Jump to Content

Weekly Update Volume 41, Issue 27

09/26/2011

LITIGATION 

NATIONAL FORESTS, OIL AND GAS DRILLING:

The Third Circuit upheld a preliminary injunction against the U.S. Forest Service prohibiting it from halting any drilling in the Allegheny National Forest until a multi-year, forest-wide EIS under NEPA is complete. Until recently, oil and gas drilling in the Forest was managed through a cooperative process whereby private mineral rights owners would provide 60 days advance notice to the Service of their drilling plans and the Service would issue owners a "notice to proceed" (NTP), which memorialized any agreements between the Service and the mineral owner about the drilling operations. In 2009, however, as a result of a settlement agreement with environmental groups, the Service changed its policy and decided to postpone the issuance of NTPs until it completed an EIS to examine oil and gas drilling in the Forest. Mineral owners and related businesses affected by this new policy filed suit, arguing that as a result of the settlement agreement, the Service had imposed a de facto drilling ban in the Forest and that this ban exceeded the authority of the Service and was contrary to NEPA and the APA. A lower court issued a preliminary injunction enjoining the ban and requiring the Service to return to its prior, cooperative process for issuing NTPs. The Third Circuit affirmed the lower court's decision. The mineral owners and businesses are likely to succeed on their claim that NEPA does not require the Service to conduct an environmental analysis prior to issuing an NTP, as the issuance of an NTP is not a "major federal action" under NEPA. They are also likely to succeed on the merits of their claim that the settlement agreement is a substantive rule that must be promulgated pursuant to the notice-and-comment procedures of the APA. In addition, the Service's moratorium on new drilling caused irreparable harm because it infringed upon the mineral owners' property rights and threatened bankruptcy or closure for some businesses. And granting the injunction would vindicate the public's interests in aiding the local economy, protecting the property rights of mineral rights owners, and ensuring public participation in agency rulemaking as required by the APA. Minard Run Oil Co. v. United States Forest Service, Nos. 10-1265, -2332, 41 ELR 20294 (3d Cir. Sept. 20, 2011).


TOXIC SUBSTANCES, PESTICIDES:

The Second Circuit vacated in part EPA's risk assessments for the pesticide dichlorvos. To determine safe levels of exposure to dichlorvos for certain exposure scenarios, EPA relied heavily on a single study in which six people were paid to ingest a dose of the pesticide every day for three weeks. Based on the results of this human study, EPA set tolerances regarding the maximum level of dichlorvos residue on food products and registered numerous dichlorvos products for sale and distribution in the United States. The Food Quality Protection Act (FQPA), however, requires EPA to apply an additional tenfold margin of safety for infants and children. Because EPA failed to explain why it did not use a tenfold children’s safety factor for dichlorvos risk assessments that relied on the human study, EPA acted in an arbitrary and capricious manner. Accordingly, the court vacated those portions of EPA’s final order assessing the risk of dichlorvos based on the human study, as it was not “reliable data” on which EPA could base its decision to choose a lower children’s safety factor. The environmental group challenging EPA's order also sought review of EPA's decision not to apply the tenfold children’s safety factor for certain risk assessments in which EPA did not rely on the human study. The group argued that EPA cannot reduce or waive the tenfold children’s safety factor unless and until it completes the FQPA-mandated endocrine disruptor screening program. But the FQPA allows EPA to reduce or waive the tenfold margin of safety if “reliable data” indicate that a lower margin of safety will be safe for infants and children, and the “reliable data” need not come from the endocrine disruptor screening program. Accordingly, the court denied this portion of the group's petition for review. Natural Resources Defense Council v. United States Environmental Protection Agency, No. 08-377, 41 ELR 20295 (2d Cir. Sept. 16, 2011).


WILDLIFE, ESA, BIOLOGICAL OPINION:

A district court, in a 279-page opinion, held that NOAA-Fisheries' 2009 biological opinion (BiOp) and reasonable and prudent alternative (RPA) addressing Central Valley Project and State Water Project impacts on Chinook salmon, steelhead, green sturgeon, and Southern Resident killer whales are arbitrary and capricious under the ESA and APA. The BiOp discusses and prescribes RPAs to address many sources of harm, including adverse temperature conditions and blockages caused by dams on the Sacramento River. And the BiOp's jeopardy conclusion is lawful. But project operations negatively impact the listed species and adversely modify their critical habitat in various ways that remain incompletely described and quantified. Moreover, some of NOAA-Fisheries' analyses rely upon equivocal or bad science to impose RPA actions without clearly explaining or otherwise demonstrating why the specific measures imposed are essential to avoid jeopardy and/or adverse modification. Given the potential serious impacts of these measures, the agency must do more to comply with the law. The court, therefore, remanded the BiOp and RPA for further consideration. In re Consolidated Salmonid Cases, Nos. 1:09-CV-01053 et al., 41 ELR 20300 (E.D. Cal. Sept. 20, 2011) (Wanger, J.).


WATER, NPDES PERMITS, STORMWATER:

The Eleventh Circuit affirmed a lower court decision dismissing individuals' claims that a city violated its NPDES permit for municipal separate storm sewer systems (MS4s). They alleged that the city's MS4 discharges into an estuary are causing and contributing to ongoing violations of the water quality standards for dissolved oxygen, nutrients, mercury, and acute toxicity. But the individuals failed to show that the city's discharge exceeded the amount authorized by its NPDES permit. Moreover, they failed to state what permit conditions the city was actually violating. Davis v. Administrator of the United States Environmental Protection Agency, Nos. 10-15513, 11-11137, 41 ELR 20299 (11th Cir. Sept. 15, 2011).


AGRICULTURE, GENETICALLY ALTERED SEEDS:

The Federal Circuit affirmed a lower court decision that a farmer committed patent infringement when he planted second-generation "commodity seeds" that contained genetically altered seeds covered by a patent. The seed manufacturer restricts the use of its patented seeds to a single crop season. Second-generation seed, however, may be sold to grain elevators as a commodity, often mixed in with other second-generation seeds. While farmers may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot replicate the seed manufacturer's patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants. Even if the manufacturer's patent rights in the commodity seeds were exhausted, once a farmer plants the commodity seeds containing the patented technology and the next generation of seed develops, the farmer has created a newly infringing article. Accordingly, patent exhaustion does not bar the manufacturer's infringement action. Monsanto Co. v. Bowman, No. 2010-1068, 41 ELR 20297 (Fed. Cir. Sept. 21, 2011).


SOLID WASTE, PREEMPTION:

The Supreme Court of South Carolina held that the South Carolina Solid Waste Policy and Management Act (SWPMA) does not preempt a county ordinance requiring solid waste generated within the county to be deposited at a county or county-approved landfill. A hauling company and a landfill that operate just outside the county's border filed suit, arguing that the SWPMA and its regulations expressly preempt a county from regulating the flow of solid waste within its borders. But the SWPMA does not prohibit county regulation of solid waste management. Although the SWPMA expressly provides for the state environmental agency's exclusive authority in the area of permitting, there is no similar express language in the statute concerning the flow of solid waste within the counties. Nor does the Act impliedly preempt the ordinance. Rather, the SWPMA expressly invites county regulation, planning, authority, and responsibility in the field of solid waste management. Nor does the ordinance frustrate the purpose of the SWPMA. Sandlands C&D v. County of Horry, No. 27042, 41 ELR 20298 (S.C. Sept. 19, 2011).


LAND USE, SHORELINE PROPERTY:

The Supreme Court of Ohio held that the territory of Lake Erie held in trust by the state of Ohio extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes. Case law from 1878 and 1916, as well as the Fleming Act, enacted by the Ohio General Assembly in 1917, support this conclusion. Accordingly, littoral owners of the upland have no title beyond the natural shoreline; they have only the right of access and wharfing out to navigable waters. In addition, the court noted that its decision does not interfere with presumptively valid deeds of lakefront owners. Merrill v. Ohio Department of Natural Resources, No. 2011-OHIO-4612, 41 ELR 20296 (Ohio Sept. 14, 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 entered into a proposed partial consent decree under the CAA in Sierra Club v. EPA, No. 1:10-cv-1541 (D.D.C.), that establishes deadlines for the Agency to promulgate a federal implementation plan (FIP) for the 1997 fine particulate matter (PM) and eight-hour ozone NAAQS for Texas and to take final action on the its SIP. 76 FR 58808 (9/22/11).

  • EPA entered into a proposed settlement agreement under the CAA in Sierra Club v. Jackson, No. 1:11-0100 (D.D.C.), that establishes deadlines for the Agency to determine whether Connecticut, Maryland, Massachusetts, New Hampshire/Massachusetts, New Jersey/New York, and Texas nonattainment areas attained the one-hour ozone NAAQS. 76 FR 58507 (9/21/11).

  • EPA announced the availability of Review of the National Ambient Air Quality Standards for Lead: Risk and Exposure Assessment Planning Document and seeks public comment. 76 FR 58509 (9/21/11).

  • EPA withdrew amendments made on June 20, 2011, to the plating and polishing area source category NESHAP. 76 FR 57913 (9/19/11).

  • SIP Approvals: District of Columbia/Maryland/Virginia (numerous revisions to the 1997 eight-hour ozone NAAQS for the District of Columbia, Maryland, and Virginia moderate nonattainment areas) 76 FR 58116 (9/20/11). Pennsylvania (PM emissions from outdoor wood-fired boilers) 76 FR 58114 (9/20/11).

  • SIP Proposals: Delaware (volatile organic compound (VOC) emissions) 76 FR 59087 (9/23/11); (VOC emissions) 76 FR 59089 (9/23/11). District of Columbia/Maryland/Virginia (attainment of the 1997 eight-hour ozone NAAQS for the District of Columbia, Maryland, and Virginia moderate nonattainment areas; see above for direct final rule) 76 FR 58206 (9/20/11). North Carolina (redesignation to attainment for the Hickory-Morganton-Lenoir 1997 annual fine PM nonattainment area) 76 FR 58210 (9/20/11). North Dakota (partial approval of regional haze program and establishment of an FIP) 76 FR 58570 (9/21/11). Oregon (interstate transport provisions and various updates) 76 FR 59090 (9/23/11). Texas (partial approval of 1997 eight-hour ozone NAAQS, 1997 and 2006 fine PM NAAQS, and interstate transport of pollution revisions) 76 FR 58748 (9/22/11).

WILDLIFE:



  • FWS and the NMFS determined that four species of loggerhead sea turtles should be listed as threatened and that five species should be listed as endangered under the ESA. 76 FR 58868 (9/22/11).

  • FWS determined endangered status under the ESA for Casey's June beetle and designated approximately 587 acres in Riverside County, California, as critical habitat for the species. 76 FR 58954 (9/22/11).

  • FWS announced a 12-month finding on a petition to list van Rossem's gull-billed tern as endangered or threatened and to designate critical habitat under the ESA; the agency found that listing is not warranted. 76 FR 58650 (9/21/11).

  • FWS announced the availability of additional information on its proposal to revise the listing for the Minnesota population of gray wolves under the ESA. 76 FR 57943 (9/19/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Illinois Central Railroad Co., No. 2:11-cv-02790 (W.D. Tenn. Sept. 14, 2011). A settling CERCLA defendant responsible for violations at the Johnston Yard Superfund alternative site in Memphis, Tennessee, must pay past and future U.S. response costs incurred at the site and must perform the EPA-specified remedial design and action for the site. 76 FR 58300 (9/20/11).

  • United States v. CDS Investment Co., No. 2:11-cv-5696 (E.D. Pa. Sept. 12, 2011). Settling CERCLA defendants responsible for violations at the AIW Frank/Mid-County Mustang Superfund site near Exton, Pennsylvania, must pay $830,000 in response costs incurred at the site to the United States and Pennsylvania and must pay 65% of any insurance policy proceeds received to the United States. 76 FR 58042 (9/19/11).

  • United States v. Links at Columbia, LP, No. 2:11-cv-04232-NKL (W.D. Mo. Aug. 31, 2011). Settling CWA defendants that violated NPDES stormwater permit requirements at a residential development in Columbia, Missouri, must pay a $430,000 civil penalty. 76 FR 58043 (9/19/11).

  • United States v. City of Newburgh, No. 08 Civ. 7378 (S.D.N.Y. Sept. 12, 2011). Under a modified consent decree, additional settling CERCLA PRPs must pay $200,400 in U.S. response costs incurred at the Consolidated Iron and Metal Company Superfund site in Newburgh, New York. 76 FR 58043 (9/19/11).

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:



  • S. 1574 (Boxer, D-Cal.) (land use) would designate certain federal lands in San Diego County, California, as wilderness. 157 Cong. Rec. S5762 (daily ed. Sept. 19, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1575 (Cardin, D-Md.) (energy) would amend the Internal Revenue Code of 1986 to modify the depreciation recovery period for energy-efficient cool roof systems. 157 Cong. Rec. S5762 (daily ed. Sept. 19, 2011). The bill was referred to the Committee on Finance.

  • S. 1578 (Toomey, R-Pa.) (water) would amend the Safe Drinking Water Act with respect to consumer confidence reports by community water systems. 157 Cong. Rec. S5762 (daily ed. Sept. 19, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1580 (Hatch, R-Utah) (wildlife) would direct the Secretary of the Interior to extend an exemption from certain requirements of the ESA to protect public health and safety. 157 Cong. Rec. S5773 (daily ed. Sept. 20, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1582 (Lautenberg, D-N.J.) (water) would amend the Federal Water Pollution Control Act to modify provisions relating to beach monitoring. 157 Cong. Rec. S5773 (daily ed. Sept. 20, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1586 (Pryor, D-Ark.) (energy) would require the Secretary of Commerce to establish a Clean Energy Technology Manufacturing and Export Assistance Program. 157 Cong. Rec. S5838 (daily ed. Sept. 21, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1589 (Lautenberg, D-N.J.) (land use) would extend the authorization for the Coastal Heritage Trail in the state of New Jersey. 157 Cong. Rec. S5838 (daily ed. Sept. 21, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1594 (Gillibrand, D-N.Y.) (land use) would amend the Food Security Act of 1985 to require the Secretary of Agriculture to carry out a conservation program under which the Secretary shall make payments to assist owners and operators of muck land to conserve and improve the soil, water, and wildlife resources of the land. 157 Cong. Rec. S5838 (daily ed. Sept. 21, 2011). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 1602 (Crapo, R-Idaho) (energy) would amend the Internal Revenue Code of 1986 to expand the technologies through which a vehicle qualifies for the credit for new qualified plug-in electric drive motor vehicles. 157 Cong. Rec. S5902 (daily ed. Sept. 22, 2011). The bill was referred to the Committee on Finance.

  • S. 1610 (Barrasso, R-Wyo.) (air) would provide additional time for the Administrator of EPA to promulgate achievable standards for cement manufacturing facilities. 157 Cong. Rec. S5902 (daily ed. Sept. 22, 2011). The bill was referred to the Committee on Environment and Public Works.

  • H.R. 2973 (Matheson, D-Utah) (wildlife) would direct the Secretary of the Interior to extend an exemption from certain requirements of the ESA to protect public health and safety. 157 Cong. Rec. H6271 (daily ed. Sept. 20, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2983 (Capito, R-W. Va.) (energy) would amend the Outer Continental Shelf Lands Act to require the Secretary of the Interior to conduct offshore oil and gas leasing and deposit use revenues from such activity into the Inland Waterways Trust Fund and the Highway Trust Fund. 157 Cong. Rec. H6341 (daily ed. Sept. 21, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2984 (Michaud, D-Me.) (land use) would designate certain federal lands within the Cross Island National Wildlife Refuge and the Petit Manan National Wildlife Refuge, part of the Maine Coastal Islands National Wildlife Refuge Complex, in Lincoln County, Hancock County, and Washington County, Maine, as wilderness. 157 Cong. Rec. H6341 (daily ed. Sept. 21, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2988 (Berman, D-Cal.) (energy) would amend the Export Enhancement Act of 1988 to enhance awareness of export promotion activities with respect to clean energy and environmental products and services of the United States. 157 Cong. Rec. H6341 (daily ed. Sept. 21, 2011). The bill was referred to the Committee on Foreign Affairs.

  • H.R. 2994 (Inslee, D-Wash.) (energy) would promote marine and hydrokinetic renewable energy research and development. 157 Cong. Rec. H6342 (daily ed. Sept. 21, 2011). The bill was referred to the Committees on Science, Space, and Technology, and Energy and Commerce.

  • H.R. 2997 (Long, R-Mo.) (Hazardous and Solid Waste) would amend CERCLA to provide that manure is not considered a hazardous substance or pollutant or contaminant under that Act. 157 Cong. Rec. H6342 (daily ed. Sept. 21, 2011). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.

  • H.R. 3009 (Fleming, R-La.) (wildlife) would amend the National Wildlife Refuge System Administration Act of 1966 to require that any new national wildlife refuge may not be established except as expressly authorized by statute. 157 Cong. Rec. H6412 (daily ed. Sept. 22, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 3034 (Speier, D-Cal.) (water) would amend the Federal Water Pollution Control Act to establish a San Francisco Bay restoration grant program. 157 Cong. Rec. H6413 (daily ed. Sept. 22, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 3037 (Young, R-Alaska) (wildlife) would allow for the harvest of gull eggs by the Huna Tlingit people within Glacier Bay National Park in the state of Alaska. 157 Cong. Rec. H6413 (daily ed. Sept. 22, 2011). The bill was referred to the Committee on Natural Resources.

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
Connecticut
Indiana

Montana
New Jersey
Ohio

Rhode Island
Tennessee
West Virginia

Wyoming
 

CALIFORNIA


Toxic Substances:



  • The Office of Environmental Health Hazard Assessment proposed amendments to 27 Cal. Code Regs. §25707, Route of Exposure. Changes would remove the reference to hexavalent chromium as posing no significant risk when ingested, based on recent scientific findings that establish that chromium can be carcinogenic by the oral route. The deadline for comment is October 31, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/37z-2011.pdf (pp. 1505-07).

CONNECTICUT


Air:



  • The Department of Environmental Protection proposed to amend Regulations of Connecticut State Agencies §22a.174. Changes would eliminate three air management regulatory programs, including control of open burning; add compliance flexibility for large vehicle manufacturers; add exemptions for Stage II vapor controls; and revise fine particulate matter criteria. The deadline for comment is November 9, 2011. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=486734.

  • The Department of Environmental Protection proposed to amend Regulations of Connecticut State Agencies §22a.174.20(s) to alter reasonably available control technologies requirements for miscellaneous metal and plastic parts coating activities. There will be a public hearing November 9, 2011. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=486738.

INDIANA


Water:



  • The Water Pollution Control Board temporarily amended 327 Ind. Admin. Code §§5 & 15, related to Concentrated Animal Feeding Operations. Emergency sections relate to NPDES requirements and who must seek a permit. Changes took effect September 15, 2011, and expire December 14. See http://www.in.gov/legislative/iac/20110921-IR-327110554ERA.xml.pdf.

MONTANA


Water:



  • 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. The amendments take effect October 1, 2011. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-18.pdf (pp. 2043-45).

NEW JERSEY


Air:



  • The Department of Environmental Protection adopted a new General Permit 022, Combined Heat and Power Spark Ignition Reciprocating Engines, and General Operating Permit 006, Combined Heat and Power Spark Ignition Reciprocating Engines. See http://www.lexisnexis.com/njoal/ 43 N.J.R. 2524(a).

  • The Department of Environmental Protection adopted a new General Permit 021, Combined Heat and Power Combustion Turbine Units; and General Operating Permit 005, Combined Heat and Power Combustion Turbine Unit. See http://www.lexisnexis.com/njoal/ 43 N.J.R. 2523(a).

OHIO


Air:



  • The Ohio Environmental Protection Agency proposed amendments to Ohio Admin. Code 3745-49-50, Definitions, 51, Permitted uses, eligibility, and prioritization, and 52, Grant administration. The rules pertain to Clean Diesel Retrofit grants. Among other changes, the amendments would add a definition for "approved idle reduction technology" and change the language for which years of school buses are eligible from "1994 or newer" to "1996 to 2006." There will be a public hearing October 17, 2011. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_145804_20110913_1546.pdf.

RHODE ISLAND


Water:



TENNESSEE


Hazardous & Solid Waste:



  • The Department of Environment and Conservation amended Tenn. Admin. Code 1200.02.11, Licensing Requirements for Land Disposal of Radioactive Waste. Changes incorporate the Nuclear Regulatory Commission's requirements and include security rules for portable gauges and an expansion of the definition of byproduct material. The amendments take effect December 8, 2011. See http://www.tn.gov/sos/rules_filings/09-06-11.pdf.

WEST VIRGINIA


Water:



WYOMING


Land Use:



  • The Department of Environmental Quality amended Chapter 4, Environmental Protection Performance Standards for Surface Coal Mining Operations. The rule took effect September 12, 2011. See http://soswy.state.wy.us/Rules/RULES/8310.pdf.

  • The Department of Environmental Quality amended Chapter 1, Authorities and Definitions for Surface Coal Mining Operations. The rule took effect September 12, 2011. See http://soswy.state.wy.us/Rules/RULES/8308.pdf.

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


INTERNATIONAL

AUSTRALIA'S CARBON TAX LIKELY TO BECOME LAW

Australia's Senate voted last week that debate on the federal government's carbon tax will not be extended beyond November 21. "This motion will allow at least 20 hours of debate in each of the two weeks," said Senate leader Joe Ludwig in response to criticism of the end date. "The Senate does need to consider the legislation but it doesn't need to do it in an exhaustive way." The treasury modeling of the impact was released last week, indicating a A$23 per ton starting price, as opposed to the original A$20 per ton models. The treasury also estimated that average income will grow 1.1 percent per year to 2050 with the tax, as opposed to 1.2 percent a year without the tax. The treasury predicted that some industries, including mining, will grow by as much as 77 percent, while textiles, clothing, and car manufacturing will face large declines. For the full story, see http://news.smh.com.au/breaking-news-national/carbon-tax-to-become-law-by-nov-21-govt-20110921-1kk5u.html


UN CARBON MARKET WILL LIKELY CONTINUE IF KYOTO LAPSES

The European Union climate chief said last week that the United Nation's carbon market will survive even if greenhouse gas reduction goals for developed nations expire in 2012 without an immediate renewal. Connie Hedegaard, EU Climate Commissioner, said "We should still try to avoid the gap, but as Europe is the main player in the game, as we have legislation, targets, rules on offsetting, I cannot see why we wouldn’t continue to work with [UN Clean Development Mechanism (CDM)] projects." Hedegaard said that the EU cap-and-trade system, valued at $119.8 billion last year, would remain the market's driving force and that the CDM would continue largely as it is now. Europe's program allows emitters to use CDM offset credits as a means of cheaper compliance with EU limits, and last year companies used a record 137 million credits. A study released last week said that emissions trading schemes in the developing world would not be mature enough to link to the EU's carbon market before 2020 and that climate policy will revolve around non-emissions trading scheme policies like the Clean Development Mechanism. For the full story, see http://www.bloomberg.com/news/2011-09-23/un-carbon-market-will-survive-should-kyoto-goals-end-eu-says.html. For the study, see http://in.reuters.com/article/2011/09/21/idINIndia-59473020110921.


JAPAN TO CREATE NEW ENERGY POLICY

Japan will formulate a new energy policy by early 2013 and by March will unveil a range of options to meet energy demand to 2030, the Tokyo Shimbun reported last week. Japan has said that it will boost power conservation and increase the use of renewable energy to make up for power lost from an end to nuclear generation. However, it is not clear how the nation would meet its goals of cutting greenhouse gas emissions by 25 percent from 1990 levels by 2020, and electricity plans may include an increase in the use of fossil fuels in the short term. Last year's plan indicated that Japan would meet 53 percent of electricity demand with nuclear power and 26 percent from fossil fuels. Last March, prior to the Fukushima disaster, nuclear power supplied 30 percent of the country's electricity demand. For the full story, see http://www.reuters.com/article/2011/09/23/us-japan-energy-idUSTRE78M2VZ20110923.


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


Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


ELR STAFF

John C. Cruden, Publisher
Scott Schang, Editor-in-Chief
Rachel Jean-Baptiste, Managing Editor
Erin Webreck, Associate Editor
William J. Straub, Desktop Publisher
Clare Shepherd, Web Editor