Wednesday, October 7, 2015

Court Grants EPA Summary Judgment in CAFO Information Gathering Case

Written by Katharine Richter

On September 29, 2015, the United States District Court for the District of Columbia granted summary judgment to the Environmental Protection Agency (EPA); EPA was sued back in 2013 by five groups over the EPA’s decision to withdraw a proposed rule.  According to the decision, the rule “would have required large industrial livestock operations to provide information to the EPA in order to facilitate the EPA’s ability to regulate their discharge of pollutants into the waters of the United States pursuant to the Clean Water Act [CWA].”  The five groups bringing the lawsuit were the Center for Food Safety, Environmental Integrity Project, Food & Water Watch, The Human Society of the United States, and Iowa Citizens for Community Improvement.

The plaintiffs alleged that the withdrawal of the proposed rule “was arbitrary and capricious in violation of the Administrative Procedure Act…”  According to the decision, in 2011, the EPA introduced two potential rules which “would have required CAFOs to submit certain basic information to the EPA, pursuant to the EPA’s information-gathering authority under the CWA.”  The Agency decided to not adopt either rule after a notice and comment period.  The EPA stated it would use the “existing information approach,” using data from other sources such as U.S. Department of Agriculture (USDA) and state registration or licensing programs rather that requiring CAFOs to submit information.

In the decision, the plaintiffs argument focused upon the “clarity of explanation offered by the EPA” in deciding to not adopt the proposed rule.  The Court found the EPA’s decision to not adopt the rule and notice was “adequately explained and coherent.”  Further, the plaintiffs argued the EPA erred in determining it could properly gather information on CAFOs without enacting the rule.  The Court determined the evidence was sufficient that a reasonable person would “reach the conclusions that the EPA did regarding the existing sources of information.”

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