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.