What do you do when EPA does not adequately address a major environmental problem?
When the Mississippi River Collaborative was founded in 2005, nitrogen and phosphorus pollution entering the Mississippi River was already a top priority. Drinking water in many areas was in jeopardy. Beaches were being closed. Fish kills were occurring. The Gulf of Mexico Dead Zone was growing at an alarming rate, depriving aquatic life of oxygen and threatening entire ecosystems.
Since its inception, the Mississippi River Collaborative has been doing everything it can to convince EPA that numeric standards for nitrogen, phosphorus, and algae pollution indicators must be established as a critical first step toward reducing nitrogen and phosphorus pollution in their lakes and rivers, and thus improving water quality for the entire Basin.
Flash forward a decade and the problem is as bad as it ever was. Not for a lack of available solutions to the problem, but because of EPA’s unwillingness to act in a manner sufficient to protect water quality.
2008 MRC Petition to US EPA
A federal statute known as the Administrative Procedure Act provides that all federal agencies “must give interested persons the right to petition for the issuance, amendment, or repeal of a rule.” So when it became evident states were not going to set numeric nutrient criteria, Mississippi River Collaborative groups filed a 73-page petition with the EPA on July 30, 2008 asking the Agency use its Clean Water Act authority to establish those criteria for Mississippi River Basin states – as it had promised it would do back in 1998 if states failed to act by 2001 – and TMDLs for the Mississippi River and the Gulf of Mexico. The Petition not only described the dire state of nutrient pollution in the Mississippi River Basin, but also chronicled EPA’s failed attempts to address the problem through workgroups, collaboration, guidance to states, and “action plans” that never resulted in any action.
After three long years of waiting, and shortly after MRC’s threat to sue over unreasonable delay, EPA issued its six-page response on July 29, 2011. In it, EPA concurred with the Petition’s claim that nitrogen and phosphorus posed a significant threat to water quality nationwide, and in particular to the Mississippi River Basin. However, it concluded that the strategies it had been using all along – the action plans, guidance to states, etc., – were preferable to the nutrient criteria rulemaking requested by the Petition. EPA specifically declined to say one way or another whether nutrient criteria were “necessary” to deal with the problem, which is the prerequisite for EPA stepping in and issuing criteria for states under the law.
Earlier that year, EPA’s Acting Assistant Administrator of the Office of Water, Nancy K. Stoner, issued a memo to EPA regional directors in which she acknowledged the serious problems caused by nitrogen and phosphorus pollution, but once again deflected the management of the problem and the establishment of numeric criteria to the state level, once again recommending the failed “nutrient reduction strategies” for states and dismissing the idea of establishing federal criteria in the absence of state action.
2012 MRC Lawsuit (Gulf Restoration Network et al v. Jackson and EPA)
After their petition was denied in 2011, MRC groups sued EPA in March 2012. The lawsuit challenged EPA’s denial of the petition on the ground, among others, that EPA had unlawfully dodged the central question relevant to MRC’s petition: whether federally issued nutrient criteria are necessary to address the algae crisis in the Mississippi River Basin and the Gulf Dead Zone.
In September 2013, the court agreed with MRC that the petition had been denied on improper grounds and gave EPA six months to provide an adequate response. EPA appealed the decision and was granted a stay of the six-month deadline.
Following the appeal, MRC received updated information collected by EPA concerning states’ progress in implementing the strategies outlined in the Agency’s 2011 Stoner memo, which indicated both that states had done very little thus far, and in some cases had abandoned efforts to develop numeric criteria entirely, and that the nitrogen and phosphorus pollution problem had gotten worse since MRC’s 2008 Petition. MRC sent a letter to EPA in which it detailed these conclusions, but received no substantive response.
In April 2015, the 5th Circuit Court of Appeals issued a two-pronged decision:
- EPA argued that its refusal to even make a decision as to whether limits are necessary was not something groups like Gulf Restoration Network (GRN) could challenge and therefore was not something the courts could review. GRN et al. won this argument at both the District Court and the Court of Appeals, with the Court squarely rejecting EPA’s claim of Administrative Procedures Act unreviewability.
- The District Court had held, once it decided it could review the matter, that EPA’s non-answer to the question of whether limits are necessary (the Agency had responded that it preferred not to say one way or the other) was unlawful. The court accordingly ordered EPA to provide a straight-up yes or no answer. The 5th Circuit disagreed, holding that EPA also had the option of not answering, but only if its stated reason for giving the non-answer was supported by the text of the Clean Water Act. The Court sent the decision back to the district court to determine whether, in fact, EPA had provided statutorily supported reasons for declining to answer. GRN et al. has contended all along that EPA’s response was not grounded in the Clean Water Act because the Agency expressly cited political and administrative constraints rather than the text of the Act to support its non-action.
Assuming neither party asks for a rehearing, the case will be sent back to the district court. The district court will likely then set a briefing schedule, meaning that the case will probably not be decided until fall at the very earliest, and very possibly not until next year.
GRN and its allies in the Mississippi River Collaborative are eager to ultimately prove to the court, if and when they are given the opportunity in the future, why they so firmly believe that limits on nitrogen and phosphorus pollution are necessary to meet the requirements in the Clean Water Act.
2005 – Mississippi River Collaborative (MRC) is formed.
2008 – MRC files petition.
2011 – EPA issues Stoner Memo.
2011 – EPA denies petition.
2012 – MRC files lawsuit.
2013 – Court rules for MRC.
2013 – EPA appeals decision.
2014 – MRC sends follow-up letter.
2014 – MRC files response to appeal.
2015 – Court issues appeal decision.
FOR FURTHER INFORMATION:
- Dead Zone
- Nitrogen and Phosphorus Pollution
- Nutrient Reduction Strategies
- Blog: NRDC Attorney Ann Alexander
- Article: “EPA is Graveyard for Rulemaking Petitions”
- Case summary: Warren Glass