March 19, 2012

Environment Groups Sue EPA to Regulate Nutrients

A coalition of environmental groups filed simultaneous federal actions in New York and Louisiana on March 13, 2012, seeking to require the U.S. Environmental Protection Agency (EPA) to address nitrogen and phosphorous runoff and discharges from waste water treatment plants in the Mississippi River basin.

The actions signal a new phase in the decades-long dispute over the scope of EPA's authority to regulate nitrogen and phosphorus under the Clean Water Act (CWA).

In the actions, a coalition of environmental groups (Coalition) alleges that the EPA violated the Administrative Procedure Act (APA) by not adequately responding to the Coalition's petitions for EPA to use its CWA rulemaking authority to address nitrogen and phosphorous compounds.

The Coalition alleges that nitrogen and phosphorous fertilizer run-off from farm fields adversely affects water quality in the Mississippi River basin and creates a "dead zone" in the Gulf of Mexico.

The Louisiana action, Gulf Restor'n Network v. Jackson, E.D. La., No. 2: 12-cv-00677, Mar. 13, 2012, 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. 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.

The New York action, Natural Res. Def. Council, Inc. v. Jackson, S.D.N.Y., No. 12-CIV-1848, Mar. 13, 2012, 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 that would require waste water treatment plants 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.

For the agriculture industry and farmers, the implications of the lawsuits are significant. According to the Iowa Farm Bureau, the cost of complying with the nitrogen and phosphorous standards sought by environmental groups could be as high as $600 million per year nationwide.

Industry groups are considering intervening in the actions. Industry intervention in the Gulf Restoration Network case appears particularly likely because that action addresses the question whether EPA acted reasonably in rejecting a nationwide nitrogen and phosphorous standard in favor of EPA's existing cooperative, state-by-state approach to nutrient management.

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