October 17, 2013

Numeric Nutrient Criteria in the Mississippi River: A Back-Handed Victory for EPA?

Arnold & Porter Advisory

On September 20, 2013, the Federal District Court for the Eastern District of Louisiana in Gulf Restoration Network v. Jackson rendered a decision that seems to have simultaneously expanded and reduced the discretion of the EPA to decide when federal numeric nutrient criteria are "necessary" for a state. The Court concluded that while the Clean Water Act requires EPA to make a threshold determination as to "necessity," in response to a petition by environmental plaintiffs, EPA has broad discretion to consider non-scientific policy factors in making that necessity finding. The Court also flatly rejected plaintiffs' effort to have the Court itself make the necessity determination plaintiffs sought in their Complaint. This decision, while partially granting the relief sought by the environmental organization plaintiffs in a limited way, may end up increasing EPA's discretion in setting federal water quality standards.

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