Facing Likely Defeat, EPA Abandons Key Farm Case in West Virginia – Sept. 22, 2014

Agency Pounds Chest on Blog, Tucks Tail in Court

WASHINGTON, D.C., September 22, 2014 — The EPA’s decision not to appeal a key federal ruling in favor of West Virginia farmer Lois Alt highlights the cynicism that drives the agency’s water agenda, the American Farm Bureau said today.

The U.S. Court for the Northern District of West Virginia earlier ruled against EPA and in favor of farmer Lois Alt in October 2013. The court rejected EPA’s contention that the Clean Water Act regulates ordinary stormwater runoff from the farmyard (non-production areas) at large livestock or poultry farms.

Since no federal court had ever addressed the question of stormwater runoff from farms such as Alt’s, the lower court’s ruling carries implications for tens of thousands of poultry and livestock farms nationwide. An appellate court decision upholding that ruling would make it even harder for EPA to persist in imposing wide-scale federal permitting requirements on large animal farms (known as “concentrated animal feeding operations” or “CAFOs”). EPA’s voluntary dismissal of its appeal signals the agency’s desire to avoid a likely loss in the appellate court. The appeal could still go forward if any of the five environmental groups that intervened in support of EPA decides to go forward without the government.

“EPA knows its effort to regulate perfectly well-run farms cannot withstand legal scrutiny, and the agency doesn’t quite know how to deal with that,” AFBF President Bob Stallman said. Both AFBF and the West Virginia Farm Bureau joined the suit on the side of Alt. “Apparently, the agency would rather move on and continue pursuing its regulatory agenda farm-to-farm, but not defend it in court.” Although EPA’s motivation seems self-evident, said Stallman, “you wouldn’t know it from the agency’s spin machine.”

EPA laid out its logic in a late-Friday blog posting, evidently trying to bury the news after most journalists had stopped reporting for the day. EPA’s blog explained the agency simply decided “to stop spending resources on litigation about this CAFO … A smart and strategic enforcement program requires us to make choices about where to spend our time for the biggest benefit to the public. We stand firm on this commitment to protect public health and the environment.” The withdrawal, they wrote, “does not change either the law across the country or EPA’s commitment to protecting water quality.”
  

AFBF General Counsel Ellen Steen said: “By dropping its appeal, EPA presumably hopes to avoid a loss in the appellate court. EPA appears to be saying it will continue to enforce its position against other farmers, even though it’s not willing to defend that position in court.”

 

Added AFBF President Bob Stallman, “For most of us, standing firm doesn’t mean walking away just because you are afraid you won’t like the outcome. EPA might call that smart and strategic, but I call it cynical and cowardly. Lois Alt should be proud of her environmental stewardship and her courage in standing up to EPA. She won an important court victory that will benefit many others, and we are proud to have supported her efforts.”

Background on Alt vs. EPA
EPA’s dispute with Alt began when the agency issued an order threatening her with $37,500 in fines per day unless she applied for a Clean Water Act permit for stormwater runoff from her farmyard. EPA cited no deficiencies in Alt’s farming practices, but contended that stormwater containing even miniscule amounts of manure triggered Clean Water Act liability and permitting obligations.

Proud of her record of environmental stewardship, Alt responded with a lawsuit challenging the EPA order. Her complaint cited the long-standing Clean Water Act exemption of “agricultural stormwater discharges.” The dispute garnered national attention as AFBF and West Virginia Farm Bureau joined the suit on the side of Alt, and five environmental groups joined on the side of EPA. All parties focused on the broader implications of the lawsuit for farmers nationwide.

EPA first attempted to back away from the fight about six months after Alt filed suit and just weeks before briefing was to begin. The agency withdrew its order and asked the court to dismiss the suit. The court refused, finding that EPA had not changed its legal position and that the Farm Bureau groups had an ongoing interest in resolving the validity of that position for the benefit of other farmers.

Forced to fight, EPA and its allies came out guns blazing, filing more than 500 pages arguing for Clean Water Act regulation of ordinary stormwater from any part of a perfectly well-run livestock or poultry farm. The court roundly rejected those arguments.

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