The U.S. Court of Appeals District of Columbia Circuit ordered the Environmental Protection Agency to eliminate an exemption it offered to farms from reporting requirements for potential pollution. The change will require animal facilities to re-evaluate whether they need to report now that the exemption is no longer valid.

Environmental groups had sued over a 2008 rule that exempts all animal feeding operations from the Comprehensive Environmental Response, Liability & Compensation Act’s (CERLCA) hazardous substance reporting requirements and exempts all but the largest feeding operations from state and local reporting requirements under the Emergency Planning & Community Right-to-Know Act (EPCRA).

Prior to the promulgation of this loophole at the end of the Bush Administration in 2008, concentrated animal feeding operations (CAFOs), alongside all other industrial facilities, were required to notify government officials when toxic pollution levels exceeded public safety thresholds.

Earthjustice attorney Jonathan Smith, who helped argue the case before the court, said, “In the words of the court, the risk of air emissions from CAFOs ‘isn’t just theoretical; people have become seriously ill and even died’ from these emissions, but the public cannot protect itself from these hazardous substances if CAFOs aren’t required to report their releases to the public. The loophole also prevented reporting of these toxics to local and state responders, and the court held that plainly violated the law.”

Ellen Steen, American Farm Bureau Federation general counsel (who was not party to the lawsuit), stated that just because a large animal farm could be releasing ammonia over the area of the farm, it doesn’t create a need for an emergency response, and the information required under EPCRA and CERLCA doesn’t aid the government.

“The reports don’t benefit the public or society in any way; it only helps some of these environmental activists and their agendas,” Steen said, adding that these groups can use these reports of releases in their public relations campaigns against livestock agriculture.

However, the court stated in its ruling, “We find that those reports aren’t nearly as useless as the EPA makes them out to be.” The judges said the CERCLA and EPCRA exemptions upon which EPA relied don’t provide a sound basis for the exemption finalized in the farm pollution reporting rule.

Steen said the Sierra Club and other environmental groups started filing citizen suits against farms if they thought air emissions on a particular farm exceeded the statutory requirements. EPA created the exemption to reduce the burden on farmers because it “clogs the system with needless reports,” she explained.

The uncertainty that first required the administrative solution in 2008 now is back, Steen noted. “There is some information out there producers can use to estimate their emissions for reporting purposes if they need to do that,” she said. However, understanding the effect of air emissions is a very complex process, and there is not a standard size threshold when it comes to CAFOs.

“One of the things we’re looking at is what’s out there that producers can use to 'guestimate' their air emissions of these substances so they can decide whether they should report or not,” Steen said.

“If farmers fail to report and they seem to be the type of operation that would exceed these reporting thresholds levels, they’re vulnerable and at risk of being targeted by these groups,” she warned. “Assess your risk.”

Each operation needs to make an individual decision based on the size of operation and the target it is on regarding whether there is a real urgency to do something in the short term with the exemption no longer in place.

The National Pork Producers Council was one of many that intervened on behalf of EPA in the case. Dave Warner, spokesman for the council, said, “We’re reviewing the decision and will be considering our options.”

Steen said a legislative solution may be the “only real solution that we can have” after the latest court ruling. Measures have been drafted in the past, but with the administrative solution in place, it wasn’t needed until now. “The time may be right to dust off those legislative solutions,” she added.