Iowa Citizens for Community Improvement, Humane Society of the United States, Clean Wisconsin and other environmental groups requested EPA in 2011 to "find that ammonia gas pollution [from CAFOs] endangers the public health and welfare; designate ammonia as a 'criteria pollutant' under the Clean Air Act; and establish National Ambient Air Quality Standards for ammonia."

This petition was a subject in this space on May 2, 2011. The petition alleged among other issues that ammonia emissions when increased at a county level suggested more infant deaths.  ICCI and other environmental groups declared in their petition to EPA that "Given the robustness of the data set, this demonstrates a 'statistically significant' correlation between livestock [ammonia emissions] and infant death."

Environmental petitioners asked EPA to regulate ammonia emissions from CAFOs pursuant to the  CAA.  Fast forward to January 28, 2015. HSUS and ICCI, among others, filed a lawsuit in U.S. District Court in Washington, D.C. HSUS and ICCI asked the Court to declare that EPA had not responded to the environmental petition "…within a reasonable time…".  The Court was asked to compel EPA to respond within 90 days and further claimed EPA's delay was a violation of the Administrative Procedure Act.

EPA said it was not required to respond to the ICCI and HSUS petition. It won!  For the time being, this is a small victory for CAFOs in the U.S.  But given the Court's written opinion, the victory may be temporary.

As noted, the plaintiffs declared that EPA failed to respond to the 2011 petition in a timely manner.  EPA, using a procedural argument, claimed that it had not "unreasonably delayed" responding to the 2011 petition requesting regulation of ammonia emissions from CAFOs.  

EPA used an interesting argument claiming the environmental groups should have sued under the CAA, which requires a 180-day notice before filing suit. EPA and the Court made clear that if another statute provides a remedy for a plaintiff, it must be used before using the APA. EPA claimed the citizen suit provision of the CAA waives sovereign immunity for claims where EPA may have unreasonably delayed taking action.

EPA simply said to the environmental groups, you did not read the statutes closely and brought your case using an incorrect statute for jurisdiction. So EPA defeated the environmental groups on a simple reading of the CAA which expressly requires that any party bringing a claim based on EPA's alleged unreasonable delay must sue under the CAA and must give EPA 180 days notice prior to filing suit.

The Court spends several pages discussing amendments to the 1990 CAA. The Court points out to the environmental petitioners that Congress clearly wanted district courts of the United States to have jurisdiction to compel EPA action if it is unreasonably delayed. The reason this victory may be temporary is that the Court points out, "This [decision] does not mean plaintiffs' claim will never be presented to a court." Apparently the environmental plaintiffs stated in a Court filing they will "file a 180-day notice letter" should the Court agree with EPA and dismiss the HSUS-ICCI complaint.

The district court judge concedes in the opinion that EPA has a duty to respond in a timely manner. The Court merely said the wrong vehicle had been used to bring a lawsuit. According to the Court decision, EPA has moved to dismiss two cases. This decision applies to only one lawsuit, and the ruling this past week applies only to the first lawsuit requesting action on the 2011 petition. The second suit filed in January 2015 was filed by HSUS, Association of Irritated Residents and the Environmental Integrity Project among others. It too relies on the APA for jurisdiction instead of the CAA. Presumably it too will be dismissed.

Environmental groups are not going to stop filing legal actions against EPA to regulate CAFOs emitting ammonia gas and seeking to have it designated as a pollutant under the CAA. Technical legal decisions such as this one issued last week are helpful, but do not end the risk of future CAFO ammonia regulation requested by groups such as ICCI and HSUS. Entities representing animal agriculture must be prepared to refute the charges being leveled at CAFOs or risk regulation of ammonia which may be unacceptable.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.