» Advocacy Alerts Archive 

The U.S. Court of Appeals for the Fifth Circuit issued a much anticipated decision  April 7 in litigation over nutrient regulation in the Mississippi River Basin (MRB), striking a blow to efforts by environmental activist groups to require federal numeric nutrient criteria (NNC) for the entire MRB. The ruling in Gulf Restoration Network, et al. v. EPA provides EPA with significant discretion over how it may respond to an activist group petition requesting federal NNC. It marks an important win for the Agency and for NACWA, which has opposed federal NNC during the litigation.

This Advocacy Alert provides a brief summary of the background in the case and the Fifth Circuit’s decision.

Background

The case involves EPA’s response to a petition from activist organizations requesting EPA develop federal NNC for the MRB and northern Gulf of Mexico. (See NACWA’s Litigation Tracking page for more background on the case.) EPA declined to make a decision on the need for federal NNC, and in 2012 the activist groups sued EPA to force promulgation of federal nutrient criteria. NACWA successfully intervened  in the case to protect the interests of its municipal clean water utility members, arguing against  the development of NNC. In 2013, a federal district court issued a ruling  that EPA must make a formal “yes” or “no” decision on the need for federal NNC, but also found that EPA has wide discretion in the factors it can consider when making the determination. (See NACWA Advocacy Alert 13-15 for a more detailed analysis of the district court decision.)

Fifth Circuit: EPA Not Required to Make Formal Determination

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. This week’s 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. 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. Given these instructions - and the district court’s own previous ruling that EPA has wide discretion in the factors it can consider when reviewing a request for federal NNC - NACWA believes the district court on remand will likely uphold EPA’s decision not to make an NNC determination.

NACWA is pleased with the Fifth Circuit’s decision as it is consistent with the Association’s overall argument that federal NNC are not appropriate for the MRB. The ruling will make it much more difficult for activist groups to pursue federal NNC, both within the MRB and elsewhere in the country. NACWA’s longstanding position – as expressed in this case through briefing – is that states must take the lead in developing water quality criteria and standards, and this decision is consistent with that goal.

Additional background on the case – including relevant court filings – is available on NACWA’s Litigation Tracking page. Any members with questions about the case or decision may contact Nathan Gardner-Andrews, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/833-3692. NACWA will continue to stay involved in the case during the remand and will report on any developments.