News & Updates from CWAG
April 25, 2023
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Oklahoma Attorney General Gentner Drummond and attorneys general from neighboring states joined in a lawsuit against the current administration over a U.S. Fish and Wildlife Service (USFW) rule that designates the lesser prairie chicken as endangered or threatened under the Endangered Species Act.
The rule, which took effect late last month, places burdensome restrictions on Oklahoma ranchers who graze livestock and unnecessarily impedes the development of energy pipelines, oil drilling, wind farms, and roads. The lawsuit was filed in U.S. District Court in the Western District of Texas by Drummond, Kansas Attorney General Kris Kobach, and Texas Attorney General Ken Paxton. Drummond noted that his office is uniquely equipped to fight federal overreach due to the steadfast resolve of legislative leaders who have appropriated funds for the sole purpose of defending Oklahoma’s sovereignty.
In a letter earlier this year to U.S. Secretary of the Interior Deb Haaland and USFW Director Martha Williams, Drummond noted that the Oklahoma Department of Wildlife Conservation (ODWC) has worked closely with federal agencies, industry leaders, private landowners, conservation groups, and other stakeholders to protect the lesser prairie chicken and its habitat. That letter provided a 60-day notice of the intent to file litigation for failing to follow necessary requirements of the Endangered Species Act regarding the Final Rule the USFW issued on November 25, 2022.
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Delaware Attorney General Kathy Jennings and her colleagues have announced that a proposed settlement has been reached in the 2020 lawsuit against the Environmental Protection Agency (EPA) for its failure to require Pennsylvania to develop and implement a plan to meet its commitments to reduce pollution under the Chesapeake Clean Water Blueprint. One-third of Delaware is part of the Chesapeake watershed.
The settlement, a significant step toward reducing pollution in the Susquehanna River watershed and the Chesapeake Bay, is the result of combined lawsuits filed against the EPA by the attorneys general of Delaware, Maryland, the District of Columbia, and Virginia, as well as the Chesapeake Bay Foundation (CBF) and other regional partners. The public will now have 30 days to comment on the proposed settlement before it can be finalized.
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AG Platkin and DEP Commissioner LaTourette Announce Eight New Environmental Justice and Environmental Enforcement Actions
New Jersey Attorney General Matthew J. Platkin and Commissioner of the Department of Environmental Protection announced eight new environmental enforcement actions targeting polluters across the State whose toxic legacies continue to threaten public health, safety, and the environment. They also announced that settlement agreements had been reached in two other environmental justice cases.
The eight new matters include five environmental justice actions centering on a broad array of toxic pollutants that have tainted overburdened communities at two separate, unrelated sites in Newark; a location in Fort Lee; a location in Milltown; and a site in Camden. Three additional lawsuits filed today focus on requiring responsible parties to clean up contamination and recovering costs incurred in addressing that contamination at other sites. Additionally, Attorney General Platkin and Commissioner LaTourette announced two environmental justice case settlements that resolved prior lawsuits by the State.
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E.P.A. to Propose First Controls on Greenhouse Gases From Power Plants
New York Times Article
By Coral Davenport and Lisa Friedman
April 22, 2023
If the regulation is implemented, it will be the first time the federal government has limited carbon emissions from existing power plants, which generate 25 percent of U.S. greenhouse gases. The President’s administration is poised to announce limits on greenhouse gas emissions from power plants that could compel them to capture the pollution from their smokestacks, technology now used by fewer than 20 of the nation’s 3,400 coal and gas-fired plants, according to three people who were briefed on the rule.
If implemented, the proposed regulation would be the first time the federal government has restricted carbon dioxide emissions from existing power plants, which generate about 25 percent of the planet-warming pollution produced by the United States. It would also apply to future plants. Almost all coal and gas-fired power plants would have to cut or capture nearly all of their carbon dioxide emissions by 2040, according to the people familiar with the regulation, who asked not to be identified because the rule has not been made public.
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A commission that oversees how the Rio Grande is managed and shared among three Western states has adopted a recommendation that could set the stage for more involvement by Native American tribes that depend on the river.
The Rio Grande Compact Commission voted unanimously during its annual meeting in Santa Fe to direct its legal and engineering advisers to look into developing protocols for formal discussions with six pueblos that border the river in central New Mexico. Pueblo leaders have been seeking a seat at the table for years, saying their water rights have never been quantified despite an agreement made nearly a century ago between the U.S. Interior Department and an irrigation district to provide for irrigation and flood control for pueblo lands.
One of the longest rivers in North America, the Rio Grande supplies water for more than 6 million people and 2 million acres of land in the U.S. and Mexico. There has been much disagreement over management over the decades, including one fight between New Mexico and Texas that is still pending before the U.S. Supreme Court.
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The Environment and Natural Resources Division are hosting upcoming training sessions for state government environmental law practitioners beginning on May 9.
Each training is virtual and free to attend!
If you have any questions contact:
Counsel for State and Local Affairs | Law and Policy Section | Environment and Natural Resources Division | U.S. Department of Justice
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Session 1: Common Interest Agreements
Zoom Webinar
May 9, 2023, 2:00pm - 3:30pm Eastern Time
This session will begin with opening remarks by ENRD's Principal Deputy Assistant Attorney General Kate Konschnik highlighting the importance of joint state and federal environmental enforcement efforts. These remarks will be followed by a presentation by the Senior Litigation Counsel for E-Discovery, Sarah Himmelhoch, regarding the common interest doctrine (also known as the joint prosecution privilege) as it is interpreted and applied in U.S. District Courts. The presentation will address the scope of the doctrine, the benefits and risks of sharing information pursuant to such agreements, and best practices in the drafting and implementation of the agreements.
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Session 2: Effective Expert Reports in Federal Cases - Zoom Webinar
June 13, 2023, 2:00pm - 3:00pm Eastern Time
Most environmental enforcement actions require testimony by expert witnesses. This interactive presentation will discuss working with expert witnesses when reviewing and finalizing expert disclosures. After reviewing the federal requirements for expert disclosures, participants will be asked to review excerpts of actual draft expert reports and spot issues related to compliance with the legal requirements and effective strategy. In a guided discussion of these issues, participants will discuss how to remedy the identified issues and how to effectively work with various types of experts and personalities to ensure an accurate but persuasive presentation of the facts.
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Session 3: Bringing Civil Cases to Protect Animal Welfare - Zoom Webinar
July 13, 2023, 2:00-3:00 PM Eastern Time
This presentation, provided by Trial Attorney Mary Hollingsworth, who has handled many of ENRD's animal welfare protection civil cases, will review the civil authorities available and discuss the types and nature of evidence required to establish an effective claim.
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Session 4: Best Practices for Community Outreach to Further Environmental Justice - Zoom Webinar
August 8, 2023, 2:00-3:00 PM Eastern Time
This presentation will take the form of a panel discussion by several of ENRD's Environmental Justice Coordinators. The panelists will discuss ways of planning for community outreach, providing meaningful opportunities for community input and information, and effectively using the information gained through community outreach to further the goals of enhancing equity in environmental enforcement, particularly with respect to decisions regarding the appropriate relief for environmental violations.
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All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Patricia Salazar at psalazar@agalliance.org with any questions.
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In re S.S., --- Cal.Rptr.3d ----, 2023 WL 2943585 (Ct. App. 2d Dist., April 14, 2023). Where the county department failed to comply with California’s statutory duty to make inquiry to all extended family members regarding possible Indian ancestry, an order terminating parental rights and approving adoption by maternal relatives was conditionally reversed and the matter remanded for compliance with such duty.
In re Interest of Manuel C. & Mateo S., 314 Neb. 91, ___ N.W. 2d ___ (April 21, 2023). Tribe not entitled to intervene in termination hearing of children eligible for tribal membership when mother, likewise eligible, was not an enrolled member of the Tribe.
Mandan, Hidatsa and Arikara Nation, v. U.S. Dept. of the Interior, 2023 WL 3027782 (D.C. Cir., April 21, 2023). State of North Dakota entitled to intervene in Tribes’ action seeking accounting from Department of the Interior regarding extraction of minerals from riverbed found by Interior Solicitor in 2022 to be owned by Tribes, in reversal of 2020 Solicitor opinion finding state ownership.
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In re: Gold King Mine Release, 2023 WL 3020041 (D. N.M., April 20, 2023). The court granted summary judgment holding that the Navajo Nations claim’s that it was entitled to damages to repair “confidence” in the San Juan River following release of toxic substances from mine did not seek any physical repair of the resources, and required the Nation to provide notice of the legal theories supporting its damage claims.
In re M.Y. and D.Y., ___ S.W. 3d ___, 2023 WL 3033415 (Tex. App., Austin, April 21, 2023). Mother’s testimony at trial of childrens’ possible Indian heritage triggered duty to provide notice to affected Tribes, and duty to apply ICWA’s standard of evidence beyond reasonable doubt to termination of parental rights.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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