At issue in the litigation is the U.S. Environmental Protection Agency's oil spill prevention program, which is designed to prevent discharges of oil into the waters of the United States, and to contain those discharges if they occur. The oil industry claims that it should only have to take steps to prevent oil spills in certain waters that meet a narrow, hundred-year-old concept of navigability, and that it can legally spill oil into most of the nation's streams and creeks and many of its wetlands.
"The stakes are very high: if the oil industry gets its way, more than half the places where we fish and swim could be fair game for anyone who doesn't want to take basic steps to prevent oil spills," said Jennifer Kefer, an Earthjustice attorney representing the groups. "Basically, the oil industry believes that the vast majority of America's waters do not deserve to be protected from pollution by the Clean Water Act."
Earthjustice, on behalf of the Natural Resources Defense Council (NRDC) and Sierra Club, has intervened in American Petroleum Institute (API) v. EPA and Marathon Oil v. EPA, two related suits in which the oil industry is seeking to weaken the protective measures required by the Clean Water Act. The cases are particularly threatening to clean water protections because they directly attack core regulatory language that defines the waters protected by the federal Clean Water Act across the board, rather than focusing on the application of the Act to particular waters. If this industry motion is successful, it could have an immediate effect on the implementation of the spill prevention program nationwide.
The EPA estimates that approximately 24,000 oil spills occur each year in the United States. More than 70 spills are recorded on an average day, according to the agency. Even though oil spills into the ocean are more publicized, freshwater spills are more frequent and often more destructive to the environment. In 2000, EPA estimated in testimony before Congress that "[o]n average, one spill of greater than 100,000 gallons occurs every month from oil storage facilities and the entire transportation network."
The oil industry is challenging the Environmental Protection Agency's July 2002 revisions to the spill prevention rules for large oil storage facilities. The revisions -- the first significant change to the rule since it was adopted in 1973 -- updated the definition of "waters of the United States" in the rule to match the definition EPA adopted for other rules under the Clean Water Act decades ago.
"This administration has repeatedly weakened federal water quality protections," said NRDC attorney Daniel Rosenberg. "Now, it has an opportunity to defend the Clean Water Act for a change."
If the industry cases are successful, the damage could extend beyond the oil spill program. Specifically, EPA could be required to drastically cut back the scope of the Clean Water Act's protections in other Clean Water Act programs as well, to reach only "traditionally navigable waters" and their adjacent wetlands. Such a result could ultimately leave most of the nation's creeks, wetlands, streams, lakes and ponds without protection under the federal Clean Water Act. With so much of the nation's waters open to unrestricted dredging, filling and pollution discharge, even those few rivers and coastal waters that retained Clean Water Act protections could be seriously threatened.
"For thirty years, the Clean Water Act has provided the foundation for cleaning up pollution in the streams, ponds, lakes and wetlands that nourish our river systems," said Robin Mann, chair of Sierra Club's Clean Water Campaign Committee. "The oil industry's effort is a serious threat to the progress that has been achieved under the Clean Water Act, and an insult to all Americans."
The two cases are pending in the United States District Court for the District of Columbia, American Petroleum Institute v. EPA, D.D.C. Civil Action No. 02-2247 PLF; Marathon Oil Company v. EPA, D.D.C. Civil Action No. 02-2249.
Earthjustice is the nation's largest nonprofit law firm for the environment, working through the courts to safeguard public lands, national forests, parks, and wilderness areas; to reduce air and water pollution; to prevent toxic contamination; and to preserve endangered species and wildlife habitat.
The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.
The Sierra Club's members are 700,000 of your friends and neighbors. Inspired by nature, we work together to protect our communities and the planet. The Club is America's oldest, largest and most influential grassroots environmental organization.