Environmental groups have won a significant legal victory to compel the U.S. EPA to take action in response to the Gulf of Mexico “dead zone,” caused by nitrogen and phosphorus pollution in the Mississippi River. In Gulf Restoration Network v. Jackson, the U.S. District Court for the Eastern District of Louisiana held that the EPA must make a “necessity determination” regarding water quality standards under the Clean Water Act in response to a petition for rulemaking. Such action would be a crucial first step towards establishing strong numeric pollution limits and controls for nutrient pollution.
At issue was the Gulf Restoration Network’s (Network) petition for rulemaking, which requested that the EPA promulgate federal standards to control nitrogen and phosphorous pollution. Sparking the Network’s petition was the large “dead zone” in the Gulf of Mexico, near the mouth of the Mississippi River, which has been caused by excess nitrogen and phosphorous runoff from states along the river. The Network claimed that both states and the EPA have taken a “hands-off” approach to dealing with the problem; states have not incorporated numeric nitrogen and phosphorous limits in their NPDES permits, and the EPA has not used its authority to backstop such regulatory shortcomings.
The Network claimed the EPA must act under Clean Water Act § 303(c)(4)(B), which provides that the Administrator shall propose regulations with “a revised or new water quality standard for the navigable waters involved…in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of this chapter.” The Network’s petition requested, among other things, that the EPA use this authority to impose federal numeric standards for nitrogen and phosphorus in parts of the ocean covered by the CWA, or at a minimum issue such regulations for the mainstream of the Mississippi River and northern Gulf. The EPA issued a formal denial (Denial) of the Network’s petition, claiming that its federal rulemaking authority was not the appropriate means of addressing the nitrogen and phosphorous problem. Moreover, the EPA stated that the magnitude and complexity of complying with the Network’s request would be a tremendous administrative burden.
The Network subsequently filed a complaint alleging that the Denial violated the APA because it was (1) not supported by relevant factors under the CWA, including a reasoned explanation as to why EPA standards were not “necessary” to meet the CWA requirements, and (2) that the Denial was contrary to evidence that numeric standards were necessary.
After denying the EPA’s motion to dismiss, the court turned to Massachusetts v. EPA for guidance in resolving the question of whether a “necessity” determination was required, and if so, what factors were relevant in that determination.
In Massachusetts v. EPA, it was held that the EPA’s denial to regulate greenhouse gas emissions was not in accordance with the law because its reasons for inaction did not conform to the requirements of the Clean Air Act. The CAA required the EPA to determine if the pollutant at issue contributed to climate change or endangered the public health, but it failed to do so. While the EPA has discretion as to the result of such a determination, it could not avoid making it in the first place. In other words, “the EPA lacks discretion to simply decline to make a threshold determination in response to a rulemaking petition even where the statutory text does not explicitly require it to do so.”
Citing that result, the court in Gulf Restoration Network v. Jackson held that the Denial was contrary to law because the EPA did not make a necessity determination. It stated that “just as EPA’s response to the rulemaking petition in Massachusetts v. EPA was contrary to law because EPA did not make a judgment, the Denial was contrary to law because EPA did not make a necessity determination.”
That was not the end of the matter, however. In addition, the Network challenged the EPA’s failure to use scientific data in its Denial. Here, the court was more deferential to the EPA, stating that Massachusetts v. EPA does not restrain the Agency’s use of policy judgments, nor does it preclude it from relying on factors not explicitly stated in the statute.
Thus, the Network’s motion for summary judgment as to making a necessity determination was granted, and its motion as to requiring the use of scientific data was denied.
Looking ahead, the EPA will need to assess whether state water quality standards are sufficiently addressing nutrient loading in the Mississippi River and at its mouth in the Gulf of Mexico. If it is determined that the state standards are insufficient, it will be necessary for the EPA to propose new standards to fulfill the requirements of the Clean Water Act. This would pave the way for federal action to address the phosphorous and nitrogen pollution with numeric limits and stricter pollution controls. And if the EPA does not issue a necessity finding, expect more litigation by environmental groups pursuant to the Administrative Procedure Act and CWA to move the agency forward.
Thanks to Kyle M. Peczynski (B.A., University of Michigan; J.D., Wayne State University Law School, expected 2014) for this student post.