Ecotoxicologist Craig Downs describes his main work goal as “preventing zombies” — communities of coral or other marine animals that appear to be thriving, but on closer inspection turn out to consist only of adults incapable of reproducing. These populations are like the “living dead,” a generation away from disappearing, according to scientists who discovered them in 2016 in dying reefs in the Caribbean.
Globally, coral reefs are in decline for a number of reasons, including climate change, coastal development and pollution. Over the years, Downs, executive director of the Haereticus Environmental Laboratory in Virginia, has studied sunscreen, microplastics and, most recently, beach showers in an effort to understand the effects of these man-made substances on some of the world’s most popular vacation destinations. . His latest study, published in July, could also breathe new life into an old law.
In April, the Clean Water Act, the cornerstone of the US water pollution law, was struck by what many environmentalists describe as a severe blow. In a controversial shadow decision, the Supreme Court has voted to repeal states’ power to block federally approved but environmentally harmful projects. Commentators rejected the attempt to deprive states of the right to protect their own waters, one of the core principles enshrined in the law.
Downs’ study, which suggests that beach showers leach pollutants into the sea, concerns another part of the law, paragraph 502, paragraph 14 to be precise. He and his colleagues claim the showers are “point sources,” defined by the Clean Water Act as “some identifiable sources of pollution from which pollutants are discharged.” If Downs and his colleagues are right, lawyers say, it would significantly change the current understanding of the 50-year-old statute, potentially leading citizens to sue many unsuspecting municipalities or resorts.
“I wasn’t terribly surprised to hear about this study,” said Peter Prows, managing partner of the environmental law firm Briscoe Ivester & Basel in San Francisco. One of his clients, the Republic of Palau, in the western Pacific, banned several sunscreens after linking a crash in its famous golden jellyfish population to the pollution from sunscreen left behind by tourists.
Nearly a decade ago in Hawaii, a lifeguard by the name of Tamara Paltin — now a Maui politician — asked Downs how much sunscreen came from a local beach shower that spilled over the sidewalk and nearby grass. She was also curious about showers in the rest of the county, including Maui and three other islands. Many of the installations discharge their waste water directly into the sea.
Although he was researching sunscreen pollution at the time, Downs found none of it. Years later, William White, a co-author of the new paper, told Downs about erosion caused by another rainstorm at Waialea Bay on the island of Hawaii and urged Downs to take a look. “He imprinted it into my brain,” Downs said. “The people who lived there always wondered if it was a problem.”
When Downs and his colleagues tested the soil and water around showers on three Hawaiian islands in 2019, levels of sunscreen chemicals, including oxybenzone, avobenzone, benzophenone-2, octocrylene and octinoxate, were alarmingly high.
The resulting research paper is peppered with references to discharge permits for pollutants and precise legal definitions of “pollutants” and “point sources”. The first few lines of the discussion section align with the opening paragraphs of the US Supreme Court’s opinion in County of Maui vs Hawaii Wildlife Funda case in which a group of local NGOs fought a water-polluting county—and won.
That this feat was possible points to the power of the Clean Water Act. It was enacted in 1972 and had bold goals: to restore and preserve the integrity of the nation’s water and eliminate water pollution by 1985. To achieve this, legislators equipped the statute with a variety of instruments, including “civil affairs.” ‘, allowing ordinary Americans to take legal action against polluters – a right being exercised by Hawaii Wildlife Fund against Maui County Council.
The county had argued that pollutants seeping from injection wells where the wastewater was stored were not discharges from a point source because the wells did not discharge directly into the sea; the waste traveled there indirectly via groundwater. The court ruled that the “language, structure and purpose” of the law would never have left such a large loophole open to polluters.
Any case against pollution from beach showers should show that sunscreen is a pollutant. According to Anupa Asokan, senior ocean advocate for the National Resource Defense Council and a board member of the Surfrider Foundation, an environmental nonprofit, “there is science to back up the fact that some chemicals in sunscreen aren’t great for coral.” Downs himself has published a number of papers on the matter, including a 2015 study suggesting that oxybenzone and octinoxate could contribute to bleaching Hawaiian reefs. These findings led to a statewide ban on the two chemicals.
