Friday, November 30, 2012

Uncertain Future for the Regulation of Concentrated Animal Feeding Operations

This commentary is offered by guest blogger, Todd Heyman, an attorney candidate in the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law.  Todd's bio appears at the conclusion of the post.

On October 31, 2012, the Environmental Protection Agency (EPA) issued a notice seeking public comment on the Clean Water Act’s regulations applicable to Concentrated Animal Feeding Operations (CAFOs).  Comments are to be received by December 31, 2012. Given this is also the Clean Water Act’s 40th anniversary, it seems appropriate to take a look at the current regulatory treatment of CAFOs and determine where it might be headed.

EPA is required to seek comments on the regulations pursuant to the Regulatory Flexibility Act (RFA), which was enacted to protect small businesses from excessive regulation that might unfairly impede their ability to compete with larger business entities.  The RFA requires that an agency examine a regulation’s potential effect on small businesses not only when it is proposed, but also within ten years of its promulgation.  The Clean Water Act regulations applicable to CAFOs were promulgated on February 12, 2003, but they have been revised on two different occasions in response to court decisions that concluded the EPA had overstepped its statutory authority to regulate CAFOs.

The 2003 version of the regulation essentially required that all CAFO owners or operators apply for National Pollution Discharge Elimination System (NPDES) permits unless they could convince the relevant permitting authority that the CAFO had no “potential” to discharge manure.  Prior to the 2003 regulation, the EPA had not updated its regulation of CAFOs since the mid-1970s, and its decision to do so then was made only in response to a lawsuit brought by the NRDC and Public Citizen (and was incorporated into a consent decree resolving that litigation).

In 2005, in Waterkeeper Alliance et al. v. EPA, the Second Circuit struck down the provision of the regulation requiring all CAFO operators to apply for permits because it found the EPA could only regulate CAFOs that had discharged a pollutant into jurisdictional waters.  The Court held that the statute gave the EPA regulatory authority over actual discharges of pollutants and the agency could not regulate mere potential sources of pollutant discharges.  As a result, unless a CAFO operator voluntarily applied for a permit, there was no obligation to implement any of the measures required by the NPDES permits to prevent water pollution.

Because the 2003 regulation was developed in response to litigation, it should not be surprising that its provisions were hardly the realization of a radical environmentalist agenda.  Indeed, the Court found that the regulations fell short of the protections required by the Clean Water Act in several important respects.  For example, the regulation required a CAFO to develop a nutrient management plan to minimize the risk of pollutants generated by the livestock operation from entering protected waters, but it did not require: (1) the permitting authority to review the nutrient management plan before issuing the permit; (2) that the terms of the nutrient management plan be included as part of the permit; and, (3)  and that those terms be disclosed to the public so that there could be both meaningful public hearings before the permit is issued and citizen suits to enforce the terms of the nutrient management plan after the permit has been issued.  In addition, the Court also found that the EPA’s regulation had failed to impose any pollutant control technology for reducing pathogens.

When the EPA went back to the drawing board in 2006, it abandoned its efforts to regulate CAFOs that had the mere “potential” to discharge, and instead imposed a duty to apply for permits on only those CAFOs that either discharge or “propose to discharge.”  In the final version of the rule, which was promulgated in 2008, a CAFO that “proposes” to discharge was defined as one designed, constructed, operated, and maintained in such a manner that it will discharge.  Thus, regardless of whether the operator intends to discharge, a CAFO could be deemed to “propose” to discharge.

In 2011, in National Pork Producers Council v. EPA, the Fifth Circuit struck down the “propose to discharge” provision of the regulation because, until a CAFO actually discharges a pollutant into protected waters, the Clean Water Act is not triggered and the EPA has no regulatory authority.  It essentially concluded that there was no meaningful difference between the “potential to discharge” provision of the 2003 regulation rejected by the Second Circuit and the EPA’s revamped 2008 version.

These decisions have been criticized from both a public policy perspective and a statutory interpretation perspective.  Because the EPA can readily acquire information about only those CAFOs that have applied for permits, it has limited information from which to develop and implement an effective regulatory scheme.  Indeed, the EPA does not have a definitive list of all existing CAFOs, let alone information about their basic business operations, including whether or not they have discharged pollutants.  These CAFOs remain completely outside the regulatory scheme unless there is a discharge and that discharge is actually discovered.

Plugging the hole in the regulatory regime is certainly warranted by the dangers CAFOs pose to human and environmental health.  It should be noted that even though the Second Circuit rejected the 2003 regulation, it did note that the EPA had collected sufficient evidence of CAFOs’ contribution to water pollution (and that they had improperly tried to circumvent the permitting process in the past) to justify the imposition of a “duty to apply” rule if Congress were to amend the Clean Water Act to expand the agency’s authority.  In addition, the Court suggested that the current administrative record might have been sufficient to justify a regulatory presumption that large CAFOs actually do discharge pollutants.  Such a presumption would render them subject to EPA’s regulatory authority, and that alone could support imposition of the “duty to apply” for a permit.  However, as the Second Circuit noted, the EPA did not make the argument.  Surprisingly, the EPA also did not make that argument to the Fifth Circuit in defending the 2008 rule.  Given the available evidence warrants the implementation of a stronger regulatory regime than what the courts have permitted, it should come as no surprise that commentators have also criticized these judicial decisions for adopting overly narrow interpretations of the statutory language defining a “discharge” that would trigger EPA authority.  The courts have required a pollutant to have been added to the protected waters for a discharge to occur, as opposed to merely being in the process of being added to such waters given the nature of the CAFO’s operations.  As the policy criticisms indicate, this narrow interpretation of the statutory language leads to results contrary to the purpose of the Clean Water Act – impeding the EPA’s ability to reduce CAFOs’ impact on water pollution.

The lack of information available to the EPA about CAFOs is a problem noted by the General Accounting Office in its 2008 report addressing the challenges to developing an effective regulatory regime.  The solution to this problem, however, does not require any amendment to the Clean Water Act.  Under Section 1318 of the Act, the EPA is granted the authority to collect records and information from point sources (the statute defines a CAFO as a point source) in order to carry out its statutory mission, such as to develop appropriate standards or determine whether a person is in violation of the Act.

Nonetheless, the EPA has not used this authority to improve its ability to regulate CAFOs.  In response to a lawsuit brought by the NRDC, it did agree in 2010 to initiate rule-making that would permit it to collect some basic information concerning the location of CAFOs, the number and types of animals at the CAFOs, and their methods for manure storage and disposal.  However, the rule-making effort was abandoned in July of this year.  Instead, the EPA is attempting to collect whatever public information is available on CAFOs from the states and other federal agencies.  The decision to forego direct reporting is inconsistent with the agency’s earlier objective when seeking to impose a duty to apply for permits on all CAFO operators in both 2003 and 2008.  Its decision, not surprisingly, was celebrated by the livestock industry precisely because it will be very difficult and time-consuming for the EPA to gather the relevant information from such varied sources.  The EPA has not ruled out mandatory reporting at some future point, but only after this evidence hunt has been completed and deemed insufficient.

Given the inconsistent regulatory efforts of the EPA over the past ten years, it is difficult to determine where the regulation of CAFOs is headed.  Environmental and public health organizations are collecting ever more damaging information about the risks posed by CAFO waste products – whether it be in the form of water pollution or their contribution to the development of antibiotic resistant bacteria.  Despite the mounting evidence, EPA’s current regulatory efforts are less aggressive than the 2008 regulations struck down by the Fifth Circuit.

Nor can one place much hope in the state governments.  First, the problems with CAFO waste products cross state borders.  The adoption of tough regulations in one state is likely only to move the CAFOs to a more CAFO-friendly jurisdiction.  In addition, the industry has also enjoyed success in resisting tough regulatory controls in many states.

For example, North Dakota just passed a constitutional amendment precluding any law from abridging the rights of farmers to employ “agricultural technology, modern livestock production and ranching practices.”  While a constitutional amendment represents perhaps the highest possible achievement for the industry, more modest efforts are underway even outside the traditional big agriculture states.

In response to the booming demand for yogurt and specialty cheeses, New York is considering easing its regulations governing dairy operations.  Currently, any operation with 200 cattle is considered a CAFO and must develop plans for controlling runoff from manure, such as the creation of expensive storage facilities and lagoons for holding the manure in the winter.  The governor is looking at increasing the threshold for regulation as a CAFO to 300 cattle in order to boost dairy production to take advantage of favorable market conditions.

With state government regulations unlikely to meaningfully address a national problem, our attention should turn back toward the federal regulatory regime.  Comments on the EPA’s regulation of CAFOs are due by December 31 of this year.  The EPA has asked for comments that address: (1) the continued need for the rule; (2) the nature of complaints or comments received concerning the rule; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal, State, or local government rules; and (5) the degree to which the technology, economic conditions or other factors have changed in the area affected by the rule.  Given the extensive litigation and regulatory battles fought over the regulation of CAFOs, one would expect comments from industry, environmentalists, public health advocates, and other interested parties that propose a host of conflicting reforms to the regulatory framework.  How the agency responds to these comments, if at all, is difficult to predict given its wavering commitment over the years to develop a more robust regulatory regime.

Additional information and links for submitting comments are found on the EPA CAFO History webpage.

Todd Heyman
B.A., Georgetown University, (Government) magna cum laude, Phi Beta Kappa, Pi Sigma Alpha
J.D., Stanford Law School
Law school experience includes: service on the STANFORD ENVIRONMENTAL LAW JOURNAL, Public Service Fellowship, and service on Steering Committee, West Coast Conference on Progressive Lawyering
Legal experience includes: Partner, Shapiro Haber & Urmy LLP (complex litigation, typically class actions, involving employment, consumer, securities fraud, and antitrust laws);  Law Clerk, The Honorable Nancy Gertner, U.S.D.C. (D. Mass.);  Law Clerk, Public Citizen Litigation Group; Clinical Student, East Palo Alto Community Law Project; Law Clerk, Brancart & Brancart
Recipient of Super Lawyer and/or Rising Star awards, Massachusetts, 2009, 2010, 2011
Admitted to practice in the State of Massachusetts.


Blogger Christine Heinrichs said...

Thanks for this great post. I shared it on www.gogreennation and Facebook.

12/01/2012 10:58 AM  
Anonymous Anonymous said...

Thanks, indeed. So hard to have any grasp of the current regulatory environment and pressures without articles like this. A valuable resource. Please keep the information coming! Also shared.


12/03/2012 10:31 AM  

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