Berkeley, CA — A federal district court judge ruled Monday in favor of a coalition of individuals and environmental groups and ordered the U.S. Environmental Protection Agency (EPA) to update its decades-old regulations on the use of toxic chemical dispersants in oil spill responses.
The lawsuit was filed in early 2020 in the U.S. District Court for the Northern District of California by Earth Island Institute’s ALERT Project, Alaska Community Action on Toxics, Cook Inletkeeper, the Center for Biological Diversity, an Alaskan Native health aide, and a Gulf Coast commercial fisher. The lawsuit sought to require the EPA to update its regulations governing offshore oil spill planning and response to take into account current science on the use of chemical dispersants in response to oil spills.
Instead of mitigating environmental harm, chemical dispersants have proven — when mixed with oil — to be more toxic to humans and the environment than the oil alone. In the 2010 BP Deepwater Horizon disaster, coastal communities along the Gulf of Mexico, many of which were communities of color and/or low income, suffered from serious dispersant-induced health effects.
First responders to the spill, including many Coast Guard workers, suffered negative health impacts. Their ailments included respiratory problems, severe skin blistering, and other debilitating conditions, some of which persist to this day. U.S. District Court Judge William H. Orrick has now ruled that the EPA has violated the Clean Water Act in failing to update dispersant regulations issued in 1994 that are demonstrably inadequate. Today’s ruling also notes that the agency violated the Administrative Procedure Act in failing for years to finalize draft regulations issued in 2015.
Dr. Riki Ott, director of Earth Island Institute’s ALERT Project, the lead plaintiff in the case, witnessed first-hand, as a commercial fisher and marine toxicologist, the health and environmental impacts of the dispersants in the nation’s two largest maritime oil disasters. “In 1989, Exxon Valdez response workers called the ubiquitous cold- and flu-like symptoms among frontline workers ‘the Valdez Crud.’ Two decades later, the BP Deepwater Horizon disaster response workers called the same symptoms ‘the BP Syndrome.’ It turned out that these symptoms were early warnings of chemical illnesses that often led to disabling diseases, cancers, and early deaths,” Dr. Ott said. “Exposed children were among the victims. This ruling means we just might be able to prevent a similar human health tragedy during the next big oil spill.”
Kindra Arnesen, a plaintiff and community activist in Louisiana, likewise was hopeful about today’s ruling. “Dispersant use in the wake of the BP spill took a huge toll on my community. From 2005 to 2010, my community was healthy. There were a couple of families that had a family member fighting cancer of some sort, but things really changed after the spill,” Arneson said. “I’ve witnessed my community experience an explosion of cancer cases. I know I went to 22 funerals in 18 months. Then, I stopped counting.”
“The protection of life, health, and safety is important,” said plaintiff Rosemary Ahtuangaruak, an Iñupiat tribal leader and activist who lives in the now oil-industrialized zone of the North Slope in Alaska. “My Elders have asked that we protect our tradition and culture. We depend on our food for our strength in the cold. I worry for the generations to come because some of our traditional foods live for centuries, meaning they may migrate through many oil spills during their lifespan. That’s why standing up against dispersants was important. We can’t allow toxic chemicals to be added to a toxic oil spill for the benefit of the spillers.” Ahtuangaruak has worked with tribal councils to pass resolutions banning dispersant use in Arctic waters where Alaskan Natives hunt and fish.
Existing and expanding oil and gas operations in U.S. waters run the ongoing risk of an oil spill. This is particularly concerning in the Arctic, where ice cold water may further reduce the effectiveness of dispersants, and where geographic remoteness makes manual removal of oil difficult. “Oil corporations and shipping companies can’t clean up oil with traditional tools in the dark, cold, and unforgiving waters of the Alaska Arctic,” said Bob Shavelson with plaintiff Cook Inletkeeper. “That’s why they want free rein to spray toxic dispersants, to keep the oil ‘out of sight, out of mind.’”
“This ruling sets us on a path toward protecting the health and well-being of our waters, wildlife, and people from exposure to dangerous dispersant chemicals that exacerbate the toxicity of oil,” said Pamela Miller, executive director of plaintiff Alaska Community Action on Toxics. “Oil corporations have a vested interest in perpetuating the massive use of dispersant chemicals without consideration of the long-term harm they cause. This decision marks the end of the collusion of the EPA with the oil industry in allowing this destructive practice to continue without consideration of our understanding of the science and adverse health consequences. Hopefully this will also inspire our society toward prevention and an end to oil dependence.”
“We are delighted, although not really surprised, with the court’s finding that oil spill response regulations enacted more than 15 years before the BP Deepwater Horizon disaster are no longer aligned with current science and technology and are overdue for an update,” said Sumona Majumdar, general counsel for Earth Island Institute. “We urge the EPA to quickly issue a final rule that properly regulates these dangerous chemicals.”
In June 2020, Judge Orrick ruled, as part of this case, that the Clean Water Act imposes on the EPA a mandatory duty to maintain an up-to-date oil spill response plan that reflects current science and technology. This includes science demonstrating that dispersant chemicals are far more toxic to humans — and more ecologically damaging — than their manufacturers admit.
Today’s further ruling by Judge Orrick declares that the EPA violated that duty by failing to update the regulations in more than 25 years, despite significant advancements in both scientific and technological knowledge. The ruling also finds that the EPA violated the Administrative Procedure Act by failing to finalize its 2015 draft regulations in a timely manner despite two long-pending petitions by plaintiffs requesting this update.
The EPA must now update and finalize its regulations by May 31, 2023. In light of the agency’s past dereliction, the court further ordered the EPA to file status reports every 180 days.
UC Berkeley Environmental Law Clinic (ELC) served as lead counsel in this matter and represented most plaintiffs; the Center for Biological Diversity served as co-counsel and represented itself.
“The use of toxic chemicals to address marine oil spills is a largely unrecognized societal cost of America’s ongoing oil dependence,” said Claudia Polsky, ELC director and lead counsel. “The human health toll of dispersant-intensive spill responses is a story that needs to be told alongside stories of marine creatures harmed by spilled oil. We hope the EPA’s final rule regarding chemical dispersants will reflect the agency’s mission, which is to prevent human and environmental harm.”
“This is a great win in the fight to protect people and marine life from toxic oil dispersants,” said Kristen Monsell, oceans program legal director at the Center for Biological Diversity. “We’re thrilled to have the court recognize that the EPA’s ongoing failure to update its offshore oil-spill response plan is unreasonable and unlawful. Offshore drilling is inherently dirty and dangerous, and it should be phased out. But while it continues, we need smart spill responses that use the best available science. Oil spills are bad enough. We can’t have the EPA adding insult to injury by allowing the use of harmful chemicals afterward that put wildlife and people at even more risk.”
Individuals whose health and lives have been severely impacted by chemical dispersants are available for interview upon request.