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Weekly Update Volume 41, Issue 10

04/04/2011

LITIGATION 

CONSTITUTIONAL LAW, PREEMPTION, AIR POLLUTION:

The Ninth Circuit upheld, on statutory and constitutional grounds, California's vessel fuel rules as they apply to vessels located more than three miles off the California coast. The rules, which seek to reduce air pollutants affecting the state of California, require ocean-going vessels to use cleaner marine fuels. A shipping vessel association sought declaratory and injunctive relief on the grounds that the rules, insofar as they purport to regulate conduct seaward of California's three-mile boundary, are preempted by the Submerged Lands Act. But in light of the applicable presumption against preemption, the lower court properly denied the association's motion for summary judgment. A state law regulating extraterritorial conduct in the high seas immediately adjacent to the state's territorial waters that satisfies the well-established effects test should generally be sustained. Applying the effects test to the vessel fuel rules at issue here, the court concluded that there are genuine issues of material fact with respect to the regulations' effects on the health and well-being of the state's residents as well as the actual impact of these regulations on maritime and foreign commerce. The association also failed to show that it was entitled to summary judgment on its claims that the rules violate the dormant Commerce Clause and general maritime law. The exceptionally powerful state interest at issue here far outweighs any countervailing federal interests, and neither the Commerce Clause nor general maritime law should be used to bar a state from exercising its own police powers in order to combat these severe problems. Pacific Merchant Shipping Ass'n v. Goldstene, No. 09-17765, 41 ELR 20126 (9th Cir. Mar. 28, 2011).


CONSTITUTIONAL LAW, ESA:

The Ninth Circuit held that ESA §§7 and 9, as applied to the California delta smelt, do not violate the Commerce Clause. In 2008, the FWS issued a biological opinion (BiOp) to the Bureau of Reclamation concerning two federal and state water diversion projects in California's Central Valley. Because the BiOp concluded that the projects were likely to jeopardize the continued existence of the delta smelt and adversely modify its habitat, the FWS included a Reasonable and Prudent Alternative and Incidental Take Statement in the BiOp requiring the Bureau to reduce water flows at certain times of the year. California nut growers filed suit, claiming that their orchards experienced substantially reduced water deliveries as a result of the FWS' decision. They argued that because the delta smelt is a purely intrastate species, and because it has no commercial value, ESA §§7 and 9 as applied in this case are invalid under the Commerce Clause. Although the growers have standing and their claims are ripe for review, their as-applied Commerce Clause challenge fails because the ESA bears a substantial relation to commerce. Congress has the power to regulate purely intrastate activity as long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce. There is no doubt that the ESA is "substantially related" to interstate commerce. The growers’ as-applied challenge to ESA §§7 and 9 therefore failed. San Luis & Delta-Mendota Water Authority v. Salazar, No. 10-15192, 41 ELR 20124 (9th Cir. Mar. 25, 2011).


CAA, SIPs, ATTAINMENT DEMONSTRATION:

The Ninth Circuit upheld EPA's determination that a California SIP that imposes limits on motor vehicle emissions for years 2009 and 2012 are adequate for purposes of the state's transportation plans and projects. Although EPA’s overall approval process of the SIP is still underway, the Agency's adequacy determination allows California to approve transportation plans and projects that otherwise could not proceed. Environmental groups filed a petition for review, arguing that the CAA and its implementing regulations require EPA to consider attainment data when determining the adequacy of milestone-year budgets. But EPA's reading of its own regulations, which does not require an approvable attainment demonstration, is reasonable. Because the Agency is entitled to substantial deference on the matter, EPA's determination was not arbitrary, capricious, or otherwise contrary to law and the groups' petition was denied. Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, No. 08-72288, 41 ELR 20129 (9th Cir. Mar. 30, 2011).


BALD AND GOLDEN EAGLE PROTECTION ACT, RELIGIOUS FREEDOM RESTORATION ACT:

The Tenth Circuit held that an individual's conviction under the Bald and Golden Eagle Protection Act for unlawfully possessing 141 eagle feathers does not violate the Religious Freedom Restoration Act of 1993. The individual is a follower of a Native American faith but is neither a member of a federally recognized tribe nor Indian by birth. Contrary to the decision of the lower court, the existing scheme for issuing eagle feather possession permits and enforcing the Eagle Act is the least restrictive means of forwarding the government's compelling interests. By allowing only members of federally recognized tribes an essential though otherwise prohibited commodity (eagle feathers and parts), the United States ensures that those tribes are able to continue to practice their traditional culture to the greatest extent possible. And by limiting the permitting process to only members of those recognized tribes, the United States does its best to guarantee that those tribes, which share a unique and constitutionally protected relationship with the federal government, will receive as much of a very scarce resource as possible. The lower court's preferred alternative regulation scheme--opening the permitting process to all sincere practitioners of Native American religion--would fail to advance the government's compelling interest in preserving the religion and culture of federally recognized Indian tribes. And the individual's proffered alternative regulatory scheme--allowing members of tribes to give feathers to non-members who practice Native American religion--also fails to advance the government's compelling interest in protecting and fostering the religion and culture of federally recognized Indian tribes. United States v. Wilgus, No. 09-4046, 41 ELR 20125 (10th Cir. Mar. 29, 2011).


TAKINGS, FLOODING:

The Federal Circuit held that the U.S. Army Corps of Engineers' temporary deviations from the water release rates set forth in an operating plan for the Clearwater Dam that caused increased flooding in Arkansas' Dave Donaldson Black River Wildlife Management Area, which in turn caused excessive timber mortality, did not constitute a taking. The flooding caused excessive timber mortality in the area. The state fish and game commission, which owns the management area, filed a physical takings claim against the United States, claiming that the temporary deviations constituted a taking of a flowage easement, entitling it to compensation. The lower court agreed and awarded the commission a total of $5,778,757.90 in damages. But because the deviations from the operating plan at issue here were only temporary, they cannot constitute a taking. The actions at most created tort liability. Flooding must be a permanent or inevitably recurring condition, rather than an inherently temporary situation, to constitute the taking of a flowage easement. Although the government cannot avoid takings liability by characterizing inevitably recurring events as merely a series of temporary decisions, the Corps' regulatory scheme clearly distinguishes between permanent and temporary release rates. The deviations in question were plainly temporary and the Corps eventually reverted to the permanent plan. Under such circumstances, the releases cannot be characterized as inevitably recurring. Arkansas Game & Fish Commission v. United States, No. 2009-5121, 41 ELR 20128 (Fed. Cir. Mar. 30, 2011).


ESA, DELISTING:

A district court vacated the FWS' removal of the Virginia Northern Flying Squirrel from the list of endangered species. Instead of applying the criteria set forth in the squirrel's recovery plan when it issued the delisting rule, the FWS conducted an analysis based on the five listing factors contained in ESA §4(a)(1), concluding that it need only meet the "intent" of the criteria laid out in the recovery plan. In so doing, the FWS effectively revised its recovery plan for the squirrel without providing notice-and-comment in violation of ESA §4(f). When the FWS establishes recovery criteria for a species or subspecies in a formal recovery plan, the agency is required to abide by those criteria in making status determinations unless it amends the recovery plan in the manner ordained by the ESA. Here, the FWS' decision to set aside two of the criteria in its recovery plan constituted a revision to the plan within the meaning of the ESA. The court therefore vacated and remanded the delisting rule. Friends of Blackwater v. Salazar, No. 09-2122, 41 ELR 20127 (D.D.C. Mar. 25, 2011) (Sullivan, J.).


FLPMA, APA:

A district court held that the Secretary of the Interior violated FLPMA and the APA when he withdrew a record of decision (ROD) adopting six revised resource management plans, collectively known as the Western Oregon Plan Revisions, for 2.5 million acres of BLM lands in western Oregon. The Secretary did not dispute that he failed to follow the FLPMA procedures when he withdrew the ROD on July 19, 2009. Rather, the government argued that the Secretary had "inherent authority" to reconsider and withdraw the ROD (which was adopted in December 2008 under the previous Administration) due to "legal error" since the BLM had improperly concluded that it was not obligated to engage in inter-agency consultation under the ESA. But the Secretary does not have inherent authority to withdraw the Western Oregon Plan Revisions ROD absent compliance with FLPMA's formal notice-and-comment proceedings. Further, the possibility that the BLM's failure to consult under the ESA was unlawful does not render the ROD "unlawful" nor excuse the Secretary's failure to follow the FLPMA planning procedures. Consequently, the Secretary's decision to withdraw the 2008 ROD without following the procedures required under the FLPMA violated the APA. Douglas Timber Operators, Inc. v. Salazar, No. 09-1704, 41 ELR 20130 (D.D.C. Mar. 31, 2011) (Bates, J.).


CERCLA, PCBs, ARRANGER LIABILITY:

A district court held that utilities who sold used transformers to a scrap metal company in the 1970s are not liable under CERCLA or the Connecticut Environmental Protection Act. After Connecticut's environmental department discovered PCB contamination on the property, the current owner of the property filed suit arguing that the utilities arranged for the disposal of PCBs when it sold the transformers to the scrap metal company. The owner argued that EPA regulations setting forth PCB concentration assumptions create a rebuttable presumption that transformers manufactured prior to July 2, 1979, contained PCBs. But the EPA regulations apply only to transformers that are in use or in storage for reuse. The regulations do not apply to the disposal of transformers. And even if the transformers did contain PCBs, the utilities are not "arrangers" under CERCLA §107(a). The owner produced no evidence that could support a conclusion that the utilities intended to dispose of transformer oil containing PCBs when they sold the transformers for use as scrap metal. Schiavone v. Northeast Utilities Service Co., No. 3:08CV429, 41 ELR 20132 (D. Conn. Mar. 22, 2011) (Thompson, J.).


CERCLA, PRE-ENFORCEMENT REVIEW:

A district court dismissed a city's CERCLA §107(a) suit against the United States to recover past and future response costs incurred at the former Schilling Air Force Base area in Salina, Kansas. CERCLA §113(h) bars challenges to ongoing response actions being taken under §104. Here, the U.S. Army Corps of Engineers is conducting an ongoing response action at the site under the Formerly Used Defense Sites program, which operates under the authority of CERCLA §104. In addition, the city's requested relief will interfere with the Corps' removal action, and the city does not argue otherwise. Accordingly, because the United States has "selected a removal or remedial action" under §104 and because the city's claims present a "challenge" to that removal or remedial action, the jurisdictional bar of §113(h) applies. City of Salina, Kansas v. United States, No. 10-2298, 41 ELR 20133 (D. Kan. Mar. 25, 2011) (Murguia, J.).


CERCLA, SUCCESSOR LIABILITY:

A district court held that the current owner of a service station may be held liable under CERCLA for the actions of its predecessor and therefore dismissed the owner's motion for summary judgment. The owner's predecessor allegedly generated and then disposed of waste oil at the site between 1982 and 1986. Although the current owner purchased its predecessor's business in 1999, the owner argues that it purchased only certain limited assets and therefore bears no responsibility for the costs of environmental remediation for dumping that took place before 1999. Successor liability may be found if the transaction is determined to be a de facto merger or if the successor is a "mere continuation" of its predecessor. Based on the evidence presented, the court cannot conclude with certainty that the new service station was created by a de facto merger with the predecessor service station or that it was a mere continuation of the previous operation. However, there is a genuine, unresolved dispute concerning the current service station's status. As such, the owner failed to meet its burden of demonstrating an absence of genuine issues of material fact that would entitle it to summary judgment on the issue of successor liability. Members of the Beede Site Group v. Federal Home Loan Mortgage Corp., No. 09-370, 41 ELR 20134 (D.N.H. Mar. 21, 2011) (Smith, J.).


INSURANCE, POLLUTION EXCLUSION:

A district court held that insurers have no duty to defend or indemnify a city in over two dozen underlying lawsuits alleging that the city delivered contaminated tap water to its residents. The insurance policies at issue contain pollution exclusion clauses. Under Illinois law, a pollution exclusion only applies to traditional environmental pollution. Here, the underlying complaints arise from traditional environmental pollution--the contamination of a water supply--rather than from normal business operations. The underlying complaints allege that the city spread this contamination to thousands of people for decades, causing serious injuries and even death. This widespread contamination is not simply a run-of-the-mill mishap that happens to involve a hazardous chemical, but rather a potentially enormous environmental liability that the pollution exclusion was intended to avoid. Scottsdale Indemnity Co. v. Village of Crestwood, No. 09 C 4472, 41 ELR 20131 (N.D. Ill. Mar. 24, 2011) (Kendall, J.).


Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).


AIR:



  • EPA determined that hydrofluoroolefin-1234yf is an acceptable substitute for chlorofluorocarbon-12, an ozone-depleting substance, in motor vehicle air conditioning for new passenger cars and light-duty trucks. 76 FR 17488 (3/29/11).

  • EPA finalized revisions to its Protocol Gas Verification Program and the minimum competency requirements for air emissions testing. 76 FR 17288 (3/28/11).

  • EPA extended and clarified its stay of the final rule entitled "Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions." 76 FR 17548 (3/30/11).

  • EPA approved California's airborne toxic control measure for perchloroethylene emissions from dry cleaning and water-repelling operations in place of the national standards. 76 FR 18064 (4/1/11).

  • EPA approved the Gila River Indian Community's tribal implementation plan to regulate air quality within the exterior boundaries of the tribe's reservation. 76 FR 17028 (3/28/11).

  • EPA entered into a proposed settlement agreement in WildEarth Guardians v. Jackson, No. 3:10-cv-04603-WHA (N.D. Cal.), that establishes a deadline for the Agency to take action on NAAQS for Arizona, Nevada, Pennsylvania, and Tennessee. 76 FR 17416 (3/29/11).

  • SIP Approval: Nevada (attainment of the 1997 eight-hour ozone NAAQS for the Clark County nonattainment area) 76 FR 17343 (3/29/11).

  • SIP Proposals: Kansas (1997 ozone NAAQS) 76 FR 17599 (3/30/11). Louisiana (termination of anti-backsliding fee program) 76 FR 17368 (3/29/11). Missouri (1997 ozone NAAQS) 76 FR 17585 (3/30/11). Nebraska (1997 ozone NAAQS) 76 FR 17592 (3/30/11). Nevada (attainment of the 1997 eight-hour ozone NAAQS for the Clark County nonattainment area; see above for direct final rule) 76 FR 17373 (3/29/11). New York (reasonable further progress plans, emissions inventories, contingency measures and motor vehicle emissions budgets) 76 FR 17801 (3/31/11).

WILDLIFE:



  • FWS reclassified the Okaloosa darter from endangered to threatened under the ESA due to a substantial improvement in the species' status. 76 FR 18087 (4/1/11).

  • FWS announced a 90-day finding on a petition to list the spring pygmy sunfish as endangered under the ESA; the agency found that listing is warranted and initiated a status review. 76 FR 18138 (4/1/11).

DOJ NOTICE OF SETTLEMENT:



  • United States v. Mariana Acquisition Corp., No. CV 11-0006 (N.M.I. Mar. 21, 2011). A settling CAA defendant responsible for volatile organic compound (VOC) emissions from its bulk gasoline terminal in Saipan, Northern Marianas Islands, must pay a $826,000 civil penalty, must install the required vapor collection system, and must limit VOC emissions. 76 FR 17671 (3/30/11).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


THE CONGRESS

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


Committee Action:



  • H.R. 872 (pesticides) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 112-43, 157 Cong. Rec. H2306 (daily ed. Mar. 29, 2011). The bill would amend FIFRA and the Federal Water Pollution Control Act to clarify congressional intent regarding the regulation of the use of pesticides in or near navigable waters.

Bills Introduced:



  • S. 661 (Lautenberg, D-N.J.) (oil spill dispersants) would amend the Federal Water Pollution Control Act to ensure the safe and proper use of dispersants in the event of an oil spill or release of hazardous substances. 157 Cong. Rec. S1933 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 662 (Vitter, R-La.) (Deepwater Horizon spill) would provide for payments to certain natural resource trustees to assist in restoring natural resources damaged as a result of the Deepwater Horizon oil spill. 157 Cong. Rec. S1933 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 667 (Bingaman, D-N.M.) (federal land) would establish the Rio Grande del Norte National Conservation Area in the state of New Mexico. 157 Cong. Rec. S1933 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 683 (Lee, R-Utah) (federal land) would provide for the conveyance of certain parcels of land to the town of Mantua, Utah. 157 Cong. Rec. S1976 (daily ed. Mar. 30, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 684 (Lee, R-Utah) (federal land) would provide for the conveyance of certain parcels of land to the town of Alta, Utah. 157 Cong. Rec. S1976 (daily ed. Mar. 30, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 699 (Bingaman, D-N.M.) (carbon dioxide storage) would authorize the Secretary of Energy to carry out a program to demonstrate the commercial application of integrated systems for long-term geological storage of carbon dioxide. 157 Cong. Rec. S2046 (daily ed. Mar. 31, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 710 (Thune, R- S.D.) (electronic waste) would amend the Solid Waste Disposal Act to direct the Administrator of EPA to establish a hazardous waste electronic manifest system. 157 Cong. Rec. S2046 (daily ed. Mar. 31, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 711 (Lautenberg, D-N.J.) (drinking water) would amend the SDWA and the Federal Water Pollution Control Act to authorize the Administrator of EPA to reduce or eliminate the risk of releases of hazardous chemicals from public water systems and wastewater treatment works. 157 Cong. Rec. S2046 (daily ed. Mar. 31, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 713 (Webb, D-Va.) (federal land) would modify the boundary of Petersburg National Battlefield in the Commonwealth of Virginia. 157 Cong. Rec. S2046 (daily ed. Mar. 31, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 1228 (Landry, R-La.) (Deepwater Horizon spill) would provide for payments to certain natural resource trustees to assist in restoring natural resources damaged as a result of the Deepwater Horizon oil spill. 157 Cong. Rec. H2037 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 1230 (Hastings, R-Wash.) (offshore drilling) would require the Secretary of the Interior to conduct certain offshore oil and gas lease sales. 157 Cong. Rec. H2037 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1237 (Herger, R-Cal.) (federal land) would provide for a land exchange with the Trinity Public Utilities District of Trinity County, California, involving the transfer of land to the BLM and the Six Rivers National Forest in exchange for National Forest System land in the Shasta-Trinity National Forest. 157 Cong. Rec. H2037 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1241 (Lujan, D-N.M.) (federal land) would establish the Rio Grande del Norte National Conservation Area in the state of New Mexico. 157 Cong. Rec. H2037 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1242 (Markey, D-Mass.) (nuclear power) would ensure that nuclear power plants can withstand and adequately respond to earthquakes, tsunamis, strong storms, or other events that threaten a major impact. 157 Cong. Rec. H2037 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1243 (Nadler, D-N.Y.) (taxi emissions) would authorize states or political subdivisions thereof to regulate fuel economy and emissions standards for taxicabs. 157 Cong. Rec. H2037 (daily ed. Mar. 29, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1251 (Costa, D-Cal.) (ESA) would provide congressional direction for implementation of the ESA as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the state of California. 157 Cong. Rec. H2106 (daily ed. Mar. 30, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1258 (Bishop, R-Utah) (federal land) would provide for the conveyance of parcels of land to Mantua, Box Elder County, Utah. 157 Cong. Rec. H2106 (daily ed. Mar. 30, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1292 (Cuellar, D-Tex.) (greenhouse gases) would amend the CAA to provide that greenhouse gases are not subject to the Act. 157 Cong. Rec. H2214 (daily ed. Mar. 31, 2011). The bill was referred to the Committee on Energy and Commerce.

Copyright© 2011, 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 2011, visit our list of Cumulative State Developments. For state material reported prior to 2011, visit the ELR Archives.


The states below have updates this week:

Florida
Rhode Island

South Carolina
Texas

FLORIDA


Water:



  • The Department of Agriculture and Consumer Services proposed to amend 5M Fla. Admin. Code §13.001, Best Management Practices for Florida Specialty Fruit and Nut Crop Operations. Changes would implement best management practices to ensure that certain agricultural discharges have minimal individual or cumulative adverse impacts to state water resources. The deadline for public comment is April 6, 2011. See https://www.flrules.org/gateway/ruleNo.asp?id=5M-13.001.

RHODE ISLAND


Air:



  • The Department of Environmental Management adopted Air Pollution Control Regulation No. 48, Outdoor Wood Boilers, to limit future sales of outdoor wood-fired boilers to those that meet EPA Phase II emission standards. The rule takes effect April 14, 2011. See http://sos.ri.gov/rules/index.php?page=details&erlid=5940.

SOUTH CAROLINA


Air:



  • The Department of Health and Environmental Control proposed to develop a permit for fuel combustion operations. For purposes of this permit, fuel combustion operations are defined as any facility or plant that only has fuel combustion operations meeting or under a 30 million BTU/hr rated input capacity and is fired on only natural gas, propane, virgin fuel oil, used specification oil, and biodiesel. The deadline for comment is April 25, 2011. See http://www.scdhec.gov/administration/regs/20110325-11-015.htm.

TEXAS


Toxic Substances:



  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §213.31, Discharge of Pesticides. The change is in response to a circuit court decision that provided that NPDES permits are not required to discharge pesticides over state waters. The amendment moves regulation of this pesticide discharge from the NPDES permit program to the Texas Pollution Discharge Elimination System. The amendment took effect March 31, 2011. See http://www.sos.state.tx.us/texreg/pdf/backview/0325/0325is.pdf (pp. 1985-87).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


INTERNATIONAL

UN RELEASES REPORT ON URBANIZATION AND CLIMATE CHANGE

A United Nations study released last week found that a "deadly collision between climate change and urbanization" will take place unless effective urban planning measures can deliver energy and emissions savings. According to the study, an estimated 59 percent of the world's population will live in urban areas by 2030, and cities tend to be energy intensive. The report warned that towns and cities are vulnerable to serious consequences of increased emissions, including increased frequency of heat waves, downpours, and droughts, and increased sea level in some areas of the world. "These changes will affect water supply, physical infrastructure, transport, ecosystem goods and services, energy provision and industrial production," the study wrote. "Local economies will be disrupted and populations will be stripped of their assets and livelihoods." According to Joan Clos, executive director of UN-Habitat, local urban planners and governments may play a large role in affecting climate change, even if national governments fail to address the issue. The report specifically identifies challenges in several urban centers, including barriers to carbon reduction in cities such as Los Angeles and Sao Paulo. For the full story, see http://www.bbc.co.uk/news/science-environment-12881779. For the report, "Global Report on Human Settlements 2011, Cities and Climate Change: Policy Directions," see http://www.unhabitat.org/content.asp?cid=9599&catid=7&typeid=46&subMenuId= 0&AllContent=1. For case studies, see http://www.unhabitat.org/downloads/docs/GRHS2011/SomeCaseStudies.pdf.


HYDROPOWER LAND ACQUISITION SPARKS LOCAL CHINESE PROTESTS

Five days of mass protests around the upper Yangtze River failed to stop China Three Gorges' planned Xiangjiaba hydropower project last week, and the corporation's website still lists June 2012 as the expected start date of electricity generation. Some 2,000 villagers blocked a main road and a bridge over the Yangtze and hurled bricks and stones at police to protest the valuation of the forcible land acquisition for the 40,000 people who are being displaced to make way for the dam, joining green groups that have long opposed the project. China's environmental protection minister said last year that environment-related "mass incidents," such as the 1,000 person demonstration over pollution from an aluminum plant, have been rising at a rate of 30 percent per year. There were 51,000 pollution-related protests in 2005 and 600,000 environmental complaints in 2006. For the full story, see http://www.bloomberg.com/news/2011-04-01/china-three-gorges-hydropower-project-proceeds-as-planned-after-protests.html. For background on the demonstration, see http://www.google.com/hostednews/afp/article/ALeqM5ioAH7U1wEyDeq3BDFEX DpQV_BGzw?docId=CNG.583450bebb349b36f3b01e5eb1000e5f.391. For the story on the aluminum plant protests last year, see http://uk.reuters.com/article/2010/07/15/us-zijin-leakage-idUKTRE66E0P620100715.


OILSANDS CAUSE CONFLICT IN CANADIAN ELECTIONS

Oilsands projects and their subsidies have become a contentious issue in the Canadian federal elections, as the New Democratic Party's Jack Layton vowed to eliminate C$2 billion in oil and gas subsidies and use the money instead for renewable energy. The party has also proposed a moratorium on new oilsands projects pending efforts to manage their environmental impacts. Liberal Leader Michael Ignatieff criticized the current government for failing to regulate the oilsands, saying "I don't want to be a country that is associated with the reputation of having dirty oil." Calgary Southeast Conservative MP Jason Kenney, the regional minister of southern Alberta, agreed that the budget should remove "special incentives" for oilsands, but criticized Layton's "pejorative tone" for the major industry, saying he was trashing the projects for short-term political gain. In addition, Alberta Premier Ed Stelmach said that federal leaders shouldn't be using a resource of national importance to divide the country. However, subsidies for Alberta's oilsands are at risk of being cut in response to growing opposition from First Nations and environmental groups, and the industry will likely have to bear the cost of a new environmental monitoring framework costing C$20 million to collect surface water data. Data monitoring is crucial to the future of the industry, as its continued growth rate depends on project approval contingent on its ability to defend its environmental record. Pat Daniel, Enbridge Inc.’s CEO, spoke of the need for Canada to access markets besides the United States in order to become an energy superpower. Daniel has been meeting with party leaders seeking approval for a new pipeline and an end to efforts to ban oil tanker traffic of the coast of British Columbia. For the full story, see http://www.calgaryherald.com/business/energy-resources/Oilsands+crosshairs+Layton+wants+subsidies+Ignatieff+calls+regulation/4540337/story.html. For the new monitoring scheme, see http://www.foxbusiness.com/markets/2011/03/25/canada-proposes-new-oil-sands-environmental-monitoring-plan/. For Enbridge's efforts, see http://www.theglobeandmail.com/report-on-business/enbridge-pushes-for-political-support-of-oil-sands-pipeline/article1965103/.


Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


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