Gulf Restoration Network v. EPA

In a victory for the clean water community and cooperative federalism, the district court in the remanded Gulf Restoration Network, et al. v. EPA granted EPA’s Motion for Summary Judgment on December 15, 2016. The case involves EPA's response to a petition from activist organizations requesting that the Agency develop federal numeric nutrient criteria (NNC) for the Mississippi River Basin (MRB) and northern Gulf of Mexico. EPA declined to make a necessity determination on the need for NNC and, in 2012, the activist groups sued EPA. NACWA has been involved in the case since 2012, when it successfully intervened to protect the interests of its municipal clean water utility members and argued against  the development of NNC.

On January 14, 2016, NACWA filed a brief   in the remanded case before the district court.  The brief was filed on behalf of NACWA and a larger coalition of industrial and agricultural organizations opposed to federally-mandated NNC. The brief argues that EPA provided a reasonable explanation, grounded in the Clean Water Act (CWA), for declining to make a necessity determination. It emphasizes that among the permissible factors EPA considered is the States' primary role in protecting designated uses through adoption of water quality standards; the varied reasons for nutrient pollution and the importance of "sound watershed management practices" that cannot be either fully addressed nor solely accomplished by actions available to EPA under the CWA; and the resources that would be required from the Agency not only to make a necessity determination of the breadth and magnitude requested by Plaintiffs, but to implement the mandatory federal tasks that would follow.

The remand comes after a 2013 federal district court ruling   that EPA must make a formal "yes" or "no" decision on the need for federal NNC, but which also found that the Agency has wide discretion in the factors it can consider when making the determination. (See below and NACWA Advocacy Alert 13-15  for a more detailed analysis).

EPA appealed the district court decision to the Fifth Circuit on the question of whether the Agency has discretion to decline to make a decision on federal NNC in the first place. The April 2015 ruling  from the Fifth Circuit overturned the district court's decision on this issue, finding that EPA can decline to make a determination as long as the Agency provides sufficient justification. (See below and NACWA Advocacy Alert 15-05 for a more detailed analysis).

The Fifth Circuit remanded the case back to the district court to decide whether EPA's explanation for why it declined to make a determination on federal NNC was legally sufficient. On remand, the district court held that “the Denial, which again is grounded primarily on EPA’s assessment that working in partnership with the States to reduce nutrient pollution would be a more effective approach at present, is sufficiently grounded in the statute.”

Background 

Environmental activist plaintiffs initiated the lawsuit in March 2012, challenging EPA's 2011 denial of a petition to establish federal NNC in the MRB. In the pleadings, plaintiffs argued that EPA's denial of their petition was procedurally deficient, and that EPA's decision not to impose federal NNC for the MRB was illegal and in violation of the CWA.

NACWA's request for intervention argued that EPA's denial of the 2008 activist petition was proper, and that the necessary legal basis for the imposition of federal NNC for waters in the MRB does not exist. NACWA also emphasized the important role the Association could play in helping the court understand and resolve the very complex and important issues involved in the litigation.  Additional information on NACWA's intervention is available in Advocacy Alert 12-08.

After being granted intervention, NACWA participated actively in the case, filing both a joint   and individual   brief in March 2013 supporting EPA's denial of a request for federal NNC for the MRB. NACWA's stand-alone brief contended that federal NNC are insufficient to achieve the holistic watershed improvements needed for nutrient control in the MRB because they cannot meaningfully address the significant role of nonpoint sources in the nutrient pollution problem. The joint brief highlighted the lead role states must take under the CWA in developing water quality standards and argued that federal action on NNC would unlawfully displace state primacy on this critical issue.

2013 District Court Decision

In the September 2013 decision, the district court agreed with the environmental plaintiffs that EPA, under CWA Section 303(c)(4), must make a "yes" or "no" determination whether federal nutrient criteria are necessary. In their 2008 petition, the activist groups specifically asked EPA to make a determination under CWA Section 303 whether federal NNC are necessary to address the nutrient impairment problem in the MRB. However, in the 2011 answer to the petition, EPA essentially side-stepped this question by denying the overall petition without making a clear determination on the need for federal NNC. The court, looking at both the CWA statutory language and controlling U.S. Supreme Court case law from the 2007Massachusetts v. EPA   decision, found that "EPA could not simply decline to make a necessity determination in response to Plaintiffs' petition for rulemaking" but was required to make a clear "yes" or "no" decision. Accordingly, the court gave EPA 180 days to make a necessity determination.

However, the court also expressly rejected arguments by the environmental plaintiffs that EPA cannot rely on non-scientific factors when making a necessity determination. Instead, the court affirmed that EPA has wide discretion on the factors it can consider when making a determination, including policy judgments. The court even noted that many of the reasons provided by EPA in the 2011 petition denial could also be used by the Agency in making a formal determination that federal nutrient criteria are not necessary, stating that nothing in the CWA "expressly precludes EPA from considering the very factors that it cited in the Denial." This provides an opportunity for EPA to make a "no" decision on the need for federal NNC – thus meeting the court's directive to make a formal necessity determination – while basing the decision on many of the same factors from the 2011 petition denial. NACWA believes this decision provides EPA with a clear path forward to make a formal determination that federal NNC are not necessary for the MRB.

Another important outcome from the case is the court's clear affirmation that states have primary responsibility under the CWA for developing water quality standards. The court explained that "the necessity determination in §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." This echoes NACWA's longstanding position – as expressed in this case through briefing – that states must take the lead in developing water quality standards and criteria.
EPA appealed the district court decision to the Fifth Circuit on the question of whether the Agency has discretion to decline to make a decision on federal NNC in the first place.

Fifth Circuit Decision 

The U.S. Court of Appeals for the Fifth Circuit issued a decision   on April 7, 2015, providing EPA with significant discretion over how it may respond to an activist group petition requesting federal NNC. The ruling overturned the district court's decision on this issue, finding that EPA can decline to make a determination as long as the Agency provides sufficient justification.

The Fifth Circuit remanded the case back to the district court to decide whether EPA's explanation for why it declined to make a determination on federal NNC was legally sufficient. But the appellate court also included clear instructions that the lower court must give great deference to EPA's decision.

NACWA's primary interest in this case is the substantive question (what kinds of factors can EPA consider when making a determination) and not the procedural question (does EPA have to make a decision in the first place). Because the appeal focused on the procedural and not the substantive issues, NACWA and the other intervenors in the case supporting EPA did not participate directly in the appeal.

District Court Remand 

The remanded case was resolved on cross-motions for summary judgment, with no discovery. NACWA actively participated in the full round of summary judgment briefing in the remanded case, filing a brief on January 14, 2016 along with a coalition of industrial and agricultural organizations opposed to federally-mandated NNC.  The brief argued that EPA’s decision was sufficiently grounded in the statute, and that the Fifth Circuit’s instructions for the remand were clearly limited to this issue.

In a December 15, 2016 decision, the court found that EPA’s denial of the plaintiff’s petition was sufficiently grounded in the CWA, following the guidelines provided by the Fifth Circuit, particularly in the context of the general cooperative federalism framework of the Act and Section 303 pertaining to water quality more specifically.  The court explained that because the denial “is grounded primarily on EPA’s assessment that working in partnership with the States to reduce nutrient pollution would be a more effective approach at present,” was sufficiently “grounded in the statute” because of CWA’s clear division of responsibility between EPA and the states. Specifically, the court went on to explain that “the CWA is by design a states-in-the-first-instance regulatory scheme,” that [w]ith the CWA the federal role is properly characterized as a secondary or backstop role,” that “the primacy of the States’ role permeates the text,” and therefore “[a]s a matter of law, the Denial is not based on reasons divorced from the statutory text of the CWA.”

The court’s decision represents a victory for NACWA’s advocacy both in the original case and on remand. NACWA argued throughout the litigation about the importance of the lead role states must take under the CWA in developing water quality standards, and argued that federal action on NNC would unlawfully displace state primacy on this critical issue.  NACWA also argued that cooperative federalism is necessary to achieve water quality solutions that cannot be either fully addressed nor solely accomplished by actions available to EPA under the CWA.

For additional analysis on this aspect of the decision, see Cooperative Federalism: Courts Get it Right in Nutrient Litigation in NACWA's weekly blog, The Water Voice.

More information on the case can be found in Advocacy Alert 13-15, Advocacy Alert 13-05 and Advocacy Alert 15-05.

Rulings/Pleadings/Related Documents (All in format)

Petition

• 2008 NGO Petition, 07/30/2008
• 2011 EPA Petition Denial, 07/29/2011

Federal District Court Litigation

• NGO Complaint, 03/13/2012
• NACWA Motion to Intervene, 05/23/2012
• NACWA Memorandum in Support of Motion to Intervene, 05/23/2012
• NACWA Complaint in Intervention, 05/23/2012
• EPA Answer, 05/21/2012
• Zainey (E.D.La.) Order Granting NACWA MTI, 05/29/2012
• Plaintiff's Motion for Summary Judgment, 11/19/2012
• EPA Motion for Summary Judgment, 01/18/2013
• NACWA Intervenors Brief, 03/04/2013
• Joint Industry-Intervenors Brief, 03/04/2013
• State Intervenors Brief, 03/04/2013
• Plaintiffs’ Response, 04/03/2013
• NACWA/Non-State Intervenors Reply Brief, 05/10/2013
• State Intervenor Brief, 05/10/2013
• EPA Reply Brief, 05/10/2013
• Court Decision, 09/20/2013
   

Fifth Circuit Appeal

• EPA Notice of Appeal, 11/18/2013
• EPA Motion to Stay District Court Order, 02/11/2014
• NGO Opposition to Motion for Stay, 02/18/2014
• EPA Opening Brief, Gulf Restoration Network v. EPA, 5th Cir., 02/27/2014
• Order Granting EPA's Motion for Stay, Gulf Restoration Network v. EPA, 5th Cir., 03/17/2014
• NGO Opening Appeals Brief, 04/08/2014
• EPA Reply Brief, Gulf Restoration Network v. EPA, 5th Cir., 04/29/2014
• Fifth Circuit Decision, 04/07/2015
    

Federal District Court Remand

• Scheduling Order for Remand, 07/20/2015
• NGO Motion for Summary Judgment, 09/21/2015
• EPA Response to NGO Motion for Summary Judgment, 11/20/2015
• NACWA/Non-State Intervenors Brief, 01/14/2016
• NGO Reply in Support of Summary Judgment and Opposition to EPA Motion for Summary Judgment, 02/15/2016
• EPA Reply Brief, 04/15/2016
• District Court Decision, 12/20/2016