Food & Water Watch filed an opening brief on behalf of the national advocacy group and 12 other organizations in the Ninth Circuit Court of Appeals this week. The groups are seeking to expand and strengthen factory farm pollution regulation under the Clean Water Act, regulation that the industry has evaded for more than 50 years. The case challenges the Environmental Protection Agency’s (EPA) denial of a 2017 petition for rulemaking to revise the agency’s failed regulations.

Food & Water Watch Legal Director Tarah Heinzen issued the following statement:

“America’s tens of thousands of factory farms are flushing unimaginable quantities of contaminated animal waste into America’s waterways. While EPA refuses to act, it’s only getting worse. Biden’s EPA cannot hand-wave its role in this mounting clean water crisis any longer. We need real action from federal regulators to crack down on factory farms’ free pass to pollute. Our lawsuit seeks to finally upend more than fifty years of ineffective factory farm water pollution regulation.”

13 groups sued Biden’s EPA last summer over the agency’s denial of a 2017 petition asking EPA to initiate a rulemaking to overhaul its ineffective factory farm regulations. Petitioners’ lawsuit asks the Ninth Circuit Court of Appeals to reject EPA’s denial and require it to reconsider key reforms proposed in the 2017 petition that have the potential to expand and strengthen water pollution permitting for factory farms, also known as concentrated animal feeding operations (CAFOs).

The brief advances three main arguments: 

1. EPA’s refusal to make any updates to its failed factory farm program runs counter to its obligations under federal law;
2. EPA’s plan to study factory farm water pollution rather than regulate it as federal law requires is unlawful; and 
3. EPA’s refusal to narrow its overbroad “agricultural stormwater exemption” for factory farm pollution is unlawful. This regulatory loophole unreasonably exempts a huge swath of harmful factory farm discharges from regulation, and has single handedly enabled thousands of factory farms to evade Clean Water Act permits altogether.

Petitioners are Food & Water Watch, Center for Biological Diversity, Center for Food Safety, Dakota Rural Action, Dodge County Concerned Citizens, Environmental Integrity Project, Helping Others Maintain Environmental Standards, Institute for Agriculture and Trade Policy, Iowa Citizens for Community Improvement, Kewaunee CARES, Land Stewardship Project, Midwest Environmental Advocates, and North Carolina Environmental Justice Network.

The petitioners are represented by Food & Water Watch and Earthrise Law Center.