Today a divided panel of the U.S. Court of Appeals for the D.C. Circuit dismissed challenges to a series of agreements between the U.S. Environmental Protection Agency and operators of animal feeding operations (AFOs) in Association of Irritated Residents v. EPA. Judge David Sentelle wrote the majority opinion, joined by Judge Brett Kavanaugh. Judge Judith Rogers dissented. Based upon my preliminary read, this looks like a significant decision for both environmental policy and administrative law. Pollution from AFOs, also known as “CAFOs” for “Concentrated Animal Feeding Operations,” is a major environmental issue in much of the country, and the decision further addresses the distinction between agency rules and enforcement actions, the latter of which are not subject to judicial review.
The case grew out of federal efforts to begin regulating emissions from AFOs under the Clean Air Act and other environmental statutes. There is no question that AFOs can be a substantial source of environmental emissions, but there significant uncertainty about how to measure AFO emissions, and therefore it is not clear which AFOs are subject to what environmental requirements. This prompted the EPA to propose an innovative agreement with AFO operators. As the majority opinion explains:
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