Court strikes down Bush-era pollution exemption for farms

The Environmental Protection Agency (EPA) acted improperly when it exempted most farms from air pollution reporting requirements for emissions from animals waste, a court ruled.

The EPA in 2008, under former President George W. Bush, carved out an exemption to reporting requirements for a majority of farms for the pollutants — mostly ammonia and hydrogen sulfide — emitted by animal waste.

Most facilities are required by the Emergency Planning and Community Right-to-Know Act and the Comprehensive Environmental Response, Compensation, and Liability Act to report those emissions to federal, state and local authorities.

But the EPA decided that it could not do anything to reduce or mitigate emissions from animal waste, so requiring reporting would not be useful.

{mosads}A three-judge panel of the Court of Appeals for the District of Columbia Circuit agreed Tuesday with environmental groups who challenged the rule.

The judges said that Congress did not give the EPA the authority to carve out such exemptions.

“We have no doubt that a desire for efficiency motivated some of the exceptions Congress provided, but those concerns don’t give the agency carte blanche to ignore the statute whenever it decides the reporting requirements aren’t worth the trouble,” Judge Stephen Williams wrote.

Williams dug deeper, concluding that the EPA did not properly consider possible tools it has to fight animal waste emissions.

“Whatever the EPA’s past experience in responding to mandated information may have been, it plainly has broad authority to respond,” he wrote.

“Thus the comments undermine the EPA’s primary justification for the final rule — namely, that notifications of animal-waste-related releases serve no regulatory purpose because it would be ‘impractical or unlikely’ to respond to such a release,” he continued.

“It’s not at all clear why it would be impractical for the EPA to investigate or issue abatement orders … in cases where pumping techniques or other actions lead to toxic levels of hazardous substances such as hydrogen sulfide.”

Williams, who was nominated to the court by President Reagan, was joined in his opinion by Judge Sri Srinivasan, nominated by President Obama.

Judge Janice Rogers Brown, a George W. Bush nominee, agreed with the decision but wrote separately that the majority should have used a different standard to determine whether the EPA’s actions were a reasonable interpretation of the relevant laws.