News & Updates
Conference of Western Attorneys General
August 9, 2023
|
|
ENDANGERED SPECIES ACT (ESA) |
|
Two new bat varieties have been designated as imperiled under the Endangered Species Act, the U.S. law intended to keep animal and plant types from dying out. Enacted in 1973 amid fear for iconic creatures such as the bald eagle, grizzly bear, and gray wolf, it extends legal protection to 1,683 domestic species.
More than 99% of those listed as “endangered” — on the verge of extinction — or the less severe “threatened” have survived. Fifty years after the law took effect, environmental advocates and scientists say it’s as essential as ever. Habitat loss, pollution, climate change, and disease are putting an estimated 1 million species worldwide at risk.
Yet the law hasn’t been updated it since 1992 — and some worry it won’t last another half-century. Attention 50 years ago was riveted on iconic animals like the American alligator, Florida panther, and California condor. Some had been pushed to the brink by habitat destruction or pollutants such as the pesticide DDT. People over-harvested other species or targeted them as nuisances. The endangered list grew to include little-known creatures — from the frosted flatwoods salamander to the tooth cave spider — and nearly 1,000 plants. An early battle involved the snail darter, a tiny Southeastern fish that delayed the construction of a Tennessee dam on a river then considered its only remaining home.
Federal regulators are caught in a crossfire over how many species the act should protect and for how long — and how to balance that with the interests of property owners and industry. Since the law took effect, 64 of roughly 1,780 listed U.S. species have rebounded enough to be removed, while 64 have improved from endangered to threatened. Eleven have been declared extinct, a label proposed for 23 others, including the ivory-billed woodpecker.
|
|
The Inflation Reduction Act is providing $44 million for park service work in 39 states, the District of Columbia, Puerto Rico, and the Virgin Islands. The National Park Service (NPS) is prepared to spend $44 million on 43 new projects across the country, including one aimed at preventing the extinction of Hawaiian forest birds. The project list includes $481,000 to control invasive bullfrogs and restore native amphibians in parks in New Mexico and Arizona and $300,000 to advance bison reintroduction efforts at Glacier National Park in Montana.
Altogether, NPS said it would use new funds from the Inflation Reduction Act to finance projects in 39 states and in Washington, D.C; Puerto Rico; and the Virgin Islands. The White House announced the plan, but administration officials did not provide details on the projects. NPS officials said the Hawaii project, which will cost $2.9 million, will attempt to control deadly nonnative mosquitoes that have spread avian malaria and threaten the survival of the native forest birds and $8 million of the new money will be used to restore and assess aquatic ecosystems in Alaska. Other projects will attempt to restore redwood forests and watersheds in the Prairie Creek watershed of Redwood National and State Parks in California and to restore threatened whitebark pine at nine national parks in Montana, Wyoming, California, and Washington State.
One project will seek to restore Sonoran Desert habitats in Saguaro National Park in Arizona by removing buffelgrass, while another will aim to restore healthy forests and control invasive plants affecting parks in Appalachia, including Mammoth Cave National Park, Chickamauga and Chattanooga National Military Park, Cumberland Gap National Historical Park, the Big South Fork National River, and Recreation Area, and the Obed Wild and Scenic River.
|
|
A half-century ago, the nation’s top health experts urged the federal agency in charge of mine safety to adopt rules protecting miners from poisonous rock dust. Now the federal Mine Safety and Health Administration has proposed a rule that would cut the current limit for silica exposure in half.
The rule, published in the Federal Register, cuts the permissible exposure limit for silica dust from 100 to 50 micrograms per cubic meter of air for an 8-hour shift in coal, metal, and nonmetal mines such as sand and gravel. The proposal is in line with exposure levels imposed by the Occupational Safety and Health Administration on construction and other non-mining industries. The standard The Centers for Disease Control was recommending as far back as 1974.
Silicosis is an occupational pneumoconiosis caused by the inhalation of crystalline silica dust present in minerals like sandstone. The U.S. Department of Labor began studying silica and its impact on workers’ health in the 1930s, but the focus on stopping exposure in the workplace largely bypassed coal miners. Instead, regulations centered on coal dust, a separate hazard created by crushing or pulverizing coal rock that also contributes to black lung. The existing silica standards were developed in the 1970s, around the time of the U.S. Coal Mine Health and Safety Act of 1969 and the Federal Mine Safety and Health Act of 1977.
|
|
California Attorney General Rob Bonta along with the attorneys general of Arizona, the District of Columbia, Pennsylvania, and Wisconsin filed an amicus letter expressing strong concerns over the amount of money that DuPont and two spin-off companies would pay under a proposed class action settlement with public water providers. While the proposed settlement has been revised in several important ways at the request of states led by Attorney General Bonta, DuPont declined to pay more than the $1.18 billion set forth in the original proposed settlement filed on July 10, 2023. In their amicus letter, the five attorneys general underscore that $1.18 billion falls far short of the amount needed to remediate the PFAS contamination caused by DuPont to Americans’ drinking water supply. Revisions to the proposed settlement, which were also filed today, remain subject to court approval.
PFAS have been widely used in consumer products including food packaging, cookware, clothing, carpets, shoes, fabrics, polishes, waxes, paints, and cleaning products, as well as in firefighting foams designed to quickly smother liquid fuel fires. In 2021, the California Legislature passed and Governor Newsom signed Assembly Bill 1200, which restricts the manufacture, distribution, and sale of food packaging that contains PFAS and requires manufacturers of cookware to disclose the presence of certain chemicals on the internet or product label.
|
|
The EPA stands with farmers in a tractor repair dispute, saying the Clean Air Act doesn't impede consumers' right to repair their own equipment. The Clean Air Act doesn't block farmers from repairing their tractors or having repairs done by independent shops, addressing part of a bigger dispute with the nation's leading tractor manufacturer. In clarifying the agency's view, demands of farm groups and other advocates in the so-called right-to-repair movement were clarified, which has triggered lawsuits with the tractor manufacturer, the biggest seller of tractors in the U.S. The company has pushed back against repairs done by anyone other than its authorized dealers, although it is mainly concerned with protecting the software installed on modern tractors.
Earlier this year, the company signed an agreement with the American Farm Bureau Federation to provide farmers with more information and tools for self-repair while protecting the company's intellectual property.
In the EPA letter, it states that the EPA believes barriers to proper repair of off-road farm equipment can harm the environment, as through increased emissions. The Clean Air Act prohibits manufacturers from writing their service manuals in a way that steers consumers away from independent repair shops, or conditioning warranties on repairs being performed by dealers or others with whom the manufacturer has a commercial relationship.
The agency also supports legislative efforts to clarify that independent repair is allowed, as long as protections against tampering with emissions systems remain in place. The discussion around the Clean Air Act is separate from another legal argument about antitrust law. In that dispute — the subject of a class-action lawsuit against John Deere — farmers allege the company's restrictions on repairs amount to a monopoly.
|
|
The current administration's creation of his fifth national monument protecting nearly 1 million acres surrounding the Grand Canyon in Arizona will be the largest of this administration by far, protecting a landscape that Native American tribes for years have said is crucial to their cultural identities. The designation of the Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument will also involve those long-marginalized tribes in the management of the land.
The sheer breadth of the new 917,618-acre national monument and newly protected lands is one of the most celebrated places in the American West. The new monument includes lands around the Grand Canyon in northern Arizona that are managed by the Forest Service and the Bureau of Land Management. But the proclamation establishing the national monument includes the establishment of a tribal commission that will include representatives of the dozen tribes in the Grand Canyon Tribal Coalition that will act as "co-stewards" of the monument.
This is part of a recent trend, where last year BLM and the Forest Service signed a formal agreement with a tribal coalition to co-manage the Bears Ears National Monument in Utah. Tribes are also involved with BLM in the management of the Avi Kwa Ame National Monument in Nevada to protect lands considered sacred to Yuman-speaking Native American tribes.
|
|
Supreme Court refuses to block the ban on Oklahoma City fines for Native Americans
The Supreme Court refused to block a lower court ruling that would revoke the authority of Oklahoma officials to enforce certain laws against Native Americans amid legal confusion. Two justices suggested in a statement accompanying the order that the city of Tulsa’s request to halt the lower court ruling was premature, and that officials could continue enforcing local laws while the litigation continues.
In a major ruling three years ago, the Supreme Court reclassified most of eastern Oklahoma as an American Indian reservation. The decision disrupted criminal prosecutions and led to other legal questions about the power to enforce local laws against Native Americans accused of violating those statutes within a municipality’s limits.
The latest case began with a member of the Choctaw Nation who lives in Tulsa. He was ticketed for speeding in the summer of 2018 on land within Tulsa’s borders on the Muscogee (Creek) Nation reservation. He paid the $150 traffic ticket. But after the Supreme Court’s ruling in McGirt v. Oklahoma two years later, he went to court and argued that the city does not have jurisdiction to prosecute Indians for violations of city law that occur within the reservation boundaries where he lost the first round in District Court. The U.S. Court of Appeals for the 10th Circuit reversed that ruling in an initial decision, siding with Hooper and sending the case back to the trial court. The city, they say, has entered into agreements with Creek and Cherokee nations to refer criminal misdemeanors and felonies for prosecution by the tribes.
The 2020 ruling has raised new questions about the Curtis Act of 1898, a federal statute that predates statehood for Oklahoma. The law established a process for cities and towns in former Indian territory to incorporate and laid the groundwork for state governance. The law said, “all inhabitants of such cities and towns, without regard to race shall be subject to all laws and ordinances of such city or town governments.” In June, the 10th Circuit unanimously agreed with Hooper’s lawyers that Congress intended for the city’s power to extend only until Oklahoma became the 46th state in 1907. Once Tulsa became part of a state, it lost jurisdiction over local violations by Native Americans within Indian country.
|
|
A New Illinois Law Shifts Repatriation and Reburial Power to Tribal Nations
Tribal nations will now have the final say in how and when the remains of their ancestors will be returned to them. A federal law, the Native American Graves Protection and Repatriation Act (NAGPRA), was meant to help return them, but decades after its 1990 passage, many tribes are still waiting.
The newly signed Human Remains Protection Act was shaped by tribal nations over more than two years of consultations with the Illinois State Museum and the state Department of Natural Resources.
The law makes it the state’s responsibility to help return ancestral remains, funerary objects, and other important cultural items to tribal nations, and it compels the state to follow the lead of tribal nations throughout the repatriation process. It also establishes a state Repatriation and Reinterment Fund to help with the costs of reburial, tribal consultation, and the repair of any damage to burial sites, remains, or sacred items.
The new law is part of a broader effort to recenter Native voices in Illinois and within state institutions, and was signed in tandem with two other laws; one requires the history of Native Americans in the Midwest be taught in Illinois public schools, and another that bans school boards from prohibiting students from wearing cultural or tribal clothing and regalia in schools and at graduation ceremonies.
Another significant aspect of the new law is that it prohibits institutions from charging admission to view human remains that are Native American and any items that were originally buried with those individuals. Although the public display of Native American ancestral remains by museums fell out of practice after the passage of NAGPRA in the early 1990s, the public display of their funerary items has not.
|
|
Iowa Attorney General Brenna Bird is suing the Environmental Protection Agency, as Iowa and Nebraska try to force the agency to issue final rules allowing the year-round sale of gasoline blended with 15% ethanol. The attorney general's lawsuit, filed in Iowa federal court, seeks to have the EPA issue regulations allowing E-15 gasoline to be sold during the summer. The EPA passed emergency waivers both last year and this summer allowing for the continued sale of E-15, which is gasoline blended with 15% ethanol, in Midwestern states. In March, the EPA proposed a rule allowing year-round sales of E-15 in Iowa and seven other states, starting in 2024. E-15 sales are restricted in some states over the summer to meet federal clean air standards. Under current regulations, limitations on E-15 are more stringent than those on gasoline blended with 10% alcohol during the summer. The group sent a letter to Regan urging the EPA to finalize its regulations. |
|
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 [email protected] with any questions.
|
|
Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
|
|
|
|
|
|
|
