ALERT Project v. EPA, Jan. 2020
A challenge to the EPA’s dangerously outdated plan for offshore oil spills.
January 30, 2020. Plaintiffs—ALERT Project/ Earth Island Institute, Alaska Community Action on Toxics, Cook Inletkeeper, Center for Biological Diversity, Rosemary Ahtuangaruak, and Kindra Arnesen—filed a lawsuit against the U.S. Environmental Protection Agency and its Administrator in the U.S. District Court for the Northern District of California. The UC Berkeley Environmental Law Clinic is the lead counsel, and the Center for Biological Diversity is co-counsel in the case.
Our complaint has two distinct claims, arising under two different statutes. Both claims relate to EPA rules governing dispersant use, which are contained in the National Contingency Plan (NCP or Plan). The NCP—which is required by the federal Clean Water Act— is the nation’s emergency response plan for oil spills. EPA proposed to update the rules governing dispersant use in 2015 through a public process known as a rulemaking. The updated proposed rule was never finalized. The existing rules governing dispersant use are very outdated: they were last modified 26 years ago and are based on last century’s science and technology.
- Our first claim under the Clean Water Act asserts that EPA is violating its mandatory duty to maintain an updated oil spill emergency response plan that is based on current science and technology.
- Our second claim under the Administrative Procedures Act asserts that EPA is violating this law by its unreasonable delay in issuing a final rule for dispersant use and taking final action on the Plaintiffs’ 2012 and 2014 petitions for this rulemaking.
Clean Water Act claim timeline.
March 31, 2020. U.S. EPA filed a brief urging the court to dismiss (i.e., eliminate) our Clean Water Act claim, arguing that “amendments to the NCP are initiated at the discretion of the agency” – meaning at the agency’s whim or pleasure. EPA argued that a “date-certain deadline . . . is necessary to constitute a nondiscretionary duty.”
April 14, 2020. Plaintiffs opposed the government’s brief, arguing that EPA cannot have unlimited discretion over updates to the NCP (or, as here, a lack of updates) when the Clean Water Act requires “efficient and effective action to minimize harm from oil and hazardous substance discharges . . .” In this case, the Plaintiffs contend that EPA has already determined that amendments to the NCP are advisable and, thus, is now under a nondiscretionary (mandatory) duty to update the Plan in accordance with improvements in scientific and technological knowledge.
April 23, 2020. EPA replied to the Plaintiffs’ response, arguing that because the Plaintiffs have failed to identify a nondiscretionary duty, there is no waiver of sovereign immunity under the Clean Water Act to allow this claim against the agency. However, the EPA concedes: “It is true that, if the Court were to find that Plaintiffs have identified a nondiscretionary duty, EPA’s liability would be clear since there is no dispute that EPA has not yet finalized a rulemaking process to amend the NCP.”
May 6, 2020. U.S. Magistrate Judge William Orrick considered the matter (at a virtual hearing conducted by Zoom) and verbally indicated that he was tentatively inclined to rule for Plaintiffs. The Court will issue its written decision on the matter.
Fossil fuel industry’s bid to intervene as defendants.
April 7, 2020. Meanwhile, the American Petroleum Institute (API) is trying to intervene in the case as a defendant. API’s members are deeply engaged in the exploration for and development of offshore oil and gas resources and operate drilling units, offshore platforms, and pipelines. Offshore drilling is regulated by the U.S. Department of Interior, not the EPA. Interior’s regulation and oversight of offshore drilling does, however, implicate various EPA regulations, including the NCP.
Before conducting drilling activities under an approved exploration or development plan, a lessee must obtain the Interior Department’s approval of an application for a permit to drill. As a condition for operation, every offshore oil drilling unit, offshore platform, and pipeline seaward of the coastline must have a Department-approved “oil spill response plan.” Each oil spill response plan must contain a “dispersant use plan,” which specifies the inventory and location of dispersants and other agents that might be used in the event of a discharge of oil. A dispersant use plan must be consistent with the National Contingency Plan. The operations of API’s members are, therefore, regulated by the contents of the National Contingency Plan.
April 15, 2020. Plaintiffs filed a response opposing API’s motion to intervene. Plaintiffs argued that the fossil fuel industry could not claim a “significantly protectable interest” in this lawsuit (which is one requirement for intervention), where the current dispute is simply over the timing of an NCP update, rather than about the substance of any new NCP regulation that EPA may issue.
April 28, 2020. The American Petroleum Institute disputed the Plaintiffs’ timing-only claim, arguing that “API is entitled to intervene to protect its members’ interests in maintaining the status quo.” In other words, API would like to keep the 26-year old Plan that allows expedited and unlimited use of dispersants, a product now known to be toxic to people and wildlife.
Judge Orrick declined to hold a hearing on the intervention issue and will instead issue a written decision based on the parties’ briefs.
ALERT v. EPA makes law! Ruling a “game-changer”
June 2, 2020. U.S. Magistrate Judge William Orrick ruled that the Clean Water Act requires the EPA to keep the nation’s oil spill response plans current and effective. New research has linked chemical dispersants, heavily used during the 2010 BP spill response, with long-term illnesses in humans and wildlife. The EPA has failed to consider such “trade-offs” when promoting the benefits of dispersants and instead allows dispersant use based on 26-year-old science. The ruling is a game-changer.
The Court also denied a motion by the fossil fuel industry to intervene in support of the EPA.
These rulings do not resolve our entire lawsuit, however, they do improve our chances of obtaining a timely update to the NCP that takes into account scientific advances and understanding over the last 25 years.
EPA stalls case
July 22, 2020, EPA filed a motion requesting that Judge Orrick reconsider his reasoned ruling on our Clean Water Act claim. EPA claimed that the Judge did not specifically address various issues it raised in its motion to dismiss our case. However, the Judge's written opinion and the hearing transcripts both show that these issues were in fact amply vetted. This seems to be yet another example of EPA stalling despite the urgent need to update the National Contingency Plan for offshore oil spill response actions in order to better protect first responders, the public and wildlife.
Judge rejects reconsideration: stays the course
September 1, 2020. The District Court rejected EPA’s motion to reconsider its motion to dismiss the court’s earlier landmark ruling that required EPA to keep the nation’s oil spill response plans current and effective. In the September ruling, the Judge wrote that “EPA’s arguments amount to an improper repetition of the arguments that it made in its motion to dismiss, which I rejected.” In staying the course, EPA can either go to trial or settle the case. Time will tell what path they choose.
Next step: Motion for Summary Judgement
March 17, 2021. With our Clean Water Act win in hand, our growing legal team – now supported with four Berkeley Environmental Law Clinic students – will file a Motion for Summary Judgment on our remaining “unreasonable delay” claim under the Administrative Procedures Act. This motion allows parties to expedite the resolution of a case where, as here, the outstanding issues are purely legal and there is no factual dispute. We feel confident that Judge Orrick will find in our favor, just as he did when he held that EPA has a firm duty under the Clean Water Act to update our nation’s oil spill emergency response plan based on current science and technology.
ALERT files Motion for Summary Judgment
April 20, 2021. ALERT asked the court for summary judgment in our favor on the matter of the EPA’s unreasonable delay over finalizing rules governing dispersant use. We are also asking for injunctive relief – a Court order – to issue a proposed new rule within 90 days of the Court order, with the hope that EPA will base the rule on the most current science, in particular the emerging science showing long-term harm to people and wildlife. Further, we are asking the Court to order the EPA to provide a written status report of progress within 180 days of the Court order; and to issue a final rule within one year of the Court order. The hearing on the motion is scheduled for July 7, 2021.
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.
EPA pulls a fast one – Issues final rule on monitoring of “atypical dispersant use”
July 27, 2021. Pressed by the likelihood of an unfavorable final court ruling, EPA published its final rule on monitoring atypical dispersant use. The rule announcement reveals that the federal government and oil industry have been ready to go with subsurface dispersant use since 2013! The outdated rules do not authorize such use. The 2015 rulemaking proposed authorizing such use, but final rules have not been issued yet and are part of ALERT’s “unreasonable delay” claim that await the court’s final ruling.
If this doesn’t make sense, it’s because it doesn’t. Consider this: The federal government has allowed the oil and gas industry to expand further offshore into very deep water, into the remote Arctic, and elsewhere, all based on response plans that relied on dispersant use – which is based on scientific testing protocols that were written over a quarter of a century ago. The new science does not support dispersant use. EPA’s new rule on monitoring atypical dispersant use signals that the Biden Administration, like the Trump and Obama Administrations before it, is envisioning exactly such use during the next oil disaster. Unlimited use. Prolonged duration. Subsurface use to support offshore drilling. This fight to ban toxic dispersants is far from over.
August 9, 2021. A federal district court ruled in favor of the public interest by ordering the U.S. Environmental Protection Agency (EPA) to update its decades-old regulations on the use of toxic chemical dispersants in oil spill responses. Specifically, the court ruled that EPA now has a mandatory “duty to update the NCP when there is new information that shows that the current standards for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance pollution are insufficient to safely provide for mitigation of any pollution.” Further, the court ruled that ALERT’s EPA claim did not preclude its “unreasonable delay” claim under a different law and that “EPA’s delay is unreasonable and compelling agency action.”
As to the timeline for the update on authorizing where, when, what, and how much dispersant may be authorized for use based on current science, EPA is now under court supervision to accomplish this by 2023 – with updates on progress every 180 days.
The court victory is a game-changer as it will require the EPA to update its regulations governing oil spill planning and response – and hazardous substance pollution – based on current science. But it is shadowed by a certainty that controversial atypical dispersant use will likely be authorized, especially for offshore well blowouts like the BP Deepwater Horizon or for large oil tanker spills like the Exxon Valdez. EPA signaled with its new monitoring rule that it is envisioning exactly such use during the next large oil disaster.
EPA has thirty days to appeal the court’s ruling.
Latest News From the Lawsuit
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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…
April 20, 2021. ALERT asked the court for summary judgment in our favor on the matter of the EPA’s unreasonable delay over finalizing rules governing dispersant use.…
September 1, 2020. The District Court rejected EPA’s motion to reconsider its motion to dismiss the court’s earlier landmark ruling that required EPA to…
EPA filed a motion requesting that Judge Orrick reconsider his reasoned ruling on our Clean Water Act claim. EPA claimed that the Judge did…