Another Round of EPA Delay in the Dead Zone Litigation

 EPA has a long and venerable history of being all talk and no action on the Gulf Dead Zone.  That long history just got a little bit longer yesterday.  The U.S. Court of Appeals granted the Agency an 11th-hour stay of their looming March 19 deadline imposed by the lower court last September for responding properly to our citizen petition for a rulemaking on algae-fueling pollution. 

The District Court’s order last year was a win in our lawsuit asking EPA to provide a straight answer to the question we posed in our petition, which is whether federal action to curb the pollution fueling the Dead Zone is necessary in view of the magnitude of the problem and the near-complete absence of state action.  Our lawsuit explained that EPA has been delaying taking action since 1998, when it first promised federal action but didn’t follow through, and has been wringing its hands and doing next to nothing ever since.  EPA has been a target of aggressive industry pressure not to act on the problem; and seemingly too spooked to make a decision one way or the other, it employed some impressive linguistic gymnastics to avoid actually answering the necessity question.

EPA could not even decide whether to appeal the lower court’s decision without delay – it filed a placeholder notice of appeal within 60 days as required by law, but claimed that it did not actually get approval from higher-ups to follow through with the appeal until nearly three months later.  Once it finally received that approval in February, the Agency filed a request with both the lower court and the Court of Appeals for a stay of its March 19 response deadline pending resolution of the appeal.  The lower court denied the stay request last Friday, but the appellate court granted it on Monday. 

So, EPA now has a temporary reprieve in its obligation to respond to our petition as the lower court directed.  We will be filing our brief on appeal on April 1, after which EPA will file a reply brief and the matter will be submitted for review and decision by the Court of Appeals.