This week the Center for Biological Diversity (“CBD”) served a sixty-day notice of intent to sue the U.S. Coast Guard (“USCG”) and U.S. EPA (EPA) for “ongoing and imminent violations of the Endangered Species Act (“ESA”) . . . resulting from the development and implementation of the New York and New Jersey Area Contingency Plan for multi-agency prevention of and response to oil and hazardous waste spills in the New York Harbor and lower Hudson Plan [the “Plan”].”  

The notice asserts that the oil/hazardous waste spill prevention and response actions outlined in the Plan (including the use of dispersants, surfactants, biological additives and bioremediation) may have adverse effects on ESA-listed species present in the planning area (including the piping plover, green sea turtle, and humpback whale), and the agencies have not conducted the required ESA Section 7 consultation with U.S. Fish and Wildlife Service and National Marine Fisheries Service. (16 U.S.C. § 1536(a)(2)).  The notice observes that this failure to comply with Section 7 could also expose spill responders to civil and criminal penalties under ESA Section 9 (see 16 U.S.C. §§ 1538(a) and 1540(a),(b)) for takings of listed species.  The notice further petitions the agencies to undertake revision of the Plan “in light of increased rail and barge transport of novel oil products and in light of the latest science on oil spill response.”

The notice describes a current “unprecedented boom” in the transport of oil through the Port of New York and the lower Hudson River by rail and barge, in part due to increases in production from fracking of the North Dakota Bakken shale, and the consequent increased risk  of spills and need for spill response.  The notice also points out that new oil products are being transported in increasing quantities, and that type of oil transported/spilled, in addition to quantity, affects the impacts of spills: for example, it states, “Lighter fuels, including light crude oils, like that from the Bakken Region of North Dakota, are generally more explosive, more toxic, and can penetrate shorelines more quickly and deeply . . . . Heavy oils, including for example the heavy oils and diluted bitumen produced from strip-mined Alberta tar sands, persist longer and can smother shorelines and the biota that live there.”  Noting the U.S.’s already long history with oils spills and response actions, some of which “might do more harm than good,” the notice advocates for “careful and advanced planning” to assure that “protection of species can be maximized and inadvertent harm to species minimized.”