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Weekly Update Volume 39, Issue 6

02/23/2009

LITIGATION

FEDERAL POWER ACT, NEPA:



The Fourth Circuit held that the Federal Power Act (FPA) does not grant FERC permitting jurisdiction when a state denies approval of a permit application within one year. Two state utilities commissions and two community interest organizations challenged several rulemaking decisions made by FERC in connection with its implementation of the new §216 of the Federal Power Act (FPA) and NEPA. Section 216 of the FPA, which was added in 2005, gives FERC jurisdiction in certain circumstances to issue permits for the construction or modification of electric transmission facilities in areas designated as national interest corridors by the Secretary of Energy. The court reversed FERC's expansive interpretation of the language in FPA §216(b)(1)(C)(i) that grants FERC permitting jurisdiction when a state commission has withheld approval of a permit application for more than one year. FERC's interpretation is contrary to the plain meaning of the statute. The statute does not give FERC permitting authority when a state has affirmatively denied a permit application within the one-year deadline. The court also held that FERC violated CEQ regulations when it failed to consult with the CEQ before amending its NEPA-implementing regulations to cover §216 permit applications. FERC's amendments to the NEPA regulations were therefore vacated and remanded. However, the court upheld FERC's determination that it was not required to prepare an EA or EIS in connection with its issuance of procedural regulations dealing with the content of permit applications under §216 of the FPA. Piedmont Environmental Council v. Federal Energy Regulatory Commission, Nos. 07-1651 et al., 39 ELR 20036 (4th Cir. Feb. 18, 2009).


TAKINGS, WATER DIVERSIONS:



The Federal Circuit denied the U.S. government's petition to rehear a case requiring the federal government to pay a water district for diverting water to protect endangered steelhead trout. A concurring judge explained that this case, as it was presented on appeal, is one in which a physical, not a regulatory, taking analysis ought to apply. The U.S. Supreme Court has repeatedly found water diversions to be physical takings. And under the facts of this case, the circuit court was compelled to reach the same conclusion. Casitas Municipal Water District v. United States, No. 2007-5153, 39 ELR 20037 (Fed. Cir. Feb. 17, 2009).


CWA, RES JUDICATA:



The Seventh Circuit upheld the dismissal of environmental groups' CWA citizen suit action against a local sewer district for certain sewer overflow violations. In 2002, after the groups filed their suit, the state filed suit as well. Shortly thereafter, the state and the district entered into a stipulation order requiring the district to spend more than $900 million on various projects. The district court then dismissed the groups' suit on res judicata grounds, concluding that the stipulation was capable of achieving compliance with the CWA and, therefore, was a diligent prosecution for privity purposes. The groups appealed, arguing that the district court failed to consider and give due weight to the district's post-stipulation violations of the CWA, a post-stipulation determination that the stipulation would not bring the district into compliance with the Act, and a post-stipulation enforcement action against the district. The groups also argued that the district court erred by refusing to admit into evidence a letter from EPA that the stipulation would not ensure compliance with the CWA. Although these arguments are entitled to some weight, they are not a sufficient basis for reversing the district court. Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage District, No. 08-1103, 39 ELR 20038 (7th Cir. Feb. 13, 2009).


NATIONAL FLOOD INSURANCE PROGRAM, HURRICANE KATRINA:



The Fifth Circuit reversed a lower court decision ruling that homeowners were entitled to the full amount of their insurance policy for severe flood damage sustained during Hurricane Katrina. The homeowners filed suit after they were unsatisfied with the original amount they were paid under their insurance policy. The lower court entered judgment in favor of the homeowners for the full policy amount after applying the "total loss doctrine," a legal theory occasionally used to determine coverage under certain private insurance policies. But that theory is inapplicable to federal regulations governing the National Flood Insurance Program. Based on the federal regulations, the homeowners are not entitled to more than what they have already received. Monistere v. State Farm Fire & Casualty Insurance Co., No. 07-31149, 39 ELR 20039 (5th Cir. Feb. 17, 2009).


EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS FEES:



The D.C. Circuit denied an individual's request for attorneys' fees and expenses under the Equal Access to Justice Act (EAJA) despite having won her lawsuit against the DOI concerning the mute swan. In that case, the court held that the DOI's exclusion of the mute swan from the protected bird list was arbitrary and capricious under the APA. The EAJA authorizes an award of fees to a party prevailing against the government unless the government establishes that its position was "substantially justified or . . . special circumstances make an award unjust." Accordingly, its position at the merits stage was substantially justified and the individual is not entitled to fees or expenses under the EAJA. Although the DOI's position did not prevail in the underlying case, the DOI's interpretation and legal arguments had a reasonable basis in fact and in the text and purpose of the controlling statute and treaties. Hill v. Gould, 07-5026, 39 ELR 20040 (D.C. Cir. Feb. 13, 2009).


 

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


THE FEDERAL AGENCIES

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


AIR:



  • EPA extended until August 13, 2009, the deadline to determine whether electric-generating units in nine upwind states are emitting air pollutants in violation of the CAA. 74 FR 7820 (2/20/09).

WILDLIFE:



  • NOAA-Fisheries issued a one-year letter of authorization to the U.S Navy for the incidental take of marine mammals during Atlantic Fleet Active Sonar Training activities conducted off the Atlantic Coast and in the Gulf of Mexico. 74 FR 7590 (2/18/09).

  • NOAA-Fisheries issued a one-year letter of authorization to the U.S Navy for the incidental take of marine mammals during training, maintenance, and research, development, testing, and evaluation activities conducted within the Southern California Range Complex. 74 FR 7590 (2/18/09).

DOJ NOTICES OF SETTLEMENT:


 



  • United States v. Frontier Refining Inc., No. 09-CV-1032-WEB-KMH (D. Kan. Feb. 10, 2009). Settling CAA, CERCLA, and EPCRA defendants must pay civil penalties, must perform injunctive relief to reduce emissions of nitrogen oxide (NOx), sulfur dioxide (SO2), particulate matter (PM), and carbon monoxide (CO), and must implement several supplemental environmental projects at petroleum refineries in Cheyenne, Wyoming, and El Dorado, Kansas; the El Dorado refinery must pay an additional civil penalty, must perform a supplemental environmental project, and must implement injunctive relief. 74 FR 7475 (2/17/09).

  • United States v. Hermes Consolidated, Inc., No. 09-CV-00028-ABJ (D. Wyo. Feb. 10, 2009). A settling CAA, CERCLA, and EPCRA defendant must pay civil penalties, must perform injunctive relief to reduce emissions of NOx, SO2, volatile organic compounds, PM, and CO at its petroleum refinery in Newcastle, Wyoming, and must upgrade its leak detection and repair program. 74 FR 7476 (2/17/09).

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


THE CONGRESS

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


Bills Introduced



  • S. 447 (Levin, D-Mich.) (Commodity Exchange Act) would amend the Commodity Exchange Act to prevent excessive price speculation with respect to energy and agricultural commodities. 155 Cong. Rec. S2322 (daily ed. Feb. 13, 2009). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • H.R. 1063 (Hensarling, R-Tex.) (alternative fuels) would repeal a requirement with respect to the procurement and acquisition of alternative fuels. 155 Cong. Rec. H1604 (daily ed. Feb. 13, 2009). The bill was referred to the Committee on Oversight and Government Reform.

  • H.R. 1065  (Kirkpatrick, D-Mich.) (water rights) would resolve water rights claims of the White Mountain Apache Tribe in the state of Arizona. 155 Cong. Rec. H1604 (daily ed. Feb. 13, 2009). The bill was referred to the Committee on Natural Resources.

Copyright© 2009, 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 2009, visit our list of Cumulative State Developments. For state material reported prior to 2009, visit the ELR Archives.


The states below have updates this week:













 California  Louisiana  New Jersey
 Florida  Missouri  New York
 Illinois  Montana  North Carolina

CALIFORNIA


Air:



  • The South Coast Air Quality Management District will hold a public workshop on Proposed Amended Rules (PARs) 1171, Solvent Cleaning Operations; and 1122, Solvent Degreasers. PARs 1171 and 1122 affect all persons that use volatile organic compound (VOC)-containing materials during cleanup of ultraviolet/electron beam (UV/EB) inks in lithographic presses, on-press screens in screen printing equipment, and stereolithography equipment and models. The hearing will be February 27, 2009. See http://www.aqmd.gov/pub_edu/notice_1122-1171_Feb_27_09.html

FLORIDA


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to 62-210.200, Definitions; 62-212.300, General Preconstruction Review Requirements; and 62-212.400, Prevention of Significant Deterioration. The proposed rule amendments address Florida's general and preconstruction stationary source requirements. The hearing will be February 27, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3506/3506doc.pdf (pp. 680-681)

Hazardous & Solid Waste:



  • The Department of Environmental Protection proposed amendments to 62-731.020, Definitions; 62-731.030, Small Quantity Generator Assessment, Notification and Verification Program; 62-731.040, County Information Sent to the Department; 62-731.050, Grants, General Specifications; 62-731.060, Small Quantity Generator Assessment, Notification and Verification Program Grant Eligibility and Standards; 62-731.062, Expanded Local Hazardous Waste Management Program Grant Eligibility and Standards; and 62-731.064, Award of Grant Funds. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3506/3506doc.pdf (p. 681)

Land Use:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to 62B-26.001, Description of the Walton County Coastal Construction Control Line. The amendments would more accurately define that portion of the beach dune system which is subject to severe fluctuations based on the 100-year storm surge and storm waves, and thus define the area within which special siting and design considerations are required to ensure protection of the beach dune system, proposed or existing structures, adjacent properties, and the preservation of public beach access. The hearing will be March 3, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3506/3506doc.pdf (pp. 681-82)

Water:



  • The Southwest Florida Water Management District will hold a public hearing on proposed amendments to 40D-1.607, Permit Processing Fee; 40D-2.091, Publications Incorporated by Reference; 40D-2.301, Conditions for Issuance of Permits; 40D-2.321, Duration of Permits. The rulemaking is intended to set forth the permit fee and criteria for 20-year water use permits. The hearing will be February 27, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3506/3506doc.pdf (p. 673-75)

  • The Southwest Florida Water Management District proposed amendments to 40D-2.041, Permits Required. The proposed amendments will clarify that for permits authorizing surface water withdrawals, only those for which the primary source is a surface water and the combined annual average daily water demand is at least 50,000 gallons per day will be categorized as General Permits. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3506/3506doc.pdf (pp. 673-74)

  • The South Florida Water Management District will hold a public hearing on proposed amendments to 40E-1.607, Permit Application Processing Fees. The proposed revisions reflect upward adjustments to fees based on the Consumer Price Index, reflect new categories of authorized fees, and adjust fees to more accurately reflect the costs of "processing, monitoring, and inspecting for compliance." The hearing will be March 4, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3506/3506doc.pdf (pp. 675-78)

ILLINOIS


Land Use:



  • The Department of Natural Resources seeks public comment on proposed amendments to 17 Ill. Adm. Code 1536, Forestry Development Cost-Share Program. The amendments are being proposed to provide a more diverse cost-share program to landowners in management of their forest lands by providing a revised/increased cost basis for implementation of forest management practices outlined in approved forest management plans. Comments are due March 29, 2009. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue7.pdf (pp. 3064-095)

  • The Department of Natural Resources seeks public comment on proposed amendments to 17 Ill. Adm. Code 1537, Forest Management Plan. The proposed amendments are intended to provide a more comprehensive direction for management of the lands in the Forest Development Act Program and a clearer interpretation of the program's intent. Comments are due March 29, 2009. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue7.pdf (pp. 3096-3126)

LOUISIANA


Hazardous & Solid Waste:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to LAC 33: VII.508, 709, 717, and 719, Solid Waste Buffer Zone. The regulations covering buffer zone requirements for solid waste non-processing transfer stations and solid waste processing and disposal facilities are proposed for amendment to clarify who must provide permission for a waiver of buffer zone requirements. The hearing will be March 31, 2009. See http://www.doa.la.gov/osr/reg/0902/0902.pdf (pp. 309-310)

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to LAC 33: IX.7301, 7303, 7305, 7307, 7309, 7313, and 7395, Standards for the Use or Disposal of Sewage Sludge and Biosolids. This rule implements Act 56 of the 2008 Regular Session of the Louisiana Legislature, which transferred the registration program for haulers of domestic septage from the Department of Health and Hospitals to the Department of Environmental Quality. The transportation requirements contain standards for sewage sludge transportation vehicles. The hearing will be March 31, 2009. See http://www.doa.la.gov/osr/reg/0902/0902.pdf (pp. 310-333)

Water:



  • The Louisiana Office of Conservation amended LAC 43:VI. Chapters 1-7, Ground Water Management. The amendments are intended to revise the regulations to correspond with recent amendments to the Ground Water Resources Management Law and to provide greater clarity to the regulated community and the public concerning the Office of Conservation's administration of that law. See http://www.doa.la.gov/osr/reg/0902/0902.pdf (pp. 249-252)

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to LAC 33:IX.2501, 2505, 2515, 2703, 2903, 2905, and 4903, Water Quality Regulations, Concentrated Animal Feeding Operations (CAFO). The changes require submittal of a nutrient management plan (NMP) for manure as part of a CAFO's permit application; require review of the NMP by the permitting authority and incorporation of its terms as enforceable terms of the permit; and require that the proposed NMP and permit be available for public review and comment before becoming final. The rule specifies that an owner or operator of a CAFO that actually discharges, or plans to discharge, to streams, lakes, or other waters must apply for a permit. CAFO operators who do not discharge or proposed to discharge may obtain certification as zero dischargers. The hearing will be March 31, 2009. See http://www.doa.la.gov/osr/reg/0902/0902.pdf (pp. 302-08)

MISSOURI


Air:



MONTANA


Hazardous & Solid Waste:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to ARM Title 17 Chapter 50, pertaining to the licensing and operation of solid waste landfill facilities. The hearing will be April 3, 2009. See http://deq.mt.gov/dir/legal/Notices/17-284pro.pdf

NEW JERSEY


Toxic Substances:



  • The Department of Environmental Protection readopted N.J.A.C. 7:1J, Processing of Damage Claims Pursuant to the Spill Compensation and Control Act. These rules establish the procedures concerning the processing of all claims under the Act for damages resulting from the discharge of a hazardous substance or a threatened hazardous substance. See http://www.nj.gov/dep/rules/adoptions/adopt_090302a.pdf

NEW YORK


Air:



  • The Department of Environmental Conservation adopted amendments to Title 6 NYCRR Parts 200, 201, and 231, Requirements for Proposed New Major Facilities and Major Modifications to Existing Facilities. The Part 200 amendments will add a definition for "routine maintenance, repair, or Replacement" (RMRR), codifying current Department practice of reviewing RMRR activities on a case-by-case basis, taking into account the nature and extent of the activity and its frequency and cost. The proposed amendments to Part 201 revise the definition for "major stationary source or major source." The definition will now encompass the term "major facility" and incorporate major facility and significant project thresholds for facilities emitting particulate matter or particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers. The existing nonattainment new source review program at Part 231 will be re-titled "New Source Review for New and Modified Facilities." See http://www.dos.state.ny.us/info/register/2009/feb18/pdfs/rules.pdf (pp. 6-8)

NORTH CAROLINA


Land Use:



  • The Coastal Resources Commission will hold a public hearing on proposed amendments to 15A NCAC 07B .0901; 07H .0309, pertaining to coastal management. The rulemaking would clarify the administrative rule governing Coastal Area Management Act Land Use Plan Amendments and make changes to the administrative rules governing development exceptions in the ocean hazard areas and wetlands under its jurisdiction. The hearing will be April 29, 2009. See http://www.ncoah.com/rules/register/Volume23Issue16February162009.pdf (pp. 1570-74)

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


INTERNATIONAL

ENVIRONMENT MINISTERS TACKLE MERCURY POLLTION



More than 140 nations agreed on Friday to negotiate a legally binding global treaty to phase out the use of deadly mercury, a toxic heavy metal that threatens the health of hundreds of millions of people worldwide. The deal came at a major U.N. meeting of environment ministers in Kenya after President Barack Obama's new administration said on Monday the United States had reversed its stance on the issue and was now in favor of a legal ban. "This is truly good news and I hope that citizens across the world will embrace this decision," U.N. Environment Program head Achim Steiner told a news conference. "Today the world's environment ministers, armed with the full facts and full choices, decided the time for talking was over but the time for action on this pollution is now." For the full story, see http://www.reuters.com/article/environmentNews/idUSTRE51J49E20090220


GENETICALLY MODIFIFED CROPS VERSUS FARMERS RIGHTS



Pressure is mounting from some scientists for Europe to end its resistance to genetically modified (GM) crops, but fears remain about the impact of such technology on the rights of farmers. Many American farmers like the ease of operating a GM system, which involves regular spraying of chemicals that kill weeds but don't hurt their crops. The problem is that GM pollen can blow across fields. Anti-GM campaigners say the fear of being prosecuted for growing GM accidentally leads many farmers to give up traditional methods and take the GM route. Other farmers are accused of saving seeds from one year to the next to avoid paying the seed companies. David Runyan, who has 400 hectares in eastern Indiana where he grows corn, wheat, and soybeans, says he feels intimidated by the tactics of Monsanto, the largest GM seed company. For the full story, see http://news.bbc.co.uk/2/hi/business/7892328.stm


CARBON OFFSET COMPANIES DEPEND ON HEDGE CONTRACTS



Companies that cut greenhouse gas emissions in developing countries to sell carbon offsets in rich nations are hoping hedge contracts and staff cuts will protect them against record low carbon prices. Carbon project developers sell carbon offsets in the developed world, especially Europe and Japan, to companies and countries struggling to meet official carbon caps or to people voluntarily seeking to cut their contribution to climate change. They had appeared to be sitting on big profits after several years of buying or generating offsets in China, India ,and Brazil at less than half the sale price in Europe, the biggest demand market. Now European carbon prices are near record lows, similar to purchase prices in China, the biggest supply market. That means developers are depending on cash reserves and forward sales, made last year, to sustain them until carbon prices recover. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE51J2W120090220


Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


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