Length: 15103 words comment: Operational Encroachment: Woodpeckers and their Congressman name



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n44. Ohio v. United States Dept. of Energy, 503 U.S. 607 (1992). Six months after the decision in Ohio, Congress passed the Federal Facilities Compliance Act in the hopes of removing any ambiguity with regard to Congress' intention to waive sovereign immunity.
n45. 42 U.S.C. 6972. See also Randall S. Abate & Carolyn H. Cogswell, Sovereign Immunity and Citizen Suit Enforcement of Federal Environmental Laws: A Proposal for a New Synthesis, 15 Va. Entl. L. J. 1 (1995).
n46. Ohio, 503 U.S. at 618.
n47. Pub. L. No. 102-386 101, 106 Stat 1505 (codified as amended at 42 U.S.C. 6901 (1994)); 42 U.S.C. 6961; 1992 Acts House Report No 102-111 (May 02, 1991); 138 Cong. Rec. H9135-2 (Conference Report on H.R. 2194, Federal Facility Compliance Act of 1992) (remarks of Mr. Swift):

Mr. Speaker, this legislation has a long and complex history. In 1976, Congress mandated that federal facilities comply with our Nation's hazardous waste laws in the same manner and to the same extent as any other person, including private entities and State and local governments. Unfortunately, at the urging of the Justice Department on behalf of the Departments of Energy and Defense, over a period of time, some Federal courts indicated that the waiver of sovereign immunity in the 1976 law was not sufficiently clear.


n48. See generally 138 Cong. Rec. H9135-2 (1992) (Conference Report on H.R. 2194, Federal Facility Compliance Act of 1992).
n49. 138 Cong. Rec. H9135-2 (1992) (remarks of Congressman Dingell):

Federal facilities are among this country's worst environmental offenders. Their long history of noncompliance with the country's environmental laws, particularly the hazardous waste management requirements under RCRA, has resulted in numerous lawsuits by states against the federal government seeking to compel compliance with the law and remediation of the severe environmental problems they have caused. This bill reaffirms Congress' original intent that federal facilities not only must comply with all of the procedural and substantive requirements of our federal and state hazardous waste laws, but they, like everyone else, are also subject to fines and penalties for violations of these laws. In doing so, Congress is responding to the recent Supreme Court decision in United States Department of Energy v. Ohio, et al., and making the waiver of sovereign immunity as clear and unambiguous as humanly possible.


n50. Id.
n51. Id. (remarks of Mr. Bilrakis):

...The Federal, State, interstate, and local substantive and procedural requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature or are imposed for isolated, intermittent, or continuing violations. The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement (including, but not limited to, any injunctive relief, administrative order or civil or administrative penalty or fine referred to in the preceding sentence, or reasonable service charge)... Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief... .

See also, RCRA, 42 U.S.C.S. 6961 (2001).
n52. See supra notes 40-42.
n53. See supra note 42.
n54. See supra note 42. See also Testimony by The Sierra Club, Hawaii Chapter, supra note 12.

On the federal level, over a dozen environmental statutes allow citizens access to the courts to enforce statutory requirements against the regulated community for its violations and the government for its failure to act properly. Most of these laws allow the courts to issue orders, impose fines and allow community... Congress recognized that the government did not have sufficient time or resources to provide sufficient enforcement of these new, comprehensive environmental laws. In addition, government bureaucracy may interfere with prompt enforcement action. These citizen suit provisions have proven to be necessary not only when the government is unable to enforce the law, but also when it is unwilling to do so...Thus, where the government is unwilling or unable to aggressively enforce the law, citizen suits are needed to fill the void. Finally, citizen suits are necessary because, too often, government itself violates the law. The federal government, for example, is a major violator of its own laws. Private parties are the only effective means of ensuring governmental compliance with environmental laws. Citizen suits have proven to be remarkably successful. Of 507 sampled citizen suit cases, the defendant prevailed in only four... .

Testimony by The Sierra Club, Hawaii Chapter, supra note 12 (emphasis added).
n55. See supra note 20.
n56. See, e.g., Toby Eglund, Vieques and Okinowa: Allies Against U.S. Troops, The Gully On-line Magazine, August 7, 2001 at http://www.thegully.com/essays/puertorico/000807pr<_>okin.html. This article was written in light of the tragedy at Vieques when an errant missile killed a civilian observer:

As the U.S. Navy launches a second round of bombing exercises in the Puerto Rican island of Vieques, anti-Navy activists there are finding allies in Okinowa, Japan, where pacifist and environmental groups are renewing demands for a reduction of U.S. bases and troops. Japanese and Puerto Rican activists are developing common strategies to oppose bombings on both islands... In Vieques, the U.S. Navy occupies two-thirds of the 52 square mile island expropriated from residents in 1941. Vieques residents have a variety of complaints, ranging from errant missiles, environmental damage, an elevated cancer rate, and destruction of tourism... . Okinawans share similar concerns, though the military presence has helped their economy ... the recent case of a Marine entering a house and molesting a sleeping 14-year-old girl has inflamed anti-American sentiment.


n57. Id. See also Letter from Damaso Serrano Lopez, Mayor-elect of Vieques to President Clinton (Nov. 10, 2000), available at http://www.counterpunch.org/pipermail/counterpunch-list/2000-November/003604.html:

My name is Damaso Serrano Lopez and I am the Mayor-elect of Vieques, Puerto Rico. I won Tuesday's election with 63.8% of the votes for a four year term as Mayor of Vieques. My campaigning focused on achieving the immediate and permanent cease and desist of all military activities in Vieques, which is the primary goal and demand of our people... See supra note 26.


n58. See supra note 26.
n59. "Kahuna - priest, skilled person." The University of Hawaii at Hilo, The Basic Hawaiian Dictionary, at http://www.olelo.hawaii.edu/eng/dictionary/basic.php (last visited March 18, 2002).
n60. For a history of Kaho'olawe, see generally Protect Kaho'olawe Ohana, Kaho'olawe Island Reserve, at www.kahoolawe.org (last visited March 18, 2002).
n61. Id.
n62. Aluli v. Brown, 437 F. Supp. 602 (D.Haw.1977), aff'd in part, rev'd in part, 602 F.2d 876 (9th Cir. 1979).
n63. Id. at 605.
n64. Id.
n65. See supra note 60.
n66. Aluli, 437 F. Supp. at 605.
n67. Id. at 605.
n68. Id. at 606.
n69. See supra note 60.
n70. Id.
n71. Aluli, 437 F. Supp. at 602.
n72. The following listed persons were parties to the litigation: Noa Emmett Aluli, Emma De Fires, Paul Fujishiro, Warren Mills Haynes, Jr., George Helm, Charles Kauluwehi Maxwell, Sr., Karl Anthony Mowat, Adrian Nacua, Kathryn B. Ochwat, Walter S. Ritte, Loretta Ritte, Herbert Santos, Richard W. Sawyer and Protect Kahoolawe Association, Plaintiffs, v. Harold Brown, Secretary of Defense, W. Graham Claytor, Secretary of the Navy, James L. Holloway, Chief of Naval Operations, Ralph S. Wentworth, Jr., Commandant of the 14th Naval District, and Thomas B. Hayward, Commander-in-Chief, Pacific Fleet, United States Navy, Defendants. Id.
n73. Id.
n74. Federal Water Pollution Act 505, 33 U.S.C. 1365 (1994).
n75. Aluli, 437 F.Supp. at 608.
n76. Id.
n77. Id.
n78. National Historic Preservation Act, 16 U.S.C. 470 (1994). See Aluli, 437 F. Supp. at 608.
n79. See Aluli, 437 F. Supp. at 610-11.
n80. Id. at 611.
n81. Id.
n82. Id.
n83. 478 F. Supp. 646 (D.P.R. 1979).
n84. The following listed persons were parties to the litigation: Miguel Gimeenex Munoz, Secretary of Justice, Commonwealth of Puerto Rico, Rio Piedras, P. R., Gerardo Carlo, Asesor Legal, La Fortaleza, San Juan, P. R., Peabody, Rivlin, Lambert & Meyers, Lewis A. Rivlin, Washington, D.C., Judith Berkan, Pedro J. Saadee, Llorens, Servicio Legales, Pedro J. Varela, Hato Rey, P. R., Jorge L. Ceordova, Jr., Washington, D.C., (of counsel), for plaintiffs. Miguel Gimcnez Munoz, Secretary of Justice, Commonwealth of Puerto Rico, San Juan, Puerto Rico; Gerardo A. Carlo, Special Counsel to the Governor, Commonwealth of Puerto Rico, La Fortaleza, San Juan, Puerto Rico; Lewis A. Rivlin, John A. Hodges, Sanda M. Kayden, Peabody, Rivlin, Lambert & Meyers, Washington, D.C.; Timothy L. Harker, Washington, D.C.; Jorge L. Cordova, Charles R. Work Collister Johnson, Theodore A. Miles, Washington, D.C. (of counsel), for plaintiffs Carlos Romero-Barcelo, Governor of Puerto Rico, et al. Pedro J. Saade Llorens, Servicio Legales, Santurce, Puerto Rico, for plaintiffs-intervenors Zenon, et al. Judith Berkan and Pedro J. Varela, Hato Rey, Puerto Rico, for plaintiffs Medina, et al. Wilfredo A. Geigel, Santurce, Puerto Rico, for plaintiff-intervenor Fundacion Arqueologica, Antropologica e Historica de Puerto Rico.
n85. Romero-Barcelo, 478 F. Supp. at 646.
n86. Id. at 652. "Vieques is a long narrow island located approximately 6 miles off the Southeastern coast of Puerto Rico...it is nearly 20 miles long and 4.5 miles wide at its widest point." Id. at 654. It is home to the Navy's Atlantic Fleet Weapons Training Range and the Marine Corps' Camp Garceia.
n87. Id. at 651.
n88. Id. at 651-2. The main thrust of Plaintiff Romero-Barcelo's allegations in Civil Number 78-323 is related to claims of violation by Defendant Navy, et al. [hereinafter Navy], of various environmental laws. These claims include the alleged failure of Navy to prepare and file an environmental impact statement pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as well as other substantive offenses thereunder, and alleged violation of the Federal Water Pollution Control Act of 1972 (33 U.S.C. 1311), the Water Pollution Control Act of Puerto Rico (24 L.P.R.A. 591, et seq.); the Noise Control Act of 1972 (42 U.S.C. 4901 et seq.) And the General Nuisance Law of Puerto Rico (33 L.P.R.A. 1365); the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); the Endangered Species Act of 1973 (16 US.C. 1531 et seq.); the National Historic Preservation Act (16 U.S.C. 470 et seq.), and Executive Order 11593 (36 F.R. 8921); the Coastal Zone Management Act (16 U.S.C. 1451 et seq.); the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361, et seq.); the Rivers and Harbors Act of 1899 (33 U.S.C. 407); the First and Fifth Amendments to the Constitution, and Presidential Orders and Congressional restrictions relating to the transfer of military activities form the Island of Culebra, another off-shore municipality of the Commonwealth.
n89. Romero-Barcelo, 478 F. Supp. at 670. Among these claims were those alleging various nuisance and tort claims in which included no waivers of sovereign immunity that would allow the claims to survive procedurally.
n90. Id. at 670 n.51. See e.g., Federal Water Pollution Control Act 505, 33 U.S.C. 1365; Section 11 of the Endangered Species Act, 16 U.S.C. 1540(g)(1); Section 70002 of the Resource Conservation and Recovery Act, 42 U.S.C. 6972; and Section 304 of the Clean Air Act, 42 U.S.C. 7604.
n91. Romero-Barcelo, 478 F. Supp. at 663; 33 U.S.C. 1251 - 1376.
n92. Romero-Barcelo, 478 F. Supp. at 663.
n93. Id.
n94. See id. The court took judicial notice of the fact that the Municipality of Vieques was one of 25 coastal municipalities that, at the time of the lawsuit, continued to discharge municipal wastes directly into the coastal zone. This information was provided, perhaps unwittingly, by plaintiff Environmental Quality Board.
n95. Romero-Barcelo, 478 F. Supp. at 688; 16 U.S.C. 1531.
n96. Romero-Barcelo, 478 F. Supp. at 688.
n97. Id.
n98. Id. at 690.
n99. Id.
n100. Id.
n101. Id. at 653-54. The Puerto Rican government had been pursuing the expulsion of the Navy from Vieques for some time prior to the lawsuit. See, e.g., Hearing on Atlantic Fleet Training and Readiness Before the Subcomm. on Military Readiness of the House Armed Services Committee, 106th Cong. (1999), available at 1999 WL 753942 (F.D.C.H.).
n102. Id.
n103. Hearing on Atlantic Fleet Training and Readiness Before the Subcomm. on Military Readiness of the House Armed Services Committee, 106th Cong. (1999), available at 1999 WL 753942 (F.D.C.H.) (comments of Carlos A. Romero-Barcelo). His comments were as follows:

In 1977 in my first term as governor in Puerto Rico, I filed action in the U.S. District Court to enjoin the U.S. Navy from using Vieques for weapons training purposes, citing violations of federal and Puerto Rican statutes, executive orders, and constitutional provisions. I filed suit because all of the conversations and all the attempts for discussion with the Navy were fruitless. I kept getting the run around and the run around and the run around...and I finally had to file a lawsuit.

Id. (emphasis added).
n104. Id.

We want to make sure that the safety, and the security and the well being of the 9,311 citizens on Vieques is an overriding concern in all presidential and congressional deliberations on this issue. I directly appeal to your sense of justice, for equality and fair play that is such an integral part of American heritage. Id.; see also supra note 52 (reinforcing this sentiment and notable absence of concern for the environment).


n105. Romero-Barcelo v. Brown, 478 F.Supp 646, 705 (D.P.R. 1979) (finding that: 1) defendant Navy was in violation of the Federal Water Pollution Control Act, by reason of its lack of a NPDES permit to cover the occasional release or firing of ordinance into the waters of Vieques, 2) that defendant Navy was in violation of Executive Order 11593, supra note 88, by reason of its failure to nominate to the Secretary of the Interior various sites in Vieques that may be eligible for listing in the National Register of Historic places, and/or by its failure to seek the opinion of the Secretary respecting said eligibility, and 3) that defendant Navy was in violation of the National Environmental Policy Act by its failure to file an environmental impact statement in connection with its activities in and around Vieques.)
n106. Id. at 707-08.
n107. Id. at 706.
n108. Id. at 707.
n109. Id.
n110. David Roberts and Lauren Levin-Epstein, U.S. Navy in Vieques: Shape Up or Ship Out, available at http://www.coha.org/opeds/usnavy<_>vieques<_>pr.htm (last visited March 18, 2002). See also, Eglund, supra note 56.
n111. Letter from Damaso Serrano Lopez, Mayor Elect of Vieques to President Clinton (Nov. 10, 2000), available at http://www.counterpunch.org/pipermail/counterpunch-list/2000-November/003604.html.
n112. Federal News Service, FDCH Political Transcripts (June 27, 2001) (House Armed Services Committee).
n113. Id.
n114. Vieques Conservation and Historical Trust v. George Bush, 140 F. Supp. 2d 127 (D.P.R. 2001).
n115. Id. Reference case caption for full list of plaintiffs.
n116. Id. at 128.
n117. Id. at 129.
n118. Id. at 130.
n119. Id. at 129.
n120. Id. at 130.
n121. Id. at 134.
n122. Id. at 134-35.
n123. 152 F. Supp. 2d 155 (D.P.R. 2001).
n124. Id. Reference case caption for full list of parties.
n125. Id. at 159.
n126. Id. at 159.
n127. Id. at 157.
n128. Id. at 162.
n129. Id. at 162.
n130. Id.
n131. Id. at 163.
n132. Id.
n133. 437 U.S. 153 (1978).
n134. Id. at 194-95.
n135. Id. at 158.
n136. Id. at 162.
n137. Id. at 193-94.
n138. Id. at 184.
n139. Id. at 186-87.
n140. Id. at 188.
n141. Id. at 196.
n142. Sierra Club v. Lehman, 825 F.2d 1366 (9th Cir. 1987). This case was brought by the Sierra Club ("Sierra") and Nevada Outdoor Recreational Association against the Secretary of the Navy and the Secretary of Transportation, seeking to stop supersonic flights originating from Naval Air Station (NAS) Fallon by the Navy over central Nevada, sixty miles east of Carson City. Sierra claimed that the Navy violated NEPA by failure to prepare an EIS in connection with its "modification" of existing operations. The court rejected this argument, holding that the "modification" was not a "major federal action significantly affecting the human environment," and therefore no EIS was required. The district court granted summary judgment for defendant Navy and the circuit court affirmed.
n143. Pyramid Lake Paiute Tribe v. United States Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990).
n144. Id.
n145. Id. at 1412.
n146. Id.
n147. Id.
n148. Id.
n149. Id. at 1412-13.
n150. Id. at 1412.
n151. Id. at 1413.
n152. Id.
n153. Id. at 1414.
n154. 437 U.S. 153, 98 S.Ct. 2279 (1978).
n155. Pyramid Lake Paiute Tribe v. U.S. Dep't of Navy, 898 F.2d 1410, 1417 (9th Cir. 1990).
n156. Id. at 1418.
n157. Id. at 1417-18 (quoting TVA v. Hill, 437 U.S. at 181-83) ("Congress carefully omitted from the final version of the Act all proposed language which tempered federal agencies duty to conserve (e.g., language which extended the duty only "insofar as is practicable and consistent with their primary purposes')"). Id. The court also noted that the "preserved at all costs" stance by Congress might be interpreted to be softened considering the availability of exceptions incorporated into the statute after TVA by the subsequently created Endangered Species Committee. This proposition is questionable, however, because any discretion to allow for endangerment of a species habitat or existence is inimical to the whole purpose of having a statute to protect them. Additionally it raises the very basic question as to who is to make those decisions. Injecting such arbitrariness seems to undercut the very notion of protection.
n158. Stephen B. Goldberg Et Al., Dispute Resolution: Negotiation, Mediation, and Other Processes, at 496-98 (3rd ed. 1999).

1. Environmental mediation ought to begin with some conflict assessment that leads to the selection of a manageable number of stakeholder representatives, procedural ground-rules, and the selection of a neutral party (i.e., facilitator, mediator, etc.) acceptable to stakeholders. That is, there is a pre-mediation phase during which some agency, firm, or official provides credible auspices under which potential parties to a mediation can be canvassed. These private conversations are crucial to getting the right parties to the table. There is disagreement on the ideal number of participants, the best way of choosing participants (i.e. self-nomination verses invitation), the best way of selecting (and paying) the mediator, and the need for the mediator to perform all the pre-negotiation tasks. 2. The goal is to get as many legitimate representatives of stake holding parties as possible to endorse the mediation effort and to ensure that those who have the power to block the implementation of an agreement participate directly. There is disagreement about how best to handle representation of diffuse or hard-to-represent interests (like future generations). 3.Environ-mental mediation must take place "in the sunshine." That is, environmental mediation cannot be conducted in secret. Unless the process is transparent, the results are not likely to be credible. Moreover, when public officials are involved, all open meeting, public notice, and freedom of information requirements must be met. 4. The product of almost all environmental negotiations is rarely a legally binding agreement. 5. The result of environmental mediation in a particular case does not set a precedent. 6. Technical and scientific issues need be dealt with as part of environmental mediation. 7. Almost any multi-party, multi-issue environmental dispute can be mediated as long as question of fundamental rights do not need to be decided.


n159. Id. at 8. The following is a list of justifications for alternative dispute resolution (ADR): 1) To lower court caseloads and expenses; 2) To reduce the parties' expenses and time; 3) To provide speedy settlement of those disputes that were disruptive of the community or the lives of the parties' families; 4) To improve public satisfaction with the justice system; 5) To encourage resolutions that were suited to the parties' needs; 6) To increase voluntary compliance with resolutions; 7) To restore the influence of neighborhood and community values and the cohesiveness of communities; 8) To provide accessible forums to people with disputes, and; 9) To teach the public to try more effective processes than violence or litigation for settling disputes.
n160. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Stevens J. concurring).


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