March 23, 2011

PEAC leads conservation groups to major settlement in effort to control invasive species

The Pacific Environmental Advocacy Center (PEAC) settled an environmental law casethat may stem the tide of invasive species brought into U.S. waters from international ships.
  • Ballast water being discharged

Pacific Environmental Advocacy Center (PEAC), based at Lewis & Clark Law School, settled an environmental law case that may stem the tide of invasive species brought into U.S. waters from international ships. The victory is part of a decade-long battle PEAC and its clients have had with the U.S. Environmental Protection Agency (EPA).

Allison LaPlante and Dan Mensher, clinical professors at PEAC, represented a group of conservation organizations, including lead client Northwest Environmental Advocates, in a case regarding the EPA regulation of pollution from vessels. As reported in the Los Angeles Times, the agreement requires the EPA to complete two in-depth scientific reviews to identify and encourage the development of effective ways to eliminate invasive species from ballast water discharges, and issue a new permit based on this science to regulate ballast water discharges from vessels.

Ballast water, discharged by ships for stabilization, is a major source of invasive species and other pollutants in waters of the United States. Invasive species such as zebra and quagga mussels, mitten crabs, and the so-called “fish Ebola” virus in ballast water threaten the natural environment and destroy human infrastructure, costing governments billions in remedial costs each year.

“Through our settlement, EPA has for the first time in 35 years agreed to require ships to control their discharges like other industries,” said LaPlante. “We know technologies exist to control the spread of invasive species—it is time that our government ask ships to use them to safeguard the public and the environment.”

PEAC, the nationally recognized, domestic environmental legal clinic of Lewis & Clark Law School, is comprised of environmental lawyers who work in collaboration with law school faculty, staff, and students in pro bono representation, litigation, training, and education. In 1999, a PEAC intern working with Professor Craig Johnston petitioned the EPA to repeal a regulatory exemption from the Clean Water Act National Pollutant Discharge Elimination System permit program for vessel discharges. After years of litigation, PEAC obtained a ruling from the Ninth Circuit in 2008 confirming that EPA’s exemption was illegal and the EPA was ordered to withdraw the illegal exemption.

“The longevity of this case is a testament to the commitment of so many in the conservation field,” LaPlante said. “Our clients, our legal team, and the numerous law students who have played a role in this case have worked hard challenging the EPA to uphold the Clean Water Act and stop turning a blind eye to the environmental devastation caused by invasive species.”

To replace the illegal exemption, EPA issued a permit in December 2008 to cover vessel discharges, but many environmental organizations and states alike viewed the permit as far from adequate under the Clean Water Act. In their view, the permit failed to meet federal requirements because, among other reasons, it still allowed ships to discharge untreated ballast water containing invasive species.

As a result, in January 2009 PEAC filed a petition in the Ninth Circuit on behalf of Northwest Environmental Advocates, Center for Biological Diversity, and People for Puget Sound. This petition was later consolidated with other cases pending in the D.C. Circuit and finally resolved this March.

LaPlante said the case was a win for the environment and for the many Lewis & Clark law students who worked on the case over the years. Given its complexities, students had the opportunity to engage a number of conservation groups, as well as collaborate with numerous environmental legal experts and attorneys who helped in the case, particularly the Environmental Law Clinic at Stanford Law School.

“The clinic is fortunate to be able to successfully serve its clients while preparing future environmental law attorneys,” LaPlante said. “Our law students are taking what they learn in the classroom and applying it to real cases. It not only enriches their understanding of the law through hands-on experience, it allows the clinic to better serve its clients in the process.”

Learn more about PEAC and read the settlement agreement for this case.