Summary of a Recent
Judicial Development in
Animal Feeding Operations

Motion to Dismiss Clean Air Act Action
Against Dairy Operation Denied

Harrison M. Pittman
Research Assistant Professor of Law

In Association of Irritated Residents v. Fred Schakel Dairy, 2005 WL 3299508 (E.D.Cal. 2005), the United States District Court for the Eastern District of California denied defendants’ motion to dismiss an action brought against it by an unincorporated association under the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q. Plaintiff Association of Irritated Residents brought an action against several defendants (collectively referred to as Schakel Dairy) that alleged that Schakel Dairy violated the CAA and California’s State Implementation Plan when the dairy’s owner began constructing the dairy with obtaining a clean air construction permit from the San Joaquin Valley Unified Air Pollution Control District (District). See id. at *1. Schakel Dairy filed a motion to dismiss the plaintiff’s complaint on the grounds that there were “insufficient allegations to show that the Dairy is a stationary source, there are insufficient allegations to show that the Dairy is subject to permitting requirements by the District, and [that] . . . [the owner of Schakel Dairy] had a vested right to construct the Dairy without obtaining air quality permits.” Id at *17. After extensively reviewing the CAA, the CAA permitting requirements, applicable state air quality laws and their permitting requirements, and the allegations set forth in the plaintiff’s complaint, the court denied the defendants’ motion to dismiss.

The case was decided on December 2, 2005; this summary was posted Mar. 31, 2006.