The U.S. District Court for the Northern District of California has ruled that the Environmental Protection Agency (“EPA”) “delayed unreasonably” by waiting at least six years to finalize draft regulations updating its 1994 National Contingency Plan rules regarding which chemicals may be used in oil spill mitigation. The decision came as part of an order by Judge William H. Orrick on Aug. 8, 2021 granting summary judgment to plaintiffs, a collection of environmental groups and others, who brought suit in Earth Island Institute v. Michael S. Regan, et al., Case No. 20-cv-00670-WHO subsequent to the 2010 Deepwater Horizon oil spill which released hundreds of millions of gallons of oil into the Gulf of Mexico.

Plaintiffs alleged, in part, that the EPA violated The Clean Water Act (“CWA”) by failing to perform a nondiscretionary duty to issue a final rule, updating Subpart J of the National Contingency Plan (“NCP”) regarding the removal of oil and hazardous substances after oil spills. Plaintiffs also claimed violations of the Administrative Procedure Act (“APA”) due the EPA’s allegedly unreasonable delay in issuing the final rule. More specifically, plaintiffs claimed that some chemical dispersants currently allowed under the NCP and used in oil spill remediation are actually more toxic to humans when mixed with oil than oil alone. While Judge Orrick ordered the EPA to take final action on the listing and authorization of use provisions regarding such chemicals, he adopted the EPA’s suggested deadline of May 31, 2023.

In holding the EPA had violated the CWA, Judge Orrick clarified that the EPA’s nondiscretionary duty to revise the NCP does not arise from any new information developments, but “new information that shows that the current standards . . . to minimize damage from oil and hazardous substance pollution are insufficient to safely provide for mitigation of any pollution.” To that end, the decision relied on older EPA documents regarding the need for further testing of chemical dispersants.

Judge Orrick also relied on EPA documents in holding a violation of the APA which allows a court to compel an agency’s action if “unlawfully withheld” or “unreasonably delayed.” See 5 U.S.C § 706(1). In making that determination, the Court analyzed the “TRAC factors” articulated in Telecommunications Research and Action Center, et al., Petitioners, v. FCC et al., 750 F.2d 70 (D.C. Cir. 1984) which weigh the practical time for agencies to act; danger to human health; competing priorities; and interests prejudiced by delay.

Specifically, the Court emphasized the EPA’s own 2011 findings indicating the Agency had “not updated the NCP since 1994 to include the most appropriate efficacy testing protocol.” The Court found that while the EPA then took action towards amendments thereafter, it had been nearly six years since the public comment period of the Propose Rule changes had closed. Furthermore, given the alleged dangers to human health, the Court held the TRAC factors weighed in plaintiffs’ favor overall rejecting the EPA’s argument that the agency acted reasonably as part of an overall process.

Nevertheless, recognizing the multiple requisite steps to finalize the Proposed Rule, Judge Orrick adopted the EPA’s proposed deadline of May 31, 2023, requiring the Agency to file status reports every 180 days until the final rule is published.

While this decision is in keeping with precedents that recognize the substantial processes for action by government agencies, it does signal that federal courts are more willing to find unreasonable delay when those bodies have themselves recognized the need for change and failed to move promptly forward with action.

This alert does not purport to be a substitute for advice of counsel on specific matters.

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