By Gwyneth K. Shaw
Just after the 2010 Deepwater Horizon oil spill, Louisiana fisher Kindra Arnesen steered her boat around an island near her Louisiana home. The water held gobs “like a brassy-looking peanut butter,” she wrote in a declaration submitted as part of a federal lawsuit. “It smelled like a mixture of petroleum products and death.”
The goo came from Corexit, a widely-used chemical sprayed to disperse oil after a spill — and broadly suspected of being dangerous to people and wildlife. Arnesen’s family has since been plagued with health problems, and she worries about cancer and other longer-term effects.
Dispersant chemicals aren’t affecting just the oil-rich Gulf Coast. In her own declaration, Native Alaskan health worker and tribal organizer Rosemary Ahtuangaruak describes the impact the chemicals — which were used to clean up the 1989 Exxon Valdez spill, among others — have had on the North Slope and surrounding areas. Native Alaskans eat a meat-heavy diet, she explained, and she’s concerned the healthy oils in that meat and fish might be compromised by the dispersants.
“The Arctic is like a totem pole for contaminants,” she wrote. “Contaminants from all over the world end up in the Arctic because of the wind, the ocean currents, and the animal migrations.”
Changing the game
Both women are plaintiffs in a federal lawsuit filed by Berkeley Law’s Environmental Law Clinic against the U.S. Environmental Protection Agency (EPA). The clinic sued in January to compel the EPA to update the National Oil and Hazardous Substances Pollution Contingency Plan, which was last revised in 1994. The plan grants open-ended permission to use chemical dispersants for spills, and the suit argues it does not sufficiently reflect abundant scientific research that shows dispersants can be toxic to people and marine life.
In June, U.S. District Court Judge William Orrick of the Northern District of California handed the plaintiffs what clinic Director Claudia Polsky ’96 calls a “game-changing” win. Orrick ruled that the Clean Water Act does require the EPA to revise the stale plan, using current science as a guide. This case marked the first time a court has addressed the extent of the agency’s obligation to maintain an up-to-date oil spill cleanup plan.
Polsky expects the EPA to appeal the ruling, but says that for now, plaintiffs have won a big piece of the case. She notes that given federal intentions to scale up offshore oil leasing dramatically, planning for adequate spill response is urgent.
“Just this summer, we’ve seen an Exxon Valdez-size spill off of Russia, and a spill off Mauritius from which that nation may never recover,” says Polsky.
She adds that because the clinic’s case focuses on human health harms from the lifecycle of fossil fuels, it provides a helpful additional lens through which to view the problem of America’s ongoing oil dependence. The clinic’s case has already been the subject of dozens of media stories nationwide, from the Washington Post to the Louisiana Times-Picayune and the Alaska Native News.
Natasha Geiling ’21, who worked on the complaint during her time with the clinic, calls the opportunity to work on active federal litigation an incredible experience.
“I came to Berkeley Law because I wanted to help underrepresented communities fight against the fossil fuel industry,” Gieling says. “Our clinic team represented an amazing coalition of clients who have each fought for years to keep their communities safe from the harmful chemicals used in oil spill cleanup. Hearing their stories, I felt so lucky that they trusted the Environmental Law Clinic to bring this case on their behalf.
“Each one of our clients had so much knowledge about the fossil fuel industry, oil spills, and marine ecology — a lot of our work was trying to translate their expertise into legal documents while maintaining their voices and staying true to their goals. To see their stories come together into the complaint we filed in January was a powerful moment.”
Geiling worked closely with Camila Gonzalez ’20 and Jina Kim ’21 during the 2019-20 academic year; Alec Cronin ’20, Jack Siddoway ’19, and Liz Glusman ’20 helped lay the foundation for the suit in earlier years, as did former ELC Fellow Purba Mukerjee ’15.
State House momentum
The clinic is also pursuing a different kind of breakthrough to expose the hidden presence of potentially hazardous chemicals: A California law right-to-know bill forcing manufacturers of cosmetics and personal care products like shampoo and deodorant to spell out the fragrances and flavor ingredients they use that appear on various lists of known-toxic or known-allergenic chemicals. Authored by state Sen. Connie Leyva, the legislation stalled a year ago, but now has substantial momentum, has just been passed by the legislature, and awaits Gov. Gavin Newsom’s signature.
The bill — co-conceived by the clinic and client Breast Cancer Prevention Partners (BCPP) — targets ingredients such as synthetic musks, which can disrupt hormone systems; the carcinogen styrene; and phthalates, which have been linked to asthma and early puberty.
Janet Nudelman, BCPP’s director of program and policy, says they couldn’t have drafted the bill, which would prevent manufacturers from claiming trade secret protection for fragrance and flavor chemicals in cosmetic products, without assistance.
“We needed the clinic’s help to unpack a very complicated ingredient disclosure issue that ultimately guided our California legislative advocacy on an important consumer and worker right-to-know issue in a way that didn’t trigger federal preemption of our state legislative initiative,” Nodelman says. “As a not-for-profit organization we never, not in a million years, could have paid for or produced the quality of work that Claudia and her students generated.”
The legislation would also close a federal labeling loophole that allows sometimes even hundreds of chemicals to hide under the word “fragrance” and “flavor” on the labels of beauty and personal care products that smell or taste good with no regulatory oversight of the safety of those ingredients.
“As in so many areas, this is a chance for California to model sound environmental health policy and wait for Congress to catch up,” Polsky says.