A federal judge from the United States District Court for the District of Columbia recently granted summary judgment to the EPA in a lawsuit challenging the agency’s decision to withdraw a proposed rule impacting confined animal feeding operations (CAFOs). The proposed rule, which was withdrawn in 2012, would have for the first time imposed information reporting requirements on CAFOs as part of the EPA’s administration of the Clean Water Act.
The proposed rule arose over concerns that—despite having regulated CAFOs for years—the EPA still lacked a “comprehensive understanding of the number, location, and permitting status of these operations in the United States.” Under the Clean Water Act, all large and medium-sized CAFOs that actually “discharge” pollution and all small CAFOs that “significantly contribute to water pollution” must obtain an NPDES permit from state authorities. These operations are considered “point sources” of water pollution.
In 2011, the agency proposed two possible rules that would have required CAFOs to submit operational information to the EPA. The two alternatives varied greatly in substance. The first would have required all CAFOs—regardless of whether they were required to obtain an NPDES permit—to report five pieces of information to the EPA: contact information, location of the production area, NPDES permitting status, number and type of animals, and number of acres available for land application.
The second alternative would have required the EPA to identify “focus watersheds where CAFO discharges may be causing water quality concerns.” The EPA would then make “every reasonable effort” to determine whether sufficient information existed about each CAFO in that area. If such information was not available, the EPA would use its authority under Section 308[i] of the Clean Water Act to obtain information from the CAFOs in that area.
In addition to the two main alternative proposals, the proposed rule offered three additional possible approaches: (1) obtaining data from existing sources, (2) expanding the EPA’s network of compliance assistance and outreach tools, and (3) requiring NPDES authorized states to submit to the information to the EPA.
The EPA solicited comments regarding the possible approaches set forth in the proposed rulemaking. One thousand four hundred three comments were submitted, with industry groups strongly opposing any of the proposed rules. Environmental groups urged that the proposals did not go far enough to properly implement the CWA.
On July 20, 2012, the EPA took final action on its proposed rule, deciding to withdraw the proposed rulemaking entirely. The EPA stated that after considering more information and conducting a more detailed review of available data sources, the agency believed it was more appropriate “at this time” to collect the CAFO information from federal, state, and local partners rather than to require the CAFOs to submit the information pursuant to a rule. The EPA noted that the withdrawal would not prevent the agency from promulgating a CAFO information reporting rule in the future. In a supplemental response to comments, the EPA stated that it could now employ resources that would have been spent on implementing the rule to review existing sources of information and focus on “identifying CAFOs that do not have NPDES permit coverage.”
Five groups—the Environmental Integrity Project, Food & Water Watch, the Humane Society of the United States, Center for Food Safety, and Iowa Citizens for Community Improvement—filed a lawsuit challenging the legality of the agency’s withdrawal of the rule.
The plaintiffs alleged in their complaint that the EPA’s decision to withdraw the proposed rule was arbitrary and capricious because it lacked clear reasoning, ran counter to the evidence, and constituted a clear error in judgment.
On September 29, 2015, the district court disagreed, granting summary judgment for the EPA and ruling that the agency’s withdrawal of the proposed rule did not violate the Administrative Procedure Act.
The court first noted that an agency’s decision to withdraw a proposed rule was subject to greater deference than an agency’s decision to promulgate a new rule or rescind an existing one. Maintaining the status quo, which the agency had chosen to do, warranted a highly deferential review.
The court then found that the EPA’s explanation for withdrawing the rule was “adequately explained” and “coherent.” The EPA believed that it was sensible to further explore, develop, and assess existing sources, while maintaining an option to adopt a mandatory reporting system in the future. This, the court found, was an adequate explanation for its decision.
The court also found that the record provided substantial support for the EPA’s decision. The court concluded that a reasonable person could reach the conclusions that the EPA did regarding the potential use of existing sources of information for both permitted and unpermitted CAFOs.
Finally, the court ruled that the EPA’s withdrawal of the proposed rule did not violate the CWA. The statute left it to the EPA to determine what information it may “reasonably require.” The court refused to substitute its own judgment for that of the agency.
This case also highlights a rule relevant to the pending Clean Water Rule litigation. In this case, the court pointed out that the EPA was entitled to enhanced deference in withdrawing the rule because it was maintaining the “status quo.” The EPA will not be entitled to that level of deference in the courts’ review of its Clean Water Rule. Because that was new rulemaking, the decision will be subject to the “usual” standard of review. This will involve determining whether the rulemaking was, among other things, arbitrary, capricious, an abuse of discretion, contrary to the law, or in excess of statutory jurisdiction.
[i] 33 U.S.C. § 1318(a).
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