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.”

D.C. Court Reverses Prior Dismissal in National Pork Board Case

Written by Katharine Richter

On August 14, 2015, the United States Court of Appeals for the District of Columbia reversed a prior decision, which dismissed for lack of standing, a claim that alleged the National Pork Board misappropriated funds when it purchased rights to four trademarks from the National Pork Producers Council (NPPC).

According to the August 14 decision, “the National Pork Board is a quasi-governmental entity” whose purpose is “to promote pork in the marketplace,” and in exchange pork producers will “pay the Board a special assessment on each hog they import or sell.”  The decision states the special assessment fee is mandatory for pork producers.  According to the decision, the Board in 2006 purchased for $60 million from the NPPC, “four trademarks associated with the slogan Pork: The Other White Meat.”  The Board agreed to pay $3 million each year for 20 years and held the right to stop payment at any time with a year’s notice, but all rights to the trademark would then revert back to the NPPC.  In 2011, the Board replaced the slogan with Pork: Be Inspired, ending the agreement.

The plaintiffs bringing the suit are Harvey Dillenburg, a pork producer, the Humane Society, and Iowa Citizens for Community Improvement.  According to the decision, the plaintiffs argued that the Board overpaid for the trademarks and only made the deal “to keep the Council in business and support its lobbying efforts.”  The plaintiffs brought the suit against the Secretary of the Department of Agriculture and were asking to enjoin the Board from making further payments and “directing the Secretary to claw back what payments he can from the deal.”

The previous court decision had held that there was no “injury in fact fairly traceable to the actions of the defendant.”  The Appellate Court found that the appellant, Harvey Dillenburg, had presented enough factual evidence that there was actual economic loss and therefore had standing.