News & Updates
Conference of Western Attorneys General
August 30, 2023
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Attorneys General urge for stricter rules of recycling facilities
The attorneys general of the States of California, Maryland, Massachusetts, and the District of Columbia are co-leading a coalition of 15 attorneys general including the Attorneys General of the States of Connecticut, Hawaii, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin. The coalition urges the U.S. Environmental Protection Agency (EPA) to strengthen its proposed rule for advanced recycling facilities.
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ENDANGERED SPECIES ACT (ESA) |
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Federal officials deny the ESA shield for vulnerable Alaskan wolves
The Fish and Wildlife Service (FWS) announced it was denying Endangered Species Act (ESA) protections for the Alexander Archipelago population of gray wolves. Acting 12 years after first petitioning to list the subspecies as threatened or endangered, the FWS found that the wolves in southeast Alaska qualified as a distinct population segment. After clearing the first ESA hurdle, it was determined that the wolves were not in sufficiently dire straits to require listing. The Center for Biological Diversity and Greenpeace petitioned the FWS in 2011 to list the wolf as threatened or endangered. In 2016, the FWS concluded the wolf did not warrant ESA listing. The Center for Biological Diversity, Alaska Rainforest Defenders, and Defenders of Wildlife followed up with a second petition in 2020.
The overall species assessment included a survey of Indigenous knowledge related to the wolf, compiled in a stand-alone report that's packed with material not often seen in ESA decision-making.
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Federal Court Addresses the U.S. Fish and Wildlife Services Denial of the Critical Habitat Designation for Rusty Patched Bumble Bee
The United States District Court for the District of Columbia in a Memorandum Opinion addressed an issue arising under the Endangered Species Act (ESA). The question considered was whether the United States Fish and Wildlife Service (US FWS) should have designated critical habitat for the Rusty Patched Bumble Bee. The ESA requires that when a species is placed on the “List of Endangered and Threatened Wildlife” the Service designates any habitat of such species which is then considered to be critical habitat.
The Natural Resources Defense Council, Center for Biological Diversity, and Friends of Minnesota Scientific and Natural Areas challenged the decision not to designate critical habitat for the Bee. The Service was argued to have not established that the Bee would not benefit from the designation. The Service responded that even if there was standing, the critical habitat decision was reasonable and supported by the record.
The Court held that the Service could forego designating critical habitat for the Bee only if the designation would not be beneficial for the species. Findings by the Court included a granted motion for summary judgment and vacated and remanded the critical habitat designation.
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Congress and the Endangered Species Act
This year marks the 50th anniversary of the Endangered Species Act. It was the most comprehensive legislation for preserving species at risk of extinction and made the United States, making the United States a global leader in environmental law and in the environmental space. But currently, Congress is divided over how far its protections should go and if changes are needed.
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ESA & THE CLEAN WATER ACT |
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The Endangered Species Act and Clean Water Act are Addressed by the Federal Court Challenge to the U.S. Environmental Protection Agency
The United States District Court for the District of Arizona addressed an alleged violation by the United States Environmental Protection Agency (EPA) of the Endangered Species Act (ESA). The Center for Biological Diversity (CBD) filed a Complaint for Declaratory Injunctive Relief against EPA arguing that the agency had failed to consult the ESA on the effects on wildlife of the federal agency’s revisions to all aquatic life water quality for the heavy metal cadmium. The CBD stated that the alleged failure put greater risks to certain endangered species.
The EPA responded that the ESA only requires that it consult later when states apply to adopt or modify the EPA’s recommended Water Quality Control (WQC). The Order states that the EPA’s position is “defensible.” However, it agrees with CBD that issuing a recommended WQC is an “action” under the ESA. As a result, the Court holds that consultation with the Services is required. EPA’s 2016 chronic freshwater 304(a) cadmium WQC is vacated and remanded.
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A Supreme Court decision forced EPA and the Army Corps of Engineers to revisit earlier mandates
The vast majority of the nation’s wetlands are no longer protected by the Clean Water Act. The EPA and the Army Corps of Engineers have determined this in their new definition of Waters of the United States that was released in response to a Supreme Court decision earlier this summer. Currently, only wetlands with relatively permanent surface water connections to larger waterways will be regulated by the federal government. The current administration has come under fire for temporarily halting its process of determining whether proposed projects will affect regulated wetlands. Those jurisdictional determinations will now resume with the release of the new rule.
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National Oceanic and Atmospheric Administration proposes a long-awaited marine sanctuary off of the California Coast
A plan to create a new marine sanctuary in central California has long been sought by Native American advocates, protecting certain waters as offshore wind development is expected. The final proposal for the Chumash Heritage National Marine Sanctuary would protect roughly 134 miles of coastline and 5,617 square miles of coastal waters — less than some local tribal proponents had hoped for while leaving open an area for offshore wind projects.
The NOAA proposal also includes "collaborative management" with local Native American tribes, laying out several mechanisms to seek input on decision-making and cultural programming for the sanctuary. That would include the creation of an Intergovernmental Policy Council, using joint project agreements and an advisory board.
Under the National Marine Sanctuaries Act, waters are protected by regulations that designate what actions are and are not allowed. Despite the potential gap created by offshore wind infrastructure, NOAA said its plan benefits habitat connectivity as the sanctuary sits adjacent to both the Monterey Bay Sanctuary to the north and the Channel Islands National Marine Sanctuary that sits south of it. It’s also a site that is culturally important to the Chumash people and other tribes of California. The Central Coast has pursued this sanctuary designation for decades.
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Attorney General Todd Rokita calls on federal officials to halt the expansion of the Fish and Wildlife Service
Attorney General Todd Rokita is taking measures against federal plans to expand the scope of the U.S. Fish and Wildlife Service. The proposed rules would enable the Fish and Wildlife Service to designate land parcels as indispensable habitats for endangered species, even if the species did not inhabit the parcels.
In a letter, Attorney General Rokita and other state attorneys general press federal officials to withdraw plans to expand. Attorney General Rokita has a long history of opposing matters involving habitat and wildlife. When he served in Congress, Attorney General Rokita fought federal policies that drained Lake Freeman and Lake Shafer in northwestern Indiana as part of U.S. Fish and Wildlife efforts to protect endangered mussels in Tippecanoe River.
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Connecticut Attorney General Tong released a statement on public utilities regulatory authority
Attorney General William Tong released the following statement following the final decision by the Public Utilities Regulatory Authority (PURA) rejecting all but $23 million of a bloated and unsupported $130.7 million rate hike sought by United Illuminating (UI). The approved final decision represents an approximate 6.6 percent increase in rates compared to UI’s proposed 35 percent increase. Attorney General Tong welcomed PURA’s decision to impose a $2 million annual penalty he sought for the company’s ongoing failure to remediate the former English Station power plant in New Haven. Attorney General Tong also praised UI employees, including the line workers tasked with maintaining and restoring power across the state.
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Breach of trust claims for damages alleged to arise from the BIA’s failure to recognize tribal government during internal tribal leadership were dismissed because filed during other litigation presenting similar claims, and for failure to identify a money mandating source of law imposing specific trust duties upon the BIA, with exception of claim alleging the BIA leased housing to non-members and never collected payments in violation of the Indian Long-Term Leasing Act.
Over the objections of one tribe, the Court approves a negotiated decree governing the allocation, geographic scope, reporting requirements, and management of the commercial and subsistence fishing of five tribes in the Great Lakes.
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Tribal sovereign immunity barred claims against the Tribe and Tribal employees enforcing Tribe’s Covid-19 mask policy.
State statutory requirement that county welfare department make inquiry to extended family members regarding Indian status of child in department’s “temporary custody” did not apply to children taken into custody pursuant to a protective custody warrant.
The Supreme Court’s holding in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), did not establish a
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new constitutional right that would trigger a new, one year period for enrolled member of Quapaw Nation to seek habeas corpus relief from a state court conviction for murder within the boundaries of the Muscogee (Creek) Nation Reservation eleven years earlier.
Tribal sovereign immunity did not bar claims against members of the tribal council for injunctive relief and damages made by the plaintiff borrowers based on the loans issued to the plaintiffs online while located on non-tribal lands, and the council members could not compel arbitration given that the lending agreements were unenforceable because of the required prospective waiver of the borrowers’ state substantive rights and remedies that violated public policy.
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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 [email protected] with any questions.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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