On November 15, 2010, EPA issued a memorandum “Integrated Reporting and Listing Decisions Related to Ocean Acidification” to the Water Division Directors, Regions 1-10. See memorandum, available at, https://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/upload/oa_memo_nov2010.pdf. The memorandum was prepared as part of the settlement of the lawsuit from the Center for Biological Diversity’s (CBD) challenge of EPA’s approval of Washington state’s 2008 Clean Water Act (CWA) 303(d) list, arguing failure to include coastal waters as impaired for marine pH. CBD v. EPA, No. 2:09-cv-00670-JCC (W.D. Wash.). The settlement required EPA to issue a memorandum explaining EPA’s next steps with regard to the interplay between ocean acidification (OA) and the CWA 303(d) program.
OA is the term used to describe the decrease in the pH of the Earth’s oceans caused by the uptake of carbon dioxide from the atmosphere. EPA describes OA as follows:
Ocean acidification, like climate change, is primarily caused by increasing carbon dioxide (CO2) concentrations in the atmosphere. As a result of absorbing large quantities of human-made CO2 emissions, ocean chemistry is changing, which is likely to negatively affect important marine ecosystems and species including coral reefs, shellfish, and fisheries. In addition, OA could cause these ecosystems to become even more vulnerable to other environmental impacts, especially those from climate change, such as increases in sea temperatures (NRC 2010; Ridgwell and Schmidt 2010; US EPA 2009b, 2010c; NOAA 2008; Hoegh-Guldberg et al. 2007). Id.
After evaluating available information and public comment, EPA “concluded that States should list waters not meeting water quality standards, including marine pH WQC, on their 2012 303(d) lists, and should also solicit existing and readily available information on OA using the current 303(d) listing program framework” and acknowledged “that information is absent or limited for OA parameters and impacts at this point in time and, therefore, listings for OA may be absent or limited in many States.” Id.
In conclusion, while this memorandum appears to be EPA’s first steps towards regulation of CO2 under the CWA, EPA acknowledges “EPA’s actions under the Clean Air Act (CAA) to better understand and address the environmental impacts associated with greenhouse gas (GHG) emissions, including OA and climate change, currently show the greatest promise in addressing these serious environmental challenges.” Id.
This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.