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Weekly Update Volume 41, Issue 8

03/14/2011

LITIGATION 

NATIONAL FORESTS, ROADLESS RULE:

A district court set aside a U.S. Forest Service rule exempting the Tongass National Forest--the nation's largest--from the Roadless Area Conservation Rule. The court ruled that the exemption was arbitrary and capricious because the Forest Service failed to provide a rational basis for temporarily exempting the Tongass from the Roadless Rule’s prohibitions. The Forest Service failed to articulate a rationale connection between long-term job losses and the exemption. Similarly, its explanation that the Roadless Rule significantly limits utility connections is not supported by and is contrary to the evidence. In addition, in 2001 the Forest Service determined that the Tongass Forest plan’s methods for protecting roadless values were deficient, yet it deemed them sufficient in its 2003 record of decision for the exemption. The agency's failure to provide a reasoned explanation for its reversal of position was arbitrary and capricious. And the Forest Service's rationale that the exemption would provide legal certainty is implausible. Accordingly, the court reinstated the Roadless Rule in the Tongass. Organized Village of Kake v. United States Department of Agriculture, No. 1:09-cv-00023 JWS, 41 ELR 20107 (D. Alaska Mar. 4, 2011) (Sedwick, J.).


CWA, STORMWATER POLLUTION:

The Ninth Circuit held that a local flood district is liable under the CWA for discharging polluted stormwater into the Los Angeles and San Gabriel Rivers. Environmental groups filed suit against the flood district as well as against a county for unlawful stormwater discharges into the Los Angeles, San Gabriel, and Santa Clara rivers and into Malibu Creek, but the lower court, on motions for summary judgment, dismissed their claims. The groups, however, provided sufficient evidence that the monitoring stations for the Los Angeles and San Gabriel Rivers are located in a section of municipal separate storm sewer systems (MS4s) owned and operated by the flood district and, after stormwater known to contain standards-exceeding pollutants passes through these monitoring stations, this polluted stormwater is discharged into these two rivers. The groups were therefore entitled to summary judgment on the district's liability for discharges into the Los Angeles and San Gabriel rivers. The groups, however, failed to provide evidence sufficient to determine if stormwater discharged from an MS4 controlled by the district caused or contributed to pollution exceedances in Santa Clara River and Malibu Creek. Similarly, the groups did not delineate how stormwater from MS4s controlled by the county caused or contributed to exceedances in any of the water bodies. Natural Resources Defense Council v. County of Los Angeles, No. 10-56017, 41 ELR 20109 (9th Cir. Mar. 10, 2011).


CERCLA, INSURANCE:

A district court held that personal injury provisions contained in an insurance policy require the insurer to indemnify a mining company for any monetary liability arising from its contamination of land and water on and adjacent to a uranium mining site on the Spokane Indian Reservation in eastern Washington. The insurer argued that the scope of the policy's personal injury liability coverage does not encompass the mine's liability in the underlying CERCLA cost recovery action. But the CERCLA claims are analogous to claims for trespass, nuisance, and interference with the use of private occupancy and fall under the policy's stated coverage of personal injury claims for "wrongful entry" or "invasion of the right of private occupancy." And while portions of the policy concerning bodily injury and property damage contain pollution exclusion clauses, the portion on personal injury does not. The insurers motion for partial summary judgment was therefore denied. Newmont U.S.A. Ltd. v. American Home Assurance Co., No. 09-0033, 41 ELR 20110 (E.D. Wash. Mar. 3, 2011) (Quackenbush, J.).


CERCLA, CONTRIBUTION:

A district court held that a paper company is entitled to contribution from a downstream company for costs it incurred cleaning up PCB contamination at four of five operable units along a river. The court previously ruled that the downstream company was not entitled to contribution from the paper company because it knowingly took the risk that the product it mobilized would have long-lasting environmental consequences. The paper company argued that the same equitable factors that barred the downstream company from receiving contribution would support the awarding of full contribution to the paper company. But under the totality of the circumstances of this case, basing contribution on fault is a sound approach to resolving the liability for the river cleanup. As such, the court ruled that the paper company is entitled to full contribution for all of the appropriate costs incurred in cleaning up operable units two through five, as well as any future costs it may be deemed liable for in those sections of the river. As for operable unit one, the paper company conceded that the downstream company's discharges did not pollute operable unit one since it is located upstream from the company's facility. Nevertheless, the paper company argued that the downstream company is liable as a successor to arrangers of the disposal of those pollutants. Whether the downstream company can be held liable as an arranger cannot be answered at this stage of the proceedings. Appleton Papers Inc. v. George A. Whiting Paper Co., No. 08-C-16, 41 ELR 20111 (E.D. Wis. Feb. 28, 2011) (Griesbach, J.).


INJUNCTIONS, INTERNATIONAL LAW:

A district court issued a preliminary injunction enjoining plaintiffs from enforcing a multibillion dollar judgment awarded by an Ecuadorian court against an oil company for environmental pollution in the Amazon. The evidence establishes that the plaintiffs and their allies intend quickly to pursue multiple enforcement actions and asset seizures around the globe. Absent a preliminary injunction, the oil company would be forced to defend itself and litigate the enforceability of the Ecuadorian judgment in multiple proceedings. Accordingly, it demonstrated immediate and irreparable injury. Similarly, the balance of hardships tips in the company's favor as well. In addition, the company is sufficiently likely to prevail on its claim for a declaration that the Ecuadorian judgment is not entitled to recognition or enforcement and that efforts in that direction should be enjoined. The company raised substantial questions that present a fair ground for litigation as to whether the Ecuadorian judgment is a result of fraud practiced on the Ecuadorian tribunal. Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 41 ELR 20108 (S.D.N.Y. Mar. 7, 2011) (Kaplan, J.).


CAA, POTENTIAL TO EMIT, BEST AVAILABLE CONTROL TECHNOLOGY:


 


The Wyoming Supreme Court upheld a state-issued air quality permit authorizing a power plant's construction of a proposed coal-to-liquid facility and an associated underground coal mine. The court rejected an environmental group's claims that the permit fails to consider significant sulfur dioxide emissions from flares in determining the potential to emit. The state agency's decision to exclude emissions from malfunctions and cold starts from the facility's potential to emit was not contrary to applicable Wyoming statutes and regulations. Nor could the group demonstrate that the agency's decision was inconsistent with federal authority or EPA guidance. The court also rejected claims that the permit fails to apply the best available control technology to limit the flare emissions. The agency's decision to impose the plant's startup/shutdown emission minimization plan as a substitute for numerical emissions limitations was reasonable due to the infeasibility of measuring emissions from the flares. Nor did the agency err in using measurements, models, and controls of coarse particles as a surrogate to determine that the facility also complied with requirements relating to fine particulates. And the agency wasn't required to model the short-term impacts of fugitive emissions. Sierra Club v. Wyoming Department of Environmental Quality, No. 2011 WY 42, 41 ELR 20112 (Wyo. Mar. 9, 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:



  • The CEQ issued instructions to federal agencies for integrating climate change adaptation into their policies and practices as required under Executive Order No. 13514, Federal Leadership in Environmental, Energy, and Economic Performance. 76 FR 12945 (3/9/11).

  • EPA finalized amendments to the NESHAPs for existing stationary spark ignition reciprocating internal combustion engines. 76 FR 12863 (3/9/11).

  • EPA proposed final amendments to the NESHAPs for existing stationary spark ignition reciprocating internal combustion engines; see above for direct final rule. 76 FR 12923 (3/9/11).

  • EPA extended attainment of the 1997 eight-hour ozone NAAQS for the Baltimore moderate nonattainment area until June 15, 2011. 76 FR 13289 (3/11/11).

  • EPA entered into a proposed consent decree under the CAA requiring it to respond to a petition seeking the Agency's objection to a CAA Title V operating permit issued by the New Mexico Environment Department to Williams Four Corners LLC for the Sims Mesa Central Delivery Point facility by April 29, 2011. 76 FR 12731 (3/8/11).

  • SIP Approvals: California (definition of terms for the Imperial County, Kern County, and Ventura County air pollution control districts) 76 FR 12280 (3/7/11). Indiana/Kentucky (attainment of the annual average 1997 fine particulate matter (PM) NAAQS for the bi-state nonattainment area) 76 FR 12860 (3/9/11). Tennessee (attainment of the 1997 eight-hour ozone NAAQS for the Knoxville nonattainment area) 76 FR 12587 (3/8/11).

  • SIP Proposals: California (definition of terms for the Imperial County, Kern County, and Ventura County air pollution control districts; see above for direct final rule) 76 FR 12306 (3/7/11). Illinois/Missouri (attainment of the 1997 fine PM NAAQS for the Saint Louis nonattainment area) 76 FR 12302 (3/7/11). Oregon (visibility and regional haze requirements) 76 FR 12651 (3/8/11).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed settlement agreement under CERCLA that absolves the settling parties from payment of past U.S. response costs incurred at the Richfield PCE Superfund site in Sevier County, Utah, due to an inability to pay. 76 FR 13182 (3/10/11).

  • EPA approved revisions to Texas' hazardous waste management program. 76 FR 12283 (3/7/11).

  • EPA proposed to approve revisions to Texas' hazardous waste management program; see above for direct final rule. 76 FR 12307 (3/7/11).

MINING:



  • OSM approved an amendment to Kentucky's regulatory program under SMCRA pertaining to the disposal of coal mine waste. 76 FR 12849 (3/9/11).

  • OSM approved an amendment to Louisiana's regulatory program and abandoned mine land reclamation plan under SMCRA covering a wide range of provisions. 76 FR 12852 (3/9/11).

  • OSM approved an amendment to Montana's regulatory program under SMCRA concerning letters of credit issued by banks. 76 FR 12857 (3/9/11).

  • OSM proposed to approve an amendment to Pennsylvania's regulatory program under SMCRA that would remove a required amendment on regulatory exemptions for coal extraction incidental to the extraction of other minerals. 76 FR 12920 (3/9/11).

WILDLIFE:



  • FWS announced a 12-month finding on a petition to list the Mt. Charleston blue butterfly as endangered or threatened under the ESA; the agency found that listing is warranted but precluded by higher priority actions. 76 FR 12667 (3/8/11).

  • FWS announced a 90-day finding on a petition to list the Texas kangaroo rat as endangered or threatened and to designate critical habitat under the ESA; the agency found that listing may be warranted and initiated a status review. 76 FR 12683 (3/8/11).

  • FWS established regulations for seasons, harvest limits, methods, and means related to the taking of fish and shellfish for subsistence uses in Alaska during the 2011-2012 and 2012-2013 regulatory years. 76 FR 12564 (3/8/11).

  • NOAA-Fisheries announced a 90-day finding on a petition to list six species of sawfish as endangered or threatened under the ESA; the agency found that listing may be warranted for five of the sawfish species and initiated a status review. 76 FR 12308 (3/7/11).

DOJ NOTICES OF SETTLEMENT:



  • In re Motors Liquidation Corp., No. 09-50026 (REG) (Bankr. S.D.N.Y. Mar. 4, 2011). Settling CAA, CERCLA, and RCRA parties responsible for violations at multiple facilities and sites nationwide must pay $4,613,322 from bonds, with an additional $10.5 million in bond requirements for six non-owned sites, must provide the United States with an allowed general unsecured claim of $36,290,270 for environmental remediation at 29 non-owned sites, and must pay civil penalties for violations at multiregional sites. 76 FR 13208 (3/10/11).

  • United States v. Cumbie, No. 2:08-CV-01825-RMG (D.S.C. Mar. 1, 2011). A settling CWA defendant that discharged fill material into waters of the United States must pay a civil penalty, must restore the impacted areas and perform mitigation, and must perform a supplemental environmental project. 76 FR 12757 (3/8/11).

  • United States v. Arch Coal, Inc., No. 2:11-cv-00133 (S.D.W. Va. Mar. 1, 2011). Settling CWA defendants that discharged pollutants into waters of the United States in Kentucky and West Virginia must pay a $4 million civil penalty and must perform various injunctive relief measures. 76 FR 12369 (3/7/11).

  • United States v. Manzo, No. 3:97-cv-00289 (D.N.J. Mar. 2, 2011). Settling CERCLA defendants responsible for violations at the Burnt Fly Bog Superfund site in Middlesex and Monmouth Counties, New Jersey, must pay $19.025 million in U.S. response costs and natural resource damages incurred at the site. 76 FR 12369 (3/7/11).

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. 499 (Hatch, R-Utah) (hydroelectric power) would authorize the Secretary of the Interior to facilitate the development of hydroelectric power on the Diamond Fork System of the Central Utah Project. 157 Cong. Rec. S1329 (daily ed. Mar. 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 511 (Blunt, R-Miss.) (fuel) would amend the CAA to provide for a reduction in the number of boutique fuels. 157 Cong. Rec. S1406 (daily ed. Mar. 8, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 512 (Bingaman, D-N.M.) (nuclear power) would amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out programs to develop and demonstrate two small modular nuclear reactor designs. 157 Cong. Rec. S1406 (daily ed. Mar. 8, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 515 (Tester, D-Mont.) (water treatment) would rescind amounts made available for water treatment improvements for the Flathead County Water and Sewer District and make the amounts available for federal deficit reduction. 157 Cong. Rec. S1406 (daily ed. Mar. 8, 2011). The bill was referred to the Committee on Appropriations.

  • S. 519 (Reid, D-Nev.) (hydroelectric power) would further allocate and expand the availability of hydroelectric power generated at Hoover Dam. 157 Cong. Rec. S1501 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 520 (Coburn, R-Okla.) (ethanol) would repeal the Volumetric Ethanol Excise Tax Credit. 157 Cong. Rec. S1501-02 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Finance.

  • S. 524 (Feinstein, D-Cal.) (hydropower) would terminate certain hydropower reservations. 157 Cong. Rec. S1502 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 530 (Feinstein, D-Cal.) (ethanol) would modify certain subsidies for ethanol production. 157 Cong. Rec. S1502 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Finance.

  • S. 538 (Cardin, D-Md.) (wildlife) would amend the Neotropical Migratory Bird Conservation Act to reauthorize the Act. 157 Cong. Rec. S1546 (daily ed. Mar. 10, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 559 (Klobuchar, D-Minn.) (renewable energy) would promote the production and use of renewable energy, and for other purposes. 157 Cong. Rec. S1547 (daily ed. Mar. 10, 2011). The bill was referred to the Committee on Finance.

  • S. 564 (Bingaman, D-N.M.) (federal land) would designate the Valles Caldera National Preserve as a unit of the National Park System, and for other purposes. 157 Cong. Rec. S1547 (daily ed. Mar. 10, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 946 (Hastings, D-Fla.) (fisheries) would amend the Marine Mammal Protection Act of 1972 to reduce predation on endangered Columbia River salmon. 157 Cong. Rec. H1618 (daily ed. Mar. 8, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 947 (Hinojosa, D-Tex.) (water projects) would authorize the International Boundary and Water Commission to reimburse state and local governments of Arizona, California, New Mexico, and Texas for expenses incurred designing, constructing, and rehabilitating water projects under the jurisdiction of the Commission. 157 Cong. Rec. H1618 (daily ed. Mar. 8, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 952 (Miller, D-N.C.) (critical elements) would develop an energy critical elements program and amend the National Materials and Minerals Policy, Research and Development Act of 1980. 157 Cong. Rec. H1619 (daily ed. Mar. 8, 2011). The bill was referred to the Committee on Science, Space, and Technology.

  • H.R. 960 (Rogers, R-Ky.) (dredged material) would amend the Federal Water Pollution Control Act to clarify the authority of the Administrator of EPA to disapprove specifications of disposal sites for the discharge of dredged or fill material, and to clarify the procedure under which a higher review of specifications may be requested. 157 Cong. Rec. H1619 (daily ed. Mar. 8, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 967 (Schmidt, R-Ohio) (toxic substances) would amend the Food, Agriculture, Conservation, and Trade Act of 1990 and FIFRA to support efforts to control and eradicate bed bugs with respect to public health. 157 Cong. Rec. H1664 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Agriculture.

  • H.R. 976 (Denham, R-Cal.) (hydropower) would terminate certain hydropower reservations. 157 Cong. Rec. H1664 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 977 (Huizenga, R-Mich.) (federal land) would designate as wilderness certain land and inland water within the Sleeping Bear Dunes National Lakeshore in the state of Michigan. 157 Cong. Rec. H1664 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 990 (Young, R-Alaska) (endangered species) would amend the Marine Mammal Protection Act of 1972 to allow the importation of polar bear trophies taken in sport hunts in Canada. 157 Cong. Rec. H1665 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 991 (Young, R-Alaska) (endangered species) would amend the Marine Mammal Protection Act of 1972 to allow importation of polar bear trophies taken in sport hunts in Canada before the date the polar bear was determined to be a threatened species under the ESA. 157 Cong. Rec. H1665 (daily ed. Mar. 9, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1020 (Sablan, D-N.M.I.) (diesel emissions) would amend the Energy Policy Act of 2005 to include American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, and the Virgin Islands in certain efforts to reduce diesel emissions. 157 Cong. Rec. H1724 (daily ed. Mar. 10, 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:

California
Colorado
Indiana

Iowa
Montana
New Hampshire

New Jersey
 
 

CALIFORNIA


Water:



  • The Department of Water Resources proposed to amend Cal. Code Regs. tit. 23 §2.5.1, Industrial Process Water Exclusion in the Calculation of Gross Water Use. The amendment would exclude industrial process water from the calculation of gross water use for purposes of urban water management planning. This would apply to all urban retail water suppliers required to submit an Urban Water Management Plan. There will be public hearings on April 13 and 18, 2011, and the comment period closes April 18. See http://www.oal.ca.gov/res/docs/pdf/notice/9z-2011.pdf (pp. 303-07).

Toxic Substances:



  • The Office of Environmental Health Hazard Assessment proposed to list androstenedione, dibromoacetonitrile, hexachlorobutadiene, and malonaldehyde, sodium salt, as known to the state to cause cancer. The deadline for public comment is April 4, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/9z-2011.pdf (pp. 310-13).

COLORADO


Hazardous & Solid Waste:



INDIANA


Air:



IOWA


Water:



  • The Environmental Protection Commission proposed to amend Iowa Admin. Code chs. 38, Private Water Well Construction Permits; 39, Requirements for Properly Plugging Abandoned Wells; 49, Nonpublic Water Supply Wells; and 82, Well Contractor Certification, and to adopt new Chapter 48, Ground Heat Exchanger (GHEX) Loop Borehole Systems. Changes would rescind current GHEX language and standardize the minimum construction requirements for this type of well. There will be six hearings throughout early April, and the deadline for public comment is April 12, 2011. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-09-2011.Bulletin.pdf (pp. 1242-60).

MONTANA


Land Use:



  • The Department of Environmental Quality amended Mont. Admin. R. 36.11.402, regarding forest management rules for implementing conservation easements and habitat conservation plans. The amendment adds rules for land subject to a habitat conservation plan. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-05.pdf (pp. 320-21).

NEW HAMPSHIRE


Air:



  • The Department of Environmental Services proposed to amend Env-A 1200, Volatile Organic Compounds Reasonably Available Control Technology. Changes would implement U.S. EPA's control technique requirements and incorporate other federal regulations. There will be a public hearing April 1, 2011, and the deadline for public comment is April 11. See http://www.gencourt.state.nh.us/rules/register/2011/march-4-11.pdf (pp. 5-6).

NEW JERSEY


Energy:



  • The Board of Public Utilities adopted N.J. Admin. Code §14.8.6, Offshore Wind Renewable Energy. The rules provide an application process and a framework under which the Board will consider and approve applications for offshore renewable facilities and Offshore Renewable Energy Certificates. These special adopted new rules will remain in effect until August 10, 2012, or until the rules are proposed for public comment and readopted through standard rulemaking procedures. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 658(a)).

Water:



  • The Department of Environmental Protection proposed to adopt N.J. Admin. Code §7.1B, Waiver of Department Rules, to establish the conditions and procedures for the Department to approve waivers from strict compliance with its rules. A waiver may be granted if rules conflict, a rule is unduly burdensome in specific application, or a net environmental benefit would be realized. There will be a public hearing April 14, 2011, and the deadline for public comment is May 6. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 473(a)).

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


INTERNATIONAL

ENVIRONMENTAL GROUPS ASK CANADIAN COURT TO DECIDE WHETHER EA REQUIRED BY LAW

Sierra Club Canada and the Canadian Environmental Law Association have asked the Federal Court of Canada for a judicial review of two approvals by the Canadian Nuclear Safety Commission that would allow the shipment of radioactive materials. Michael Binder, head of the commission, said that opposition to the approvals, which would allow Bruce Power Inc. to ship 16 steam generators through the Great Lakes and the St. Lawrence Seaway, is "not any more about safety" and is a ploy by anti-nuclear activists to prey on people's fears. However, Richard Lindgren, counsel with the Canadian Environmental Law Association, said that the approvals were granted without conducting an environmental assessment (EA), a violation under the Canadian Environmental Assessment Act. The Canadian Nuclear Safety Commission staff granted the approvals without an EA, it said, because the commission performed its own equally rigorous assessment, which concluded that "the risk to the health and safety of the public and the environment posed by the proposed activity is negligible." The judicial review applications ask the court to decide whether a federal EA was required by law. "Major policy changes in the handling of nuclear waste should not be made in an ad hoc fashion," said John Bennett, executive director of Sierra Club Canada. In addition, Theresa McClenaghan, executive director of the Canadian Environmental Law Association, said that Canada has "never had any precedent for sending radioactive waste out of our nuclear facilities out of the country in the first place at all." Binder countered by saying that the shipment was safe, involving only a few grams of radioactive material, and that thousands of shipments of radioactive medical isotopes and other substances routinely travel the same route every year. For the full story, see http://www.owensoundsuntimes.com/ArticleDisplay.aspx?e=3012274 and http://www.windsorstar.com/technology/Suit+filed+over+waste/4414339/story.html. For the response of Michael Binder and the commission, see http://thechronicleherald.ca/Canada/1232128.html.


NORWAY OPENS BARENTS SEA TO FURTHER DRILLING, DELAYS ASSESSMENT IN FISH-RICH WATERS

Norway announced plans last Friday to open a new zone for oil and gas activity in the Barents Sea, part of a deal struck by Prime Minister Jens Stoltenberg and coalition partners to give the oil industry greater access to environmentally sensitive areas. Stoltenberg said that he was looking to grant access within "an environmentally safe framework." The government will conduct an impact assessment, the first step toward opening up the area to drilling, after Russian authorities ratify the sea boundary. The government also announced that it would not open up drilling in the waters off the Lofoten archipelago in the Norwegian Sea until this parliamentary term ends in 2013, a move Oil Industry Association head Gro Braekken said left the industry "dissatisfied." Environmental and fishing groups praised the decision, saying the fish-rich regions need protection from oil activities. Meanwhile, all four wells drilled in the Barents and Norwegian seas this year have failed to find oil or gas, adding to a record dry spell for the world's second-largest gas exporter. For the full story on drilling in the Barents, see http://www.reuters.com/article/2011/03/11/us-norway-arctic-idUSTRE72A1OH20110311. For the story on Lofoten, see http://www.reuters.com/article/2011/03/11/us-norway-drilling-idUSTRE72A2NJ20110311. For the story on the dry spell, see http://www.bloomberg.com/news/2011-03-03/norway-drillers-hit-worst-dry-spell-in-decades-as-reserves-wane.html.


SITE REMEDIATION CASE WON AFTER LAW ON WHICH CASE FOUGHT AMENDED

Critics of a new multi-billion dollar development in Barangaroo, a Sydney suburb, will file a new claim to stop construction after a last-minute law change exempting Barangaroo projects from site remediation planning laws thwarted their previous case. Justice Peter Biscoe in the Land and Environment Court allowed the work to proceed only after Planning Minister Tony Kelly changed the applicable law just days before a decision was due. ''[Kelly] could have exercised his power to make the amendment at any time after the commencement of proceedings, if not before,'' an upset Justice Biscoe said. ''The amendment changed the law on which the case had been fought. The timing of the amendment, almost two weeks after the conclusion of the hearing, has not been explained . . . [and] considerable legal costs and resources have been wasted by the applicant." Biscoe ordered that the defendant must pay court costs. "We want to see a transparent system where people live by the rules and the rules don't get changed halfway through," said Kirsty Ruddock, from the Environmental Defenders Office. For the full story, see http://www.smh.com.au/nsw/judge-says-minister-changes-barangaroo-rules-20110310-1bpt3.html. For background on the project, see http://www.bloomberg.com/news/2011-03-08/lend-lease-receives-state-approval-for-barangaroo-proposals.html. For Sydney City Council's response, see http://www.dailytelegraph.com.au/nsw-election-2011/demands-over-barangaroo-land-cynicism/story-fn7q4q9f-1226017336733. For more on Kelly's action, see http://www.smh.com.au/nsw/kelly-defied-advice-on-barangaroo-exemption-20110303-1bgi5.html.


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


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