Legal News

Judge Dismisses States' Global Warming Suit

On Sept. 15, a federal judge dismissed a global warming lawsuit brought by eight states and New York City against companies they claim are the five largest global warming polluters in the United States.

Judge Loretta Preska of the U.S. District Court for the Southern District of New York (http://www.nysd.uscourts.gov) stated that the issue is for Congress or the president to decide, not the judiciary. In July 2004, the states filed suit against American Electric Power Co., the Southern Co., Tennessee Valley Authority, Xcel Energy Inc. and Cinergy Corp. Together, they own or operate 174 fossil fuel burning power plants in 20 states that emit approximately 650 million tons of carbon dioxide each year, the states argued (see http://www.nj.gov/oag/update/wu.07.21.04.html).

In dismissing the suit, the judge stated that the case involves political question that would be inappropriate for the court to answer.

Federal Judge Orders EPA To Review Lead Standard

A federal judge has ordered EPA to review its health standard for lead pollution in the air, finding that the agency had "blatantly disregarded Congress' mandate that the lead NAAQS National Ambient Air Quality Standard be reviewed at five year intervals" (Missouri Coalition for the Environment vs. EPA, No. 4:04CV00660 ERW, September 14, 2005).

Judge E. Richard Webber of the U.S. District Court for the Eastern District of Missouri (http://www.moed.uscourts.gov) found that the agency's proposed timeline for completing its long-overdue review of the lead NAAQS is too long, and "wholly defeats the mandate of Congress."

In 1978, EPA promulgated NAAQS for lead. Since then, EPA has not completed a review of the NAAQS for lead. In 1986, the agency revised the Air Quality Criteria Document ("CD") for lead. The CD was supplemented by EPA in 1990. Also in 1990, EPA's Office Air Quality and Planning Standards issued a staff paper, however, the agency did not publish a revised NAAQS for lead.

The Missouri Coalition for the Environment and Jack and Leslie Warden, a couple who lived for 15 years near a lead smelter in Herculaneum, Mo., filed this lawsuit on May 27, 2004, seeking a declaratory judgment that the agency is in violation of the requirement that it review, and if necessary, revise the NAAQS for lead every five years.

EPA claimed that it chose not to revise the criteria based on the most current CD and staff paper relating to lead. Missouri Coalition argued that although EPA ceased reviewing the lead NAAQS in 1990, it never definitively stated that it considered the review complete and that it was inappropriate to revise the standards, and it is impossible to know the intent of EPA because it never published a final rulemaking.

The judge ordered the agency to complete the lead NAAQS review, with a series of interim deadlines beginning Dec. 1, 2005, by no later than Sept 1, 2008. "The court will not be inclined to grant extensions, absent a showing of good cause," the judge stated.

States Sue Over Controls For Destructive Insects

On Sept. 15, four states sued the U.S. Department of Agriculture (USDA) for failing to impose effective controls against destructive insects that enter the country in shipping pallets and other wooden packaging. A new rule issued by the USDA requires the use of a marginally effective pesticide that damages the environment and is being phased out of use under an international treaty, the state officials argue.

The states of New York, California, Connecticut and Illinois filed the lawsuit, which seeks a court order directing the USDA to examine more effective and less environmentally harmful methods of preventing the insects from entering the country.

Invasive insect pests -- such as the Asian long-horned beetle, emerald ash borer, and pine shoot beetle -- enter the country in wooden pallets and other packaging made from raw wood. These pests have caused significant damage to trees in New York City, Long Island, Chicago and other communities. Thousands of trees have been destroyed in an effort to prevent the spread of these pests, which have few local predators or diseases to kill them. If these destructive insects spread from U.S. ports of entry into the nation's forests, they could further damage the timber, tree nursery, fruit orchard, maple syrup, and tourism industries.

At the heart of the lawsuit is USDA's failure to comply with a federal law requiring it to study alternatives to any proposed action having an impact on the environment, the states argue. Under the new rule, wooden shipping pallets and other wood packaging materials used in any imports to the country are to be heat treated or sprayed with methyl bromide to kill the insects.

Neither method, however, is completely effective at killing the insects, which may survive by burrowing deep into the wood, the states argue. In addition, methyl bromide is the most powerful ozone-depleting chemical still in widespread use, and is being phased out of use under the terms of an international treaty targeting substances that damage the ozone layer, which protects humans from harmful ultraviolet radiation that can cause skin cancer, cataracts and immunological disease.

Replacing raw wood pallets with pallets made from other material, such as plywood, processed wood or new or recycled plastic, would largely eliminate the risk of pest invasion and would avoid harm to the ozone layer since the alternative packaging materials do not require methyl bromide treatment, according to the states.

New York Attorney General Eliot Spitzer said: "It is difficult to understand why the states must resort to a lawsuit in this matter when both the law and common sense dictate that the USDA seek more effective and less environmentally damaging alternatives to thwarting these invasive pests."

The case was filed in the U.S. District Court for the Southern District of New York. Copies of the complaint can be found on the New York Attorney General's Web site at: http://www.oag.state.ny.us.

This article originally appeared in the 09/01/2005 issue of Environmental Protection.

comments powered by Disqus