Interstate Environmental Impact Assessment

• Date: 01 July 2009

7-2009 nEwS & anaLYSiS 39 ELR 10667

Interstate Environmental

Impact Assessment

by Noah D. Hall

Noah D. Hall is Assistant Professor, Wayne State University Law School, and Executive Director, Great Lakes Environmental Law Center.

I. The BP Lake Michigan Pollution Fight

In June 2007, the state of Indiana proposed issuing a permit

pursuant to the federal Clea n Water Act (CWA)1 to the BP

(British Petroleum) Oil Company for the discharge of 1,584

pounds of a mmonia and 4,925 pounds of suspended solids

daily into Lake Michigan from BP’s Whiting, Indiana, ren-

ery. BP sought the permit as part of a $3 billion expansion of

its Whiting facility’s capacity to rene heav y crude oil from

Alberta, Canada. e BP Whiting renery, originally built

in 1889 by John D. Rockefeller, is now the fourth largest

renery in the country. e permit wa s issued by Indiana

in August 2007, with almost no opposition from within the

state. Indiana Gov. Mitch Daniels supported the renery

expansion and permit issuance, lauding it as “another huge

step in Indiana’s economic comeback.”2

However, once news of the renery expansion and permit

issuance spread to neighboring Illinois, public and political

opposition was dramatic. Chicago Mayor Richard M. Daley

and then- Gov. Rod Blagojevich of Illinois harshly criticized

both BP and Indiana. One Republican lawmaker from Chi-

cago attacked BP’s marketing claims of “beyond petroleum”

as really standing for “bad polluter.”3 e rock ba nd Pearl

Jam sang a protest song “Don’t Go to BP Amoco” at the

Lollapolloza music festival in Chicago.4 Over 50,000 citi-

zens signed petitions opposing the plant expansion and per-

Author’s Note: is Article is based on a previous article, Noah D. Hall, Politi-

cal Externalities, Federalism, and a Proposal for an Interstate Environmental

Impact Assessment Policy, 32 H. E. L. R. 49 (2008), that was pre-

sented at the inaugural Environmental Law Junior Faculty Workshop hosted by

Harvard Law School. I am grateful to the host of the workshop, Jody Freeman of

Harvard Law School, and the other two sponsors, Ann Carlson of UCLA and

Dan Farber of UC Berkeley’s Boalt Hall, as well as the other workshop partici-

pants. Brad Karkkainen, a leading expert on NEPA reform, provided valuable

comments and insights.

1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

2. Kari Lydersen, Pollution Fight Pits Illinois vs. BP, Indiana, W. P, Aug.

23, 2007, at A11.

3. Dan Egan, BP Backpedals on Increasing Lake Pollution, M J. S-

, Aug. 23, 2007, at A1.

4. Pearl Jam, Don’t Go to BP Amoco (live at Lollapalooza), available on YouTube:

http://www.youtube.com/watch?v=DFSM_lkk22Q&NR=1.

mit.5 Opponents initially sought action and oversight from

the U.S. Environmental Protection A gency (EPA), but EPA

made clear early on that it would not stop Indiana from issu-

ing the permit.

After the permit wa s issued and public opposition

mounted, Indiana politicians held a hearing to explore the

issue. However, due to how the hearing was conducted, it

only exacerbated the conict. Mayor Daley sent two top city

ocials to the hearing, but the Indiana lawmaker chairing

the hearing would not allow the Chica go ocials to testify.

e resulting war of words demonstrates the level of conict

that can arise in interstate environmental disputes. e Chi-

cago Park Superintendent, one of the Chica go ocials that

intended to testify, was “insulted” by the snub and stated:

“[T]hey can keep their pollution on their side of the lake.

is is ridiculous.”6 e Indiana lawma ker that cal led the

hearing was unapologetic. While cla iming that time con-

straints prevented him from allowing the Chicago ocials

to testify, he also stated that “this is an Indiana hearing” and

“[w]e here in Indiana know what the issues are.”7

Unfortunately, what was lost in the political g hting was

the opportunity to exchange information that could have

minimized the conict. e city of Chicago commissioned

a report showing that BP could upgrade its wastewater treat-

ment for less than $40 mil lion (a signica nt sum, but only

an increase of about 1% for the total project cost of over

$3 billion dollars).8 Equa lly important, the state of Indiana

missed an opportunity to educate the concerned public in

Illinois. e deputy water ad ministrator for the Wisconsin

Department of Natural Resources, who was not involved in

the dispute (even though Wisconsin also shares Lake Michi-

gan waters), concluded that there would not be “a prob-

lem [locally or lakewide] as a result of t his discharge.”9 A

5. Michael Hawthorne, EPA Will Ask BP to Oset Pollution, C. T., Aug. 15,

2007, at 1.

6. Andrew Herrmann, Chicago Gagged at Hearing on BP, C. S-T, Aug.

23, 2007, at 1.

7. Id.

8. Tim Evans, BP Can Upgrade Plant for $40M, Report Concludes, I

S, Sept. 4, 2007, at 1.

9. Egan, supra note 3.