CAFOs: Permission to Pollute

CAFOs: Permission to Pollute

A Brief Discussion of Agricultural Exemptions under Clean Air Act and Clean Water Act

By: Meredith Kaufman

There have been great strides in U.S. environmental law over the past six decades. However, despite well documented evidence of the harms agriculture can cause to humans and the environment, agriculture is still largely exempt from the nation’s most important environmental laws. 
Crop production is virtually unregulated under the Clean Air Act and the Clean Water Act, and livestock production is only regulated in certain circumstances.  While both the Clean Water Act and the Clean Air Act have successfully improved public and environmental health without stifling economic growth, agriculture’s special regulatory treatment enables the industry to pollute water and air without the penalties placed on other industries. 

Clean Water Act

The Clean Water Act (CWA) of 1972 establishes a structure for regulating the discharge of pollutants into the waters of the United States through a permitting program.  Regulated parties must obtain a National Pollutant Discharge Elimination System permit from the Environmental Protection Agency, which is issued only if the party meets certain technological and water quality standards prior to discharging a pollutant into U.S. waterways.  

Although a “pollutant” under the CWA is defined in Section §1362 to include “agricultural waste discharged into water” Section §1362 further states that the Act only regulates pollution from a “point source.”  The definition of “point source” explicitly excludes “agricultural stormwater discharges and return flows from irrigated agriculture.”  The Act also exempts farming activities from permitting for dredge or fill into U.S. waterways.

Agriculture’s special status under the CWA is not because farming practices are insignificant sources of water pollution: the largest source of water pollution in the country is nonpoint source pollution, and agriculture is the largest contributor to nonpoint source pollution.

Under the nonpoint source exemption, agricultural facilities can use and discharge pollutants including fertilizers, pesticides, pathogens, salts, oil, grease, toxic chemicals, heavy metal, and in some instances animal manure into waterways via irrigation return flow or storm water without a NPDES permit. These exemptions come at a great cost to waterbodies, the aquatic ecosystems they support, and the humans who use them for consumption and recreation.

For example, a dead zone in the Gulf of Mexico the size of New Jersey is caused by agricultural runoff originating in the Midwest, which flows into the Mississippi River and into the Gulf of Mexico.  “Dead zones,” are caused by algal blooms which are fed by synthetic fertilizers and animal waste that enters water bodies.  When the algae die and decompose, bacterial decomposition depletes oxygen and kills aquatic life.  Algal blooms can also interfere with swimming and boating activities and compromise the smell and taste of water.

The only form of agriculture that receives regulatory attention under the CWA are livestock facilities known as Concentrated Animal Feeding Operations, or CAFOs. Over ten billion animals are slaughtered in the U.S. annually, and over 99 percent are raised and slaughtered in highly productive, but controversial CAFOs.  AFOs are Animal Feeding Operations where livestock is kept and raised in confinement for a total of 45 days or more in any 12-month period and crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the facility.  If an AFO has a certain number of animals at its facility, it is also considered a CAFO. 

Although AFOs and CAFOs produce cheap meat by keeping on-site costs low, they are able to do so by externalizing these costs in ways that lead to socially inefficient outcomes: they emit potent greenhouse gases; they generate millions of tons of manure undermining water and air quality; and they raise animal welfare issues.  Under this production model, manure is generally stored in on-site “lagoons,” and subsequently sprayed off-site as fertilizer, both of which can pollute ground and surface water through runoff or flooding.  AFOs and CAFOs also emit nitrates, pathogens, ammonium, phosphate, dissolved solids, metals and metalloids, pharmaceutical chemicals, and hormones into surface and ground water.  It has even been shown that states where CAFOs are commonly located have 20 to 30 serious water quality problems a year as a result of poor manure management. However, the cost of climate change and reduced air and water quality is not reflected in the price of animal products produced at CAFOs. The lack of a proper price signal leads to economically inefficient outcomes.

 

Despite their large environmental footprint AFOs are largely exempted from the CWA and CAFOs are only regulated in certain circumstances.  CAFOs are deemed a point source under the Act if the facility meets a certain threshold in terms of the number of confined animals. These facilities must obtain a National Pollutant Discharge Elimination System (NPDES) permit, comply with the Act’s reporting requirements, and create a plan for handling waste.  Of the estimated 212,000 AFOs in the U.S., 20,000 are deemed CAFOs, and only 8,000 have NPDES permits. 

The EPA’s efforts to regulate livestock production under the CWA have not been easy.  In 2003, for the first time since the 1970s, EPA issued a new rule changing manure and storm water management on CAFOs known as the CAFO Rule.  The Rule was subsequently challenged by environmental groups, claiming the Rule did not go far enough, and industry groups, claiming the Rule went too far.  In 2005, the Second Circuit Court of Appeals held, among other issues, that the EPA cannot regulate a CAFO if it only has the potential to discharge pollutants; the facility must actually discharge pollutants to come within the regulatory scope of the permitting scheme. 

Following the Second Circuit’s decision, the EPA promulgated a new rule in 2008 which required CAFO operators to apply for NPDES permits, but only those that discharge or “propose to discharge” because they are “designed, constructed, operated, or maintained such that a discharge will occur.”  Under the 2008 rule, if a facility did not obtain a permit and subsequently discharged, the operator would be liable for failing to apply for a permit and for the discharge itself. 

After the 2008 rule was proposed, a second round of litigation was initiated by industry groups, this time in the Fifth Circuit Court of Appeals.  The Court held that the 2008 rule violated the Second Circuit’s holding that EPA could only regulate actual, not proposed discharges.  The effect of these cases is that a CAFO that eliminates discharges is not required to obtain a NPDES permit and can only be penalized for the discharge, not for failure to obtain a permit if an accidental discharge occurs. 

Clean Air Act

Agricultural activities, specifically CAFOs, pose serious threats not only to water quality, but to air quality as well.  When the nation’s eminent air quality statute, the Clean Air Act, was implemented in 1970, agriculture was not a main focus for regulation because the industry was not a significant contributor to air quality problems at that time.  However, while agricultural production models have evolved, the CAA has not kept pace.  Moreover, while the CAA does not provide the same exemptions for agriculture as the CWA, the Act in general is focused on other industries, and some sections still treat agriculture separately from other industries.

The CAA establishes a framework to regulate stationary and mobile sources of air pollution and requires the EPA to promulgate regulations to protect the nation’s air quality and stratospheric ozone layer.  The CAA is an incredibly complex statute, but the gist is that the EPA sets National Ambient Air Quality Standards (NAAQS) for six major criteria pollutants and states can create their own plans to implement and enforce the NAAQS standards.  Under the Act, stationary sources are required to obtain permits if the facility either emits a certain quantity of criteria pollutants or is located in an area below the NAAQS standards. 

While the Clean Water Act defines most agricultural activities as nonpoint sources beyond regulatory reach, under the Clean Air Act, the EPA has discretion to determine if farms will be treated differently than other industries.  For example, the CAA mandates the EPA to list 100 substances that, if accidentally released, “are known to cause…death, injury, or serious adverse effects to human health or the environment.”  The Act also states “[t]he Administrator is authorized to establish a greater threshold quantity for, or to exempt entirely, any substance that is a nutrient used in agriculture when held by a farmer.”  Regarding mobile source pollution, Section 209 “preempts states from controlling emissions from new engines…used in farm equipment…”

The Act is also focused on “major sources” of air pollution,” and small sources of pollution—de minimis sources—are exempted from the permitting scheme, thus many farms escape regulation at the federal level.  Under Section 110, the CAA allows states to determine how to achieve the federal NAAQS, meaning “the questions of whom and what to regulate in order to achieve the federal standards are left to the states…[and] [a]lthough states could regulate air pollutant emissions from farms within that scope of discretion, most states do not do so rigorously.” 

The result is that agricultural enterprises can degrade air quality while avoiding regulation at both the federal and state level.  AFOs and CAFOs cause serious air quality problems, generally from manure stored in lagoons which emit volatile organic compounds, particulate matter, methane, ammonia, and hydrogen sulfide.  These pollutants are known to cause acid raid, deplete the ozone layer, contribute to climate change, and cause health problems such as asthma.  Yet, because individual facilities generally do not meet the threshold for permits, they can go unregulated.  Moreover, certain compounds emitted by CAFOs, such as ammonia, are not considered “criteria pollutants” subject to the NAAQS standards. 

For CAFO workers and communities living near CAFOs, which are generally lower-income, the lack of regulation has serious health effects.  Agriculture is the largest source of ammonia emissions in the U.S., and exposure to ammonia can cause headaches, eye irritation, and nausea.  Particulate matter can cause asthma, lung issues, and heart attacks.  Workers complain of sinusitis, bronchitis, nose and throat irritation, and decline in lung function.

It is unlikely that CAFOs will be subject to increased regulation under the CAA in the near future.  In late 2017, the EPA denied a petition for rulemaking requesting more stringent regulation of CAFOs under the CAA.  In the denial letter, the former EPA Administrator, Scott Pruitt, wrote that the Agency was conducting ongoing studies of CAFO emissions, but that it was not a regulatory priority for the agency in light of limited resources and budgetary uncertainties.

Conclusion

Agriculture, specifically CAFOs, continue to pollute air and water not because the CWA and the CAA are ineffective, but because they either exempt or do not focus on agriculture.  While other industries have managed to navigate comprehensive environmental regulation, agriculture groups continue to successfully lobby and litigate for minimal oversight.