Gulf Restoration Network v. Jackson – EPA must decide if it can impose numeric nutrient criteria for the Mississippi and Gulf

NOTE: This case has been appealed as of November 18, 2013 by the EPA. 

The recent district court decision of Gulf Restoration Network v. Jackson is another win for environmental groups seeking to impose regulations through judges instead of through regulators or elected legislators.

On July 30, 2008 the Gulf Restoration Network filed a Petition for Rulemaking Under the Clean Water Act that urged EPA to establish water quality standards to control nitrogen and phosphorous pollution in the Mississippi River and the Northern Gulf of Mexico. Plaintiffs also asked EPA to establish TMDLs for nitrogen and phosphorous for the Gulf of Mexico, the Mississippi River, and each Mississippi River tributary that fails to meet the numeric standards set for nitrogen and phosphorous for which a TMDL had not already been prepared. Section 303(c)(4) of the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq. Section 303(c)(4) provides:

The Administrator shall promptly prepare and publish proposed regulations
setting forth a revised or new water quality standard for the navigable waters

(A) if a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such waters is determined by the Administrator not to be consistent with the applicable requirements of this chapter, or
(B) in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of this chapter.

The Administrator shall promulgate any revised or new standard under this
paragraph not later than ninety days after he publishes such proposed standards,
unless prior to such promulgation, such State has adopted a revised or new water
quality standard which the Administrator determines to be in accordance with
this chapter.
33 U.S.C. § 1313(c)(4)(A), (B) (West 2001) (emphasis added)

EPA denied the Petition on July 29, 2011, stating that it disagreed that
use of its federal rulemaking authority would be the most effective or practical means of addressing the problem. The EPA further explained that the most effective and sustainable way to address nutrient pollution in the Mississippi and elsewhere would be to continue to work cooperatively with states to strengthen nutrient management programs.

The Plaintiffs filed a Complaint in federal district court on March 13, 2012. The federal complaint alleges that the denial violates the APA for two reasons:

1) the Denial is not supported by reasons that conform to the relevant statutory factors in § 303(c)(4)(B) of the CWA, including a reasoned explanation as to why revised or new water quality standards are not “necessary” to meet the requirements of the CWA; and

2) the Denial is contrary to the undisputed evidence that numeric nutrient criteria are “necessary” to meet the requirements of the CWA.

Plaintiffs requested that the court declare that EPA’s denial of the Petition for Rulemaking was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law in violation of the APA, 5 U.S.C. § 706(2)(A), and the CWA, 33 U.S.C. § 1313(c)(4)(B). The Plaintiffs moved the court to order EPA to provide an adequate response within 90 days.

The court began by agreeing that the lawsuit was about EPA’s refusal to make either an affirmative or negative necessity determination in response to Plaintiffs’ rulemaking petition. Next, the court accepted the underlying premise advanced by the Plaintiffs that EPA relied on non-statutory factors in declining to make that determination. Next, the court was forced to deal with the U.S. Supreme Court case of Massachusetts v. EPA, 127 S.Ct. 1438 (2007). In Massachusetts, the Supreme Court held that the EPA could not refuse to engage in rulemaking to regulate carbon dioxide emissions from cars. The reason given was that the statute required the EPA to regulate pollutants, pollutants is broadly defined, and greenhouse gases are deleterious to air quality. The Supreme Court essentially inserted its own rulemaking discretion in making that determination (See, Scalia, dissenting) and laid the groundwork for the Gulf Restoration case and cases to follow. Now, Article III judges can make their own findings as to the reasonableness of scientific standards and order the executive branch to go forward with rules in line with the court’s exercise of executive authority. It goes without saying that once a court buys into this paradigm it will make short work of any executive agency that fails to draft the regulations in a way that pleases the court.

Therefore, the court in Gulf Restoration felt compelled to draw the same conclusion: that Massachusetts v. EPA requires EPA to conduct a necessity determination in response to Plaintiffs’ rulemaking petition. The Court remanded the matter to EPA for further action consistent with the requirements of Massachusetts v. EPA. The court next ordered that the EPA report back to the court within 180 days.

Where are we headed with this case? As long as the United States Supreme Court sanctions the substitution of its own discretion for that of the Article II executive branch, then it is likely that this case will eventually be affirmed on appeal and the EPA will be forced to start setting numeric nutrient criteria for pollutants in the Mississippi, Mississippi tributaries, and the Gulf.

The risk for jobs and economic and municipal stability is a de facto imposition of what is essentially a moratorium on new NPDES permits or permit modifications on industries or municipal wastewater treatment plants holding or seeking NPDES permits. This is because the EPA will likely be forced to chase TMDL standards upstream in order to meet the numeric criteria.  I will admit for the purpose of argument that environmental groups have as a goal cleaner water and not the destruction of American Industry.  But I suspect that the environmental groups want to achieve that goal by choking off industrial and municipal development. Why? Because only then will they have any hope of eventually, trying to impose regulations on the use of nutrients on row crops. I do not know how they can achieve the latter objective under the current statutes, but the former objective, if successful, will result in economic stagnation in America’s heartland as industries are forced to move to east or west coast drainage basins in order to stay in business. Of course, those basins are already subject to tight discharge limits, so more industry will be forced to look overseas and across international borders in order to produce the food and goods that American consumers and industry want.

My objection to the tactics employed by groups like the Gulf Restoration Network is that they are using the court system to get judges to substitute their own subjective judgment in lieu of allowing the executive branch to execute the laws drafted by the legislature. It is dangerous to try to legislate through the court system.

UPDATE: The EPA filed an appeal with the 5th Circuit Court of Appeals on November 18, 2013. 

About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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