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Wednesday, October 07, 2015

EPA Required to Muscle Out Invasive Zebra Mussels - Can it Be Done?

This Monday as I was preparing to teach my Tuesday Biodiversity seminar, in which we were to discuss invasive species, the Second Circuit issued an important Clean Water Act opinion. For years the EPA had been avoiding the significant challenge of dealing with invasive species routinely dumped into our nation's waters by cargo ships. When the ships load and unload their cargo, it is necessary to balance the weight of the ship by filling or emptying massive tanks of water within the vessel. This water (called ballast water) is typically drawn into the tanks in one location and expelled in another, carrying along numerous stowaway species ready to invade new territory. This practice has introduced many microscopic pathogens, but the poster child is undoubtedly the zebra mussel, which has taken over the great lakes ecosystem. In addition to causing ecological harm, the zebra mussels have cost hundreds of millions of dollars to the companies whose industrial water pipes have been clogged by the Asian mussels.

The Clean Water Act makes it unlawful to discharge a pollutant into the nation's waters without a permit. The EPA has no discretion to exempt categories of discharges from this permitting requirement, as the DC Circuit held way back in NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). More recently, in 2008, the Ninth Circuit struck down the EPA's attempt to exempt ballast water from the CWA requirements, in Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008), a case I had just happened to assign for this week's class. So, I was pleased in more ways than one to see the Second Circuit issue its opinion in NRDC v. EPA just 24 hours before our class met to discuss this very issue. Having failed in its attempt to exempt ballast water entirely from permitting requirements, EPA had generated a lenient Vessel General Permit, which the court this week struck down as a violation of the CWA. The permit failed to be strict enough both as to technological requirements for treating ballast water and as to limits on the invasive species discharged.

While exciting for environmentalists, this ruling will be quite challenging for the shipping industry. Many of the most cutting edge technologies for killing everything in ballast water tanks is easier to design into new ships than to add via retrofitting older ones. Of course, we have a very serious invasive species problem, so to address it, step one is obviously to stop introducing them. There is no question that this red light is incredibly valuable to the environment. What is less clear, though, is whether we can ever actually accomplish the underlying goal of such regulation, which would be to restore the ecosystem and stop the economic harm. In forcing the EPA to regulate ballast water, the Northwest Environmental Advocates Court noted that "[o]nce established, invasive species become almost impossible to remove," in part because they can become so successful absent their natural predators.

So this decision raises the important question of what's next. Assuming we can cut down on the continued delivery of invasive species into our waterways, will we maximize the value of that effort and sacrifice by also working to eradicate the massive population already present? Can we do this?

Posted by Kalyani Robbins on October 7, 2015 at 10:26 PM in Current Affairs, Science | Permalink

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