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CAFO air quality lawsuit dismissed

Mateusz Perkowski

Capital Press

Published on September 27, 2016 1:55PM

Last changed on September 27, 2016 2:49PM

A worker at a dairy milks cows on a rotating carousel system. A lawsuit alleging that federal regulators should regulate air emissions from confined animal feeding operations has been dismissed.

Mateusz Perkowski/Capital Press

A worker at a dairy milks cows on a rotating carousel system. A lawsuit alleging that federal regulators should regulate air emissions from confined animal feeding operations has been dismissed.

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A federal judge has dismissed a lawsuit that accused the U.S. Environmental Protection Agency of unlawfully ignoring environmentalist pleas to regulate air emissions from confined animal feeding operations.

Last year, the EPA was sued for alleged violations of the Clean Air Act and the Administrative Procedure Act by several animal rights and environmental groups: the Humane Society of the United States, Association of Irritated Residents, Environmental Integrity Project, Friends of the Earth and Sierra Club.

According to the complaint, the plaintiffs requested in 2009 that EPA begin rulemaking to regulate CAFOs under the Clean Air Act but the agency has “unreasonably delayed” responding to the petition, allowing “preventable harms to public health and the environment to persist.”

“During that time, CAFOs have continued to emit air pollutants, including ammonia, hydrogen sulfide, methane, nitrous oxide and (volatile organic compounds), into the environment, avoidably endangering human health and welfare and contributing significantly to air pollution,” the complaint said.

U.S. District Judge Tanya Chutkan in Washington, D.C., has now ruled that she lacks jurisdiction over the case because the plaintiffs hadn’t warned EPA of the lawsuit 180 days in advance, as required by the Clean Air Act.

The plaintiffs argued they should be allowed to sue anyway, under the Administrative Procedure Act, but Chutkan said this would allow them to “nullify” the notice requirement contrary to the intent of Congress.

Although the lawsuit is dismissed, the ruling is likely just a bump in the road for the plaintiffs.

Peter Brandt, an attorney for HSUS, said the group plans to refile the lawsuit after providing the 180 days notice, so the EPA’s victory amounts to “part of a pattern of delay.”

“The agency appears to be twiddling its thumbs,” he said.

Similarly, the EPA collected information about emissions from CAFOs but has yet to release its conclusions from the study, suggesting it’s another project that’s “ground to a halt,” Brandt said.

Unlike other emitters of hazardous gases, CAFOs aren’t held to any minimum standards or required to mitigate their negative air impacts, he said.

That’s problematic not only for the environment but for neighbors, some of whom can’t exit their homes without getting a “splitting headache,” Brandt said.

It’s possible CAFOs can mitigate their impacts by installing “biofilters” in their exhaust fans or reduce the number of animals per facility, he said.

EPA does not comment on litigation and plans to “address the need for regulation” after completing a national air emissions study, which has been delayed as the agency responds to comments from its Science Advisory Board, according to a spokesman.

HSUS and the other plaintiffs will only be able to refile their lawsuit if the EPA takes no action on their petition, said Michael Formica, assistant vice president and legal counsel for domestic policy at the National Pork Producers Council.

“The agency has broad discretion in what to do and what not to do,” Formica said.

The plaintiffs are motivated by an antipathy toward animal agriculture rather than a genuine concern about air quality, he said.

“They don’t want Americans to eat meat, so they’re filing a lot of nuisance actions just to waste resources,” Formica said.

As to EPA’s study of CAFO emissions, the agency’s own Scientific Advisory Board found that its data analysis was unreliable, which is why the agency is re-interpreting that information, he said.

“Every farm is different and you can’t devise a one-size-fits-all solution,” Formica said. “HSUS don’t care what the data is, they don’t care what the science is, they just want regulations.”



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