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Weekly Update Volume 41, Issue 23

08/15/2011

LITIGATION 

CLIMATE CHANGE, STANDING, OIL AND GAS LEASES:

A district court held that environmental groups lack standing to challenge BLM's approval of two quarterly oil and gas lease sales under the APA, NEPA, FLPMA, and the Mineral Leasing Act. The groups claimed that BLM failed to meaningfully address the issue of climate change in approving the leases, which encompass 68,676 acres of federal public land in New Mexico. But the groups failed to establish that they have suffered an injury-in-fact. They failed to present any reports, articles, or affidavits from experts indicating an actual or imminent threat from climate change to the federal lands where the groups' members live, work, or recreate. With no factual basis upon which to find an actual or imminent environmental threat--other than the members' subjective observations of changes in the New Mexico climate--the groups' alleged injuries are too speculative to constitute an injury-in-fact. Furthermore, they failed to establish a geographical nexus between their members and the public lands that are the subject of BLM's actions. The groups also failed to demonstrate that their members' injuries are "fairly traceable" to the BLM's alleged failure to follow proper procedure. Even assuming full development and production, BLM's approval of the oil and gas leases would amount to only 0.0009% of global greenhouse gas emissions. This does not constitute a "meaningful contribution." Thus, the links in the chain of causation connecting BLM's actions to the alleged harms to New Mexico's environment are too weak to support causation. Amigos Bravos v. United State Bureau of Land Management, Nos. 6:09-cv-00037, -00414, 41 ELR 20261 (D.N.M. Aug. 3, 2011) (Brack, J.).


AIR QUALITY, OIL AND GAS LEASES:

A district court denied environmental groups' petition for review challenging BLM's and the U.S. Forest Service's approval of several oil and gas lease sales in the San Juan Basin of northern New Mexico. The groups, who were concerned that the leases would contribute to ozone emissions, impact public health, and reduce visibility in the region, argued that the approvals violated NEPA, FLPMA, the National Forest Management Act, and the APA. But the BLM satisfied NEPA’s "hard look" requirement. The agency's EAs/FONSIs adequately analyzed the direct, indirect, and cumulative impacts the lease sales would have on air quality in the San Juan Basin. Moreover, BLM’s alternatives analysis was not arbitrary and capricious, as the agency met its pre-leasing obligation to study, develop, and describe a range of appropriate alternatives. In addition, BLM’s decision not to prepare EISs and to defer additional analysis until it received an application for a permit to drill was not arbitrary and capricious. Without more concrete development plans, a detailed analysis of ozone impacts would constitute a misallocation of resources. Nor did BLM fail to provide for compliance with federal air quality standards for ozone prior to authorizing the oil and gas lease sales or denying the protests to the lease sales. The agency reasonably relied on the data and analysis available to it, which indicated its actions would not result in a violation of applicable pollution control laws. Likewise, the Forest Service took appropriate steps in its management activities to ensure that its leasing decision would not lead to a violation of federal or state air quality standards. Similarly, the Forest Service's alternatives analysis complied with NEPA, and it adequately analyzed the direct, indirect, and cumulative impacts the oil and gas leasing would have on air quality. Amigos Bravos v. United State Bureau of Land Management, Nos. 6:09-cv-00037, -00414, 41 ELR 20260 (D.N.M. Aug. 3, 2011) (Brack, J.).


LAND USE, PARKS:

The Tenth Circuit held that the U.S. Forest Service may charge visitors to Mt. Evans an "amenity fee" under the Recreation Enhancement Act (REA). Plaintiffs, outdoor enthusiasts, argued that the fee exceeds the Service's statutory authority under the REA. But to prevail in a facial challenge to an agency regulation, a plaintiff must show that there is "no set of circumstances" in which the challenged regulation might be applied consistent with the agency's statutory authority. Here, the plaintiffs fail to show that there are no set of circumstances where the fee is lawfully collected. Although there may be occasions where the Service charges for activities for which no fee is supposed to be charged under the REA--such as picnicking and undesignated parking--the Forest Service does not exceed its statutory authority every time it collects a fee. To the contrary, the Service provides various amenities and services for which a fee may be lawfully charged. Scherer v. United States Forest Service, No. 10-1418, 41 ELR 20259 (10th Cir. Aug. 9, 2011).


NATIONAL FOREST MANAGEMENT ACT, WILDLIFE:

The Ninth Circuit, in an unpublished opinion, reversed a lower court decision granting summary judgment in favor of the U.S. Forest Service in a case challenging its approval of four timber logging projects in the Tongass National Forest. The Forest Service failed to adequately explain it decision to approve the projects under the National Forest Management Act (NFMA). The Tongass land management plan requires the Forest Service to maintain viable populations of the Sitka black-tailed deer, a management indicator species. The Forest Service used a deer model to estimate how many deer could live on the land affected by the projects after the projects' conclusion. Under this model, the Service would multiply the "habitat suitability index" and the "deer multiplier" to reach the theoretical maximum number of deer that an area can support over the long term. But the Service used different habitat suitability index ranges and different deer multiplier figures at various times. Given these variations, the maximum carrying capacity could have ranged from a low of 75 to a high of 162. Moreover, it failed to articulate a rational connection between the facts found and the choices made. Because the calculation or miscalculation of the logging areas' deer-carrying capacity affects all four projects, the court reversed and remanded the NFMA claims. In light of the remand, the court determined that it was premature to decide whether the Service met its NEPA obligations. It therefore vacated the lower court's judgment on the NEPA claims. Greenpeace, Inc. v. Cole, No. 10-35567, 41 ELR 20262 (9th Cir. Aug. 2, 2011).


HAZARDOUS WASTE, RCRA, NOTICE:

A district court granted in part and denied in part motions to dismiss a property owner's CERCLA, RCRA, and state law claims against former owners and operators of nearby properties. One defendant argued that the court lacked subject matter jurisdiction over the RCRA claim because the notice letters did not include the information required to be included, and because the owner failed to serve a copy of the complaint on the Administrator of EPA and on the U.S. Attorney General. But the owner's failure to strictly comply with RCRA's notice requirements does not deprive the court of subject matter jurisdiction. Strict compliance with the RCRA notice requirements is not a jurisdictional prerequisite. Here, the notices included sufficient information regarding the owner's intent to sue. The court, therefore, denied that defendant's motion to dismiss. As for the owner's RCRA claims against the remaining defendants, however, the complaint failed to allege sufficient facts to state a claim under RCRA. Accordingly, the court dismissed these claims. The court also dismissed the CERCLA claims, but with leave to amend. The amended complaint must allege facts showing that the former owners and operators were owners or operators during the relevant time period when the alleged releases occurred. Similarly, the court dismissed the owner's claims for public nuisance, trespass, waste, and negligence with leave to amend. The amended complaint must allege facts supporting the elements of these claims and plead facts showing the time and manner of discovery as well as the owner's inability to have made earlier discovery despite reasonable diligence. Gregory Village Partners, L.P. v. Chevron U.S.A., Inc., No. 11-1597, 41 ELR 20263 (N.D. Cal. Aug. 2, 2011) (Hamilton, J.).


WETLANDS, JURISDICTION:

The South Carolina Supreme Court reversed a lower court decision dismissing a group's declaratory judgment action against a developer for filling isolated wetlands on its property without a permit. The lower court, relying on the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 121 S. Ct. 675, 31 ELR 20382 (2001), held that the state's environmental agency lacked jurisdiction over the wetlands on the developer's lot. But while SWANCC holds that the Corps may not regulate isolated wetlands, the decision has no impact on a state agency's ability to do so. Because the state's coastal management program, developed pursuant to the CZMA, specifically defines the waters subject to regulation by the agency to include isolated wetlands, the agency has jurisdiction over the wetlands at issue here. The lower court also erred in holding that the developer complied with all legal requirements for filling the wetlands since the developer was required to obtain a permit from the agency prior to filling the wetlands but failed to do so. In addition, the lower court erred in ruling that the group lacked standing. Georgetown County League of Women Voters v. Smith Land Co., No. 27006, 41 ELR 20258 (S.C. July 11, 2011).


WILDLIFE, CLASS ACTIONS:

A California appellate court reversed a lower court decision certifying residents' class action lawsuit against the state wildlife agency in connection with efforts to eradicate an invasive species of fish, the northern pike, from a lake and its tributaries. The residents argued that the agency's efforts--poisoning the lake--created a decline in tourism that adversely affected business income, property values, and tax receipts for the period leading up to and following the eradication effort. They asserted claims for public nuisance, negligence, inverse condemnation, various types of business interference, strict liability, and equal protection. The lower court certified the claims as a class action, holding that the legal and factual issues to be resolved in the dispute are predominantly common to all class members. But the trial court applied improper criteria in assessing the evidence. It also failed to give any weight to the various opinions asserted by the agency's experts that appear to be rationally based and are not refuted by the residents' experts. The court also made a number of erroneous legal assumptions as to how the elements of the residents' various claims may be proven at trial. Because there is no substantial evidence to support the conclusion that common issues predominate, the lower court's order certifying the matter as a class action was an abuse of discretion. Department of Fish & Game v. Superior Court of Plumas County, No. C066158, 41 ELR 20257 (Cal. App. 3d Dist. Aug. 2, 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 and the National Highway Traffic Safety Administration announced their proposal to prepare a national program to reduce fuel consumption and greenhouse gas (GHG) emissions in passenger cars, light-duty trucks, and medium-duty passenger vehicles for model years 2017-2025, as requested by a presidential memorandum of May 21, 2010. 76 FR 48758 (8/9/11).

  • EPA finalized a limited federal implementation plan (FIP) for the North Coast unified air quality management district of California that establishes PSD permitting requirements for nitrogen oxide (NOx) emission sources. 76 FR 48006 (8/8/11).

  • EPA finalized an FIP for 27 states whose emissions of NOx and sulfur dioxide contribute to harmful levels of fine particulate matter and ozone in downwind states and requested comment on six additional states. 76 FR 48208 (8/8/11).

  • SIP Approvals: California (limited approval of interstate transport of pollution revisions) 76 FR 48002 (8/8/11); (NOx and sulfur oxide emissions for the South Coast Air Quality Management District) 76 FR 50128 (8/12/11). Minnesota (partial approval of update to air quality rules) 76 FR 49303 (8/10/11). North Carolina (PSD, new source review (NSR), and nonattainment NSR permitting regulations) 76 FR 49313 (8/10/11).

  • SIP Proposals: Colorado (partial approval of revisions for obscurants used during military exercises) 76 FR 49391 (8/10/11). Iowa (PSD permitting for GHGs) 76 FR 49708 (8/11/11). Minnesota (partial approval of revisions to air quality rules; see above for direct final rule) 76 FR 49391 (8/10/11). New Jersey (regional haze program from 2008 through 2018) 76 FR 49711 (8/11/11). Ohio (NOx reasonably available control technology in the former Cleveland-Akron-Lorain moderate ozone nonattainment area) 76 FR 48754 (8/9/11).

ENERGY:



  • The NRC seeks public comment on its draft regulatory guide on the licensing of new nuclear facilities entitled, Terrestrial Environmental Studies for Nuclear Power Stations. 76 FR 50274 (8/12/11).

HAZARDOUS & SOLID WASTE:



  • The Pipeline and Hazardous Materials Safety Administration and the NRC proposed to amend requirements governing the transportation of Class 7 radioactive materials based on recent changes to international standards. 76 FR 50332 (8/12/11).

  • EPA proposed to revise hazardous waste management regulations under RCRA to exclude carbon dioxide streams in geologic sequestration activities from the definition of hazardous waste under certain conditions. 76 FR 48073 (8/8/11).

TOXIC SUBSTANCES:



  • EPA proposed revisions to the requirements for the reporting of emergency and hazardous chemicals under EPCRA. 76 FR 48093 (8/8/11).

WILDLIFE:



  • FWS determined endangered status under the ESA for six foreign birds found on islands in French Polynesia and in Africa, Europe, and Southeast Asia. 76 FR 50052 (8/11/11).

  • FWS issued an emergency rule listing the Miami blue butterfly in the Florida Keys as endangered under the ESA, and listing the cassius blue butterfly, the ceraunus blue butterfly, and the nickerbean blue butterfly as threatened due to their similarity of appearance. 76 FR 49542 (8/10/11).

  • FWS determined endangered status for the Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace under the ESA throughout their ranges. 76 FR 48722 (8/9/11).

  • FWS proposed to list the Miami blue butterfly as endangered under the ESA and to list the cassius blue butterfly, the ceraunus blue butterfly, and the nickerbean blue butterfly as threatened due to their similarity of appearance; see above for direct final rule. 76 FR 49408 (8/10/11).

  • FWS proposed to list the Philippine cockatoo and the yellow-crested cockatoo as endangered under the ESA, to list the white cockatoo as threatened, and to forego listing of the crimson shining parrot. 76 FR 49202 (8/9/11).

  • FWS and NOAA-Fisheries announced a 90-day finding on a petition to list the saltmarsh topminnow as threatened or endangered under the ESA; the agencies found that listing may be warranted and initiated a status review. 76 FR 49412 (8/10/11).

  • FWS announced a 12-month finding on a petition to list the Nueces River shiner and the plateau shiner as threatened or endangered and to designate critical habitat under the ESA; the agency found that listing is not warranted. 76 FR 48777 (8/9/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. BIM Investment Corp., No. 1:11-cv-11382 (D. Mass. Aug. 3, 2011). Settling CERCLA defendants responsible for violations at the Blackburn and Union Privileges Superfund site in Walpole, Massachusetts, must pay $94,169.56 in assessment costs to the United States and Massachusetts and must pay $1,000,000 for natural resource damages restoration projects to be conducted by the DOI and the Massachusetts Office of Energy and Environmental Affairs. 76 FR 50254 (8/12/11).

  • United States v. Metropolitan St. Louis Sewer District, No. 4:07-CV-01120 (D. Mo. Aug. 4, 2011). A settling CWA defendant responsible for sanitary and combined sewer overflows in the city of St. Louis and St. Louis County, Missouri, must pay a $1.2 million civil penalty to the United States, must spend $1.6 million on a program for low-income residents, and must implement a comprehensive 23-year, $4.7 billion injunctive relief program to expand and rehabilitate both its combined sewer system and its sanitary sewer system to reduce or eliminate overflows in the St. Louis area. 76 FR 49505 (8/10/11).

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


THE CONGRESS

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


Bills Introduced



  • H.R. 2803 (Faleomavaega, D-A.S.) (undersea drilling) would direct the Secretary of the Interior, acting through the Bureau of Ocean Energy Management, Regulation, and Enforcement, to conduct a technological capability assessment, survey, and economic feasibility study regarding recovery of minerals, other than oil and natural gas, from the shallow and deep seabed of the United States. 157 Cong. Rec. H5895 (daily ed. Aug. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2812 (Tonko, D-N.Y.) (tax credit) would amend the Internal Revenue Code of 1986 to provide tax incentives for producing electricity from wasted heat. 157 Cong. Rec. H5896 (daily ed. Aug. 5, 2011). The bill was referred to the Committee on Ways and Means.

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:

California
Indiana
Kansas

Maine
Montana
Texas

West Virginia
 

CALIFORNIA


Air:



  • The Air Resources Board proposed to amend Cal. Code Regs. tit. 13 §2497, Regulation for Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards. Changes would affect retrofit requirements, operational practices, emissions standards, and compliance requirements. The amendments give additional flexibility to owners and operators to cost-effectively comply with the regulations. There will be a public hearing September 22, 2011, and the deadline for public comment is September 21. See http://www.oal.ca.gov/res/docs/pdf/notice/31z-2011.pdf (pp. 1270-75).

  • The Air Resources Board proposed to amend Cal. Code Regs. tit. 17 §§94010, 94011, 94016, 94150, and 94168, which incorporate by reference vapor recovery definitions, certification procedures, and test procedures. Changes would clarify language giving owners of gas dispensing facilities four years to replace current equipment when new standards become effective. There will be a public hearing September 22, 2011, and the deadline for public comment is September 21. See http://www.oal.ca.gov/res/docs/pdf/notice/31z-2011.pdf (pp. 1279-82).

INDIANA


Air:



  • The Natural Resources Commission temporarily amended 312 Ind. Admin. Code §2 concerning new source review provisions for fine particulate matter and deferral of carbon dioxide emissions from bioenergy and other biogenic sources under the prevention of significant deterioration and Title V programs. Changes took effect August 3, 2011. See http://www.in.gov/legislative/iac/20110810-IR-326110447ERA.xml.pdf

Climate:



Water:



  • The Water Pollution Control Board proposed to amend 327 Ind. Admin. Code §8.3.5.3 concerning the eligibility of a water main project funded by the drinking water state revolving fund to receive a general construction permit. Changes take effect August 31, 2011. See http://www.in.gov/legislative/iac/20110810-IR-327100403FRA.xml.pdf.

KANSAS


Hazardous & Solid Waste:



MAINE


Land Use:



MONTANA


Water:



  • The Board of Environmental Review amended Mont. Admin. Code 17.38.101, 17.38.106, 17.38.502, 17.38.511, and 17.38.513 pertaining to plans for public water supply or wastewater system, fees, definitions, water supply, and chemical treatment of water. Changes add a definition for "rural distribution systems." See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-15.pdf (pp. 1545-47).

  • The Department of Natural Resources and Conservation amended Mont. Admin. R. 36.12.101, 36.12.102, 36.12.103, and 36.12.1701 regarding water rights permitting. Changes alter definitions to define "manifold" and remove obsolete earmarks and forms. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-15.pdf (pp. 1548-50).

TEXAS


Air:



  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §101.27, General Rules, related to program fees. Changes took effect August 11, 2011. See http://www.sos.state.tx.us/texreg/pdf/currview/0805is.pdf (pp. 4964-72).

  • The Commission on Environmental Quality proposed amendments to 30 Tex. Admin. Code §114.512 and §114.517, Locally Enforced Motor Vehicle Idling Limitations. The changes amend the rule on idling limits for gasoline and diesel-powered engines in motor vehicles within the jurisdiction of any local government in the state that has signed a memorandum of agreement with the commission to delegate enforcement to that local government. Changes took effect August 11, 2011. See http://www.sos.state.tx.us/texreg/pdf/currview/0805is.pdf (pp. 4972-80).

Hazardous & Solid Waste:



  • The Commission on Environmental Quality proposed amendments to 30 Tex. Admin. Code §336, Radioactive Substance Rules. Changes will ensure compatibility with regulations promulgated by the NRC. There will be a hearing on August 20, 2011, and the deadline for written comment is September 6. See http://www.sos.state.tx.us/texreg/pdf/currview/0805is.pdf (pp. 4920-72).

WEST VIRGINIA


Air:



  • The Division of Air Quality amended W. Va. Admin. Code §22.5.4, Ambient Air Quality Standards, Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air Quality, Standards of Performance for New Stationary Sources, Control of Air Pollution from Combustion of Solid Waste, and five other sections. In addition, the agency proposed the repeal of the Greenhouse Gas Emissions Inventory Program. See http://www.sos.wv.gov/administrative-law/register/Documents/2011/080511.pdf (pp. 1317-21).

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


INTERNATIONAL

CANADIAN RENEWABLE ENERGY EQUIPMENT POLICIES INVITE WTO CHALLENGE

The European Union (EU) followed Japan in lodging a complaint with the World Trade Organization (WTO) over subsidies that favor producers using domestic technology. Ontario's Green Energy Act allows the province's feed-in tariff program to pay above-market rates to renewable energy produced with a certain percentage of Canadian equipment. "This is in clear breach of the WTO rules that prohibit linking subsidies to the use of domestic products," said the European Commission in a statement. The EU backed Japan's complaint, but could not seek changes in Canada's policies as a third party. Under the plan, producers of wind energy must use 25% of its services and products from Ontario, rising to 50% for projects developed after 2012. For solar, the figures are 40-to-50% and 60%. According to Ottawa Citizen, the measures were designed to kickstart a green manufacturing industry in the province, as traditional manufacturing facilities have largely closed down or moved offshore. Energy Minister Brad Duguid said that he "suspect[s] there's a little bit of envy" at the jobs created in the province, while the EU said that it believed the Green Energy Act's subsidy is inconsistent with the country's WTO obligations. Japan, which was granted a panel to review its complaint, has said that it is "seriously concerned about a proliferation of such protectionist measures all over the world." For the full story, see http://www.ottawacitizen.com/business/Europe+fights+Ontario+power+subsidies/5244539/story.html. For the story on Japan's complaint, see http://www.rechargenews.com/business_area/politics/article268966.ece. For a related story on T. Boone Pickens' complaint against the plan, see http://elr.info/International/update/7.18.11.internationalupdate.cfm.


CHINESE DAM ON IRRAWADDY MAY REIGNITE CONFLICT

Myanmar's pro-democracy opposition leader Aung San Suu Kyi last week called for a halt to construction of China's hydropower project on the Irrawaddy, an important river threatened by logging, pollution, and the construction of at least seven dams. Suu Kyi warned that the project would destroy the environment along the 1,300 mile river, flooding the rainforest with a reservoir the size of New York and displacing 10,000 people. The Burma River Network claimed to have released a leaked environmental assessment by Myanmar and Chinese authorities that warns of immense biodiversity damage and increased risk of earthquakes and recommends scrapping the project. The 3,600 megawatt Myitsone Dam, which sits on a biodiversity hotspot, recently caused the break of a 17-year-long cease fire from the Kachin Independence Organization, which warned it would fight to stop the dam. The dam is scheduled for completion in 2017 and would be the 15th largest in the world. For the full story, see http://www.guardian.co.uk/environment/2011/aug/12/suukyi-china-dam-irrawaddy-conflict and http://www.upi.com/Top_News/World-News/2011/08/12/Suu-Kyi-wants-dam-project-halted/UPI-96151313151158/?spt=hs&or=tn.


AUSTRALIA'S GILLARD SIGNS FOREST DEAL

The Tasmanian Forests Intergovernmental Agreement has sparked new hostilities and caused one timber group to back out as some claimed that the deal was fundamentally altered in the 11th hour before Prime Minister Julia Gillard signed it August 7. The deal includes provisions for compensation to forest companies whose contracts cannot be met outside of the new 430,000 hectares of protected land; industry representatives said that they had believed they could log the forests if their contracts required it. Timber groups have accused the Labor party of last minute changes to appease Greens, who demanded heavier conservation in the deal. Labor did hold out some measures, including $128 million for industry as part of the deal's passage. For the full story, see http://www.theaustralian.com.au/national-affairs/forests-deal-falls-at-first-hurdle/story-fn59niix-1226113584783 and http://www.smh.com.au/environment/conservation/timber-industry-furious-at-tasmania-forest-peace-pact-20110807-1ihj9.html.


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


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