Federal Appeals Court Says “No” to EPA

Article By:

Varnum LLP

posted on: Friday, July 20, 2012

Administrative & Regulatory / Environmental, Energy & Resources / Litigation / Trial Practice

5th Circuit (incl. bankruptcy)

: Printer-friendly; Email this Article; Download PDF; Reprints & Permissions; Tweet

In National Pork Producers Council v. U.S. E.P.A., the Fifth Circuit Court of appeals held that the U.S. EPA overreached in its 2008 Clean Water Act (CWA) Rule, which required CAFOs that discharge or “propose” to discharge apply for a permit. The Rule created a separate “duty to apply” distinct from the requirement to have a permit when discharging. In a unanimous decision, the Fifth Circuit held that EPA’s “duty to apply” was an attempt by EPA to expand the liability scheme under the CWA beyond what the statute allows. Relying on the Second Circuit’s decision in Waterkeeper Alliance (which struck down parts of EPA’s 2003 CAFO rule), he Fifth Circuit found that EPA’s authority under the CWA is strictly limited to the discharge of pollutants into navigable waters, and until that discharge occurs, EPA lacks regulatory authority. The American Farm Bureau Federation has hailed the decision as “a major court victory.”

About the Author

Aaron M. Phelps

Partner

Aaron's practice is focused on commercial and environmental litigation in state and federal courts and Michigan Agriculture Law. On the commercial side, Aaron regularly represents clients in contract disputes, breach of warranty claims, UCC issues, shareholder disputes, and telecommunications matters.

amphelps@varnumlaw.com

616-336-6257

www.varnumlaw.com