More than half the nation's waters -- ranging from neighborhood creeks and fishing holes to entire drinking water supplies -- could lose federal protection if the oil industry's argument is successful.
"If the oil industry gets its way, more than half the places where we fish and swim could be fair game for anyone who wants to dump their waste," said Jennifer Kefer, the Earthjustice attorney representing the groups. "Basically, the oil industry believes that the majority of America's waters do not deserve to be protected from pollution by the Clean Water Act."
At issue 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, narrowly defined as "navigable," and thus can legally discharge oil into most of the nation's streams and creeks and many of its wetlands.
Because it does not take much spilled oil to harm the environment, the Clean Water Act outlines measures to prevent "discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone" (CWA, Section 311). Under the law, industries that store large amounts of oil must undertake spill planning, prevention, and cleanup measures.
In their lawsuits, the oil industry is arguing that most of the nation's waters are not protected under the Clean Water Act. If the industry cases are successful, every polluting industry -- not just the oil industry -- could win the right to dump pollution directly into creeks and streams, including those that feed directly into major waterways.
Environmentalists are concerned that the government will not aggressively defend the Clean Water Act from the oil industry's legal challenge. In fact, Bush administration officials are already in closed-door settlement discussions with the oil industry over these lawsuits.
"Americans won't buy the industry's argument that oil and water do mix, but you never know how that will sound to the polluter-friendly Bush administration," said Natural Resources Defense Council attorney Daniel Rosenberg. The White House's "sue-and-settle" strategy has produced several court settlements between the federal government and industry groups that have relaxed rules to boost logging in national forests, scaled back wildlife habitat protections to allow development, and overturned bans on the use of snowmobiles in national parks. "We must step in and defend the Clean Water Act," said Rosenberg, "because the sad truth is we can't trust the Bush administration to protect our waters from polluters."
The lawsuits are one of two major, ongoing attacks on the jurisdiction of the Clean Water Act. Earlier this year, the U.S. Environmental Protection Agency initiated a process to rewrite Clean Water Act rules to illegally limit the scope of the law. Sixty percent or more of our nation's streams and 20 percent of our wetlands could lose federal protection under the Bush administration proposal. Polluters could then dump wastes into these waterways without a Clean Water Act permit, without notifying the public, and without fear of any Clean Water Act enforcement. The resulting contamination of these waters from sewage, oil, hazardous chemicals and other pollutants would be disastrous for our drinking water supplies, wildlife habitat, and flood control. (Details on how the Clean Water Act proposal could affect U.S. waters.)
The EPA received more than 137,000 public comments, the vast majority of which opposed the proposal, with resource agencies in 39 states (including 14 with Republican governors) opposing the administration's plan. (State comments)
"When 39 of 42 states -- including Texas and Florida -- agree with citizens that the Clean Water Act shouldn't be weakened, you have to wonder whose interests the Bush administration is trying to protect," said Carl Pope, Executive Director of the Sierra Club. "For 30 years, the Clean Water Act has safeguarded and cleaned up our streams, ponds and wetlands. The Bush administration should strengthen clean water protections instead of letting polluters off the hook."
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.