PHOTO CC-BY-USDA, Bob Nichols / Flickr.com
by Tarah Heinzen
Food & Water Watch just won a major court victory against factory farm pollution: the federal Ninth Circuit Court of Appeals has ruled that the Environmental Protection Agency’s (EPA) statewide Clean Water Act permit for concentrated animal feeding operations (CAFOs) in Idaho illegally let these factory farms off the hook for water pollution monitoring.
EPA Loopholes Have Shielded Factory Farm Pollution From The Public
The federal Clean Water Act is supposed to protect our waterways, keeping them safe for recreation and wildlife. One of the most important ways it does that is by requiring polluters – including CAFOs — to follow strict discharge permits that limit pollution. And those permits do not work on an honor system; permitted dischargers are required to show their work through testing their discharges and generating publicly available monitoring reports that demonstrate whether they are meeting permit limits. If a facility violates its permit, citizens and regulators can use the self-reported monitoring information to enforce the law. Monitoring is essential to holding polluters accountable and cleaning up our rivers and streams.
Despite this, EPA and states have carved out an exception for factory farms, issuing permits that leave monitoring out entirely. These permits simply assume that if a factory farm adopts certain practices to manage its waste, it will meet permit requirements. That approach wouldn’t pass the laugh test with wastewater treatment plants and factories, and we have known for years that it is just as illegal for livestock operations responsible for discharging pharmaceuticals, pathogens, heavy metals, and nutrients that cause harmful algal blooms into our waterways.
Striking a Blow Against EPA’s Special Treatment For The Factory Farm Industry
When EPA issued a permit for Idaho CAFOs that again left out monitoring, Food & Water Watch, along with our allies Snake River Waterkeeper and Earthrise Law Center, took it to court. This was a unique and strategic opportunity to bring our case in federal court because most Clean Water Act permits are issued by states, not EPA, and challenges go to less favorable state forums.
And our strategy paid off. The three-judge Ninth Circuit panel recognized that Idaho CAFOs are a significant source of water pollution and that they threaten water quality through the risk of discharges off of land application fields and from leaching of manure lagoons into waterways. And it agreed that the Idaho permit didn’t contain the monitoring needed to know if a factory farm is complying with the Clean Water Act, or if this unauthorized pollution was taking place, striking down EPA’s permit as unlawful.
This Win Against Factory Farm Pollution Doesn’t Stop In Idaho
Going forward, this means that polluting factory farms in Idaho will now be required to comprehensively monitor and report on their waste discharges and water pollution for the first time. But even more importantly, the Ninth Circuit’s precedent is relevant everywhere factory farm permits take the same illegal approach as in Idaho – which is, essentially, everywhere. We will be working across the country to ensure this win will have broad implications for how pollution from the factory farm industry is regulated going forward.
Factory farms are a large and growing source of water pollution in Idaho and across the country, but without pollution monitoring, they have been able to pollute at will and hide this pollution from citizens and regulators. This victory is a critical first step towards holding factory farms accountable for illegal pollution and stands to provide the information needed not only to enforce the law and advocate for stronger pollution regulation, but to make the case to ban factory farms altogether. The decision also struck a major blow against EPA’s practice of granting illegal exceptions and special treatment to the factory farm industry — and we’ll work to make sure it’s the first of many.
Smart legal work like this is a part of our strategy to save our planet. Will you chip in?