Judge leans in favor of ALERT at hearing on summary judgment

EPA files its opposition to ALERT’s MSJ and its own Cross-Motion for Summary Judgment

May 20, 2021.  In this dual-purpose filing, EPA first countered, and then asked the Court to deny, the plaintiffs’ requests for summary judgment on our unreasonable delay claim and our injunctive relief. Then EPA asked the court for summary judgment in its favor – basically the opposite of everything we wanted. EPA’s filing raises three key questions:

First, whether we can preserve our unreasonable delay claim under the Administrative Procedure Act, given our win on the Clean Water Act claim (that EPA has a nondiscretionary duty to update the NCP based on current science).

Second, if we prevail on one or both legal claims, whether EPA will be required to reissue its 2015 proposed rule to accommodate the current science, or whether it will only be required to issue a final rule – by a date certain. 

Third, whether, having unilaterally decided to split its final rule into two parts, EPA can delay until 2023 issuing a final rule on the most outdated parts of the NCP, which are literally based on last century’s science.  These parts address the authorization for use of dispersants and other chemical agents, and the data requirements for listing products on the Product Schedule. As for the reason for the delay, EPA explained a litany of excuses reminiscent of “the dog ate my homework.” For example, one excuse was that the oil industry had blocked access to the reference oils for the toxicity and efficacy tests that are required for product listing, and thus had stalled the entire rulemaking process. (Recall that APA stated in its unsuccessful motion to intervene that its oil and gas industry members benefited from “maintaining the status quo.” April 28, 2020) 

However, EPA is ready to proceed with a final rule on just one part: the brand-new environmental monitoring requirements for “atypical dispersant use.” This monitoring requirement sets the stage for a repeat of the 2010 BP Deepwater Horizon double disaster when, after a record volume of oil was released, record amounts of toxic oil-based dispersants were released daily for three months on the surface oil and subsurface oil gushing out of the wellhead. The long-term health consequences of such use were devastating for humans and wildlife and are still unfolding. 

EPA files a final brief supporting for its Cross-Motion for Summary Judgment

June 17, 2021.  Claiming that the plaintiffs failed to demonstrate that the NCP was “inefficient or ineffective,” EPA presented a counter-intuitive argument in its second brief supporting its cross-motion for summary judgment. EPA argued that plaintiffs’ willing participation in the rulemaking process demonstrates that the NCP is not inefficient or ineffective. According to EPA, the NCP is working, because updates are part of the process that makes the rules efficient and effective! Never mind all the science showing demonstrable harm to first responders, children and families, and wildlife from dispersants and from oil and dispersants combined.

In support of its proposed remedy, EPA argued that it should not be prevented from splitting the rulemaking and releasing its final rules for monitoring atypical dispersant use. EPA claimed the monitoring provisions were not dependent on the availability of reference oils because the products to be monitored were already listed on the Product Schedule. However, the atypical use itself – subsea application of dispersants – is not yet included in the NCP. There are no rules for such application, and EPA wants to put off finalizing this part of the rulemaking until 2023. EPA has the cart two years ahead of the horse!

Further, EPA flat challenged the court’s authority to require the agency to reissue the 2015 proposed rulemaking to accommodate the seven years of new science that have accrued during EPA’s foot-dragging on issuing a final, up-to-date NCP rule as the plaintiffs have requested. EPA claimed the court cannot direct the substance of the EPA rulemaking.

EPA splits the final rule, and forges ahead with rules only for subsea dispersant application!

July 6, 2021.  At 6:30 PM on the eve of the court hearing on summary judgment, EPA informed the Court that it split the final rule into two parts and released a pre-publication notice for only the new rules on environmental monitoring for atypical dispersant use. In its pre-publication notice, EPA admits that the large volume of dispersant used, the daily applications for months, and the subsea direct injection, all of which first occurred during the 2010 BP DWH disaster response, were “neither envisioned nor addressed” in the current outdated NCP rules. By splitting the rules in two, EPA postponed a final rule on the main issue of whether atypical dispersant use should even be allowed in the first place while rushing ahead with a rule for “comprehensive environmental monitoring” of such use – which envisions precisely this use. Further EPA’s rule would allow unlimited amounts of dispersants to be used on subsurface oil spills and the oil spiller to conduct monitoring for impacts for the spill that it created. No conflict of interest there…

Further, if comprehensive environmental monitoring is required for subsea dispersant use, it would make sense for EPA to require it anytime and anywhere dispersant is used in the new rules. But no: in its pre-publication notice, EPA disagreed with “extending these new specific requirements to all instances of dispersant use,” claiming that the On-Scene Commander (OSC) already has the authority to require such monitoring. But the OSC’s authority would also extend to subsea dispersant use, should it be authorized in the final rule. EPA’s temerity on this point exposes this partial rule for what it is – official permission for the oil and gas industry to use an apparent blessing of subsea dispersant injection while buying the oil industry time as EPA continues to avoid doing what it is legally required to do; i.e., determine what products, how much of a product, and where such products can be used safely in waters of the U.S.

Judge leans in favor of ALERT at hearing on summary judgment

July 7, 2021.  District Judge William Orrick opened the hearing by saying he was “delighted” by EPA’s progress towards a final rule and that he was “leaning towards approving” the plaintiffs’ summary judgment on the merits and towards EPA’s proposed remedy of postponing the final rules until 2023. If the final decision reflects this intent, it will mean that our Clean Water Act win remains intact, and we would also prevail on our unreasonable delay claim.

As for our request that EPA reissue the proposed rule, our lead counsel Claudia Polsky argued      against a split ruling, stating, “it’s not the monitoring that causes harm, it’s the use.” She raised  three points to counter the split ruling and promote reissuing a comprehensive rulemaking to accommodate the new science. First, if EPA can’t obtain the reference oils, then perhaps EPA needs to rethink this requirement as it is no guarantee that this oil would be available by 2023 either. Second, a split rulemaking is a significant deviation from the initial proposal and that, while plaintiffs have been privy to this plan in the confidential context of settlement discussion, it will surprise the public. And third, it would be most efficient and effective for everyone to include the past seven years (and counting), of science that has been published during the years of EPA’s unreasonable delay. In short, the plaintiffs have waited a long time for this rulemaking, yet it is more important to us to have EPA do it right than to do it piecemeal.

Now we await the Judge’s decision; he indicated we would not have long to wait.