#WhatsThePlanEPA

ALERT Project v. EPA, Jan. 2020

A challenge to the EPA’s dangerously outdated plan for offshore oil spills.

The ALERT Project/ Earth Island Institute, Alaska Community Action on Toxics, Cook Inletkeeper, Kindra Arneson and Rosemary Ahtuangaruak filed their dispersant rulemaking lawsuit, called ALERT Project v. EPA, against the U.S. Environmental Protection Agency and its Administrator in the U.S. District Court for the Northern District of California in January 2020. Center for Biological Diversity is also an organizational plaintiff in the case.

Their complaint has two claims of action over process. 

  • The first claim under the Clean Water Act asserts that the EPA is violating its mandatory duty to maintain an updated national emergency response plan for oil spills (the Plan), based on current science and technology. The existing Plan was last updated 26 years ago – it is unsafe and endangers lives of spill responders and community residents. 
  • The second claim the under Administrative Procedures Act asserts that EPA is violating this law by unreasonably delaying issuance of a final rule for dispersant use and final action on Plaintiffs’ 2012 petition for this rulemaking.

 

The U.S. EPA tried to dismiss the Clean Water Act claim, arguing that “amendments to the Plan are initiated at the discretion of the agency” – essentially at the agency’s whim or pleasure. Plaintiffs opposed the government’s motion to dismiss their first claim. EPA replied to the Plaintiffs’ motion. U.S. Magistrate Judge William Orrick scheduled to consider the matter on May 6, 2020. 

Meanwhile, the fossil fuel industry tried to intervene in the case as defendants, joining the U.S. EPA in trying to have the first claim of action dismissed. The Court initially proposed to allow the fossil fuel industry to intervene but reversed itself after Plaintiffs opposed the motion to intervene. The Plaintiffs claimed that the fossil fuel industry could not claim material harm based on the content of the rulemaking, when the Plaintiffs had only claimed the process is violated; i.e., that EPA is in violation of its mandatory duty under the Clean Water Act and that EPA has unreasonably delayed issuing its final rules governing dispersant use. Judge Orrick scheduled to consider this matter of on May 13, 2020.