Association of Irritated Residents v. E.P.A.

• Decision Date: 17 July 2007
• Docket Number: No. 06-1209.,No. 07-1038.,No. 06-1320.,No. 06-1053.,No. 05-1337.,No. 05-1177.,No. 05-1336.,05-1177.,05-1336.,05-1337.,06-1053.,06-1209.,06-1320.,07-1038.
• Parties: ASSOCIATION OF IRRITATED RESIDENTS, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents National Pork Producers Council and Roe Farm, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

494 F.3d 1027

ASSOCIATION OF IRRITATED RESIDENTS, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents

National Pork Producers Council and Roe Farm, Inc., Intervenors.

No. 05-1177.

No. 05-1336.

No. 05-1337.

No. 06-1053.

No. 06-1209.

No. 06-1320.

No. 07-1038.

United States Court of Appeals, District of Columbia Circuit.

Argued May 14, 2007.

Decided July 17, 2007.

On Petitions for Review of a Final Action of the Environmental Protection Agency.

Brent J. Newell argued the cause for petitioners. With him on the briefs were Patrick Gallagher and Angel M. Latterell.

David G. Bookbinder entered an appearance.

Norman L. Rave, Jr., Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Carol S. Holmes, Counsel, Environmental Protection Agency.

Richard E. Schwartz and Kirsten L. Nathanson were on the brief for intervenors in support of respondents.

Before: SENTELLE, ROGERS and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge:

Community and environmental groups petition for review of agreements between EPA and animal feeding operations. The agreements are designed to bring the facilities into compliance with the permitting and reporting requirements of three environmental statutes. Petitioners argue that the agreements are rules disguised as enforcement actions, that EPA did not follow proper procedures for rulemaking, and that EPA exceeded its statutory authority by entering into the agreements. We hold that the agreements do not constitute rules, but rather enforcement actions within EPA's statutory authority. We dismiss the petitions for review because exercises of EPA's enforcement discretion are not reviewable by this court.

I.

Animal feeding operations ("AFOs") are facilities where animals are raised for eggs, dairy, or slaughter. See 40 C.F.R. § 122.23(b)(1). At issue in this case are AFOs producing eggs, broiler chickens, turkeys, dairy, and swine. In the course of their operations, AFOs emit a number of pollutants regulated by the Clean Air Act, 42 U.S.C. § 7401 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"), and the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et seq. ("EPCRA") (collectively, the "Acts"). The pollutants — ammonia, hydrogen sulfide, particulate matter, and volatile organic compounds — emanate from animal housing structures and areas used to store and treat manure. Animal Feeding Operations Consent Agreement and Final Order; Notice, 70 Fed.Reg. 4958, 4959 (Jan. 31, 2005) ("Consent Agreement"). An AFO that releases these pollutants in sufficient quantities may be required to report them under CERCLA and EPCRA, and may be subject to various requirements under the Clean Air Act. Id. An AFO emitting these pollutants in quantities below the statutory thresholds, however, has no obligation under the Acts to obtain permits or report its emissions.

Petitioners are a number of community and environmental groups, some of whose members live near AFOs. They assert that the AFOs emit particulate pollution and terrible odors, and that they attract hordes of flies that leave their droppings on everything from cars to outdoor furniture. As a result, petitioners claim that their members suffer effects ranging from reduced enjoyment of the outdoor portion of their property to adverse health effects such as respiratory and heart problems. Additionally, as long as the AFOs' emissions are not definitively determined to be above or below the statutory thresholds, petitioners' members suffer from the uncertainty of not knowing whether the AFOs' emissions exceed legal limits, and not knowing how their long-term health may be affected.

Because the Acts apply only to emissions above specified levels, EPA cannot enforce the statutory and regulatory requirements without determining an AFO's emissions. Generally, an AFO emits these pollutants in proportion to its size: the more animals it houses, the more it pollutes. Precise measurements have eluded the government and the AFO industry, which are in agreement that there is no existing methodology to measure reliably an AFO's emissions. AD HOC COMM. ON AIR EMISSIONS FROM ANIMAL FEEDING OPERATIONS ET AL., NAT'L RESEARCH COUNCIL, AIR EMISSIONS FROM ANIMAL FEEDING OPERATIONS: CURRENT KNOWLEDGE, FUTURE NEEDS (2003), available at http: www.nap.edu/catalog/10586.html; Consent Agreement, 70 Fed.Reg. at 4958. The present uncertainty hampers EPA's ability to enforce the requirements of the Clean Air Act, EPCRA, and CERCLA against AFOs. EPA's solution to this problem was to invite AFOs to sign a consent agreement under which each AFO will assist in developing an emissions estimating methodology. Consent Agreement, 70 Fed.Reg. at 4958. In exchange, EPA will not pursue administrative actions and lawsuits against the AFOs for a defined period of time. Id. at 4959. In the agency's judgment, this is the "quickest and most effective way" to achieve compliance. Id. at 4958.

EPA drafted the Consent Agreement in consultation with "representatives of state governments, environmental groups, local citizens' groups, and the AFO industry." Id. at 4961. On January 31, 2005, the agency published the final draft of the Agreement, invited interested AFOs to sign up, and sought public comment. Id. at 4958. After the comment period closed, EPA concluded that the "vast majority" of the comments received "were ones that had been previously expressed to EPA, and they had already been considered in the development of the Agreement." Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. 40,016, 40,017 (July 12, 2005) ("July 12 Notice"). To date, several thousand AFOs have signed Agreements. Once EPA signs the Agreements, they are forwarded to EPA's Environmental Appeals Board ("EAB") for approval. See 40 C.F.R. § 22.4(a)(1). The Agreements become enforceable against EPA once they are approved by the EAB in a final order. See id. §§ 22.18(b)(3), 22.4(a)(1). EAB has considered the Agreements in seven sets, and approved a total of 2,568 Agreements.

Although each participating AFO signs an individual Agreement with EPA, all the Agreements have identical terms. Consent Agreement, 70 Fed.Reg. at 4962-68. The AFO, although not admitting any violation of the Acts, agrees to pay a civil penalty for potential violations based on the size and number of its farms. Id. at 4965-66. It agrees to help fund a nationwide study that will monitor, over a two-year period, emissions from animal housing structures and manure storage and treatment areas. Id. at 4959, 4966-67. The AFO also agrees to permit its facility to be monitored in the study upon request. Id. at 4959-60, 4967. The study, designed in consultation with industry and academia, aims to generate "a valid sample that is representative of the vast majority of the participating AFOs" by monitoring different types of AFOs in different geographic areas. Id. at 4960. As data from the study is received, EPA will use it along with existing emissions data to develop scientifically sound tables or models for AFOs to estimate their emissions. Id. at 4960. In consideration for the AFOs' assistance, EPA agrees not to sue participating AFOs for certain potential past and ongoing violations of the Acts for the duration of the study. Id. at 4959, 4963-64. Within 120 days after EPA publishes the new methodologies, however, the AFO must initiate compliance efforts such as applying for a permit. Id. at 4964. EPA predicts that this schedule will result in compliance by participating AFOs within about four years from the start of the study. Id. at 4959-60.

Although the Agreement is intended to bring AFOs into eventual compliance with the Acts, petitioners argue that EPA lacks authority to achieve compliance in this manner. They believe that the AFOs should be forced to comply more quickly with the statutory requirements. They also argue that the procedures by which EPA entered into the Agreement did not afford them the meaningful opportunity for comment required by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"). Petitioners challenged the Agreement before the agency while it was being developed, and now identify ten agency actions that they contend should be vacated. Three are Federal Register notices: one announced the availability of the Agreement and solicited comments, Consent Agreement, 70 Fed.Reg. at 4958; another extended the period for sign-up and comment, Animal Feeding Operations Consent Agreement and Final Order, 70 Fed.Reg. 16,266 (Mar. 30, 2005); and the third published the agency's responses to the comments, July 12 Notice, 70 Fed.Reg. at 40,016. The seven remaining agency actions challenged by petitioners are the EAB final orders approving batches of the Agreements dated January 27, 2006, April 17, 2006, May 5, 2006, July 19, 2006, August 7, 2006, August 17, 2006, and August 21, 2006.

In EPA's view, the Agreement is not a rulemaking, but rather a valid exercise of the agency's enforcement discretion. EPA also argues that even if the Agreement constitutes a rulemaking, the agency did not violate the notice and comment requirements of the APA.

II.

Our analysis of this case begins and ends with subject matter jurisdiction.¹ In this case, subject matter jurisdiction turns on whether the Agreement constitutes a rulemaking subject to APA review, or an enforcement proceeding initiated at the agency's discretion and not reviewable by this court. Under the APA, this court may review final agency actions, including an agency's promulgation of a rule. 5 U.S.C. §§ 701-706. Excluded from this court's review, however, are agency actions that are "committed to agency discretion by law." Id. §...