5th Circuit: EPA may decline to set pollution standards but must have reasons based in law

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NEW ORLEANS — A federal judge who ordered the Environmental Protection Agency to take action to regulate farm runoff and other pollution blamed for the Gulf of Mexico's annual oxygen-depleted "dead zone" must take a second crack at his ruling.

An appeals court has ordered U.S. District Judge Jay Zainey to reassess his 2013 order telling the EPA to set federal limits on the nutrients nitrogen and phosphorous, which feed huge algae blooms that contribute to loss of oxygen in part of the Gulf of Mexico every summer, killing or chasing away marine life.

A three-judge panel of the 5th Circuit Court of Appeals told Zainey he must decide whether the EPA gave adequate reasons, based on the Clean Water Act, for its original refusal to set limits on the chemicals in all U.S. waterways. The appeals court said in April 2014 that Zainey was wrong to rule that the EPA could not decide against studying whether to set the standards.

The appeals court ruling was seen as a setback to 11 environmental groups that sued to force the EPA to take action to fight the algae blooms on the Mississippi River. The groups, represented by the nonprofit National Resources Defense Council, don't plan a further appeal but will wait until Zainey takes up the case again.

"We have real hope that the district court is going to reaffirm its initial sound determination" that EPA had not based its refusal to set nitrogen and phosphorous standards in the law, Ann Alexander, attorney for the NRDC, told The Associated Press.

The environmental plaintiffs also are members of the Mississippi River Collaborative, which asked EPA in 2008 to set standards and cleanup plans for nitrogen and phosphorus pollution of the river.

Alexander said the coalition won a resounding victory on another matter: the question of whether federal courts had any say at all over EPA's decision.

"The court rejected EPA's argument that it was immune from judicial scrutiny," she said.

The U.S. Justice Department, representing the EPA, argued that setting such rules would be unnecessarily complex, would take too many people and too much time, and that the agency could more effectively work with states to reduce water pollution from fertilizer, sewage and storm runoff.

The department is reviewing the opinion, spokesman Wyn Hornbuckle said in an email.

Nearly 60 groups joined EPA as defendants, including the American Farm Bureau Federation, 15 state farm bureaus and nearly 20 corn and pork production groups. Corn uses large amounts of nitrogen as fertilizer, and pigs, like humans and other mammals, excrete it.

The farm bureaus and production groups did not participate in the appeal, but "we're pleased with the result," said Richard E. Schwartz of Washington, one of their attorneys.

Both sides have until mid-May to ask the full 5th Circuit to rehear the case or to ask the U.S. Supreme Court to look at it, putting district court action on hold.

Nutrients from the 31 states whose waters feed into the Mississippi River are considered a major cause of the dead zone, an area on the bottom of the Gulf of Mexico where there is too little oxygen to support marine life. Its size varies from year to year, but the average of 5,800 square miles is larger than Connecticut.

The nitrogen and phosphorus feed algae blooms which die, sink to the bottom and decompose. The algae also feed microscopic marine animals that die in their turn. The decomposition and bacteria that feed on the remains use up oxygen, starting from the bottom and extending up for 60 feet or more.

Under the U.S. Supreme Court's 2007 ruling that the Clean Air Act gave EPA authority to regulate greenhouse gases, it said the agency could avoid making such a decision if it had good reasons that are based in the law itself.


Online:

http://www.gulfhypoxia.net/

EPA on nitrogen and phosphorus pollution: http://www2.epa.gov/nutrientpollution

Mississippi River Collaborative: http://www.msrivercollab.org/

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