EPA efforts to regulate CAFOs fail in court

Mar 18, 2011

Livestock producers won a major court victory last week over the U.S. Environmental Protection Agency (EPA) in the Federal 5th Circuit Court of Appeals in New Orleans, LA. EPA had been seeking to require livestock operations which had the potential to discharge waste into waters of the U.S. to obtain a National Pollutant Discharge Elimination System permit. However, the court ruled that EPA could not require permits for operations which were not discharging waste.

The ruling will prevent EPA from regulating the thousands of livestock operations in the U.S. which do not discharge waste into waterways. That could have subjected many concentrated animal feeding operations (CAFOs) to added costs and potential fines for failing to obtain a permit, even when no waste was discharged from the operation.

A 2008 regulation created by EPA set a zero-discharge limit and included a requirement for all CAFOs to apply for a permit under the Clean Water Act (CWA) if they discharge or proposed to discharge, whether or not that discharge had the ability to enter U.S. waters. The rule covered production areas and cropland on which manure is applied and imposed fines of up to $37,500 a day not only for illegal discharges, but for the failure of a CAFO that had a discharge to apply for a CWA permit.

The lawsuit, originally filed by the American Farm Bureau Federation (AFBF), National Pork Producer’s Council (NPPC) and a number of other livestock groups, sets a strong precedent against regulating for the possibility of future pollution. The 2nd Federal District Court said in 2005 that the EPA could only require permits for producers which actually discharge into U.S. waters. The decision by a three-judge panel of the appeals court may still be appealed by EPA if the agency decides to seek a full court appeal, known as an en banc appeal.

"For the second time, a U.S. Court of Appeals has ruled that EPA’s authority is limited by the Clean Water Act to jurisdiction over only actual discharges to navigable waters, not potential discharges," said AFBF President Bob Stallman. "We are pleased that the federal courts have again reined in EPA’s unlawful regulation of livestock operations under the Clean Water Act. The court has affirmed that EPA, like other federal agencies, can only regulate where it has been authorized by Congress to do so.

In the ruling, issued March 15, the 5th Circuit concluded, "The CWA provides a comprehensive liability scheme and the EPA’s attempt to supplement this scheme is in excess of its statutory authority."

According to the ruling, non-discharging CAFOs do not need permit coverage. In addition, CAFOs cannot face separate liability for "failure to apply" for permit coverage, as EPA’s rule provided. Instead, where a CAFO does not seek permit coverage, the CWA imposes liability only for discharges that occur from the un-permitted CAFO.

"NPPC is very pleased with the 5th Circuit’s decision," said NPPC President Doug Wolf, a pork producer from Lancaster, WI. "The court recognized a clear limit on EPA’s authority and required the agency to comply with the clean water law."

AFBF officials said last week that its legal analysts are still reviewing the ruling to determine how it will affect livestock producers, including those currently engaged in lawsuits with EPA. "It’s uncertain at this time what EPA’s next steps will be now that major provisions of its CAFO regulations issued in 2003 have been vacated by the court," AFBF officials stated. — John Robinson, WLJ Editor