Alaskan Eskimo Whaling Comm'n v. EPA

When the Environmental Protection Agency (“EPA”) makes a contrary determinations of a non-contact cooling water causing unreasonable degradation of marine environments, then a court may allow the EPA to reconsider its decision with regard to issuing permits with the new evidence.

The Alaska Eskimo Whaling Commission (“AEWC”) represents those who participate in the hunting of bowhead whales. The Environmental Protection Agency (“EPA”), under the Clean Water Act’s National Pollutant Discharge Elimination system provision, issued the Beaufort Permit (“the Permit”) authorizing the oil and gas exploration facilities to discharge into thirteen waste streams into marine waters of the Beaufort Sea, with other restrictions and requirements. AEWU appeals the Permit. On appeal, the Ninth Circuit determined whether EPA adequately considered how the discharges would interfere with the subsistence hunting within the Beaufort Sea. The panel explained that this discharge would deter the whales, in turn making hunting less productive and more dangerous. When approving the permit, the EPA concluded that non-contact cooling water would not lead to unreasonable degradation to the marine environments, due to the requirements and restrictions imposed on the permit. However, the EPA later admitted that it found a misstatement in the record and in its brief. The EPA provided a letter that showed examples of how cooling water could in fact dissipate and mix. The panel claimed that because the EPA provided contrary information in the letter, the court could not have come to the same conclusions as the EPA. Therefore, it wants the EPA to address the issue. AEWC also claims that the EPA did not base its decision on the effect of disposal of pollutants on aesthetic, recreation, and economic values, nor did it focus on the effect of alternate uses on the oceans. Additionally, AEWC claimed that the EPA needed to consider whether a discharge would cause degradation of marine environment, as required by the Clean Water Act. However, the panel claimed that the EPA did look into this matter. PETITION GRANTED IN PART; DENIED IN PART; and REMANDED for further proceedings consistent with this opinion.