The U.S. Environmental Protection Agency(EPA) is asking a federal appeals court in New Orleans to vacate an order that forces the agency to rule on whether federal regulations are necessary to curb the flow of pollutants – mostly from agricultural run-off – into the Mississippi River.
The pollutants, reports the New Orleans Times-Picayune newspaper, are major contributors to a low-oxygen “dead zone” that forms along the Louisiana coastline every spring, as farmers up-river plant crops throughout the Midwest.
The paper, located online at NOLA.com, noted:
At a [Dec. 4] hearing before the 5th Circuit Court of Appeals, federal attorneys told a three-judge panel that the EPA — not the courts — is responsible for setting priorities for water quality and other issues. The agency argued that the lower-court order allows the rule-making process to “be whipsawed back and forth” by interest groups.
‘States have failed to act’
The appeal surrounds a ruling by U.S. District Judge Jay Zainey in 2013 stating that the EPA has to make a “necessity determination” to assess whether a federal clampdown on water pollutants flowing into the Mississippi should be undertaken. The 5th Circuit has granted the agency’s request to delay the judge’s order as it appeals the ruling.
The ruling by Zainey, who was appointed to the bench by President George W. Bush, was viewed by environmental groups as a victory. They have argued that the EPA has been excessively slow to address the problem, with some even suggesting that agricultural industry interests are influencing the agency into inaction.
A number of environmental groups asked the agency in 2008 to craft new rules that would limit the flow of nitrogen and phosphorus – used heavily in fertilization processes – from Midwest farms, sewage treatment facilities and other sources into the Mississippi River and adjoining tributaries.
NOLA.com described the issue further:
The “dead zone” that fans out from the Mississippi River outlet into the Gulf of Mexico each spring is caused by algae, which kicks into rapid growth mode when large amounts of agricultural nutrients wash into the ocean. The nutrients feed massive algae blooms, which sink to the ocean floor and decompose, consuming most of the available oxygen in the water and leaving worms, clams and other bottom-dwelling sea life to suffocate.
In 2013, the paper said, the gulf-region dead zone near the state’s coastline covered as much as 5,800 square miles, with varying degrees of low-oxygen pockets, according to an estimate from the National Oceanic and Atmospheric Association. That is an area similar to the size of Connecticut.
New Orleans-based conservation group Gulf Restoration Network, along with the National Resources Defense Council, a national organization, are among the organizations that have petitioned the EPA for tougher rules. But in 2008 the agency denied their request, saying it was not yet time for the federal government to intervene.
The groups cited the agency’s role under the federal Clean Water Act as giving it the authority to act, but the agency thus far has disagreed. The act “makes states responsible for regulating water quality,” not the federal government per se, “and the EPA said it would continue to work with states to curb water pollutants,” NOLA.com reported.
But, say the green groups, states have for years failed to act on their own, making it time the EPA did instead.
‘Lower court’s order should stand’
At the recent court hearing, an attorney with the National Resources Defense Council, Ann Alexander, said federal law required the EPA to act if states would not. She agreed with Zainey’s order and said it should stand.
“On this particular issue, it [has been] an entire decade of relentless avoidance of the problem,” she said, as quoted by NOLA.com.
If the 5th Circuit does not overturn the order, attorneys for the EPA have asked that it be sent back to his court for further clarification. The order says the EPA has 6 months – 180 days – to make a formal determination on whether it will write new rules to limit nutrient pollution.
“The agency may decide in favor or against taking action, but it must provide a clear explanation of the legal and scientific basis for its action, according to the order,” NOLA.com reported.