[00:00:24] Speaker 05:
And next we have Food and Water Watch versus United States Environmental Protection Agency.

[00:01:10] Speaker 00:
Good morning.

[00:01:10] Speaker 05:
Morning, Ms.

[00:01:11] Speaker 05:
Miller.

[00:01:16] Speaker 00:
May it please the court?

[00:01:17] Speaker 00:
Emily Miller on behalf of Petitioners.

[00:01:19] Speaker 00:
I'm going to try to reserve five minutes for rebuttal, please.

[00:01:22] Speaker 05:
Very well.

[00:01:24] Speaker 00:
This case is about the Environmental Protection Agency denying a request to effectively regulate the significant water pollution from the industrial livestock operations as the Clean Water Act requires.

[00:01:37] Speaker 00:
According to the agency's own estimate, roughly 10,000 concentrated animal feeding operations, or CAFOs, are illegally discharging to waterways and have become a major source of unregulated point source pollution.

[00:01:51] Speaker 00:
EPA has further admitted that its regulations have proven insufficient to compel Clean Water Act compliance, and even stand in the way of effective enforcement.

[00:02:03] Speaker 05:
Yet it- But they came forward and they said, look, what we're gonna do is we're gonna take our time, we're gonna conduct these additional studies, and we're gonna try to come up with this holistic plan, is what they're arguing.

[00:02:17] Speaker 05:
What's wrong with that?

[00:02:20] Speaker 00:
Well, Your Honor, the agency is already on record in a 2022 report in the record at EA-138, ER-138, saying that its regulations are not only failing to address the problem, but they're actually impeding the agency's ability to effectuate the Clean Water Act, because they say, quote.

[00:02:36] Speaker 02:
And even if all that's right, and I assume that it is, that it is correct, that doesn't tell us what EPA has to do.

[00:02:44] Speaker 02:
It says that EPA has to do something.

[00:02:46] Speaker 02:
but it doesn't tell us what they have to do.

[00:02:49] Speaker 02:
And what EPA said was, we're going to study this a little further to make sure we get this right.

[00:02:55] Speaker 02:
We could force EPA to issue some kind of regulations here, and it turned out that they issue bad regulations, and we could chew up a lot more time engaging in arbitrary and capricious review, you know, seriatim here.

[00:03:11] Speaker 02:
I'm just wondering, what's arbitrary and capricious about EPA saying, let's do this cautiously and let's get it right the first time?

[00:03:17] Speaker 00:
Well, Judge Bybee, what EPA first said is that we're denying your request to initiate a rulemaking.

[00:03:23] Speaker 00:
They are not committing at any point to engaging in a rule in the future.

[00:03:27] Speaker 00:
They are saying that they're going to continue studying the problem and thinking about it, but that may or may not result in the rule that we've asked for.

[00:03:34] Speaker 02:
But they've also told us precisely what they're proposing to do

[00:03:38] Speaker 02:
in order to, they're convening certain federal advisory committees, providing for other studies, and they said that they've already initiated those things.

[00:03:49] Speaker 02:
Now, if those don't result, if the evidence remains the same and EPA refuses to do anything further, then you might well have a strong case for arguing that they've behaved arbitrarily and capriciously.

[00:04:02] Speaker 02:
It's very difficult for, I think for our panel

[00:04:05] Speaker 02:
to come in and second-guess the EPA and say, this is the wrong use of your resources to study this further.

[00:04:13] Speaker 00:
Well, Your Honor, what happens is, as you suggest, that they ultimately conclude some years down the line not to engage in a rulemaking.

[00:04:22] Speaker 00:
My clients have lost their opportunity to bring that decision before this court.

[00:04:26] Speaker 00:
Now is the point at which this court can review EPA's continued inaction.

[00:04:31] Speaker 00:
Why is that?

[00:04:33] Speaker 00:
Well, because they deny this petition and subject to Section 509 of the Clean Water Act, we have 120 days to challenge that decision.

[00:04:41] Speaker 00:
And EPA hasn't committed to making a formal agency action where they decide one way or the other.

[00:04:47] Speaker 00:
It can very well be an internal decision.

[00:04:49] Speaker 00:
that petitioners don't even know the outcome of.

[00:04:52] Speaker 00:
And even if we did, there would be no agency action to which we could bring the court's attention to.

[00:04:58] Speaker 00:
And also, Your Honor, I think as we raise in our briefs, the study plans that EPA has proposed are not calculated to result in a fully Clean Water Act compliant program.

[00:05:11] Speaker 00:
The detailed study is

[00:05:13] Speaker 00:
narrowly focused, as shown in the record at ER 216 to 219, on the effluent guidelines that are applicable to permitted CAFOs.

[00:05:22] Speaker 00:
So while they may play a role in improving those standards, they won't address the heart of the problem, which is the widespread failure to permit in the first place.

[00:05:31] Speaker 00:
And therefore, that study shouldn't be used as not a rational basis to delay regulatory revisions related to that problem.

[00:05:40] Speaker 05:
But isn't the problem enforcement here?

[00:05:46] Speaker 05:
Because you have all these CAFOs allegedly out there engaging in this conduct without the permitting that is needed.

[00:05:55] Speaker 05:
But it's the enforcement aspect of this that's the problem.

[00:06:00] Speaker 00:
You're right, Judge Mendoza.

[00:06:02] Speaker 00:
Enforcement has been a problem for EPA, but they also specifically say, again, at ER 138, that their regulations themselves make it difficult for them to pursue effective enforcement.

[00:06:13] Speaker 00:
So they're saying that this problem is persisting not just in spite of their regulations, but because of the regulations.

[00:06:21] Speaker 05:
first point, which was why isn't what they have decided to do to evaluate the process to conduct their studies and determine perhaps better regulations to address this very point that you raise?

[00:06:39] Speaker 00:
If that was their intent, EPA could have granted the petition's general request to update the CAFE regulations to effectuate the Clean Water Act.

[00:06:49] Speaker 00:
said will not commit to a specific outcome of that rulemaking, but we agree that rulemaking needs to happen.

[00:06:54] Speaker 00:
And that's not what they've said, Your Honor.

[00:06:56] Speaker 00:
They've said there's a possibility that we will never update these.

[00:06:59] Speaker 05:
Are they required to engage in a rulemaking before they have all the information?

[00:07:03] Speaker 05:
I mean, are they required to do that first, put the cart before the horse here?

[00:07:06] Speaker 00:
Well, Your Honor, as the court ruled in a community voice where the Clean Water Act gives EPA a clear directive, which here is to regulate CAFO discharges through the point source permit program and authorizes the agency to

[00:07:19] Speaker 00:
engage in rulemaking and update rules when necessary to accomplish it.

[00:07:22] Speaker 00:
EPA is under, quote, a duty stemming from the statute to update regulations in light of the obvious need.

[00:07:28] Speaker 02:
What if the result of EPA's, let's suggest that it's a careful study, is

[00:07:36] Speaker 02:
We don't really need to update the regulations.

[00:07:38] Speaker 02:
What we really need is another thousand inspectors.

[00:07:42] Speaker 02:
And we don't have that in the budget.

[00:07:44] Speaker 02:
So our proposal is we need to go to Congress and make the case to increase the budget so that we have an effective enforcement mechanism of existing regulations.

[00:07:56] Speaker 00:
Well, Judge Baby, EPA does say that it's considering improvements to the current program as in lieu of rulemaking, but that reasoning ignores what's raised in the petition in the briefs, which is the fact that EPA has already tried to do exactly that for decades and without success.

[00:08:13] Speaker 02:
The record shows that- They've tried to get 1,000 more inspectors?

[00:08:16] Speaker 00:
Not that specific example, Your Honor, but that they have prioritized improving compliance with an enforcement of their current regulations.

[00:08:24] Speaker 00:
elevating CAFO Clean Water Act compliance to a national priority for over 14 years.

[00:08:29] Speaker 00:
And during that time, they tried every tool in the toolkit.

[00:08:33] Speaker 00:
They pursued enforcement actions.

[00:08:34] Speaker 00:
They spent millions of dollars on voluntary incentives and technical assistance.

[00:08:38] Speaker 00:
They formed industry and academic work groups to advance compliance, similar to the subcommittee they announced in the denial.

[00:08:46] Speaker 00:
those efforts failed.

[00:08:48] Speaker 00:
And therefore, it's unreasonable for them to rehash those strategies now to avoid a rulemaking, especially when they haven't explained in the denial why it will somehow be different this time around, and when they're also on record stating that the regulations themselves prevent effective enforcement.

[00:09:09] Speaker 00:
And Your Honor, I think just to EPA's overall point that it

[00:09:14] Speaker 00:
lacks information and it needs more information before it can decide whether to update rules at all.

[00:09:20] Speaker 00:
is unreasonable because of this court's decision in a community voice, which held that EPA was statutorily required to engage in a needed rulemaking, data gaps notwithstanding, and that the agency could not use uncertainty as an excuse for regulatory inaction that evaded statutory duties.

[00:09:39] Speaker 00:
And EPA is trying to do that here, and their reasoning is especially arbitrary in this case because

[00:09:46] Speaker 00:
under the Administrative Procedure Act, the agency is also under a legal duty to examine the relevant data.

[00:09:53] Speaker 05:
They concede that this is a problem, certainly with the permitting.

[00:09:55] Speaker 05:
They concede that point, don't they?

[00:09:59] Speaker 00:
They do.

[00:09:59] Speaker 00:
They do not dispute the severity of the problem.

[00:10:03] Speaker 00:
But they are not saying they're going to fix it with updated strengthened regulations.

[00:10:09] Speaker 00:
And they're saying they need more information before they can reach that just threshold question.

[00:10:13] Speaker 03:
What updated regulations would you dictate to EPA?

[00:10:18] Speaker 00:
Well, Your Honor, one of the proposals that we put forth in the petition and that we argue in the briefs is specifically focused on EPA's interpretation of the agricultural stormwater exemption.

[00:10:29] Speaker 00:
and narrowing its interpretation to exclude all CAFO-related discharges from that exemption.

[00:10:35] Speaker 00:
And that's something that EPA concedes it has authority to do.

[00:10:40] Speaker 00:
And this court recently recognized in its Food and Water Watch decision that EPA applied that exemption to CAFOs by rule, not as a matter of statutory compulsion, but out of regulatory discretion.

[00:10:52] Speaker 00:
And the only reason EPA gives in the denial for not doing that is that a court has already upheld its current rule and therefore it must focus on improving implementation of that rule rather than risking an adverse court ruling.

[00:11:08] Speaker 00:
But as we argue in our briefs, Your Honor, that's not a reasonable basis for denying the request because the statutory and regulatory history offer clear support for the requested revision

[00:11:20] Speaker 00:
And as we've argued and as the petition puts forward to EPA, EPA has already tried for decades to improve implementation.

[00:11:31] Speaker 00:
And if the rule itself is inherently flawed and too problematic to properly implement, then a renewed focus on implementing that flawed rule is unreasonable.

[00:11:41] Speaker 03:
And won't they be able to do that in the committees and by the review of the ELG?

[00:11:47] Speaker 00:
Well, Your Honor, the effluent guidelines study, again, it's applicable to the standards for permitted CAFOs.

[00:11:55] Speaker 00:
And the big problem that we sought to address with the stormwater exemption is that it is allowing unpermitted CAFOs to evade permitting requirements.

[00:12:05] Speaker 00:
So the study about the guidelines won't address the issue of permit evasion in the first place.

[00:12:11] Speaker 03:
So you want the CAFO owners to be liable for discharges when there is a storm?

[00:12:21] Speaker 00:
We want the CAFOs.

[00:12:22] Speaker 03:
Absolute liability, whether it's negligence on their part in spreading the manure, or whether it's the storm which is sent from some other source.

[00:12:35] Speaker 00:
Given Congress's clear intent that they expressed in the statute to regulate CAFO discharges through the point source permit program and the demonstrated fact that this exemption is allowing CAFOs to skirt that clear requirement, yes, we want EPA to narrow the exemption.

[00:12:52] Speaker 03:
No storm exemption, period.

[00:12:54] Speaker 00:
Correct.

[00:12:55] Speaker 00:
No agricultural stormwater exemption as applied to CAFO related discharges.

[00:13:01] Speaker 00:
And the statutory history supports that request and therefore shows that EPA's fear of an adverse court ruling in the future is unfounded.

[00:13:12] Speaker 00:
The history shows that when Congress defined CAFOs as point sources, they were motivated by concern over land application of waste and precipitation runoff.

[00:13:24] Speaker 00:
that 15 years later, when the stormwater amendment was passed, they were intending to codify a regulatory carve out that EPA had tried to create.

[00:13:31] Speaker 05:
Isn't that a different problem?

[00:13:33] Speaker 05:
Isn't that someone else's problem?

[00:13:34] Speaker 05:
It's not EPA's, but it's Congress clarifying this.

[00:13:38] Speaker 00:
Well, Your Honor, it was EPA in the denial that said it's scared of a future court ruling against it if it were to revise its interpretation.

[00:13:47] Speaker 00:
So the statutory history showing there is clear support

[00:13:50] Speaker 00:
for the interpretation we suggest and request is relevant to showing that that is not a reasonable position for the agency to have taken.

[00:13:58] Speaker 00:
in show that they adequately considered the relevant problem and offered a reasoned explanation.

[00:14:06] Speaker 02:
And this is a really, it's a very, very awkward argument council to say that it is arbitrary and capricious for EPA to rely on an interpretation of the rule that has been previously approved by another circuit.

[00:14:22] Speaker 02:
You're arguing, well, you should have decided something else or you could decide something else, but to argue that it's arbitrary and capricious for you not to change your interpretation that has been court approved for quite some time, that's a pretty tough argument to make and your legislative history argument is pretty weak.

[00:14:40] Speaker 00:
Well, Your Honor, the legislative history just shows that EPA could make

[00:14:44] Speaker 02:
Okay, but could make a change is very different from arguing that it's arbitrary and capricious for it to fail to change an interpretation that's been court approved.

[00:14:53] Speaker 00:
I understand Judge Fiebe, but what we're arguing is that in the 20 years that have passed since the court approved that interpretation, the record before the agency shows that it's no longer a reasonable one, given that it's enabling widespread permit evasion and that it's based on factual assumptions that are no longer correct.

[00:15:13] Speaker 00:
So one of the problems that we identify.

[00:15:16] Speaker 05:
Hence the need for a study, Council.

[00:15:18] Speaker 00:
Well, again, Your Honor, the study is focused on effluent guidelines.

[00:15:22] Speaker 00:
It's not focused on the agricultural stormwater exemption.

[00:15:26] Speaker 00:
And one of the fundamental assumptions that EPA made when it justified that exemption and that it reiterated in its denial at page 226 of the record

[00:15:36] Speaker 00:
was that it's reasonable to exempt land application discharges from CAFOs when the waste is applied using plans that are designed to prevent or minimize pollution runoff.

[00:15:49] Speaker 00:
And now EPA is on record, most recently in a 2021 CAFO primer document at ER 89, saying that even if CAFOs were to perfectly comply with their plans, their standards are insufficient because

[00:16:04] Speaker 00:
They're not focused on preventing excess runoff.

[00:16:07] Speaker 00:
And as courts have consistently held, for instance, in the American Horse case or the Environmental Health Trust case, when new information comes to light that challenges the factual premise underlying the rule, that constitutes grounds for vacating a petition denial unless the agency has adequately explained why, in light of the new information, its regulation remains adequate.

[00:16:29] Speaker 00:
And here, EPA failed to do that.

[00:16:31] Speaker 00:
They failed completely to address

[00:16:34] Speaker 00:
the record evidence and their own changed understanding.

[00:16:37] Speaker 02:
If the regulation were simply a matter of policy, you would have a much better basis.

[00:16:40] Speaker 02:
But the problem is that it's a reg that adopts a particular view of what the statute means, and that's what's been approved by the Second Circuit, reinforced by the Fifth.

[00:16:52] Speaker 00:
But the Second Circuit, Your Honor, was analyzing the question in a vacuum without the record that EPA has in front of it showing, one, that the fundamental assumptions that the court accepted at the time are no longer holding today, and two, that it is undermining basically the entire statutory scheme of the Clean Water Act by allowing discharging CAFOs to evade permitting.

[00:17:15] Speaker 00:
And that's why now EPA, with that information in front of it, needs to make a change of course.

[00:17:21] Speaker 00:
The reasons that they've put forward in their denial don't adequately explain why they refuse to do so.

[00:17:26] Speaker 05:
Do you want to save the remainder of your time?

[00:17:28] Speaker 00:
I would, Your Honor.

[00:17:29] Speaker 00:
Thank you.

[00:17:41] Speaker 05:
Morning, Mr. Surbernau.

[00:17:43] Speaker 04:
Morning.

[00:17:44] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:17:47] Speaker 04:
Paul Surina on behalf of Respondent US Environmental Protection Agency.

[00:17:52] Speaker 04:
I plan to argue for no more than 15 minutes and give the remaining time to counsel for interveners.

[00:18:00] Speaker 04:
Your Honor, this petition for review involves one issue, whether EPA arbitrarily and capriciously denied petitioners' petition for rulemaking.

[00:18:10] Speaker 04:
Their package of interrelated rulemaking proposals sought to drastically overhaul

[00:18:17] Speaker 04:
EPA's Clean Water Act regulations regarding concentrated animal feeding operations, or CAFOs.

[00:18:25] Speaker 04:
EPA's decision was that now is not an appropriate time to embark on a time-consuming and resource-intensive rulemaking.

[00:18:34] Speaker 05:
Why?

[00:18:36] Speaker 05:
Why?

[00:18:36] Speaker 05:
You know the problem.

[00:18:39] Speaker 05:
EPA understands the problem, correct?

[00:18:41] Speaker 04:
They do.

[00:18:42] Speaker 05:
It does.

[00:18:44] Speaker 05:
Why isn't it now the time?

[00:18:47] Speaker 05:
You don't need additional studies to understand the fact that you need to enforce the permitting process, for example?

[00:18:57] Speaker 04:
Well, in response to Petitioner's rulemaking, EPA denied the rulemaking because it wanted current research and data from the CAFO detailed study that was already underway.

[00:19:08] Speaker 04:
and input from a subcommittee with a broad and diverse membership of stakeholders.

[00:19:18] Speaker 04:
And it understood that the information that those sources would provide would be very valuable in determining how best

[00:19:26] Speaker 04:
to address the challenges presented by the CAFO permitting program.

[00:19:31] Speaker 05:
Your friend on the other side said you've done this before and nothing.

[00:19:39] Speaker 05:
The problem still remains.

[00:19:40] Speaker 05:
Why isn't she right?

[00:19:44] Speaker 04:
EPA is on this right now.

[00:19:47] Speaker 04:
The CAFO detailed study is underway and ongoing, and the subcommittee is underway and ongoing.

[00:19:56] Speaker 04:
those sources are going to be providing the information that EPA needs within a relatively short time period.

[00:20:06] Speaker 05:
But EPA hasn't committed to, as a result of that, engage in a new rulemaking, correct?

[00:20:12] Speaker 05:
Of course not.

[00:20:12] Speaker 04:
No, EPA has many tools to address these problems.

[00:20:16] Speaker 04:
They can improve enforcement, they can improve implementation, or they can make a rulemaking.

[00:20:21] Speaker 04:
But now it's important to know that the

[00:20:24] Speaker 04:
The information that they want was not provided by the petitioners in their submission.

[00:20:31] Speaker 04:
Part of what the effluent study, or what we call the CAFO detailed study, will include is research on emerging technologies and practices designed to prevent pollutants, including an assessment of the economic achievability of those technologies.

[00:20:53] Speaker 04:
And that's important, not only for the assessing the effluent limitations regulations, but the whole program, because one of the problems with what's happening is the over-application of manure, litter, and processed wastewater on these fields.

[00:21:17] Speaker 04:
And among the technologies that EPA is considering and is gathering information on,

[00:21:22] Speaker 04:
are those farm equipment with sensors and GPS that can assess the need for and the amounts of the manure, litter, and processed wastewater that should be applied to the fields in real time.

[00:21:38] Speaker 04:
So that is obviously relevant to all aspects of the CAFO program because the land application

[00:21:50] Speaker 04:
and the consistency with the nutrient management plans is really at the centerpiece of what the program demands.

[00:21:59] Speaker 05:
Her point that this is something that EPA has studied before, that's incorrect?

[00:22:08] Speaker 05:
You haven't been aware of this problem?

[00:22:12] Speaker 04:
I think it's fair to say it's an ongoing problem.

[00:22:15] Speaker 04:
As of when?

[00:22:16] Speaker 04:
An ongoing challenge.

[00:22:17] Speaker 05:
As of when, Council?

[00:22:18] Speaker 05:
Is this a new thing that's happened over the last year or two?

[00:22:21] Speaker 04:
I can't put a date on.

[00:22:24] Speaker 04:
I doubt it's the last year or two.

[00:22:26] Speaker 04:
No.

[00:22:27] Speaker 05:
Okay.

[00:22:27] Speaker 05:
So this is a problem that you all have known for a while, and to resolve this, the agency has decided we're going to go forward with this study, correct?

[00:22:42] Speaker 04:
The study is one thing that the agency is doing, correct.

[00:22:46] Speaker 04:
It's more than, it's considering various topics that are on pages.

[00:22:57] Speaker 04:
If you want to look at ER 1516, 215 and 216, it's going to gather info about CAFO discharges nationwide, about the new technologies and practices and the costs of those.

[00:23:11] Speaker 04:
assessments of concentrations in CAFO discharges and the health of the agriculture industry financially, which goes to the affordability of the new technologies.

[00:23:21] Speaker 04:
So that's the CAFO study.

[00:23:23] Speaker 04:
It's not just limited to effluent

[00:23:24] Speaker 02:
I have a question that's probably going to be just a little bit obnoxious, but just bear with me, and I'm going to make up some facts.

[00:23:33] Speaker 02:
But I suspect that any proposal that comes out from EPA in the future to reform this practice is going to be very controversial, and it's likely to engender a lot of opposition, maybe some controversy in Congress.

[00:23:51] Speaker 02:
So one reason that agencies sometimes establish federal advisory committees is to sort of broaden the basis of support for whatever it is that the agency chooses to do.

[00:24:03] Speaker 02:
You've chosen a representative group in which you've got lots of input from industry, those who are most likely to oppose any change in these regulations.

[00:24:13] Speaker 02:
And that suggests that you may be trying to build some kind of level of consensus that will give you political cover.

[00:24:18] Speaker 02:
If what APA is doing is studying this in order to protect itself from an adverse reaction in Congress, is that arbitrary and capricious for the agency to take that into account?

[00:24:33] Speaker 04:
Your Honor, I don't think you've accurately stated the purpose of the stakeholder subcommittee, if we can call it that.

[00:24:42] Speaker 04:
It's not a committee of industry.

[00:24:44] Speaker 02:
Well, that's why I gave it to you as a hypothetical and told you it was going to be a little obnoxious that I was making a fact.

[00:24:49] Speaker 02:
So I want you to assume the facts that I've given you.

[00:24:51] Speaker 02:
Is it arbitrary and capricious for an agency to take into account political realities?

[00:24:59] Speaker 04:
It may be.

[00:25:00] Speaker 04:
I don't think that's what's happening here.

[00:25:02] Speaker 04:
And certainly the decision doesn't reflect that at all.

[00:25:06] Speaker 04:
I think what's happening, Your Honor, is that EPA is building a record.

[00:25:11] Speaker 04:
not only with the KFO detailed study, but also with the stakeholder subcommittee.

[00:25:20] Speaker 04:
You know, all these interested parties from various parts of various groups and perspectives and concerns are invited into work groups, and they're coming up with their ideas, information, and proposals.

[00:25:35] Speaker 04:
The hope is that they'll collaborate on a collective recommendation that EPA will get.

[00:25:41] Speaker 04:
I think EPA is more concerned about getting the information that's out there in this nationwide, you know, industry, CAFO, and making sure that it adequately understands the problem and can select which of the tools it wants to use to address each of the issues that are in play.

[00:26:06] Speaker 04:
Rulemaking is an extremely expensive, time-consuming,

[00:26:11] Speaker 04:
and resource-intensive tool to use.

[00:26:14] Speaker 04:
And EPA or any agency wouldn't use that tool lightly.

[00:26:21] Speaker 04:
And it serves no purpose for the agency to simply do a rulemaking to do a rulemaking because they got a petition to do a rulemaking when it knows that there's relevant information that's out there that they can access in a relatively short period of time that's going to be very relevant to their decision.

[00:26:41] Speaker 04:
And that's what's happened here.

[00:26:42] Speaker 03:
Why can't they get that information during the rulemaking process?

[00:26:47] Speaker 04:
Well, but then they'd have already decided that there was a rule necessary.

[00:26:52] Speaker 04:
Here, they're not sure whether a rule is appropriate or something short of a rule, something less drastic, such as better enforcement, better implementation.

[00:27:06] Speaker 05:
Can you address the exception argument?

[00:27:08] Speaker 04:
Yes.

[00:27:08] Speaker 04:
There were three grounds on which

[00:27:11] Speaker 04:
EPA denied to initiate a rulemaking based on petitioners' interpretation of the agricultural stormwater exception.

[00:27:20] Speaker 04:
One was this new information that's out there that they can collect that will play into whether a rulemaking is even necessary or whether something else such as improved enforcement or implementation will suffice.

[00:27:35] Speaker 04:
But in addition, as we pointed out earlier,

[00:27:39] Speaker 04:
EPA relied on the Second Circuit decision that had upheld its interpretation.

[00:27:50] Speaker 04:
Certainly that cannot be arbitrary or capricious.

[00:27:53] Speaker 05:
Now they're saying that, hey, it's been 20 years or whatever since that decision.

[00:27:57] Speaker 05:
There's new information that you all have.

[00:27:59] Speaker 05:
That should be sufficient to understand that there's a need to readdress the issue.

[00:28:07] Speaker 04:
And that's what's happening.

[00:28:08] Speaker 04:
That's right now, again, that's what's happening.

[00:28:10] Speaker 04:
Detailed, KFO detailed study, stakeholder subcommittee, they're getting the information and they're in process of getting the information they need to figure out how to tackle these challenges.

[00:28:25] Speaker 04:
But the third rationale for denying that aspect of petitioner's petition was that they

[00:28:33] Speaker 04:
They understated the robustness of the existing regulations.

[00:28:37] Speaker 04:
So EPA took issue with that.

[00:28:39] Speaker 04:
So there were three reasons why EPA denied petitioners' petition on the agricultural stormwater exemption.

[00:28:50] Speaker 04:
On community voice versus EPA, that case involved a very different situation where the court had granted a petition for writ of mandamus, and then EPA

[00:29:03] Speaker 04:
did not take action based on what was considered significant data gaps and scientific uncertainty.

[00:29:14] Speaker 04:
Now, this case is very different.

[00:29:17] Speaker 04:
EPA is considering a rulemaking petition in the first instance, and, you know, it has decisionary discretion in that context.

[00:29:30] Speaker 04:
And the agency's denial wasn't that there was gaps in the science.

[00:29:35] Speaker 04:
As we've discussed, the agency believed that it needed more current data and research before embarking on a rulemaking.

[00:29:51] Speaker 03:
You're not giving your co-counsel much time.

[00:29:56] Speaker 05:
I think he has some additional time.

[00:29:59] Speaker 04:
I thought they had 15 on there when I began.

[00:30:01] Speaker 04:
Okay, thank you.

[00:30:04] Speaker 04:
In any event, unless there are further questions, I would ask the court to conclude that the agency's action was not arbitrary and capricious and to deny the petition for review.

[00:30:17] Speaker 04:
Thank you.

[00:30:34] Speaker 05:
Morning, Mr. Chung.

[00:30:36] Speaker 01:
Good morning, Judge Mendoza.

[00:30:37] Speaker 01:
May it please the court?

[00:30:38] Speaker 01:
David Chung on behalf of the Agricultural Interveners.

[00:30:42] Speaker 01:
Judge Bybee, you hit the nail on the head.

[00:30:44] Speaker 01:
It is not arbitrary and capricious for EPA to refuse to change its longstanding interpretation of the agricultural stormwater exclusion in denying the petition, applying the extremely limited and highly deferential standard of a rule applicable to denials of rulemaking petitions.

[00:31:00] Speaker 01:
EPA's decision to stand by its interpretation at this time

[00:31:03] Speaker 01:
which the Second Circuit upheld in a nationally binding decision should be affirmed.

[00:31:09] Speaker 01:
EPA's long-standing interpretation harmonizes two parts of the same statutory definition of point source.

[00:31:16] Speaker 01:
The statute explicitly includes concentrated animal feeding operations, while explicitly excluding agricultural stormwater discharges.

[00:31:25] Speaker 01:
After considering the Clean Water Act's text, history, and purpose, the Second Circuit and the Waterkeeper decision found that EPA's interpretation comports with Congress's intent.

[00:31:38] Speaker 01:
The court looked to dictionary definitions at the time that Congress enacted the exclusion in 1987 and said, those dictionaries define agriculture to include raising livestock, which CAFOs indisputably do.

[00:31:52] Speaker 01:
The Second Circuit also emphasized to Judge Baez's point that when Congress enacted the exclusion, it was affirming the impropriety of imposing liability for agriculture-related discharges

[00:32:05] Speaker 01:
triggered not by negligence or malfeasance, but by the weather, even if those discharges come from what are otherwise point sources.

[00:32:13] Speaker 01:
Notably, even before the Second Circuit decided Waterkeeper, courts considering whether discharges from CAFO land application areas can be excluded from permitting as agricultural stormwater discharge took essentially the same approach.

[00:32:27] Speaker 01:
These are cases that petitioners cite in their own briefs.

[00:32:31] Speaker 01:
Cases, for example, like concerned area residents for the environment,

[00:32:35] Speaker 01:
versus Southview Farm cited on page 25 of the petitioner's reply brief.

[00:32:40] Speaker 01:
In that case, the court noted, because Congress mandated comprehensive regulations of certain forms of industrial and municipal stormwater runoff under 33 USC 1342 P, one can infer that Congress wanted to make clear agriculture was not included in this program.

[00:32:58] Speaker 01:
key to that court's analysis was whether the discharges in question occurred during rainfall or whether they were mixed with rainwater during, or sorry, is not whether the discharges occurred during rainfall or were mixed with rainwater, but rather whether the discharges were the result of precipitation.

[00:33:17] Speaker 01:
Similarly, in another case that petitioners cite,

[00:33:21] Speaker 01:
Community Association for Restoration of the Environment versus Sid Koopman Dairy cited on their 48 of their opening brief, that court likewise said, the agricultural stormwater exclusion does not relieve CAFO farmers from liability for over application or misapplication that results in discharges.

[00:33:40] Speaker 01:
But notably, the court did not say discharges from land application areas related to a CAFO always require a permit.

[00:33:47] Speaker 01:
Quite the contrary, citing Southview Farm, which we just discussed, the court said there remain genuine issues of fact regarding the extent to which defendants lands are point sources.

[00:33:59] Speaker 01:
That outcome makes no sense, Your Honors, if discharges from CAFO land application areas were categorically ineligible for the exclusion, as petitioners suggest.

[00:34:11] Speaker 01:
Petitioners seek to get a lot of mileage out of their assertions that the record shows there is widespread evasion.

[00:34:20] Speaker 01:
from permitting by CAFOs and that there are widespread discharges.

[00:34:24] Speaker 01:
For example, they repeatedly note that 10,000 CAFOs are unlawfully discharging without a permit.

[00:34:31] Speaker 01:
The reality is those are estimates that are outdated from a 2008 rulemaking where EPA roughly said that it thinks that 75 percent of CAFOs meet the now defunct proposed discharge standard.

[00:34:45] Speaker 01:
What's your number?

[00:34:46] Speaker 01:
Our number, so respectfully, Judge Mendoza, we don't have a real number, and that is why EPA is studying the problem.

[00:34:54] Speaker 05:
So their number is wrong, but we don't have a number.

[00:34:55] Speaker 05:
Is that your answer?

[00:34:57] Speaker 01:
We don't know precisely.

[00:34:58] Speaker 01:
We know that there's no dispute that there are unpermitted CAFOs.

[00:35:04] Speaker 01:
The permit inventory and the excerpts of records show that there are, in fact, CAFOs without permits.

[00:35:11] Speaker 01:
A study that EPA has designed, calculated to get a number?

[00:35:15] Speaker 01:
Correct, Your Honor.

[00:35:16] Speaker 01:
So if you look at ER 218 and ER 221, EPA is very candid.

[00:35:22] Speaker 01:
It says the data on actual discharges from CAFOs is very sparse.

[00:35:27] Speaker 01:
ER 218 specifically says it only has data from 16 CAFOs.

[00:35:32] Speaker 01:
So there's a lot of supposition here, and we respectfully submit that that's not a good basis to force EPA to completely detonate a statutory exclusion.

[00:35:40] Speaker 01:
EPA is looking into the number of CAFOs that are actually discharging without a permit.

[00:35:45] Speaker 01:
And another final point is any figure that relates to CAFOs that are purportedly discharging without a permit is not confined to just whether discharges are happening at land application areas.

[00:35:55] Speaker 01:
Any prior estimates from EPA are aimed at both the production area

[00:36:00] Speaker 01:
and land application areas.

[00:36:01] Speaker 01:
So again, the preferred outcome in this case that petitioners want you to force EPA to undertake, which is completely redo the exclusion, is disproportionate to the problem that they claim.

[00:36:12] Speaker 01:
This is... All right.

[00:36:13] Speaker 05:
Thank you, counsel.

[00:36:14] Speaker 05:
Hold on.

[00:36:15] Speaker 05:
Are there any other questions?

[00:36:17] Speaker 05:
Any other questions, gentlemen?

[00:36:19] Speaker 05:
All right.

[00:36:19] Speaker 05:
Thank you for your time.

[00:36:21] Speaker 05:
We appreciate it.

[00:36:30] Speaker 00:
I'd like to make three brief points, but first I'd like to correct something Interveners Council just said about how the study will be defining how many CAFOs are discharging without permits nowhere in the study announcement in the record at ER 216 and 219.

[00:36:44] Speaker 00:
Does it say it's going to be trying to figure out how many CAFOs without permits are discharging?

[00:36:51] Speaker 05:
But to the government's council... But aren't they trying to figure out the scope of the problem though?

[00:36:55] Speaker 00:
They're trying to see how the extent to which CAFOs are discharging so as to figure out what effluent guideline standards they need to potentially strengthen within permits.

[00:37:06] Speaker 00:
So this is all within the universe of permitted CAFOs, the study.

[00:37:10] Speaker 00:
And to EPA's earlier arguments about lack of information and how that provides a reasonable basis for the denial, Community Voice forecloses that.

[00:37:19] Speaker 00:
Community Voice found that lack of information is not an excuse to evade statutory duties or

[00:37:26] Speaker 02:
Right, if you've got a statutory duty, I mean, one of the things that sort of bothers me about the whole posture of this case is this is very close to a petition for mandamus.

[00:37:35] Speaker 02:
And what you've asked to do is to order EPA to issue a rule.

[00:37:39] Speaker 02:
The funny thing about that is usually when we get a petition for mandamus, it's because there's some duty that an agency must undertake and that it is clear that it has failed to do.

[00:37:53] Speaker 02:
And here, your order is, you've got to issue a rule.

[00:37:57] Speaker 02:
We have no idea what that rule might be, but you have to issue a rule.

[00:38:00] Speaker 02:
If EPA issued the wrong rule, it would satisfy what you've requested here.

[00:38:06] Speaker 02:
And that just doesn't seem that it makes a lot of sense for us to issue what looks like a writ of mandamus to issue a rule that has no particular content to it.

[00:38:16] Speaker 00:
Well, Judge Bybee, respectfully, I disagree.

[00:38:18] Speaker 00:
We are not asking you to order EPA to issue a rule.

[00:38:21] Speaker 00:
We are simply asking for a remand and for EPA to reconsider the petition consistent with its obligations under the Clean Water Act and the Administrative Procedure Act.

[00:38:31] Speaker 00:
If EPA were to reconsider the petition.

[00:38:34] Speaker 02:
Wait, you're just asking EPA to reconsider things?

[00:38:36] Speaker 00:
Correct, yes.

[00:38:37] Speaker 00:
That is the relief we're requesting here.

[00:38:39] Speaker 00:
And it's narrow understanding the deferential standard here.

[00:38:43] Speaker 00:
And I do understand that a community voice arose out of it.

[00:38:46] Speaker 02:
But if EPA just came in and just issued the same letter all over again, said, well, we just think we need to study it, that would satisfy your concern?

[00:38:53] Speaker 00:
Well, Your Honor, if EPA were to actually comply with its Clean Water Act and Administrative Procedure Act,

[00:38:58] Speaker 00:
obligations in replying to the petition, we're confident that the answer would be that a rulemaking is warranted, and that's all we're seeking.

[00:39:06] Speaker 00:
We're just seeking their reconsideration here.

[00:39:09] Speaker 02:
Did you request EPA to reconsider this?

[00:39:13] Speaker 00:
Well, that is the relief we requested of this court, yes.

[00:39:16] Speaker 02:
Did you request EPA to reconsider this?

[00:39:19] Speaker 02:
Is this a petition from a denial by EPA of a motion for reconsideration?

[00:39:23] Speaker 00:
No, Your Honor, this is a petition to review the denial itself.

[00:39:28] Speaker 00:
And the relief that we've requested is just that EPA reconsider its denial, consistent with its obligations.

[00:39:36] Speaker 02:
It's a very, very, it's a very odd request.

[00:39:38] Speaker 02:
Well, Your Honor, that is the normal relief that is available to petitioners in this type of... Well, in this context, but this is a very awkward context, I think.

[00:39:49] Speaker 02:
I understand, Your Honor.

[00:39:51] Speaker 02:
When EPA said, we're not denying this, we agree there's a problem, there's some things here that we're not doing as well as we could be, let's figure out what the right thing to do is.

[00:39:59] Speaker 02:
And you've come in and said, no court, order EPA to do something different.

[00:40:04] Speaker 00:
Well, Your Honor, if EPA came back with a different response that said, this is a problem, we agree, we are going to figure out exactly what regulatory updates we're going to make, but we will make updates, then that would be a sufficient- But that might be an irresponsible answer.

[00:40:22] Speaker 02:
That might be an unreasonable answer from EPA because the answer could be,

[00:40:27] Speaker 02:
The current system that we have is flawed, but we can't design a better system.

[00:40:33] Speaker 02:
And so what we really need is 10,000 more inspectors to enforce the rules that we currently have in existence.

[00:40:40] Speaker 02:
That would not be arbitrary and capricious for EPA to come up with something like that.

[00:40:47] Speaker 02:
But we've got to stand back and give the agency the room to do what it's supposed to do.

[00:40:52] Speaker 00:
And if that is their answer and they adequately explain it and justify it in the record, then that is the answer.

[00:40:58] Speaker 00:
But, Your Honor, this petition response was not adequately explained or justified.

[00:41:02] Speaker 02:
But demanding that they give that answer at this time, when what they've said is, we need some additional time and space to study this.

[00:41:10] Speaker 02:
We've designed to study.

[00:41:12] Speaker 02:
We've got things underway.

[00:41:14] Speaker 02:
And we will have some results in some reasonable time period in the future.

[00:41:19] Speaker 02:
It just doesn't sound arbitrary and capricious.

[00:41:23] Speaker 00:
Your Honor, I would also note, though, that we're not expecting the agency to turn around another response immediately.

[00:41:29] Speaker 00:
It took them seven years to answer this outstanding petition.

[00:41:34] Speaker 00:
And they will have been conducting these studies during the time.

[00:41:38] Speaker 00:
There just needs to be a sufficient

[00:41:42] Speaker 00:
hook to bring it back to the court's attention should their response continue to be arbitrary and capricious and right now there is that that does not exist.

[00:41:53] Speaker 05:
And your honor I would like to hold on I think you are over time if you would like to do you have another if you want to make your final point counsel.

[00:42:02] Speaker 00:
Your honor, I would just conclude by saying that, again, all we're asking for is a remand and reconsideration.

[00:42:10] Speaker 00:
EPA has already spent seven years when it could have been taking a statutory mandate seriously, not responding, and not thinking about it, and now wants some undefined amount of time to continue thinking rather than acting.

[00:42:23] Speaker 00:
And all we want is a remand and reconsideration consistent with their Clean Water Act and Administrative Procedure Act obligations.

[00:42:31] Speaker 00:
Thank you.

[00:42:32] Speaker 05:
Thank you.

[00:42:35] Speaker 05:
I want to thank both all three council.

[00:42:37] Speaker 05:
Thank you very much for your arguments today.

[00:42:40] Speaker 05:
Food and Water Watch versus United States Environmental Protection Agency will be submitted at this time.