It looks like EPA will have to defend its position on "dust and feather" discharges. A West Virginia federal court allowed a lawsuit that pits American Farm Bureau against EPA to proceed. The case, Alt v. EPA, contests EPA’s authority to require Concentrated Animal Feeding Operations (CAFOs) to obtain NPDES permits on the basis that a "discharge" occurs when dust, feathers, and dander released through ventilation fans comes into contact with precipitation. The lawsuit has national implications for livestock producers and has attracted high profile intervenors such as American Farm Bureau Federation, Waterkeeper Alliance, and the Center for Food Safety.
The last time I reported on this case, EPA had dropped its order requiring the broiler operation to obtain an NPDES permit. EPA’s basis for withdrawing the order was that the farmer, Lois Alt, had taken steps to remedy and prevent environmental harm from her operation. EPA then sought to dismiss the case on the basis that the lawsuit was "moot," meaning there was no longer a live controversy and further litigation would be merely academic.
American Farm Bureau opposed EPA’s motion to dismiss on the grounds that even though EPA changed course in regards to Lois Alt’s farm, it had not changed its national policy regarding whether small accumulations of dust, feathers, and dander outside CAFO ventilation fans constitute a discharge under the Clean Water Act. American Farm Bureau argued that dismissing the Alt case would essentially allow EPA to punt instead of defending its national policy regarding CAFO regulation.
The court sided with Farm Bureau and denied EPA’s motion to dismiss. The court reasoned that EPA could not avoid litigating the dust-and-feathers issue in this one case by voluntarily ceasing its conduct towards one farmer while it was actively pursuing the same contested actions against other farmers.
The upshot of this decision is that the court is going to keep EPA’s feet to the fire. EPA will be forced to defend its policy of requiring NPDES permits for CAFOs on the basis of airborne emissions that come into contact with precipitation. On the other hand, much is at stake for animal agriculture. An unfavorable decision for agriculture could establish precedent that requires livestock producers to obtain NPDES permits. NPDES permits are often burdensome to comply with and empower EPA and state environmental agencies with substantial control over livestock facilities.
The parties in this suit will be submitting briefs containing their arguments this summer. I will keep you updated as developments occur.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer.