Summary
On April 11, 2017, the United States Court of Appeals for the D.C. Circuit struck down an EPA final rule which exempted animal feeding operations from air pollution reporting requirements. Under the 2008 rule, farms did not have to provide animal waste reports under the federal Comprehensive Environmental Response, Liability and Compensation Act (CERCLA), and most farms were also exempt from state and local reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA). With the D.C. Circuit’s decision, farms will now be subject to additional reporting requirements associated with animal waste.
The Court of Appeals found that there was no sound basis for excluding animal waste reporting. In this regard, the Court rejected the EPA’s argument that the reports were unnecessary and that it would be “impractical” for the agency to investigate or respond to these reports. Specifically, the Court envisioned a scenario in which a farm’s waste disposal techniques could be altered in response to toxic levels of hydrogen sulfide. And apart from EPA’s potential enforcement response, the Court found that disclosure of releases of hazardous substances might benefit state and local officials when they need to investigate reports of pollution in their communities.
It remains unclear whether EPA will actually begin to investigate or issue abatement orders under CERCLA for these types of releases. In briefing before the Court of Appeals, the EPA indicated that it believed “in most cases, a federal response is impractical and unlikely” in this context, and there is no indication that the D.C. Circuit’s newly-issued decision will alter this view.
Regardless of the EPA’s eventual enforcement approach, the Court’s decision is a win for environmentalists and will bolster compliance obligations for agricultural operations. While the EPA is still reviewing the Court’s decision and may issue additional guidance, reporting obligations for farm operations are now automatically in effect going forward. In addition, the Court’s decision affirms that environmental groups may have standing to challenge EPA disclosure regulations based solely on the alleged deprivation of information.
