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Gulf Restoration Network v. Jackson

ELR Citation: 43 ELR 20218
Nos. No. 12-677, (E.D. La., 09/20/2013) (Zainey, J.)

A district court ordered EPA to conduct a necessity determination under CWA §303(c)(4)(B) in response to an environmental group's petition asking the Agency to establish water quality standards to control nitrogen and phosphorous pollution in the mainstem of the Mississippi River and the Northern Gulf of Mexico. EPA denied the petition, stating, among other things, that the use of its rulemaking authority would not be a practical or efficient way to address nutrient pollution at a national or regional scale and that the group's proposed rulemaking solution would be "highly resource and time intensive." Relying on the U.S. Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497, 37 ELR 20075 (2007), in which the Court held that EPA has the statutory authority to regulate greenhouse gases under the CAA, the group argued that EPA has a clear statutory obligation to determine one way or the other whether numeric nutrient criteria are necessary to meet the requirements of the CWA. The court agreed. Just as EPA's response to the underlying rulemaking petition in Massachusetts v. EPA was contrary to law because EPA did not make a "judgment," the denial at issue here was contrary to law because EPA did not make a necessity determination in response to the group's rulemaking petition. EPA could not simply decline to make a necessity determination in response to the groups' petition for rulemaking. The court therefore ordered EPA to make a necessity determination within 180 days. The group also argued that Massachusetts v. EPA demonstrates that a necessity determination under CWA §303(c)(4)(B) must be based on information regarding water quality, i.e., scientific and technical criteria. But the court rejected the group's claim that EPA cannot rely on non-scientific factors in making a necessity determination. Nothing in the CWA expressly precludes EPA from considering the very factors that it cited in the denial.