Fifth Circuit Says EPA Not Required to Make Necessity Determination

May 1, 2015
Kristine A. Tidgren

A recent Fifth Circuit opinion established that a federal court has jurisdiction to review the EPA’s denial of a rulemaking petition. It did, however, go on to establish a “highly deferential” standard of review, placing upon the agency only a “slight” burden to justify its decision to decline a necessity determination. Although the case is on remand to the district court for further review, this decision was a win for the agency.

The case arose when a coalition of environmental groups petitioned EPA to use its rulemaking powers under 33 U.S.C. §1313(c)(4)(B) to control nitrogen and phosphorus pollution within the Mississippi River Basin and the Northern Gulf of Mexico.   

The EPA denied the request, stating that it did not believe that federal rulemaking was the most effective or practical means of addressing the significant water quality problems addressed in the petition. In conjunction with its denial, the EPA asserted its “longstanding policy, consistent with the [Clean Water Act],” of allowing states to develop and adopt water quality standards “in the first instance.” In denying the petition, the EPA did not determine that new standards were not necessary to meet CWA requirements. Rather, the EPA exercised its discretion to allocate its resources in a manner that supported regional and state activities designed to reduce nitrogen and phosphorus pollution.

The environmental groups then filed a federal CWA lawsuit, alleging that that EPA had violated the CWA by declining to make the requested “necessity determination.” A necessity determination” is a finding under §1313(c)(4)(B) that new water quality standards are necessary to meet the requirements of the CWA. In other words, it is a finding that the States’ standards have failed and that the EPA must step in to create acceptable standards. Before the EPA can establish its own water quality regulations, the “necessity determination” must be made.  

The district court first ruled that it had the jurisdiction to review the EPA’s decision not to make the necessity determination. It then held that EPA could not, as it had done, simply decline to make the necessity determination once a petition for rulemaking is filed. The district court thus sent the case back to the agency with an order to conduct a necessity determination.  The district court did refuse to make its own necessity determination. It also declined to issue guidance to the EPA as to the factors it could consider on remand. As such, the district court decision suggested that EPA’s actual determination would be subject to deference.

The EPA challenged the decision, and the Fifth Circuit vacated the order. The court agreed that it did have jurisdiction to review the agency action. It disagreed, however, with the district court’s finding that the EPA was required to make a necessity determination. Rather, the court found that the agency had the discretion to decline to make a necessity determination. That decision, however, would have to be “rooted in the words of §1313(c)(4)(B).”  

The court remanded the case to the district court for a determination of whether the EPA’s explanation for its refusal to make the necessity determination was sufficient. In its remand instructions, the court directed that the review was to be “highly deferential,” imposing only a “slight” burden upon the agency. Any “reasonable” explanation, grounded in the language of the statute, would be sufficient to justify the denial. This language virtually ensures a win for EPA on remand.

Gulf Restoration Network v. McCarthy, No. 13-31214, 2015 U.S. App. LEXIS 5602 (5th Cir. La. Apr. 7, 2015).

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