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Litigation

WASTE INDUSTRY SEEKS HIGH COURT REVIEW OF FLOW CONTROL RULING

A waste industry association has asked the U.S. Supreme Court to review a 2004 ruling limiting industry's ability to challenge local garbage flow-control ordinances on constitutional grounds.

The National Solid Wastes Management Association (NSWMA) last month petitioned the court to grant certiorari over the U.S. Court of Appeals for the 5th Circuit's October 2004 ruling in National Solid Waste Management Association, et al. v. Pine Belt Regional Solid Waste Management Authority Board.

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RULING BACKS DOJ DEFENSE AGAINST TAKINGS CLAIMS OVER CONTAMINATION

A federal appellate court is backing a key government defense against takings claims stemming from contamination from military and other federal facilities, saying that in order to prove contamination is a taking, plaintiffs must prove the government caused the injury and that it should have predicted or foreseen the injury.

The ruling is significant because it runs counter to a recent trial court ruling that rejected the government's defense.

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FIRST-TIME APPELLATE RULING BARS PRIVATE PARTIES' RCRA SUITS AGAINST U.S.

A federal appeals court has, for the first time, ruled that the waiver of sovereign immunity under the Resource Conservation and Recovery Act (RCRA) does not allow private parties to sue federal agencies to recoup cleanup costs and damages stemming from environmental contamination.

The court ruled that the waiver that Congress provided in 1992 in the Federal Facilities Compliance Act (FFCA), which amended RCRA, only allows states to sue federal agencies.

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APPEALS SEEK TO LIMIT LANDMARK CASES EXPANDING WATER ACT JURISDICTION

Property developers and industry groups are appealing recent federal court rulings that they say expand Clean Water Act (CWA) jurisdiction by allowing regulators to oversee wetlands and other waterbodies that are adjacent, but not necessarily hydrologically connected, to navigable waters.

Industry is appealing one California case that some say represents the broadest reading of CWA protections in the law's history -- in which a federal district court ruled in favor of jurisdiction over a pond that is adjacent to, but has no connection with, navigable waters.

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OKLAHOMA SUIT AGAINST EPA COULD DETERMINE KEY AUTHORITY FOR TRIBES

EPA is facing litigation from Oklahoma for allowing Native American officials to set water quality standards on tribal lands, in a case that could set a precedent for 37 other tribes in the state that have petitioned the agency for similar authority.

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GROUP'S REHEARING REQUEST MAY ALLOW EPA TO DEFEND CAFO AUTHORITY

Environmentalists' petition for a rehearing in a landmark appellate case may give EPA the opportunity to weigh in on a ruling that some observers say undermined the agency's authority to require permits for facilities that have not been proven to discharge pollutants -- such as some animal feedlots and stormwater facilities.

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DEMOCRAT SEEKS ENVIRONMENTAL JUSTICE PROVISION IN BROWNFIELDS BILL

Rep. Dennis Kucinich (D-OH) is asking a House Republican to include a provision addressing environmental justice concerns at contaminated sites in an upcoming bill that would provide tax credits to help offset developers' cleanup costs, congressional sources and environmentalists say.

The move comes amid concerns from environmental justice advocates that EPA is not implementing recommendations from a federal advisory committee calling on the agency to reduce the unintended impacts of brownfields redevelopment on disadvantaged communities.

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BILL BOLSTERING CAL/EPA ENFORCEMENT DRAWS LOCAL AGENCY CONCERNS

An administration-backed bill that is expected soon to be amended to extend toxics department-style trained law enforcement officers to almost all of Cal/EPA's departments is drawing early concern from local agencies, which fear the measure could create a rift between state and local governments over their enforcement programs.

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ENVIRONMENTALIST-BACKED BILL SEEKS BROADER CITIZEN-SUIT POWERS

Seeking to counteract what they say are flagging enforcement efforts at the state and federal level, environmentalists are backing a bill that would significantly expand private citizens' ability to sue to enforce state environmental laws. The measure is rapidly attracting opposition from the state's major industry groups, which contend it will lead to frivolous lawsuits that voters sought to curtail through the passage of Proposition 64 last November.

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ACTIVISTS LAUNCH LEGAL STRATEGY TO TARGET FLARING FROM REFINERIES

Activists are filing a series of lawsuits targeting refineries across the country in an effort aimed at pressuring industry to agree to new limits on when they can incinerate excess gas in a practice known as flaring. The environmentalists hope that by forcing industry to pay millions of dollars in penalties for emissions that result from flaring they can force industry to agree to a new EPA rule regulating the practice.

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