## Facts

- Environmental organizations petitioned the EPA in 2008 to promulgate numeric nutrient (nitrogen and phosphorus) water-quality standards for waters in the Mississippi River Basin and the northern Gulf of Mexico under the Clean Water Act (CWA).
- The petition relied on 33 U.S.C. § 1313(c)(4)(B), which authorizes EPA to promulgate federal standards when the Administrator determines new or revised standards are necessary to meet the CWA’s requirements.
- EPA acknowledged nutrient pollution as a significant water-quality problem but declined to initiate federal rulemaking.
- EPA stated it did not view comprehensive federal rulemaking as the most effective or practical approach at that time, preferring state-led and collaborative measures and other non-rulemaking initiatives.
- The organizations sued, alleging EPA unlawfully failed to act by refusing to make a “necessity determination” in response to their petition.

## Issues

1. Whether EPA’s denial of the petition—specifically its decision not to make a § 1313(c)(4)(B) necessity determination—is reviewable under the Administrative Procedure Act (APA), or is committed to agency discretion by law.
2. If reviewable, whether the CWA and APA require EPA to make a § 1313(c)(4)(B) necessity determination in response to the petition.

## Decision

- The Fifth Circuit held it had subject-matter jurisdiction and that EPA’s denial of the petition was judicially reviewable under the APA.
- The court held EPA was not required to make a § 1313(c)(4)(B) necessity determination in response to every petition.
- The court affirmed the district court on reviewability, reversed the order compelling EPA to make a necessity determination, and remanded.

## Legal Principles

- Agency denials of rulemaking petitions are generally reviewable under the APA’s presumption of reviewability and evaluated under the arbitrary-and-capricious standard where there is “law to apply.”
- Under CWA § 1313(c)(4)(B), EPA has a mandatory duty to promptly propose federal standards only after it determines that new or revised standards are necessary; the statute does not impose an independent duty to make that necessity determination upon receipt of a petition.
- A discretionary threshold determination may remain subject to APA review when the agency denies a petition; the agency must provide a reasoned explanation grounded in the statute and may not rely on impermissible considerations.

## Conclusion

The Fifth Circuit held that EPA’s refusal to grant a CWA rulemaking petition is reviewable under the APA, but the CWA does not require EPA to make a necessity determination whenever petitioned; EPA retains discretion over whether and when to make that determination, subject to arbitrary-and-capricious review of its denial.


Gulf Restoration Network v. McCarthy, 783 F.3d 227 (5th Cir. 2015)