No New Environmental Appellate Decisions Today

Groups Join Notice of Intent to Sue NMFS over Blue Whales

Yesterday, a group of environmental organizations, including the Center for Biological Diversity, Friends of the Earth, and Pacific Environment joined an earlier Notice of Intent to sue the National Marine Fisheries Service (NMFS) for the agency’s failure to implement the 1998 Blue Whale Recovery Plan issued under the Endangered Species Act (ESA). A press release can be read here.

Environmental Defense filed the original Notice of Intent to Sue in August. Yesterday's development gives CBD et al the right to sue NMFS for violation of the ESA after 60 more days have elapsed. The groups say they seek to prompt action, not to get embroiled in litigation. NMFS is part of the National Oceanic and Atmospheric Administration.

Environmental Groups Join DL and NJ Opposing Army Corps Dredging

On October 30th, as described in this earlier post, Delaware filed a suit to stop the U.S. Army Corps of Engineers from dredging the Delaware River for a new shipping channel. New Jersey joined the suit a few days later.

Yesterday, a coalition of environmental groups intervened in the suit, adding their own claims against the project, including alleged violations the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Act, the Fish and Wildlife Coordination Act, and Delaware State law. The groups include Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, and the Delaware Nature Society. You can read the groups' press release here, and an article from the Press of Atlantic City here. A hearing on a preliminary injunction is scheduled for December 8th.

No New Environmental Appellate Decisions Today

Tenth Circuit Hears Arguments Over U.S. Magnesium RCRA Exemption

Yesterday, oral argument was heard in the U.S. Court of Appeals for the Tenth Circuit in Denver over whether U.S. Magnesium in Utah should be exempt from the requirements of the Resource Conservation and Recovery Act (RCRA). The presiding panel consisted of Judge Tim Tymkovich, Judge David Ebel, and Judge Neil Gorsuch. (For those inclined to read the tea leaves, this panel is a good draw for U.S. Magnesium: Judges Tymkovich and Gorsuch are both conservatives appointed by George W. Bush, and Judge Gorsuch is also the son of Reagan-era EPA Administrator Anne Gorsuch. Judge Ebel is a Reagan appointee, and a fierce and rigorous voice on the bench.) The Salt Lake Tribune has an excellent short account of the arguments here.

As the article explains, "Utah regulators have been at odds with US Magnesium since at least 1992. The company extracts brine from the Great Salt Lake, and in its magnesium-production process releases a host of chemicals into the air, unlined ditches and a retention pond at the plant . . .In 2001 the EPA stepped in, filing a $1 billion lawsuit against the company after state authorities turned the case over to the federal government." The district court sided with the plant, and yesterday's arguments were part of the U.S. appeal of that decision.

U.S. Magnesium is arguing that Congress granted it an exemption from the Act in 1989. The U.S. is arguing that the company has far exceeded the scope of any exemption, and has taken the position that "Anything generated [at the plant] can be poured down the drain."

Making the battle a little more epic and entertaining (ok, well, maybe entertaining only for environmental law junkies), EPA declared the plant's location a Superfund site on November 4, due to high levels of arsenic, chromium, mercury, copper, zinc, acidic waste water, chlorinated organics, polychlorinated biphenyls (PCBs), dioxins/furans, hexachlorobenzene (HCB), and polycyclic aromatic hydrocarbons (PAHs) in the water and soil surrounding the plant. (You can view EPA Region 8's announcement of that listing here, and the Salt Lake Tribune's article on the listing here.) U.S. Magnesium apparently plans to contest that decision, as well.

Interior Issues ANPR to Reverse Bush Stream Buffer Zone Rule

And in the meantime is rolling out a broader oversight program increasing scrutiny of MTR

The Department of Interior’s Office of Surface Mining Reclamation and Enforcement (OSM) announced yesterday that it is publishing an advance notice of proposed rulemaking (ANPR) on how to protect streams from the adverse impacts of surface mining for coal, including mountaintop removal mining (MTR). This rule will revise current regulations including the stream buffer zone rule that the Bush Administration put out at the last minute in December 2008. (You can read a prior post on the stream buffer zone rule here.) Although the ANPR has not yet been sent to the Federal Register, when it is (which OSM says will happen "shortly"), the ID number will be OSM-2009-0009.

This move fulfills a promise that Interior made to the U.S. District Court for the District of Columbia two weeks ago. (Again, see prior post.) Although folks in coal country are surely rejoicing that this is moving forward, when Interior made that promise, environmental groups decried the timetable as too slow.

Perhaps it will help that, as yesterday's press release explains, "While the new rule is being developed, Interior is taking immediate actions to strengthen protections for streams and communities in coal country, provide regulatory certainty for industry, and bolster OSM’s oversight and enforcement activities." Specifically, OSM has established a new practice under which "the review and approval of [Surface Mining Control and Reclamation Act] SMCRA permits must be coordinated with reviews and authorizations required under the Clean Water Act. OSM will work with the Corps of Engineers and the Environmental Protection Agency to coordinate these permitting processes and ensure effective and coordinated compliance with provisions of the Clean Water Act." An overview of these practices and actions can be read here.

You can read the AP's account of this development here, one from Environment News Sevice here, and AFP's, here. For a local take on the action, see the Charleston (WV) Gazette here. And for reaction from the mining community, you can read an article on Mineweb.com entitled "Obama Administration mountaintop mining siege targets state mining regulation."

No New Environmental Appellate Decisions Today

Federal District Court Finds Army Corps Liable for Hurricane Katrina Flooding

As you can read on CNN here and NPR's website, here. The opinion, from the U.S. District Court for the Eastern District of Louisiana, can be read here.

The Corps' liability was in tort, rather than statutory environmental law. But the entire theory of the case, and the causal link between the Corps' work and the damage from Katrina, is based on the premise that the Corps, knew it was destroying the surrounding environment in a manner that would endanger nearby residents in how it built and maintained the Mississippi River Gulf Outlet shipping canal. Judge Duvall explains in great detail how it caused massive erosion, along with salination of surrounding lakes and wetlands that destroyed plant life and limited the ability of those bodies of water to absorb Katrina's fury.

Although only about $750,000 was at stake in this case, if allowed to stand, it will set a major precedent, not just for Katrina victims, but also possibly for those living in the shadow of other major water re-routing projects built and maintained by the Corps. Some folks in Civil Appellate are going to be slammed for the next year or so, as appeal to the Fifth Circuit is inevitable.

No New Environmental Appellate Decisions Today

Report Recommends Remediation of AEP Coal Ash Ponds

Yesterday, the Environmental Protection Agency (EPA) released a report it commissioned on the fly ash and bottom ash ponds at American Electric Power's (AEP's) Philip Sporn Generating Plant in New Haven, West Virginia. The full report can be read here.

The report is part of EPA's investigation into the state of coal ash impoundment facilities around the country, in the wake of the massive coal ash spill at a TVA facility in Kingston, Tennessee last Christmas. Coal ash is currently classified by the EPA under RCRA (the Resource Conservation and Recovery Act, 42 U.S.C. 9601 et seq) as non-hazardous, despite massive heavy metal content, and is governed only by (generally lenient) state regulations as a result. (You can read an earlier post on coal ash, how the current regulatory regime came to be, and the Kingston spill here.),


The report concluded that the ash ponds at the AEP facility had a poor prognosis "for continued safe and reliable operation," and that "[r]emedial action is necessary." It is curious in light of this report that, once it received the report, EPA only asked AEP to conduct safety inspections of the facility. (And perhaps explains why EPA announced that it was asking for inspections on October 29th, but embargoed the report until yesterday.)

EPA is (possibly) limited in its ability to act to prevent imminent release of the coal ash under RCRA (because of its decision to classify coal ash as non-hazardous), but should have plenty of authority under CERCLA and leverage under the Clean Water Act (given the proximity of the Ohio River to the site). Obviously, EPA is proceeding gingerly, since AEP isn't used to being regulated for this sort of thing at all. (A more in-depth discussion of the disconnect between the report's conclusions, and EPA's actions, can be read here on the Charleston Gazette's Coal Tattoo blog.)

[Ed's note: "I've been coal miner all of my life. Layin' down track in the hole. . . . I've got no house and I got no job, just got a worried soul. And a blue tattoo on the side of my head left by the number nine coal. Left by the number nine coal." Coal Tattoo, Billy Ed Wheeler.]

NGO Reaction to "One Agreement, Two Steps" Framework for Copenhagen

No real surprises: Greenpeace hollers, and NRDC and EDF say its the right move, considering. Politico reports on this here. (Earlier post on the framework, decided over the weekend, here.)

Settlement in Gray Wolf Case

Defenders of Wildlife announced Friday that a coalition of environmental groups had reached a settlement with the Fish and Wildlife Service (FWS) in their effort to ensure protection for the endangered mexican gray wolf. These groups, represented by the Western Environmental Law Center, included Defenders of Wildlife, the Center for Biological Diversity, Western Watersheds Project, New Mexico Audubon Council, New Mexico Wilderness Alliance, University of New Mexico Wilderness Alliance, The Wildlands Network, Sierra Club, and Grand Canyon Wildlands Council.

Mexican gray wolf populations began to drop in the early 1900s due to ranching and development in the Southwest, and entirely disappeared from the wild by the 1970s. After being listed under the ESA in 1976, it was bred in captivity and finally reintroduced in 1998. (You can see a FWS chronology of the wolf's ESA recovery program and its milestones here.)

Just a few years later, in 2003, the Bush Administration handed control of managing mexican gray wolf populations in Arizona and New Mexico to the federal and state "Adaptive Management Oversight Committee," which was led by an official from Arizona Game and Fish. The Committee applied a set of "standard operating procedures, which included the rancher-friendly "Standard Operating Procedure 13" that required it to permanently remove a wolf from the wild (by killing or capturing it) if it killed three livestock in one year. According to Defenders' press release, this was done without regard to "an individual wolf’s genetic importance, dependent pups or the critically low numbers of wolves in the wild." According to this AP story on the case, there are only 50 Mexican gray wolves in the wild now, which is about half as many as the Recovery Plan envisioned by this time.

Defenders et al sued to stop SOP 13 in federal district court in Arizona in May 2008. Last week's settlement, which gets rid of SOP 13, settles the suit. FWS will also reassert control over the Committee under the settlement, as you can read in the press release and in the Arizona Daily Star, here. Arizona wildlife officials responded that the environmentalists are exaggerating--that they never controlled the committee, anyway. At the same time, the Arizona officials intimated that they would be working to make sure that the interests of ranchers continued to be represented in future Committee actions.

No New Environmental Appellate Decisions Today

Suit filed against FWS over San Francisco Smelt

The Center for Biological Diversity announced last Friday that it had filed suit in federal court against the Fish & Wildlife Service (FWS) seeking increased protections for two small smelt native to the Bay Area in Northern California. The group's press release can be read here.

The two species of smelt, the delta smelt and the longfin smelt, are at the bottom of a long battle over supplying water for irrigation to farmers in the region, and drinking water to area residents. As in other areas out West, much of this water is supplied through heroic diversions from once free-flowing rivers and streams that have threatened the viability of native fish species. And last week, Governor Schwarzenegger signed an $11bn water bond bill that would fund more engineering feats to get water to thirsty farmers and residents--at the expense of the longfin and delta smelt, according to CBD.

CBD and other environmentalists have been battling to force state and federal officials to take the smelt into consideration in their water use decisions using the Endangered Species Act for some time now. FWS issued a Biological Opinion last December asking that diversions be stopped to protect the delta smelt, already listed as threatened under the Act. But local water districts petitioned to have the protective actions called for by the BiOp enjoined, and the Eastern District of California granted that injunction last May.

Now that the bond bill has been passed, CBD is upping the ante. It wants the longfin smelt in the Bay-Delta area to be granted protection under the ESA as a distinct population segment (DPS)--something that FWS declined to do in this decision from April. It also wants FWS to change the delta smelt's status from threatened to endangered, which would trigger additional protections under the ESA, and possibly change the scope of action California is able to take.

You can read a pretty good article untangling the legal battle and its significance here, and access a FWS timeline of actions in the case here.

Riverkeeper Uses CWA to Challenge Improper CERCLA cleanup

In an interesting coalescence of two different statutes, a company redeveloping a water front Superfund site in Oregon has been sued for violating the Clean Water Act in the process of that redevelopment. According to this article from the Oregon Daily News, Columbia Riverkeepers has sued Chinook Ventures for illegally dumping pollutants it is handling as part of the remediation of a former Reynolds Aluminum manufacturing facility on the Columbia River, using the citizen suit provisions of the Clean Water Act. Chinook is redeveloping the site, which is listed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), to make into a private port facility. There's not much more out there on the case, but it is noteworthy, insofar as one would assume that a company conducting a CERCLA cleanup would have swarms of environmental consultants supervising the work to limit liability and ensure the work is completed to the Act's standards.

World Leaders Downgrade Copenhagen to Dress Rehearsal

As hope faded that the U.S. Senate will have even a solid framework for a climate bill before negotiations are scheduled to start on the next international climate treaty in Copenhagen in three weeks, President Obama and other world leaders huddled in Singapore over the weekend to try and salvage the importance of the summit. According to this Politico article, the Danish Prime Minister flew out to Singapore to join President Obama and other world leaders in a last-minute breakfast huddle about the upcoming climate talks over the weekend. There, they decided to come up with a "one agreement, two steps" framework (obviously influenced in spirit by the sort of numerical nomenclature used in Chinese policy discussions) in which Copenhagen will, in essence, be just the first act of climate negotiations that will reconvene a year from now, as well.

Update: Politico also reports that Senator Reid was meeting with various committee chairmen to figure out how to push things along, here.

The New York Times is also reporting on the development, explaining that "this weekend in Singapore, Mr. Obama was forced to acknowledge that a comprehensive climate deal was beyond reach this year. Instead, he and other world leaders agreed that they would work toward a more modest interim agreement with a promise to renew work toward a binding treaty next year."

Tick tock, Senators, tick tock.