Federal judge set to hear new arguments on EPA dead zone-regulations

July 22, 2015

United States District Judge Jay Zainey announced on July 20 that he'll consider new arguments pertaining to the Environmental Protection Agency (EPA)'s regulation of fertilizer and other nutrient pollutants in the Mississippi River. These nutrients have caused algae rich "dead zones" in the Gulf of Mexico every summer that deprive the waters of oxygen.

Judge Zainey's order calls for new written arguments to be submitted by the EPA as well as the 11 environmental groups who first filed the suit against the agency. The arguments are due by February 15 of 2016, at which point Zainey will decide the case. No oral arguments were scheduled in the order.

The case was reopened following an April 7 decision of the U.S. 5th Circuit Court of Appeals in New Orleans which ruled that Judge Zainey had to reconsider a 2013 ruling where he ordered the EPA to put together a "necessity determination" as to whether the agency needed to create stricter regulations.

In the suit's original filings, the EPA claimed that the Clean Water Act created a fragile balance between the rights of states to regulate their own waters and the federal government's right to reduce pollution. As such, the agency argued that the best course of action was to keep that balance by basing its strategy around voluntary measures.

Environmental groups have pointed out, however, that this has led to minimal, if any improvement to the dead-zone, which as of last July spanned across over 5,000 square miles, an area roughly the size of Connecticut.

A cruise to determine the size of this year's dead zone is planned to launch at some point in the next week. Environmental scientists estimate that it will be larger than 5,483 square miles, a growth of over ten percent over last year's, and well above the Mississippi River Gulf of Mexico Watershed Nutrient Task Force's goal of reducing its size to 1,991 square miles.

In their ruling, the appeals court told Zainey to limit his review to determining whether or not the EPA provided "some reasonable explanation as to why it cannot or will not exercise its discretion …" It added that "In light of this highly deferential standard of review, the agency's burden is slight," writing that in situations where federal statutes conflict with the those of the state that "agencies are generally given discretion to choose how to best give effects to those mandates."

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