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EPA has flexibility in not setting standards for Gulf ‘dead zone’

U.S. EPA deserves significant deference in deciding whether to set water quality standards for the 6,000-square-mile “dead zone” in the Gulf of Mexico, a federal appeals court ruled yesterday.The opinion from the New Orleans-based 5th U.S. Circuit Court of Appeals is largely a win for EPA.

At issue is an effort by environmental groups dating back to 2008 to force the agency to set numeric standards for phosphorous and nitrogen from fertilizer and other sources that soak up oxygen in the Mississippi River Basin and northern Gulf of Mexico.

EPA denied the Gulf Restoration Network, the Natural Resources Defense Council, the Sierra Club and other groups’ request without making a “necessity determination” regarding whether such standards were warranted to protect public health and the environment. The lawsuit followed.

A federal judge in September 2013 ruled that EPA could not simply refuse to make the necessity determination and remanded the case back to the agency.

Yesterday, a three-judge 5th Circuit panel disagreed with that conclusion.

Judge Patrick Higginbotham, a Republican appointee, said EPA was not mandated by the Clean Water Act to make such a determination in response to the environmental groups’ rulemaking request.

The district court’s finding, he wrote, “was in error.”

Higginbotham cited the landmark 2007 Supreme Court decision on climate change Massachusetts v. EPA, in which the court held that greenhouse gases could be regulated under the Clean Air Act.

In that case, EPA had refused to make a similar threshold determination when asked by states, environmental groups and others to regulate the heat-trapping gases.

On that issue, the high court ruled that the agency could avoid such an initial determination if it provided a reasonable explanation.

Higginbotham said the same standard applies here. He stopped short of saying EPA had provided such an explanation, instead remanding the issue back to lower court.

But he added that EPA should get significant leeway from the court.

“In light of this highly deferential standards of review, the agency’s burden is slight,” Higginbotham wrote.

The case has put EPA in a difficult position. It has acknowledged the significant pollution problem in the northern Gulf and Mississippi River Basin and has sought to persuade states to set their own standards to address the contamination.

Even environmentalists largely prefer that solution and acknowledge that EPA lacks the resources to promulgate the complex criteria for the entire basin.

Green groups contend, however, that such factors don’t excuse inaction for the 31-state basin. Progress has been slow. In February, EPA and states said it would take two decades to reduce the annual dead zone to 2,000 square miles, their previously stated goal for this year (E&ENews PM, Feb. 12).

The ruling may also be a break for EPA because the agency likely didn’t want to be on the record saying the standards are not necessary, which would downplay the significant environmental problems in the area (Greenwire, Nov. 19, 2013).

EPA’s challengers won on one point in the 5th Circuit ruling. The court held that EPA’s decision not to make a necessity determination could be challenged in court.

“The subject matter of the [Clean Water Act] is also consistent with judicial review,” Higginbotham wrote. “Federal courts regularly hear cases addressing environmental regulations, including those implicating federalism issues.”

Click here for the opinion.


Clean water Act
Clean Water Act
Posted on: April 9, 2015, by : FAS SWFL