Coalition sues EPA for dropping CAFO rule

Sep 6, 2013

A coalition of community, animal welfare and environmental organizations has filed a lawsuit against the U.S. Environmental Protection Agency (EPA) challenging the Agency’s withdrawal of a proposed rule that would have allowed EPA to collect basic information, like locations and animal population sizes, from what they refer to as “factory farms.”

According to the group, the EPA “unlawfully scrapped [the] proposal to collect basic information about Factory Farms necessary to protect nation’s waterways.”

The Center for Food Safety, Environmental Integrity Project, Food & Water Watch, The Humane Society of the U.S. (HSUS), and Iowa Citizens for Community Improvement filed the suit in the U.S District Court for the District of Columbia, arguing the Agency’s withdrawal of the proposed rule lacks the rational basis required by law.

“The information at issue is critical to the EPA’s ability to protect waterways from pollutants produced by factory farms, one of the country’s largest sources of water pollution,” the groups said in a press release.

In their complaint, the groups say EPA took “unlawful, arbitrary, and capricious action” by withdrawing the rule, which is “intended to provide EPA with information necessary to carry out the Clean Water Act´s (CWA’s) National Pollutant Discharge Elimination System (NP- DES) permitting program for Concentrated Animal Feeding Operations (CAFOs).”

EPA published the Proposed CAFO Reporting Rule in October of 2011. According to the plaintiffs’ complaint, the rule proposed two options under which the agency would require either all CA- FOs or those CAFOs located in undetermined “focus watersheds” to submit “essential information” to EPA, including “contact information, location of the CAFOs´ production area, [CWA] permitting status, number, and type of animals, and number of acres available for land application.”

In July of 2012, EPA announced its withdrawal of the mandatory reporting requirement. The agency determined it would collect CAFO information using existing sources of information, including state NPDES programs and other programs at the federal and state level.

In the fall of 2012, several environmental organizations filed Freedom of Information Act (FOIA) requests with EPA for all of the state-generated data gathered by the Agency.

“The data from the states is inconsistent, incomplete and, ultimately, will not allow the agency to finally begin the process of properly regulating these highly polluting facilities,” said Wenonah Hauter, executive director at Food & Water Watch.

EPA required state regulatory agencies to provide the agency with this information, which it then publicly released in its entirety. This year, in response to new FOIA requests, EPA intended to release additional personal information from farmers and ranchers in Minnesota, California, Idaho, Nevada, Oklahoma, and Washington.

The American Farm Bureau Federation (AFBF) and the National Pork Producers Council filed a lawsuit and sought a restraining order in an attempt to stop the EPA from releasing personal information. According to AFBF, the majority of farmers and ranchers, as well as their families, don’t just work on the farm—they also live there—and the release of private information would be an unjustified government intrusion.

Despite personal privacy issues, the groups are continuing their quest for more information under the call for more transparency.

Jonathan Lovvorn, senior vice president and chief counsel for animal protection litigation at HSUS said, “The animal agriculture industry has benefited from EPA’s lack of information for decades, and has successfully opposed efforts to increase transparency. This certainly is not good for animals, humans or the environment; it is only good for massive industrialized farms.”

The Columbia University School of Law Environmental Law Clinic is providing legal representation in the case. — Traci Eatherton, WLJ Editor