Court Rules CAFO Permits Not Authorized by CWA

EPA overstepped authority by requiring permits on assumption of future discharge.

Published on: May 9, 2011

The judges of the U.S. Court of Appeals for the Fifth Circuit have ruled that the Clean Water Act did not give the Environmental Protection Agency the authority to require Concentrated Animal Feeding Operations to obtain discharge permits on the presumption they would discharge pollution to the waters of the state. The National Pork Producers Council called the decision a major victory. Since 2008, the EPA has required all animal farms that qualified as CAFOs to get permits.

"I don't know if it changes the fact that farmers won't apply for permits, I don't think they were going to anyway," said Michael Formica, the pork producers' chief environmental counsel. "Having a permit does not improve the environment. If you have a permit, you're not allowed to discharge. If you don't have one, you're not allowed to discharge."

The EPA's assumption that a farm with no record of discharges would violate the law in the future was, in the judges' words, an attempt by EPA to create from whole cloth new liability provisions. The CWA simply does not authorize this type of supplementation to its comprehensive liability scheme.

The court declared the farms only need permits if they actually discharged, which is a violation of the Clean Water Act. The likelihood that they would discharge was not enough to trigger the permitting process, which farmers find cumbersome and expensive. The ruling is only binding for now in the Fifth Circuit, which covers Louisiana, Mississippi and Texas, so there remain questions for other areas.

States can also choose to enforce their own clean water laws or CAFO laws and override the federal statute if their environmental protections are stronger. Such was the case in Michigan, where the courts decided to uphold Michigan's law on CAFOs. That law says farms that propose to discharge must file for permits.

"The Clean Water Act provides a floor that they can't go below, but the states can always be more strict," said Timothy Lundgren, a Grand Rapids attorney who represents farmers and food processors in the state. "In Michigan, the courts have said, 'we're going to uphold Michigan's law, because it's broader.'"

Lundgren said the proposed discharge standard never struck him as particularly fair, because "we don't treat other industries that way."