Today, Food & Water Watch attorneys representing 13 groups appeared in court in a landmark lawsuit against the Environmental Protection Agency (EPA) for failing to effectively regulate factory farm water pollution.

Food & Water Watch Staff Attorney Emily Miller said, “EPA has spent decades enabling a factory farm water pollution crisis of epic proportions. Finally, the agency has had to answer for itself in court. The evidence is clearer than ever that EPA’s current rules are not protecting waterways or the communities that rely on them from the massive amount of manure the nation’s factory farms produce. EPA refuses to act, so we are asking the court to require it to rein in factory farm pollution and protect clean water.”

Oral arguments in Food & Water Watch, et al. v. U.S. Environmental Protection Agency lasted about an hour, where lead counsel for the petitioners advanced two main arguments outlined in their opening brief: 

1. EPA’s refusal to make any regulatory updates to its failed factory farm program runs counter to its obligations under federal law, and EPA’s plan to further study factory farm water pollution rather than regulate it as federal law requires is not sufficient; and
2. EPA’s refusal to narrow its overbroad interpretation of the “agricultural stormwater exemption” at the core of its factory farm program is unlawful, because this faulty interpretation is also at the core of the program’s failure, single handedly enabling thousands of factory farms to evade Clean Water Act regulation altogether.

If successful, the lawsuit, filed last summer, could force EPA to finally bring thousands of unregulated factory farms under the umbrella of the Clean Water Act as Congress intended. A recording of today’s oral argument will be available here.

“I’m hopeful the court will see through the EPA’s feeble attempts to defend its shameful refusal to properly regulate factory farm pollution,” said Lori Ann Burd, environmental health director at the Center for Biological Diversity. “There’s no excuse for the EPA to keep dodging its duty to clean up the filthy factory farm waste that’s seeping into our waterways. This critical case could force thousands of factory farms to comply with the Clean Water Act, which they should’ve been doing for decades.”

“Rural residents shouldn’t bear the brunt of factory farm water pollution,” said Ben Lilliston, Director of Climate and Rural Strategies at the Institute for Agriculture and Trade Policy. “The EPA’s permissive approach benefits the big meat and dairy companies at the expense of rural communities and farmers raising animals in ways that protect the environment.” 

“EPA should hold all industrial polluters to the same standard,” said Abel Russ, Senior Attorney at the Environmental Integrity Project. “But it doesn’t – it routinely gives factory farms special treatment, with disastrous consequences. It’s time to change course.”

“Factory farms and corporate interests have already consolidated the livestock industry to the point where small to midsize operators are finding it hard to compete. The current EPA rules allow these large farms to avoid paying for the pollution they cause as a byproduct of their style of production, allowing them to sell their product for dirt cheap and making it even harder for farmers stewarding the land to compete,” said Matthew Sheets, Factory Farming Policy Organizer at Land Stewardship Project. “The EPA needs to amend these rules to stop this loophole for large corporate operations, and give small to midsize farmers a fair shake.”

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.

BACKGROUND

Groups are seeking to expand and strengthen factory farm pollution regulation under the Clean Water Act, regulation that the industry has largely evaded for more than 50 years. Today, EPA itself estimates that nearly 10,000 of the nation’s largest factory farms are illegally discharging pollution to waterways without the necessary Clean water Act permits. Indeed, fewer than one third of the country’s largest factory farms operate with federal water pollution permits. The permits that do exist fail to effectively control the vast quantities of waste these polluting operations generate.

Agriculture is the nation’s leading polluter of rivers and lakes, with factory farms, also called concentrated animal feeding operations (CAFOs), responsible for a significant share. U.S. factory farms produce 940 billion pounds of manure each year — twice as much as the sewage produced by the entire U.S. population. The lawsuit seeks to force EPA to do its job and regulate factory farm polluters as the Clean Water Act requires.

The case challenges the EPA’s denial of a 2017 petition to revise the agency’s failed regulations.