(CN) --- Despite unsafe levels of E. coli and other pollutants in Idaho’s Snake River, a lawyer told a skeptical Ninth Circuit panel Thursday that the federal government doesn’t need to monitor water pollution coming from industrial animal-feeding operations in the south part of the state.
“There are other enforcement tools that EPA uses to go after [concentrated animal feeding operations] permitted or not, including inspections, responding to citizen complaints and concerns,” U.S. Justice Department lawyer Benjamin Grillot argued before the Ninth Circuit.
Grillot was defending the U.S. Environmental Protection Agency's denial of petition seeking to require pollution monitoring in waterways near Idaho pig and cow farms, which are called concentrated animal-feeding operations, or CAFOs, in federal bureaucratic lingo.
Food & Water Watch, an environmental advocacy group, asked the Ninth Circuit to review the EPA’s denial of its request. It claims the refusal to require water quality monitoring near animal feedlots was arbitrary, capricious and contrary to law.
On Thursday, a three-judge Ninth Circuit panel posed tough questions to Grillot, tasked with defending the EPA's position.
“What practically is the cost, or what is the burden of having to simply put in the type of monitoring system that your adversary would like to see happen,” asked Senior U.S. District Judge Frederic Block, sitting by designation from the Eastern District of New York.
The EPA considered requiring water quality monitoring near pig and cow farms when it issued its most recent CAFO regulations in 2003 but ultimately rejected the idea. It cited “difficulty in designing and implementing a program” that could determine how much pollution came from a specific feedlot.
Another problem stems from a Clean Water Act exemption for agricultural stormwater runoff. The EPA would need to distinguish farm and ranch pollution --- pushed into waterways by rain --- from contamination that occurs in dry weather.
“I understand that argument for why you wouldn’t look at the rainy days for the monitoring, but why not do the monitoring and look at the dry days,” asked U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee.
Grillot replied that the EPA already determined the system it has in place adequately regulates pollution from large-scale animal feeding operations. Those who run pig pens, dairy farms and cattle ranches are required to follow specific management plans designed to ensure zero dry-weather water pollution. Permitted animal-feeding operators are also obligated to self-report any time they observe a violation, such as animal feces or manure leaching into irrigation water or leaking from wastewater-storage lagoons.
The government lawyer said the question is not whether the EPA ought to require water pollution monitoring as part of its enforcement tools. Rather, the court is tasked with answering one question --- is the EPA’s permitting scheme reasonable?
“You may be able to say the system is legal, but you can’t tell me it’s working well because we know from the record that your agency itself has compiled that we’re getting a lot of pollution coming from the CAFOs,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, said.
Representing the petitioner, Food & Water Watch attorney Tyler Lobdell argued the EPA could install water-quality monitoring systems upstream and downstream from animal feedlots to more accurately trace the sources of water contamination.
Lobdell added that monitoring pollution is especially crucial for Idaho’s Snake River watershed because agencies like the National Marine Fisheries Service assume animal feedlots comply with a zero non-rainy-day water pollution standard when they draft biological opinions that determine how to best protect endangered species like the Snake River Sockeye Salmon.
Despite clear signals that the panel is inclined to side with Food & Water Watch on the need for pollution monitoring, the judges also suggested the issue might be moot. That’s due to a 2011 Fifth Circuit decision in Nat’l Pork Producers Council v. EPA, which held animal feedlots are not required to apply for pollution discharge permits. The reason: animal feedlots are not allowed to discharge any pollution into U.S. waters, except for exempted stormwater runoff. The court concluded that because pig and cow farms are not allowed to discharge any pollution, they need not seek a permit to engage in an illegal activity.
In Idaho, no animal feeding operations had applied for permits when Food & Water Watch filed its petition in October 2019. Since then, one animal feedlot operator has applied for a permit.
Fletcher said the EPA’s permit scheme for animal feedlots seems like “an extremely dysfunctional system.” If the panel were to agree with Food & Water Watch’s position, he asked if it would it “make any difference” since only one out of hundreds of Idaho pig and cow farms have applied for a permit.
“I’m having a hard time understanding how the relief you seek will remedy the harm you identify,” Fletcher said.
Lobdell replied the “duty to apply” for a permit is a separate legal question. The relevant issue for the panel is “what conditions must apply to facilities once they have become covered by the permit."
The attorney noted several industry groups --- including the Idaho Cattle Association and Idaho Dairymen’s Association --- submitted comments on his group's petition to require water-quality monitoring in U.S. waters near animal feedlots.
“In petitioners’ eyes, it indicates this industry is interested in applying,” Lobdell said.
He listed the benefits of applying a permit, such as regulatory certainty and a shield from liability for unpermitted discharges.
“I think it’s completely reasonable for the court and for petitioners to expect that a favorable ruling from this court will have concrete effects on the ground in terms of actually generating meaningful monitoring data to ensure compliance,” Lobdell said.
After nearly two hours of debate, the panel took the arguments under submission.
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