Fertilizer suppliers and users could find themselves under stricter regulations sooner than later because of a federal court decision ordering the U.S. Environmental Protection Agency (EPA) to spend the next six months determining if it should set new limits to protect U.S. waterways including the Mississippi River Basin, the Gulf of Mexico and others throughout the country.
The U.S. District Court in Eastern Louisiana on Sept. 20 directed EPA to get on with deciding if there should be new restrictions on nitrogen and phosphate pollution, agreeing with the plaintiffs led by the Natural Resources Defense Council (NRDC), that the EPA’s refusal to provide a direct answer was unlawful. The lawsuit was filed on behalf of several conservation groups determined to break what they consider longstanding inaction by the federal government regarding pollution in the nation’s waterways.
The decision does not tell the EPA how to address the problem, only to make a decision on the issue. However, EPA has repeatedly acknowledged the severity of the situation and stated that federal intervention is appropriate because states are not doing enough to solve it. There are general concerns about detrimental algae fed by nitrogen and phosphate from sewage plants, urban stormwater systems and agriculture and choking out other aquatic life and threatening survival of fish and shellfish.
According to NRDC, the court gave EPA 180 days to respond to the question asked in the petition – 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. NRDC boasted that "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." NRDC has repeatedly charged that the nation’s waters have become increasingly polluted by nitrogen and phosphate. “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," said NRDC.
Plaintiffs in the suit included Gulf Restoration Network, Waterkeeper Alliance, Environmental Law and Policy Center, Iowa Environmental Council, Missouri Coalition for the Environment, Prairie Rivers Network, Kentucky Waterways Alliance, Tennessee Clean Water Network, Minnesota Center for Environmental Advocacy, Sierra Club, and NRDC. Attorneys at the Tulane Environmental Law Clinic, NRDC, and the Environmental Law and Policy Center brought the case.
The Fertilizer Institute (TFI), the American Farm Bureau Federation (AFBF), the National Pork Producers Council (NPPC), Agricultural Retailers Association (ARA), and the National Corn Growers Association (NCGA), submitted a joint memorandum as interveners in opposition to the Gulf Restoration Network (GRN), et al (plaintiffs) and in support of the EPA.
The EPA was represented in the suit by the U.S. Justice Department whose spokesman would not comment on the decision. Those in industry indicated they needed more time and details to determine what impact the decision will have. "We intervened in EPA’s favor but right now we’ve got our legal team taking a look at it," said TFI spokeswoman Kathy Mathers. "We can’t provide any response until we get our experts to analyze and sift it out."
“ARA is disappointed in the court decision requiring the EPA to take further related to the plaintiffs’ petition,” said Richard Gupton, ARA senior vice president for public policy and counsel. “ARA joined several other agricultural organi