EPA sued over CAFO database rule

EPA sued over CAFO database rule

Ag groups see EPA's rule withdrawal as justified and court case as latest attempt for activists to access more information on CAFOs.

A COALITION of community, animal welfare and environmental organizations filed a lawsuit against the Environmental Protection Agency challenging its withdrawal of a proposed rule that would have allowed EPA to collect information from livestock farms such as location and animal population size as well as personal information about operators.

As part of a court settlement deal, EPA proposed a rule, known as the CWA Section 308 Rule, and started gathering information from concentrated animal feeding operations (CAFOs) to make it publicly available and searchable through the EPA website in 2012. It then withdrew that rule after livestock producers aired concerns about activists harassing farmers or posing a threat to the nation's food supply.

The Center for Food Safety, Environmental Integrity Project, Food & Water Watch, The Humane Society of the United States and Iowa Citizens for Community Improvement have filed suit in the U.S. District Court for the District of Columbia arguing that EPA's withdrawal of the proposed 308 rule "lacks the rational basis required by law." The groups claim that the information at issue is "critical" to EPA's ability to protect waterways from livestock farms.

Agricultural groups stand behind the rule's withdrawal.

Don Parrish, senior director of congressional relations for the American Farm Bureau Federation, said the case does not have much merit and hopes EPA will vigorously defend its decision in court.

"We believe this is less about the government doing a good job of regulating livestock operations and more about the ability of NGOs (non-governmental organizations) and environmental groups trying to gain access to information," he said.

In the fall of 2012, several environmental organizations filed Freedom of Information Act requests with EPA for all of the state-generated data it had gathered on CAFOs. EPA granted that request, and unfiltered information was passed along to environmental groups.

After the industry outcry, EPA attempted to recall some of the records it originally produced.

Food & Water Watch said it retained and reviewed all of the original records, and executive director Wenonah Hauter noted, "Our review of these records confirms what EPA has already admitted in its preamble to the 308 rule. The data from the states are inconsistent, incomplete and, ultimately, will not allow the agency to finally begin the process of properly regulating these highly polluting facilities."

The 308 rule made a strong case for the need for information collection based on inadequate existing data, the groups argued. With its rule withdrawal, EPA radically shifted its position without justification, the plaintiffs added.

In a statement, the groups explained that EPA now claims that instead of using its authority under the Clean Water Act to gather information directly from CAFO owners and operators, it will seek to gather existing information about CAFOs from various state and federal agencies.

"This legal action asserts that EPA's change in position is arbitrary because alternative courses of action cannot provide the crucial information," the groups added.

Parrish noted that EPA did not throw out the entire 308 rule. If the agency suspects a specific operation of polluting, it can issue a request for more data on that site, and the operation must comply.

Parrish explained that this aspect is important because EPA must have a rationale to request additional information. Blanket regulation of all operations would be an overreach of EPA's authority, he explained.

In July, the National Pork Producers Council and Farm Bureau took legal action to stop EPA from publicly releasing the private data the environmental groups requested.

Parrish said it's too early in the process to tell what role agricultural groups could play in this latest court case, but they will be watching it closely.

"We're not taking anything off the table and are considering all of our options," he said.

Volume:85 Issue:35

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