EPA’s denial of a petition last year seeking new regulations for concentrated animal feeding operations was reasonable, the 9th U.S. Circuit Court of Appeals has found.
“EPA has deemed it prudent to first seek information about how best to tackle the problem before directing resources toward a new rulemaking,” the court said in an unpublished, six-page opinion. “Those justifications are reasonable and hardly at odds with the [Clean Water Act]’s requirements.”
Food & Water Watch and a dozen other groups petitioned EPA in 2017 to begin a rulemaking to strengthen its CAFO regulations, but the three-judge panel said even though EPA “acknowledged the serious problem of CAFO-based waste discharges into U.S. waterways,” it was enough for the agency to gather data and appoint a stakeholders’ panel.
Food & Water Watch attorney Emily Miller told the judges at oral argument last month that the petitioners simply wanted the court to order EPA to reconsider its denial.
“We are simply asking for a remand and for EPA to reconsider the petition consistent with its obligations under the Clean Water Act and the Administrative Procedure Act,” she told Circuit Judge Jay Bybee. “If EPA were to actually comply with [those] obligations in replying to the petition, we're confident that the answer would be that a rulemaking is warranted,”
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But in its ruling Wednesday, the court said even though EPA “declined to open a rulemaking at this moment, it did not refuse to take any action with respect to its CAFO regulations,” pointing to an ongoing study of CAFOs and the Federal Advisory Committee Act subcommittee that has been appointed.
At argument, however, Miller said the study the agency is conducting looks only at the universe of CAFOs that have permits, which is just a subset of all CAFOs. In an interview before the arguments, she said the study “does not address the real heart of the problem, which is the widespread failure of EPA to [require permits for] discharging CAFOs in the first place.”
"We are obviously disappointed with the decision," Food & Water Watch attorney Emily Miller said in a statement. "Quite honestly, it’s shocking the court gave such short shrift to a critical issue. We’ll keep working to hold EPA accountable for its decades of failure to regulate factory farm water pollution."
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