The EPA exceeded its authority when it exempted ranchers and others in animal agriculture from the duty to report the release of hazardous materials, the D.C. Circuit Court of Appeals held Tuesday.
The court — often described as the second-most important in the country because of its oversight of federal agencies — noted the animal-agriculture industry is responsible for the widespread emission of ammonia and hydrogen sulfide. Releases of these hazardous substances, which arise from decomposing animal waste, are statutorily required to be reported, Senior Judge Stephen F. Williams wrote for the court.
The case was brought by the Waterkeeper Alliance, the Sierra Club, the Humane Society of the United States, the Environmental Integrity Project and the Center for Food Safety under the Comprehensive Environmental Response, Compensation, and Liability Act and the Emergency Planning and Community Right-to-Know Act. CERCLA requires businesses to notify federal authorities when large quantities of hazardous substances are released, while EPCRA mandates the same reporting to state and local agencies.
The notification scheme is intended to help regulatory agencies consider appropriate enforcement action. The EPA in 2008 adopted a rule providing exemptions from the disclosure requirement because the EPA had never penalized ranchers and others in animal agriculture and couldn’t “foresee a situation where it would take any future response action as a result of such notifications.”
The EPA argued in the federal court that the reporting requirements, when applied to animal agriculture, were therefore “useless.”
Williams summarized the legal case that ensued after the rule’s adoption:
“A number of environmental groups objected, claiming that the rule ran afoul of the underlying statutes (and was therefore outside the EPA’s delegated authority). The dispute brings into play our longtime recognition that agencies have implied authority to create exceptions to a statute ‘when the burdens of regulation yield a gain of trivial or no value.’”
During the public-comment period on the draft rule, testimony noted the reporting exemption would “prevent local, state and federal emergency responders from having critical information about potentially dangerous releases.”
The court found “the comments undermine the EPA’s primary justification for the Final Rule — namely, that notifications of animal-waste-related releases serve no regulatory purpose because it would be ‘impractical or unlikely’ to respond to such a release.”
Williams concluded: “It’s not at all clear why it would be impractical for the EPA to investigate or issue abatement orders.”
Thus, the court invalidated EPA’s rule, though an appeal to the Supreme Court is likely.
(A version of this story was previously posted at Medium.)