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Weekly Update Volume 41, Issue 20

07/18/2011

LITIGATION 

FISHERIES, INTERVENTION, MOOTNESS:

The Ninth Circuit held that a seafood processor association may not intervene in environmental groups' lawsuit challenging the National Marine Fisheries Service's program to preserve groundfish species off the coast of California, Oregon, and Washington. A lower court denied the association's motion as untimely. The association appealed, arguing that the lower court erred by basing its decision on the age of the litigation (eight years) rather than the time that had elapsed between the filing of groups' amended complaint and the motion to intervene (two days). While this appeal was pending, however, the underlying litigation ended. Their appeal, therefore, is moot. Contrary to arguments by the association, the "capable of repetition, yet evading review" exception to mootness does not apply. It is not reasonable to expect that this dispute about timeliness will arise again. Nor does the intervention controversy evade review since it is not "inherently limited in duration" nor "likely always to become moot." West Coast Seafood Processors Assn. v. Natural Resources Defense Council, Nos. 09-16245, -16796, 41 ELR 20228 (9th Cir. July 6, 2011).


RCRA, CWA:

A district court held that environmental groups may pursue a RCRA claim against the current and former owners of a steel mill for disposing of hazardous waste without a permit, but dismissed the groups' remaining RCRA and CWA claims. The groups' claims that the mill has released and continues to release hazardous wastes into the environment in violation of RCRA are precluded by EPA's and the state agency's diligent prosecution of the same violations. These claims are almost identical to those in the state agency's 1997 complaint, were addressed by a consent decree, and are now the subject of a dispute resolution petition. However, claims that the mill improperly disposed of and continues to dispose of hazardous waste without RCRA permits are not clearly precluded. While the state agency's 1997 complaint alleges violations of the mill's interim status under RCRA and, thus, alleges a violation of RCRA’s permitting requirement, the resulting consent decree does not appear responsive to these claims. It lists requirements for two on-site landfills at the mill, but it does not require the owner and operator of the mill to obtain a RCRA permit. Accordingly, there is insufficient evidence that the agencies are diligently prosecuting this claim. But the court dismissed the groups' CWA claims. The group filed suit under §311, but a citizen-plaintiff is not authorized to bring a claim for such violation. Only the government can issue fines and penalties under §311 for oil and hazardous waste spills. The groups also alleged that the mill violated CWA §§301(a) and 402(a) by discharging pollutants into navigable waters without a permit. But a permit cannot be required under the CWA for a nonpoint source discharge, and the groups' allegations relate to nonpoint source discharges. Similarly, the groups failed to provide sufficient notice in their claim that the mill violated their NPDES permit. And while the court dismissed two of the groups' state-law claims, the group may go forward with their claim that the mill violated state sediment control regulations. Chesapeake Bay Foundation v. Severstal Sparrows Point, LLC, No. JFM-10-1861, 41 ELR 20231 (D. Md. July 5, 2011) (Motz, J.).


RCRA, CWA:

A district court held that under a 1997 consent decree resolving CWA, RCRA, and state law violations at a steel mill, the current owner is not liable for remediating any discharges that occurred prior to its purchase of the mill out of the previous owner's bankruptcy, but that it must conduct a site-wide investigation to evaluate the risk to human health and the environment from current and past releases of hazardous wastes at the mill. The bankruptcy sale order eliminates the owner's liability for toxic discharge that occurred prior to the date of the order's issuance. But the owner's obligation to conduct a site-wide investigation is a free-standing liability that it assumed when it purchased the assets of the prior owner. Severstal Sparrows Point, LLC v. United States Environmental Protection Agency, Nos. JFM-97-558, -559, 41 ELR 20232 (D. Md. July 5, 2011) (Motz, J.).


CERCLA, RCRA:

A district court granted in part and denied in part motions to dismiss a shipyard owner's CERCLA, RCRA, and tort law claims against the current owner of a steel mill. The court denied motions to dismiss the shipyard's CERCLA claims for contribution and response costs. The complaint contains factual allegations sufficient to demonstrate that some of their response costs substantially comply with the national contingency plan (NCP), and the state agency's involvement during the shipyard's remediation process satisfies the public participation and comment requirement under the NCP. But the court dismissed the shipyard's RCRA claims as they relate to releases resulting from operations at coke ovens that occurred before the mill owners acquired the mill site. Because RCRA requires "contribution" to "disposal" of hazardous waste, rather than simply "disposal" during "ownership," as required by CERCLA, the mill could not have "contributed" to the "disposal" of hazardous waste generated by the coke ovens. The court, however, dismissed the majority of the RCRA claims because EPA and the state agency are diligently prosecuting these claims under a 1997 consent decree. The consent decree does not cover the migration of hazardous substances that occurred after the shipyard site was removed from the consent decree in 2006, resulting from releases of hazardous substances that occurred after April 23, 2003. Therefore, with the exception of any narrow claims relating to post-2006 migration of hazardous substances released post-2003, the shipyard's RCRA claims are barred by diligent prosecution. And the shipyard's state law claims are barred by Maryland’s statute of limitations. SPS Ltd. Partnership, LLLP v. Severstal Sparrows Point, LLC, No. JFM-10-2579, 41 ELR 20233 (D. Md. July 5, 2011) (Motz, J.).


NATIONAL DEFENSE AUTHORIZATION ACT, REIMBURSEMENT:

The Federal Claims Court held that the U.S. government need not indemnify developers for remediation costs they incurred complying with state agency orders concerning property formerly used as a military base. The developers' insurance company sought reimbursement from the government under the 1993 National Defense Authorization Act. Section 330 requires a third-party claim for personal injury or property damage. Here, the orders and oversight by the state agencies do not constitute such claims. The statute envisions a claim by a third party alleging damage to its own person or property. Here, the state has not been harmed in its person or property nor does it appear threatened by future speculative harm. There is a distinction between a state enforcing a generally applicable environmental regulation pursuant to its police power and, as the insurance company argues is the case here, the state bringing a legal claim on behalf of its citizens. Here, the state engaged only in the former. As such, §303 does not apply. Indian Harbor Insurance Co. v. United States, No. 10-680, 41 ELR 20234 (Fed. Cl. July 5, 2011).


WATER QUALITY, PERMITS:

The Supreme Court of Wisconsin upheld the state environmental agency's decision to issue a permit to a town for a municipal well. Two groups challenged the agency's decision to issue the permit without considering the well's potential impact on nearby Lake Beulah, a navigable water. A circuit court affirmed the agency's decision, but the appellate court reversed. It held that the agency has the authority and duty to consider the environmental impact of a proposed high capacity well if presented with sufficient scientific evidence suggesting potential harm to waters of the state and that the agency was presented with such evidence in this case. It therefore remanded the case. Wisconsin's highest court affirmed in part and reversed in part. The agency has the authority and a general duty to consider whether a proposed high capacity well may harm waters of the state. To comply with this general duty, the agency must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state. The court, therefore, affirmed that part of the appellate court's decision. However, based on the record on review, the agency was not presented with sufficient concrete, scientific evidence of potential harm to waters of the state. The court, therefore, reversed the appellate court's remand and affirmed the agency's decision to issue the 2005 permit. Lake Beulah Management District v. Wisconsin Department of Natural Resources, No. 2008AP3170, 41 ELR 20230 (Wis. July 6, 2011).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, EXEMPTIONS:

A California appellate court dismissed a mobile home park owner's complaint challenging a city's environmental impact report (EIR) for a planned railroad grade separation project under the California Environmental Quality Act (CEQA). Below, the county transportation authority intervened in the lawsuit to point out that grade separation projects that eliminate railway crossings, as the one at issue here, are expressly exempt from CEQA. The lower court agreed, and the owner's CEQA-based challenge therefore failed. On appeal, the owner asserts that by preparing and certifying the EIR as if CEQA applied, the city waived any right to later invoke a potential CEQA exemption. But this challenge has no merit, as a statutory exemption applies as a matter of law. In addition, the owner's claim that the city will depart from environmental mitigation measures it adopted in resolutions concerning the project is not ripe. Merely contemplating action and marshalling legal arguments to support potential action does not constitute an actual controversy. Del Cerro Mobile Estates v. City of Placentia, No. G043709, 41 ELR 20229 (Cal. App. 4th Dist. June 7, 2011).


INSURANCE, CALIFORNIA PROPOSITION 65:

A California appellate court held that an insurance company has no duty to defend or indemnify a cosmetics company in an underlying action alleging that it violated Proposition 65, the California Safe Drinking Water and Toxic Enforcement Act. The Proposition 65 claim being asserted against the company is not covered by the policy. The policy provides coverage only for sums that the company becomes legally obligated to pay as damages because of "bodily injury" or "property damage." In the underlying lawsuit, the plaintiff asserted a single cause of action for violation of Proposition 65 for which she, on behalf of the general public, sought injunctive relief and penalties as provided in Health & Safety Code § 25249.7. There was no allegation that the she or any other person had suffered bodily injury as a result of the company's products. Therefore, because the company did not become legally obligated to pay damages due to bodily injury, the policy was not triggered. Ulta Salon, Cosmetics & Fragrance, Inc. v. Travelers Property Casualty Co. of America, No. B224584, 41 ELR 20227 (Cal. App. 4th Dist. June 10, 2011).


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 proposed to determine that June 30, 2013, will be the date when "widespread use" of onboard refueling vapor recovery will occur and the Stage II waiver will be effective. 76 FR 41731 (7/15/11).

  • EPA proposed to extend the global laboratory and analytical use exemption for the production and import of Class I ozone-depleting substances through December 31, 2014. 76 FR 41747 (7/15/11).

  • SIP Approvals: Alabama (1997 eight-hour ozone NAAQS) 76 FR 41100 (7/13/11). California (volatile organic compound (VOC) emissions for the South Coast air quality management district) 76 FR 41717 (7/15/11). Illinois/Indiana/Michigan/Minnesota/ Ohio/Wisconsin (1997 eight-hour ozone and fine particulate matter (PM) NAAQS) 76 FR 41075 (7/13/11). Iowa (substantially inadequate finding for the 2006 24-hour fine PM NAAQS in Muscatine County) 76 FR 41424 (7/14/11). Kansas (1997 NAAQS for ozone) 76 FR 40624 (7/11/11). Kentucky (1997 eight-hour ozone NAAQS) 76 FR 41088 (7/13/11). Mississippi (1997 eight-hour ozone NAAQS) 76 FR 41123 (7/13/11). Missouri (1997 NAAQS for ozone) 76 FR 40619 (7/11/11). New Mexico (1997 eight-hour ozone and fine PM NAAQS, full approval of PSD program, etc.) 76 FR 41698 (7/15/11). Ohio (VOC emissions from reinforced plastic composites production operations) 76 FR 41086 (7/13/11). South Carolina (1997 eight-hour ozone NAAQS) 76 FR 41111 (7/13/11). Utah (partial approval of revisions to new source review rules) 76 FR 41712 (7/15/11).

  • SIP Proposals: California (diesel PM, nitrogen oxide (NOx), sulfur dioxide, and other pollutants from in-use, heavy-duty diesel-fueled trucks and buses and from ocean-going vessels) 76 FR 40652 (7/11/11); (VOC, NOx, and PM emissions for the San Joaquin Valley air pollution control district) 76 FR 40660 (7/11/11); (partial approval of revisions to the 1997 fine PM NAAQS, deadline extension for attainment to April 5, 2015, and disapproval of contingency measures for the San Joaquin Valley) 76 FR 41338 (7/13/11); (partial approval of revisions to the 1997 fine PM NAAQS, deadline extension for attainment to April 5, 2015, and disapproval of contingency measures for the Los Angeles-South Coast area) 76 FR 41562 (7/14/11); (VOC emissions for the South Coast air quality management district; see above for direct final rule) 76 FR 41744 (7/15/11); (limited approval of revisions to VOC emissions for the San Joaquin Valley unified air pollution control district) 76 FR 41745 (7/15/11). Pennsylvania (PM emissions from the operation of outdoor wood-fired boilers) 76 FR 41742 (7/15/11). Virginia (1997 eight-hour ozone and fine PM NAAQS and 2006 fine PM NAAQS) 76 FR 41444 (7/14/11). West Virginia (limited approval of regional haze revision) 76 FR 41158 (7/13/11); (attainment of the 1997 annual average fine PM NAAQS by April 5, 2010, for the Charleston nonattainment area) 76 FR 41739 (7/15/11).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA concerning the R&H Oil/Tropicana Superfund site in San Antonio, Texas, that requires the settling de minimis party to pay $8,128.73 in U.S. response costs incurred at the site. 76 FR 41248 (7/13/11).

MINING:



  • OSM established July 14, 2011, as the effective date of an interim rule for West Virginia's regulatory program under SMCRA concerning permit fees and bonding rates. 76 FR 41411 (7/14/11).

  • OSM seeks public comment on a proposed amendment to Indiana's regulatory program under SMCRA concerning ownership/control provisions and other miscellaneous adjustments. 76 FR 40649 (7/11/11).

OFFICE OF THE PRESIDENT:



  • The president issued Executive Order No. 13579 to improve regulation and regulatory review by federal agencies. 76 FR 41587 (7/14/11).

WILDLIFE:



  • NOAA-Fisheries determined endangered status under the ESA for the largetooth sawfish throughout its range. 76 FR 40822 (7/12/11).

  • FWS announced a 90-day finding on a petition to list the Bay skipper as threatened or endangered under the ESA and to designate critical habitat; the agency found that listing may be warranted and initiated a status review. 76 FR 40868 (7/12/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Fairchild Semiconductor Corp., No. 3:11-CV-01261 (M.D. Pa. July 7, 2011). Settling CERCLA defendants responsible for violations at the South Mountain Boulevard TCE Superfund site in Mountain Top, Pennsylvania, must pay $428,960 in past and future U.S. response costs incurred at the site. 76 FR 41301 (7/13/11).

  • United States v. Halliburton Energy Services, Inc., No. 4:07-CV-3795 (S.D. Tex. June 27, 2011). Settling CERCLA defendants responsible for violations at facilities in Houston, Odessa, and Webster, Texas, must pay a $650,000 civil penalty in U.S. response costs incurred at the facilities. 76 FR 40748 (7/11/11).

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


THE CONGRESS

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


Chamber Action



  • H.R. 2018 (water quality), which would amend the Federal Water Pollution Control Act to prohibit the Administrator of EPA from taking action to supersede a state's determination that a discharge will comply with effluent limitations, water quality standards, controls on the discharge of pollutants, and toxic and pretreatment effluent standards under the Act, was passed by the House. 157 Cong. Rec. H4995 (daily ed. July 13, 2011).

Committee Action



  • S. 630 (renewable energy) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 112-31, 157 Cong. Rec. S4485 (daily ed. July 11, 2011). The bill would promote marine and hydrokinetic renewable energy research and development.

  • S. 699 (carbon storage) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 112-32, 157 Cong. Rec. S4485 (daily ed. July 11, 2011). The bill 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.

  • S. 757 (carbon storage) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 112-33, 157 Cong. Rec. S4485 (daily ed. July 11, 2011). The bill would provide incentives to encourage the development and implementation of technology to capture carbon dioxide from dilute sources on a significant scale using direct air capture technologies.

  • S. 1343 (water resources) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 112-35, 157 Cong. Rec. S4485 (daily ed. July 11, 2011). The bill would provide for the conduct of an analysis of the impact of energy development and production on the water resources of the United States.

  • H.R. 2018 (water quality) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 112-139, 157 Cong. Rec. H4792 (daily ed. July 8, 2011). The bill would amend the Federal Water Pollution Control Act to prohibit the Administrator of EPA from taking action to supersede a state's determination that a discharge will comply with effluent limitations, water quality standards, controls on the discharge of pollutants, and toxic and pretreatment effluent standards under the Act.

Bills Introduced



  • S. 1343 (Bingaman, D-N.M.) (water resources) would provide for an analysis of the impact of energy development and production on the water resources of the United States. 157 Cong. Rec. S4485 (daily ed. July 11, 2011). The bill was referred from the Committee on Energy and Natural Resources.

  • S. 1351 (Stabenow, D-Mich.) (energy) would promote the development, manufacturing, and use of advanced batteries. 157 Cong. Rec. S4571 (daily ed. July 12, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1357 (Begich, D-Alaska) (federal land) would exempt National Forest System land in the state of Alaska from the Roadless Area Conservation Rule. 157 Cong. Rec. S4554 (daily ed. July 13, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1369 (Crapo, R-Idaho) (silvicultural activities) would amend the Federal Water Pollution Control Act to exempt the conduct of silvicultural activities from NPDES permitting requirements. 157 Cong. Rec. S4608 (daily ed. July 14, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1371 (Reed, D-R.I.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to add Rhode Island to the Mid-Atlantic Fishery Management Council. 157 Cong. Rec. S4608 (daily ed. July 14, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • H.R. 2458 (Flake, R-Ariz.) (CAA) would amend the CAA to change the frequency of review of air quality criteria from five-year intervals to ten-year intervals. 157 Cong. Rec. H4792 (daily ed. July 8, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2476 (McIntyre, D-N.C.) (beach nourishment) would amend §156 of the Water Resources Development Act of 1976 to require the Secretary of the Army to evaluate the feasibility of continuing federal participation in a beach nourishment project. 157 Cong. Rec. H4793 (daily ed. July 8, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 2484 (Harris, R-Md.) (algae and hypoxia) would reauthorize the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998 to include a comprehensive and integrated strategy to address harmful algal blooms and hypoxia. 157 Cong. Rec. H4850 (daily ed. July 11, 2011). The bill was referred to the Committee on Science, Space, and Technology and the Committee on Natural Resources.

  • H.R. 2512 (Heck, R-Nev.) (federal land) would provide for the conveyance of certain federal land in Clark County, Nevada, for the environmental remediation and reclamation of the Three Kids Mine Project Site. 157 Cong. Rec. H5018 (daily ed. July 13, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2526 (Young, R-Alaska) (federal land) would exempt National Forest System lands in Alaska from the Roadless Area Conservation Rule. 157 Cong. Rec. H5018 (daily ed. July 13, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2538 (Calvert, R-Cal.) (NEPA) would amend NEPA to authorize assignment to states of federal agency environmental review responsibilities. 157 Cong. Rec. H5085 (daily ed. July 14, 2011) The bill was referred to the Committee on Natural Resources.

  • H.R. 2541 (McMorris Rodgers, R-Wash.) (silvicultural activities) would amend the Federal Water Pollution Control Act to exempt the conduct of silvicultural activities from NPDES permitting requirements. 157 Cong. Rec. H5086 (daily ed. July 14, 2011) The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 2546 (Pallone, D-N.J.) (medical waste) would amend the Solid Waste Disposal Act to require the Administrator of EPA to promulgate regulations on the management of medical waste. 157 Cong. Rec. H5086 (daily ed. July 14, 2011) The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2547 (Sarbanes, D-Md.) (education) would amend the Elementary and Secondary Education Act of 1965 regarding environmental education. 157 Cong. Rec. H5086 (daily ed. July 14, 2011) The bill was referred to the Committee on Education and the Workforce.

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:

Colorado
Illinois
Montana

Nevada
Texas
 

COLORADO


Solid & Hazardous Waste:



Water:



  • The Water Quality Control Commission amended 5 Colo. Code Regs. §1002.31, Basic Standards and Methodologies for Surface Water. Changes outline requirements for the Commission to grant temporary modification to numeric standards and delay consideration of nutrient criteria until March 2012. In addition, the Commission altered standards for a number of state rivers and basins. Changes take effect August 16, 2011. See http://www.sos.state.co.us/CCR/Upload/AGORequest/AdoptedRules02011-00111.RTF.

ILLINOIS


Solid & Hazardous Waste:



MONTANA


Water:



  • The Department of Natural Resources and Conservation proposed to amend Mont. Admin. R. 36.12.101, 36.12.102, 36.12.103, and 36.12.1701 regarding water rights permitting. Changes would alter definitions to define "manifold" and would remove obsolete earmarks and forms. There will be a public hearing August 10, 2011, and the deadline for written comment is August 11. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-13.pdf (pp. 1277-86).

NEVADA


Energy:



TEXAS


Solid & Hazardous Waste:



  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §328.66, Management of Used or Scrap Tires. Under the rule change, applicants for Land Reclamation Projects Using Tires are no longer required to publish public notice in adjacent counties; public notice need only be published in the county in which the facility is to be located. The amendment took effect July 14, 2011. See http://www.sos.state.tx.us/texreg/pdf/backview/0708/0708is.pdf (pp. 4415-16).

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


INTERNATIONAL

MESA POWER SAYS ONTARIO'S GREEN ENERGY PLAN VIOLATES NAFTA

T. Boone Pickens' Texas-based renewable energy firm Mesa Power Group said on Thursday that it had initiated a complaint with Canada after "last-minute changes" to Ontario's energy plan that, it claimed, violated NAFTA. Mesa Power was unable to win contracts for wind energy projects in western Ontario in the latest round of feed-in tariff awards, which pay above-market rates for renewable energy. A spokeswoman for Ottawa's Trade Department said that the province would "vigorously defend" the nation's interests if Canada chooses to proceed with the complaint. In June, Japan asked the World Trade Organization to investigate whether a rule that at least 60 percent of equipment used in installations be manufactured in Ontario violated rules by giving local manufacturers an unfair advantage. Ontario's Progressive Conservative Party, which currently leads the ruling Liberal Party by double digits in polls, has promised to scrap the plan if it wins October 6 elections. Mesa Power's filing said that recent awards went to projects that will "take years to complete and will require extensive planning of new, expensive and unnecessarily long transmission lines" over its own projects which, it said, could have been operational by 2012. In addition, the filing mentioned "buy local" requirements and the "preferential" treatment given to Samsung C&T Corp. "This clear favoritism disadvantaged Mesa, as well as other wind developers, and clearly violates the spirit, goals and objectives of the North American Free Trade Agreement," said Cole Robertson, a Mesa Power executive. For the full story, see http://www.reuters.com/article/2011/07/14/us-mesapower-canada-idUSTRE76D65T20110714. For more on the green energy plan, see http://elr.info/International/update/7.11.11.internationalupdate.cfm and http://www.reuters.com/article/2011/07/07/us-energy-ontario-idUSTRE7665S320110707.


CHINA'S ENVIRONMENTAL ACTIVISTS FACE CRACKDOWN

The movement of direct action campaigns for the environment in China, whose mantra of "public participation" was popular just a few years ago when Premier Wen Jiabao personally blocked plans to dam China's last free flowing river, may be on the decline as activists face an increasingly hostile political climate, according to an article in Yale's online environment journal. Online talk of political reform after North African uprisings caused the government to react swiftly, placing at least 200 activists and lawyers under house arrest, and two lawyers in Beijing who routinely took environmental cases said that they were worried about having their licenses renewed. As civil society is increasingly limited by government, environmental groups have seen a "glass ceiling" in terms of gaining influence: "If you become too big, the government will be worried and will try to stop you. That is why there are many small groups, but few big trees in China’s environmental movement," said Wen Bo, an activist in Beijing. Additionally, in 2010 China announced that the nation's NGOs would need to have grants from foreign foundations notarized by local officials, a potentially paralyzing move as groups operating on a small budget fear the potential for delayed or canceled funding. Meanwhile, a report by Greenpeace claimed that some of the world's largest clothing brands use Chinese suppliers that pollute rivers with toxic chemicals, a practice Greenpeace said was made easier by the fact that China has yet to implement a systematic chemical management policy. For the full story on limits to China's environmental movement, see http://e360.yale.edu/feature/green_activists_feel_sting_of_chinese_government_crackdown/2421/. For the full story on the Greenpeace report, see http://www.reuters.com/article/2011/07/13/us-chinapollution-greenpeace-idUSTRE76C5I420110713.


INDONESIA RESPONDS TO FOREST PLAN CRITICISM

Indonesia responded to criticism of its new forest protection plan by releasing a new moratorium map, one forestry analysts say is an improvement over its predecessor. The plan, which received $1 billion in aid from Norway, includes a two-year ban on deforestation in new and existing protected areas throughout the country. However, the original map, at 1:19,000,000 scale, was immediately criticized as useless for determining which areas were and were not exempted from the moratorium. The new map is 1:250,000 scale. However, many of the additional criticisms of the plan, including its long list of exemptions and its failure to explicitly depict peatland and primary forest, have yet to be addressed. Speaking at a forestry conference, Kuntoro Mangkusubroto, head of the Indonesian President’s REDD+ Task Force, said that the government would begin to work to implement laws to recognize the land rights of indigenous people. This may assuage some complaints by the Indigenous Alliance that REDD projects limit indigenous rights to forests and land. For the full story on updates to the moratorium plan, see http://news.mongabay.com/2011/0713-moratorium_map.html. For the story on indigenous land tenure, see http://news.mongabay.com/2011/0712-indonesia_adat_redd.html. For the Indonesian government's "REDD Calculator," designed to give estimates on the costs and potential gains of this project, see http://reddcalculator.com/#lon=114.04907267188&lat=0.57713842054051&zoom=7. For the story on the original moratorium plan, see http://elr.info/International/update/6.27.11.internationalupdate.cfm and http://elr.info/International/update/5.23.11.internationalupdate.cfm.


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


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