Furniture Surface Coating Processes. The amendments would limit emissions of volatile organic compounds from the use and application of coatings and cleaning materials in large appliance and metal furniture surface coating processes. Seehttp://www.pabulletin.com/secure/data/vol40/40-3/104.html

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

INTERNATIONAL

GERMANY SLASHES SOLAR PANEL SUBSIDIES

In a move to ease the world's largest solar market toward free competition, Germany slashed subsidies for solar power, drawing howls of protest from panel manufacturers. Environment Minister Norbert Roettgen set out a 15-percent cut in so-called feed-in tariffs--prices utilities are obliged to pay to generators of renewable energy--for new roof-mounted solar power from April. Frank Asbeck, head of Germany's biggest solar company by revenue, SolarWorld, said the cuts were unacceptable. Marko Schulz, board member at Q-Cells, one of the world's largest makers of solar cells, told Reuters that "the drastic short-term reduction of the tariffs in the German renewable Act will have significantly negative consequences on the German solar industry."Proponents of cuts say the industry is overly subsidized and the recent price slump that has gripped the industry needs to be reflected in the subsidies.For the full story, visithttp://www.reuters.com/article/idUSTRE60J2QW20100120

BUILDINGS THREATEN UK EMISSION TARGETS, REPORT SAYS

The United Kingdom's targets for cutting carbon emissions by 2050 will not be met without radical changes to the engineering of buildings, according to a report issued by the Royal Academy of Engineering. The report,Engineering a Low Carbon Built Environment, lays out a groundwork for reducing the environmental impact of new buildings as well as refurbishment of old ones. It adds there is a serious skills gap in the sector that could grow worse. Current regulations hold that new homes should be "zero-carbon" by 2016 and all other new build should reach that target by 2020. However, the report asserts that the principles that could be applied to drastically reduce energy consumption are simply not being used. It says that many building principles, such as those that retain heat in a building or make good use of natural light, were known to the Romans but are still not being implemented in modern buildings as much as they could be. For the full story, visithttp://news.bbc.co.uk/2/hi/science/nature/8469070.stm

NATIONS STICK TO CO2 GOALS BEFORE JAN. 31 DEADLINE

The world is showing only lukewarm enthusiasm for a "Copenhagen Accord" to curb climate change, with no sign so far of deeper-than-planned 2020 curbs on greenhouse gas emissions before a January 31 deadline. In Brussels, a draft European Union letter last Friday showed plans for the 27-nation bloc to reiterate a minimum offer of a 20 percent cut in emissions by 2020 below 1990 levels, pleasing industry, and a 30 percent cut if other nations act comparably. Other countries are likely to do the same after last month's Copenhagen summit. No nations have since announced radically tougher plans for action. "I think that countries are going to stick to their ranges," said Nick Mabey, head of the E3G think-tank in London. He said it was too early for an overhaul of national goals. "It's almost like the beginning of a new negotiation," said Gordon Shepherd, director of international policy at the WWF environmental group. Many countries were still torn between showing "a burst of enthusiasm" to rebuild momentum after Copenhagen and "complete caution," taking time to review next moves, he said. Few countries have so far sent letters to the U.N. Climate Change Secretariat before the deadline for outlining goals for 2020 set by the Copenhagen Accord, which was worked out by major emitters led by China and the United States. For the full story, seehttp://www.alertnet.org/thenews/newsdesk/LDE60L1EB.htm

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

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