There are limits on EPA’s legal authority to decide whether it needs to make a necessity determination, a precondition to rulemaking under Section 303(c)(4) of the Clean Water Act (CWA). 

That conclusion was reached by the U.S. District Court for the Eastern District of Louisiana in a case that began in 2008 when 11 environmental groups petitioned the Agency to set numeric nutrient criteria (NNC) for states discharging into the Mississippi River basin.  The EPA refused to do so, saying it preferred to encourage states to develop the necessary NNC on their own.  

Nearly 4 years after the initial petition was sent, the groups filed a complaint in the district court arguing that the EPA could not rely on nonstatutory policy concerns to avoid making the necessity determination.  The district court agreed, although the court did not agree with the groups’ assertion that policy concerns may not be a factor in making the necessity determination.

Gulf dead zone
The original petition asserted that the Mississippi River states were not doing enough to prevent discharges of nutrients into the Mississippi River and that the resulting pollution had turned the northern Gulf of Mexico into a dead zone.  The petitioners said the EPA was taking a hands-off approach to dealing with the problem despite the fact that the CWA gave the Agency the authority to take over when the states are clearly failing to do so. 

The EPA responded that it could not effectively address nutrient pollution through rulemaking because the effort to do so, as well as any subsequent oversight of regulations, would exhaust its resources.  Partnership with the states was therefore the preferred approach, said the EPA.

In their petition, the environmental groups cite EPA’s original response to a petition that the Agency regulate greenhouse gas (GHG) emissions from motor vehicles under the Clean Air Act (CAA).  In that instance, the EPA denied the request, stating among other things that such a rulemaking would interfere with other administration priorities and the president’s ability to negotiate with developing countries regarding their own GHG emissions. 

That case (Massachusetts v. EPA) was eventually decided in the U.S. Supreme Court, which ruled that under the CAA the EPA could not avoid making a “judgment” for nonstatutory policy reasons.  The environmental groups said the same nondiscretionary duty must be applied to the EPA under the CWA with regard to the NNC necessity determination. 

Denial contrary to law

In agreeing with the plaintiffs, the district court notes that the EPA took “great pains” to distinguish the text of the CAA provision at issue in Massachusetts v. EPA from the CWA provision in this case.  But the court found those efforts futile.

“Simply, just as EPA’s response to the rulemaking petition in Massachusetts v. EPA was contrary to law because EPA did not make a “judgment,” the Denial was contrary to law because EPA did not make a necessity determination,” said the district court.

Hurdle, not speed bump

But the district court did not agree that the EPA must make a CWA necessity determination based solely on scientific information, that is, without consideration of what the states are doing.  In contrast to the CAA, which designates the regulation of emissions from new motor vehicles exclusively to the federal government, the district court noted that the CWA gives the states significant responsibility in adopting water quality standards and authorizes the EPA to step in only when states demonstrate that they either cannot or will not comply. 

“Thus the necessity determination in section 303(c)(4)(B) of the CWA is more than a mere speed bump on federal regulation because by design it serves as a hurdle to federal jurisdiction—a hurdle that EPA must overcome before it moves in to preempt a state’s sovereign authority to regulate its own waters,” said the district court. 

Accordingly, the court gave the Agency 180 days to render the requested necessity determination, but did not prohibit the Agency from making that determination based solely on scientific data.

The district court’s order in Gulf Restoration Network, et al. v. EPA