No Right to Info on Oil Dispersants

     (CN) – Environmental groups cannot sue the Environmental Protection Agency and intervenor defendant the American Petroleum Institute to find out where oil-dispersing chemicals are used and in what quantities, a federal judge ruled.
     U.S. District Judge John Bates in the District of Columbia on Monday dismissed the complaint from the Alaska Community Action on Toxics et al.
     The Clean Water Act tasks the U.S. EPA with creating a national contingency plan (NCP) to prepare for and respond to oil spills. Among other things, the EPA must identify which oil dispersants may be used, where they may be used, and in what quantities.
     But when the EPA published the contingency plan, it did not specify water bodies or the amounts of dispersants used. It justified this decision in a 1984 final rule, claiming that variables such as weather, the presence of marine organisms, and the different types of oil that could be spilled required a “flexible approach” in which the type and quantity of chemicals used would be determined by on-scene coordinators “on the basis of all relevant circumstances.”
     The Alaska Community Actions on Toxics and seven other environmental groups sued the EPA in August 2012. In a complaint alleging 65 causes of action, the groups argued that not including information about water bodies and chemical quantities on the product schedule “has seriously hobbled emergency response to oil spills.”
     The groups cited to the Deepwater Horizon debacle: “During the 2010 Deepwater Horizon oil disaster, decisionmakers responding to the spill released about 1.84 million gallons of two listed dispersants, Corexit EC9500A and Corexit EC9527A, into the Gulf of Mexico,” the ruling states. “According to plaintiffs, the release of mass quantities of these two dispersants was authorized despite a ‘lack of information about the quantities of dispersants that could be used safely in the Gulf of Mexico.”
     The groups claimed the EPA’s failure to include information about water bodies and safe chemical quantities violated its statutory duties under the Clean Water Act.
     They claimed the EPA “acted arbitrarily and capriciously” each time it added a new chemical to the product schedule in the past 6 years.
     The EPA and intervenor-defendant American Petroleum Institute (API) sought dismissal, arguing that the groups’ claims were untimely because they sued 30 years after the EPA published the contingency plan and product schedule.
     Bates sided with the EPA, agreeing that the environmental groups did not present their claims by the statutory deadline.
     “Plaintiffs do not dispute that EPA took judicially reviewable final agency action in 1984,” Bates ruled. “Rather, they have styled their claims in an attempt to avoid challenging EPA’s decades-old, stated decision not to include waters and quantities on the NCP product schedule. … [H]owever, the court concludes that the time for bringing suit has long since passed and hence plaintiffs’ claims must be dismissed.”
     The environmental groups argued that the EPA takes final agency action each time it lists a new chemical on the product schedule.
     But the EPA said that updating the list of dispersants is the fulfillment of its obligations in the contingency plan, not a new agency action.
     Bates credited the plaintiffs’ reasoning but found in favor of the agency.
     He compared the case to Harris v. FAA, in which air traffic controllers challenged the FAA decision to hire them at a certain grade level. The court dismissed, finding that the statute of limitations began when the FAA published its notice, not when it hired the plaintiffs.
     “Similarly here, EPA’s periodic publication of the NCP product schedule and listing of particular products do not restart the limitations period for challenging the agency’s decision not to identify the waters and quantities in which listed products may be used,” Bates wrote. “EPA’s actions in the past six years have ‘simply implemented’ the decision made and spelled out long ago regarding the pre-specification of waters and quantities; that EPA continues to publish the schedule and list products … only shows the agency’s continued adherence to its earlier decision. Therefore, EPA’s listing and relisting of particular products on the NCP product schedule does not make plaintiffs’ actions timely.”
     Bates also dismissed allegations that the EPA’s failure to include waters and quantities in the product schedule violated its nondiscretionary duties under the Clean Water Act, finding that these claims are also time-barred.
     He noted that other D.C. Circuit judges have ruled that plaintiffs can advance time-barred claims if an agency is in continuous violation of its duty to meet a statutory deadline. But he declined to apply the continuing violation doctrine here because the plaintiffs did not rely on it themselves.
     “In short, plaintiffs have not alleged facts that would make any of their claims timely, and the continuing violation doctrine cannot accomplish that for them here. Hence, their claims will be dismissed for lack of subject matter jurisdiction,” Bates concluded.
     Here are the plaintiffs: Alaska Community Action on Toxics, Cook Inletkeeper, the Florida Wildlife Federation, the Gulf Restoration Network, the Louisiana Environmental Action Network, Louisiana Shrimp Association, the Sierra Club, and the Waterkeeper Alliance.

%d bloggers like this: