EPA fighting order that it decide on Gulf of Mexico Dead Zone rule making

By Jennifer Larino, Nola.com
December 6, 2014

 dead zone map 2014

This color-coded map shows oxygen levels in bottom waters of the Gulf of Mexico off the Louisiana coast. The darkest red areas, surrounded by a black line, show where the oxygen level is below 2 parts per million, which is considered hypoxia or the "dead zone." (NOLA.com | The Times-Picayune)


The U.S. Environmental Protection Agency wants the federal appeals court in New Orleans to overturn an order that forces the EPA to decide whether federal rules are needed to curb the flow of pollutants into the Mississippi River. The pollutants ultimately feed a low-oxygen "dead zone" along Louisiana’s coast each spring.

At a Thursday hearing before the 5th Circuit Court of Appeals, federal attorneys told a three-judge panel that the EPA — not the courts — is responsible for setting priorities for water quality and other issues. The agency argued that the lower-court order allows the rule-making process to "be whipsawed back and forth" by interest groups.

At issue is U.S. District Judge Jay Zainey’s ruling from 2013 that the EPA must make a "necessity determination" on whether a federal crackdown on water pollutants in the Mississippi River is required. The 5th Circuit granted the EPA’s request to delay Zainey’s order while it appealed the agency appeals.

Zainey’s ruling was a win for environmental groups that argue the EPA is dragging its heels in addressing the pollution problem. Several groups had asked the EPA in 2008 to draft new regulations limiting the flow of nitrogen and phosphorus running off Midwest farms, sewage treatment plants and other sources into the Mississippi and its tributary rivers.

The "dead zone" that fans out from the Mississippi River outlet into the Gulf of Mexico each spring is caused by algae, which kicks into rapid growth mode when large amounts of agricultural nutrients wash into the ocean. The nutrients feed massive algae blooms, which sink to the ocean floor and decompose, consuming most of the available oxygen in the water and leaving worms, clams and other bottom-dwelling sea life to suffocate.

In 2013, the gulf dead zone covered at least 5,800 square miles, according to estimates from the National Oceanic and Atmospheric Administration. That’s about the size of Connecticut. 

The Gulf Restoration Network, a New Orleans-based conservation group, and the Natural Resources Defense Council are among those groups calling for more stringent rules. The EPA denied the 2008 request, saying it was too early for the federal government to step in.

The federal Clean Water Act makes states responsible for regulating water quality, and the EPA said it would continue to work with states to curb water pollutants. Environmental groups argue that states have failed to act for years.

At Thursday’s hearing, Ann Alexander, an attorney with the Natural Resources Defense Council, said federal law requires the EPA to take action if individual states will not. She said Zainey’s court order is appropriate and should stand. "On this particular issue, it (has been) an entire decade of relentless avoidance of the problem," she said.

If the 5th Circuit does not overturn Zainey’s order, the EPA is asking that it be sent back to his court for clarification.

According to the order, the EPA has 180 days to make a formal decision on whether it will create regulations to curb nutrient pollution. The agency may decide in favor or against taking action, but it must provide a clear explanation of the legal and scientific basis for its action, according to the order.

If the agency cannot come to a decision, it must explain why and give a timeline for when it expects to be able to do so. The agency says its wants clarification on the last option.

In his order, Zainey said the EPA is not limited to making that call based solely on environmental factors.

Zainey was appointed to the bench by President George W. Bush.

The panel of 5th Circuit judges includes Judge Edith Brown Clement, Judge Patrick E. Higginbotham and Judge Stephen A. Higginson. Higginbotham was appointed by President Ronald Reagan, Clement was appointed by President George W. Bush and Higginson was appointed by President Barack Obama.

The panel is expected to reach its decision in coming months.

This story was updated at 8:15 a.m. on Friday, Dec. 5 to reflect the correct names of the judges on the 5th Circuit Court of Appeals panel.

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The original story can be found here: http://www.nola.com/business/index.ssf/2014/12/epa_fighting_order_forcing_it.html