ENVIRONMENTAL LEGAL BLOGS

ENVIRONMENTALISTS DISCOVER STATES' RIGHTS

  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.

10th Amendment to the United States Constitution

     Liberals and environmentalists usually are not great fans of this Amendment--having, after all, appointed Judges over the last 75 years who have decimated the force of the Amendment until it is but a vestige of its intended prominence--but occasionally even the Left finds it helpful that the 10th Amendment has not entirely lapsed into desuetude.  (Per Wikipedia, "desuetude (from the French word désuet, outdated) is a doctrine that causes statutes, similar legislation or legal principles to lapse and become unenforceable by a long habit of non-enforcement or lapse of time. It is what happens to laws that are not repealed when they become obsolete. It is the Legal doctrine that long and continued non-use of a law renders it invalid, at least in the sense that courts will no longer tolerate punishing its transgressors.") (Note:  legal links in Wikipedia quote won't work from here; go to the Wikipedia link and they will work from there).

     This past Wednesday, September 12, 2007, a Vermont federal Judge--to the delight of Liberals/environmentalists everywhere-- ruled in Green Mountain Plymouth Dodge Jeep v. Crombie that the State of Vermont retains the right to adopt rules forcing automobile makers to require carbon dioxide emissions from cars be reduced by as much as 30 percent over the next 10 years.  The judge rejected the auto industry's argument that federal laws and EPA regulations preempt this field.

     Normally Big Government types such as California Governor Arnold Schwarzenegger and California Attorney General Jerry Brown could barely contain their joy, especially since the ruling gave them the opportunity to burnish their environmental credentials by bashing the Bush Administration yet again.  Brown threatened, as has the Governor in the past, to sue federal EPA if the agency does not grant California waivers to enforce that State's own emissions-regulation law.

     Forgive me for being a skeptic-- but I doubt Jerry Brown is now a States' Rights supporter.  Somehow methinks his enthusiasm will fade when the subject turns to some liberal cause that is best promoted by forgetting the 10th Amendment was, in fact, ever adopted. 

THIS BILL MADE TOO MUCH SENSE TO BE ENACTED IN CALIFORNIA

     Even though the federal government has not seen fit to regulate the disposal of used alkaline batteries, in its infinite wisdom the California Legislature has since February 2006 made it illegal to dispose of these batteries in the common trash and has required these items to be recycled-- at an estimated annual cost of $152 million. Here’s the “slight” problem, however: according to Assemb. George Plescia (R.-75th Dist., San Diego), no recycling disposal points for the used batteries yet exist. Nor has any study been done to determine if landfill disposal of these items actually causes any problems (such as increasing the chances of the landfill eventually leaking).

     Accordingly, in the just-concluded California Legislative regular session, Assemb. Plescia introduced AB 656, which would have required that “[b]efore the state imposes a deposit, fee, or any form of costs on consumers to fund or subsidize an infrastructure to collect used alkaline batteries from consumers as a …hazardous waste, a study should be conducted regarding” the question of whether regular trash-to-landfill disposal of the batteries actually causes any environmental harm. With a State budget already in a $1 billion+ deficit, and with it not being clear that mandated recycling of the batteries at $152 million annually does any good, the Assemblyman’s bill made sense.

      Too much sense for a Legislature somewhat to the Left of even Nancy Pelosi-that’s why it languished in Committee and never had a chance of passage.

WELL, WHADDYA KNOW? WHO'D A THUNK IT?

A new analysis of peer-reviewed literature reveals that more than 500 scientists have published evidence refuting at least one element of current man-made global warming scares. More than 300 of the scientists found evidence that 1) a natural moderate 1,500-year climate cycle has produced more than a dozen global warmings similar to ours since the last Ice Age and/or that 2) our Modern Warming is linked strongly to variations in the sun's irradiance. "This data and the list of scientists make a mockery of recent claims that a scientific consensus blames humans as the primary cause of global temperature increases since 1850," said Hudson Institute Senior Fellow Dennis Avery.

See earthtimes.org

AB 518 CONTINUES TO LANGUISH

     In February of this year, California Assembly Member Tony Mendoza (D-56th Dist; Norwalk) introduced legislation to tighten regulation of aboveground petroleum storage tanks.  As summarized by the Legislative Counsel's Digest:

AB 518, as introduced, Mendoza. Hazardous material: aboveground
storage tanks.
   The Aboveground Petroleum Storage Act requires the State Water
Resources Control Board to adopt a schedule for the inspection of
aboveground storage tank facilities.
   This bill would require the schedule to provide, on and after
January 1, 2008, that an inspection be conducted at least once every
two years. The bill would also state an intent of the Legislature to
enact legislation to prohibit the siting of aboveground storage tanks
on lands that are subject to liquefaction.

    In March, the bill was referred to State Assembly Committees, form whence the bill hasn't moved.  If nothing happens this month, when the deadline for passing legislation in this Session expires, the bill will be dead as a do-do bird (as the old saying goes).

SURPRISE PRO-NATIONAL SECURITY RULING FROM THE 9TH CIRCUIT

     On the same day (Friday, August 31) that a federal trial Judge effectively found the Sacramento Delta smelt more important legally than humans (see Post below), the usually Left-leaning Ninth Circuit Court of Appeals surprisingly went the other way, finding that humans' national security actually trumps another species.  The San Francisco Chronicle this past Saturday, September 1, 2007, reported:

A federal appeals court allowed the Navy on Friday to resume using underwater sonar blasts in anti-submarine warfare tests off Southern California despite possible harm to endangered whales, saying the nation's military needs come first.

"The safety of the whales must be weighed, and so must the safety of our warriors. And of our country," said the Ninth U.S. Circuit Court of Appeals in San Francisco.

***

"We are currently engaged in war, in two countries," said Judge Andrew Kleinfeld in the majority opinion, joined by Judge Consuelo Callahan. "There are no guarantees extending from 2007 to 2009 or at any other time against other countries deciding to engage us, or our determining that it is necessary to engage other countries.

"We customarily give considerable deference to the executive branch's judgment regarding foreign policy and national defense," the court said.

FEDERAL JUDGE EFFECTIVELY SLASHES CALIFORNIA'S WATER SUPPLY

     On Friday, August 31, a federal court Judge in Fresno accepted the argument of environmentalists that the endangered species (the Delta smelt) was being killed off by the huge pumps used by the State Water Project and the federal Central Valley Project.  The Judge therefore used the federal Endangered Species Act to issue a ruling that, in effect, may at least on a temporary basis require up to a1/3^rd reduction in the amount of water cycled by the pumps.  As quoted in the Contra Costa Times, Association of California Water Agencies’ Executive Director Tim Quinnsaid of the ruling: "These reductions represent the single largest court-ordered redirection of water in state history."             

    

     This ruling is not likely to have an impact for the remainder of this year.  However, next year cities relying on Delta water (including Los Angeles and other cities in Southern California) may have to institute water rationing and/or substantially increase pricing.  If such rationing/higher pricing occurs, both residences and business will be affected.

     The ruling is also likely to affect the amount of irrigation water available to farmers in the State, which in turn will affect the food supply.

     So, we know where our priorities lie-

      

No

                  

Yes