ARA Regulatory Update: A Pollution Diet for the Gulf of Mexico?
LYNN KORNFELD Two lawsuits filed in March signal a new phase in the decades-long struggle between environmentalists and agriculture groups over nitrogen and phosphorous regulation under the Clean Water Act (CWA). In the suits, a coalition of environmental groups (Coalition) allege that the U.S. Environmental Protection Agency (EPA) violated the Administrative Procedure Act (APA) because it did not adequately respond to the Coalition’s petitions to use its CWA authority over water quality to address nitrogen and phosphorous pollution in the nation’s waterways. Nitrogen and phosphorous are key ingredients in fertilizer, and runoff from corn and soybean farms and pastures containing these nutrients has been identified as the primary cause of a polluted “dead zone” in the Mississippi River Basin and the Gulf of Mexico.
TOMMY OLSEN In a lawsuit filed in the Eastern District of Louisiana, the Coalition alleges that EPA’s denial of a petition for rulemaking to establish and enforce stricter water limits on nitrogen and phosphorous was “arbitrary and capricious” in violation of the APA (Gulf Restor’n Network v. Jackson, E.D. La., No. 2: 12-cv-00677, Mar. 13, 2012). The Coalition contends that its petition contained “voluminous evidence” that excessive nitrogen and phosphorous pollution has “devastating impacts on water quality and the ability of waters to support their designated uses, both in the states themselves and in downstream waters;” and that EPA, in denying the petition, failed to adequately explain why new standards were not necessary to meet the CWA’s water quality goals. Instead of using its rulemaking authority to impose a national numeric limitation, EPA maintained that building on existing technical support efforts and “[working] cooperatively with states and tribes to strengthen nutrient management programs” is “the most effective and sustainable way to address widespread and pervasive nutrient pollution.”
The Coalition filed another lawsuit against EPA in the Southern District of New York on the same day (Natural Res. Def. Council, Inc. v. Jackson, S.D.N.Y., No. 12-CIV-1848, Mar. 13, 2012). The complaint alleges that EPA violated the APA because it never responded to a November 2007 petition for rulemaking requesting that EPA update secondary treatment rules under the CWA, which would require publicly owned treatment works to implement new technologies capable of removing nutrients—including nitrogen and phosphorous—from wastewater before discharge. The Coalition seeks injunctive relief forcing EPA to respond to the rulemaking petition within 90 days.