The Dramatic Dance Between the EPA and CAFOs Continues in Fifth Circuit

Photo by Iain McDonald. Some rights reserved.

The relationship between the Environmental Protection Agency, environmentalist groups, industry representatives, and the federal court can become easily strained by contention over policy, as perfectly indicated by the long-enduring struggle over the EPA’s ability to regulate Concentrated Animal Feeding Operations’ (CAFOs) waste disposal under the Clean Water Act. The Act in its original form required a National Pollution Discharge Elimination System (NPDES) permit for any entity intending to discharge any pollutants or toxins from a point source into open U.S. waters. In this original form, CAFOs (which the EPA defines as “agricultural operations where animals are kept and raised in confined situations” – learn more at their “About CAFOs” page) were to be held accountable for any water pollution, although authority was granted to most state departments to regulate these CAFOs themselves.

In 2003, EPA tightened their regulations by issuing a rule requiring all CAFOs to apply for and obtain an NPDES permit even if they had only vague intentions of discharging waste, which was challenged by industry insiders who felt the agency was overstepping its regulatory boundaries. In 2005, an official lawsuit appeared (Waterkeeper Alliance v. EPA) in which the Second Circuit ruled that the EPA did not have the regulatory authority to force CAFOs to apply for waste permits based on potential discharges, and that only CAFOs with discharges on record would be required to first file for an NPDES permit. The EPA reworked these parameters slightly in the published 2008 final rule, which stated that CAFOs with actual waste discharges or the intention to discharge would be held accountable for permits, where unpermitted discharges would now face penalty.

This final rule catalyzed into a larger debate between industry representatives and environmental activist groups, with either side arguing that the rule was either too strict or too lax with its enforcement policies, even as the EPA issued clarifying guidance for CAFOs proposing to discharge. The rule was petitioned for review in a series of courts, until the issue was finally consolidated in the Fifth Circuit. In the most recent case in this string of decade-old litigation, this month’s National Pork Producers Council v. EPA, the Fifth Circuit made the decision that the EPA in fact does not have the administrative power to regulate CAFOs in any “duty to apply” sense under the Clean Water Act, nullifying this most recent advancement of the final rule, and also stripping the EPA of any enforcement power in the case of CAFOs failing to acquire permits.

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