Gravel2Gavel Construction & Real Estate Law Blog
On April 7, 2015, the U.S. Court of Appeals for the Fifth Circuit, in Gulf Restoration Network, et al., v. McCarthy, vacated and remanded a decision of the United States District Court for the Eastern District of Louisiana that granted, in part, the plaintiff environmental organizations’ complaint that the Environmental Protection Agency (EPA), by denying a petition for rulemaking and thereby failing to impose numeric water quality standards to control nitrogen and phosphorus pollution within the Mississippi River Basin and the Northern Gulf of Mexico, violated the Administrative Procedure Act. On remand, the district court has now granted EPA’s motion for summary judgment, and dismissed the Plaintiffs’ petition for rulemaking filed with EPA.
Plaintiffs, various not-for-profit environmental organizations that strive to protect the environment, contended that the release of high levels of nitrogen and phosphorus have been “devastating” for the Gulf of Mexico, creating a “dead zone” near the mouth of the Mississippi River. In 2008, Plaintiffs filed a petition for rulemaking with EPA under the Clean Water Act (CWA) seeking the imposition of federal numeric water quality standards to address this issue because none of the states involved have employed such standards to address this growing problem. Their petition was denied in 2011, or more than three years after it was filed. In response, Plaintiffs filed a lawsuit, arguing that EPA violated Section 303(c )(4)(B) of the CWA (codified at 33 U.S.C. § 1313(c)(4)(B)) by failing to make a “necessity determination,” as required by law.
EPA has insisted that, under the CWA, a federal and state cooperative approach is by far the best approach to resolving such problems, and that it should have the discretion to adhere to this approach. The district court ruled that it had jurisdiction to review EPA’s decision not to make a “necessity determination,” and that, under the precedent established by the Supreme Court in the celebrated 2007 case of Massachusetts, et al., v. EPA, EPA was obliged to conduct the “necessity determination.” This is the decision the Fifth Circuit vacated.
On remand, the district court has determined that EPA provided a “reasonable explanation” for its decision not to proceed with the requested rulemaking, and its reasons were “grounded” in the text of the CWA and its decision was consistent with Massachusetts v. EPA, as explicated by the Fifth Circuit. The district court concluded that, “EPA’s assessment that the best approach at this time is to continue its comprehensive strategy of bringing the states along without the use of federal rulemaking is subject to the highly deferential and limited review that the Fifth Circuit described in its opinion.”