Gulf Restoration Network v. McCarthy: The Necessity Determination Mechanism to Ensure Government Accountability

Since the 1970s, the Gulf of Mexico has suffered from human-produced nutrient pollution. The ongoing pollution from the Mississippi River Basin has created a “dead zone” in the Gulf of Mexico that harms biodiversity and the fishing and tourism industries. When the Environmental Protection Agency (EPA) rejected a petition from environmental groups for federal water quality standards and refused to make a determination about whether the pollution problem necessitated federal intervention, environmental organizations sued. In Gulf Restoration Network v. McCarthy, the Fifth Circuit found jurisdiction to review EPA’s decision, but held that EPA could avoid making a necessity determination for water quality standards, so long as it provided a reasonable explanation grounded in the Clean Water Act (CWA). Gulf Restoration Network prevents environmental plaintiffs from holding EPA accountable for entrenched water pollution, to the detriment of wildlife and public welfare. These troubling implications highlight the need to prioritize the purposes of the CWA over administrative deference.