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Weekly Update Volume 41, Issue 35

12/12/2011

LITIGATION 

WATER, CWA, UNLAWFUL DISCHARGES:


The Sixth Circuit upheld an individual's conviction for unlawfully discharging industrial wastewater into the Detroit sewer system. The individual, who worked at an industrial waste treatment facility, was sentenced to two 24-month prison terms, to run concurrently, for knowingly violating EPA-approved pretreatment requirements at the plant and for conspiring to violate the law in relation to the unlawful discharges. On appeal, the individual challenged the conviction on several grounds, but the court rejected his arguments. There is substantial evidence not only of the individual's active and knowing participation in the unlawful discharges of untreated (and less-than-fully treated) waste, but also of his continuing participation after he had conversations with other co-defendant employees about the unlawfulness of their conduct. Although the record is devoid of any formal agreement to discharge waste in violation of permitting requirements, there is ample evidence in the record from which the jury could reasonably conclude that there was a tacit or mutual understanding among the co-conspirators and that the individual acted in concert with others to accomplish the scheme's unlawful purpose. In addition, there was no clear error with respect to the adequacy of the instructions given to the jury on the conspiracy charge. United States v. Long, No. 09-1863, 41 ELR 20355 (6th Cir. Dec. 2, 2011).


WATER, TRADITIONAL NAVIGABLE WATERS, STANDING:


The D.C. Circuit held that a home builders' association lacked standing to challenge EPA's and the U.S. Army Corps of Engineers' determination that two reaches of the Santa Cruz River in southern Arizona constitute "traditional navigable waters" (TNW) under the CWA. Although the association has spent considerable staff time and monetary resources in their quest to clarify CWA jurisdiction, such as testifying before Congress and participating in numerous court cases, these actions do not suffice to show organizational standing. Neither has the association sufficiently alleged nor persuasively demonstrated any threat of injury in fact to any of its members that is fairly traceable to the TNW determination. Accordingly, the association failed to demonstrate an injury in fact traceable to the TNW determination to establish standing--either in its own right or on behalf of its members. The court, therefore, affirmed a lower court's dismissal of the case, albeit on different jurisdictional grounds. National Ass'n of Home Builders v. Environmental Protection Agency, No. 10-5341, 41 ELR 20357 (D.C. Cir. Dec. 9, 2011).


HAZARDOUS & SOLID WASTE, CERCLA, MINING:


A district court held that the state of Washington is not liable as an arranger under CERCLA for hazardous waste contamination stemming from mining operations on state lands. The state entered into mining contracts with a Canadian mining company that allowed the company to excavate and remove metal-containing ores from state lands. But the naturally occurring in-ground ore deposits did not have the "characteristic of waste" at the time they were "delivered" by the state to the mining companies. It was the extraction of the ore and the treatment of the ore that created the hazardous waste. The state did not perform this extraction and treatment--the mining company did. And it was the treatment of the severed ore that generated "waste" in the form of tailings. Furthermore, the state did not have the authority to control, or duty to dispose of or treat, those wastes. In addition, the fact that the ore deposits were not hazardous waste when the state entered into the contracts with the mining company indicates that the purpose of those contracts--and the intent of the state--was not to dispose of or treat hazardous waste. It was simply to generate revenue for the state. The state's mere knowledge that waste would be generated from the extraction and treatment of the ore deposits and would require disposal in some fashion does not prove the state "planned for" disposal. Accordingly, the state should not be held liable as an arranger for the disposal or treatment of hazardous waste. Pakootas v. Teck Cominco Metals Ltd., No. CV-04-256-LRS, 41 ELR 20356 (E.D. Wash. Nov. 29, 2011) (Suko, J.).


WATER, CONSTITUTIONAL LAW, WATER RIGHTS:


A California appellate court reversed and remanded a lower court decision invalidating a settlement agreement between the state and three water and irrigation agencies concerning the intra-state right to water from the Colorado River. In addition to allocating water rights within the state, the settlement allocated responsibility for mitigating impacts from reduced water flows to the Salton Sea. As part of the settlement, the parties entered a "joint powers agreement" that provided that California would pay all of the mitigation costs beyond a particular amount for which the water and irrigation agencies were to be liable. The lower court ruled that this unconditional commitment of funds violated article XVI, section 7 of the California Constitution, which provides that money may be drawn from the Treasury only through an appropriation enacted by the legislature. But while the agreement does unconditionally obligate the state to pay the excess mitigation costs beyond those for which the agencies are responsible, nothing in the joint powers agreement gives those agencies the right to enforce that obligation by drawing money from the Treasury without an appropriation by the legislature. Accordingly, the joint powers agreement does not violate the appropriation requirement. Nor does the joint powers agreement violate the debt limitation in section 1 of article XVI of the California Constitution because the state's commitment to pay the excess mitigation costs is contingent on there being excess costs to pay, and a contingent obligation does not qualify as a "debt" or "liability" within the meaning of that constitutional provision. In re Quantification Settlement Agreement Cases, No. C064293, 41 ELR 20354 (Cal. App. 3d Dist. Dec. 7, 2011).


CLIMATE CHANGE, CAP AND TRADE, CEQA:


A California court held that the California Air Resources Board's "functional equivalent document" and scoping plan to reduce greenhouse gases as it relates to cap and trade complies with the California Environmental Quality Act. The court therefore lifted its May 20, 2011, peremptory writ of mandate enjoining the board from engaging in any cap-and-trade related project activity that could result in an adverse change to the physical environment until it complies with its obligations under its certified regulatory program and CEQA, including any further rulemaking and implementation of cap and trade. Association of Irritated Residents v. California Air Resources Board, No. CPF 09-509562, 41 ELR 20353 (Cal. Super. Ct. Dec. 6, 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:



  • SIP Approvals: California (volatile organic compound (VOC) emissions for the Placer County air pollution control district) 76 FR 75795 (12/5/11); (deferral of sanctions for the San Joaquin Valley unified air pollution control district) 76 FR 76046 (12/6/11). Georgia (attainment of the 1997 annual fine particulate matter (PM) NAAQS for the Atlanta nonattainment area) 76 FR 76620 (12/8/11). Indiana (attainment of the 1997 annual fine PM NAAQS for the Greater Chicago nonattainment area through 2025) 76 FR 76302 (12/7/11).

  • SIP Withdrawals: Indiana/Ohio (attainment of the 1997 annual fine PM NAAQS for the Cincinnati-Hamilton nonattainment area) 76 FR 76048 (12/6/11). Texas (disapproval of new source review definition) 76 FR 76673 (12/8/11).

  • SIP Proposals: California (VOC emissions for the Placer County air pollution control district; see above for direct final rule) 76 FR 75857 (12/5/11); (new source review requirements for the San Joaquin Valley air pollution control district) 76 FR 76112 (12/6/11); (limited approval of nitrogen oxide (NOx) revisions for the Feather River air quality management district) 76 FR 76115 (12/6/11). Delaware/Maryland/New Jersey/Pennsylvania (attainment of the 1997 eight-hour ozone NAAQS and withdrawal of disapprovals for the Philadelphia nonattainment area) 76 FR 76929 (12/9/11). Georgia (attainment of the 1997 eight-hour ozone NAAQS) 76 FR 75849 (12/5/11). South Dakota (regional haze program) 76 FR 76646 (12/8/11). Tennessee (new source review permitting program regulations) 76 FR 75845 (12/5/11).

HAZARDOUS & SOLID WASTE:



  • EPA proposed to grant a petition submitted by the ConocoPhillips Refinery in Billings, Montana, to delist residual solids from sludge at the refinery from the list of hazardous wastes. 76 FR 76677 (12/8/11).

  • EPA proposed to approve Idaho's UST program. 76 FR 76684 (12/8/11).

NATURAL RESOURCES:



  • OSM proposed to approve an amendment to Arkansas' regulatory program and abandoned mine land plan under SMCRA. 76 FR 76104 (12/6/11).

  • OSM proposed to approve an amendment to Montana's regulatory program under SMCRA concerning statutory definitions. 76 FR 76111 (12/6/11).

TOXIC SUBSTANCES:



  • EPA revoked a significant new use rule for the chemical substance identified generically as substituted ethoxyethylamine phosphonate based on new information and test data. 76 FR 76300 (12/7/11).

WATER:



  • EPA Regions 1 through 10 seek public comment on proposed revisions to general permits authorizing discharges incidental to the normal operation of vessels. 76 FR 76716 (12/8/11).

  • EPA Region 6 announced the availability of three TMDLs under CWA §303(d) for waters listed in Louisiana. 76 FR 76161 (12/6/11).

WILDLIFE:



  • FWS announced the availability of a draft policy to provide its interpretation of "significant portion of its range" in ESA determinations. 76 FR 76987 (12/9/11).

  • FWS proposed to designate approximately 274 miles of streams and 241,438 acres of lakes and reservoirs in Oregon and California as critical habitat for the Lost River sucker and the shortnose sucker under the ESA. 76 FR 76337 (12/7/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Levine & Son, Inc., No. 1:11-cv-00480-CAB (N.D. Ohio Dec. 2, 2011). A settling CAA defendant responsible for violations at its Cleveland facility must pay a $3,500 civil penalty, must purchase equipment to recover refrigerant, must not accept equipment with leaking refrigerant, must require a verification statement from its suppliers, and must keep a refrigerant recovery log. 76 FR 76762 (12/8/11).

  • United States v. Rentech Nitrogen, LLC, No. 3:11-CV-50358 (N.D. Ill. Dec. 2, 2011). A settling CAA defendant that violated PSD, operating permit, and emission limit requirements at its nitric acid plant in East Dubuque, Illinois, must pay a $108,000 civil penalty, must achieve acceptable levels of NOx, must comply with the new source performance standard for nitric acid, and must incorporate these requirements into its Title V permit. 76 FR 76762 (12/8/11).

  • United States v. E.I. DuPont de Nemours & Co., No. 1:11-7003 (D.N.J. Dec. 1, 2011). A settling RCRA defendant responsible for violations at its treatment facility in Deepwater, New Jersey, must pay a $250,000 civil penalty and must meet specific requirements for railcars containing hazardous waste. 76 FR 76763 (12/8/11).

  • In re M.D. Moody & Sons, Inc., No. 3:09-bk-6247 (Bankr. M.D. Fla. Nov. 30, 2011). Under a bankruptcy settlement agreement, settling CERCLA defendants responsible for violations at the BCX Superfund site in Jacksonville, Florida, must pay $5,629.05 in U.S. response costs incurred at the site. 76 FR 76437 (12/7/11).

  • United States v. Bacardi Corp., No. 3:08-cv-1825 (D.P.R. Nov. 28, 2011). A settling CWA defendant responsible for violations at its rum production facility in Cataño, Puerto Rico, must address exceedances of effluent limitations for certain bacterial pollutants in order to comply with its NPDES permit. 76 FR 75913 (12/5/11).

  • United States v. Lafarge North America Inc., No. RDB 11-cv-3426 (D. Md. Nov. 29, 2011). A settling CWA defendant responsible for violations at 21 facilities in Alabama, Colorado, Georgia, Maryland, and New York must pay a $740,000 civil penalty, must implement a state environmental project valued at $2,950,000, and must perform injunctive relief at all of its related facilities. 76 FR 75913 (12/5/11).

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



  • S. 683 (land use), which would provide for the conveyance of certain parcels of land to the town of Mantua, Utah, was passed by the House. 157 Cong. Rec. H8245 (daily ed. Dec. 7, 2011).

  • H.R. 1633 (air), which would establish a temporary prohibition against revising any NAAQS applicable to coarse particulate matter and limit federal regulation of nuisance dust in areas in which such dust is regulated under state, tribal, or local law, was passed by the House. 157 Cong. Rec. H8274 (daily ed. Dec. 8, 2011).

  • H.R. 2351 (wildlife), which would direct the Secretary of the Interior to continue stocking fish in certain lakes in the North Cascades National Park, Ross Lake National Recreation Area, and Lake Chelan National Recreation Area, was passed by the House. 157 Cong. Rec. H8245 (daily ed. Dec. 7, 2011).

  • H.R. 2360 (water), which would amend the Outer Continental Shelf Lands Act to extend the Constitution, laws, and jurisdiction of the United States to installations and devices attached to the seabed of the outer continental shelf for the production and support of production of energy from sources other than oil and gas, was passed by the House. 157 Cong. Rec. H8244 (daily ed. Dec. 7, 2011).

Committee Action



  • S. 1400 (water) was reported by the Committee on Environment and Public Works. S. Rep. No. 112-100, 157 Cong. Rec. S8460 (daily ed. Dec. 8, 2011). The bill would restore the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of Gulf Coast states adversely affected by the explosion on, and sinking of, the mobile offshore drilling unit Deepwater Horizon.

  • S. 1430 (water) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 112-99, 157 Cong. Rec. S8413 (daily ed. Dec. 7, 2011). The bill would authorize certain maritime programs of the DOT, including a green ships program, and measures to promote more efficient use of U.S. navigable waters.

  • H.R. 1633 (air) was reported by the Committee on Energy and Commerce. H. Rep. No. 112-316, 157 Cong. Rec. H8186 (daily ed. Dec. 6, 2011). The bill would establish a temporary prohibition against revising any NAAQS applicable to coarse particulate matter and limit federal regulation of nuisance dust in areas in which such dust is regulated under state, tribal, or local law.

  • H.R. 1740 (water) was reported by the Committee on Natural Resources. H. Rep. No. 112-320, 157 Cong. Rec. H8317 (daily ed. Dec. 8, 2011). The bill would amend the Wild and Scenic Rivers Act to designate a segment of Illabot Creek in Skagit County, Washington, as a component of the National Wild and Scenic Rivers System.

  • H.R. 3069 (wildlife) was reported by the Committee on Natural Resources. H. Rep. No. 112-322, 157 Cong. Rec. H8317 (daily ed. Dec. 8, 2011). The bill would amend the Marine Mammal Protection Act of 1972 to reduce predation on endangered Columbia River salmon and other nonlisted species.

Bills Introduced



  • S. 1952 (Lautenberg, D-N.J.) (hazardous & solid waste) would seek to improve hazardous materials transportation safety. 157 Cong. Rec. S8414 (daily ed. Dec. 7, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1956 (Thune, R-S.D.) (climate) would prohibit operators of civil aircraft of the United States from participating in the European Union's emissions trading scheme. 157 Cong. Rec. S8414 (daily ed. Dec. 7, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • H.R. 3552 (Rangel, D-N.Y.) (energy) would extend the additional duty on ethanol. 157 Cong. Rec. H8124 (daily ed. Dec. 2, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 3560 (Grijalva, D-Ariz.) (land use) would provide for the conveyance of certain federal lands in Yuma County, Arizona. 157 Cong. Rec. H8135 (daily ed. Dec. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 3562 (Nadler, D-N.Y.) (water) would amend the Federal Water Pollution Control Act with respect to the use of dispersants. 157 Cong. Rec. H8135 (daily ed. Dec. 5, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Energy and Commerce.

  • H.R. 3570 (Capps, D-Cal.) (water) would promote ocean and human health. 157 Cong. Rec. H8186 (daily ed. Dec. 6, 2011). The bill was referred to the Committee on Science, Space, and Technology and the Committee on Energy and Commerce.

  • H.R. 3616 (Berg, R-N.D.) (air) would provide that EPA rules entitled "NESHAPs for Reciprocating Internal Combustion Engines" have no force or effect with respect to existing stationary compression and spark ignition reciprocating internal combustion engines used to generate electricity for emergency or demand response purposes or for the purpose of operating a water pump. 157 Cong. Rec. H8318 (daily ed. Dec. 8, 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:

Alabama
California
Florida

Idaho
Maryland
Ohio

Tennessee
Texas
Washington

ALABAMA


General:



  • The Department of Environmental Management proposed to amend Ala. Admin. Code r. 335.8.1.09, Review Process for Federally Regulated Activities, and 335.8.1.10, Review Process for Federal Projects, Activities, and Assistance. Amendments would make a routine program change and alter the section to be consistent with federal regulations. There will be a public hearing January 4, 2012, and the deadline for comment is January 6. See http://www.alabamaadministrativecode.state.al.us/UpdatedMonthly/AAM-NOV-11/335-8-1.PDF.

Water:



CALIFORNIA


Toxic Substances:



  • The Office of Environmental Health Hazard Assessment proposed to add kresoxim-methyl and tetraconazole to the list of chemicals known to the state to cause cancer. The deadline for comment is January 17, 2012. See http://www.oal.ca.gov/res/docs/pdf/notice/48z-2011.pdf (pp. 1942-44).

FLORIDA


Water:



  • The Department of Agriculture and Consumer Services proposed to add 5M Fla. Admin. Code §14, Best Management Practices for Florida Equine Operations. The rule would add a procedure for agricultural equine operations to submit a notice of intent to implement best management practices for water quality and quantity. The deadline for comment is December 23, 2011. See https://www.flrules.org/Gateway/View_notice.asp?id=10697953.

IDAHO


Hazardous & Solid Waste:



  • The Department of Environmental Quality amended Idaho Admin. Code r. 58.01.10, Rules Regulating the Disposal of Radioactive Materials Not Regulated Under the Atomic Energy Act of 1954. Changes incorporate a revised definition of "restricted hazardous waste" from House Bill 93 and incorporate federal changes to regulations. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11Dec.pdf (p. 112).

  • The Department of Environmental Quality amended Idaho Admin. Code r. 58.01.24, Standards and Procedures for Application of Risk Based Corrective Action at Petroleum Release Sites. Changes correct and update tables and incorporate the use of soil vapor into the risk evaluation process. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11Dec.pdf (pp. 118-121).

Water:



  • The Department of Environmental Quality amended Idaho Admin. Code r. 58.01.02, Water Quality Standards. Changes relate to thermal effluent limits in NPDES permits that, according to the Department, contain provisions greater than needed to protect aquatic life and outdated numeric criteria to protect salmonid spawning, in addition to excessive limits on water temperature rise. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11Dec.pdf (p. 112).

  • The Department of Environmental Quality amended Idaho Admin. Code r. 58.01.02, Water Quality Standards. Changes relate to the implementation of antidegradation policy. Revisions include adding definitions for "degradation or lower water quality" and "general permit" as well as language on Tier II waters and insignificant activity. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11Dec.pdf (p. 112).

MARYLAND


Air:



  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.01, General Administrative Provisions, and 26.11.06, General Emission Standards, Prohibitions, and Restrictions, to incorporate federal definitions. There will be a public hearing January 11, 2012. See http://www.dsd.state.md.us/mdregister/3825.pdf (pp. 1647-48).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.01, General Administrative Provisions, and 26.11.19, Volatile Organic
    Compounds from Specific Processes. Changes would establish requirements for alternative testing of control devices, establish the method required to determine composite vapor pressure of solvent cleaning material, establish requirements for the handling of solvents and cleaning materials, in incorporate material by reference. There will be a public hearing January 11, 2012. See http://www.dsd.state.md.us/mdregister/3825.pdf (pp. 1648-50).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.08, Control of Incinerators. Changes would implement U.S. EPA's emission guidelines for hospital, medical, infectious, and medical waste incinerators. There will be a public hearing January 11, 2012. See http://www.dsd.state.md.us/mdregister/3825.pdf (pp. 1651-59).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.19, Volatile Organic Compounds from Specific Processes to establish operating standards for vehicle refinishing facilities in Maryland. There will be a public hearing January 11, 2012. See http://www.dsd.state.md.us/mdregister/3825.pdf (pp. 1659-66).

Climate:



  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.01, General Administrative Provisions, 26.11.02, Permits, Approvals, and Registration, and 26.11.06, General Emission Standards, Prohibitions, and Restrictions. Changes implement U.S. EPA's decision to delay Title V requirements for carbon dioxide from bioenergy and biogenic sources. There will be a public hearing January 11, 2012. See http://www.dsd.state.md.us/mdregister/3825.pdf (pp. 1645-47).

OHIO


General:



  • The Environmental Protection Agency proposed changes to Ohio Admin. Code §§3745.47 & 3745.49, pertaining to adjudication and administrative procedures. Among other changes to the existing rules, the new rules would add a section governing verified complaints. There will be a public hearing January 5, 2012. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_152639_20111130_0805.pdf.

Hazardous & Solid Waste:



Water:



TENNESSEE


Water:



  • The Environment and Conservation Agency proposed to amend Tenn. Admin. Code §§0400.03.01-.12 and 0400.42.01-.12. Changes pertain to surface mining. There will be a public hearing February 19, 2012. See http://state.tn.us/sos/rules_filings/11-18-11.pdf.

TEXAS


General:



  • The Department of Transportation proposed to amend 43 Tex. Admin. Code §2, Environmental Policy. Changes relate to environmental reviews and public involvement, and implement new state laws requiring the agency to establish a process to certify department district environmental specialists who work on documents related to the environmental review process. There will be a public hearing January 9, 2012, and the deadline for comment is January 11. See http://www.sos.state.tx.us/texreg/pdf/backview/1202/1202is.pdf (pp. 8184-207).

WASHINGTON


Wildlife:



  • The Forest Practice Board proposed to amend Wash. Admin. Code §22.16.080, Critical habitats (state) of threatened and endangered species. Changes would reflect the removal of the bald eagle and the peregrine falcon from the state's threatened and endangered species list. There will be public hearings on January 3, 2012, and the date of intended adoption is February 14. See http://apps.leg.wa.gov/documents/laws/wsr/2011/23/11-23-105.htm.

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


INTERNATIONAL

BEIJING SMOG FINALLY LIFTS; RESIDENTS CALL FOR BETTER DATA

Air pollution in Beijing hit levels hazardous to human health a majority of days in the past few weeks, and severe smog led to hundreds of flight cancellations and road closures last week. In some cases, traffic jams stretched as long as 30 miles and drivers were given emergency food and water handouts as they waited for visibility to return. Stores sold out of face masks and air purifiers, and bloggers posted photographs of the thick haze over the city blaming the Chinese government for failing to inform the public of the threat posed by air pollution. The U.S. embassy, which monitors pollution levels from its rooftop, reported hazardous pollution levels, with one day so polluted it was described as "beyond index." However, the China Environmental Monitoring Center released data showing that Beijing was "slightly" polluted, a discrepancy that, according to Bloomberg, could start a credibility argument that the Chinese government may lose. Mid-last week, a cold front swept away air pollution and levels dropped below "unhealthy" for the first time since December 3, but not before Beijing residents began independently taking pollution samples and posting the results online. Chinese officials claimed that air pollution levels were causing "confusion" and undesirable "social consequences" in 2009, according to leaked cables, and suggested that the embassy should consider limiting the availability of the data to Americans. Many Chinese citizens are now calling for increased disclosure of air pollution data. For the full story, see http://www.nytimes.com/2011/12/07/world/asia/beijing-journal-anger-grows-over-air-pollution-in-china.html?_r=1 and http://www.telegraph.co.uk/earth/earthnews/8938159/Chinese-lose-patience-with-pollution.html. For the story on citizen data collection, see http://news.yahoo.com/chinas-pollution-data-shrouded-official-fog-073658681.html. For the story on flight delays and economic impacts, see http://articles.latimes.com/2011/dec/07/world/la-fg-china-air-pollution-20111207.


BRAZIL SENATE EASES FOREST PROTECTION RULES

Brazilian Amazon deforestation fell to the lowest level ever reported, but progress may be shortlived as the Senate voted to ease rules for farmer forest preservation. The bill, an update to a 1965 law that severely restricted the amount of land farmers can clear, revises the 55 million hectares that farmers would have to restore to 24 million hectares. And while the Senate revised a lower house measure that would have provided amnesty for illegal deforestation before 2008, farmers will not have to pay billions of dollars in fines. Instead, they will have time to allow regeneration. "I would like to tell you something: this is not the code of my dreams," said Jorge Viana, senator from the Amazonian state of Acre. "This is was what was possible, and I believe this is as good as we could get." Debate over the bill has caused a heated argument between environmentalists, who say it creates amnesty for illegal clearing by ranchers, and landowners, who say it provides legal certainty to farmers. For the full story, see http://www.ft.com/intl/cms/s/0/19374ef0-2103-11e1-8133-00144feabdc0.html#axzz1g39NiCuN and http://www.csmonitor.com/World/Americas/Latin-America-Monitor/2011/1209/Why-deforesters-could-soon-have-freer-rein-in-the-Amazon. For the story on low levels of deforestation, see http://news.mongabay.com/2011/1205-brazil_deforestation_2011.html.


CDM CAN CONTINUE EVEN WITHOUT KYOTO EXTENSION

The United Nations carbon market will likely continue even in the absence of a second round of emissions targets, according to Bloomberg. The Clean Development Mechanism, the second largest offset market in the world, can continue to generate credits even if wealthy countries fail to extend the Kyoto Protocol. The mechanism, worth $1.5 billion last year according to the World Bank, can be used for compliance in the European Union's scheme, and it will "cruise through" talks, said Alex Sarac, legal director at DLA Piper LLP. However, Su Wei, China’s lead negotiator, said that there would be no reason to extend the mechanism without Kyoto emissions limits, regardless of its viability. For the full story, see http://www.bloomberg.com/news/2011-12-09/un-offset-market-likely-to-continue-in-absence-of-kyoto-deal.html.


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


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