WASHINGTON, July 5, 2017 - The D.C. Circuit Court of Appeals has declined to reconsider its decision finding that Concentrated Animal Feeding Operations should report their air emissions. But that’s likely not the end of the matter.

National Pork Producers Council spokesman Dave Warner told Agri-Pulse that NPPC expects the Environmental Protection Agency will ask the court to stay its April 11 decision so EPA can figure out what it will do next. EPA had not responded by end of business today to questions about its course of action.

Regardless of what happens in court, Warner said “NPPC will explore a regulatory solution.”

If allowed to stand, the decision would significantly expand the universe of CAFOs required to report emissions. The 2008 rule that the court said was illegal exempted farms of all sizes from submitting emergency release reports to federal authorities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law.

It also exempted all but the largest CAFOs from a requirement to submit such emergency release reports to state and local authorities under the Emergency Planning and Community Right-to-Know Act (EPCRA).

The NPPC and the U.S. Poultry & Egg Association petitioned the court for rehearing in June, arguing that the environmental groups that brought the lawsuit lacked standing to pursue their claims. NPPC and USPEA said the court was wrong to conclude CERCLA and EPCRA reporting requirements were intertwined, so that elimination of the CERCLA requirements would automatically create an exemption under EPCRA.

If that were the case, the groups said, then EPA would not have had to create separate exemptions under both laws.

USPOULTRY said it is “disappointed in the court’s decision to deny a rehearing, due to the fact that these reports are a meaningless exercise in paperwork and they have the potential to preoccupy first responders' valuable time and resources.” The group said it is looking at “options to provide poultry and egg producers relief from this needless regulatory burden,” which “may include working with EPA.” 

“In the meantime, USPOULTRY is developing guidance documents that will assist poultry and egg producers with reporting, if and when the reporting requirement goes into effect,” the group said.

In its April decision, the court said EPA does not have “carte blanche to ignore the statute whenever it decides the reporting requirements aren’t worth the trouble.” It also rejected EPA’s argument that animal-waste-related release reports did not serve a regulatory purpose because any federal response to notifications would be “impractical and unlikely.”

To support their rehearing petition, NPPC and USPEA submitted a letter from the head of an organization representing state and local emergency responders, who said that reports from large CAFOs have been “of no particular value.” The environmental groups tried to have the declaration stricken from the record, but the court said its decision to deny the rehearing request rendered the disagreement over the declaration moot.

The environmental groups that brought the case are Waterkeeper Alliance, the Environmental Integrity Project, Sierra Club, Center for Food Safety, and Humane Society of the United States. Their lawyer, Eve Gartner of Earthjustice, said that the groups would need to “see the motion for stay, the stated basis and how much time EPA is asking for before we decide on a response.”


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