Updated: Jul 8, 2020
I’ve been on a kick here lately of updating you on recent litigation. That trend continues today. On April 15, a coalition of environmental and animal welfare groups filed suit against the Environmental Protection Agency (EPA) challenging a Bush administration decision to exempt large animal feeding operations from reporting emissions of hazardous substances into the air. EPA has yet to respond to the coalition’s petition, so at this time I’m only going to look at the coalition’s petition.
Before we look at the petition, let’s take a moment to review the exemption. The exemption was finalized in 2008 and addressed reporting requirements for airborne emissions of hazardous substances required under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community-Right-to-Know Act (EPCRA). Both acts require reporting when a threshold quantity of certain substances is released into the environment (including through the air). The reporting is to allow the government and the public a better understanding of chemical releases into the environment.
In the wake of a few unfavorable court opinions (more on those in another post), poultry producers petitioned EPA in 2005 for a general exemption from the reporting requirements. In 2007, EPA proposed to exempt poultry producers from the reporting requirements because EPA saw no foreseeable situation when a response action would be taken against a farm. This proposed exemption drew negative comments from the environmental community. In 2008, EPA published the final exemption which exempted not only poultry but all of animal agriculture from the reporting requirements. This final rule was challenged in Federal court in 2009. In 2010, EPA asked the Federal court to return the final exemption to EPA for reconsideration. At the time, EPA indicated it would either modify the existing exemption or propose a new exemption in 2012. The Federal district court granted EPA’s request.
Since then, EPA has not announced any changes to the 2008 exemption (which remains in effect). That brings us to the petition filed on April 15. The coalition is requesting that the court either rule on the original lawsuit filed back in 2009 or compel EPA to finalize the revised exemptions within 9 months. The coalition points to conversations with EPA and records indicating EPA has not moved on revising this exemption since 2012.
What happens from here? EPA will respond to this petition next month so currently we only know the coalition’s legal arguments. At this point, anything would just be guesses. If ruling on the 2009 petition, the court could find in favor of EPA’s exemption, rule against the exemption, or compel EPA to compete the revised exemption within 9 months. Regardless of the options, those interested in this topic should stay tuned to see how this plays out.