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Waterkeeper Alliance v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

April 11, 2017

Waterkeeper Alliance, et al., Petitioners
v.
Environmental Protection Agency, Respondent U.S. Poultry and Egg Association, et al., Intervenors

          Argued December 12, 2016

         On Petitions for Review of Final Regulation Issued by the U.S. Environmental Protection Agency

          Jonathan J. Smith argued the cause for petitioners Waterkeeper Alliance, et al. With him on the briefs was Eve C. Gartner.

          David Y. Chung argued the cause for petitioner National Pork Producers Council. With him on the briefs were Richard E. Schwartz and Sherrie A. Armstrong. Ellen Steen entered an appearance.

          Daniel H. Lutz and Hope M. Babcock were on the brief for amici curiae American Lung Association and American Thoracic Society in support of petitioners Waterkeeper Alliance, et al.

          Jonathan Skinner-Thompson and Erica M. Zilioli, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief was John C. Cruden, Assistant Attorney General. Sue S. Chen and Cynthia J. Morris, Attorneys, U.S. Department of Justice, entered appearances.

          Eve C. Gartner and Jonathan J. Smith were on the brief for intervenors-respondents Waterkeeper Alliance, et al.

          Richard E. Schwartz and David Y. Chung were on the brief for intervenor-respondent U.S. Poultry and Egg Association. Sherrie A. Armstrong and James T. Banks entered appearances.

          Before: Brown and Srinivasan, Circuit Judges, and Williams, Senior Circuit Judge.

          OPINION

          Williams Senior Circuit Judge.

         Anyone with a pet knows firsthand that raising animals means dealing with animal waste. But many of us may not realize that as the waste breaks down, it emits serious pollutants-most notably ammonia and hydrogen sulfide. While those emissions are miniscule for pet owners, they can be quite substantial for farms that have hundreds or thousands of animals.

         Two provisions of federal law-sections of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") and the Emergency Planning and Community Right-to-Know Act of 1986 ("EPCRA")-require parties to notify authorities when large quantities of hazardous materials (such as ammonia or hydrogen sulfide) are released into the environment. See 42 U.S.C. § 9603 (CERCLA); id. § 11004 (EPCRA). On learning of such a release, the EPA has broad powers to take remedial actions or order further monitoring or investigation of the situation. See id. § 9604.

         In 2008 the EPA issued a final rule that generally exempts farms from CERCLA and EPCRA reporting requirements for air releases from animal waste. ("Air releases" refer only to emissions made into the air, rather than into water or soil.) The EPA reasoned that those "reports are unnecessary because, in most cases, a federal response is impractical and unlikely." CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms, 73 Fed. Reg. 76, 948, 76, 956/1 (Dec. 18, 2008) ("Final Rule"). In a change from the proposed rule, the EPA somewhat limited the exemption. Commenters had expressed a "desire to receive information regarding releases from large concentrated animal feeding operations, " known as "CAFOs, " which generally house thousands or even tens of thousands of animals. In response, the EPA retained the reporting requirement for CAFOs under EPCRA, which, as we'll see in more detail later, has a public-disclosure requirement that's missing from the relevant CERCLA provisions. See id. at 76, 950/2; see also id. at 76, 952/1-2, 76, 953/3; (CAFO thresholds).

         A number of environmental groups objected, claiming that the Final Rule ran afoul of the underlying statutes (and was therefore outside the EPA's delegated authority). The dispute brings into play our longtime recognition that agencies have "implied de minimis authority to create even certain categorical exceptions to a statute 'when the burdens of regulation yield a gain of trivial or no value.'" Public Citizen v. FTC, 869 F.2d 1541, 1556 (D.C. Cir. 1989) (quoting Alabama Power v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979)). Although the EPA never explicitly invokes the de minimis exception, its analysis tracks the exception's logic. And intervenor U.S. Poultry and Egg Association specifically pointed to the agency's de minimis power as a reason to uphold the Final Rule. It thus poses the question whether the record adequately supports the EPA's conclusion that these animal-waste reports are truly "unnecessary." 73 Fed. Reg. at 76, 956/1. By contrast, the environmental petitioners' argument, when framed in the language of Alabama Power, is essentially that the reports "provide benefits, in the sense of furthering the regulatory objectives." 636 F.2d at 361. In light of the record, we find that those reports aren't nearly as useless as the EPA makes them out to be. (We do not address the potential questions of whether the reports' costs outweigh their benefits and whether the exact statutory language (discussed below) authorizes an exception for measures failing a cost/benefit analysis; the EPA makes no claim for such a reading of the statute.) We therefore grant Waterkeeper's petition and vacate the Final Rule.

         * * *

         Congress has long sought to ensure that federal, state, and local authorities can adequately respond when hazardous chemicals threaten public safety or the environment. CERCLA gives federal authorities (generally the EPA) broad power to investigate and respond to actual or threatened releases of hazardous substances. See 42 U.S.C. § 9604. And since the EPA can't respond to releases it doesn't know about, § 103 of CERCLA requires parties to immediately notify the National Response Center ("NRC") of any release of a hazardous substance over a threshold set by the EPA-known in regulatory speak as the "reportable quantity." See id. § 9603; Fertilizer Institute v. EPA, 935 F.2d 1303, 1306 (D.C. Cir. 1991). The NRC, which is staffed by the U.S. Coast Guard and "acts as the single [federal] point of contact for all pollution incident reporting, " 40 C.F.R. ยง 300.125(a), must "convey the notification expeditiously to all appropriate ...


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