(CN) — After years of inaction, the time has come for the U.S. Environmental Protection Agency to update its policies governing the use of dispersants and other toxic chemicals used to clean up oil spills, a federal judge ruled Monday.
The order comes after the Earth Island Institute and other environmental nonprofits took the EPA to court in January 2019 in a bid to compel the agency to update an oil spill contingency plan they claim is woefully out of date.
At the heart of the dispute over the contingency plan — which has not been updated since 1994 — is the government’s stance on dispersants, toxic chemicals used to help break down oil particles following a hazardous spill. While the current oil spill contingency plan allows the use of these chemicals, the plaintiffs say many in the scientific community have determined these compounds actually do far more environmental harm than good and could potentially worsen the environmental impact of a spill rather than cure it.
Following the BP Deepwater Horizon oil spill of 2010, widely regarded as one of the worst environmental disasters in U.S. history that killed 11 people and released nearly 5 million barrels of crude oil into the Gulf of Mexico, the EPA said it would be taking another look at their stance on dispersants. After a few years of review, in 2015 the EPA released a proposed rule change to the contingency plan that the EPA said would retool the authorization process for dispersant use, tighten up the monitoring requirements and help encourage the development of safer and more effective dispersant products.
While a portion of the rule change was eventually submitted, nearly six years later the entire proposed rule change has yet to be implemented.
The environmentalists then asked U.S. District Judge William Orrick III, a Barack Obama appointee, to order the EPA to at last update their contingency plan following years of inaction. On Monday, Orrick sided with the nonprofits and found the EPA’s speed in updating their oil spill policies has left much to be desired.
According to court documents, the EPA claimed that a series of technical challenges — such as finding new reference oils that could be used for testing purposes — is to blame for their rulemaking delays, but Orrick was unmoved. He found the EPA has had plenty of time to workshop new solutions and have failed to show why their years-long delays have continued to this day.
In fact, Orrick said the EPA’s admission that it has run into some roadblocks in the quest to update its oil spill contingency plan lends more support to calls for demanded action. The agency has had six years to find more reference oils and nail down implementation strategies, and after six years of failure on this front Orrick found the agency needs concrete deadlines and court supervision to get the ball rolling once more.
Claudia Polsky, representing Earth Island Institute, said her clients are thrilled that Monday’s ruling may finally result in the action many have been pushing for.
"Plaintiffs are delighted with Judge Orrick's ruling,” Polsky said in an email. “For our clients, this is not an abstract legal matter: their health, their commercial fishery catches, and their resource-dependent cultural traditions have all been severely impacted by the toxic chemicals that can permissibly be used in oil spill response under EPA's existing national contingency plan. By forcing EPA to update this stale plan, which dates to 1994, we hope today's ruling will improve EPA's focus on the human and ecological cost of current oil spill response methods."
Under the judge’s order, the EPA must begin work on their proposed rule change immediately. After the required consideration period, a final order should be ready by 2023.
Representatives for the EPA did not respond to request for comment by press time on Monday.
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