EPA May Face a Lawsuit Over Approving Unlimited Dumping of Fracking Waste in Gulf of Mexico

The Environmental Protection Agency (EPA) was created back in 1970 with the goal of–lo and behold–protecting human health and the environment. It does this in a number of ways, by enforcing pollution regulations, running voluntary pollution reduction programs, researching the impact of pollution and publishing studies on everything from air pollution to fuel economy to pesticides to oil spill prevention and more. The agency has been at the forefront of an enormous amount of steps taken to improve our impact on the environment, pursue clean energy, and more. However, exactly how much the EPA has done has depended on who is in charge and it has often undergone a process of building regulations to see them removed a few years later.

The current Trump Administration appointment as head of the EPA is Scott Pruitt, a climate change denier who dissolved the Environmental Protection Unit of Oklahoma’s Attorney General’s Office during his time as Attorney General there. He also sued the EPA over their Clean Power Plan and Waters of the United States Rules and more–in all suing the EPA 14 different times. He’s described himself as the “leading advocate” against the EPA. Not necessarily surprising based on these facts, his Attorney General campaigns were largely funded by fossil fuel interests.

As you might also imagine based on these facts, the power of the EPA is currently waning under Pruitt’s watch–for example back in June he announced the Clean Water Rule would be rescinded. It’s against this backdrop that the EPA granted a Clean Water Act permit last September allowing offshore oil and gas platforms off the coast of Texas to dump unlimited amounts of waste fluid–fracking chemicals included–into the Gulf of Mexico.

The Center for Biological Diversity has taken issue with this unlimited permit and has filed a 60-day notice of their intent to sue the EPA. The lawsuit primarily revolves around the permit grant violating the Endangered Species Act (ESA). The Center is arguing that the EPA did not do sufficient research prior to granting the permit as required by the ESA. They argue this is especially true in light of all the endangered and threatened species in the Gulf of Mexico such as sea turtles, whales, manatees, corals, and more. Let’s take a look at how the ESA works and the lawsuit itself.

The Endangered Species Act

The permit granted by the EPA is legally known as a National Pollutant Discharge Elimination System General Permit for New and Existing Dischargers in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico. This is obviously a bit of a mouthful, but suffice it say these types of permits are subject to the requirements of the ESA.

The ESA has quite a few elements to it. However, section 7 of the ESA requires the EPA, and other agencies, to do studies before granting any given permit. These studies must establish whether the actions the permit allows jeopardize the continued existence of a species listed as threatened or endangered under the ESA. The ESA also requires these studies if the permitted actions might but a critical habitat in danger. This makes sense, the goal of the ESA is to provide legal protection to endangered and threatened species and their ecosystems–hopefully preventing their extinction. Section 9 if the ESA forbids any person, company, or agency from doing something that harasses harms, pursues, hunts, shoots, wounds, kills, traps, captures, collects, or an similar acts to a species listed in the ESA. Courts have ruled that this includes situations where an agency like the EPA authorizes an act which results in the killing or harming of a species listed in the ESA. This includes destroying such a species habitat or making it harder for them to breed of feed.

In order to avoid this, the section 7 reporting we discussed requires agencies to perform research ensuring that their permits or other actions won’t result in ESA violations. Agencies must request a biological assessment to see if their action will impact ESA species. If that assessment shows that they are unlikely to have a negative impact on an ESA species, they are in the clear and need no particularly formal research before they move forward. If they may affect an ESA species, and affect here is a very low requirement requiring only minimal negative impact, the agency needs to make a more formal study.

After this more serious study, there is a determination of whether it is likely the action will jeopardize an ESA species. If this is the case, there must be suggested modifications to avoid this likelihood. Alternatively, if the study shows that the action will not jeopardize an ESA species but will still harm it may issue a statement of requirements that must be followed to minimize the damage. Even after all this, further studies and changes can be required should the situation damage a species or habitat, new ESA species are added and the actions impact them, the damage is more than expected, or new information comes to light. Agencies may not take action that would prevent implementation of alternatives prior to completion of these studies. This is to avoid, for instance, a permit being granted and the grantee quickly pushing though its project before the studies are complete.

The EPA Granted Permits With Basically No Study

All this is in place to protect the environment, the apparent goal of the EPA. However, in granting this unlimited dumping license the EPA did next to no studies. It didn’t consult with any experts on the potential damages, it didn’t even consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. They certainly didn’t do so regarding the specific impact of their dumping permit on the endangered species in the Gulf of Mexico. The lawsuit that will brought against the EPA argues that, not only did they utterly fail in following through with the ESA requirements, their permit will cause serious danger to the whales, turtles, manatees, and dozens of other ESA species in the Gulf of Mexico.

The permits, as granted, allow tens of thousands of offshore oil and gas platforms and wells to dump fracking chemicals, drill cuttings and fluids, well treatment fluids, and other waste products into the Gulf. This waste water contains a number of chemicals, such as arsenic, cadmium , radioactive materials, mercury, sulfur, and many many more, which have been found in studies to be harmful to marine life.

The Lawsuit Moving Forward and the Importance of the EPA

As of now, the notice of lawsuit will end in a federal court filing if the EPA does not address the issues the Center for Biological Diversity has claimed are inherent to their dumping permits in the next month or so. However, the situation also highlights a larger legal issue of the importance of the EPA following through on its goals.

These permits represent a pattern of behavior on the part of the EPA, under the watch of Scott Pruitt, that raise serious concerns. The waxing and waning powers of the EPA is nothing new. However, it is disappointing to see such blatant disregard for environmental policy from the agency ostensibly designed to enforce, promote, and protect that policy. This is a world we all share and protecting our water (especially looking at situations like the one Flint), our air, our soil, and the plants and animals who populate it, is crucial to passing on a healthy world to our children and our children’s children.