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NRDC wins Gulf Dead Zone lawsuit against EPA

Ann Alexander

Posted September 23, 2013

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dead_zone_300.jpgThe federal district court for the Eastern District of Louisiana late Friday afternoon handed a victory to NRDC and its coalition partners in our challenge to EPA’s refusal to address the pollution-fueled “dead zone” in the Gulf of Mexico.  The court agreed with us that EPA’s response to our plea for federal intervention in this ecological crisis was a squishy non-answer rather than the clear yes or no that the Clean Water Act requires.  The court gave EPA 180 days to respond to the question we asked in our petition – which is whether EPA needs to step in and put limits on the algae-fueling pollution that is causing the dead zone and choking waterways around the nation with green sludge.

In the simplest terms, the court ordered EPA to remove its head from the sand and make a decision whether to be part of the solution or part of the problem.  It’s a short and satisfying answer to a long and decidedly unsatisfying history of dithering inaction by EPA.  As described in earlier posts, our nation’s waters have become increasingly polluted by nitrogen and phosphorus – which are great fertilizers, but when you dump fertilizer into the water it fuels the growth of algae, which in turn chokes out other aquatic Lake Erie.pnglife.   One of the most devastating consequences of this pollution has been the emergence of the dead zone in the Gulf of Mexico – an area the size of Connecticut where algal growth has driven levels of oxygen so low that virtually nothing can live there.  Lake Erie is another sad example – the algae that was once bad enough to merit a mention in The Lorax is coming back, and the Lake is now filled with so much toxin-emitting green slime that the western part looks bright green from space.  The sources of this pollution include agriculture, stormwater runoff, and sewage treatment plants.

EPA has been acknowledging for more than a decade that this problem is severe, calling the nationwide damage from algae pollution a “sobering picture and a compelling reason algae-dead-fish-2011.jpgfor more urgent and effective action.”  More to the point, EPA has repeatedly gone on record saying that states have not done enough to solve the problem, and that federal action is hence necessary to set numeric limits on nitrogen and phosphorus to aid the process of setting discharge limits in permits.  Yet when NRDC and some of our partners in the Mississippi River Collaborative filed a petition in 2008 asking that EPA render a formal decision that federal action is necessary, the agency balked.  Perhaps shaken by the fierce industry opposition to its effort to set such limits in Florida, EPA simply refused to answer our question, saying only that setting federal limits if they were necessary would be a lot of time and trouble.

But EPA’s days of waffling are now over.  The court has ordered it to tell us, point blank, whether federal intervention is or is not necessary to address the problem. 

The court did not tell EPA what the answer should be, because we didn’t ask it to.  Under the Clean Water Act, it is EPA’s decision to make in the first instance.  But the law requires that any decision EPA makes be rational and supportable, and driven by facts not politics.   EPA scientific and technical experts have repeatedly made the case in recent years both that the algae problem is severe, and that states are never going to solve it on their own.  We hope the Agency will listen to those experts in making its decision whether federal standards are necessary, rather than listening to its political fears and desire to hide from the problem.

Photos courtesy of NOAA

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Deon Goodgain Sep 23 2013 10:26 PM


Everything - from plants to people and animals depend on water. A plant's roots function as a water pump. The water acts as a solvent that conveys minerals and nutrients from the roots to the leaves. The water then evaporates and falls back to the soil to perform its function in the life cycle once again.

The Sacramento region provides 60% of 22 million acre-feet of water which flows into the Delta. An acre is approximately the size of a football field. An acre-foot is the amount of water covering one acre to the depth of one foot. One acre-foot of water (325,829 gallons) is enough to supply two families of 4 for one whole year.

Heidenreich lighting leases a 105,000 ton vessel that holds 500,000 to 600,000 barrels of oil super tankers that carries up to 3 million barrels. One barrel holds 42 gallons, which would make 126 million gallons.

The total quantity of oil spilled by tankers between 1970 and 2000 was 5,322,000 tons. The largest oil spill occurred in 1979 when the Atlantic Empress collided with the Aegean Captain in the Caribbean, resulting in a spill of 287,000 tons of oil. The Exxon Valdez spill was only about the 34th largest oil spill.

There is no lack of issues to take up. Repeated warnings have come from individuals and organizations about the dangers of water pollution. Still the situation looks very bleak. One billion people do not have access to safe drinking water. According to TIME magazine, 3.4 million people die each year from water-related diseases.

Now because of our environment, our state's power and air pollution has grown out of control. As a result, harmful emissions from power plants shot up last year, soaring in the fall and air-conditioned summer turning from crunch to crisis.

Running at full tilt, fossil fuel plants emit tons of pollution over the course of a year. Carbon dioxide emissions, from the thirty-one power plants monitored by the Federal EPA, totaled nearly twenty-eight million tons during the first nine months of last year. That was a 52% increase over the amount reported by the same period in 1999.

I ask you how many forest fires are coming up this summer? The number of forest fires increase annually and is harder on our trees and ozone. Over the last century the average temperature in Fresno, California has increased from 61.9 degrees (1899-1928) to 63.3 degrees (1966-1995), which is a twenty percent increase.


Michael BerndtsonSep 24 2013 02:03 PM

Here's what I got out of the meat and potatoes part:

Justice Scalia and the 18th century philosopher David Hume support this decision. Or maybe not. Non-scientific reasoning is good until its bad, but then its also good.

Point sources with NPDES permits will get sued first. My water bill will quadruple. Farmland runoff will be debated like forever. Suburban lawn runoff will be exempt. Industries with strategic environmental partnerships may get waived. The Tea Party will use this to take 2014 and 2016 election cycles and shutdown the EPA. Rendering all this moot. The nutrient plume will expand.

Here's the meat and potatoes part of the Order I cut and pasted and separated out in an attempt to understand it and don't:
This import of the Massachusetts v. EPA decision for the instant case is clear. EPA
could not simply decline to make a necessity determination in response to Plaintiffs’ petition for rulemaking.

In its attempts to avoid this outcome, EPA took great pains in its memoranda to distinguish the text of the Clean Air Act provision at issue in Massachusetts v. EPA from the CWA provision at issue in this case.

But efforts to distinguish the text of the two statutes in order to demonstrate that Massachusetts v. EPA does not compel a necessity determination are futile because, as explained by the dissenting Justices, the Court’s conclusion that EPA lacked discretion to sidestep making a “judgment” was not statutorily based.

Simply, just as EPA’s response to the rulemaking petition in Massachusetts v. EPA was contrary to law because EPA did not make a “judgment,” the Denial was contrary to law because EPA did not make a necessity determination. Of course Plaintiffs herein challenge not only EPA’s failure to make a necessity determination but also EPA’s reliance on non-scientific data when responding to the rulemaking petition.

Plaintiffs believe that Massachusetts v. EPA also compels the conclusion that EPA cannot rely on non-scientific factors when it does make a necessity determination under § 30(c)(4)(B). To the contrary, Massachusetts v. EPA does not stand for the broad proposition that every discretionary EPA determination that serves as a restraint or hurdle to federal action must be based on scientific data as opposed to policy judgments, and it does not stand for the proposition that EPA is precluded from relying on factors not expressly mentioned in the authorizing statute.

Rather, the lesson of Massachusetts v. EPA is that EPA cannot ignore a specific statutory mandate that expressly curtails the exercise of its discretion when it denies a request for rulemaking. Having concluded that the plain text of § 202 of the Clean Air Act required reasoning grounded in science, EPA’s reliance on non-scientific policy concerns as a basis to deny the rulemaking petition was not in accordance with law.

But again, it was the explicit text of the authorizing statute in Massachusetts v. EPA that compelled the outcome in that case. The authorizing statutory text itself contained the limiting language that convinced the Court that EPA’s “judgment” had to be grounded in science.

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