Posted October 9, 2013
In Gulf Restoration Network, et al. v. Jackson, No. 12-677, 2013 WL 55328547 (E.D.L.A. September 20, 2013), the United States District Court for the Eastern District of Louisiana ruled that the Environmental Protection Agency’s (EPA’s) denial of plaintiff’s petition for rulemaking violated the Administrative Procedure Act (APA) and ordered the EPA to respond to the petition within 180 days.  For a copy of the decision, please contact the National Agricultural Law Center at  This is an update to a recent post from this blog available here.  For more information on the Clean Water Act (CWA), please visit the National Agricultural Law Center’s Reading Room on the subject, here.
On July 30, 2008, plaintiffs submitted a petition to the EPA for Rulemaking (“the Petition”) under the CWA.  Id. at *1.  The Petition expressed dissatisfaction with the EPA’s “hands-off approach to dealing with nitrogen and phosphorus pollution in the United States and asked that the EPA use its rule making authority to promulgate federal standards to control nitrogen and phosphorus pollution.  Id.  EPA issued a formal response (“the Denial”) on July 29, 2011, stating that it did not believe that the use of its rule making authority would be a practical or efficient way to address nutrient pollution on a national or regional scale.  Id. at *2. 
Plaintiffs filed their Original Complaint on March 13, 2012, and their Amended Complaint on March 13, 2012, alleging that the EPA violated of the Administrative Procedure Act (APA) because the Denial was not supported by reasons conforming with the relevant statutory factors in § 303(c)(4)(B) of the CWA and the Denial was contrary to the undisputed evidence.  Id.  EPA filed a motion to dismiss and both parties filed motions for summary judgment.
Analysis and Holding
The court denied EPA’s motion to dismiss, holding that the Denial was a final agency action reviewable pursuant to 5 U.S.C. §§ 704 & 706(2)(A).  Id. at *4.  The court was not persuaded by EPA’s subject matter jurisdiction arguments, stating “the issues before the Court at this juncture – whether EPA could refuse to make a necessity determination and do so based on non-statutory factors – are legal questions that this Court can decide without eroding any of the deference owed to EPA.”  Id.
The Court noted that the plaintiffs’ challenge to the Denial turns on whether a recent decision, Massachusetts v. EPA, applied to § 304(c)(4) of the CWA.  Id.  In Massachusetts v. EPA, 549 U.S. 497 (2007), the Court held that EPA’s action was “arbitrary, capricious, or otherwise not in accordance with the law” when it offered no reason for its refusal to “decide whether greenhouse gases cause or contribute to climate change.”   See id. at *5.  This Court stated that Massachusetts v. EPA applies here because the “EPA lacks the discretion to simply decline to make a threshold determination in response to a rulemaking petition even where the statutory text does not explicitly require it to do so.”  Id. at *6. 
The Court ruled that EPA’s Denial of the Petition was “contrary to law because EPA did not make a necessity determination,” stating that Massachusetts v. EPA requires EPA to conduct a necessity determination in response to plaintiffs’ rulemaking petition.  Id. at *7.  The Court ordered the EPA to take action within 180 days.  Id.