224 F. Supp. 3d 470
E.D. La.2016Background
- Plaintiffs (environmental NGOs) petitioned EPA in 2008 under the Clean Water Act §303(c)(4)(B) and the APA, asking EPA to promulgate federal numeric nutrient criteria (NNC) and TMDLs for nitrogen and phosphorus (nationwide, or at least for the Mississippi River Basin and northern Gulf).
- EPA issued a denial in July 2011 declining to make a §303(c)(4)(B) “necessity” determination, explaining it would continue a states-first, cooperative approach and that federal rulemaking as proposed by Plaintiffs would be unprecedented, resource-intensive, and impractical at that scale.
- Plaintiffs sued under the APA, alleging the denial was arbitrary and capricious and lacked a statutory grounding; the district court initially ruled for Plaintiffs in part and remanded to EPA to make a necessity determination.
- The Fifth Circuit vacated and remanded, holding the denial is reviewable but that EPA retains discretion to decline to make a necessity determination so long as it supplies a reasonable explanation grounded in the statute, and instructed the district court to assess the legal sufficiency of EPA’s explanation.
- On remand, applying an extremely deferential arbitrary-and-capricious standard, the district court held EPA’s explanation (relying on the CWA’s states-first structure and administrative/resource considerations) was sufficiently grounded in the statute and therefore lawful; Plaintiffs’ summary judgment denied and EPA’s granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA must make a §303(c)(4)(B) necessity determination in response to the petition | EPA must make the necessity determination; denial without it is unlawful and must be based on statutory factors and the evidence of nutrient harms | EPA has discretion not to make the determination if it provides a reasonable explanation grounded in the statute | Held for EPA: discretion exists so long as the refusal is reasonably explained and statutorily grounded |
| Whether EPA’s denial was arbitrary and capricious under the APA | Denial is arbitrary because it fails to analyze statutory requirements and ignores undisputed scientific evidence showing NNC are necessary | Denial is reasonable: EPA relied on the CWA’s states-first scheme, resource/practicality considerations, and continuing cooperative programs; it did not foreclose future federal action | Held for EPA: denial was legally sufficient and not arbitrary or capricious |
| What constitutes an explanation “grounded in the statute” under Massachusetts v. EPA and Fifth Circuit precedent | Must explicitly tie the decision to the specific statutory and regulatory requirements identified by the Fifth Circuit; policy reasons without statutory text are insufficient | Grounding can be satisfied by explaining reliance on statutory structure (CWA’s states-first policy) and how cooperative approaches fit within the Act | Held for EPA: grounding satisfied by reference to the CWA’s states-first framework and EPA’s programmatic reasoning |
| Scope of judicial review and deference | Plaintiffs urge close review to ensure statutory compliance given serious water-quality harms | EPA urges highly deferential review akin to review of refusal to initiate rulemaking; burden on EPA is slight | Held: review is extremely limited and highly deferential; EPA met its burden |
Key Cases Cited
- Massachusetts v. EPA, 549 U.S. 497 (agency must ground discretionary refusals in statutory text and cannot rely on policy reasons without textual support)
- Gulf Restoration Network v. McCarthy, 783 F.3d 227 (5th Cir.) (denial reviewable; EPA may decline to make §303(c)(4)(B) necessity determination if it provides a reasonable, statutorily grounded explanation)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (agencies have discretion in allocating resources and interpreting statutes within delegated authority)