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Problems in the Mississippi River are Flowing Upstream: Gulf Restoration Network v. EPA

In 2008, various nonprofit environmental groups petitioned the U.S. Environmental Protection Agency (EPA) to create rules to reduce nitrogen and phosphorus pollution in the Mississippi River Basin. The environmental groups argued that because of the massive dead zone in the Gulf of Mexico—known as “gulf hypoxia”--the EPA was required to do a better job of reducing nitrogen and phosphorus run-off into the Mississippi River and its upstream tributaries. The groups asserted that the Clean Water Act required the EPA to create new rules for reducing nitrogen and phosphorus.

The EPA did not respond with sweeping new regulations for the states in the Mississippi River Basin. Instead, the EPA responded that the Clean Water Act provided the EPA with deference for how to address water pollution. With regards to nitrogen and phosphorus pollution, the EPA advocated for continued cooperation with state agencies to address the problem, rather than EPA preemption and new regulation. Not satisfied with this response, the environmental groups sued the EPA in the eastern district federal court in Louisiana.

On September 20, 2013, the district court issued its ruling in Gulf Restoration Network v. EPA, [enhanced version available to subscribers]. The court sided with the environmental groups, holding that the EPA cannot avoid its rulemaking duties merely by asserting its “policy” was to work with state agencies in the Mississippi River Basin to reduce nitrogen and phosphorus run-off. The EPA can ultimately decline to regulate nitrogen and phosphorus run-off in the Mississippi River Basin, but to do so it must first explain a scientific or statutory basis for doing so. It is not adequate to merely state that individual states are addressing the problem. The court gave the EPA six months to fully respond to the petition for rulemaking.

The stakes are high in this matter. At issue is whether the EPA will impose new regulations for all states in Mississippi River Basin to reduce nitrogen and phosphorus run-off. These new regulations might include “numeric nutrient criteria”—specific limitations for allowable run-off in streams and rivers. Alternatively, if the EPA can make a proper response to the petition that EPA intervention is not necessary, the EPA will continue to work with state agencies to reduce run-off through state led programs, regulations and initiatives.

Read more at Janzen Ag Law Blog by Todd Janzen, Partner, Plews Shadley Racher & Braun LLP.

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