Animal feeding emissions exemption lawsuit may be grinding closer to discussion in court

By Aerin Curtis

- Last updated on GMT

Animal feeding emissions exemption lawsuit may be grinding closer to discussion in court

Related tags: United states environmental protection agency

An ongoing lawsuit against the US Environmental Protection Agency (EPA) reporting exemptions for factory farms may be one step closer to court as the agency recently agreed to the possibility of briefing the court on the case.

Two reporting laws, the Emergency Planning and Community Right-to-Know Act (ERCRA) and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), require other industries to tell either to communities or the federal government when they release more than a certain amount of hazardous materials into the environment.

But currently, many concentrated animal feeding operations (CAFOs) don’t have to report when hazardous chemicals are emitted, Earthjustice staff attorney and case lead Eve Gartner told Feed Navigator.

“The amount of waste produced is truly hazardous,”​ she said, adding that there is a difference between a (CAFO) and the traditional concept of a farm, as CAFOs can bring together thousands of animals and produce a large amount of animal waste. When that starts to break down amounts of hazardous chemicals, like ammonia, may be released.

“The Exemption Rule exempts all animal feeding operations (AFOs) from the CERCLA requirement to notify the National Response Center of releases of hazardous substances into the air from animal waste, and exempts all but the largest AFOs from the EPCRA requirement to report such releases to state and local officials,”​ reported case documents. 

The lawsuit is designed to have the exemptions reviewed and to have the court weigh in on whether or not they are legal, she said.

“EPA’s illegal rule is keeping rural communities in the dark about the dangerous air pollution they’re being exposed to, and we’re asking the court to require a fix to this unconscionable situation without further delay,”​ said Tarah Heinzen, staff attorney for the Environmental Integrity Project, one of the organizations brining the lawsuit.

What’s next

If the US Court of Appeals for the District of Washington agrees to hear the case, it would be looking at whether or not those exemptions for some CAFOs were legal, Gartner said.

Earthjustice filed the lawsuit in April on behalf of several organizations including the Waterkeeper Alliance, Sierra Club, the Humane Society of the United States, the Environmental Integrity Project and the Center for Food Safety.

In a recent filing, the EPA said it did not oppose the creation of a schedule to brief the court, and the Earthjustice group has asked for the case to be reopened and for the court to make a decision regarding the exemptions. However, this does not mean the court will decide to hear the case, Gartner said.

If the request is granted, then the next step would be to work with officials from the EPA and set a potential briefing schedule.

Case details and history

“Petitioners respectfully ask the Court to recall the mandate in this matter and set a schedule for briefing the merits of the Petition for Review​,” stated lawsuit documents. “Alternatively, Petitioners respectfully ask the Court issue a writ of mandamus directing the EPA to comply with the Court’s mandate by finalizing revisions to the Exemption Rule within nine months.”​ 

The current lawsuit asked the court to reconsider a decision made on an earlier case covering the same topic, Gartner said. The group originally brought a lawsuit challenging the legality of the EPA’s exemptions in early 2009.

“It has now been more than six years since EPA issued the Exemption Rule, more than four years since the Court remanded the Rule for reconsideration, and EPA has yet to even propose revisions as required by the remand order,”​ state case documents. “As a result, the Exemption Rule remains in effect, and its legality, though timely challenged in early 2009, has never been adjudicated.​ 

Responses to the lawsuit

When reached for comment, EPA officials said they do not speak about ongoing litigation.

Several industry officials also offered responses to the lawsuit.

The cattle industry has been doing research into emissions, said Scott Yager, environmental counsel for the National Cattlemen’s Beef Association. They have been involved in data collection and several published studies on the topic.

However, he said, it can be harder to track emissions for a beef feedlot because they are open-air, unlike those used in some animal production.

Members of the pork industry are not opposed to any regulation that makes sense, said Michael Formica, chief environmental council for the National Pork Producers Council. The industry has worked with the EPA on emissions tracking in the past, but the process is not always an easy one.

Additionally, he said, if there are problems with a farm, that is a state or county problem and those officials already know where the farms are.

Related topics: Regulation

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