Animal Law Podcast 114: The Case of the Not-So-Clean Water Act

Mariann Sullivan: I am thrilled to have you. I have to say, you know, this case is this kind of a tough one to be talking about right now, but it's really important for us to like talk about this case in particular, and also where we're headed, with environmental law as it relates to factory farming, which has always been a problem.

And one of the problems has, or among the problems, have always been the Clean Water Act, which I think in most people's minds is one of the most important statutes in the fight against factory farming, but has frequently fallen short. So can we just start with a little background on the statute and how it relates to CAFOs, which of course are Concentrated Animal Feeding Operations.

I just told you before we started not to use acronyms, so I'll try to avoid them myself. And actually, how it defines what a CAFO is.

Emily Miller: Yes, the Clean Water Act is the country's really premier water pollution control law and the way that it's supposed to work is that it prohibits industrial polluters, also known as point source dischargers from discharging water pollution to waters of the United States, unless those discharges are authorized by a permit. And that Clean Water Act permit is supposed to include strict pollution controls that will effectively reduce, eventually eliminate, pollution from the facility. That is the goal, at least. In the law, Congress specifically defined point source to include concentrated animal feeding operations. So, you know, the classic thought of a point source is something like a pipe that is flowing straight from a factory or from a slaughterhouse right into a river or a stream. And, and that's, that's also a point source. But, concentrated animal feeding operations or factory farms discharge to waterways, they just do it in more varied and less intuitive ways. So Congress, knowing that these facilities are major polluters, present a danger to waterways and drinking water sources, specifically put them into the statute themselves as point source discharges. And that was the only industrial class of dischargers that Congress called out in that way in the statute.

So there is a crystal clear mandate to regulate factory farm discharges in particular through this permit program.

Mariann Sullivan: Yeah, you know, I knew that, that they are specifically called out. I had no idea that they were the only specific type of facility that were called out in that way. It is so clear that this statute was meant to regulate CAFOs and what they do at factory farms and what they do to the water.

But, you know, as we said in the beginning, that isn't, as so often happens with these very lovely statutes that Congress passes and then they end up getting watered down, so to speak. All right. So what are the major pollutants? I mean, we all know that what the major pollutant is, it's poop, but can you break it down a little? The major pollutants and their impact on America's waterways? How bad is it?

Emily Miller: Yeah. So these operations and keep in mind, they are confining thousands up to millions of animals. So they are generating massive quantities of waste. Millions of pounds of waste. And what industry wants to pass this waste off as is just simply manure. And manure is a beneficial fertilizer. So there's really nothing to be concerned about.

That is very far from the truth. There is manure, like you've said, in this waste, but the waste contains some very dangerous and harmful pollutants, like nutrients, like nitrogen and phosphorus, which cause these toxic algal blooms in waterways, which can be life threatening when it's found in drinking water, causes something called blue baby syndrome, which can be fatal to infants. Also very dangerous for nursing mothers.

So there are these nutrients. There are also a huge amount of pathogens, E. coli, salmonella, giardia, up to, I think, 90 others in the waste. There is all of the antibiotics and artificial growth hormones that are fed to animals. Most of that gets passed through into their waste and then ends up in waterways. Heavy metals, pesticides, like kind of the list is a long one. So this is really a toxic soup of pollutants. And the way that it is generally handled on these operations is that it's stored, for some livestock sectors like dairy and swine, it is mostly liquefied and stored in these giant, open cesspools.

You know, think football field size cesspools that are many feet deep, that the industry euphemistically calls lagoons. And then ultimately, that is applied, it's sprayed onto fields neighboring the operation. And for poultry industry, it's similar, except that is generally kept more in a dry form and stockpiled in massive mountains of waste before it is eventually applied to land.

So this is just a giant pollution source waiting to run off into waterways, to leach into groundwater, where it impacts drinking water sources, where it hurts aquatic ecosystems, and where it makes water bodies unfit for human use, whether that be drinking water or simple recreation, just contact with the water becomes dangerous when it's polluted with CAFO contaminants.

Mariann Sullivan: Doesn't it seem amazing that, like, you watch old movies or something, or old westerns, like, people drink out of streams. Can you even imagine drinking out of a stream nowadays? It's just so sad. Of course, animals still do it all the time. So it's probably not really great for them, but... all right, so this case is not about a specific factory farm violating some specific rule.

It's about the denial of this petition that sought to do something about the entire way the statute is enforced. Is that right?

Emily Miller: That's right, yeah, our work on this front is really a case study in the Environmental Protection Agency refusing to treat the entire factory farm industry like every other industrial water polluter as the Clean Water Act demands.

Mariann Sullivan: That was actually something I had wanted to ask as well, though, I was thinking of it later in the program, but the way the statute is enforced vis a vis Factory Farms or CAFOs, as they call them, it's totally different, apparently. I mean, I figured it was sort of different because it's an industry that always gets a pass, but it's a lot different, right?

I mean, the statute is not necessarily poorly enforced in general.

Emily Miller: In general, no, but with regard to CAFOs, yes. One of the most glaring problems with the way EPA enforces the Clean Water Act or really fails to enforce the Clean Water Act against factory farms is that by and large, the vast majority of factory farms discharge waste and therefore would need to have a Clean Water Act permit, otherwise be in violation of the law. Yet, that is not the case. So by EPA's own estimate, 75 percent of factory farms discharge pollution and therefore need a permit in order to operate. Yet, less than 30 percent of factory farms actually hold a permit. So, if you do the math out, that translates to nearly 10, 000 factory farms across the country illegally discharging pollution in violation of federal law.

And that has been a problem for decades that EPA has been aware of. They made some attempts to try to tackle that problem in 2003 and 2008 through regulatory updates to their CAFO program, but those courts sort of knocked the agency's ability to do the plan that it wanted to do to regulate the industry and since then EPA has kind of given up. And they have allowed this situation where the majority of factory farms are just evading the Clean Water Act altogether and getting away with it, which is one of the primary problems that we presented to EPA in our petition to finally overhaul these factory farm regulations in a way that actually effectuates the Clean Water Act as EPA is obligated to do.

Mariann Sullivan: So you wanted to both fix the requirements, which are too lax, for the CAFOs that do have these permits, but perhaps even more importantly clean up, so to speak, the whole problem that there are all these facilities that are supposed to have permits but don't.

Emily Miller: That's right, yes, so we presented kind of those two major flaws with EPA's regulatory program to them. That one, the vast majority of CAFOs discharge yet evade permit coverage, and two, even the small minority of CAFOs or factory farms that do have permits, those permits are not actually effective at controlling factory farm pollution and therefore those standards need to be updated as well.

And we laid out a road map of regulatory revisions EPA has the authority to make, to address those two major deficiencies.

Mariann Sullivan: And this petition was brought, by a lot of organizations, a long time ago, right?

Emily Miller: It was, yes, Food and Water Watch led, I believe it was 33 other organizations, in filing this petition back in 2017. And EPA sat on it for years and years without doing a single thing, to the point where we were forced to sue EPA to even get a response to the petition at all. And through that lawsuit, we at least secured EPA's commitment that they would answer the petition by August of 2023, which they did, and in their answer they denied both the general request to do something, to update their regulations in some way to comply with the Clean Water Act, as well as every single specific recommendation made in the petition.

Mariann Sullivan: Once you got this very disappointing decision, then you decided to bring the lawsuit that we're talking about today, is that right?

Emily Miller: Yes, and part of the wait and the problem with EPA taking so long to even respond is that we were really in a limbo. We couldn't do much about that. We couldn't challenge, we had nothing to challenge, I guess, in terms of a final agency action because they weren't making one. So once we finally got it and it was a denial, we brought that denial straight to the Ninth Circuit Court of Appeals for a review.

Mariann Sullivan: Yeah, and can you just explain that? I mean, it's been explained to me before, but it always confuses me, like, how you skip district court in these cases?

It's a special provisions in the Clean Water Act, right, that changed the review procedures?

Emily Miller: That's right, yes. So, Clean Water Act has Section 509, which outlines a number of circumstances in which you can bring your case before the relevant Federal Circuit Court of Appeals directly, and sort of bypass the District Court. So situations where you're challenging a decision related to Affluent Limitation Guidelines, so the pollution control standards applicable to permitted operations, or situations where you are challenging decisions related to underlying permit regulations.

Those are situations in which you can go straight to a circuit court, which is what we did.

Mariann Sullivan: Okay, I see. So it's kind of more like we were talking in the beginning about how this isn't a case about an individual factory farm that's being sued, it's kind of an overall case about the way that the agency works, and those are, broadly speaking, the kind of cases that you might be able to bring directly to the appellate court.

Emily Miller: In addition to some specific cases as well, you could bring a specific permit that you are challenging to a circuit court of appeals.

But yes, in this case where you're challenging sort of a regulatory program at large, you can go directly to a circuit court as well.

Mariann Sullivan: Do you know why that is? I mean, it just seems so unusual that they would set up this entirely different appellate procedure just for this statute. I mean, I guess it applies to some other statutes as well. I just wondered what was the thinking behind it. I mean, normally the idea is, I think, cases go to the district court where the facts can be a little bit more developed and the parties can sort out their arguments.

You know, it's a process. Why did they decide it wasn't necessary here? That's probably not a fair question. I mean,

Emily Miller: I don't have a great answer for you. I don't know the reasoning behind it. I do know that there are other environmental laws in particular, which have similar provisions where they assign exclusive jurisdiction on certain issues to circuit courts, but I'm not entirely positive as to why and how they choose which.

Mariann Sullivan: It was probably just in fashion in the 70s or something. Somebody thought it was a good idea when all of these statutes were passed.

So you're in the Ninth Circuit, and your cause of action is not un I mean, we in animal law, or who study animal law or think about animal law, are always very jealous of the Environmental Statutes because they have citizen suit provisions, but your cause of action here wasn't under the Clean Water Act citizen suit provision, right?

It was under the Administrative Procedure Act because you were suing the government. Can you just explain that a little bit? Like, what that cause of action requires and of course how it relates to the standard of review.

Emily Miller: Sure, so yes, we were challenging EPA's denial of our petition under the Administrative Procedure Act, which allows courts to review final agency actions and reverse or vacate those actions where they are arbitrary, capricious, or not in accordance with law. So that was the standard we were working under.

And specifically with regard to rulemaking petition denials, courts afford that kind of an extra level of deference, even within the deferential arbitrary, and capricious standard.

Mariann Sullivan: Was standing an issue here?

Emily Miller: It was not, no. We briefed it, but no one argued against it. Weclearly had standing. We were the the groups that filed the underlying petition, a subset of those groups, 13 of those groups ended up bringing this lawsuit and many of us had members that were directly impacted by factory farm water pollution and EPA's terrible regulation of the industry.

So, it was a very clear question.

Mariann Sullivan: Yeah, it would not be hard. Also when you look at a lot of animal law cases, standing is always such a huge issue, but obviously here humans are being injured. That's pretty much what you're talking about. All right. So let's go a little bit back to these arguments.

You kind of summarized them, but let's get a little deeper into them. One of them involves what you refer to as the lax requirements for CAFOs with NPDES permits. Can you just expand a little bit more on how those requirements are too lax and maybe start out by explaining what a NPDES permit is.

Emily Miller: Sure, so NPDES is an acronym that stands for National Pollutant Discharge Elimination System. And it is the permit system that Congress envisioned as the main feature of the Clean Water Act that would control and reduce pollution across the country. These permits are required of factory farms that discharge into waterways.

And, currently, they operate sort of by setting effluent limitations that are guided by technology based standards, so what is technically achievable, in terms of waste reduction or pollution reduction. And, generally, most often they're expressed in terms of numeric limits. As in, like, this factory can only discharge X amount of this pollutant from its pipe.

But the Clean Water Act has a provision that says, well, sometimes numeric limits are infeasible. And in that case, you can have narrative standards and you can have best management practices, instead of these numeric limitations, and that's what is happening in the case of factory farms.

So what EPA has done, it says that for factory farms that have these permits, they are prohibited from discharging from their production areas, save for one limited exception that has to do with extreme weather events that cause overflows of their lagoon systems. And when it comes to their land application areas, factory farms have to minimize nutrient runoff.

Mariann Sullivan: Already, like...

Emily Miller: a vague and unworkable standard. I mean, what does that even mean? Minimize.

Mariann Sullivan: Less than something else, that's clear.

Emily Miller: And thethat's

that's

Mariann Sullivan: clear

Emily Miller: And the primary way that EPA envisions that factory farms are going to do that is through implementing what they call nutrient management plans. So these plans are supposed to govern land application practices, manure management practices generally, and they operate under this fiction that, well, if a CAFO applies waste to a field at what they call agronomic rates, that will minimize pollution runoff. But agronomic application of waste has really nothing to do with water quality protection, and that's something EPA admits.

Mariann Sullivan: Can you, I mean, what is an agronomic standard?

Emily Miller: Yeah, so it's basically based on looking at crops and kind of in the abstract book values of what that crop is able to uptake in terms of nutrients.

Mariann Sullivan: Okay, so like what a farmer would say, How much manure can I put on here to make my crops grow without paying any attention to what that does to the water?

Emily Miller: Correct and it also doesn't take into account that CAFO waste has a whole host of pollutants in it besides nitrogen and phosphorus, which are not useful to plants at all and which are not absorbed by plants,

Mariann Sullivan: Hopefully.

Emily Miller: Right, and CAFO manure waste is not, you know, like synthetic fertilizer, which they can design to be exactly appropriate for a certain plant's needs.

So generally they choose one nutrient, either phosphorus or nitrogen, it's usually nitrogen, to be kind of the limiting nutrient. So they say we apply enough nitrogen for the crop, that could result in three, four times the amount of phosphorus the crop needs getting applied. And then that is not retained, it runs off.

And nutrient management planning is an intensely complicated process and it relies on all sorts of changing variables. Not only what a plant can uptake in terms of nutrients, but you know, you have to consider like the soil saturation and how much water you are delivering to the crop and how that affects nutrient uptake.

All of these things, and they have been proven not to work. They don't minimize pollution and EPA has even admitted that even if CAFOs were to perfectly comply with these plans, their standards are insufficient because they focus on maximizing crop growth rather than on preventing excess nutrient runoff.

Mariann Sullivan: Yeah, I think I've never really understood that before. That's really interesting that, the plants, I mean I've always thought there had to be, I guess I didn't really think it through, but there had to be some kind of self limiting amount of manure they could put on a crop because it would be bad for the crop.

But what you're saying is that the plants are actually, they just won't take it up.

Emily Miller: The plant will take what it needs and leave everything else.

Mariann Sullivan: So there's no self limiting factor on how much manure they can apply. I mean, I'm sure it's more complicated than that, but I've just never understood that piece of it, that at least in some instances, in many instances, they can put on as much as they want.

They don't have to worry about the crop.

Emily Miller: They are guided by, usually, agricultural extensions will put out recommended rates, and those are what they follow, but you're right. They have nothing to do with water quality in any way. And they are not designed or calculated to produce water quality benefits or reduce runoff in any meaningful way.

Yet that is the primary pollution control technology that EPA relies on in its regulations and has done so for decades. So that was one of the

Mariann Sullivan: Yeah. And one would imagine in the past decades, there's been some advance in the science,

Emily Miller: There has, EPA has funded studies on nutrient management planning which show that only a hyper conservative plan, which means really only applying a fraction of the nutrients a crop needs to a field, actually results in minimized pollution runoff. And those are not the type of plans that EPA sanctions.

Most states rely on USDA's, NRCS, National Resource Conservation Services, guidance on nutrient management planning.

And those are all focused on agricultural yields, which is not the point of the Clean Water Act. The point of the Clean Water Act is not to make sure that factory farms can have the best crop yield. It's to protect our waters and our communities that rely on those waters. And, and this technology, if it can be called that, is not sufficient, and it's something that EPA has directly admitted.

Mariann Sullivan: All right, I understand a lot more about that than I did before this, but the other thing, the other piece of the argument that you had laid out earlier is that the permitting system itself is inadequate, because aside from the fact that once you have a permit you're not properly regulated, most of them don't have permits.

And according to your brief, the EPA has basically acknowledged in many places that it's just not doing its job in finding who needs to be regulated and making sure they're regulated. Can you give us a few examples of that? I mean, I know you can't just quote them, but like the kind of things that they have said that basically admit that there are gazillions of CAFOs out there that should be permitted and aren't.

Emily Miller: Yes, I can think of many examples, but I'll start back in 2003, when EPA was working on a CAFO rule, it made an estimate that based on their standard operational profiles and how they operate, 75 percent of factory farms discharge point source pollution. EPA has NPDES permitting records which show that less than 30 percent of factory farms have permits.

That leaves 10, 000 or nearly 10,000 factory farms estimated to be discharging waste that do not have those permits. In 2022, EPA released a report that was focused on legal tools it could use to advance environmental justice, and it had a section about factory farms in that report, and in that, EPA acknowledged that many CAFOs discharge, and do so without the required permit, and it attributed that to its regulations.

That its regulations make it difficult for EPA to compel the necessary permit coverage, limit the discharge of pollutants in certain circumstances, and enforce requirements even when discharges had been established. And that is nearly a direct quote from the report, in EPA's own words. So in other words, what EPA is saying is that not only does this problem persist in spite of EPA's regulatory efforts, it's persisting because of EPA's regulations impeding the agency's ability to effectuate the Clean Water Act.

And, to me, that is a no brainer that if you understand, agency, that your regulations make it impossible for you to effectuate the Clean Water Act with regard to this industry, then those regulations must be updated. You have a legal and statutory duty to update those regulations in light of the obvious need.

And here EPA refused to do that. And what they suggested instead were these kind of study plans. In the denial of the petition, they said, Well, We aren't saying we'll never update our rules. Maybe we will in the future, but for now we need more information really even to reach the threshold question.

So we're gonna conduct a study, we're gonna form a stakeholder committee, and those things will take a number of years. Maybe at the end of that we'll decide regulatory updates are warranted, but we're going to try to see if we can fix the program through better implementation and enforcement in the meantime.

Mariann Sullivan: So what's going on here? I mean, there are a lot of powerful industries that are affected by the Clean Water Act. What do you think is going on here that this industry gets such an unbelievable pass?

Emily Miller: That's a good question, and it's really hard to wrap your head around since the Clean Water Act is so clear and specific about factory farms.

Mariann Sullivan: I mean, they put the word in there, like they actually specifically included them. And they're the ones that get off.

Emily Miller: Yes, I do think that the agricultural lobby is especially powerful, and that EPA has always been gun shy about regulating agriculture, and wanting to punt things to USDA, instead of doing their job.

I think EPA also made attempts in the past to fix some of these problems and have more comprehensive permitting of the industry and were foiled in court. There was a second circuit court decision called Waterkeeper Alliance v. EPA, which basically prohibited EPA from requiring all factory farms to get a Clean Water Act permit.

EPA had issued this rule back in 2003, which said, Any factory farm with the potential to discharge has to apply for a permit unless they can show us that there is no potential of their discharge. And what the court said was that, well, the Clean Water Act only regulates actual discharges, so you can only require a permit of an operation that is actually discharging.

And EPA tried to go back to the drawing board and kind of iterate on that original rule, They didn't do the greatest job, and that also got struck down in a later case, in 2011, called National Pork Producers Council by the 5th Circuit.

Mariann Sullivan: the, Fifth Circuit case? Yeah, I have heard of that. It's like, kind of the worst of the worst cases

Emily Miller: Yeah, I mean, they tried to change their rule to say, okay, we won't require factory farms with the potential to discharge to get permits, but we will require factory farms that do either discharge or propose to discharge to get a permit. This was just confusing language that they didn't need to put in there, but they meant that any CAFO that is actually discharging presently or will actually discharge requires a permit. And the 5th Circuit said, well, no, it only is at the exact moment of discharge that this operation needs a permit, and you can't require one any sooner than that. So what has really happened is this catch 22 situation where a factory farm has to be caught in the act of discharging or admit that they are discharging and affirmatively apply for a permit. Otherwise kind of EPA has no, no power over them. Um,

Mariann Sullivan: Right. And, and they can't be caught in the act because I assume that, I mean, they're private property. The EPA I guess can't force them to, like, be subject to inspections to see whether they're discharging.

Emily Miller: They can, regulators can inspect these facilities, but they often, you know, they'll say, okay, we have a yearly inspection. This is the date. You know, so it's.

Mariann Sullivan: This sounds so much like the Animal Welfare Act, except that they can't get in.

Emily Miller: Yeah.

I mean, and that's even if the regulators know at all that these operations are existing. In some states, that information is not shared with the environmental agency that is administering the Clean Water Act. So they don't even know what they're looking for half the time. And even if it's reported by a citizen, those reports are either not followed up on, they don't have the resources to go out there. By the time they do, the discharge is no longer obvious, so it is a very difficult situation.

But there are things that EPA can do that we pointed to in our petition and in our lawsuit to remedy this, which they denied. And with, with really out any reasonable explanation as to why they wouldn't move forward with those, proposals.

Mariann Sullivan: I just wanted to go back for a second, because you mentioned the environmental justice implications of what's going on here. Could you just go into that a little bit more? I mean, I imagine a lot of our listeners have seen The Smell of Money, and that's kind of the most visceral demonstration of the environmental justice implications I've seen.

But, you know, not everybody is aware of how uneven the harms are of this industry.

Emily Miller: Yeah, so factory farming is a huge environmental injustice. And by that, I mean that the harmful impacts, the water impacts, the air impacts, the general quality of life impacts are most often and disproportionately felt by communities of color, low income communities, isolated rural communities that don't necessarily have the political power to get regulators to do their job or to push these operations out of their neighborhoods.

So, you know, factory farms have over time gotten more and more concentrated in certain watersheds and certain regions of the country and you then have a situation where these communities are flanked on all sides by these giant polluting operations that they have no say in, that they can't use the law to protect themselves against because states have overwhelmingly passed these right to farm laws, which prevent communities from bringing nuisance actions against factory farms. And for which environmental regulators, both at the state and federal level, don't do anything about. So they are really stuck with this water pollution that impacts their water. A lot of these communities are on private drinking wells, don't have public water systems that are cleaning the contaminants out of their water.

So are just drinking CAFO polluted waters. They suffer from the air pollution impacts of this industry. Just the general, unpleasantness about having a giant smelly cesspool next to your operation that brings thousands of flies to your house. You can't open your windows. You can't dry your laundry out on a line because it will reek when you bring it back.

It's just a, a horrible blight on these communities, that the federal government, at least, they say they're committed, at this point, committed to environmental justice and advancing environmental justice, but they really have failed on that job when it comes to this industry in particular.

Mariann Sullivan: You know, most of your argument addressed these, these general policies, but you kind of alluded to, I think, before, but in your petition, you really went into detail on storm water discharge regulations. Can you just explain what these are and why they're such a problem and how you would have liked to have had them changed?

Emily Miller: Yes, one of the things that we've identified in the petition, and one of the main arguments that we brought to the court in our lawsuit, was focused on the agricultural stormwater exemption. So, taking a step back, back to the statute, the Clean Water Act, I said that it defines point source to include concentrated animal feeding operations. At the same time, it says the term point source does not include agricultural stormwater discharges. And leaves it there. It doesn't define the term, it doesn't provide any guidance for how that might or might not apply to factory farms. EPA has filled that gap with a rule basically saying that, Well, as long as a CAFO is applying waste to its fields, in accordance with the Nutrient Management Plan, then any precipitation related runoff from those fields is agricultural stormwater and is expressly exempt from any Clean Water Act requirement. And this is a rule that applies both to CAFOs that do have Clean Water Act permits as well as unpermitted operations. This is just a very expansive interpretation of the law that really doesn't accord with the underlying statutory or regulatory history behind the agricultural stormwater exemption, which was something that was later added in 1987 to the act. The regulatory history shows that, so, there was this definition of point source. It included CAFOs, it included things like direct conveyances, pipes, ditches, that kind of thing. EPA then, in the 70s, tried through rulemaking to carve out an exemption for small agricultural and silvicultural sources, which it thought it would be just too burdensome to try to permit every single orchard or pasture or farm across the country. But it explicitly in those rulemaking attempts said, But this exclusion does not apply to CAFOs because Congress clearly told us CAFOs should be permitted and their discharges and pollution should be controlled through the permitting program. Those rulemaking attempts were vacated by courts because courts said you can't create an exemption that does not exist in the statute. EPA repeatedly, ignoring these orders, tried to issue this rule numerous times. Until the point at which, in 1987, Congress said, Okay, enough is enough, we're gonna add an amendment to the statute which says, Agricultural stormwater discharges are not point sources. And the way that EPA understood it at the time, in which they argued to the D. C. Circuit in order to moot an ongoing lawsuit, was to say, Congress clearly understood this controversy that has been going on, and this amendment is so consonant with our long standing attempts to exempt small farms from NPDES permitting, that it can be taken as congressional ratification and acceptance of the agency's view, which is that only these tiny agricultural sources should be exempted from the Clean Water Act. But EPA always understood that CAFOs were not part of that, yet it, in 2003, said, Well, actually, CAFOs can benefit from the exemption. So that's frustrating. And that exemption was upheld in a circuit, a Second Circuit case. At the time, uh, based on EPA's reasoning. But, If you look at the 20 years that this exemption has been operating in practice, it is very obvious that it is a huge regulatory loophole that is allowing all of this permit evasion to happen because it essentially provides an easy out to explain away any evidence of unpermitted discharges. And the structure of the rule makes it really impossible for a regulator to confirm that the discharge actually meets the agricultural stormwater exemption criteria.

Because the way the rule is written, an unpermitted CAFO, all it needs to do is have on site documentation of its nutrient management plan and if it's asked for by a state or EPA, then they can give it to them, but otherwise they don't have to provide any documentation or confirmation. They don't have to show that the nutrient management plan they have is actually meeting the requirements or anything like that.

They don't have to document when agricultural stormwater discharges happen. So trying to go in after the fact and say, Oh, well, I'm seeing CAFO water quality impacts near your operation. A CAFO can just say, well, it rained yesterday, and that's that. And since the stormwater rule was passed, there has been a drop in permitting, uh, despite EPA's efforts to really rigorously enforce its current program.

Even though there are more CAFOs now than there were back in 2003, I think 3, 000 more CAFOs, by EPA's estimate, overall, there is less permitting of the industry, and that can be attributed to agricultural stormwater. It's something EPA even anticipated might happen unless all of these operations had permits, which is why it tried to pass this universal permitting requirement, this duty to apply back in 2003, and said even if a factory farm's only discharge would qualify for agricultural stormwater exemption, It still needs a permit because that is the only way to ensure that point source discharges, non agricultural stormwater, is captured.

Yet, here we are, we don't have that universal permitting requirement anymore, and yet the agricultural stormwater exemption has stayed in place, and one of, sorry, I'm getting a little worked up because it is just so frustrating, uh, a situation,

Mariann Sullivan: It's insane.

Emily Miller: It's causing this permit evasion, underpermitting crisis that we're seeing. And not only that, but the original underlying justification that EPA made back in 2003 for the rule, is based on these factual assumptions that we now know are not accurate. EPA said in its rationale for the rule, which was upheld by the second circuit, it's reasonable to exempt factory farms' land application related wet weather discharges when that waste has been applied in accordance with a nutrient management plan because nutrient management plans will minimize nutrient runoff.

And therefore any excess can just be written off as stormwater. But now EPA is on record saying that is not the case. These plans do not minimize runoff to the extent they once thought, so therefore like the whole factual premise of the rule has evaporated. And in that situation, EPA has a duty under the Administrative Procedure Act to respond to new information and at the very least explain why, in light of this evolving situation and its own changed understanding of the problem, its stormwater exemption rule is okay, remains adequate, and they just did not do that at all in, in the, the denial. They were kind of silent on it. They said we're really not concerned with the nutrient management plans and their lack of rigor. We will just focus on trying to improve implementation and enforcement of this rule, which we think is the main problem.

Mariann Sullivan: It sounds like through this long convoluted story, that there certainly have been moments where the EPA was trying to do the right thing and got squelched by the courts. And then there are other times, now being one of them, that it doesn't really feel that they are trying to do the right thing.

They're trying to avoid the problem. Do you feel like there's, like, do you know enough about the interior culture there to know whether there are disagreements or disappointments on the part of some people about the way this is gone, or is it just opaque from the outside?

Emily Miller: I think, I hope, there are career EPA staffers that understand the problem. And I think there are. And understand that they've really fallen down on their job. I think they have been stymied by political realities and the powerful industry and the political appointees that are making decisions, about this industry and how it's regulated, which is unfortunate.

Mariann Sullivan: A central issue seemed to be whether this case and the EPA's decision, which you told us about, basically to acknowledge there's a problem and tell us they'll think about it and maybe they'll do something. So, the case that you felt it was governed by and should have made it go the other way was Massachusetts versus EPA, which is kind of a landmark case in environmental law.

Can you tell us a bit about that case and why you believed it was central here and are so disappointed that they just said it wasn't?

Emily Miller: Yeah, so Massachusetts vs. EPA is a seminal Supreme Court case from 2007, which was also reviewing a denial of a rulemaking petition. In that case, it was focused on a Clean Air Act petition that was submitted by a number of organizations and a number of states that was asking EPA to regulate greenhouse gases under the Clean Air Act and specifically to make an endangerment finding that would allow it to then regulate greenhouse gas more forcefully. And EPA in that case said, well we don't think we have the statutory authority to regulate greenhouse gases but even if we did, we wouldn't, we would choose not to because we think that we have all of these other non regulatory initiatives that we're pursuing in the fight against climate change and this rulemaking that you're asking us to do would be an inefficient use of our resources, and not really address the problem in a comprehensive way. The court in that case said, well, you're wrong on the statutory authority question. You clearly have statutory authority to do this. And two, your alternative argument, which even if you do have the authority, you're not going to is unreasonable because the non regulatory plan that they had put forward that they were pursuing, et cetera, was just not a reasonable basis to refuse to make the endangerment finding in the first place. And this case has a lot of similarities. I mean, EPA is saying, well, I mean, they're not saying we don't have statutory authority, they're kind of saying the opposite. They know they have authority, but they're saying, well, we are wanting to study the problem and maybe pursue a more comprehensive evaluation, and you know, we appreciate that some of your requests are clearly beneficial and discreet, but we don't want to take this problem piecemeal, we want to do it holistically. And what you're asking us to do, would be sort of a suck of our resources away from the non regulatory effort we want to be focused on.

So, Mass v EPA clearly applies here. That's not a viable excuse.

Mariann Sullivan: Right. We want to do it a different way. And we'll do it better.

And you, you asked us the wrong way.

Emily Miller: Right, yes, you were too specific and also too general in all of your requests. Yeah, and there was another case that was really important to our arguments that was a Ninth Circuit specific case called a community voice versus EPA. And that also had to do with a rulemaking request.

This one was for updating lead based paint standards that were clearly inadequate, which EPA admitted. And EPA had actually granted a petition asking them to do it, but then sat on that for nine years or something without doing anything. And the court said, listen, whether or not you granted this petition, we're saying, based on the statute, you have a statutory duty to update regulations in light of the obvious need. And here you've admitted there's a need. So get off your behinds and do your job and update your, these regulations. And this case, this is really two cases because EPA got that direction from the court the first time and then they issued a rule afterwards saying, well, we're gonna maybe do something on this part of lead regulations, but for the majority, we don't have enough information to act, so we can't put out a regulation.

And the court again said, no, EPA, you're not allowed to do that. You can't blame significant data gaps or uncertainty, or use that as an excuse for evading your statutory duties here, you, you have to act. And again, that case is directly on point to our situation, I mean the statutory mandate of Tosca, which was the relevant statute in the Community Voice is nearly identical to what is in the Clean Water Act. And EPA admits all over the place that CAFO pollution is severe, that their regulatory program has extreme problems and they have not been able to implement it effectively, and that their regulations are to blame, and they're trying to use lack of data or lack of information as an excuse for inaction.

And that case squarely forecloses that as a rational basis for the denial, but unfortunately the court didn't even discuss a community voice at all in its opinion. This opinion, which was only six pages long, really didn't go into any of the legal arguments advanced by petitioners in the case. It was such a surface level cursory. Well, EPA says it's doing something. That seems reasonable.

Mariann Sullivan: Yeah, could you just go into it in a little bit more detail?

Emily Miller: Yeah, the opinion you mean?

Mariann Sullivan: The opinion. I've kind of been avoiding asking about it. Save, saving it for, you know, a surprise that, well, not, we're not at the end. We're not at the end, but, because there is more I want to ask you about, but the court's decision was quite disappointing.

It

Emily Miller: it was. was. So they denied our petition

Mariann Sullivan: Like, wildly disappointing. Like, usually when I have a case like this, that's a big environmental case, I sit down to introduce myself to it and read the court's decision, if there is one yet, and I'm like prepared for it to be a very complex, you know, I have to spend a lot of time. It didn't take me any time at all to read this decision.

Emily Miller: That's right. It was barely anything. It was so short, all it really said was, after summarizing the petition, it just said that, well, EPA says it has this study that it's doing, and it says it's forming a stakeholder committee, and it needs that information before it can make a determination about rulemaking, and that seems okay to us. Case closed.

They didn't take up any of the flaws in the agency's reasoning or any of the information we presented to the court about why these study plans themselves are just not gonna do it. They're really just a delay tactic. They will not address the problem or result in a Clean Water Act compliant program, because of the limited scope of this study for one, and two, the stakeholder subcommittee is entirely controlled by industry affiliated members.

Mariann Sullivan: Can you talk about the Farm, Ranch, and Rural Communities Advisory Committee? Is that what you're talking about? I had jotted down because I wanted to ask you what that was.

Emily Miller: Yes, there is already, prior to this case and EPA's petition response, there was a federal advisory committee that EPA had formed years ago, which was focused on agricultural issues, so that has existed for some time.

And that, frankly, that advisory committee is pretty hostile to regulation of agriculture. And, it is comprised, there's 51%, so majority of that committee is industry members

Mariann Sullivan: Yeah.

Emily Miller: obviously...

Mariann Sullivan: As we have seen from the recent election, all you need is 51%.

Emily Miller: So obviously they have a vested interest in deregulating the industry. And the water specific proposals and recommendations that they've put forward to EPA have all been that.

They've all been aimed at limiting EPA's authority under the Clean Water Act. Trying to encourage EPA not to regulate agricultural groundwater pollution, for instance. So, and keep in mind, this is an advisory committee, so there's nothing binding about what they recommend in the first place. But this, in response to the petition, EPA said, okay, well, under this FRRCC Committee we'll form a subcommittee which is focused specifically on animal agriculture water quality issues and we'll evaluate some of the stuff you put to us in our petition and we'll get some recommendations from this stakeholder committee that will help inform us as we decide what to do here. The problem is, first of all, I mean, this, this committee is currently happening, and thus far has been pretty dysfunctional. But putting that to one side, this subcommittee is entirely controlled by the industry parent committee, right? So any recommendations that they want to make to EPA, let's say by some miracle this committee says, we think you should, Strengthen your regulation of factory farms in such and such a way, the parent committee can take those recommendations and say, No, we don't like that. We're not going to pass that one along to EPA. Or they can just rewrite them, themselves, and pass what they want along to EPA. Which, as, you know, history has shown, is not going to be strengthen regulations. So that committee is really a red herring here. It's not a meaningful effort to advance clean water protection from this industry.

And the other part of the study plan, which is what EPA is calling a detailed CAFO study, is not going to fully address the problem either. This is a study that, EPA actually, through a different lawsuit that my organization brought against EPA, forced EPA to do this study in the first place.

They announced this back in January of 2023, and it was following a case that we brought, focused on EPA's deficient decision to keep CAFO effluent limitation guidelines as is. So EPA has a continuing obligation under the Clean Water Act to analyze these pollution control standards that are written into factory farm permits and decide whether they need to strengthen them.

They have to do this annually. And every year for the past nearly 20 years, EPA has done this review, so called review, and decided well, we don't need to do anything, so everything seems fine. But they've been working on almost no information and an incredibly deficient data set here, which is what that lawsuit focused on. It resulted in EPA saying, yeah, you know, I think you're right there, we really don't know. We really didn't do an adequate review the first time. So we'll do this detailed study. We'll collect information on what pollution control technologies are available and feasible for the industry since our last rulemaking, which was 2008, and we'll decide whether we need to update these effluent guidelines.

The problem with that is that study is focused only on permitted factory farms and the standards that they are subject to. It has nothing to do with, whatsoever, the bigger problem, which we put to EPA, which is that the majority of factory farms aren't permitted in the first place. So, you know, EPA using this industry committee for one and this narrow study for the other to say, well, this is going to solve the problem is just it's just kind of a joke. And unfortunately, the court really didn't grapple with any of those like realities in its decision

Mariann Sullivan: Mm hmm. We arranged to do this interview a while back, and it was before the election. And so, I would have imagined one of the big questions would be, How is this going to change everything? But it sounds like it's already so bad, I mean, I'm sure it can get worse. It can always get worse.

But, given the imminent change in administrations, do you see any, even weakening of what are already incredibly weak guardrails around CAFOs?

At least insofar as water is concerned.

Emily Miller: That's a good question. You know, I think it's an open question as to the fate of these study plans, um, under a new administration. Although,

Mariann Sullivan: Yeah. I know, I know, you can only, like, I mean, everybody on social media is offering predictions left and right, but none of us really know.

Emily Miller: But you know, the agency is on record telling a federal court of appeals that this is its plan and this is its reason for denying the petition and that's what the court accepted. So, you know, maybe that's something to prevent it from totally just canceling these efforts. I sincerely hope there would not be any effort to further deregulate the industry. I think that would be incredibly reckless.

And I don't see that as happening. I think the question remains as to whether they would ever decide under Trump EPA or any EPA to strengthen CAFO regulations unless they are compelled to do so by litigation. Something that we put in our briefing, which I don't think I've mentioned yet, is that EPA has never acted to strengthen a Clean Water Act regulation of this industry unless it was compelled to by litigation, or, you know, pressured to enter a settlement where it agreed to some heightened protections.

And, you know, this case is no different than that. Given that track record, I don't see EPA independently deciding to strengthen the Clean Water Act program for this industry unless facing significant pressure from advocacy groups, environmental groups, environmental justice groups, and communities to do so.

Mariann Sullivan: Yeah, I mean, in some ways it probably isn't going to change a whole lot, or one could imagine that it won't change a whole lot, which, you know, I mean, since one of the reasons for that is it's already so bad, it's not really that cheering.

Emily Miller: Yes. I mean, and I know I've painted these study plans as very bleak, but not to say that it's not important to engage in those processes. I think building those records and putting all of the information before the agency again about how much of a crisis this is across the country, how, um, their regulations are really driving the water pollution problems of this industry, will help advance this work going forward, and will help inform future advocacy and litigation and other efforts focused on forcing EPA to act.

Mariann Sullivan: And while I'm not really hoping for crises, I mean, inevitably, it seems like factory farming is going to end up causing more crises, because it's putting everybody at risk, and those are always opportunities for change, and to have people out there doing the work, plugging away at it, and being able to take advantage of those opportunities when they come, when the courts maybe are a little bit more receptive, or even the agency is a little bit more receptive, is incredibly important.

Emily Miller: Yeah. I mean, and this industry is, keep in mind, only continuing to grow and grow and grow.

Mariann Sullivan: We are turning into the factory farm for the world.

Emily Miller: Yes, without a doubt, and the water pollution is just getting worse and worse. And we, Food and Water Watch put out a recent analysis of USDA's 2022 agricultural census, where we found that at this point now, um, 1. 7 billion animals are raised in the U. S. on factory farms, collectively producing a total of something like 940 billion pounds of waste every year. That's double the amount of sewage that is generated by the entire U. S. population. So this is just a huge source of unregulated pollution, and it is already being felt by communities across the country and it will catch up to EPA eventually for them not doing their their job.

Mariann Sullivan: Yeah. So, before I let you go, that was by the way, a magnificent, I mean, I interview a lot of lawyers about a lot of cases, you really laid it out very, very clearly and it's complex stuff, but just tell us a little bit more about Food and Water Watch and where people can stay on top of the work you do.

Emily Miller: Yeah, happy to. So Food and Water Watch, we are a national advocacy organization that is focused on addressing the most pressing food, water, and climate issues of our day. And specifically focused on fighting some of the most powerful economic interests and corporate takeover that is hurting our food system, our water resources, our air, our climate.

And we're headquartered in DC, but we work all over the country. We have a big team of on the ground organizers, of researchers, of policy folks, of lawyers. and we work together to advance solutions to some of these problems, including the problem of factory farms, through litigation, through legislative work, through raising public awareness.

You can follow along with our legal work and our other work at our website, foodandwaterwatch. org. We're also on Facebook and Instagram and TikTok and X, all those social media channels. Yep, Yep.

But factory farms has been one of our priority issues for many years, and we have done a lot of litigation under the Clean Water Act, but also in other arenas and engaging with agencies on holding this industry accountable for their polluting impacts and also, you know, their impacts on quality of life and communities and workers, generally, so.

Mariann Sullivan: Well, you're doing great work and I know it can be very, very frustrating work, but it really is heroic. So thanks so much, Emily. Thanks for joining us today.

Emily Miller: Thank you, Mariann. ​