Animal feeding operations (“AFOs”), which include confined animal feeding operations (“CAFOs”), emit a host of chemicals into the air, including ammonia, hydrogen sulfide, particulate matter and volatile organic compounds (“AFO emissions”). Air emissions studies have found a correlation between AFO emissions and potential negative health impacts, such as increased rates of asthma.¹ Yet, despite knowledge of these studies, the United States Environmental Protection Agency (“EPA”) has not made a finding that AFO emissions can “reasonably be anticipated to endanger public health or welfare.” Therefore, the agency has not added AFO emissions to the list of pollutants under Section 108 of the Clean Air Act (“CAA”) and has not established limits (known as National Ambient Air Quality Standards or “NAAQS”) for the maximum allowable concentrations of AFO emisions. See 42 U.S.C. §§ 7408(a)(1)(A)-(C) & 7409. Several residents of Winneshiek County, Iowa, who — as it turns out — teach at, have attended or have children that attend a school that was the focus of one of the studies, sued the EPA to force the agency to regulate AFO emissions. They argued that the CAA places a “nondiscretionary duty” on the agency to regulate AFO emissions and to designate AFOs as stationary sources.

On June 28, 2014, the United States District Court for the District of Columbia disagreed and held that the CAA does not impose a nondiscretionary duty on the EPA to regulate emissions from AFOs or to designate AFOs as emissions sources. Zook v. EPA, No. 13-1315 (D.D.C. June 30, 2014). Due to the lack of a statutory duty, the court dismissed the complaint for failure to state a claim for which relief could be granted under Federal Rule of Civil Procedure 12(b)(6).

In doing so, the court analyzed the relevant provisions of the CAA. Section 108 requires the EPA to identify criteria air pollutants and to then set NAAQS limiting the acceptable amount of each pollutant in the air. To do this, the EPA must determine whether certain air pollutants “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” The EPA is required to set air quality standards for a pollutant only when it is listed as a criteria pollutant. 42 U.S.C. § 7408(a)(1). Similarly, under Section 111, the administrator must determine which stationary sources “cause[], or contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b)(1)(A). As with criteria pollutants, the agency is only required to regulate stationary sources once it has determined the source causes or contributes to air pollution.

Ultimately, the court dismissed the plaintiffs’ citizen-suit because it did not have authority to compel the EPA to make a policy determination that emissions from AFOs endanger the public’s health (quoting Envtl. Def. Fund v. Thomas, 870 F.2d 892, 899 (2d Cir, 1989)). The court found that Sections 108 and 111 explicitly grant judgment-making responsibility to the agency. Furthermore, the court determined that mere knowledge of a pollutant’s negative effects is not a policy determination under Section 108. The district court explained that if the EPA has not made an affirmative determination that AFO emissions endanger public health, then there is no mandatory duty to regulate them. The court then determined that granting the plaintiffs’ request to impose such a duty would “improperly usurp” the EPA’s authority to make policy judgments under Section 108. The court used the same reasoning to reject the plaintiffs’ argument regarding stationary sources under Section 111.

The district court’s ruling reaffirms the significant deference given to an agency when it makes policy judgments pursuant to its controlling statute — in this case, the CAA. The explicit language in CAA Sections 108 and 111 demonstrates that Congress assigned judgment and policymaking discretion to the EPA rather than to the courts. However, the scenario above also underscores the significant pressure on the EPA to increase regulation of AFOs.

Taft’s Environmental practice group has significant experience with both state and federal claims under the Clean Air Act. For more information, please contact Julian Harrell or any other member of Taft’s Environmental practice group.

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¹By way of background, the EPA entered into an Air Compliance Agreement with 2,580 AFOs (representing more than 13,000 farms) in 2005. Under the terms of this agreement, the AFOs agreed to fund a study to gather scientific data sufficient to develop standards for estimating air emissions for AFOs. Those AFOs that entered into the agreement also were required to pay a civil penalty for past CAA violations and to make their facilities accessible for monitoring. Moreover, the AFOs agreed that once the EPA published final “air emissions estimating methodologies” for an AFO’s animal sector (i.e., poultry, hog, cow, etc.), the EPA would apply the final methodologies to determine what actions the AFO must take to comply with the CAA (i.e., obtain a permit, limit emissions, etc.) and other potentially applicable federal environmental statutes. In exchange, the EPA agreed to provide the participants with a covenant-not-to-sue for past CAA violations, and certain provisions of other environmental laws. Nearly a decade has passed since the agreement was signed and the EPA is still in the process of developing its emissions estimating methodologies.