On December 15, 2015 the Federal District Court for the Eastern District of Louisiana dismissed a lawsuit by Gulf Restoration Network and other not-for-profit environmental organizations. Gulf Restoration Network v. Jackson (E.D. La. December 15, 2016) 12-677 Cross Motions for Summary Judgment post- remand. The case involved a petition by the environmental groups challenging a decision by the EPA not to even make a decision about rule making and asking that the court order the EPA to begin rule making to require numeric water quality standards for portions of the ocean protected by the Clean Water Act but outside the jurisdiction of any state.

The EPA refused to  the demand, stating that the Clean Water Act gave it discretion to work with the various states. The most recent decision follows a remand on an earlier appeal to the Fifth Circuit where the Appeals Court reversed an order by the same District Court on the issue of whether the EPA was required to make a 303(c)(4)(B) necessity determination in response to the plaintiffs’ petition for rule making. The EPA stated that the Clean Water Act clearly gave the EPA discretion to work with the states on water pollution issues and that it was within its rights to “refuse to decide to decide.”

On remand the District Court, its hands largely tied by the Court of Appeals, had before it a single issue: Was the explanation by the EPA for why it declined to make a necessity determination legally sufficient? The Court looked at the EPA’s argument that it disagreed that federal rule making would be the most effective or practical means of addressing nitrogen/phosphorous problems at that time. Instead, the EPA argued that it would be better to “build on its earlier efforts and to continue to work cooperatively with states” and that the plaintiffs’ proposed rule making was “unprecedented and complex.” Utilizing a “high deference” standard required by  Gulf Restoration Network v. McCarthy, 783 F.3d 227 (5th Cir. 2015), the Court agreed with the EPA that its explanation was sufficient.

The case is available here: http://www.agri-pulse.com/uploaded/gulf-restoration-network-v-epa-op-121516.pdf

James Pray

BrownWinick Law Firm