The Nickel Report

A pteropod is not a winged dinosaur. It is a category of marine life that includes sea snails and sea slugs, both of which serve as forage for other marine species. According to the Center for Biological Diversity (CBD), ocean acidification is endangering some pteropods, such as sea snails, by eroding their shells. The sea snail is not the only threatened species—the CBD posits that most marine calcifying organisms (including oysters, clams and coral) are at risk of damage from ocean acidification.

Because of its air and water implications, ocean acidification is gaining broad attention. According to EPA, atmospheric carbon dioxide emissions (such as those from power plants burning fossil fuels) are the primary cause of ocean acidification. Scientists estimate the oceans absorb approximately one-third of carbon dioxide emissions that result from human activities. Major Findings, Recommendations, and Actions, The West Coast Ocean Acidification and Hypoxia Science Panel, April 2016. In addition to atmospheric emissions, local wastewater discharges of organic carbon and nutrients can exacerbate ocean acidification. But there is considerable scientific uncertainty about whether further control of local pollutant inputs to surface waters can mitigate the effects of ocean acidification. Id. at 7.

In April 2013, the CBD petitioned EPA to address issues caused by ocean acidification. Among other requests, CBD’s petition sought new water quality criteria related to aragonite and calcite, claiming these constituents are key to proper development of many marine species’ shells and skeletons. In its initial response to the petition, EPA promised to convene a technical work group to evaluate water quality parameters related to ocean acidification. However, around the same time several West Coast entities established The West Coast Ocean Acidification and Hypoxia Science Panel (OAH Panel) to investigate similar issues. Therefore, EPA did not establish its own work group but followed the work of the OAH Panel instead.

On December 14, 2016, after reviewing the final report and recommendations of the OAH Panel, EPA issued its decision on the CBD petition, declining to take the actions CBD requested. EPA gave the following reasons in support of its decision.

• EPA noted the OAH Panel identified carbon dioxide emissions as the dominant cause of ocean acidification. According to EPA, its efforts to address greenhouse gas emissions (including carbon dioxide) through its Clean Air Act authority are a major part of its response to ocean acidification.
• To address local land-based sources of nutrients and organic matter pollution that may exacerbate ocean acidification, EPA pointed to several existing Clean Water Act tools. For example, EPA says it will continue to review state lists of impaired waters with a view toward parameters that relate to coastal acidification and will support research on coastal acidification impacts.
• EPA also intends to expand its monitoring capacities in many estuaries, including San Francisco Bay, Santa Monica Bay, Tampa Bay, Barnegat Bay, Long Island Sound and Massachusetts Bay, to generate long-term data about the intensity and duration of acidification events.
• EPA noted that it continues to emphasize the importance of reducing nutrients in surface waters, and encourages the states to set numeric nutrient criteria.
• To understand how land-based inputs of nutrient pollution potentially can exacerbate acidification, EPA is conducting simultaneous carbon and nutrient concentration sampling in Delaware Bay and Narragansett Bay.
• Also, under the Federal Ocean Acidification Research and Monitoring Act of 2009, EPA participates in an interagency working group to organize and expand research programs related to ocean acidification, including its potential socioeconomic impacts.

Although EPA declined to take further action in response to the CBD petition, this issue is not going away. There is plentiful research being conducted that is likely to provide impetus for further state and federal regulation. Also, ocean acidification has been the subject of litigation. See, e.g., Center for Biological Diversity v. EPA, 90 F. Supp. 3d 1177 (W.D. Wash. 2015) (dismissing, on summary judgment, a challenge to EPA’s approval of Washington’s and Oregon’s lists of impaired waters because the states failed to include coastal waters impaired by acidification). It is possible, given the upcoming change of administrations, that groups will seek to advance their ocean acidification agendas through court action.

In any event, it is always good to be vigilant about research being done in your local area as it may have long-term consequences. It is also important to monitor states’ proposed lists of impaired waters and be aware of the data and methodologies they employ in developing those lists.