A U.S. District Court in Louisiana has ruled that it is within the discretion of the U.S. Environmental Protection Agency (EPA) not to compel states to adopt numerical water quality standards for the Mississippi River. [Gulf Restoration Network v Jackson, ___F.Supp.3d___, Case No. 12-677 (E.D. La. Dec 15, 2016).]
The Gulf Restoration Network and other environmental organizations had petitioned the EPA in 2008 to ask the EPA to compel Mississippi River Basin states to adopt water quality standards to adequately control phosphorous and nitrogen pollution of the River. The notorious “dead zone” below the mouth of the Mississippi would otherwise not be curbed and the oxygen depletion there would only worsen. The EPA finally decided not to adopt the standards plaintiffs wanted in 2011, after plaintiffs made threat of a court action to compel EPA to rule. The plaintiffs sued the EPA in early 2012 for allegedly arbitrary and capricious conduct in deciding not to compel States to act or to impose its own Mississippi River standards.
On remand from the Fifth Circuit, the District Court was asked to rule on cross motions for summary judgment. Plaintiffs contended the EPA’s justifications were not adequate because they could not be reconciled with the Clean Water Act’s requirements for progress toward restoration. However, the District Court saw its task differently:
“This Court’s task on remand is a narrow one: To determine whether EPA’s explanation for why it refused to make a necessity determination was legally sufficient. Per the Fifth Circuit’s application of Massachusetts v. EPA, legal sufficiency turns on whether EPA has provided a ‘reasonable explanation,’ which must be grounded in the statute, as to why it declined to make a necessity determination.”
This latest decision may well serve as a further reason to justify efforts by a new Presidential administration to emphasize the role of the states in a federal system. Anecdotal reports indicate significant progress has been achieved in wetland banking of nutrients, to the point that some states are considering statewide systems. At a waste association breakfast on December 13th in Chicago, the Chairman of the Illinois Pollution Control Board, Gerald Keenan, said Illinois is in the early stages of considering creation of a market mechanism under which downstream agriculture and county interests could have incentive to deliberately construct wetlands and collect nutrients that otherwise would be discharged to rivers (such as the Illinois) that form headwaters of the Mississippi. Such collection effort would generate credits that perhaps, could turn out to be more valuable to farmers than crop income from the land taken out of tillage. Such a market system would allow the publicly owned treatment works for domestic sewage to pay into the market and buy these nutrient credits when the cost of higher-level treatment of nutrients is more expensive than the price of equivalent credits. This might be viewed as a “win-win” situation, because there would be net reduction of nutrient loadings in the river systems for less than the very high marginal cost of mechanical systems of control to remove the last few percentage amounts of nutrient at a publically owned treatment facility. Moreover, an important side benefit is that production of such wetlands would serve as important habitat for numerous wildlife species. The District Court’s decision is accessible online at: https://www.gpo.gov/fdsys/pkg/USCOURTS-laed-2_12-cv-00677/pdf/USCOURTS-laed-2_12-cv-00677-1.pdf
(Harvey M. Sheldon)
