The 9th Circuit Court of Appeals upheld the Environmental Protection Agency’s (EPA) decision to deny environmental groups’ petition challenging pollution rules for concentrated animal feeding operations (CAFOs).
On Oct. 2, the appeals court wrote in a memo that it failed to find the EPA acted arbitrarily, capriciously, or contrary to law in denying the petition, as the groups had claimed.
Food & Water Watch and 12 other environmental groups petitioned the EPA in 2017 to initiate a rulemaking on the regulations governing CAFOs that discharge waste into waterways. EPA denied the petition last fall, stating that CAFOS might be responsible for unlawful water pollution, but an immediate rulemaking was not the best way address the issue.
Instead, the agency said it would make a committee of stakeholders to solicit input on the potential problem, along with conducting a study addressing the efficacy of its current regulations.
“After conducting these measures, EPA would assess whether it could ‘address water quality concerns related to CAFOs through improvements to implementation, enforcement, and other non-regulatory initiatives, or whether regulatory revisions are appropriate,’” the memo read.
The environmental groups wrote in their petition that EPA’s requirements for CAFOs with National Pollutant Discharge Elimination System permits are too lax, alleging the agency allows many discharging CAFOs to operate without a permit. They also said EPA’s agricultural stormwater exemption hinders adequate regulation.
The appeals court wrote that EPA did not act unreasonably when it denied taking action on the petition.
“Although EPA declined to open a rulemaking at this moment, it did not refuse to take any action with respect to its CAFO regulations,” the court said.
The panel continued that the agency acknowledged it needed more information before it could take any action, and the court affirmed the agency has the discretion to choose how to carry out its responsibilities with its “limited resources and personnel.”
“Those justifications are reasonable and hardly at odds with the (Clean Water Act’s) requirements,” the memo concluded.
Background
The 2017 petition alleged EPA has made little progress in its efforts to regulate CAFOs under the Clean Water Act (CWA). Petitioners claimed CAFOs are largely unrelated and are the country’s leading source of water quality impairments.
“EPA has attempted to improve its CAFO regulatory scheme over the past fifteen years, but has been largely unsuccessful, in part due to adverse judicial decisions, and in part due to the agency’s failure to craft strong regulations,” the groups wrote.
On Aug. 15, 2023, EPA denied the petition and announced it would form a Federal Advisory Committee subcommittee to study the regulation of CAFOs under the CWA.
“At the same time, we are enthusiastic about the road ahead and look forward to working hard to address these issues through the (Effluent Limitations and Guidelines) detailed study and through the (Animal Agriculture and Water Quality) subcommittee,” EPA wrote in its petition response.
Food & Water Watch legal director Tarah Heinzen said in response, “The lack of urgency displayed in EPA’s decision doubles down on the agency’s failure to protect our water, and those who rely on it—but the fight to safeguard clean water is far from over.”
The American Farm Bureau Federation (AFBF), National Pork Producers Council, U.S. Poultry & Egg Association and United Egg Producers were respondents in the case.
“As EPA moves forward with plans to study the issue further, we urge the agency to carefully consider the benefits animal feeding operations provide in America’s sustainability efforts,” AFBF President Zippy Duvall said after EPA denied the petition. — Anna Miller, WLJ managing editor
