In the Courts – Air and Waste

by Jeff Reed

Waterkeeper All. v. Envtl. Prot. Agency, No. 09-1017 (D.C. Cir. 2017).

The Court of Appeals for the D.C. Circuit ruled that concentrated animal feeding operations (“CAFOs”) cannot be exempted from requirements in the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Emergency Planning and Community Right-to-Know Act (“EPCRA”) to report air releases from animal waste. A 2008 Environmental Protection Agency (“EPA”) rule exempted CAFOs from the CERCLA and EPCRA reporting requirements, reasoning that “reports are unnecessary because, in most cases, a federal response is impractical and unlikely.” The Court stated that “[i]t’s not at all clear why it would be impractical for the EPA to investigate or issue abatement orders” and that the record in the case “suggests the potentiality of some real benefits.”