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Sept. 23 --A federal district court has ruled that the Environmental Protection Agency must determine within six months whether numeric nutrient criteria are needed for the states in the Mississippi River Basin and the northern Gulf of Mexico (Gulf Restoration Network v. Jackson, 2013 BL 253612, E.D. La., No. 2:12-cv-00677, 9/20/13).
In a Sept. 20 decision, the U.S. District Court for the Eastern District of Louisiana ruled in favor of a coalition of environmental groups in holding that EPA must conduct a necessity determination on whether nutrient limits are required for the area. The court said the study must be conducted within 180 days from Sept. 20.
In its opinion, the district court cited the U.S. Supreme Court's 2007 decision in Massachusetts v. EPA in which the high court ruled EPA must regulate greenhouse gases or explain why it is not doing so ( 549 U.S. 497, 63 ERC 2057 (2007)).
“In sum, the Court is persuaded that Massachusetts v. EPA requires EPA to conduct a necessity determination in response to Plaintiffs' rulemaking petition. The Court therefore remands this matter to EPA for further action consistent with the requirements of Massachusetts v. EPA,” the court said.
However, the court rejected the argument that the EPA must make a science-based necessity finding, saying the Clean Water Act itself gives no express instructions as to the factors that the agency should consider when it makes a determination.
Excessive nitrogen and phosphorus discharges from agricultural fertilizer applications, wastewater utilities, fertilizer manufacturing plants, and power plants lead to low oxygen conditions that result in fish kills, creating a dead zone.
EPA limits on nutrients could affect agricultural operations throughout the Mississippi watershed, the second-largest watershed in the world encompassing more than 40 percent of the U.S. land area.
A coalition of 11 environmental groups, including the Natural Resources Defense Council and the Gulf Restoration Network, sued the EPA in March 2012, saying the agency failed to fulfill its Clean Water Act obligations by denying a 2008 petition that sought to impose quantifiable water quality standards on waters that have excessive nitrogen and phosphorus runoff draining into the basin and the Gulf of Mexico.
The groups said the EPA violated the Administrative Procedure Act by acting without making a necessity finding. They said the EPA response in March 2011 was illegal because the denial relied on nonscientific data and did not constitute a necessity finding.
The groups said the Clean Water Act allows the federal government to act when states fail to set water quality standards, citing Section 303(c)(4)(B).
The court accepted the coalition's argument that the ruling in Massachusetts v. EPA makes clear “that EPA does not have discretion to simply not respond to the request for action, one way or the other, at all, based on extra-statutory considerations.”
NRDC Senior Attorney Ann Alexander told Bloomberg BNA Sept. 23 that the ruling was a victory for the coalition.
In a statement, Alexander said the EPA has for too long stood on the sidelines, watching the nation's waters choke on algae. “They have acknowledged the problem for years but could not muster the gumption to address it,” she said. “The court is telling the Agency that it is time to stop hiding from the issue and make a decision already.”
On the court ruling against NRDC on the need for EPA to make a science-based decision finding, Alexander said, “Well, EPA can't just do a coin toss and respond. There is a clear body of evidence that says EPA will have to make a rational finding.”
Speaking on behalf of the EPA, Justice Department spokesman Wyn Hornbuckle told Bloomberg BNA Sept. 23 that “we are reviewing the decision.”
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