Court determines EPA didn't properly respond to claims

By Charmaine Little | Nov 19, 2018

Water   ICS Media Database

On Oct. 25, the U.S. District Court for the Eastern District of Louisiana granted in part and denied in part Gulf Restoration Network’s motion to strike the U.S. Environmental Protection Agency’s answer as non-responsive.

The Gulf Restoration Network filed the lawsuit and took issue with EPA’s decision to back the state’s reduced requirements for dissolved oxygen levels in 31 bodies of water near Lake Ponchartrain and Lake Maurepas and beyond the Mississippi River. The plaintiffs claim the lower criteria will lead to more pollution being discharged into these bodies of water. 

It called out the EPA for not taking into account the Clean Water Act requirements, depending on unreliable science, and lacking a rational basis for approval. It also said the EPA didn’t make sure the lessened criteria would not negatively impact animals that are protected under the Endangered Species Act such as the Gulf sturgeon.

While the EPA filed a response, the network immediately responded with a motion to strike it. The network then filed a First Amended Complaint, and the EPA delivered a second answer, which the Gulf network also saw as non-responsive, and filed the motion to strike the new response. It accused the EPA of not confirming or denying the allegations against it. Instead, the EPA said the facts and reports “speak for themselves,” according to the lawsuit. Still, EPA said their answer meets minimum requirements. The court only partially agreed.

Judge Mary Ann Vial Lemmon of the U.S. District Court for Louisiana's Eastern District   Photo courtesy of Judge Mary Ann Vial Lemmon

The court said EPA’s answer doesn’t satisfy criteria under Rule 8(b), which says a defendant has to either admit to an allegation, deny, or say that it doesn’t have enough information. Considering this, the answer that the data “speaks for themselves” is improper.

Still, the court also added a motion to strike via Rule 12(f) as it isn’t the best option for relief. That regulation says, “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” according to the opinion. Ultimately, it’s an improper rule to use to try and have the court striking the defendant’s response as non-responsive at all.

Considering this, the court granted the motion to strike under the notion that the defendants’ response to align with Rule 8(b) but is also denied in part “to the extent it seeks to have the answer stricken as non-responsive.”

U.S. District Judge Mary Ann Vial Lemmon ruled on the case.

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