Summary of a Recent
Judicial Development in
Animal Feeding Operations

EPA's Methodology Agreement with AFO
Is Enforcement Action and Not
Reviewable by the Court

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Ass'n of Irritated Residents v. Envtl. Protection Agency, 494 F.3d 1027 (D.C. Cir. 2007), the Court of Appeals for the District of Columbia dismissed the petition for review of agreements between the Environmental Protection Agency (EPA) and animal feeding operations (AFOs) because the agreements did not constitute rules, but rather enforcement actions, and exercises of the EPA's enforcement discretion are not reviewable by the court.

Background

Community and environmental groups petitioned the court for review of agreements between the EPA and AFOs. Id. at 1028. Plaintiffs alleged that the agreements were made in violation of proper rulemaking procedures. Id. The agreements were intended to bring the AFOs into compliance with requirements of the Clean Air Act (CAA); the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); and the Emergency Planning and Community Right-to-Know Act (EPCRA). Id.

Animal feeding operations are facilities where animals are raised for eggs, dairy, or slaughter. Id. (citing 40 C.F.R. § 122.23(b)(1)). The AFOs at issue in this case were producing eggs, turkeys, dairy, broiler chickens, and swine. Id. AFOs emit pollutants regulated by the CAA, CERCLA, and EPCRA (collectively "the Acts") in the course of their operations. Id. The EPA cannot enforce the requirements of the Acts without determining the AFOs' emissions. Id. at 1028-29. There was not an existing methodology to measure an AFOs' emissions reliably, which hampered the EPA's ability to enforce the requirements of the Acts. Id. at 1029. Therefore, the EPA invited the AFOs to sign a consent agreement. Id. Under this agreement, the EPA would not pursue administrative actions against the AFOs for a defined period, in exchange for the AFOs' assistance in developing a methodology for estimating emissions. Id.

Arguments

Plaintiffs argued that the agreement was a rule because it "prescribe[d] law" by granting an exemption from the Acts for a specified period of time. Id. at 1033. Plaintiffs argued that even if it was an enforcement action, the EPA lacked the authority to achieve compliance through the agreement with the AFOs. Id. at 1030. Plaintiffs also argued that the EPA did not give them the opportunity for notice and comment as required by the Administrative Procedure Act (APA). Id. (citing 5 U.S.C. § 551 et seq.).

The EPA argued that the agreement was a valid exercise of its enforcement discretion and was not rulemaking. Id. It further argued that it did not violate the notice and comment requirements of the APA. Id.

Analysis and Holdings

The court began its analysis with subject matter jurisdiction, stating that jurisdiction is determined by whether the agreement constituted rulemaking subjecting it to APA review or whether it was an enforcement proceeding initiated at the agency's discretion. Id. If the agreement falls within the latter category then it is not reviewable by the court. Id. Agency enforcement actions are generally excluded from judicial review because, "a court would have no meaningful standard against which to judge the agency's exercise of discretion" when it is deciding who to enforce the statutes. Id. (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)).

In holding that the agreement was an enforcement action and not subject to the court's review, the court explained that the decision to enforce or prosecute is within the agency's sole discretion. Id. at 1031 (citing Heckler v. Chaney, 470 U.S. at 831). The court stated that the EPA's judgments about saving time and cost of litigation by determining a broader strategy to obtain industry-wide compliance was well within the EPA's discretion and expertise. Id. at 1032. The court further stated that the Chaney presumption of non-reviewability is only applied when there is a discretionary agency role under the statute's enforcement provision. Id. (citing Chaney, 470 U.S. at 835-37). The CAA, CERCLA, and EPCRA had similar permissive enforcement authority as the statute at issue in Chaney. Id. Decisions about how to enforce the Acts were under the discretion of the agency. Id. at 1033.

The court further rejected plaintiffs' argument that the agreement was a rule under the APA. A "rule" is defined as "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." Id. (citing 5 U.S.C. § 551(4)). The court held that the agreement was not consistent with the concept of the definition of a "rule" because it merely defers enforcement and "works no change in the [EPA's] substantive interpretation or implementation of the Acts." Id.

The court rejected plaintiffs' argument that the agreement exceeded EPA's authority under the Acts. Id. at 1036. The Acts' enforcement provisions provided the EPA with broad enforcement authority and discretion. Id. (citing 42 U.S.C. §§ 7413(a)(3), 7414(a)(1)(D), 9609, 11045). The court further stated that the EPA's authority granted by the Acts was sufficient to cover its actions in this case. Id.

The case was decided on July 17, 2007; this summary was posted January 10, 2008.