Federal Numeric Nutrient Criteria: A Tragedy in Two Acts

Two separate attempts by two coalitions of environmental groups to prompt EPA to promulgate federal numeric nutrient criteria in two different parts of the country have followed two wildly different courses.  A recent decision by the Eastern District of Louisiana invites a brief overview of this continuing drama.

Prologue

Surface waters need nutrients to support aquatic life, but excessive nitrogen and phosphorous can lead to the overgrowth of algae, which can deprive a waterbody of oxygen and impair aquatic life and human health.  Natural variables, including geology, climate and waterbody type, can influence nutrient responses.  For that reason, developing a single set of numeric nutrient criteria for nationwide application is not appropriate.

Although several states have been developing numeric nutrient criteria suitable for their waters, many still utilize only narrative nutrient criteria.  Narrative criteria offer very little guidance to NPDES permit writers seeking to impose nutrient effluent limits adequate to protect water uses.  They also are of limited value to TMDL developers working to establish total maximum daily loads to restore waterbodies already impaired by nutrients.

In 1998, the EPA Administrator adopted a Clean Water Action Plan in response to a report that about 40% of the waters assessed around the country did not meet water quality standards.  As part of an effort to implement the Action Plan, the Administrator issued a National Strategy acknowledging that narrative criteria were inadequate for protecting waters from excessive nutrients, one of the leading causes of water quality impairment nationwide.  The report stated the Administrator’s expectation that all states would adopt and implement numeric nutrient criteria by December 31, 2003.  In the years that have followed, EPA has devoted significant time and resources to encourage the states to adopt numeric criteria.  Despite these efforts, by 2008 many states still relied solely on narrative nutrient criteria (and indeed, many still do).

Act I:  Florida

Against this backdrop, a coalition of five environmental organizations filed a Clean Water Act (CWA) citizen suit in July 2008 seeking to compel EPA and its Administrator to publish and adopt numeric nutrient criteria.  Under CWA Section 303(c)(4)(B), if the Administrator “determines that a revised or new standard is necessary” to meet CWA requirements, the Administrator must “promptly prepare and publish proposed regulations setting forth a revised or new” standard and adopt that standard within 90 days after publication, unless the state has already done so by that time.  In Fla. Wildlife Fed’n, Inc., et al. v. Jackson, et al., No 4:08cv324 (N.D. Fla.), plaintiffs took the novel position that the 1998 Action Plan and/or National Strategy constituted a “determination” that Florida’s narrative nutrient standard was inadequate and that a new standard was necessary, thereby imposing on the Administrator a nondiscretionary duty to promptly publish proposed new standards and adopt those standards within 90 days after publication.

In January 2009, to the surprise of many of us following these developments, the Administrator issued a determination under Section 303(c)(4)(B) that a new standard using numeric nutrient criteria was necessary to meet CWA requirements.  (It is unclear whether this determination, issued in the waning days of the Bush presidency, was intended to polish the legacy of the outgoing president, or whether it was a “gift” to the incoming president, who would have to inherit the fallout.)  In August 2009, the Administrator entered into a consent decree with the plaintiffs committing EPA to an aggressive schedule for proposing and adopting a rule establishing numeric nutrient criteria, first for Florida’s lakes and flowing waters, and then for its coastal and estuarine waters, unless Florida proposed such criteria first.  In December 2009, after briefing and oral argument, the district court entered the proposed consent decree, which the Eleventh Circuit did not disturb on appeal.

The Administrator promulgated the final rule adopting numeric criteria in accordance with the consent decree.  Thereafter, various interests, including the State of Florida, challenged the necessity determination and final rule.  In an opinion issued in February 2012, the district court upheld the Administrator’s determination that numeric nutrient criteria are necessary for Florida waters to meet CWA requirements and upheld many of the criteria that the Administrator adopted, invalidating only certain criteria (stream criteria and downstream-protection criteria for unimpaired lakes) that it determined to be inconsistent with Florida’s narrative criteria.

That decision led to a new round of intensive discussions between EPA and the Florida Department of Environmental Protection (which had already done extensive work in developing numeric criteria even before the lawsuit was filed but which had missed several deadlines that it had established with EPA for actually adopting the criteria).  In March 2013, FDEP reached an agreement with EPA that creates a path for Florida to replace the federal numeric nutrient criteria with numeric nutrient criteria developed by the state.  The agencies have already taken the first steps towards attaining that goal.

Act II:  Mississippi River/Gulf of Mexico

In July 2008, around the same time that the plaintiffs in the Fla. Wildlife Fed’n case were filing their complaint to force EPA to promulgate federal numeric nutrient criteria for the state of Florida, another coalition of environmental organizations was embarking on a similar mission in the Mississippi River/Gulf of Mexico watershed.  Pursuant to Section 553 of the Administrative Procedure Act (APA), which requires federal agencies to “give an interested person the right to petition for the issuance, amendment, or repeal of a rule,” these organizations submitted a petition to EPA requesting, among other things, that the agency exercise its rulemaking authority under CWA Section 303(c)(4)(B) to impose federal numeric nutrient criteria for the Northern Gulf of Mexico and waters within the Mississippi River Basin.

More than three years later and only after the organizations threatened to take legal action, EPA finally issued a response to their petition.  Although acknowledging the severity of the water quality problems caused by nitrogen and phosphorous pollution, EPA denied the petition.  EPA explained that it did not believe that using its rulemaking authority would be a practical or efficient way to address the nutrient pollution at issue and that in its judgment it would be more effective to continue to work cooperatively with the states to strengthen their nutrient management programs.  (It is hard to believe that EPA’s contemporaneous experience in Florida did not factor into this consideration.)  Notably, EPA expressly declined to conclude that numeric nutrient criteria were not necessary to meet CWA requirements.

In March 2012, several of the organizations that had submitted the petition filed a complaint, which they amended the following month.  In Gulf Restoration Network, et al. v. Jackson, et al., No. 12-677 (E.D. La.), the plaintiffs alleged that EPA’s response to their petition violated the APA in two respects: first, that it was not supported by reasons that conform to the relevant statutory considerations in Section 303(c)(4)(B) insofar as it failed to explain why revised or new water quality standards are not “necessary” to meet CWA requirements; and second, that it was contrary to the undisputed evidence that numeric nutrient criteria are “necessary” to meet CWA requirements.

In stark contrast to its response to the Florida lawsuit, which seemingly prompted the agency to issue a necessity determination, EPA vigorously contested the claims brought in Louisiana, filing a motion to dismiss or, in the alternative, for summary judgment.  Late last month, U.S. District Judge Jay C. Zainey issued a decision on these motions, as well as on plaintiffs’ cross-motion for summary judgment.

In its motion to dismiss, EPA argued that, because the statute is so broadly drawn, a necessity determination under CWA Section 303(c)(4)(B) constitutes a matter of agency discretion rendering the denial of the petition unreviewable by a federal court under Section 701(a)(2) of the APA, which excepts from judicial review agency action that is “committed to agency discretion by law.”  The district court rejected this argument, concluding that the issues presented in this case of whether EPA could refuse to make a necessity determination and do so based on non-statutory factors were legal questions that the court could decide without intruding on EPA’s considerable discretion.

On the cross-motions for summary judgment, the district court concluded that EPA could not, in response to a petition for rulemaking, simply decline to make the threshold necessity determination that is a precondition for promulgating revised or new water quality standards under CWA Section 303(c)(4)(B).  In reaching this conclusion, the court relied on the landmark decision in Massachusetts v. EPA, in which the U.S. Supreme Court held that EPA could not simply decline to make the threshold “judgment” that is a precondition for regulating greenhouse gas emissions from new motor vehicles under Section 202 of the Clean Air Act (CAA).  The district court declined, however, to extend to this case the holding in Massachusetts v. EPA that EPA is prohibited from relying on non-scientific factors when making this determination.  The court found that it was the limiting language in CAA Section 202 that had led the Supreme Court to that particular holding; the court observed no analogous limiting language in CWA Section 303(c)(4)(B).

In short, the district court found that EPA is required to conduct a necessity determination in response to plaintiffs’ petition but that “[n]othing in the authorizing statutory text of the CWA expressly precludes EPA from considering the very factors that it cited” in its original response.  The district court ordered EPA to respond to the petition in a manner consistent with the requirements of Massachusetts v. EPA within 180 days.

Epilogue

EPA has an interesting decision to make over the course of the next six months.  Pursuant to the holding in Gulf Restoration Network, the agency could once again deny plaintiffs’ petition on the ground that it would be more effective to work cooperatively with the states to develop numeric nutrient criteria.  To do so, however, the agency would have to make an express determination that a new standard is not necessary to meet CWA requirements on that basis (at least at this time).  EPA was unwilling to make such a determination (at least expressly) in its original response, perhaps out of a concern that such a determination might undermine its ongoing efforts to communicate to the states that numeric nutrient criteria are indeed “necessary.”

Alternatively, EPA could issue a necessity determination as it did in Florida and hope that imposition of federal numeric nutrient criteria (or, preferably, the realistic threat thereof) would prompt the states in the Mississippi River/Gulf of Mexico watershed to develop and adopt their own criteria, just as Florida ultimately did, albeit after years of cumbersome litigation.  However, given the sweeping scope of plaintiffs’ petition (the Mississippi River/Gulf of Mexico watershed covers sections of 31 states), this would be a risky proposition at best, even for a president looking to improve his environmental legacy.  (Because of the court-imposed deadline, this Administrator would not even know to whom she would be leaving this particular “gift” after President Obama leaves office.)

Given the above, stakeholders in the Mississippi River/Gulf of Mexico watershed can expect that EPA will once again deny the petition.  At the same time, it never hurts to begin to consider possible responses in the event that the Administrator serves up another surprise.  A third act may still be in the works.  The clock is ticking.

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