Pressure building on Biden EPA to regulate CAFOs

November 3, 2022

Environmentalists, citizen groups and some in the “environmental justice” community are putting considerable pressure on the Biden EPA to step up federal regulation of concentrated animal feeding operations (CAFOs). Most commercial layer operations meet the definition of a CAFO: operations that house animals for 45 days or more in a year in a dedicated area not used to raise crops.

This pressure started in 2021, with the Biden EPA responding to the environmental justice community’s calls for a proposed rule concerning how CAFOs are required to report ammonia emissions from manure under the Emergency Preparedness and Community Right to Know Act (EPCRA). A proposal from EPA is expected later this year or early in 2023.

Late last month, EPA was ordered by the 9th Circuit Court of Appeals to respond by October 31 to a 2017 petition seeking tougher Clean Water Act (CWA) oversight of CAFOs (the substance of the 2017 petition is in the “writ of mandamus” filed by the groups in the 9th Circuit). The petition demands that EPA require and enforce National Pollution Discharge and Elimination System (NPDES) permits for CAFOs. The petition holds that “[m]any CAFOs are not regulated and continue to discharge without NPDES permits” in violation of the CWA because its “regulations contain definitions, thresholds, and limitations that make it difficult to compel permit coverage” and that “while many CAFOs often claim that they do not discharge, EPA and state permitting agencies lack the resources to regularly inspect these facilities to assess these claims.” A settlement agreement between EPA and the plaintiffs is expected this year, announcing when EPA will formally respond to the substance of the environmentalists’ petition.

Last, on October 26, over 50 environmental and environmental justice organizations filed a new petition demanding that EPA “adopt a rebuttable presumption that CAFOs using wet manure management systems actually discharge water pollution and, thus, must apply for permits under the CWA.”  The petition claims that CAFOs cause water and air pollution, spread antibiotic-resistant pathogens, exacerbate climate change and unfairly burden minority communities with these harms. The petition also notes that a CAFO’s NPDES permitting process would allow for public review and comment on any pending permit and that CAFOs with NPDES permits are subject to citizen suits.

There are strong voices in EPA and the Biden Administration that recognize sound legal and policy reasons to say no to new EPCRA and NPDES requirements and advise a more cooperative approach to address any problems. But the political pressure applied to the Biden EPA to aggressively regulate animal agriculture is intense. UEP is monitoring these developments closely and preparing for possible significant regulatory initiatives in the last two years of President Biden’s first term.