December 23, 2016

States Can Address CWA Nutrient Regulation First, For Now

Environmental Law360
Law360, New York (December 23, 2016, 11:46 AM EST) -- The U.S. Environmental Protection Agency recently succeeded in its continuing effort to maintain its considerable discretion to choose to act — or choose not to act — to address nutrient pollution in the nation’s waters. In Gulf Restoration Network v. Jackson, the U.S. District Court for the Eastern District of Louisiana upheld the EPA’s discretion not to act on a petition from environmental groups requesting that the EPA use its authority under the Clean Water Act to establish federal numeric nutrient criteria for numerous unspecified waters of the Mississippi River Basin.

The court found that the EPA’s decision to continue to allow the states to address nutrients without direct federal action is consistent with the broad federalist principles of the CWA, and that the plaintiffs had not demonstrated — at least, not as yet — that the EPA’s approach was arbitrary and capricious.


The district court decision is the most recent development in a years-long litigation over the appropriate role of the EPA and the states in regulating nutrients in the Mississippi River Basin. The case stemmed from a 2008 petition by environmental groups requesting that the EPA set numeric nutrient criteria (NNC) for waterbodies in the states of the Mississippi River Basin. The environmental group petitioners argued that these waters suffer major nutrient pollution problems that have not been and are not being adequately addressed by the states. They urged the EPA to use its authority under section 303(c)(4)(B) of the federal Clean Water Act to find that federal NNC were therefore “necessary” for these waters. Under Section 303(c)(4)(B), such a finding of necessity would trigger a requirement that the EPA initiate rulemaking to establish NNC for all of the affected waters. The EPA rejected the petition, but declined to take a position on the alleged legal trigger that federal NNC were “necessary” for these waters.

Rather, the EPA responded that for a variety of reasons — cost; administrative burden; the collaborative federalism framework of the CWA; the progress states were making in addressing nutrient issues without establishing NNC; the technical challenges of setting NNC due to the complex relationship between nutrient levels and biological impacts to a water body — it determined not to use its Section 303(c)(4)(B) authority to set NNC.

The environmental group petitioners filed suit against the EPA, asserting (among other things) that the EPA was legally obligated to make a finding that NNC are “necessary” for the waters of the Mississippi River basin. The district court in 2013 found that the EPA did have an obligation to address the issue of necessity, but that the EPA could properly consider nontechnical factors, such as cost, feasibility and the administrative burden of setting NNC for many states (possibly as many as 34, under the environmental groups’ imprecise petition), in making a determination of necessity.

The EPA appealed the district court decision to the Fifth Circuit, arguing that the district court did not properly apply the doctrine of Massachusetts v. EPA, which allows the agency to decline to make a finding of necessity if it provides a “reasonable basis” that is “grounded in the statute” for not making such a finding. The Fifth Circuit agreed with the EPA on this issue, and remanded to the district court to determine whether the EPA had indeed provided such a “reasonable explanation,” and whether the agency’s explanation was legally sufficient. While leaving the ultimate decision to the district court, the Fifth Circuit took pains to point out that the district court’s review of the EPA’s basis for not reaching the issue of necessity is “extremely limited” and “highly deferential,” provided the EPA’s explanation for not reaching the necessity issue is grounded in the Clean Water Act.

District Court Decision

The district court, applying the Fifth Circuit test, found that the EPA’s justification for denying the petition and not addressing the necessity issue one way or the other “is sufficiently ‘grounded in the statute’” The court focused on the overall framework of the CWA that gives primacy to states in setting water quality criteria, and which designates for the EPA a role that “is properly characterized as a secondary or backstop role.” The court further found that the EPA’s broad invocation of federalist principles was sufficiently based on statutory text, and that the EPA’s denial “need not necessarily contain a verbatim recitation of a statute or parse its provisions to the letter.” Moreover, the court agreed with the EPA that the agency may properly rely on policy grounds, such as its policy of partnering with the states to address nutrient pollution, rather than merely on technical considerations in denying the petition.

The district court did leave the door open — if very slightly — for a future claim by plaintiffs. The court opined that the plaintiffs’ underlying concern in the litigation is whether the EPA’s policy of ongoing deference to the states can continue to be deemed reasonable in the absence of what appears to the plaintiffs to be sufficient progress in addressing nutrient pollution. While the court asserted that any such review of the agency would be very deferential, it also stated that, “Presumably, there is a point in time at which the agency will have abused its great discretion by refusing to concede that the current approach — albeit the one of first choice under the CWA — is simply not going to work.” But the court asserted that for the present, the plaintiffs have not made such a showing.


The district court decision is in most respects a win for the EPA. The court upheld the EPA’s discretion to defer to the states and not use its Section 303(c)(4)(B) authority, or even to take an agency action under Section 303(c)(4)(B) at all. This decision, following the earlier Fifth Circuit decision, is likely a setback to legal challenges to the EPA for failing to undertake a “nondiscretionary” duty to regulate, either under the CWA or other environmental laws. The EPA’s policy decision here — now upheld by the Fifth Circuit and by the district court on remand — appears to be broadly consistent with the incoming administration’s apparent policy of greater deference to the states to act as environmental regulators in the first instance.

At the same time, the district court allowed that there may come a point in time that the EPA’s policy of deferring to the states could be challenged as arbitrary and capricious, despite the CWA’s emphasis on states as regulators in the first instance. Even under the “highly deferential and limited review” established by the Fifth Circuit and reaffirmed by the district court, the EPA’s policy of “letting the states go first” may not constitute an unlimited and permanent legal justification for failing to take federal action. When and on what basis the agency’s broad discretion to decline to act would be vulnerable to attack, however, is far from clear, as the district court offered no guidance on those questions other than to say it might be reached “at some point.” It will not be surprising if future litigants seek to define that “point” if and when dissatisfied with the progress of state actions on nutrient regulation or other of the EPA’s decisions to defer taking discretionary federal action.

Lester Sotsky is a partner and Jeremy Karpatkin is an associate at Arnold & Porter LLP in Washington, D.C. Prior to joining Arnold & Porter, Karpatkin worked at the U.S. Department of Energy.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Subscribe Link

Email Disclaimer