EPA Administrator Can|Send Assistant to Hearing

(CN) - The 11th Circuit saw "no special need" for the Environmental Protection Agency's administrator to appear at a compliance hearing on pollution in the Everglades. The administrator's assistant "is an adequate substitute," the court ruled.

The federal appeals court granted the agency's petition for an order forcing a federal judge in Florida to allow the substitution.

The judge had ordered EPA Administrator Lisa Jackson to appear and two state environmental officials to appear at a hearing about the agency's compliance with an order requiring it to crack the whip on Florida for lowering its water quality standards for the Everglades.

The EPA asked the court for permission to have Peter Silva, the EPA's assistant administrator for water, appear at the hearing instead of Jackson. At the end of a teleconference, the federal judge denied the request for substitution, saying "the Everglades are of considerable national importance."

The EPA then turned to the 11th Circuit for an order forcing the lower court to allow the substitution.

"The agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the agency in a judicial proceeding," the ruling states.

The 11th Circuit voted 2-1 to allow the substitution.

"The agency reasonably designated the assistant administrator, who is primarily responsible for enforcement of the Clean Water Act and compliance with the orders of the district court, to appear on its behalf in the district court," Judge William Pryor wrote.

In dissent, Judge Beverly Martin argued that "the EPA's continued failure to comply with the district court's mandates" required Jackson's appearance.

The Miccosukee Tribe of Indians and the Friends of the Everglades initially sued over the EPA's failure to review 2003 amendments to the Everglades Forever Act that lowered water quality standards. They also took issue with the agency's approval of a 2005 phosphorus rule, which raised the acceptable amount of phosphorus in the Everglades.

Phosphorus in the water has caused cattails and other non-native plant species to grow in the Everglades and has hindered the growth of native species, such as saw grass, according to the ruling.

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