NAAG Projects

Energy & Environment Update

  • February 28, 2010
    Ohio Attorney General Richard Cordray Reaches Settlement with Metal Finisher
    Ohio EPA and the office of Ohio Attorney General Richard Cordray have reached a settlement with Spectrum Metal Finishing, Inc. of Youngstown after the company installed and operated a major source of air contaminants without the proper permits. The consent order – approved by the Mahoning County Court of Common Pleas – requires the company to install additional pollution control equipment and pay a civil penalty of $420,000.

  • February 24, 2010
    U.S. Court of Appeals for the Federal Circuit Upholds Greater Number of Forest Service Suspensions of 13 Contracts-- One Suspension Remanded
    The U.S. Forest Service entered into a series of contracts with plaintiff, Precision Pine & Timber, for harvesting timber in an Arizona forest. The contracts were suspended pursuant to a court order of a federal district court, which required consultation between the Forest Service and U.S. Fish and Wildlife, pursuant to Section 7 of the Endangered Species Act. The plaintiff brought suit, saying that the suspensions were violations of express and/or implied warranties embodied in the contracts.The appellate court held that in every contract suspension except one:"Because Precision Pine had no reasonable expectation that its contracts would be unaffected by the listing of a new species like the Mexican spotted owl, the Forest Service’s actions did not destroy Precision Pine’s reasonable expectations under the contract."

  • February 24, 2010
    Wisconsin Attorney General Van Hollen Settles Lawsuit Over Drinking Water Violations
    The City of New Berlin has agreed to pay $45,000 to settle state claims brought under Wisconsin's drinking water laws.Wisconsin is required to administer a safe drinking water program no less stringent than federal safe drinking water standards. As part of that program, Wisconsin law sets forth contaminant levels and other requirements for public water systems. The maximum contaminant level for radionuclides (radium) was set in 1983, and pursuant to an agreement negotiated with USEPA, community water systems were required to comply with that level by December 2006.In announcing the settlement, Attorney General J.B. Van Hollen recognized the City's commitment to ensuring the provision of safe drinking water. "The citizens of our state must be assured that their drinking water meets state standards, and the City of New Berlin has taken the steps necessary to achieve compliance with those standards."

  • February 24, 2010
    Court Orders Massachusetts Couple to Restore Wetlands and to Pay a $100,000 Penalty
    Attorney General Martha Coakley’s Office obtained a judgment in Suffolk Superior Court ordering a Lexington couple, John and Diane Sellars, to restore wetlands they destroyed and to pay $100,000 in penalties. The judgment also requires the Sellars to escrow $90,000 toward performance of the restoration. This decision comes after a June 24, 2009 ruling that determined the Sellars were liable under the Wetlands Protection Act for the destruction of wetlands at 430 Concord Ave., Lexington, and on adjacent public conservation land, also in Lexington, since at least the early 1990s, as well as for violations of the Solid Waste Management Act. The Attorney General’s Office filed the original complaint in the case on May 25, 2007.“Wetlands are a vital environmental resource and we take seriously the Commonwealth’s responsibility to safeguard them for the public interest,” said Attorney General Coakley. “We are pleased the ruling requires the defendants to repair the harm caused by the destruction of the wetlands on the Sellars’ property. We hope the court’s decision sends a message to the public that those who violate wetlands laws will be held accountable.”

  • February 23, 2010
    U.S. Supreme Court to Review Monsanto Co. v. Geertson Seed Farms: NEPA Case Concerns Genetically Modified Alfalfa
    the following description of the case is reproduced from the Supreme Court Report, Vol.17, Issue 5, February 15, 2010:The Court will address whether the Ninth Circuit erred when, based on a violation of the National Environmental Policy Act (NEPA), it affirmed the issuance of a permanent nationwide injunction against any further planting of a genetically-engineered crop. NEPA requires federal agencies to prepare an environmental impact statement (EIS) for any major federal action significantly affecting the quality of the environment. 42 U.S.C. §4332(2)(C). In certain circumstances, an agency may conduct a shorter environmental assess-ment (EA) in lieu of an EIS. If the agency determines based on the EA that the proposed federal action will not significantly impact the environment, it makes a finding of no significant impact and an EIS is not required. Petitioner Monsanto Company, a manufacturer of chemical products including herbicides and pesticides, developed a genetically modified alfalfa, known as Roundup Ready alfalfa (RRA), to resist glyphosate, the active ingredient in the herbicide Roundup. In 2004, Monsanto petitioned the Animal and Plant Health Inspection Service (APHIS) of the Department of Agriculture for a determination that RRA does not present a plant pest risk and therefore should not be regulated under 7 C.F.R. Part 340. After completing a draft EA and a comment period, APHIS prepared a final EA in which it reached a finding of no significant impact. APHIS unconditionally deregulated RRA, and RRA was commercially planted beginning June 14, 2005. In February 2006, respondents Geertson Seed Farms and others sued the Government, alleging NEPA and other violations.The district court found that the EA was insufficient because it did not adequately consider the potential that RRA will be transmitted to organic and conventional alfalfa, or that RRA will contribute to the development of glyphosate-resistant weeds. The court allowed Monsanto to intervene as defendant for the remedial phase, and after a hearing, preliminarily enjoined all planting of RRA and all sales of RRA seed beginning March 30, 2007. After the parties submitted evidence concerning the scope of permanent injunctive relief, the court found that respondents sufficiently established irreparable harm and that the balance of equities weighs in favor of maintaining the “status quo.” The court therefore enjoined all planting of RRA until the EIS was completed. The court denied Monsanto’s request for a hearing regarding the risk of contamination if APHIS’s proposed conditions (which would have permitted the planting of RRA subject to various restrictions and oversight) were imposed, finding that such an inquiry was the same inquiry APHIS was required to do as part of its EIS. On appeal, the NEPA violation was not contested. Instead, the issues were whether the permanent injunction was overly broad and whether the court should have granted petitioners’ request for a hearing. The Ninth Circuit affirmed the district court’s judgment. 541 F.3d 938.Monsanto maintains that the Ninth Circuit employed a presumption of irreparable harm, contrary to the Court’s holding in Winter v. NRDC, 129 S. Ct. 365 (2008), and that plaintiffs seeking preliminary relief must satisfy all four of the prongs for equitable relief, not just likelihood of success on the merits. The Ninth Circuit’s standard, Monsanto asserts, would entitle plaintiffs who successfully assert a NEPA violation to automatic injunctive relief. Monsanto relatedly asserts that the Ninth Circuit contravened Winter by requiring a possibility, not likelihood, of irreparable injury, in the absence of an injunction. Monsanto finally contends that the Ninth Circuit erred in carving out a “special NEPA-only exception to the general evidentiary hearing requirement.” In its view, “district courts must make factual findings under the traditional four-factor test even for preliminary injunctions.” The government argues that the Ninth Circuit applied the correct standard, even though the district court did not, notes that the appeal will become moot once APHIS completes the EIS, and asserts that no further evidentiary hearing (which the government did not seek before the district court) was necessary or required because “many of the issues related to the propriety of injunctive relief were fully aired before the district court.” Respondents similarly argue that the court of appeals applied the correct standard, including the likelihood-of-irreparable-injury prong, that the injunction will expire when the EIS is completed, that the Ninth Circuit has followed Winter, and that a hearing was not necessary because the parties were already heard and the issues raised by Monsanto would be addressed by APHIS as part of the EIS.The views and opinions of authors expressed in herein do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This publication does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services.Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.

  • February 23, 2010
    U.S. Supreme Court Issues Decision in South Carolina v. North Carolina Original Jurisdiction Case, 138 Orig.
    The following description of this original jurisdiction water case is reproduced from the Supreme Court Report, Vol. 17, Issue 5, February 15, 2010.By a 5-4 vote, the Court held that two non-state entities, Duke Energy Carolinas, LLC (Duke Energy) and the Catawba River Water Supply Project (CRWSP), but not the City of Charlotte, North Carolina, may intervene in support of defen-dant North Carolina in this original action. In its complaint, South Carolina alleged that North Carolina has removed more than its fair and equitable share of water from the Catawba River (River) under North Carolina’s interbasin transfer statute, which authorizes the transfer of large volumes of water between river basins. South Carolina sought equitable apportionment of the River and injunctive and declaratory relief prohibiting North Carolina from authorizing transfers exceeding its equitable share. CRWSP, a bi-state entity jointly owned and regulated by counties in both states, to which it supplies water, moved to intervene. Duke Energy also moved to intervene, asserting interests as operator of 11 dams and reservoirs on the River that control the River’s flow, and as the holder of a license to generate hydroelectric power, which obligates it to maintain certain average daily flows. Charlotte holds a permit authorizing the transfer of 33 million gallons of water per day from the River basin. After a hearing, the Special Master granted the three motions and submitted a First Interim Report, to which South Carolina filed exceptions. In an opinion by Justice Alito, the Court overruled South Carolina’s exceptions with respect to Duke Energy and CRWSP, but sustained the exception with respect to Charlotte.The Special Master formulated a rule for intervention based upon her review of the Court’s case law. Although the Court’s original jurisdiction presumptively is reserved for disputes between sovereign states over sovereign matters, she found that non-state entities may become parties “in appropriate and compelling circumstances,” such as where the non-state entity (1) is the instrumentality authorized to carry out the wrongful conduct or injury complained of, (2) has an independent property interest implicated by, or that is a substantial factor in, the dispute, (3) otherwise has a “direct stake” in the outcome of the case, or (4) would “advance the ‘full exposition’ of the issues.” The Court declined to adopt that proposed rule, and instead abided by the standard it articulated in New Jersey v. New York, 345 U.S. 369 (1953): “[a]n intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state.” The Court then applied that standard to the three entities that tried to intervene.In doing so, the Court reiterated that, as stated in New Jersey v. New York, “when a State is ‘a party to a suit involving a matter of sovereign interest,’ it is parens patriae and ‘must be deemed to represent all [of] its citizens’” (citations omitted). Respect for state sovereignty and the need for prudent judicial administration of original actions require a high standard for intervention in original actions by non-state entities, lest original actions “assume the ‘dimensions of ordinary class actions’” and divert the Court’s attention from its “‘primary responsibility as an appellate tribunal.’” A “high” standard may nevertheless be met, however, as the Court found to be the case for CRSWP and Duke Energy. The Court found that CRSWP is a bi-state entity with a compelling interest in protecting its use of the River’s water and its operations, and whose interest cannot be represented by either state. As for Duke Energy, the Court found that it has a compelling interest because it operates dams and reservoirs that generate electricity and control the River’s flow; any equitable apportionment would therefore need to consider the amount of water that Duke Energy needs to sustain its operations. The Court also found that Duke Energy has a compelling interest in protecting the terms of its existing license and pending renewal application, which neither state can adequately represent. In contrast, the Court found that Charlotte’s only interest is as a user of North Carolina’s share of the River’s water, an interest that “falls squarely within the category of interests with respect to which a State must be deemed to represent all of its citizens.”Chief Justice Roberts filed an opinion concurring in the judgment in part and dissenting in part, which Justices Thomas, Ginsburg, and Sotomayor joined. The dissent argued that, although the Court correctly rejected the Special Master’s test for intervention, it misapplied the established test in granting intervention to non-state entities for the first time in an equitable apportionment action. The dissent asserted that “[a]n interest in water is an interest shared with other citizens, and is properly pressed or defended by the State.” Private entities claiming an interest in a particular share of the state’s water ― such as CRWSP and Duke Energy ― are engaging in an “intramural dispute” that is for the state to decide itself. To find that such entities have a compelling interest warranting intervention, when they could protect their interests as amicus curiae, would upset the guiding principle set forth in New Jersey v. New York: that a “state, when a party to a suit involving a matter of sovereign interest, ‘must be deemed to represent all its citizens,’” and may not be ‘judicially impeached on matters of policy by its own subjects.’” The dissent portended that the decision may fundamentally alter the nature of the Court’s original jurisdiction, prolong the resolution of equitable apportionment actions, and make settling cases more difficult.The views and opinions of authors expressed herein do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This publication does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services.Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.

  • February 18, 2010
    Texas Challenges Federal Government Over EPA Greenhouse Gas Findings
    The State of Texas today challenged the Environmental Protection Agency’s (EPA) endangerment finding for greenhouse gases.“With billions of dollars at stake, EPA outsourced the scientific basis for its greenhouse gas regulation to a scandal-plagued international organization that cannot be considered objective or trustworthy,” said Attorney General Abbott. “Prominent climate scientists associated with the Intergovernmental Panel on Climate Change were engaged in an ongoing, orchestrated effort to violate freedom of information laws, exclude scientific research, and manipulate temperature data. In light of the parade of controversies and improper conduct that has been uncovered, we know that the Intergovernmental Panel on Climate Change cannot be relied upon for objective, unbiased science,so EPA should not rely upon it to reach a decision that will hurt small businesses, farmers, ranchers, and the larger Texas economy.”

  • February 12, 2010
    Wisconsin Attorney General Van Hollen Settles Well Installation Case
    The Department of Justice has settled a lawsuit against Herbert E. Zoellick of Wisconsin Dells, d/b/a Hezpaz Enterprises, for violations of state laws regulating pump installing and well drilling operations."We will continue to work with the DNR to make sure that Wisconsin's environmental laws maintaining safe drinking water are followed," said Attorney General J.B. Van Hollen.

  • February 12, 2010
    Wisconsin Attorney General Van Hollen Settles Sewage Case
    Attorney General J.B. Van Hollen today announced that his office has resolved a civil case it has brought against the Village of Clyman, Wisconsin. The Wisconsin Department of Natural Resources (DNR) investigated the matter and then asked the Wisconsin Department of Justice (DOJ) to prosecute the Dodge County Village for various water pollution control violations. The complaint filed in the case alleged that although the Village had known for some years that its wastewater collection and conveyance system, specifically including an 8,000-foot-long buried force main sewer leading to several treatment lagoons, was badly deteriorated and leaking due to age and neglect, the Village had failed to make all of the repairs necessary for proper operation. The force main sewer was allegedly prone to breakages which resulted in the sudden discharge of large quantities of untreated sewage onto the surface of private lands and into adjacent wetlands. The complaint also alleged that the Village's treatment system often exceeded regulatory limits on the strength of pollutants it discharged into an unnamed tributary to Dead Creek, which in turn is a tributary of Lake Sinissippi.

  • February 12, 2010
    Missouri Attorney General Koster Sues Developer for Water Pollution Violations
    Missouri Attorney General Koster announced that his office has sued a developer for failure to obtain appropriate permits, failure to implement best management practices and ongoing pollution at two sites.

  • February 12, 2010
    Tenth Circuit Rules that De-Icing Procedures at Denver Airport Should Not Be Enjoined under RCRA
    In a decision based on the "citizen suit" provision of the Resource Conservation and Recovery Act, 42 USC 6972 (a)(1)(B), the Tenth Circuit held that the airport's de-icing regime did not pose and imminent and substantial endangerment to health. Therefore, the appellate court upheld the trial court's dismissal of the suit.

  • February 03, 2010
    River Runners for Wilderness v. Martin
    Plaintiffs petitioned to overturn a National Park Service decision allowing motorized boats in the Grand Canyon National Park. The District Court granted the motions for summary judgment of defendant Park Service and intervening private raft and kayak companies' associations. The Ninth Circuit upheld the District Court decision, ruling that the plaintiffs had not met the high Administrative Procedure Act standard for setting aside a decision of a federal agency.

  • November 12, 2009
    Wisconsin Van Hollen Announces Settlements in Trempealeau County Environmental Violations Cases
    Attorney General J.B. Van Hollen on November 10 announced that Thomas A. Callaghan has agreed to pay fines and costs totaling $5,000 for his unlawful discharge of pollutants into the waters of the state without a permit namely, metal shavings from Tremplo Manufacturing, Inc., into a storm sewer manhole that led directly to the Buffalo River."For the protection of Wisconsin citizens and our natural environment, the Wisconsin Department of Justice will continue to work with the DNR to ensure that Wisconsin environmental laws are followed," Van Hollen said.

  • November 10, 2009
    John Wieland Homes Agrees to Clean Water Act Settlement -- Action Brought by USEPA and Tennessee
    John Wieland Homes and Neighborhoods Inc., and John Wieland Homes and Neighborhoods of the Carolinas Inc., based in Atlanta, Ga., have agreed to pay a $350,000 civil penalty to resolve alleged violations of the Clean Water Act, the Justice Department and U.S. Environmental Protection Agency (EPA) announced on November 9.The consent decree, lodged in the U.S. District Court for the Middle District of Tennessee, is subject to a 30-day public comment period and approval by the federal court. The companies are required to pay the penalty within 30 days of the court’s approval of the settlement. A copy of the consent decree is available on the Justice Department Web site at http://www.usdoj.gov/enrd/Consent_Decrees.html.

  • November 10, 2009
    Missouri Attorney General Koster Reaches $70,000 Settlement with Hayti Company for Environmental Violations
    Attorney General Chris Koster and the Missouri Department of Natural Resources have reached a settlement with Natural Biodiesel Plant, LLC, for violating the state's Hazardous Waste Management Law and the Clean Water Law.Under the settlement agreement, Natural Biodiesel paid a civil penalty of nearly $38,000, which will go into the Pemiscot County School Fund. The company also paid more than $32,000 to reimburse the state for costs, expenses, and damages. The company will pay a $44,000 suspended penalty if it violates either the Missouri hazardous waste or clean water laws within the next two years.

  • November 10, 2009
    Missouri Attorney General Koster Files Suits against Two Businesses for Releases into the Lake of the Ozarks
    Attorney General Chris Koster is filing lawsuits in Camden County against two Lake Ozark men for discharging contaminants into the Lake of the Ozarks.

  • October 27, 2009
    First Circuit Rejects Rhode Island Challenges to FERC Approval of Liquefied Natural Gas Facility
    The U.S. Court of Appeals for the First Circuit has upheld the U. S. District Court for the District of Rhode Island, defeating challenges the state's Coastal Resource Management Council had offered to an LNG terminal. The Court initially reviewed the regulatory structure surrounding LNG approvals and the facts of the case, and then ruled on three issues.It held:A) that jurisdiction is proper in the appellate court,B) that the state was conclusively presumed to have concurred in the LNG proposal under the "consistency review" required by the Coastal Zone Management Act, andC) that Rhode Island state process (otherwise applicable to coastal dredging projects) was preempted by the Natural Gas Act under a conflict preemption analysis.

  • October 26, 2009
    Fifth Circuit Remands Climate-Change Lawsuit to District Court for Southern Mississippi to Consider Climate Change-Based Claims
    Plaintiffs filed a putative class action against a group of energy, fossil fuel and chemical companies, based on Mississippi common law nuisance, trespass, negligence, and other tort claims. The case was filed in federal district court on the basis of diversity jurisdiction; defendants moved to dismiss on standing and non-justiciability grounds.The general theory of the case was that defendants had contributed to global warming, misled the public and regulators, and caused damages to plaintiffs property as a result of Hurricane Katrina. Plaintiffs also alleged unjust enrichment (evidently a price-gouging claim).The district court had dismissed the suit, but the Fifth Circuit reversed with respect to the common law nuisance, negligence and trespass, remanding those claims back to the district court. The court held that plaintiffs had standing and that the political dimensions of global warming questions did not rise to the level of rendering the case non-justiciable.

  • October 20, 2009
    Wisconsin Businessman Ordered to Pay $56,700 For Environmental Violations
    Ronald Drews and his corporation, Drews Farms, Inc., of Wilton, Wisconsin have been found guilty of a series of civil environmental violations arising from his businesses, Trailside Bed and Breakfast and the Dorset Valley Schoolhouse Restaurant.Attorney General J.B. Van Hollen stated "This is an important case in the enforcement of Wisconsin's septage and solid waste laws. We will continue to work with the DNR to protect the waters of the state from illegal septage dumping, illegal solid waste sites near water and overflowing manure pits. Drews' violations affect not only his property but everyone down stream."

  • October 20, 2009
    Wisconsin Man and Corporation Sentenced For Illegally Storing Hazardous Waste and Obstructing Law Enforcement
    Attorney General J.B. Van Hollen announced that on October 20, 2009, the Honorable David C. Resheske, Washington County Circuit Court, sentenced Dale Knutson of Brookfield and his corporation, CAAP, Inc., for illegally storing hazardous waste on property in the Town of Erin in Washington County. Knutson was also sentenced for two counts of obstructing for giving false information to Washington County Deputy Sheriff Kevin Mass and DNR Environmental Warden Jenny Gibson.The violation was discovered by Washington County Deputies as they investigated a suspicious vehicle complaint. The Department of Natural Resources was called in and continued the investigation. The obstructing charges arose from Knutson giving false information to law enforcement during their investigation. The defendants were convicted of these counts by a Washington County jury on August 26, 2009.

  • October 19, 2009
    Wisconsin Attorney General Van Hollen Announces Cleanup Settlement
    Donald Wagner of Ripon, Wisconsin, has agreed to clean up the mobile homes, drums, tires, boats, and other solid waste on his Green Lake County property and to pay $22,500 to settle state claims brought under Wisconsin's air pollution prevention and solid waste management laws."The open burning of trailer homes with their plastic, foam, rubber, metal, and insulation components is a significant source of hazardous air pollutants, dioxins, asbestos, and heavy metal containing waste particulates," Attorney General J.B. Van Hollen said. "The releases are a health risk to Wisconsin citizens and a serious violation of environmental protection laws which the Wisconsin Department of Justice in conjunction with the Department of Natural Resources will continue to enforce."

  • October 19, 2009
    Ohio Awarded $14.7 Million Judgment Against Four Defendants in Dayton Hazardous Waste Case
    The former operators as well as the current property owner of a closed hazardous waste treatment, storage and disposal facility in Dayton have been ordered to finish determining the extent of contamination that remains at the site, address any impacted soil and ground water and pay $14,706,800 in stipulated penalties.Republic Environmental Systems Ohio, Inc. (Republic), formerly known as Ecolotec, stopped operating the facility at 636 N. Irwin St. in 1995. After Republic failed to properly close the site, Ohio Environmental Protection Agency obtained a court order on Sept. 18, 1998 that required the company to close the facility in compliance with state hazardous waste regulations. In the meantime, ownership of the property had been transferred to McCabe Corp. which had full knowledge of the court order.

  • October 12, 2009
    Wisconsin Attorney General Van Hollen Settles Air Pollution Case for $72,000
    Attorney General J.B. Van Hollen announced on October 9 that his office has settled a case with Foremost Farms USA Rothschild, a manufacturer of edible and pharmaceutical grade lactose. The civil complaint, filed in Marathon County, alleges violations of Wisconsin's air pollution laws, specifically relating to air emissions in excess of air permit limitations from stationary sources of air pollution."Wisconsin law requires that industrial facilities comply with permits designed to protect the public from harmful air emissions," said Attorney General J.B. Van Hollen. "The Wisconsin Department of Justice will continue to work with the DNR to ensure that Wisconsin's citizens and natural resources are protected through compliance with the law."

  • October 12, 2009
    Oregon Governor Ted Kulongoski and Attorney General John Kroger Urge Federal Government Not to Undermine Clinton Roadless Rule
    Oregon Gov. Ted Kulongoski and Attorney General John Kroger announced on October 6 that they had sent letters urging the U.S. Department of Agriculture and the U.S. Department of Justice to pursue a legal strategy that supports the Clinton-era Roadless Rule to protect pristine wilderness areas."The Roadless Rule provides important protections to special places across our country," Governor Ted Kulongoski said. "I hope we can end this cycle of litigation and implement the Clinton Roadless Rule as originally intended and applied nationwide.""President Obama campaigned against the Bush Administration's attempts to undermine the Roadless Rule," added Attorney General Kroger. "I am urging U.S. Attorney General Holder to follow through in court."

  • October 12, 2009
    Ohio Attorney General Cordray Files Appeal in Lake Erie Public Trust Boundary Case
    Ohio Attorney General Richard Cordray has asked the Ohio Supreme Court to review a case involving the rights of the public and of private landowners along the shore of Lake Erie. The appeal asks the state's highest court to review a ruling from the 11th District Court of Appeals that said the state did not even have the right to participate in the case. The further issue addressed in that ruling concerned the location of the proper boundary of Lake Erie and how it affects the rights of the public and of private landowners."This ruling by the appeals court undermines the attorney general's authority and duty to represent the people of Ohio. It also affects the rights of all Ohioans, including private landowners, along the shores of Lake Erie," Attorney General Cordray said. "The issues at stake in this ruling are thus of great public interest and importance."

  • October 12, 2009
    Energy Efficiency Advisory Council Ratifies Massachusetts Agreement on Energy Efficiency Programs
    The Energy Efficiency Advisory Council has given its approval to an agreement between the Patrick Administration and Attorney General Martha Coakley to set nation-leading targets for electricity savings from energy efficiency investments. The targets will serve as the cornerstone of three-year energy efficiency plans that will be presented to the Department of Public Utilities for approval this fall.“Energy Efficiency represents the most cost effective way of addressing our energy needs in Massachusetts,” said Attorney General Coakley. “The approval of unprecedented, yet attainable, electric savings goals and energy efficiency plans will provide customers with the opportunity to reduce consumption resulting in savings and corresponding reductions in emissions by power plants.”Information about the Energy Efficiency Advisory Council is available online athttp://www.ma-eeac.org/

  • October 12, 2009
    Massachusetts Joins Multi-State Coalition in Defense of States'Rights to Regulate Auto Pollution
    On October 9, Massachusetts Attorney General Martha Coakley’s office joined an 18-state coalition to defend a decision by President Obama’s Environmental Protection Agency (EPA) that grants states the right to regulate global warming pollution from automobiles. The coalition is opposing a lawsuit brought by the National Automobile Dealers Association (NADA) and the U.S. Chamber of Commerce that seeks to deny individual states the ability to limit greenhouse gas emissions from cars."There is no single environmental issue that is more important to us today than climate change," said Attorney General Coakley. "The EPA was right on target when it granted California, and by extension the other states, the right to implement motor vehicle greenhouse gas regulations.”

  • October 12, 2009
    Ninth Circuit Rules in Washington State Tideland Boundary Case: United States v. Milner
    In this appeal the Court decided whether a group of waterfront homeowners are liable for common law trespass and violations of the Rivers and Harbors Appropriation Act of 1899and the Clean Water Act (CWA), because the ambulatory tideland property boundary has come to intersect shore defense structures thehomeowners have erected.In a series of summary judgment rulings and after a bench trial, the district court found against the homeowners and ordered them to remove violating structures and to pay a $1500 civil penalty. The appellate court affirmed in part and reversed in part. The Court found that the homeowners in the case were liable for common law trespass and for causing obstructions under the Rivers and Harbors Act. The Court reversed the trial court and found that the defendants were not liable under the Clean Water Act.

  • October 03, 2009
    Massachusetts Attorney General Coakley Petitions US Department of Energy to Permit State to Boost Residential Gas Furnace Efficiency
    Attorney General Martha Coakley and Department of Energy Resources Commissioner (DOER) Commissioner Phil Giudice on October 2 petitioned the US Department of Energy (DOE) to allow Massachusetts to enforce a gas furnace efficiency standard significantly stricter than the federal standard – a move that could save Massachusetts consumers approximately $144 million in heating costs between 2013 and 2030, while cutting greenhouse gas emissions over the same period by approximately 100,000 metric tons.

  • October 01, 2009
    Oregon Attorney General Kroger And Department of Environmental Quality Director Pedersen Lead Willamette River Paddle and Town Hall
    Willamette River paddle and public forum. Attorney General John Kroger, DEQ Director Dick Pedersen and Willamette Riverkeeper will lead a paddle tour of the Willamette River, focusing on the significant environmental issues is faces. They will hold a town hall immediately following.

  • September 26, 2009
    Third Circuit Upholds Criminal Convictions in Asbestos Case
    The Third Circuit on September 24 upheld convictions of two Virgin Island defendants convicted of violations of EPA's asbestos work practice standards, subjecting them to criminal liability under 42 U.S.C 7412(c)(1) and 7413. Defendants were also convicted under 18 U.S.C. 1001, governing false statements to governmental authorities.The Third Circuit upheld the convictions, discussing mens rea in the context of environmental crimes, and the meaning of "owner or operator" under the criminal provisions of the Clean Air Act.

  • September 26, 2009
    Desert Rock Permit Sent Back to EPA ...Appeal Led by New Mexico Attorney General King Successful
    Based on issues raised in an appeal led by Attorney General Gary King, the federal Environmental Appeals Board(EAB) has remanded the air quality permit for the Desert Rock power plant to the Environmental Protection Agency.The appellate board that has been reviewing the Clean Air Act permit for the proposed Desert Rock power plant in northwest New Mexico essentially sent that air permit back to the drawing board. The EAB's action came in response to an April request made by the EPA to take the permit back to reconsider several issues that New Mexico had raised in its appeal of the permit.The remand ruling is available at http://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/Decision~Date/C90A43D72273F35C8525763C004C3739/$File/Remand....pdf

  • September 25, 2009
    Second Circuit Issues Ruling in Multi-State Greenhouse Gas Federal Common Law Nuisance Suit Against Utilities
    A group of states and environmental groups sued a group of power plants, alleging federal common law nuisance with respect to the defendants' production of greenhouse gases. The District Court for Southern District of New York dismissed the case as a non-judiciable political question. The Second Circuit vacated and remanded to District Court.In an exhaustive analysis, the Second Circuit held:(1) Plaintiffs-Appellants’ [the states and environmental litigants'] claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit.The ruling includes a discussion of states' parens patriae authority to bring environmental cases, analyzed against the background of Massachusetts v. EPA.

  • September 22, 2009
    Massachusetts Attorney General Coakley's Office Reaches Settlement with Help Save the Lake, Inc. for Alleged Environmental Violation Related to the Construction of a Temporary Dam
    On September 22, Attorney General Martha Coakley’s Office entered into a settlement agreement with Help Save the Lake, Inc. to resolve alleged violations of the Massachusetts Wetlands Protection Act and the Massachusetts Waterways statute. In 2007, Help Save the Lake, a group made up of Taunton-area citizens, participated in the construction of a coffer dam (temporary dam) at the outlet of Lake Sabbatia, in Taunton, without the necessary authorizations from the Department of Environmental Protection (MassDEP). Members of Help Save the Lake constructed the coffer dam in an effort to raise water levels in Lake Sabbatia that had fallen after the Department of Conservation and Recreation’s Office of Dam Safety ordered the gates opened on Morey’s Bridge Dam because of significant public safety concerns with that structure.

  • September 22, 2009
    Indiana Attorney General Zoeller Reaches Settlement with City to Fix Water Pollution Hazard
    To resolve longstanding problems with sewer overflows into local streams and the Ohio River, the city of Jeffersonville has reached a settlement agreement with the State of Indiana and the federal government that will trigger improvements to the city’s sewer system.Indiana Attorney General Greg Zoeller and the Indiana Department of Environmental Management have signed a consent decree with the city of Jeffersonville that also was joined by the U.S. Department of Justice and federal Environmental Protection Agency. It was filed in U.S. District Court on September 17.

  • September 22, 2009
    Ninth Circuit Reverses District Court's Approval of BLM Actions in Center for Biological Diversity v. DOI/BLM
    The Ninth Circuit held that the failure of the Bureau of Land Management to conduct a comparative analysis of the effects of various possible options was tantamount to a failure to take a "hard look" at the alternatives, as required by NEPA.

  • September 14, 2009
    New Jersey Attorney General Milgram Obtains Indictment Charging Owner of Crowne Plaza Hotel with Discharging Sewage into Hackensack River
    Attorney General Anne Milgram announced that the Division of Criminal Justice today obtained an indictment charging the owner of the Crowne Plaza Hotel in Secaucus with unlawfully pumping wastewater contaminated with sewage into the Hackensack River.According to Criminal Justice Director Deborah L. Gramiccioni, the corporate owner of the hotel, RD Secaucus LLC, which does business as Crowne Plaza Hotel Secaucus and Rosdev Hospitality Secaucus LP, is charged in a state grand jury indictment with third-degree unlawful discharge of a pollutant in violation of the New Jersey Water Pollution Control Act.The indictment may be accessed at:http://www.nj.gov/oag/newsreleases09/090209-crowne-plaza-indictment.pdf

  • September 13, 2009
    Ninth Circuit Holds Kern County Ordinance Does Not Violate Commerce Clause
    Dormant Commerce Clause case. Kern County, California enacted an ordinance restricting waste disposal of sewage sludge, and a group of in-state recyclers sued, arguing that the ordinance violated the Commerce Clause. The Ninth Circuit held that the in-state recyclers had no interests within the zone of interests protected by the dormant Commerce Clause. The dispute now returns to district court for further litigation on other grounds.

  • September 09, 2009
    Georgia Attorney General Baker Announces Guilty Plea in Case of Illegal Dumping of Body Parts and Other Bio-Waste
    Attorney General Thurbert Baker announced that Christopher Lee entered a guilty plea in DeKalb County Superior Court yesterday to one count each of unlawful dumping, illegal handling of solid waste and illegal storage of human waste. Lee was sentenced by Judge Michael Hancock to a ten year sentence, the balance to be served on probation, and ordered to pay $14,124.00 in restitution, including the costs associated with properly disposing of the bio-waste. A special condition of Lee’s probation is that he is forbidden from working at any company in the waste management business or applying for any permit or license relating to waste management.

  • September 01, 2009
    Massachusetts Man Pleads Guilty to Storing and Dumping Medical Waste and Disposing of Mercury Down the Drain
    The former owner and operator of Associated Processor Service (APS), a medical waste disposal company in Natick, pled guilty in Middlesex Superior Court on charges he unlawfully stored and disposed of medical waste, and unlawfully dumped hazardous waste, including mercury, down the drain of his Mechanic Street facility. Edward P. Small, age 56, of Dover, pled guilty on August 20 to violating the Hazardous Waste Management Act (7 counts), the Clean Water Act (2 counts), the State Sanitary Code (2 counts), and the Solid Waste Management Act (1 count).This case was investigated by the Massachusetts Environmental Crimes Strike Force (ECSF), an interagency unit that includes prosecutors from the Attorney General’s Office, Environmental Police Officers assigned to the Attorney General’s Office, and investigators and engineers from the MassDEP. The ECSF is overseen by Attorney General Coakley, MassDEP Commissioner Laurie Burt and Energy and Environmental Affairs Secretary Ian A. Bowles. The ECSF investigates and prosecutes crimes that harm or threaten the state’s water, air, or land and that pose a significant threat to human health. Lori Paradice, an inspector from the Massachusetts Water Resource Authority, also assisted in this investigation.

  • September 01, 2009
    California Attorney General Brown and 8 District Attorneys Force U-Haul to Improve Handling of Hazardous Materials
    Attorney General Edmund G. Brown Jr. and eight District Attorneys on August 21 reached an agreement requiring U-Haul Company of California to "clean up its act" and improve the way it handles and disposes of hazardous materials at its 179 regulated facilities throughout the state."U-Haul has turned a blind eye to California's hazardous materials laws for years, even after an explosion and fire severely damaged one of its facilities," Brown said. "This agreement forces U-Haul to clean up its act and improve the way it handles hazardous materials, plans for emergencies and trains employees."

  • August 31, 2009
    Rhode Island Attorney General Lynch Assails Coast Guard for Recommending Liquefied Natural Gas Traffic in Rhode Island Waters
    Attorney General Patrick C. Lynch issued the following statement concerning the recommendation by the Coast Guard on the suitability of Narragansett Bay and Mount Hope Bay for LNG marine traffic. Weaver’s Cove Energy seeks to construct a berth one mile offshore in Mount Hope Bay and just 700 feet from the Rhode Island border, and two miles south of the Braga Bridge, to accommodate deliveries by LNG tankers to Fall River.Attorney General Lynch’s comment is as follows:“I share the disappointment and dismay of everyone involved in the sustained battle to keep Weaver’s Cove Energy from establishing a massive LNG berthing facility first, at Weaver’s Cove in Fall River and now, in the middle of our magnificent Mount Hope Bay, in regard to the ill-advised decision rendered by the United States Coast Guard today. But our battle is far from over. There remains a host of issues that need to be addressed, and today’s misguided conclusion by the Coast Guard that the shipping transit route to a proposed offshore berthing terminal is navigationally suitable does not relate to the suitability of the terminal itself. Neither does it concern submerged lands and dredging issues. My office will fight on, as we have done, to protect Rhode Island’s coastal communities and families, business interests, and the recreational boating that is so crucial to the identity and integrity of our beautiful Ocean State.”

  • August 31, 2009
    Turtle Lake Company Settles Wisconsin Lawsuit Over Wastewater Violations For $187,500
    Kerry Inc. d/b/a Kerry Ingredients and Flavours, which owns and operates a soy protein production facility in Turtle Lake, Barron County, has agreed to pay $187,500 to settle state claims under Wisconsin's water pollution laws. The judgment resolves charges that Kerry failed to properly manage its discharges of wastewater into the Village of Turtle Lake wastewater treatment plant since 2005."Wisconsin law requires that industrial facilities manage their wastewater discharges so as to protect the public and the environment from harmful pollutants," said Attorney General J.B. Van Hollen. "The Wisconsin Department of Justice will continue to work with the DNR to ensure that Wisconsin's citizens and natural resources are protected through compliance with the law."

  • August 31, 2009
    Wisconsin Attorney General Van Hollen Announces Settlement in Marinette County Wetlands Violations Case
    Attorney General J.B. Van Hollen today announced on August 24 that Richlen Excavating, Inc., and Steven W. Stock have agreed to pay penalties and costs totaling $45,000 for their alleged unlawful dredging and enlargement of two ponds and their disposal of eroded soils into the North Branch of Beaver Creek, a Class I brook and brown trout stream in Marinette County.

  • August 31, 2009
    Wisconsin Attorney General Van Hollen Announces Settlement In Clark County Environmental Violations Case
    Attorney General J.B. Van Hollen on August 26 announced that Marawood Sand & Gravel 200, LLC ("Marawood"), has agreed to pay penalties and costs totaling $10,000 for its unlawful discharge of pollutants into the waters of the state without a permit, namely sand into a tributary of O'Neill Creek in Clark County."For the protection of Wisconsin citizens and our natural environment, the Wisconsin Department of Justice will continue to work with DNR to ensure that Wisconsin environmental laws are followed," Van Hollen said.

  • August 31, 2009
    Wisconsin Attorney General Van Hollen Announces Brookfield Man's Conviction on Charges of Illegally Storing Hazardous Waste
    Attorney General J.B. Van Hollen announced that on August 26, 2009, a Washington County jury convicted Dale Knutson of Brookfield and his corporation, CAAP, Inc., of illegally storing hazardous waste on his property in the Town of Erin in Washington County. Knutson was also convicted of two counts of obstructing for giving false information to Washington County Deputy Sheriff Kevin Mass and DNR Environmental Warden Jenny Gibson. The jury's verdicts acquitted Knutson and CAAP, Inc. of illegally transporting and disposing of hazardous waste.

  • August 15, 2009
    Settlement Provides for Lead Reduction in Artificial Turf
    Fighting to ensure the safety of children's playgrounds and ball fields, Attorney General Edmund G. Brown Jr. on August 14 signed off on an agreement requiring Georgia-based AstroTurf, LLC to virtually eliminate lead from its artificial grass, creating the country's first enforceable lead standards for artificial turf products."As schools and daycare centers replace grass with artificial turf, extreme care must be taken to minimize lead exposure," Brown said. "This agreement is the first of its kind and will help make playgrounds and ball fields safe for our children."In 2008, Brown filed suit against AstroTurf and two other companies for excessive lead levels after testing by the Center for Environmental Health (CEH) found high levels in artificial turf products. Brown's office independently tested AstroTurf and other artificial turf products and confirmed CEH's findings. AstroTurf immediately took steps to begin reformulating its products.

  • August 14, 2009
    Fourth Circuit Upholds USEPA's Approval of VIrginia's CAIR SIP
    Mirant Potomac River, a power company, appealed U. S. Environmental Protection Agency's approval of Virginia's Clean Air Interstate Rule State Implementation Plan ("CAIR SIP") to the Fourth Circuit, as provided by the Clean Air Act. The State of Virginia intervened in support of EPA.The Court held that Mirant's alleged injury flows from Virginia's Nonattainment Provisions, which are separate emissions standards adopted by Virginia's Air Pollution Control Board under the authority of the Virginia legislature. Because Mirant's injury could not fairly be traced to EPA's approval of Virginia's CAIR SIP, the appellate court dismissed the case for lack of jurisdiction.for lack of standing.

  • August 14, 2009
    Seventh Circuit Affirms Plaintiff's Lack of Standing in Lake Michigan Gun Range Case
    This case is one in the long series of federal cases defining Article III standing in the context of environmental citizen suits. The Navy and the FBI operated a gun range and a shotgun range near Lake Michigan, from 1918 to the present. Additionally, the Coast Guard conducted offshore live-firing exercises in the area in 2006. As a result, lead bullets from these activities were deposited into Lake Michigan.Plaintiffs filed suit under RCRA, CERCLA, the Clean Water Act and Illinois nuisance law to compel the federal government to clean up and otherwise remedy harm from operation of a gun range.The plaintiffs alleged standing on the basis of their interest in the wildlife around Lake Michigan and because they consumed freshwater fish, and drank water from Lake Michigan. The District Court dismissed the case for lack of subject-matter jurisdiction, holding that plaintiffs failed to establish standing. The Seventh Circuit affirmed the dismissal.

  • August 12, 2009
    States of Washington and Oregon and US Department of Energy Announce Proposed Consent Decree Governing Tank Waste Cleanup at Hanford
    With the ongoing construction of the Waste Treatment Plant (WTP) in the background at the Hanford Site, Energy Secretary Steven Chu joined Washington Governor Chris Gregoire, Oregon Governor Ted Kulongoski, Washington Attorney General Rob McKenna, U.S. Senators Patty Murray and Maria Cantwell, acting U.S. Assistant Attorney General John Cruden and other officials on August 11 announced a proposed legal settlement that will impose a new, enforceable and achievable schedule for tank waste cleanup at the Hanford Site in southeastern Washington State.The Washington State and federal officials announced a proposed judicial consent decree that will be filed in federal court, then be subject to a public comment period. The proposed consent decree between the Department of Energy (DOE) and Washington State will set a new and achievable schedule for construction and startup of the WTP and the retrieval of waste from the large underground single-shell storage tanks at Hanford. Hanford currently stores 53 million gallons of radioactive and chemical waste in 177 underground tanks at the Site. The proposed consent decree settles litigation that was filed by Washington State last November and joined by the State of Oregon in February to compel the Energy Department to complete key aspects of the Hanford cleanup.

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