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Environmental Integrity Project v. McCarthy

United States District Court, D. Columbia

September 29, 2015

ENVIRONMENTAL INTEGRITY PROJECT, FOOD & WATER WATCH, THE HUMANE SOCIETY OF THE UNITED STATES, CENTER FOR FOOD SAFETY, and IOWA CITIZENS FOR COMMUNITY IMPROVEMENT, Plaintiffs,
v.
GINA MCCARTHY, Administrator, United States Environmental Protection Agency; and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants

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[Copyrighted Material Omitted]

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          For ENVIRONMENTAL INTEGRITY PROJECT, IOWA CITIZENS FOR COMMUNITY IMPROVEMENT, Plaintiffs: Adam M. Kron, LEAD ATTORNEY, Environmental Integrity Project, Washington, DC; Susan J. Kraham, LEAD ATTORNEY, MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., Environmental Law Clinic, New York, NY; Peter A. Brandt, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

         For FOOD & WATER WATCH, Plaintiff: Susan J. Kraham, LEAD ATTORNEY, MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., Environmental Law Clinic, New York, NY; Peter A. Brandt, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

         For HUMANE SOCIETY OF THE UNITED STATES, Plaintiff: Hannah Mary Margaret Connor, LEAD ATTORNEY, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC; Susan J. Kraham, LEAD ATTORNEY, MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., Environmental Law Clinic, New York, NY; George A. Kimbrell, PRO HAC VICE, CENTER FOR FOOD SAFETY, Portland, OR; Paige M. Tomaselli, PRO HAC VICE, CENTER FOR FOOD SAFETY, San Francisco, CA; Peter A. Brandt, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

         For CENTER FOR FOOD SAFETY, Plaintiff: Paige M. Tomaselli, LEAD ATTORNEY, CENTER FOR FOOD SAFETY, San Francisco, CA; Susan J. Kraham, LEAD ATTORNEY, MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., Environmental Law Clinic, New York, NY; Peter A. Brandt, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

         For GINA MCCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency, ENVIRONMENTAL PROTECTION AGENCY, Defendants: Simi Bhat, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC.

         For AMERICAN FARM BUREAU FEDERATION, Amicus: Jay Christopher Johnson, LEAD ATTORNEY, VENABLE LLP, Washington, DC.

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         MEMORANDUM OPINION

         RANDOLPH D. MOSS, United States District Judge.

         Plaintiffs, five non-profit organizations,[1] challenge the decision of the Environmental Protection Agency (" EPA" or " Agency" ) to withdraw a proposed rule that would have required large industrial livestock operations to provide information to the EPA in order to facilitate the EPA's ability to regulate their discharge of pollutants into the waters of the United States pursuant to the Clean Water Act (" CWA" ), 33 U.S.C. § § 1251 et seq. Plaintiffs contend that the EPA's decision to withdraw the proposed rule was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § § 701-706 (" APA" ), because it lacks clear reasoning, runs counter to the evidence in the administrative record, and constitutes a clear error in judgment. For the reasons set forth below, the Court concludes that the EPA's decision to withdraw the proposed rule did not violate the APA. Accordingly, Plaintiffs' Motion for Summary Judgment, Dkt. 24, is DENIED and Defendants' Cross Motion for Summary Judgment, Dkt. 26, is GRANTED.

         I. BACKGROUND

         This case involves the EPA's efforts to gather information about Concentrated Animal Feeding Operations (" CAFOs" )--industrial farm operations that are major sources of water pollution. Although CAFOs have been regulated by the EPA for decades, the pollutants that they discharge--manure, litter, and process wastewater--remain a significant environmental and health problem. As of 2003, the EPA estimated " that animals raised in confinement generate more than three times the amount of raw waste than the amount of waste that is generated by humans in the United States" and that " CAFOs collectively produce 60 percent of all manure generated by farms that confine animals." Nat'l Pollutant Discharge Elimination Sys. (NPDES) CAFO Reporting Rule, 76 Fed.Reg. 65431, 65431 (Oct. 21, 2011). According to Plaintiffs, " animal agriculture" in the United States generates " 300 million tons of manure each year, and " [t]he vast majority of this waste eventually reaches the nation's waterways." Dkt. 24-3 ¶ 11. Among other things, pollutants from CAFOs can cause " harmful aquatic plant growth[s]" called " algal blooms," which " cause fish kills," " contribute to 'dead zones,'" and " often release toxins that are harmful to human life." 76 Fed.Reg. at 65432. Moreover, " [m]ore than 40 diseases found in manure can be transferred to humans." Id. Runoff from manure also often includes heavy metals, as well as antibiotics, growth hormones, and pharmaceutical

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agents administered to livestock, which pose further threats to public health. Id. at 65434.

         Yet despite the substantial impact that CAFOs can have on the environment, the EPA lacks a comprehensive understanding of the number, location, and permitting status of these operations in the United States. JA 155.[2] As discussed further below, in 2011 the EPA proposed two possible rules that would have required CAFOs to submit certain basic information to the EPA, pursuant to the EPA's information-gathering authority under the CWA. In the proposed rulemaking, the EPA explained that the water contamination caused by CAFOs " may be due, in part, to inadequate compliance with existing regulations or to the limitations in CAFO permitting programs" and that " basic information about CAFOs would assist the Agency in addressing those problems" and allow the Agency and others to " make more informed decisions" about how to protect the environment. 76 Fed.Reg. at 65432. After a notice and comment period, however, the Agency decided not to adopt either rule and withdrew its proposed rulemaking. Plaintiffs challenge the EPA's decision to withdraw the proposed rules as arbitrary, capricious, and contrary to law.

         A. Statutory And Regulatory Background

         1. The Clean Water Act

         The EPA proposed--and ultimately withdrew--the proposed rules at issue here pursuant to its authority under the Clean Water Act. The purpose of the CWA is to " restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve that purpose, the CWA establishes several " national goal[s]," including the goals that the " discharge of pollutants into the navigable waters be eliminated by 1985," id. § 1251(a)(1), that " discharge of toxic pollutants in toxic amounts be prohibited," id. § 1251(a)(3), and that " programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of [the CWA] to be met through the control of both point and nonpoint sources of pollution." Id. § 1251(a)(7). The CWA provides that " the discharge of any pollutant by any person shall be unlawful" unless that discharge is " in compliance with" specified terms of the CWA. 33 U.S.C. § 1311. The discharge of a pollutant is defined to include " any addition of any pollutant to navigable waters from any point source." Id. § 1362(12). A point source, in turn, is defined as " any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling sock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." Id. § 1362(14) (emphasis added).

         EPA regulations define the facilities that qualify as " concentrated animal feeding operations" subject to the rules governing point sources. First, the regulations define " animal feeding operations," or " AFOs," as facilities in which animals are contained for 45 days or more in any twelve month period. 40 C.F.R. § 122.23(b)(1). A " [c]oncentrated animal feeding operation," or " CAFO," in turn, is any " animal feeding operation" that qualifies as either a " Large CAFO" or a " Medium

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CAFO" or is designated a " significant contributor of pollutants to waters of the United States." Id. § § 122.23(b)(2), (c). Animal feeding operations are classified as " Large" or " Medium" when they house specified minimum threshold quantities of animals; for instance, to qualify as " large," an AFO must have at least 700 mature dairy cows or 55,000 turkeys, and to qualify as " medium," it must have between 200 and 699 mature dairy cows or between 16,500 and 54,999 turkeys. See id. § § 122.23(b)(4), (6). An AFO that does not meet these numerical thresholds is considered a CAFO only if it is known significantly to contribute to water pollution.

         The Clean Water Act provides for the regulation of point sources pursuant to the National Pollutant Discharge Elimination System (" NPDES" ), 33 U.S.C. § 1342, which requires that any " point source" have a permit in order to " discharge" pollutants. The NPDES permitting requirement, accordingly, extends to all Large and Medium CAFOs that actually " discharge" and to those small CAFOs that significantly contribute to water pollution. In keeping with the CWA's recognition that states bear " the primary responsibilities and rights" to " prevent, reduce, and eliminate pollution," 33 U.S.C. § 1251(b), states, tribes, and territories may apply to administer their own NPDES programs. Presently, " [f]orty-six states and the U.S. Virgin Islands are authorized to administer the NPDES CAFO permitting program," and the EPA administers the program for the remaining four states. Dkt. 26-1 at 3.

         A separate provision of the CWA--Section 308--provides the EPA with broad authority to gather information " [w]henever required to carry out the objective of" the Act. 33 U.S.C. § 1318(a). Specifically, Section 308 instructs the EPA, when " required to carry out the objectives of" the CWA, to " require the owner or operator of any point source to (i) establish and maintain such records, (ii) make such reports, (iii) install, use, and maintain such monitoring equipment or methods . .., (iv) sample such effluents . .., and (v) provide such other information" as the Administrator " may reasonably require." Id. § 1318(a)(4)(A). The EPA may exercise its Section 308 information-gathering authority either by promulgating a rule requiring point sources to submit information to the EPA or by surveying point sources without formal rule-making.[3] See id. ; 77 Fed.Reg. at 42679. The CWA also grants the EPA the right to enter any premise where effluent sources or relevant records are located, along with the right to access those records and sample effluents. 33 U.S.C. § § 1318(a)(4)(B)(i)-(ii). The Act authorizes the EPA to impose penalties on entities that fail to provide information to the EPA under Section 308. See id. § 1319.

         B. Factual And Procedural Background

         1. Prior Litigation: Waterkeeper and NPPC

         In 2003, the EPA overhauled its regulations to " strengthen the existing regulatory program for CAFOs." NPDES Permit Regulation and Effluent Limitation Guidelines and Standards for CAFOs, 68 Fed.Reg. 7,176 (Feb. 12, 2003). Among other requirements, the 2003 rule established a " mandatory duty for all CAFOs to apply for an NPDES permit," id. at 7176,

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except for those CAFOs that " successfully demonstrated no potential to discharge," id. at 7182 (brackets omitted). Both environmental and farm groups challenged the revised regulations, and in 2005 the United States Court of Appeals for the Second Circuit vacated and remanded the portion of the rule requiring that all CAFOs either " apply for NPDES permits or otherwise demonstrate that they have no potential to discharge." Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d. Cir. 2005). The court reasoned that the CWA authorizes the EPA to regulate " only the [actual] discharge of pollutants" --not " potential discharges" --and that the 2003 NPDES regulations exceeded the EPA's authority because they required even CAFOs that did not actually discharge pollutants to obtain permits. Id. at 504, 524.

         On remand, the EPA promulgated a new rule, which allowed CAFOs to avoid the permitting requirement by voluntarily certifying that they neither discharged nor " propose[d] to discharge" pollutants. Rev'd NPDES Permit Regulation and Effluent Limitations Guidelines for CAFOs in Response to the Waterkeeper Decision, 73 Fed.Reg. 70418, 70426 (Nov. 20, 2008). Once again, both environmental groups and farm groups challenged the rule, and once again, the rule was vacated to the extent that it required permits for CAFOs that do not actually discharge. Nat'l Pork Producers Council v. EPA, 635 F.3d 738, 756-57 (5th Cir. 2011) (vacating requirement that CAFOs that propose to discharge must apply for permit) (" NPPC " ).

         The environmental groups raised separate claims in the NPPC case, which were severed and resolved in a settlement agreement. As part of that settlement agreement, the EPA " committed to propose a rule, pursuant to CWA section 308, that would require CAFOs to provide certain information to EPA." 76 Fed.Reg. at 65435. The settlement agreement further specified that the EPA's proposed rule would either require all CAFOs (regardless of whether they discharge or have an NPDES permit) to submit fourteen specific pieces of information,[4] or, if the EPA decided not to include this requirement, it would explain its reasons for the exclusion. Under the settlement agreement, the EPA was required to take final action on the proposed rule by July 13, 2012. The EPA did not, however, commit to adopting the rule or to undertaking any specific course of action; to the contrary, consistent with the APA, the settlement agreement expressly provided that it did not limit the EPA's ultimate rule-making discretion. Id.

         2. The October 2011 Proposed Rule

         Pursuant to the NPPC settlement agreement, in October 2011 the EPA " co-proposed" two possible rules that would require CAFOs to submit five of the fourteen pieces of information addressed in the settlement agreement. The EPA's Federal Register notice explained that the

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purpose of the proposed rule was to " improve and restore water quality by collecting facility-specific information that would improve EPA's ability to effectively implement the NPDES program and to ensure that CAFOs are complying with the requirements of the CWA," including the NPDES permit requirements. 76 Fed.Reg. at 65436. The EPA further explained that facility location and basic operational characteristics " is essential information needed to carry out NPDES programmatic functions" and that principal NPDES functions " can be carried out most efficiently and effectively when EPA and states have access to facility contacts and other information about CAFOs." Id. The rules were proposed pursuant to the EPA's Section 308 information-gathering authority, which, in the EPA's view, is broader than the permitting authority at issue in NPPC and Waterkeepers.[5] The proposed rules, accordingly, extend to all CAFOs, including those that do not actually " discharge."

         Under the first " co-proposed" rule (the " Information Rule" ), all CAFOs would be required to submit to the EPA five of the fourteen pieces of information discussed in the settlement agreement: CAFOs' " contact information, location of the CAFO's production area, NPDES permitting status, number, and type of animals, and number of acres available for land application." Id. Under the second " co-proposed" rule (the " Focused Rule" ), rather than requiring all CAFOs to submit information, the EPA would identify " focus watersheds where CAFO discharges may be causing water quality concerns," then make " every reasonable effort" to determine whether sufficient information about the CAFOs in each " focus watershed" was available. If not, the EPA would " use its section 308 authority to obtain information from CAFOs in those areas. " Id. After working with " partners at the Federal, state, and local level" to determine whether CAFOs should be required to respond to a survey request, the EPA would issue a " locally-applicable notice in the Federal Register" and undertake local outreach efforts to CAFOs in the watershed. Id.

         In addition to the two " co-proposed" rules, the EPA set forth three other possible " alternative approaches" and solicited comments on whether the EPA " should explore" those alternatives. Id. at 65437. The three alternatives included " (1) [a]n approach that would obtain data from existing data sources, (2) an approach that would expand EPA's network of compliance assistance and outreach tools and (3) an approach requiring NPDES authorized states to submit the information...to EPA." Id. at 65445. The first of these three alternatives--obtaining information from existing sources (the " existing information approach" )--bears focus because it closely approximates the approach the EPA ultimately took in its final agency action.

         Under the " existing information approach," the EPA would seek to leverage " available existing sources of data" to further its statutory aims, rather than requiring

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CAFOs to submit that information to the EPA. Id. The EPA listed a number of known sources of information about CAFOs, " identifie[d] some of the limitations EPA faces" in using each source, and solicited comment " on ways in which EPA could leverage these sources collectively to address impacts from CAFOs." Id. The EPA specifically discussed the following possible data sources:

o U.S. Department of Agriculture (" USDA" ): The EPA explained that the USDA is a " leading source" of agricultural data, but federal law prohibits the USDA from disclosing data unless it has been converted into an aggregate form that " does not allow the identification of the person who supplied information." See 7 U.S.C. § 2276(a). At the time the proposed rule was promulgated, the EPA accordingly used publicly available aggregate data from the USDA to estimate details about the CAFO universe, but could not obtain from the USDA facility-specific data. 76 Fed.Reg. at 65445.
o State NPDES Permitting Programs: The EPA explained that states that issue NPDES permits should have all of the data requested for at least those CAFOs that are permitted. Not all of the states, however, have that information in electronic form, and some states may not have data that is " complete or readily available." Id. A further difficulty is that states do not gather data " based on a national standardized reporting scheme," leading to inconsistencies that could " prevent EPA from compiling a consistent summary of CAFO information." Id. at 65445-46. Accordingly, the EPA explained that " a national inventory based solely on state data would not be comprehensive." Id. at 65446.
o State Registration or Licensing Programs: The EPA explained that " [m]any state agriculture departments have registration or licensing programs that collect information from livestock farms separately from environmental permitting requirements." Id. This information, however, is generally limited to contact information. Id. The EPA sought comments as to " the availability" of such lists and " whether information obtained from such programs could be shared with EPA." Id.
o Satellite Imagery and Aerial Photographs: The EPA explained that satellite imagery and aerial photography can be used to " locate and map CAFOs" by identifying visible structures associated with CAFOs. These techniques, however, cannot determine whether structures " actually contained animals, whether an operation met the regulatory definition of a CAFO or had NPDES permit coverage," and is thus " most useful" when supplemented by ...

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