Summary of a Recent
Judicial Development in
Animal Feeding Operations

Confined Animal Feeding Operation Rule Rejected for Failing
to Address Public Health Impacts

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District, 85 Cal. Rptr. 3d 590 (Cal. Ct. App. 2008), the California Fifth District Court of Appeals reversed the ruling of the Fresno County Superior Court, which had denied the Association of Irritated Residents' ("Association") petition for writ of mandate. The Association sought the writ to compel the San Joaquin Valley Unified Air Pollution Control District ("District") to comply with Health and Safety Code § 40724.6. The Association alleged that the District failed to comply with the statute when it passed a rule establishing a large confined animal facility permitting process. The court held that the rule promulgated by the District was adopted without conducting an adequate assessment of its impact on public health.

Background

In 2003, the California Senate passed a statute requiring any state air pollution control district designated as a federal nonattainment area for ozone to adopt a rule obligating confined animal operations to reduce emissions of air contaminants. Id. at 594-95. The rule applied only to facilities in existence on or before January 1, 2004. Id. at 595. Prior to the passage of the statute, agricultural facilities were exempt from air pollution regulation. Id. Due to its large concentration of agricultural facilities, the San Joaquin Valley Basin was designated as a nonattainment area according to federal Clean Air Act ("CAA") standards for ozone. Id. To comply with the statute, the District passed Rule 4570, which established a permit process for large confined animal feeding operations "CAFOs"). Id. The rule was intended to control volatile organic compounds produced by CAFOs. Id. Volatile organic compounds combine with nitrogen oxides, heat, and sunlight to form ozone. Id.

The Association filed a petition in superior court seeking a writ of mandate compelling the District to pass a rule that would comply with the statute. Id. Denying the petition, the superior court held that the district did consider the public health impact of the rule and all issues related to public health raised by the association were addressed; the intent and language of the statute did not require the rule to include within its parameters air contaminants other than those directly related to the District's nonattainment of federal and state ozone standards; there was no requirement that the rule address ammonia emissions; and the claimed emission reductions were not lacking in evidentiary support. Id. at 596. The Association appealed. Id.

Arguments

On appeal, the Association argued that the District failed to comply with the statute when it passed the rule because it:

(1) failed to perform a health-effects analysis before adopting rule 4570; (2) failed to adopt a rule that reduce[d] all air contaminants; (3) failed to regulate ammonia as an air contaminant; (4) failed to adopt a rule that actually reduce[d] VOC emissions; and (5) acted arbitrarily and capriciously by claiming emission reductions that lack[ed] evidentiary support.
Id. at 595-96.

Analysis and Holdings

Because adopting a rule is a quasi-legislative act, the District's rule was reviewable by a petition for traditional mandamus. Id. at 596. In a traditional mandamus proceeding, the court performs the limited role of determining whether the agency's action was arbitrary, capricious, or without evidentiary support, or whether it failed to conform to the law. See id.

The language of the statute required that the District perform an assessment of the rule's impacts prior to its adoption. Id. at 597. Although the District produced a staff report that purportedly addressed the health effects of the rule, the court concluded that it was insufficient because the report did not adequately assess the rule's impact on public health, and therefore, it failed to comply with the statute. Id. at 597-98.

The Association also argued that the statute required the District to adopt a rule that would reduce all air contaminants, rather than one solely focused on ozone. Id. at 601. Upon conducting a thorough reading of the statue, the court held that neither the statute nor its legislative history suggested that the District's rule needed to address all other air pollutants in addition to ozone. Id. at 603.

In its final argument, the Association claimed that the District's findings were arbitrary, capricious, and lacked evidentiary support. Id. It claimed that the District:

(1) relied upon unsupported reduction assumptions; (2) double-counted reduction estimates; (3) assumed a 50-percent control efficiency for all liquid manure-handling mitigation options based on the control efficiency of only phototropic lagoons; (4) relied on emission-reduction estimates for applying manure to croplands without evidentiary support; and (5) failed to analyze more expensive mitigation measures based on an assumption that facilities would choose the cheapest mitigation measure.
Id. at 604.

The court rejected each of the Association's contentions because the District "applied its expertise to the scientific and policy considerations before it and reached a conclusion that was neither arbitrary nor capricious given the record evidence." Id.

Ultimately, the court ordered the trial court to grant the Association's request for a writ of mandate and instructed the District to complete an assessment on the public health impacts of the rule. Id. at 607.

The case was decided on November 19, 2008.