Earth Island Institute v. Wheeler

Background

Earth Island sought a declaration and injunctive relief concerning the EPA’s alleged failure to update Subpart J of the National Contingency Plan under the Clean Water Act. Subpart J governs procedures for identifying, containing, dispersing, and removing oil and hazardous substances, including requirements for chemical agents such as dispersants.

The EPA had not updated the relevant portions of Subpart J since 1994. After the 2010 Deepwater Horizon oil spill, the EPA’s Office of Inspector General issued reports recommending changes to dispersant testing and related provisions. The EPA later issued a proposed rule in 2015 addressing monitoring requirements, product-listing data and information, and authorization procedures for chemical agents. Public comments closed on April 22, 2015. By the date of the opinion, the EPA had finalized only the monitoring portion and had not taken final action on the other two components.

Earth Island brought two claims: first, that the EPA violated the Clean Water Act by failing to perform a mandatory duty to revise or amend the National Contingency Plan; and second, that the EPA violated the Administrative Procedure Act by unreasonably delaying final action on the rulemaking. The parties filed competing motions for summary judgment, which asks whether there is any genuine dispute of material fact and whether a party is entitled to judgment under the law.

Clean Water Act ruling

The court held that the EPA’s mandatory duty was triggered because EPA Office of Inspector General reports and the EPA’s 2015 proposed rule showed that the existing National Contingency Plan was ineffective and inefficient in addressing new information about dispersant efficacy, toxicity, and authorization. The court rejected the EPA’s argument that its other amendments to the plan satisfied the duty because those amendments did not address the relevant information about chemical dispersants and oil-spill response.

The court therefore found that the EPA had breached its mandatory duty to revise or amend the applicable provisions of Subpart J.

Administrative Procedure Act ruling

The court rejected the EPA’s argument that the Clean Water Act claim barred the Administrative Procedure Act claim. It treated the claims as distinct: the Clean Water Act claim concerned whether the agency had failed to maintain an up-to-date plan, while the Administrative Procedure Act claim concerned whether the agency had taken too long to complete the rulemaking.

Applying the Ninth Circuit’s factors for evaluating unreasonable agency delay, the court found that the EPA’s more-than-six-year delay after issuing the proposed rule was unreasonable. The court considered the length of the delay, the statutory purposes at issue, the asserted risks to health and the environment, competing agency priorities, and the EPA’s lack of a workable strategy for obtaining reference oils needed for contemplated testing. The court concluded that the factors supported requiring agency action.

Disposition and remedy

Judge Orrick granted Earth Island’s motion for summary judgment and denied the EPA’s cross-motion for summary judgment. He declined to order the EPA to update and reissue a new proposed rule because Earth Island had not shown legal authority for that relief, had not requested it in its complaint, and had not identified new information requiring a new proposal.

The court adopted the EPA’s proposed timeline instead. It ordered the EPA to take final action on the listing and authorization-of-use provisions by May 31, 2023. It also ordered the EPA to file a status report every 180 days until the final rule was published.