WASHINGTON, Jan. 30, 2020 — The University of California-Berkeley Environmental Law Clinic and the Center for Biological Diversity filed a lawsuit today in federal court in San Francisco to compel the Environmental Protection Agency to issue rules restricting use of chemical agents such as Corexit to clean up oil spills.

Instead of mitigating environmental harm, these chemical dispersants have proven to be more toxic to humans and the environment than oil alone.

The groups sued on behalf of environmental justice and conservation groups, as well as individuals who personally experienced Corexit’s toxic effects in the Exxon Valdez or BP Deepwater Horizon oil spills or who have actively worked to ban these products in their waters. A fact sheet on dispersant harms is available here.

“Our clients have directly experienced the harms from use of toxic dispersants to address spilled oil. EPA’s delay in updating its oil-spill response plan to reflect scientific knowledge about the dangers of dispersant use is inexcusable and unlawful,” said Claudia Polsky, director of the UC-Berkeley Environmental Law Clinic, whose students are part of the legal team in today’s action.

The use of dispersants like Corexit is an oil-spill response method outlined in the National Contingency Plan, which governs the nation’s oil and chemical pollution emergency responses. The Clean Water Act directs the EPA to periodically update the plan to account for new information and new technology. But the EPA has not updated the plan since 1994, and that update did not even incorporate lessons from the long-term ecosystem studies following the Exxon Valdez disaster that occurred more than 30 years ago — much less the 2010 BP Deepwater Horizon disaster.

“The EPA’s outdated response plan is increasingly dangerous as the Trump administration guts other rules aimed at preventing offshore oil spills,” said Kristen Monsell, oceans program legal director at the Center for Biological Diversity. “Deepwater Horizon was a wake-up call that current response methods only increase the destruction oil spills cause. The EPA’s delay in revising its rules, last updated in 1994, is increasing the harm to wildlife and public health.”

“By continuing to rely on a plan that allows for the widespread deployment of chemical dispersants to ‘clean up’ oil spills, the EPA is placing marine ecosystems and coastal communities at risk of short- and long-term devastating impacts,” said marine toxicologist Dr. Riki Ott, director of the Earth Island Institute’s A.L.E.R.T. project, the lead plaintiff in the lawsuit.

In addition to Dr. Ott, individual and organizational plaintiffs in the case are:

  • Kindra Arnesen, member of a commercial fishing family in Plaquemines Parish, Louisiana, who were sickened by BP’s oil and EPA’s authorized use of Corexit dispersants during the 2010 BP Deepwater Horizon disaster.
  • Rosemary Ahtuangaruak, an Iñupiat living in the now oil-industrialized zone of the North Slope in Alaska who has worked with tribal councils to pass resolutions banning dispersant use in Arctic waters where Alaskan Natives hunt and fish.
  • Alaska’s Cook Inletkeeper, which responded to the Exxon Valdez spill and spent two decades serving on a citizen oversight council created under the Oil Pollution Act.
  • Alaska Community Action on Toxics, whose founder and executive director Pam Miller found long-term health harm among Exxon Valdez spill-response workers.
  • The Center for Biological Diversity, which advocates for the protection of threatened and endangered species and their habitats and works to protect coastal communities from threats related to air and water pollution.
  • The Earth Island Institute, a nonprofit environmental advocacy organization headquartered in Berkeley and acting as fiscal sponsor of A.L.E.R.T.

Plaintiff Kindra Arnesen, a commercial fisher in Louisiana, saw her life turned upside-down in the wake of the 2010 BP Deepwater Horizon disaster. Along with countless members of her community, she, her husband and their two children were sickened with migraines, lesions, rashes, and respiratory problems that persist to this day. The damage to the Gulf waters also decimated their once-thriving family fishing business.

“Exposure to chemical dispersants after the spill changed my family and my community,” said Arnesen, who has become a leading community activist. “We are all still suffering the effects from use of dispersants following Deepwater Horizon and I have seen firsthand the health problems the use of these chemicals can cause. We’ve learned to live sickly.”

Plaintiff Rosemary Ahtuangaruak successfully advocated for more than a dozen tribal resolutions opposing the use of dispersants in the spill-response plans for the Arctic. “An oil spill would devastate my community’s food security,” she said. “All of our hunting, gathering and harvesting would be impacted from any event where dispersants are used.”

In response to public pressure from Dr. Ott and other plaintiffs, the EPA finally initiated a rulemaking proceeding in early 2015 and invited public comment on the use of Corexit in oil-spill response actions. By the time the rulemaking comment period closed in April 2015, the agency had received more than 81,000 responses, the majority of which called for reducing the use of chemical dispersants while decreasing their toxicity and increasing their efficacy. Since then, however, the EPA has been silent on the issue.

The EPA’s failure to conclude the process to issue updated regulations, the groups assert in their lawsuit, violates the agency’s administrative obligations under the law. It also puts at risk the 133 million or so Americans who live near the coasts, making up 39 percent of the U.S. population, and the millions more who live near lakes, rivers, or along oil pipeline corridors and who are in harm’s way of the next major oil spill. This risk is particularly heightened in light of the Trump administration’s efforts to vastly expand offshore oil and gas development while rolling back many regulations designed to prevent accidents.

“As huge as the BP oil spill was for us, this isn’t a one-incident issue. We have oil spills here regularly, whether they be big or small. And the risk is here 365 days a year, seven days a week,” said Arnesen.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.7 million members and online activists dedicated to the protection of endangered species and wild places. www.biologicaldiversity.org

The UC Berkeley Environmental Law Clinic, which acts as lead counsel in this matter, trains law students to be effective advocates on issues of environmental health and environmental justice. The Clinic’s director, Claudia Polsky, is a former public interest and government environmental lawyer.