By Robert Adler. Mr. Adler is the James I. Farr Chair and Professor of Law, University of Utah, S.J. Quinney College of Law, Member Scholar, Center for Progressive Reform (CPR). This article is cross-posted at CPRBlog.
A decision issued on March 15 by a panel of the U.S. Court of Appeals for the Fifth Circuit vacated portions of EPA's Clean Water Act (CWA) regulations, issued most recently in 2008, governing water pollution from concentrated animal feeding operations, or "CAFOs." In National Pork Producers Council, et al. v. United States Environmental Protection Agency, the Fifth Circuit panel vacated those portions of EPA's rule that required CAFOs to apply for National Pollutant Discharge Elimination System (NPDES) permits based on a potential to discharge rather than an existing discharge, and that imposed liability for failure to apply for a permit. (The Court upheld other aspects of EPA's CAFO rule.) The Fifth Circuit ruling represents a particular setback for EPA's efforts to regulate CAFO pollution because it follows a 2005 decision by the Second Circuit (Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency) that vacated portions of an earlier EPA CAFO rule and EPA's efforts to revise the rule in response to that decision.
Water pollution from CAFOs poses serious health and environmental problems around the country. CAFOs are large industrial livestock operations in which thousands to hundreds of thousands of animals are raised in confined circumstances. CAFOs generate millions of tons of animal waste a year, which contain pollutants such as nutrients (nitrogen and phosphorus), organic matter, bacteria and other pathogens, salts, and pesticides and other potentially toxic pollutants. CAFOs are one of the many reasons why pollution from agricultural operations remains the largest single source of water pollution nationally -- a problem that EPA and the states have struggled to address for decades.
The Fifth Circuit decision is based on a textual analysis of selected provisions of the Clean Water Act, but ignores or fails to account fully for other important provisions of the statutory text. Moreover, it results in a statutory tautology that belies one of the CWA's most important goals. Finally, I am not sure it is even in the best interests of the livestock industry -- although obviously their lawyers disagree -- because it eliminates the business certainty that environmental permits are supposed to provide, and subjects operators to significant potential administrative, civil and even criminal liability if discharges occur absent a permit.