Potential Implications Of The Mississippi River Basin Nutrient Criteria Lawsuit

Back on March 13, 2012, several environmental advocacy groups sued the EPA in federal district court in Louisiana on nutrient related issues. The case, Gulf Restoration Network, et. al. v. Jackson, et al., Case No.12-cv-677 Eastern District of Louisiana, challenges an EPA denial of a 2008 petition requesting new water quality standards and total maximum daily loads to address excess nitrogen and phosphorous in the Mississippi River Basin (MRB) and the Gulf of Mexico. Approximately 60% of the fertlizer used in the United States is consumed in the MRB. This case has even broader implications for the industry than the EPA’s efforts to impose numeric nutrient criteria in the state of Florida.

The Agricultural Retailers Association (ARA), The Fertilizer Institute (TFI), American Farm Bureau Federation (AFBF), National Corn Growers Association (NCGA), National Pork Producers Council (NPPC), and several other agricultural groups intend to intervene in this case given the significant impact it could have on fertilizer production and application in the MRB watershed. Crowell & Moring will be representing the above-mentioned agricultural organizations in this case.

We strongly encourage all member companies and state agribusiness organizations with operations within the MRB watershed to contact your Governor and state agricultural department and urge the state to also intervene in this case. Early intervention by industry and impacted states will be useful in helping EPA craft legal arguments against the plaintiffs and allow participation in any potential negotiations.

What are the legal ramifications of this lawsuit?

If EPA loses or settles this case, the result would likely be federal rulemakings establishing numeric water quality criteria for Total Nitrogen and Total Phosphorus throughout the Mississippi River Basin as well as EPA-promulgated nutrient TMDL(s) for the River and Northern Gulf of Mexico. The nutrient criteria and TMDLs stemming from a negative judicial ruling would be translated into nutrient water quality based effluent limitations in NPDES permits and TMDL load and wasteload allocations. In other words, local governments, industry, and agriculture in the Mississippi River Basin states could have new limits placed on the amounts of nitrogen and phosphorus they discharge or allow to runoff into the river system.

Would these nutrient limits likely be stringent?

Yes. Likely, very stringent. It would be reasonable to expect that EPA’s numeric nutrient criteria would be in the same general range as those EPA recently imposed on the State of Florida (i.e. 0.06-0.49 mg/LTP; 0.67-1.87 mg/L-TN). EPA imposed the Florida standards after settling a lawsuit that similarly sought the establishment of numeric criteria for Florida waters.

Would these nutrient limits likely be expensive to achieve?

The economic impact of numeric nutrient criteria and nutrient TMDLs on the Mississippi River Basin states would likely be enormous. By way of comparison, EPA’s recent numeric nutrient criteria rules for Florida freshwater systems are estimated to carry a Florida-wide implementation price tag of $298 million to $4.7 billion per year. Another study calculated that Florida sewer utility bills would have to increase $570 to $990 per year to fund the substantial capital projects required to achieve EPA’s nutrient water quality criteria.

What can be done by the states and the regulated community to protect their interests?

Given the potential implications, the states and regulated entities in the Mississippi River Basin should consider intervening in this litigation. The ongoing numeric nutrient criteria litigation and rulemakings in Florida, which also began with the filing of a lawsuit by environmental advocates against EPA, demonstrate the importance of early involvement in these types of lawsuits. It is simply too perilous to rely upon EPA to defend its policies and stay the course with cooperative arrangements with the states.

Intervening interests (particularly, state environmental regulators) can demonstrate the reasonableness of EPA’s decision to deny the rulemaking petition by informing the court of the states’ efforts and achievements in addressing nutrient pollution; the significant challenges associated with establishing scientifically defensible numeric nutrient criteria; and the substantial technical and economic difficulties in addressing non-point sources of nutrient pollution (e.g. agricultural, septic tanks).

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