Facts

Under the Clean Water Act (CWA), Congress directed the Environmental Protection Agency (EPA) to "prepare and publish a National Contingency Plan (NCP) for removal of oil and hazardous substances...." The purpose of the NCP is to "provide for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges, including containment, dispersal, and removal of oil and hazardous substances." Earth Island filed an action against the EPA alleging two causes of action, one under the CWA and one under the Administrative Procedure Act (APA). Earth Island alleged that the EPA failed to update the NCP since 1994 and thereby failed to incorporate scientific and technological developments to assure that the NCP is "effective" and can "minimize damages" as required by the CWA. Earth Island also alleged that the EPA violated the APA because it failed to conclude the rulemaking process more than four (now more than five) years since the comment period on the Proposed Rule closed, and more than seven (now eight) years since ALERT's and other plaintiffs' initially petitioned EPA for rulemaking.

PLAINTIFFS' CONTENTIONS: Plaintiffs contended that defendants violated the CWA because it failed to perform its nondiscretionary duty to revise or amend the NCP in light of new information. Plaintiff contended that defendants' Office of the Inspector General (OIG) report after the 2010 Deepwater Horizon Oil Spill shows that the NCP is inadequate. Plaintiff contended that defendants' proposed revisions to make the NPC more effective demonstrate that the NPC is ineffective. Plaintiff contended that petitions, opening summary judgment brief, declarations, and public comments on defendants; proposed rule further particularize the aspects of the NCP's inadequacy. Plaintiff contended that its CWA and APA claims are not duplicative. Plaintiff contended defendants' delay in updating the NCP is unreasonable under the APA.

DEFENDANTS' CONTENTIONS: Defendants denied all of the contentions. Defendants contended that plaintiff has failed to show that the EPA's nondiscretionary duty was triggered because there was no evidence that the NCP is ineffective or inefficient. Defendants contended that the OIG reports do not make any finding that the NCP is ineffective. Defendants contended that the proposed revisions to make the NPC more effective or more efficient are not a de facto demonstration that the NCP is ineffective or inefficient. Defendants contended that the 2015 Proposed Rule was merely a way to gather public comments. Defendants contended that if plaintiffs prevailed on their CWA claim, they could not also maintain their APA claim.

Result

Plaintiffs' summary judgment was granted on both the CWA and APA claims.