Court of Appeals Rules Against Animal Ag Reporting Exemption in Two Environmental Laws

Updated: Jul 1, 2020


Aerial image of dairy farm (Image by Edwin Remsberg).
Aerial image of dairy farm (Image by Edwin Remsberg).

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The smells of livestock are common if you live on or next to a farm. If livestock numbers reach certain sizes, two federal environmental laws, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), may require the producer to report the release of hazardous substances to the National Response Center.

With animal operations, the hazardous substances releases have been focused on ammonia and hydrogen sulfide produced as manure is broken down. In 2008, the Environmental Protection Agency (EPA) developed an exemption from the reporting requirements from CERCLA and EPCRA for all animal feeding operations but required larger operations to continue reporting under EPCRA. While environmental and animal welfare groups challenged this exemption, the Court of Appeals for the D.C. Circuit recently struck the exemption down.

Before we focus on the D.C. Circuit decision, let’s discuss the CERCLA and EPCRA reporting requirements. CERCLA and EPCRA require reporting to EPA in certain situations. CERCLA gives EPA the authority to investigate and respond to releases or threatened releases of hazardous substances. To know when the releases of hazardous substances occur, CERCLA requires a producer to notify EPA’s National Response Center when these releases exceed an EPA-set threshold. EPCRA is similar to CERCLA and requires reporting of releases of hazardous substances. In the case of EPCRA, parties must notify state and local authorities of releases of hazardous substances. The goal is to allow federal, state, and local authorities to respond to a release of hazardous substances.

In 2008, EPA announced a final rule exempting farms from CERCLA and EPCRA reporting requirements which might be triggered by animal waste. EPA did not exempt concentrated animal feeding operations (CAFOs) from the reporting requirements for releases of ammonia and hydrogen sulfide under EPCRA. In creating the exemption, EPA pointed out there were no foreseen situations where EPA would take action due to a notification. To EPA, releases from ammonia and hydrogen sulfide (due to the breakdown of manure) were on-going, making an emergency response unlikely or unnecessary. Waterkeepers Alliance and other environmental and animal welfare groups challenged the exemption in federal court.


Dairy farm (Image by Edwin Remsberg).
Dairy farm (Image by Edwin Remsberg).

On review, the court looked to see if the exemption was a reasonable interpretation, or if Congress had directly spoken on the issue and the rule contradicted that interpretation, known as Chevron deference. The court disagreed with EPA’s arguments that both statutes gave EPA the authority to create exemptions. The court viewed the statutes as straightforward with a list of exemptions, and upheld reporting all non-exempt releases. Nothing in the statutes gave EPA the authority to create exemptions other than those spelled out in CERCLA and EPCRA.

Courts have allowed agencies to utilize the de minimis doctrine, which allows agencies to avoid an absurd result due to statutory language. Agencies cannot use the