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Weekly Update Volume 35, Issue 21



Note: The cases listed are available from the ELR Document Service.


The D.C. Circuit upheld EPA's denial of a petition asking it to regulate carbon dioxide and other greenhouse gas emissions from motor vehicles under the CAA. CAA §202(a)(1) directs the Administrator to regulate emissions that "in his judgment" "may reasonably be anticipated to endanger public health or welfare." Thus, §202(a)(1) gives the Administrator considerable discretion. As the court previously found in Ethyl Corp. v. EPA, 541 F.2d 1, 6 ELR 20267 (D.C. Cir. 1976), the Administrator need not exercise his discretion solely on the basis of his assessment of scientific evidence; rather, "policy judgments" also may be taken into account. Moreover, a determination of endangerment to public health "is necessarily a question of policy that is to be based on an assessment of risks and that should not be bound by either the procedural or the substantive rigor proper for questions of fact." Here, in addition to the scientific uncertainty about the causal effects of greenhouse gases on the future climate of the earth, the Administrator relied on many policy considerations that, in his judgment, warranted regulatory forbearance at this time. And, as the court held in Environmental Defense Fund v. EPA, 598 F.2d 62, 8 ELR 20765 (D.C. Cir. 1978), a reviewing court "will uphold agency conclusions based on policy judgments" when dealing with issues on the "frontiers of scientific knowledge." Massachusetts v. Environmental Protection Agency, No. 03-1361, 35 ELR 20148 (D.C. Cir. July 15, 2005) (58 pp.).


A district court held that Cooper Industries, Inc. v. Aviall Services, Inc., 540 U.S. 1099, 34 ELR 20154 (2004), bars a property owner's CERCLA contribution claims against other PRPs even though the owner was subject to a state administrative order. In Aviall, the U.S. Supreme Court held that to assert a contribution claim under CERCLA §113(f), the party must have been sued under §§106 or 107(a), or must have administratively or judicially settled their claim with the United States or a state. The property owner argued that it had a viable contribution claim because the state environmental agency issued an administrative order against it. That order, however, is not remotely the same as an EPA-issued administrative order under §106. The state order requires compliance with state law, not CERCLA, and it does it involve EPA. Because the owner filed its contribution claim before, not during or following, a civil action under either §§106 or 107, the owner's claim must be dismissed. Nor can the owner bring an implied contribution claim under §107(a), and the court lacked jurisdiction to grant declaratory relief. Cadlerock Properties Joint Venture, L.P. v. Schilberg, No. 3:01CV896, 35 ELR 20150 (D. Conn. July 19, 2005) (Kravitz, J.) (9 pp.).


A district court dismissed an individual's CAA and state law claims against an electric utility plant for lack of jurisdiction. The individual failed to comply with the CAA's notice requirements. His notice letter to the plant failed to sufficiently enable the plant to identify the dates the alleged violations occurred. The individual argued that read as a whole, the letter implies that the violations are "ongoing" and therefore occurred every day since the plant began its operations. Yet statements that the violations are "ongoing" or "continuing" are not synonymous with a statement that the violations occurred daily. Finding that it lacked jurisdiction over the CAA claims, the court declined to exercise jurisdiction over the individual's remaining state law claims. Freeman v. Cincinnati Gas & Electric Co., No. C-1-04-781, 35 ELR 20149 (S.D. Ohio July 18, 2005) (Dlott, J.) (4 pp.).


A district court held that the U.S. Forest Service's failure to provide for effective pre-decisional public involvement in the preparation of the EAs for four logging projects in the Lassan and Shasta-Trinity National Forests was contrary to law under the APA. Although the CEQ regulations do not require the circulation of a draft EA, they do require that the public be given as much environmental information as is practicable, prior to completion of the EA, so that the public has a sufficient basis to address those subject areas that the agency must consider in preparing the EA. In each of the projects under review here, the Forest Service failed to give the public an adequate pre-decisional opportunity for informed comment. The scoping notices for each project contained no analysis of the environmental impacts of the projects and failed to give the public adequate information to effectively participate in the decisionmaking process. And because a new environmental review process would be pointless were the court to permit the projects to go forward without informed public comment, the court enjoined the projects until the Forest Service complies with NEPA. Sierra Nevada Forest Protection Campaign v. Weingardt, Nos. CIV-S-04-2727, -05-0093, 35 ELR 20151 (E.D. Cal. June 30, 2005) (Levi, J.) (20 pp.).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


Note: Citations below are to the Federal Register (FR).


  • EPA authorized grantee organizations under the Senior Environmental Employment Program access to information that has been submitted to EPA under the environmental statutes administered by the Agency. 70 FR 41704 (7/20/05).


  • EPA tentatively scheduled a public hearing concerning the California Air Resources Board's request for a waiver of preemption under CAA §209(b). 70 FR 41220 (7/18/05).

  • SIP Approvals: Delaware (ambient air quality standards, ozone and particulate matter), 70 FR 41148 (7/18/05); New Mexico (carbon monoxide), 70 FR 41967 (7/21/05).

  • SIP Proposals: Delaware (ambient air quality standards, ozone and particulate matter; approved as a final rule), 70 FR 41167 (7/18/05); New York (permitting program), 70 FR 42023; New Jersey (ozone, volatile organic compounds), 70 FR 42021 (7/21/05).


  • USDA and the Rural Business-Cooperative Service established a program for making grants, loan guarantees, and direct loans to farmers and ranchers or rural small businesses to purchase renewable energy systems and make energy efficiency improvements. 70 FR 41338 (7/18/05).


  • EPA approved revisions to the Idaho hazardous waste management program under RCRA. 70 FR 42276 (7/22/05).

  • EPA proposed to grant a petition to exclude wastewater treatment plant sludge generated by the General Motors Corporation-Arlington Truck Assembly Plant in Arlington, Texas, from the lists of hazardous wastes. 70 FR 41368 (7/19/05).


  • EPA announced the availability of the human health risk assessment and related documents for the pesticide 1,2-Benzisothiazolin-3-one. 70 FR 41709 (7/20/05).

  • EPA announced the availability of the human health risk assessment and related documents for the pesticide azadioxabicyclooctane. 70 FR 41707 (7/20/05).

  • EPA announced the availability of the human health risk assessment and related documents for the pesticide para-tertiary amylphenol. 70 FR 41711 (7/20/05).


  • The Coast Guard suspended for three years the regulations for oil tank level or pressure monitoring devices used to detect leaks from oil cargo tanks. 70 FR 41617 (7/20/05).

  • EPA proposed final designation for an ocean dredged material disposal site located offshore of Newport Beach, California. 70 FR 41174 (7/18/05).


  • FWS issued a permit for the incidental take of the threatened Preble's meadow jumping mouse along Jackson Creek in El Paso County, Colorado. 70 FR 42361 (7/22/05).

  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Sweetwater Marsh and South San Diego Bay Units of the San Diego Bay National Wildlife Refuge (NWR) in San Diego, California. 70 FR 42361 (7/22/05).

  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Lost Trail NWR in Marion, Montana. 70 FR 41787 (7/20/05).

  • FWS announced a five-year review of Higgins eye, Hungerford's crawling water beetle, Missouri bladderpod, and Running buffalo clover pursuant to ESA §4(c)(2)(A) . 70 FR 41424 (7/19/05).

  • NMFS solicited public comment on proposed estimates of fur seal subsistence needs for 2005 through 2007 in the Pribilof Islands, Alaska. 70 FR 41189 (7/18/05).

  • FWS prepared a comprehensive conservation plan and EA for the Sacramento, Delevan, Colusa, and Sutter NWRs, which are part of the Sacramento NWR Complex. 70 FR 41233 (7/18/05).

  • FWS announced that the draft comprehensive conservation plan and EA is available for the Sherburne NWR, located in Minnesota. 70 FR 41234 (7/18/05).


  • United States v. Advanced Coating Techniques, Inc., No. CV-01-5414 (E.D.N.Y. June 24, 2005). A settling CAA defendant must pay $200,000 in civil penalties to resolve claimed violations related to chromium emissions. 70 FR 41788 (7/20/05).

  • United States v. Gerald Pelletier, Inc., No. 1:05-cv-92 (D. Me. July 1, 2005). A settling CERCLA defendant must pay $17,638 to the United States and $3,632 to the state of Maine in reimbursement of past response costs relating to the Hows Corner Superfund site in Plymouth, Maine. 70 FR 41789 (7/20/05).

  • United States v. City of Gloucester, No. 89-2206-WGY (D. Mass. July 8, 2005). A settling CWA defendant must pay a $60,000 civil penalty, must complete facility planning and design, and must construct several projects to eliminate or reduce discharges of combined sewer overflows to resolve violations of a previous consent decree. 70 FR 41789 (7/20/05).

  • United States v. Licking County, No. C2-05-661 (S.D. Ohio July 5, 2005). A settling CWA defendant must comply with its discharge permit, must implement a compliance assurance plan, and must pay $75,000 in civil penalties to be split equally between the United States and Ohio to resolve claims relating to its publicly owned wastewater treatment plant. 70 FR 41790 (7/20/05).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.



  • S. 1414 (Hatch, R-Utah) (national heritage areas), would provide for the conduct of a study of the suitability and feasibility of establishing the Trail of the Ancients National Heritage Area in the Four Corners region of the states of Arizona, Colorado, New Mexico, and Utah. 151 Cong. Rec. S8384 (daily ed. July 15, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1415 (Inhofe, R-Okla.) (captive wildlife), would amend the Lacey Act Amendments of 1981 to protect captive wildlife and make technical corrections. 151 Cong. Rec. S1415 (daily ed. July 18, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1422 (Hagel, R-Neb.) (mercury exposure), would amend the Federal Food, Drug, and Cosmetic Act to reduce human exposure to mercury through vaccines. 151 Cong. Rec. S8488 (daily ed. July 19, 2005). The bill was referred to the Committee on Health, Education, Labor, and Pensions.

  • S. 1426 (Obama, D-Ill.) (SDWA), would amend the SDWA to reauthorize and extend provisions relating to contaminant prevention detection and response. 151 Cong. Rec. S8488 (daily ed. July, 19, 2005). The bill was referred to the Committee on Environment and Public Works.

  • H.R. 3365 (Fortuño, R-P.R.) (Caribbean National Forest), would make funds generated from the Caribbean National Forest in Puerto Rico available to the Secretary of Agriculture for land acquisition intended to protect the integrity of the buffer zone surrounding the Forest. 151 Cong. Rec. H3365 (daily ed. July 20, 2005). The bill was referred to the Committee on Resources.

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


New State Development Highlights:

  • The Florida Department of Environmental Protection is proposing amendments to Chapters 62-204, 62-210, 62-212, and 62-296, F.A.C., to incorporate changes relating to EPA's new source review revisions to air preconstruction review and permitting, and the recent court decision affecting those revisions.

  • The Maine Public Utilities Commission is proposing a solar energy rebate program.

  • The Washington Department of Natural Resources is proposing changes to the concentrated animal feeding operations regulations to protect the quality of water resources.

The following states contain new information in this issue:

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfm to view the complete section.

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.



  • The majority of members of the European Commission favor proceeding with plans to improve air quality by cutting carbon dioxide emissions, despite intense debate among commissioners over the cost of environmental policies. Commission president Jose Manuel Barroso led the opposition to the policy, which fears that the costs will curtail the European Union's plans to increase economic growth. Environment commissioner Stavros Dimas intends to follow the emission cuts with proposals to include the aviation industry in the emissions trading scheme. See http://politics.guardian.co.uk/eu/story/0,9061,1533026,00.html


  • Approximately 15,000 people amassed in the village of Xinchang, China, alleging that a pharmaceutical plant is polluting the village's water. The residents have vowed to continue their battle with police until they have forced the plant to relocate. Frustration in China has built in recent years with a political system that is seen as corrupt and unresponsive to legitimate grievances. Last year the government reported the occurrence of 74,000 mass protests, up from 10,000 a decade ago. See http://www.nytimes.com/2005/07/19/international/asia/19china.html


  • The populations of three species of wading birds in southeastern England wetlands have dropped by 80% and will be particularly impacted by low rainfall this year, according to the Royal Society for the Protection of Birds (RSPB). Their numbers have declined over the last 25 years due to climate change and low rainfall. The RSPB is urging the construction plans for new homes in the area to incorporate water efficiency standards. See http://news.bbc.co.uk/1/hi/sci/tech/4696807.stm

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

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Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Linda L. Johnson, Managing Editor
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