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Another ammonia case dismissed, but the environmentalists will keep fighting

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On Dec. 7, 2015, I wrote that ammonia regulation of large animal operations would be delayed again. The Humane Society of the United States (HSUS), Iowa Citizens for Community Improvement and Clean Wisconsin were told by a U.S. District Court in Washington, D.C. that EPA was not required to regulate ammonia emissions from Concentrated Animal Feeding Operations (CAFOs) pursuant to the Clean Air Act (CAA). I wrote in the December blog that only one case had been decided.

A second suit was filed in January, 2016 by HSUS, Association of Irritated Residents, Environmental Integrity Project, Friends of the Earth, and Sierra Club against EPA. Plaintiffs filed their original petition to regulate ammonia from CAFOs in 2009.

Environmental groups have been persistent in their effort to compel EPA to regulate ammonia from CAFOs.

On September 19, 2016, the U.S. District Court for the District of Columbia dismissed the environmental groups’ second request to force EPA to regulate ammonia and other emissions of pollutants from CAFOs. The environmental groups are unlikely to stop their effort to regulate ammonia. The environmentalists say CAFOs are harmful to citizens living in the area, claiming that “Given the robustness of the data set, this demonstrates a statistically significant correlation between livestock [ammonia emissions] and infant death.”
Deadly pollutant?

Infant deaths!! To the environmentalists, ammonia is a deadly pollutant.

The September 19, 2016, opinion is a recitation of legal procedure under the CAA and the Administrative Procedures Act (APA). In this case, EPA moved to dismiss the environmentalists’ lawsuit by simply claiming again that the environmental groups had failed to provide sufficient notice, 180 days, which is required by the CAA.

The environmentalists used the APA as its jurisdictional base to sue EPA and claimed it had not responded to the environmental petition for rule making. In an argument only lawyers could love, the parties simply disagreed as to whether the U.S. District Court had jurisdiction to hear this case under the APA or the CAA.

You might say, as another famous person has said, “What difference does it make?” A lot!

These cases have been wasting the Court’s time for a long time. EPA takes the position that under the citizens’ suit provision in the CAA, environmentalists must provide EPA with 180 days’ before filing suit under the CAA. For inexplicable reasons the environmentalists’ did not follow the simple dictate of the statute.

I wrote last December that this case presumably would be dismissed, and it has been.

Environmentalists in this case wanted to use the APA to move quickly because it “provides a cause of action for the plaintiff and a waiver of sovereign immunity by the government.” The Court made it clear that “[T]he APA’s waiver of immunity comes with an important carve-out: the waiver does not apply if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought by the plaintiff.”

EPA’s lawyers simply pointed out the CAA trumped the APA and the environmentalists are required to give EPA 180 days notice before commencing a lawsuit regarding unreasonable delay. The Court goes into reviewing what Congress did in 1990 which required the 180-day requirement. Congress clearly wanted to allow EPA sufficient time to respond. The Court makes it clear in its opinion that it has jurisdiction to review and compel agency action if it is “…unreasonably delayed”.

Even though this is a victory in the short term, the Court suggests all plaintiffs have to do is give EPA a 180-day notice before filing a lawsuit, which the environmentalists conceded in this case that they did not do. Based on 2 legal defeats, one can only presume the environmentalists will follow the law and continue their efforts to regulate ammonia under the CAA. CAFOs beware!

(This article first ran in Farm Futures on October 20, 2016)

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