EPA consent agreements with participating AFOs upheld

September 10, 2007 | Roger McEowen


Community and environmental groups sued the EPA challenging the validity of consent agreements that EPA had entered into with participating animal feeding operations (AFOs).  The court, however, upheld the EPA’s ability to enter into the consent agreements.  The plaintiffs claimed that the consent agreements amounted rules disguised as enforcement actions and that, as a result, the EPA had not followed proper procedures for rulemaking.  The plaintiffs also claimed that the EPA had exceeded its statutory authority by entering into the agreements.  The court disagreed, holding that the consent agreements did not constitute rules, but were enforcement actions within EPA’s statutory authority that the court could not review.  Association of Irritated Residents v. Environmental Protection Agency, 494 F.3d 1027 (D.C. Cir. 2007).