Gary Baise Commentaries

Another legal attack on large-scale livestock farms

Another legal attack on large-scale livestock farms

Despite ag stormwater runoff exemption, yet another environmental group takes EPA to court.

Food and Water Watch filed a legal petition May 20th against EPA in the 9th Circuit Court of Appeals over EPA’s decision NOT to update wastewater guidelines involving concentrated animal feeding operations (CAFOs).

These effluent limitation guidelines (ELGs) are to require CAFOs to implement technology to reduce pollution into waters of the United States (WOTUS). Food and Water Watch, a politically active environmentalist group, must be unaware that CAFOs do not discharge. EPA required no discharge permits at one time and another circuit court stated if you do not have a discharge, you do not need a permit.

In a May 20, 2021, press release, Food and Water Watch quotes a member in Wisconsin as saying “EPA’s CAFO standards just don’t do enough to protect our water quality, and our community is suffering for it.” The press release goes on to say, “Having been left largely unregulated, the agriculture sector, including factory farms, is one of the biggest sources of water pollution in the country.”

Clearly the spin masters at Food and Water Watch were not around in the 1950s, 60s and 70s when hundreds of thousands of feedlots filled with cattle and hogs sent virtually all their waste into waters of the United States. On January 11, 2021, EPA issued in the Federal Register Effluent Guidelines Program Plan 14. This notice issued under the Trump administration told the world what EPA was going to review regarding effluent guidelines and pretreatment standards.

EPA, for example, told the world that it was going to do a detailed study on PFAS, a chemical of some concern to the dairy industry and other industries such as airports and rug and textile manufacturers. EPA reviewed 59 industrial categories. It told the world which industry would have no further action taken to develop effluent guidelines and pretreatment standards for the category at this time.

EPA also stated which industries it was going to initiate a review or study. You can find this list in EPA document 821-R-21-001. In Table 8-1 EPA indicates there are 59 categories and in 46 of those categories, EPA decided not to review the industrial category. Food and Water Watch selected CAFOs to challenge, and say EPA was wrong in making such a decision.

Why not airport deicing?

Food and Water Watch could have chosen airport deicing, asbestos manufacturing, copper forming, electroplating, glass manufacturing, porcelain enameling, and sugar processing. These are some of the industries EPA decided not to review. Food and Water Watch did not challenge any EPA decision regarding any industry other than CAFOs.

Emily Miller, staff attorney for Food and Water Watch, claims “Food and Water Watch has been trying to get EPA to do its job and regulate factory farm polluters for years.” Miller is a University of California-Berkeley graduate and served as Marketing and Education Manager for the Chef Ann Foundation. She has been an expert on CAFOs at Food and Water Watch since January 2021.

Miller and her colleagues might read the Clean Water Act and the cases surrounding CAFOs and find there is an agricultural stormwater runoff exemption. In addition, CAFOs are not allowed to discharge into a water of the United States without an NPDES permit. Nearly all CAFOs are non-discharge entities. Nonetheless, the petition for review of an action by EPA will be heard in the agriculturally-unfriendly 9th Circuit. Food and Water Watch is a nonprofit organization and its mission “…includes advocating for the protection, preservation, and sound management of waters of the United States.” Food and Water Watch “…has a substantial interest in the EPA’s determination not to revise CAFO effluent limitations guidelines because the federal action taken therein will have adverse impacts on petitioner and its members’ interests…”

Hopefully the 9th Circuit will see this petition for what it represents.