API intervenes in dispersant lawsuit

Industry trade association says suit against Environmental Protection Agency could limit use of products to break up oil spills

Wesley Loy

For Petroleum News

A federal judge has granted the American Petroleum Institute’s motion to intervene in a lawsuit that could limit the use of dispersants to combat oil spills.

API is a trade association with more than 500 members involved in oil and gas production, refining, marketing and transportation.

On Aug. 6, a coalition of conservation, wildlife, trade and public health groups sued the U.S. Environmental Protection Agency in federal court in Washington, D.C. The groups contend the EPA has failed to put sufficient dispersant rules into place in compliance with the Clean Water Act.

The plaintiffs are Alaska Community Action on Toxics, Cook Inletkeeper, Florida Wildlife Federation, Gulf Restoration Network, Louisiana Environmental Action Network, Louisiana Shrimp Association, Sierra Club and Waterkeeper Alliance.

In an Oct. 17 motion to intervene, API lawyers said the lawsuit, if successful, could pare down the list of dispersant products the industry may rely upon.

Further, the suit seeks to compel the EPA to identify the waters in which dispersants may be used, and the quantities that can be safely applied.

The API said the lawsuit is an “attack on the legitimacy” of the entire EPA-maintained National Contingency Plan Product Schedule.

As such, the suit could “impact the dispersants and other products that would be available to API members for use in the event of an oil discharge from a drilling unit, platform, pipeline or vessel.”

The EPA has filed a motion to dismiss the case.

The plaintiffs opposed API’s motion to intervene, while the government took no position.

In a Nov. 29 order, U.S. District Judge John D. Bates ruled API could intervene.

The order noted that the suit seeks removal of the 59 dispersants and other agents added to the NCP Product Schedule in the last six years. This would leave 52 listed products.

“In addition, if this Court orders EPA to publish a new NCP Product Schedule identifying the waters in which listed products may be used and the quantities of listed products that can be used safely in such waters, then such action by EPA will necessarily place limitations on the uses of listed products that do not now exist,” the order said.

API members rely on the product schedule in preparing mandatory oil spill response plans, and so they have “a concrete and particularized interest in the outcome of this lawsuit,” the judge held.

Bates further noted that the injunctive relief the plaintiffs are seeking isn’t limited to the 59 products, but rather could impact the permissible uses of all NCP products.

Use of dispersants to break up spilled oil is controversial. The BP Deepwater Horizon oil spill in 2010 focused huge attention on the issue.

At the time they filed their lawsuit, the plaintiffs said some 1.84 million gallons of dispersants were applied in the Gulf of Mexico following Deepwater Horizon “despite widespread recognition that little was known about the health and environmental effects of applying such massive quantities of dispersants, and applying them beneath the ocean’s surface.”

Representatives of the Alaska groups say dispersants could harm fish, marine mammals and the coastal communities.