Two environmental groups have sued the U.S. Environmental Protection Agency in federal court in San Francisco for failing to do what Congress told them to do with respect to “ballast water.”
The Center for Biological Diversity and Friends of the Earth, both nonprofit advocacy organizations, allege that the EPA missed — by more than two years — its deadline to order regulations covering discharge of water from ocean-going vessels. They asked the court to compel the EPA to issue regulations.
The suit concerns two categories of discharge from vessels. The first is ballast water, a somewhat benign name that obfuscates its importance. Ballast water is water that ships take on or discharge in order to position the vessel at the proper level in the sea. A ship that is empty of cargo may take on ballast to sail lower in the water, whereas one that is fully loaded may discharge ballast water so it rises higher.
Ballast water is sea water that is taken on in one location and frequently discharged in another — sometimes thousands of miles away.
When the water is taken on, it may contain small — often microscopic — aquatic organisms, and so it is very possible that sea life will be transported and released into an environment where it is not native.
The introduction of invasive species is a serious environmental concern.
According to the plaintiffs’ complaint, cargo vessels dump 52 billion gallons of ballast water into U.S. Waters every year, often carrying “harmful plants, animals, and pathogens that can and do wreak havoc on local ecosystems, cause irreparable environmental damage, and spread disease.”
The plaintiffs contend that aquatic invasive species have caused “hundreds of billions of dollars of damage globally over the last 50 years.”
Bad news for San Francisco Bay ecosystem
The issue is particularly important locally, because the San Francisco Bay is “the most invaded estuary in the world,” according to the complaint, and ballast water is the primary way that invasive species are introduced to the Bay.
Among the problems that can be caused are the introduction of species that have no natural predators, allowing the intruder to grow at rapid rates and totally change an ecosystem.
Andrew Cohen is a marine biologist and director of the Center for Research on Aquatic Bioinvasions in Richmond.
Cohen recounts the story of Corbula Amurensis, the so called “overbite clam,” native to Japan, Korea and China. Microscopic clam spawn is easily picked up in ballast water and Cohen believes that was the way that it was introduced to the Bay. The small clam, not much bigger than a penny, got its popular name from the fact that one of its two “valves” — shells — slightly overhangs the other. According to Cohen, it is a “small, grungy looking little clam, but it is the only one in the Bay… that has this overbite feature.”
When it arrived in roughly 1986, the overbite clam had almost no natural predators in the Bay.
According to Cohen, it was first discovered by a community college biology class on a field trip.
“They collected it one summer, and then by the following summer, it was the most common clam on the bottom of the Bay, throughout most of the Bay, occurring at just astonishing numbers, like 2,000 clams per square meter.”
The clam was not itself harmful to people, but it ate phytoplankton, single celled algae floating in the water, and was so abundant that it sucked “all the food out of the water column,” which meant there was “nothing else for anything up in the water column to eat.”
That affected larger organisms up the food chain, and in a few years, “we ended up with some crashes in fish populations, specifically those fish that feed on the little crustaceans that are feeding on the algae up in the water column.”
Cohen says that there were multiple causes for the loss of fish but “clearly a major contributing cause was the disruption of the food that they ate up in the food web resulting ultimately from this clam.”
A source of pollution
In addition to ballast water, the EPA regulations also are required to cover other discharges from ships.
Matthew Sanders is one of the plaintiffs’ lawyers. He says that ships frequently discharge water that contains an array of pollutants like oil and grease, fish waste, and soap and chemicals from shipboard laundries.
“These wastes are then released into the water and pollute water that is not only the ocean water, but can migrate into what becomes drinking water sources for humans,” he said.
The complaint alleges that “tens of thousands of domestic and foreign vessels discharge these pollutant streams into our nation’s waters.”
The deadline for establishing standards under the Clean Water Act for ballast water and other incidental discharges was Dec. 4, 2020. The EPA is more than two years delinquent.
While the EPA has not responded to the complaint and its defense to the claim is not yet known, Sanders said, “We think it’s a straightforward case of EPA missing a statutory deadline… whatever the reason ultimately is, it doesn’t matter. Congress required EPA to issue standards by a date certain. And EPA is well past that deadline.”
Sanders serves as Acting Deputy Director of the Environmental Law Clinic at Stanford Law School, one of a number of legal clinics that give Stanford law students to work on actual cases.
Law students spend an academic quarter working full time at the clinic and are closely involved in the cases the clinic litigates, preparing pleadings and often arguing motions.
Two second year Stanford law students, Ella Bohn and Jacob Lozano, are working on the case with Sanders. They both find the case surprising.
“A lot of environmental law is really complex,” said Bohn. “I think it was really interesting for us to get put on this issue and see just how simple it actually is.”
“It was eye opening to me how this case was quite simple, but it’s also quite serious at the same time,” added Lozano.
A request for comment from EPA was not immediately returned.