A coalition of conservation, wildlife and public health groups in the Gulf region and in Alaska filed notice yesterday that they plan to appeal a District Court decision to the D.C. Circuit Court of Appeals. The groups had filed suit in August of 2012 to compel the U.S. Environmental Protection Agency (EPA) to comply with the Clean Water Act in preparing and publishing the list of dispersants eligible for use in oil spill response.

A U.S. Air Force chemical dispersing C-130 aircraft drops an oil dispersing chemical into the Gulf of Mexico as part of the Deepwater Horizon Response effort, May 5, 2010.
(U.S. Air Force Photo / Tech. Sgt. Adrian Cadiz)

The National Contingency Plan governs responses to discharges of oil and hazardous substances. The Clean Water Act requires EPA to identify the waters in which dispersants and other spill mitigating devices and substances may be used, and the quantities that can be used safely, as part of EPA’s responsibility for preparing and publishing the National Contingency Plan. But EPA currently fails to include this required information in its list of eligible dispersants under the National Contingency Plan. This meant that during the 2010 BP Deepwater Horizon disaster, 1.83 million gallons of dispersants were released into the ocean without prior scientific study and evaluation of the toxicity of those dispersants and any understanding of whether those dispersants were safe for the Gulf of Mexico, particularly in the unprecedented quantities that were used. Research in the aftermath of that disaster suggests that indeed they were not safe.

The May 7, 2013 District Court decision dismissed the coalition’s suit because the court reasoned that EPA initially made its decision not to identify waters and safe quantities for eligible dispersants—as required by the Clean Water Act—back in the 1980s and 1990s. In the court’s view the groups should have challenged the decision when it was first made and were too late to claim violations of the Clean Water Act now. This interpretation of the law allows an agency to continue violating clear statutory mandates so long as these violations were not caught and corrected within the first six years of their occurrence.

In addition to appealing this decision, the coalition is exploring other legal options. The groups filed a rulemaking petition with EPA in October 2010 calling on EPA to set a toxicity standard, require dispersant manufacturers both to improve testing of their products for toxicity and to disclose the ingredients of the dispersants as a condition of allowing the product to be eligible for use in response to spills.That rulemaking has been expected for years but has yet to be released.

Public interest environmental law firm Earthjustice represents the Louisiana Shrimp Association, Florida Wildlife Federation, Gulf Restoration Network, Louisiana Environmental Action Network, the Alaska-based Cook Inletkeeper, Alaska Community Action on Toxics, Waterkeeper Alliance, and Sierra Club in this action.