Federal judge orders EPA to determine ‘necessity’ of regulating nutrients entering Mississippi River

By Mark Schleifstein, NOLA.com/ The Times-Picayune
23 September 2013


A federal judge in New Orleans has handed environmental groups what amounts to half a loaf in their push for federal regulations on the flow of pollutants into the Mississippi River that fuels the annual spring low-oxygen “Dead Zone” along Louisiana’s Gulf coast.

U.S. District Judge Jay Zainey on Friday ruled that the Environmental Protection Agency must issue a formal finding of whether federal rules are necessary, pushing the agency in the direction environmental groups requested. But the judge also said the agency is not limited to making that judgment solely on environmental reasons.

The ruling gives EPA 180 days to issue a “necessity” ruling on whether more stringent regulations are required.

A number of environmental groups active along the Mississippi and its tributaries, including the New Orleans-based Gulf Restoration Network and the nationalNatural Resources Defense Council, asked EPA in 2008 to issue new rules that would require reductions in phosphorus and nitrogen entering the river from Midwest farms and other sources. 

The environmental groups were represented by attorneys with the Tulane Environmental Law Clinic and the NRDC.

Their petition asked EPA to establish numerical water quality standards for nitrogen and phosphorus pollution in the Mississippi River and the northern Gulf of Mexico. They also asked EPA to establish “total daily maximum loads,” specific numerical amounts of the two pollutants that would be allowed in individual segments of the river and its tributaries. 

The daily loads would impact any existing and future permits for pollution sources along those stretches, likely polluters to reduce the release of nitrogen and phosphorus when permit renewals or new permits were requested.

The environmental groups argue that individual states along the river, who are given the first responsibility to regulate water pollutants under the Clean Water Act, have done little to stop the pollutans’ flow and reduce the size of the Gulf’s Dead Zone.

The low oxygen conditions result when freshwater rich with nutrients from the river flows into the Gulf in the spring, spawning blooms of tiny single-cell algae, which eventually die, sink to the Gulf floor and decompose, using up oxygen. The hypoxic conditions continue until oxygen is mixed into the lower water by hurricanes or other storms during the summer.

Environmental groups contend that under the Clean Water Act, EPA has not met its responsibility to get the states to properly regulate the pollutants, or to take over the regulation process itself when the states failed to act.

EPA denied the request for rulemaking, saying it was using a variety of approaches to reduce nutrients, most of which were voluntary. The agency also said that it was premature to use its federal rulemaking authority.

The agency also said that the process of setting federal limits on nutrients for even just the 10 states along the shores of the main channel in the Mississippi River basin would result in a drain on EPA’s ability to operate. Even if federal rules were set, EPA said, the burden of enforcing them nationwide would be insurmountable.

Instead, it said the best way to address the issue was to build on its earlier efforts, working cooperatively with states and tribes to manage nutrients.

Environmental groups filed suit in 2011 charging that the law required EPA to reduce pollutants in the river, and that the agency’s response to their petition violated the federal Administrative Procedures Act because it didn’t explain why the EPA’s refusal to issue the regulations was not “necessary” to meet the requirements of the Clean Water Act.

A number of states along the river joined the suit, opposing the environmental groups, as did a variety of organizations representing agricultural interests, including the National Farm Bureau Federation

In his ruling, Zainey agreed that that the EPA violated the federal Administrative Procedures Act by refusing to explain why revised or new water quality standards to regulate the two pollutants are not “necessary” under the Clean Water Act.

But Zainey also ruled that the language of the act does not prohibit the EPA from using non-scientific reasons, such as those it used in its petition denial, in making that determination.

Zainey based much of his ruling on a U.S. Supreme Court case involving global warming.

In that case, the Supreme Court upheld a challenge by Massachusetts and other states of EPA’s denial to regulate greenhouse gas emissions, such as carbon dioxide, also because the agency violated the Administrative Procedures Act in failing to explain the necessity of not acting.

But the Supreme Court also ruled, in the same case, that the Clean Air Act specifically required EPA to answer the “necessity” question based on scientific evidence that greenhouse emissions were causing harm.

In that case, Zainey said, “EPA could avoid taking further action only if it were to determine that greenhouse gases do not contribute to climate change or if it were to provide some reasonable explanation as to why it could not or would not exercise its discretion to determine whether they do. But EPA could not validly decline to regulate by citing policy judgments that have nothing to do with whether greenhouse gas emissions contribute to climate change.”

But the Clean Water Act actually requires EPA to give deference to states as the first regulators, Zainey said, which adds a hurdle to federal jurisdiction, “a hurdle that EPA must overcome before it moves in to preempt a state’s soverign authority to regulate its own waters.”

As a result, Zainey said, nothing in the Clean Water Act prohibits EPA from considering the very factors it cited in its petition denial when it makes the “necessity” determination.

The ruling was praised by NRDC, which said it does require EPA to issue a formal finding on whether the pollutants threaten the river and the Gulf.

“For too long, EPA has stood on the sidelines while our nation’s waters slowly choke on algae,” said NRDC Senior Attorney Ann Alexander in a statement. “They have acknowledged the problem for years, but could not muster the gumption to address it. The court is telling the Agency that it is time to stop hiding from the issue and make a decision already.”