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.”

EPA Causes Colorado Mine Spill

Written by Tyler R. Etter

On August 5, 2015, the Environmental Protection Agency was conducting an investigation of the Gold King Mine located near Silverton, Colorado. The investigation was meant to assess the water being released from the mine, treat the water, and assess the feasibility of further actions. While excavating near the area, three million gallons of polluted water spilled into Cement Creek.

The spill has caused the shutdown of major irrigation sources for local farmers, giving rise to lawsuits against the Agency. The Agency has deployed staff members across the state in an effort to assess the extent of contamination, and address citizen concerns. According to the latestAgency update, sediment concentrations in samples from irrigation ditches are “trending toward pre-event conditions.”

Don Shawcroft, President of the Colorado Farm Bureau, criticized the Agency for a lack of transparency at the outset of the incident, stating “How are citizens supposed to trust the EPA to protect our waters when it ignores standard waste management protocols and the citizens their actions affect?”

As of August 18, a local recovery center has been formed in La Plata County. The center will assist with filing claims for damages against the Agency, as well as information resources for water quality, business impacts, and local financial and social support.

Chesapeake Bay Update: Senators Seek Help for Susquehanna River Basin Farmers

On May 19, 2015, United States Senators Benjamin Cardin (D-MD) and Robert Casey Jr. (D-PA) sent a letter to Secretary of Agriculture Tom Vilsack requesting that the U.S. Department of Agriculture (USDA) increase resources to help Susquehanna River Basin farmers comply with Chesapeake Bay conservation efforts.

Citing a 2014 annual report on the Chesapeake Clean Water Blueprint, the Senators noted that overall efforts have been successful in improving the Susquehanna and Chesapeake Bay watersheds.  Nevertheless, Cardin and Casey stated that according to the report, Pennsylvania’s farmers had not adequately reduced their levels of nitrogen pollution.  The Senators further mentioned that because Pennsylvania had not met its nitrogen pollution goals, a group of Maryland legislators had contacted the Environmental Protection Agency (EPA), seeking enforcement against the Commonwealth.    

According to Cardin and Casey, USDA has a legal obligation (due to its membership on the Federal Leadership Committee for the Chesapeake Bay) to provide Susquehanna River Basin farmers with the financial and technical support necessary so that Pennsylvania can meet the pollution goals established for the Chesapeake Bay and avoid EPA enforcement action.   

Written by M. Sean High - Staff Attorney

May 22, 2015

American Farm Bureau Federation Files Suit Against the EPA Claiming Unwarranted Invasion of Privacy

On July 5, 2013, the American Farm Bureau Federation (AFBF) and the National Pork Producers Council filed suit against the U.S. Environmental Protection Agency for declarative and injunctive relief prohibiting the EPA from releasing the personal information of farmers through Freedom of Information Act (FOIA) requests. The suit was filed in the U.S. District Court for the District of Minnesota.

Organizations such as Earthjustice and the Humane Society of the United States have requested information regarding CAFOs (concentrated animal feeding operations) in 35 states under FOIA to date. According to the complaint filed by AFBF, information about the specific location of certain CAFOs, the owners’ names, and other details, has already been disseminated to these organizations in 29 states. This information stands to be rereleased on July 11, 2013 along with similar information regarding CAFOs in six other states. Plaintiffs allege that the information requested about these CAFOs is protected under Exemption 6 of FOIA because the public release of this information is personal in nature. The complaint explains that the locations of CAFOs are often the home addresses of the farmers, and releasing this information is an unwarranted invasion of personal privacy.

Previously, the EPA has justified its policy on the release of personal information under FOIA by explaining that the public has an interest in understanding how the EPA and authorized states are implementing the Clean Water Act, which is applicable to CAFOs.

Please visit the AFBF website for a copy of the complaint. For more information on the EPA’s compliance with FOIA, please visit the EPA’s website on public information regulations.

This case is docketed at 13-01751.

 

Written by Sarah Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

July 8, 2013

Pennsylvania General Assembly Expands PennVEST Funding Eligibility

On June 11, 2013, the Pennsylvania General Assembly presented Senate Bill 196 to the Governor.  This bill amends the Pennsylvania Infrastructure Investment Authority Act, allowing the Pennsylvania Infrastructure Investment Authority (PennVEST) to utilize federal funding, provided by the Clean Water State Revolving Fund, more effectively.  The amendments laid out in the bill cover storm water runoff management and nonpoint source pollution projects and provide for additional definitions, expanded funding and for an annual report. 

One major shift is that the bill now allows PennVEST to accept funding applications from nongovernmental entities, such as non-profit and watershed organizations, for storm water and nonpoint source pollution management projects.   Projects proposed by entities other than municipalities must be in compliance with all ordinances, regulations and plans adopted by the municipality in which the project is located and the project must also be approved by all other impacted municipalities.  The bill also changes best management practices to include those under the Clean Streams Law or Pennsylvania’s Nonpoint Source Management Program Update.  A project which follows Pennsylvania’s Nonpoint Source Management Program Update, and which has a potential water quality benefit (determined by the Department of Environmental Protection), as required by the federal Water Pollution Control Act, would be eligible for funding. 

This law also requires the PennVEST Board to provide an annual report, detailing the projects which received funding.  The annual reports will be published and maintained on the PennVEST website.

For more information, please visit the PennVEST website.

 

Written By Gaby Gilbeau – Research Assistant

The Agricultural Law Resource and Reference Center

 

June 12, 2013