May 19, 2021

Biden Should Bet the Farm

Abigail E. André

President Biden has placed climate change at the center of his administration and recognizes that “we’ve already waited too long to deal with th[e] climate crisis and we can’t wait any longer. . . we desperately need a unified national response.” To tackle this challenge, President Biden appointed climate and environmental justice (EJ) leaders before taking office, reentered the Paris Climate Accord hours after his inauguration, and shortly thereafter issued executive orders on climate and racial equity that lay the groundwork for swift action to address the climate crisis and its disproportionate impact on historically underserved communities. Further, on April 22, 2021, the administration announced an aggressive plan to reduce emissions by 50 to 52 percent of 2005 levels by 2030 (2030 Climate Plan). 

In order to seriously address the full scope of the United States’ climate change contribution, the Biden administration must focus on the agricultural industry. While the industry has long avoided regulation of its air emissions, the administration’s climate directives open the door to a new era of regulatory oversight. In addition to paths forward under section 111 of the Clean Air Act (CAA) (42 U.S.C. §§ 7408–409, 7411) and Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d to 2000d-7) that existed before the Biden administration, President Biden’s executive orders on climate and racial equity create new opportunities for agricultural emissions control.

The CAFO Problem

Livestock and livestock waste produce methane (CH4), carbon dioxide (CO2), and nitrous oxide (N2O) in staggering amounts. The U.S. Environmental Protection Agency’s (EPA) 2021 greenhouse gas (GHG) inventory estimates that at least 10 percent of the United States’ total GHG emissions come from the agriculture sector, including from large feedlots, generally known as factory farms or concentrated animal feeding operations (CAFOs). While significant, this 10 percent represents an abbreviated understanding of the agricultural sector’s climate impact: it does not contain emissions from other food system related processes like transportation and deforestation. Emissions from domestic livestock are also increasing, which mirrors predictions that the United States’ growing cut of the global meat market will continue to climb.

The significance of U.S. CAFOs’ contribution to climate change is unsurprising: there are more than 8.7 billion livestock animals raised on CAFOs in the United States annually. Setting aside the inhumane nature of these processes, CAFOs face significant waste management problems that compound the emissions naturally produced by the animals themselves. CAFOs also emit ammonia (NH3), hydrogen sulfide (H2S), and particulate matter (PM), which threaten public health and disproportionately impact communities of color. A recent study estimates that air pollution from animal farms leads to nearly 13,000 deaths in the United States annually.

The Clean Air Act’s Untested Clout

The problem with regulating CAFOs under the CAA is not one of legal authority, but political will. With no major statutory impediments to regulation, whether the Biden Administration tackles this challenge will rest on its willingness to change the EPA’s decades long abdication of regulatory responsibility.

EPA’s statutory authority to regulate GHGs is clear. As confirmed by the Supreme Court’s decision in Massachusetts v. EPA, “greenhouse gases fit well within the [CAA]’s capacious definition of ‘air pollutant’[.]”

CAA sections 111(b) and (d) arguably empower the EPA to regulate air pollution from new and existing CAFOs by listing factory farms as a source category. This approach was recently promoted by 25 climate and environmental justice organizations, which submitted a petition for rulemaking to EPA. The petition encourages the agency to list dairy and hog farms as source categories under section 111, explaining that “[t]he methane from these diary and hog operations has increased dramatically during recent decades and now accounts for 33% of agricultural methane emissions, 13 percent of total US methane emissions, and 1.3% of total US greenhouse gas emissions. . . . ” Section 111(d) was also previously utilized for the Obama administration’s Clean Power Plan (CPP), and is a powerful and largely untapped vehicle to establish state-specific performance standards for GHG emissions from existing facilities. CAA section 111(b), in turn, could be used to cover new CAFOs. Of course, like the CPP, any such efforts would almost certainly be challenged by industry in federal court and could become a target under future administrations.

In order to use the CAA to curb emissions, the EPA must first list CAFOs as a source of air pollution. This should be relatively easily to do because CAFO emissions are not otherwise regulated under the CAA, and in 2009 EPA issued an endangerment finding for GHGs, of which CAFOs account for 10 percent of U.S. GHG emissions. Further, the fact that facilities emitting similar amounts of GHGs are already regulated—including municipal waste landfills and combustors—should strengthen EPA’s resolve. 40 C.F.R. pt. 60.

With no insurmountable legal hurdle preventing action, the EPA’s failure to regulate CAFO emissions is tied to a controversial 2005 agreement that the agency made with more than 14,000 CAFOs. In exchange for access to only 30 CAFOs’ emissions data, the Animal Feeding Operations Agreement granted immunity from CAA liability to all participants. The agreement was intended to collect data for CAFO CAA standards and create temporary safe harbor for only 4 air pollutants (NH3, H2S, PM, and volatile organic compounds (VOCs)—excluding methane (CH4)). Unfortunately, due to the small number of data, the scope of the monitoring program was criticized as unrepresentative. Nonetheless, the agreement has served as a sweeping liability shield for the CAFO industry.

To effectively tackle climate change, the Biden administration should abandon the Animal Feeding Operations Agreement and begin to regulate CAFOs based on the data collected through the agreement and the 2021 GHG inventory while more rigorous data collection efforts continue. As was contemplated with Obama’s CPP, President Biden’s EPA should also harness state partners to bridge data collection gaps and identify effective emission control methods.

Title VI is an Underutilized Tool for Controlling Emissions

Independent of the CAA, Title VI of the Civil Rights Act of 1964 (Title VI) provides President Biden’s EPA with the power to control CAFOs’ disproportionate impact on communities of color because it prohibits discrimination on the basis of race, color, or national origin by recipients of federal funds. 42 U.S.C. § 2000d. In the context of CAFOs, the Clean Air Act empowers the EPA to withhold federal funding from state agencies whose permitting processes fail to adequately control pollution that has a disproportionate impact on communities of color. 42 U.S.C. § 2000d-1. EPA action under Title VI is especially important because it may represent the only sustainable method to change industry practice. While community-led state tort claims have gained some traction, they are unlikely to reduce or stop pollution industry-wide, and the related transactional costs make them untenable for some community groups.

The disproportionate impact of CAFO pollution on communities of color has been well documented. For example, one study found nine times more CAFOs in underserved communities of color than predominately white populations, and researchers blame this disparity on lack of political power. Another study found that “more than nine of every 10 times communities have turned to [EPA] for help, the civil-rights office has either rejected or dismissed their Title VI complaints.” However, Biden’s appointment of EJ leaders like Michael Regan and Marianne Engelman Lado may provide the agency with the political power needed to make its “poor record of performance” in civil rights enforcement a memory. 

Executive Orders Provide Support for These Actions

Arguably, President Biden’s Executive Order on Tackling the Climate Crisis at Home and Abroad (Climate Order) requires that EPA take action to stem CAFO emissions. The order specifically requires that EPA “strengthen enforcement of environmental violations with disproportionate impact on underserved communities” and create a monitoring program to provide impacted populations with real-time emissions data. Climate Order § 222(b).

The order also creates a National Climate Task Force that includes EPA’s administrator and requires “the organization and deployment of Government-wide approach to combat the climate crisis,” including the development of actions to reduce of climate pollution, protect public health, and deliver environmental justice. Climate Order § 203. EPA’s administrator will also sit on the White House Environmental Justice Interagency Council, which must work with local EJ leaders to “address current and historic environmental injustice” and recommend updates to Executive Order 12,898, which President Clinton signed in the 1990s to address pollutions’ disproportionate impact on communities of color (among other things). Climate Order § 220.

Many of the Climate Order’s directives are bolstered by President Biden’s Executive Order on Advancing Racial Equity (Equity Order). This order arguably applies to CAFOs: it requires all government agencies take action to address “entrenched disparities” in policies that have been exacerbated by climate change (Equity Order § 1) and creates an interagency working group to identify “inadequacies in existing Federal Data Collection programs.” Equity Order § 9(c)(1). Taken together, these mandates further strengthen EPA’s necessary pursuit of Title VI cases and require the collection of data necessary to support CAFO regulation under the CAA.

The Biden administration’s climate focus has created a golden opportunity to stem factory farm emissions. While the administration’s 2030 Climate Plan recognizes that the agricultural industry contributes to climate change, it fails to outline the aggressive action needed to reduce emissions from CAFOs. This administration’s political will must not be stymied by the complicated nature of this problem or the clout of the agricultural industry: with climate and EJ experts at the helm and a growing public concern about CAFOs, the time is ripe for a sea change. 

Abigail E. André

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Abigail E. André is a Staff Attorney and Assistant Professor at the Environmental Advocacy Center at Vermont Law School. Before joining VLS in 2020, André spent 10 years litigating for the Environmental Enforcement Section of the U.S. Department of Justice.