Envtl. Integrity Project v. McCarthy

139 F.Supp.3d 25

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.

Civil Action No. 13–1306 (RDM)

United States District Court, District of Columbia.

Signed September 29, 2015

Adam M. Kron, Environmental Integrity Project, Peter A. Brandt, Hannah Mary Margaret Connor, Humane Society of the United States, Washington, DC, Susan J. Kraham, Morningside Heights Legal Services, Inc., New York, NY, George A. Kimbrell, Portland, OR, Paige M. Tomaselli, San Francisco, CA, for Plaintiffs.

Simi Bhat, U.S. Department of Justice, Washington, DC, for Defendants.

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 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 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)(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)(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." NPDESPermit 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, 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 t...