399 F.3d 486 (2nd Cir. 2005), 03-4470, Waterkeeper Alliance, Inc. v. U.S. E.P.A.

Docket Nº:03-4470 (L), 03-4621(C), 03-4631(C), 03-4641(C), 03-4849(C), 04-40199(C), 03-40229(C).
Citation:399 F.3d 486
Party Name:WATERKEEPER ALLIANCE, INC., American Farm Bureau Federation, National Chicken Council, National Pork Producers Council, American Littoral Society, Sierra Club, Inc., Natural Resources Defense Council, Inc., Petitioners/Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Michael O. Leavitt, Administrator, United States Environmental Prote
Case Date:February 28, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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399 F.3d 486 (2nd Cir. 2005)

WATERKEEPER ALLIANCE, INC., American Farm Bureau Federation, National Chicken Council, National Pork Producers Council, American Littoral Society, Sierra Club, Inc., Natural Resources Defense Council, Inc., Petitioners/Intervenors,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Michael O. Leavitt, Administrator, United States Environmental Protection Agency Respondents.

Nos. 03-4470 (L), 03-4621(C), 03-4631(C), 03-4641(C), 03-4849(C), 04-40199(C), 03-40229(C).

United States Court of Appeals, Second Circuit.

Feb. 28, 2005.

Argued: Dec. 13, 2004

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Eric E. Huber, Sierra Club, Inc., Boulder, CO, for Sierra Club, Inc.; Jeffrey Odefey, Waterkeeper Alliance, Inc., Tarrytown, NY, of counsel, for Waterkeeper Alliance, Inc.; Melanie Shepherdson (Nancy K. Stoner, on the brief), Natural Resources Defense Council, Inc., Washington, D.C., of counsel, for Natural Resources Defense Council, Inc.; James M. Stuhltrager, Mid-Atlantic Environmental Law Center, Wilmington, DE, of counsel, for American Littoral Society; Petitioners/Interveners.

Richard E. Schwartz (Ellen B. Steen, and Kirsten L. Nathanson, on the brief), Crowell & Moring, LLP, Washington, DC, of counsel, for National Pork Producers Council; Timothy S. Bishop (Russell R. Eggert and Michael A. Scodro, on the brief), Mayer, Brown, Rowe & Maw, LLP, Chicago, IL, of counsel, for American Farm Bureau Federation; James T. Banks (Scott H. Reisch, on the brief), Hogan & Hartson, LLP, Washington, DC, of counsel, for National Chicken Council; Petitioners/Interveners.

Jon M. Lipschultz & Brian H. Lynk (Martha C. Mann, on the brief) for Kelly A. Johnson and John C. Cruden, U.S. Department of Justice, Washington, D.C., for United States Environmental Protection Agency and Michael O. Leavitt, Administrator of the United States Environmental Protection Agency; Respondents.

Albert Ettinger (Ann Alexander, and Shannon Fisk, on the brief), Environmental Law and Policy Center, Chicago, IL, for The Physicians for Social Responsibility, Hoosier Environmental Council, Ohio Environmental Council, and Prairie Rivers Network; Amici Curiae.

Before: OAKES, KATZMANN, and WESLEY, Circuit Judges.

KATZMANN, Circuit Judge.

In this consolidated petition, we review various challenges to a regulation promulgated by the United States Environmental Protection Agency under the Clean Water Act in order to abate and control the emission of water pollutants from concentrated animal feeding operations. While we deny many of the challenges here brought, we find that several aspects of the regulation violate the express terms of the Clean Water Act or are otherwise arbitrary and capricious under the Administrative Procedure Act. Accordingly, we grant the petitions in part and deny the petitions in part.

BACKGROUND

A. Statutory Background

The Clean Water Act (the "Act") is a cornerstone of the federal effort to protect the environment. "[D]esigned to 'restore and maintain the chemical, physical, and biological integrity of the Nation's waters,' " No Spray Coalition, Inc. v. City of New York, 351 F.3d 602, 604 (2d Cir.2003)

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(quoting 33 U.S.C. § 1251(a)), the Act is the principal legislative source of the EPA's authority--and responsibility--to abate and control water pollution. See 33 U.S.C. §§ 1311(a), 1342, 1362.

By way of very brief overview, the Act formally prohibits the "discharge of a pollutant" 1 by "any person" 2 from any "point source" 3 to navigable waters except when authorized by a permit issued under the National Pollutant Discharge Elimination System ("NPDES"). See 33 U.S.C. §§ 1311(a), 1342. This means, as a practical matter, that the EPA primarily advances the Act's objectives--including the ambitious goal that water pollution be not only reduced, but eliminated, see 33 U.S.C. § 1251(a)(1)--through the use of NPDES permits that, while authorizing some water pollution, place important restrictions on the quality and character of that licit pollution.

NPDES permits are issued either by the EPA, itself, or by the states in a federally approved permitting system. See 33 U.S.C. § 1342. Regardless of the issuer, every NPDES permit is statutorily required to set forth, at the very least, "effluent limitations," that is, certain "restriction[s] ... on [the] quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters." S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 124 S.Ct. 1537, 1541, 158 L.Ed.2d 264 (2004) ("Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters.").

The specific effluent limitations contained in each individual NPDES permit are dictated by the terms of more general "effluent limitation guidelines" ("ELGs"), which are separately promulgated by the EPA. Cf. EPA v. California, ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) ("An NPDES permit serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations ... of the individual discharger."). ELGs, and the effluent limitations established in accordance with them, are technology-based restrictions on water pollution. They are technology-based, because they are established in accordance with various technological standards that the Act statutorily provides and that, pursuant to the Act, vary depending upon the type of pollutant involved, the type of discharge involved, and whether the point source in question is new or already existing. We will discuss these with greater detail below. For now, we note simply that the technology standards for already existing point sources include (1) the best available technology economically achievable, see 33 U.S.C. § 1311(b)(2)(A); (2) the best conventional pollutant control technology, see 33 U.S.C. § 1314(b)(2)(A); and (3) the best practicable

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control technology currently available, see 33 U.S.C. § 1314(b)(1)(A). The technology standard for new point sources, which is commonly referred to as a new source performance standard, is based on the best available demonstrated control technology, see 33 U.S.C. § 1316.

We also note that where effluent limitations prove insufficient to attain or maintain certain water quality standards, the Act requires NPDES permits to include additional water quality based effluent limitations. See 33 U.S.C. §§ 1311(b)(1), 1312(a). Overall, we hope to make clear that the NPDES permit is critical to the successful implementation of the Act because--by setting forth technology-based effluent limitations and, in certain cases, additional water quality based effluent limitations--the NPDES permit "defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the [Act]." California, ex rel. State Water Res. Control Bd., 426 U.S. at 205, 96 S.Ct. 2022.

B. Regulatory Background

In the consolidated petition before us, we are asked to review, inter alia, the permitting requirements and effluent limitation guidelines promulgated by the EPA in its attempt to regulate the emission of water pollutants from so-called concentrated animal feeding operations ("CAFOs"). Before reviewing these challenges, however, a few introductory words about CAFOs themselves are in order.

CAFOs are the largest of the nation's 238,000 or so "animal feeding operations"--"agriculture enterprises where animals are kept and raised in confinement." National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations, 68 Fed.Reg. 7176, 7179 (Feb. 12, 2003) (codified at 40 C.F.R. Parts 9, 122, 123 and 412) [hereinafter "Preamble to the Final Rule"]. 4 Such "agriculture enterprises" are not, however, of a kind the Founding Fathers likely would have envisioned populating America's "yeoman republic." See generally, STANLEY ELKINS AND ERIC MCKITRICK, Jefferson and the Yeoman Republic, THE AGE OF FEDERALISM 195-208 (1972). On the contrary, CAFOs are large-scale industrial operations that raise extraordinary numbers of livestock. 5 For example, a "Medium CAFO" 6 raises as many as

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9,999 sheep, 54,999 turkeys, or 124,999 chickens (other than laying hens). 7 "Large CAFOs" 8 raise even more staggering numbers of livestock--sometimes, raising literally millions of animals in one location.

Economically, these CAFOs generate billions of dollars of revenue every year. 9 The EPA has focused on the industry because CAFOs also generate millions of tons of manure every year, 10 and "when improperly managed, [this manure] can

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pose substantial risks to the environment and public health." Preamble to the Final Rule at 7179.

Animal waste includes a number of potentially harmful pollutants. According to the EPA, the pollutants associated with CAFO waste principally include: (1) nutrients such as nitrogen and phosphorus; (2) organic matter; (3) solids, including the manure itself and other elements mixed with it such as spilled feed, bedding and litter materials, hair, feathers and animal corpses; (4) pathogens (disease-causing organisms such as bacteria and viruses); (5) salts; (6) trace elements such as arsenic; (7) odorous/volatile compounds such as carbon dioxide, methane, hydrogen sulfide, and ammonia; (8) antibiotics; and (9) pesticides and hormones. See National Pollutant Discharge Elimination System Permit...

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