When a number of citizen groups petitioned EPA to determine that it is necessary under the Clean Water Act to promulgate water quality standards for nutrient pollution in the Mississippi River Basin and the Northern Gulf of Mexico, EPA did not decide to issue the standards.  It did not decide not to issue the standards.  It decided not to decide.  Litigation ensued.

Earlier this week, the 5^th Circuit Court of Appeals, reversing the District Court, found that EPA has no obligation to make a so-called “necessity determination”, so long as:

it provides an adequate explanation, grounded in the statute, for why it has elected not to do so.

The Court thus remanded the case to the District Court to determine whether EPA’s explanation for its failure to decide was sufficiently “grounded in the statute.”  If I were the plaintiffs, I wouldn’t hold out too much hope, because the Court of Appeals made clear just how limited the District Court’s review must be:

In [deciding the case on remand], the district court must bear in mind several principles. First, the court applies the arbitrary and capricious standard of review set out in the APA. “As applied to refusals to initiate rulemakings, this standard is ‘at the high end of the range’ of deference,” and “such review is ‘extremely limited’ and ‘highly deferential.’” Second, in deciding whether the EPA appropriately declined to make a necessity decision, the district court’s review is limited to determining whether the EPA has “provide[d] some reasonable explanation as to why it cannot or will not exercise its discretion” to make a necessity determination. That explanation must be grounded in the statute.

In light of this highly deferential standard of review, the agency’s burden is slight. That is particularly true when the statute is as broadly written as section 1313(c)(4)(B). Moreover, when a statute sets out competing considerations, agencies are generally given discretion to choose how to best give effect to those mandates. Nonetheless, we leave it to the capable hands of the district court to determine in the first instance the propriety of the EPA’s actions.

It will take a bold District Court judge to find that EPA has not met the burden as described by the Court of Appeals.