Mississippi River Collaborative

Court Rules EPA Accountable under APA

04.10.2015 | Uncategorized | No Comments

The 5^th Circuit Court of Appeals issued a decision on April 7, 2015 in Gulf Restoration Network et al. v. McCarthy. At issue is EPA’s refusal to make a determination as to whether or not limits on nitrogen and phosphorus pollution are necessary under the Clean Water Act and, if limits are necessary, to set those limits for individual states or to have states set their limits subject to EPA’s approval. The decision is a mixed bag.

1. 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.
2. 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 5^th 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.

The parties now have the opportunity, in principle, to ask for a rehearing before the full 5^th Circuit or to petition the Supreme Court to hear the matter. Assuming neither party takes that opportunity (and there is no basis at this point to think that either GRN et al. or EPA will want to do so), the case will be sent back to the district court in May once the rehearing request deadline has passed. 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.

Read NRDC Attorney Ann Alexander’s explanation here.
Read the 5th Circuit Appeals Court decision here.