NO.

_______________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FOOD & WATER WATCH, INC., CENTER FOR FOOD SAFETY, DAKOTA
RURAL ACTION, DODGE COUNTY CONCERNED CITIZENS,
ENVIRONMENTAL INTEGRITY PROJECT, HELPING OTHERS MAINTAIN
ENVIRONMENTAL STANDARDS, INSTITUTE FOR AGRICULTURE AND
TRADE POLICY, IOWA CITIZENS FOR COMMUNITY IMPROVEMENT,
KEWAUNEE CARES, MIDWEST ENVIRONMENTAL ADVOCATES,
NORTH CAROLINA ENVIRONMENTAL JUSTICE NETWORK,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.

PETITION FOR A WRIT OF MANDAMUS TO COMPEL

UNREASONABLY DELAYED ACTION BY
THE ENVIRONMENTAL PROTECTION AGENCY

Emily Miller (CA Bar No. 336417) Allison LaPlante (OR Bar No. 023614)
Tarah Heinzen (OR Bar No. 191131) Earthrise Law Center
Food & Water Watch Lewis & Clark Law School
1616 P Street, N.W. Ste 300 10010 S. Terwilliger Blvd.
Washington, D.C. 20036 Portland, OR 97219
(202) 683-2500 (Miller) (503) 768-6894
(202) 683-2457 (Heinzen) [email protected]
[email protected]
[email protected]
 TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1
RELIEF SOUGHT .................................................................................................... 2
ISSUE PRESENTED ................................................................................................ 2
STATEMENT OF JURISDICTION ......................................................................... 3
FACTUAL AND LEGAL BACKGROUND............................................................ 5
I. Concentrated Animal Feeding Operation (CAFO) Pollution Poses a
Serious Threat to Human Health and the Environment ............................. 5
II. EPA’s Attempts to Regulate CAFO Pollution Under the Clean Water Act
Have Proven Ineffective .......................................................................... 10
A. The Clean Water Act and NPDES Permits......................................... 10
B. Regulation of CAFOs Under the Clean Water Act............................. 12
C. EPA Acknowledges that its CAFO Regulations Do Not Adequately
Address Public Health and Environmental Impacts ........................... 14
D. EPA has Consistently Refused to Make Necessary Updates to its
CAFO Regulations Absent Court Intervention................................... 17
III. EPA has Failed to Respond for More Than Five Years to Petitioners’
Petition for Rulemaking ........................................................................... 18
ARGUMENT .......................................................................................................... 20
I. Petitioners Have Standing to Pursue a Writ of Mandamus Compelling
EPA to Act ............................................................................................... 20
II. EPA’s Delay is Sufficiently Egregious to Warrant this Court’s
Intervention .............................................................................................. 22
A. EPA Has a Clear Duty to Respond to the Petition.............................. 24
B. TRAC Factors One & Two: EPA’s Five-Year Delay Defies the Rule
of Reason and Relevant Clean Water Act Timetables ........................ 24
C. TRAC Factors Three & Five: EPA’s Delay is Unreasonable Given the
Health and Welfare Concerns Prejudiced by the Delay ..................... 26
D. TRAC Factor Four: EPA’s Delay is Unreasonable Because No
Competing Priorities Justify its Delay ................................................ 28
E. TRAC Factor Six: EPA’s History of Resisting Needed Action on
CAFOs Absent Court Intervention Further Warrants Mandamus ...... 29

ii
CONCLUSION ....................................................................................................... 30
CERTIFICATE OF COMPLIANCE ...................................................................... 32
CERTIFICATE OF SERVICE ................................................................................ 33
STATEMENT OF RELATED CASES .................................................................. 34
RULE 26.1 DISCLOSURE STATEMENT ............................................................ 35

iii
 TABLE OF AUTHORITIES

Cases

Ctr. for Sci. in the Pub. Interest v. FDA,

74 F. Supp. 3d 295 (D.D.C. 2014) ................................................................ 24

Citizens for Better Forestry v. USDA, 341 F.3d 961 (9th Cir. 2003) ...................... 21

Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010) ............................. 6

E.I. Du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977) .............................. 4

Food & Water Watch v. EPA, 20 F.4th 506 (9th Cir. 2021) ....................... 12, 13, 18

Friends of the Earth v. Laidlaw Env’t Servs., Inc.,

528 U.S. 167 (2000) ...................................................................................... 20

Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003) ............................ 25

In re A Cmty. Voice, 878 F.3d 779 (9th Cir. 2017) .......................................... passim

In re Am. Rivers & Idaho Rivers United,

372 F.3d 413 (D.C. Cir. 2004) ................................................................ 24, 25

In re Cal. Power Exch. Corp., 245 F.3d 1110 (9th Cir. 2001) .................................. 5

In re NRDC, 956 F.3d 1134 (9th Cir. 2020)..................................................... passim

In re Pesticide Action Network N. Am., 798 F.3d 809 (9th Cir. 2015).............. 24, 25

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ...................................................... 21

Nat’l Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011) ................ 4, 12

Nw. Env’t. Def. Ctr. v. Bonneville Power Admin.,

117 F.3d 1520 (9th Cir. 1997)......................................................................... 2

NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992) .......................................................... 4

iv
NRDC v. EPA, 808 F.3d 556 (2d Cir. 2015) ........................................................... 11

NRDC v. Jewell, 749 F.3d 776 (9th Cir. 2014) ....................................................... 21

Peabody Coal Co. v. EPA, 522 F.2d 1152 (8th Cir. 1975) ....................................... 4

Pub. Citizen Health Research Grp. v. Comm’r, FDA,

740 F.2d 21 (D.C. Cir. 1985) ........................................................................ 26

Salmon Spawning & Recovery All. v. Gutierrez,

545 F.3d 1220 (9th Cir. 2008)....................................................................... 21

Telecomms. Research & Action Ctr. v. FCC (TRAC),

750 F.2d 70 (D.C. Cir. 1984) .............................................................. 3, 23, 30

Tenneco Oil Co. v. EPA, 592 F.2d 897 (5th Cir. 1979) ............................................ 4

Waterkeeper All., Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) ......................... 4, 10, 17

W. Watersheds Project v. Kraayenbrink,

632 F.3d 472 (9th Cir. 2011)................................................................... 20, 22

Federal Statutes

5 U.S.C. § 555(b)........................................................................................... 3, 21, 24

28 U.S.C. § 1651(a) ................................................................................................... 3

33 U.S.C. § 1311 ..................................................................................................... 11

33 U.S.C. § 1311(a) ................................................................................................. 11

33 U.S.C. § 1311(b)(2)(A) ...................................................................................... 11

33 U.S.C. § 1314(b)................................................................................................. 26

33 U.S.C. § 1314(m) ............................................................................................... 26

33 U.S.C. § 1318(a) ................................................................................................ 12

v
33 U.S.C. § 1342 ..................................................................................................... 11

33 U.S.C. § 1342(a)(2) ............................................................................................ 12

33 U.S.C. § 1342(b)(1)(B)....................................................................................... 26

33 U.S.C. § 1362 ..................................................................................................... 11

33 U.S.C. § 1362(14)......................................................................................... 12, 13

33 U.S.C. § 1369(b)(1) .......................................................................................... 3, 4

33 U.S.C. § 1369(b)(1)(E)–(F) .................................................................................. 4

State Statutes

Iowa Code Section 459.311(2) ................................................................................ 16

North Carolina Statute Section 150B-19.3 .............................................................. 16

Regulations

40 C.F.R. § 122.23(b)(8) ........................................................................................... 7

40 C.F.R. § 122.23(b)(3) ........................................................................................... 7

40 C.F.R. § 122.23(e) .............................................................................................. 13

40 C.F.R. §§ 122.44(i)(1) & (2) .............................................................................. 12

40 C.F.R. § 122.44(k)(3) ......................................................................................... 11

40 C.F.R. § 122.44(k)(4) ......................................................................................... 11

40 C.F.R. § 412.2(j)–(k) .......................................................................................... 15

40 C.F.R. § 412.4 ...................................................................................................... 6

40 C.F.R. § 412.4(c)(1) ........................................................................................... 13

vi
40 C.F.R. § 412.31(a)(1)(i)...................................................................................... 13

Federal Register Publications

68 Fed. Reg. 7176 (Feb. 12, 2003) .................................................................. 5, 9, 15

73 Fed. Reg. 70,418 (Nov. 20, 2008) ................................................................ 12, 15

76 Fed. Reg. 65,431 (Oct. 21, 2011) ................................................... 6, 9, 14, 18, 28

77 Fed. Reg. 42,679 (July 20, 2012) ....................................................................... 18

77 Fed. Reg. 44,494 (July 30, 2012) ....................................................................... 13

86 Fed. Reg. 7037 (Jan. 20, 2021) .......................................................................... 29

vii
 INTRODUCTION

Concentrated animal feeding operation (CAFO) pollution devastates

waterways across the country, jeopardizing human health and the environment in the

process. Congress has expressly directed the United States Environmental Protection

Agency (EPA or the Agency) to regulate CAFO pollution under the Clean Water

Act. But decades later, EPA’s lax regulation of the industry’s pollution has failed to

protect the nation’s waters or the communities that rely on these essential resources.

To remedy this failure, in 2017 dozens of groups (Petitioners) petitioned EPA to

strengthen its regulatory approach to CAFOs, recommending specific actions the

Agency should take to ensure that all discharging facilities are subject to Clean

Water Act permits, and that those permits are sufficiently protective of water quality.

It has been well over five years since Petitioners filed the Petition, yet EPA

has failed to respond. This delay necessitates a writ of mandamus under the well-

known “TRAC” factors. EPA’s unjustified failure to act exceeds any rule of reason,

particularly in light of the Clean Water Act timetables established to continually

strengthen oversight of CAFO pollution. Critically, EPA’s delay is perpetuating the

ongoing harm that unchecked CAFO water pollution inflicts on Petitioners, their

members, and communities across the country. Given the magnitude of the health

and environmental threats, competing priorities do not justify further delay. Finally,

EPA’s repeated refusal to regulate CAFO pollution demonstrates it likely will not

1
act of its own accord. EPA has violated its duty to timely respond to the Petition,

and its egregious delay warrants this Court’s intervention.

RELIEF SOUGHT

Petitioners Food & Water Watch, Center for Food Safety, Dakota Rural

Action, Dodge County Concerned Citizens, the Environmental Integrity Project,

Helping Others Maintain Environmental Standards, Institute for Agriculture and

Trade Policy, Iowa Citizens for Community Improvement, Kewaunee CARES,

Midwest Environmental Advocates, and North Carolina Environmental Justice

Network1 request that this Court issue a writ of mandamus compelling EPA to take

a final, reviewable action in response to their March 8, 2017 Petition to Revise the

Clean Water Act Regulations for Concentrated Animal Feeding Operations by

approving or denying it in writing. Petitioners ask the Court to order EPA to respond

within 90 days and to retain jurisdiction to ensure a complete response.

ISSUE PRESENTED

Whether EPA’s failure to respond to the Petition for more than five years is

1
Petitioners have contemporaneously filed a Motion for Leave to File Standing
Declarations, appending 16 declarations thereto (Exhibits 1–16) that establish
Petitioners’ standing in this case. See Nw. Env’t Def. Ctr. v. Bonneville Power
Admin., 117 F.3d 1520, 1527−28 (9th Cir. 1997) (considering affidavits to prove
standing because “petitioners had no reason to include facts sufficient to establish
standing as a part of the administrative record”). Petitioners also file the
Declaration of Emily Miller, attaching documents received from EPA through the
Freedom of Information Act.

2
arbitrary, capricious, and contrary to the Administrative Procedure Act, 5 U.S.C. §

555(b), which requires federal agencies to conclude matters presented to them

“within a reasonable time.”

STATEMENT OF JURISDICTION

The All Writs Act, 28 U.S.C. § 1651(a), authorizes the courts of appeals to

issue “all writs necessary or appropriate in aid of their respective jurisdictions,”

including writs of mandamus ordering agencies to take final actions in the event of

unreasonable delay. See In re A Cmty. Voice, 878 F.3d 779, 783 (9th Cir. 2017). In

such cases, when a court “would have jurisdiction to review a final rule” then it also

has jurisdiction to determine whether an agency’s delay with respect to that final

action is unreasonable. Cmty. Voice, 878 F.3d at 783 (citing Telecomms. Res. &

Action Ctr. v. FCC (TRAC), 750 F.2d 70, 75 (D.C. Cir. 1984) (“Where a statute

commits review of agency action to the Court of Appeals, any suit seeking relief that

might affect the Circuit Court’s future jurisdiction is subject to the exclusive review

of the Court of Appeals.”)).

In this case, section 509 of the Clean Water Act, 33 U.S.C. § 1369(b)(1),

commits review of a final rule on CAFOs to the courts of appeals. Section 509 grants

courts of appeals exclusive jurisdiction over any determination EPA makes “in

approving or promulgating any effluent limitation” and in “issuing or denying any

[National Pollutant Discharge Elimination System (NPDES)] permit.” 33 U.S.C. §

3
1369(b)(1)(E)–(F). These provisions empower appellate courts to review effluent

limitations guidelines promulgated by EPA, see E.I. Du Pont de Nemours & Co. v.

Train, 430 U.S. 112, 136–137 (1977), as well as any “rules that regulate the

underlying NPDES permitting procedures.” NRDC v. EPA, 966 F.2d 1292, 1296–97

(9th Cir. 1992). Here, the Petition requests EPA overhaul its Clean Water Act

regulation of CAFOs by revising the rules underlying CAFO permitting procedures

and strengthening applicable effluent limitations guidelines. See Appendix at

APP018. Any final action EPA undertakes in response to the Petition is therefore

subject to direct Circuit Court review. See, e.g., Waterkeeper All., Inc. v. EPA, 399

F.3d 486, 490 (2d Cir. 2005); Nat’l Pork Producers Council v. EPA, 635 F.3d 738,

747 (5th Cir. 2011) (both challenging EPA CAFO rules directly in the Circuit Court).

Venue is appropriate in the Ninth Circuit if any petitioner “transacts business

which is directly affected by [the at-issue] action” within the Circuit. 33 U.S.C. §

1369(b)(1). For purposes of section 509 review, an entity “transacts business” where

the challenged action will have a “significant effect” on a petitioner’s business. See

Tenneco Oil Co. v. EPA, 592 F.2d 897, 899 (5th Cir. 1979); Peabody Coal Co. v.

EPA, 522 F.2d 1152, 1153 (8th Cir. 1975). The Ninth Circuit is the appropriate venue

here because Petitioners Food & Water Watch and Center for Food Safety maintain

offices and conduct significant advocacy work to strengthen regulation of CAFO

4
water pollution in the Circuit, including in California, Oregon, Washington, Idaho,

and Hawaii. Hauter Decl. ¶¶ 12–13; Kimbrell Decl. ¶¶ 7–8.

Accordingly, a writ of mandamus is the only adequate remedy available to

Petitioners and this matter is properly before this Court. See In re Cal. Power Exch.

Corp., 245 F.3d 1110, 1120 (9th Cir. 2001) (holding mandamus is appropriate where

plaintiffs have no other adequate remedy).

FACTUAL AND LEGAL BACKGROUND

I. CAFO Pollution Poses a Serious Threat to Human Health and the
Environment
Animal production has changed dramatically over the last several decades,

with facilities growing far larger and more geographically concentrated. As a result,

industrial-scale CAFOs that house thousands—or even millions—of animals at a

time have become the dominant method of livestock production. APP009, 70. And

as CAFOs and entire livestock sectors have increasingly concentrated in certain

watersheds, so too have the vast quantities of waste these facilities generate.

APP010. As of 2003, EPA estimated CAFOs generate approximately 300 million

tons of manure every year, more than three times the amount of raw sewage waste

generated by the entire United States population. NPDES Permit Regulation and

Effluent Limitation Guidelines and Standards for CAFOs, 68 Fed. Reg. 7176, 7176

5
& 7180 (Feb. 12, 2003). Since then, EPA data show the industry has grown by nearly

40 percent, with a commensurate increase in waste production.2

This industrialization of livestock production has led to widespread water

pollution. Agriculture is now the nation’s leading contributor to water quality

impairments in rivers and lakes, with manure responsible for a significant share of

that pollution. APP010–11, 98–99, 101. Twenty-nine states have identified animal

feeding operations as contributing to these impairments, and states with high

concentrations of CAFOs “experience on average 20 to 30 serious water quality

problems per year as a result of manure management problems.” APP011, 81.

Decades of research make clear that standard CAFO practices are driving this

water pollution crisis. CAFOs store millions of gallons of untreated manure and

wastewater in open pits or lagoons, then ultimately dispose of that waste by

spreading it onto cropland. NPDES CAFO Reporting Rule, 76 Fed. Reg. 65,431,

65,433–34 (Oct. 21, 2011); 40 C.F.R. § 412.4. Thus, pollution-laden CAFO waste

enters surface waters through two major pathways—CAFO production areas and

2
See NPDES CAFO Permitting Status Report: National Summary, Endyear 2021,
EPA (July 20, 2022), https://www.epa.gov/system/files/documents/2022-
07/CAFO%20Status%20Report%202021.pdf. This publicly-available report on
EPA’s website is subject to judicial notice. See, e.g., Daniels-Hall v. Nat’l Educ.
Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (allowing judicial notice of
information made publicly available through a government website). Where
Petitioners ask this Court take judicial notice, we have provided a hyperlink to the
government document at issue.

6
land application fields.3 Spills, runoff, leaks, and other discharges may occur from

numerous parts of a CAFO production area, such as through leaching or overflowing

manure lagoons, feed storage areas, and mortality management areas. APP011.

Hundreds of documented overflows and failures of manure storage systems have

resulted in massive pollution discharges and toxic stream conditions in numerous

states, in addition to discharges from manure lagoons to groundwater that then flows

into surface waters. APP011, 78, 103–41; Eayrs Decl. ¶ 15 (describing her local river

as a “cesspool of manure runoff”); Duhn Decl. ¶ 19 (discussing the “foul-smelling

layer of film” that develops on lake surfaces due to CAFO waste); Masri Decl. ¶ 6

(discussing catastrophic lagoon breaches); Utesch Decl. ¶¶ 6–7, 13 (recounting

excessive ground and surface water contamination due to lagoon discharges).

CAFO discharges also occur due to excessive application of waste to cropland

or under conditions that lead to runoff, such as on frozen, saturated, or sloped

ground, or when crops are not in place to uptake nutrients. APP012. EPA has

determined that “in many areas, manure is applied in excess of crop needs,” Miller

Decl. ¶ 6, Ex. E at 14, and that “appropriate nutrient management practices are not

3
The CAFO production area is the part of the facility “that includes the animal
confinement area, the manure storage area, the raw materials storage area, and the
waste containment areas.” 40 C.F.R. § 122.23(b)(8) (2012). The CAFO land
application area is land under the control of the CAFO operator “to which manure,
litter or process wastewater from the production area is or may be applied.” Id. §
122.23(b)(3).

7
followed for 92 percent of manured acres.” Miller Decl. ¶ 7, Ex. F at 7. CAFO waste

production often far surpasses land available for disposal, and this insufficient

farmland cannot utilize all the manure nutrients applied. The excess is therefore

susceptible to runoff. APP069. Compounding the problem, many manure

application fields contain direct conduits to waterways, such as tile lines, ditches, or

sinkholes, which carry improperly applied manure directly to surface waters.

APP012. Utesch Decl. ¶ 11 (describing use of tile drains resulting in discharges).

Nutrients are key pollutants of concern in CAFO waste due to their impacts

on aquatic ecosystems and public health. Excess nutrients can generate algal blooms

that produce toxins harmful to animals, aquatic life, and humans who come into

contact with them, and cause hypoxic “dead zones,” such as those that occur

annually in the Gulf of Mexico and the Chesapeake Bay. APP013, 76; Gibart Decl.

¶ 20 (describing “dead fish that pile up on the shoreline”); Utesch Decl. ¶ 13

(lamenting the decline of brookie populations “decimated [by] contaminated

runoff”). Nitrates from CAFO waste can also contaminate drinking water sources,

which can be particularly dangerous for infants at risk of debilitating birth defects

and fatal nitrate poisoning. APP081. See Gibart Decl. ¶ 19 (recounting severe illness

and hospitalization of seven-month-old infant following CAFO nitrate exposure);

Utesch Decl. ¶ 9 (same); Gillespie Decl. ¶ 10 (describing doctor instructing children

to hold their noses and mouths while bathing in CAFO-contaminated well water);

8
Espey Decl. ¶ 15 (discussing Iowa’s costly nitrate treatment systems to address

polluted drinking water sources). Excess nitrates are also associated with

miscarriages and increased risk of certain cancers. APP081.

Moreover, CAFO waste contains dangerous pollutants that have no value to

crops even under optimal conditions, such as pathogens, antibiotics, artificial growth

hormones, heavy metals, and pesticides. 76 Fed. Reg. at 65,433–34. EPA has found

that “[m]ore than 150 pathogens found in livestock manure are associated with risks

to humans, including the six human pathogens that account for more than 90% of

food and waterborne diseases.” 68 Fed. Reg. at 7236. These pathogens, including E.

coli, Salmonella, and Giardia, can cause severe gastrointestinal illness, skin rashes,

bacterial infections, and even death. APP012, 83–84; Gillespie Decl. ¶¶ 8–9

(contracting near fatal blood infection due to exposure); Duhn Decl. ¶ 20

(developing a painful skin rash after kayaking in CAFO-contaminated waters).

Feed additives used to promote animal growth, including medically important

antibiotics, heavy metals, and hormones, are excreted in animal waste and can

similarly wreak havoc on public health and the environment. EPA has found that 80

to 90 percent of administered antibiotics and heavy metals added to feed end up in

animal waste, as do large quantities of natural and synthetic hormones. APP013–14.

When disposed of, this waste can cause antibiotic-resistant bacteria to proliferate in

waterways and result in hormone-induced damage to endocrine and reproductive

9
systems of aquatic species and humans. Id. See also Utesch Decl. ¶ 12 (discussing

child who contracted antibiotic-resistant bacterial infection after swimming in

CAFO-contaminated waters, requiring partial removal of kneecap).

EPA acknowledges that CAFO pollution disproportionately impacts certain

communities.4 Researchers have found that large CAFOs are disproportionately

sited in low-income communities and communities of color, APP014, 143–4, and an

EPA analysis identified areas at risk of disproportional impacts from virtually every

CAFO livestock sector: the Delmarva Peninsula (broiler chicken operations); the

Iowa-Minnesota border, (hog, egg layer, and beef feedlot operations); the Carolina

lowlands, (hog, broiler, and turkey operations); and the California central valley,

(dairy operations). These regions have both large numbers of CAFOs and large

minority and low-income populations. APP014–15, 147. See also Masri Decl. ¶¶

13–14 (explaining the burdens faced by communities near CAFO operations).

II. EPA’s Attempts to Regulate CAFO Pollution Under the Clean Water
Act Have Proven Ineffective
A. The Clean Water Act and NPDES Permits

“[A] cornerstone of the federal effort to protect the environment,”

Waterkeeper All., Inc., 399 F.3d at 490, the Clean Water Act prohibits the “discharge

4
EPA Legal Tools to Advance Environmental Justice [hereinafter EPA
Environmental Justice Report], EPA 1, 75 (May 2022),
https://www.epa.gov/system/files/documents/2022-
05/EJ%20Legal%20Tools%20May%202022%20FINAL.pdf#page=88.

10
of any pollutant” from any “point source” to navigable waters “except in compliance

with law.” 33 U.S.C. §§ 1311, 1362. The main way to achieve compliance with the

Act’s discharge prohibition is by obtaining and complying with an NPDES permit,

which controls pollution through effluent limitations that restrict discharges of

pollutants. 33 U.S.C. §§ 1311(a), 1342.

Permit limitations operate by identifying specific technologies capable of

controlling a pollutant and setting numeric or narrative effluent limitations based on

that demonstrated capability. In this manner, the Act was designed to ratchet up

water quality protections as pollution control technology advances, improving water

quality over time through more stringent controls. Id. § 1311(b)(2)(A) (requiring the

“best available technology economically achievable” for many pollutants); NRDC v.

EPA, 808 F.3d 556, 563–64 (2d Cir. 2015) (“Congress designed [these standards] to

be technology-forcing, meaning it should force agencies and permit applicants to

adopt technologies that achieve the greatest reductions in pollution.”). These

technology-based limitations are typically expressed numerically, but when

“numeric effluent limitations are infeasible,” a permit may instead require “[b]est

management practices (BMPs) to control or abate the discharge of pollutants.” 40

C.F.R. § 122.44(k)(3). Best management practices may also function as a point

source’s primary pollutant control technology and may be required where

“reasonably necessary to achieve effluent limits and standards.” Id. § 122.44(k)(4).

11
 NPDES permits must also require both representative effluent monitoring and

reporting of monitoring results. 33 U.S.C. §§ 1318(a), 1342(a)(2); 40 C.F.R. §§

122.44(i)(1) & (2). Such monitoring conditions are necessary to verify compliance

with effluent limitations and to facilitate permit enforcement. Food & Water Watch

v. EPA, 20 F.4th 506, 515–16 (9th Cir. 2021). Pollutant-specific effluent limits,

practices or technologies capable of achieving those limits, and monitoring to

establish compliance with those limits, thereby work together to reduce pollution.

B. Regulation of CAFOs Under the Clean Water Act

CAFO pollution discharges are “point source” discharges subject to the Clean

Water Act’s general prohibition on unpermitted discharges. 33 U.S.C. § 1362(14).

Congress’ decision to expressly include CAFOs in the definition of point source

demonstrates an unambiguous intent to regulate discharges of pollutants from

CAFOs through the imposition of progressively more protective pollution standards.

EPA’s regulations previously required CAFOs that proposed to discharge due

to their design, construction, operation, or maintenance to apply for NPDES permits.

Revised NPDES Permit Regulation and Effluent Limitations Guidelines for CAFOs

in Response to the Waterkeeper Decision, 73 Fed. Reg. 70,418, 70,423, 70,469

(Nov. 20, 2008). However, following the Fifth Circuit’s decision in 2011, Nat’l Pork

Producers Council, 635 F.3d at 751, EPA removed this provision. NPDES Permit

Regulation for CAFOs: Removal of Vacated Elements in Response to 2011 Court

12
Decision, 77 Fed. Reg. 44,494, 44,494–95 (July 30, 2012). As a result, EPA only

requires CAFOs to seek NPDES permit coverage if they admit they discharge.

EPA has established effluent limitations for both CAFO production and land

application area discharges. EPA prohibits CAFO production area discharges, aside

from wastewater overflows caused by extreme precipitation events. See 40 C.F.R. §

412.31(a)(1)(i). EPA also requires CAFOs that land apply waste to “minimiz[e]

nitrogen and phosphorus movement to surface waters.” 40 C.F.R. § 412.4(c)(1).

CAFOs must implement a Nutrient Management Plan that contains “best

management practices necessary to meet . . . [these] applicable effluent limitations.”

Id. § 122.42(e)(1).

Unlike most industries, EPA has not required permitted CAFOs to monitor

their pollution to demonstrate compliance with effluent limitations. See Food &

Water Watch, 20 F.4th at 518 (finding EPA CAFO permit lacked required discharge

monitoring provisions). Moreover, EPA’s current rules exempt many land

application-related discharges from regulation as “agricultural stormwater,” which

the Clean Water Act excludes from the definition of a point source. 33 U.S.C. §

1362(14). Under EPA’s broad interpretation of this exemption, as long as point

source CAFOs apply waste in accordance with Nutrient Management Plans, any land

application discharges associated with precipitation are considered nonpoint source

pollution exempt from permitting requirements. 40 C.F.R. § 122.23(e).

13
 C. EPA Acknowledges that its CAFO Regulations Do Not
Adequately Address Public Health and Environmental Impacts

More than a decade ago, EPA conceded that “despite more than 35 years of

regulating CAFOs, reports of water quality impacts from large animal feeding

operations persist.” 76 Fed. Reg. at 65,433. This regulatory failure can be attributed

to two critical flaws in the Agency’s CAFO program: (1) the majority of CAFOs

discharge, yet evade permit coverage; and (2) even CAFOs that do have NPDES

permits are subject to requirements that do not effectively control their discharges.

EPA acknowledges that its CAFO regulations are inadequate. The Agency

admits that “[m]any CAFOs are not regulated and continue to discharge without

NPDES permits” in violation of the Clean Water Act, because its “regulations

contain definitions, thresholds and limitations that make it difficult to compel permit

coverage.” EPA Environmental Justice Report, supra note 4, at 75. The Agency

further acknowledges that “while many waters are affected by pollutants from

CAFOs, many CAFOs often claim that they do not discharge, and EPA and state

permitting agencies lack the resources to regularly inspect these facilities to assess

these claims.” Id.; see also Espey Decl. ¶ 8–9. Indeed, although EPA estimates that

75 percent of all CAFOs discharge as a result of their standard operational profiles,

only 30 percent of even the largest CAFOs are currently permitted. Miller Decl. ¶ 7,

Ex. F, at 10, 12. In other words, more than 9,600 unpermitted Large CAFOs across

14
the country are illegally discharging pollution with no regulatory oversight.5

Moreover, this trend of inadequate permit coverage has only worsened under EPA’s

current rules. Between 2011 and 2021, the estimated number of permitted Large

CAFOs decreased by 14.5 percent, while the overall number of Large CAFOs

increased by 18 percent.6

Further, EPA concedes that even when CAFOs are subject to EPA’s own

pollution standards, those standards fail to effectively “limit the discharge of

pollutants under certain circumstances” and do not allow EPA to “enforce

requirements even when discharges have been established.” EPA Environmental

Justice Report, supra note 4, at 75. For starters, EPA’s CAFO effluent limitations

only apply to the largest of operations, 68 Fed. Reg. at 7208, and only focus on

nutrients and pathogens, failing to address antibiotics, metals, hormones, and more.

40 C.F.R. § 412.2(j)–(k); 73 Fed. Reg. at 70,463.

The applicable effluent limitations also fall short of effectively regulating

even nutrient and pathogen pollution. As EPA is fully aware, there are many

5
EPA estimates there are approximately 21,237 Large CAFOs, 6,266 of which
have NPDES permits. NPDES CAFO Permitting Status Report, supra note 2. If
approximately 75 percent (15,928) of CAFOs discharge, an additional 9,662
unpermitted Large CAFOs should be covered under the NPDES program.
6
Compare NPDES CAFO Regulations Implementation Status – National
Summary, Endyear 2011, EPA (Dec. 31, 2011),
https://www.epa.gov/sites/default/files/2015-08/documents/npdes_cafo_rule_
implementation_status_-_national_summary_endyear_2011_0.pdf with NPDES
CAFO Permitting Status Report, supra note 2.

15
instances in which CAFOs should be using more protective practices than what the

Agency currently requires due to a high risk of runoff. Rather than prohibiting these

practices, EPA instead urges states to do so themselves. APP091–93 (“strongly

encourag[ing] states to prohibit” numerous high-risk application practices). Yet the

Agency knows that many state permitting agencies are themselves prohibited from

exceeding EPA’s minimum requirements. See, e.g., Iowa Code Section 459.311(2)

(“any rules adopted pursuant to this [manure control] subsection shall be no more

stringent than requirements under the [Clean Water Act]”); North Carolina Statute

Section 150B-19.3 (prohibiting state agencies from adopting “a rule for the

protection of the environment or natural resources that imposes a more restrictive

standard, limitation, or requirement than those imposed by federal law or rule”).

Another known problem is that the Agency’s Nutrient Management Plan

manure application requirements “are agronomic rather than water-quality based,”

Miller Decl., Ex. E at 14, meaning they are designed to ensure that farms maximize

crop yields, rather than prevent discharges to waterways. EPA incorrectly assumes

that this agronomic approach will enable operations to minimize nutrient loss and

comply with effluent limitations. APP046–49. But research has demonstrated that

“just having a [Nutrient Management Plan] does not reduce excess nutrient

application nor does it guarantee improvements in water quality.” APP096.

Moreover, when CAFOs do over-apply waste to cropland, there are no monitoring

16
requirements to capture the discharge, see supra at Section II.B, and regardless,

EPA’s current rules allow operators to easily write off discharges as exempt

agricultural stormwater. APP027–28. These deficiencies in EPA’s approach have

resulted in both a largely-unregulated CAFO industry and CAFO permits, where

they exist, that fail to adequately protect water quality.

EPA acknowledges that many of the specific recommendations in the Petition

would improve its broken CAFO program and better protect impacted communities.

The Agency believes it could “improve the effectiveness of the CAFO regulations”

by redefining the term CAFO to be more inclusive, limiting the agricultural

stormwater exemption, mandating additional best management practices for

production and land application areas, and requiring discharge monitoring. EPA

Environmental Justice Report, supra note 4, at 75. The Petition urges EPA to adopt

these measures and more. APP026–31, 35–36, 38–62.

D. EPA has Consistently Refused to Make Necessary Updates to

CAFO Regulations Absent Court Intervention

Although CAFOs are major and largely unregulated sources of water

pollution, EPA has consistently failed to make any improvements to its CAFO rules

unless compelled by legal action. In 2003, only in response to a lawsuit did the

Agency issue its first-ever update to its 1970s CAFO regulations. See Waterkeeper

All., Inc., 399 F.3d at 494 n.12. In 2011, it took a court-approved settlement

agreement to spur an initial effort to gather a basic inventory of the CAFO industry.

17
NRDC v. EPA, No. 09-60510 Settlement Agreement at 2–4 (May 25, 2010); 76 Fed.

Reg. 65,431. But see 77 Fed. Reg. 42,679 (withdrawing the proposal rather than

finalizing the rule, leaving the Agency without comprehensive CAFO information

to this day).7 This Court recently halted EPA’s longtime failure to require CAFO

discharge monitoring after environmental petitioners sued the Agency for its illegal

practice. Food & Water Watch, 20 F.4th 506. And it took yet another lawsuit for

EPA to reconsider its reliance on nonexistent CAFO monitoring data to evaluate

whether to update its CAFO effluent limitations guidelines. Food & Water Watch v.

EPA, No. 21-71084, EPA Mot. For Voluntary Remand (9th Cir. Jan 7, 2022) (ECF

19-1). In sum, EPA simply does not act to address CAFOs under the Clean Water

Act without significant prodding and court intervention.

III. EPA Has Failed to Respond for More Than Five Years to
Petitioners’ Petition for Rulemaking

On March 8, 2017, thirty-two public interest organizations petitioned EPA to

revise its inadequate Clean Water Act regulations for CAFOs. APP002–62. The

Petition not only laid out the well-known water quality and human health impacts of

the CAFO industry, but also highlighted the regulatory inadequacies that allow

excessive and unregulated CAFO pollution to persist. APP009–18. The Petition

7
EPA has opted to collect state data rather than conducting its own CAFO
inventory, despite its own finding that state data are “inconsistent and inaccurate
and do not provide EPA with the reliable data it needs to identify and inspect
permitted CAFOs nationwide.” 76 Fed. Reg. at 65,435.

18
raised numerous legal and factual arguments in support of accomplishing two

overarching goals: (1) ensuring that all discharging CAFOs obtain NPDES

permits—including by narrowing EPA’s interpretation of agricultural stormwater

and establishing a presumption that certain CAFOs discharge; and (2) strengthening

NPDES permits to ensure adequate protection of water quality. APP018–62.

More than five years have passed since the Petition filing, and Petitioners have

received no response. Yet it appears EPA has been prepared to respond for nearly

half that time. According to EPA records obtained through Freedom of Information

Act (FOIA) requests, in July 2018 EPA began creating and circulating Petition

briefing documents containing the Agency’s analysis of the Petition requests. Miller

Decl. ¶ 8, Ex. G. By 2019, EPA was already fully aware of its significant delay and

became concerned about the possibility of Petitioners filing this action. Miller Decl.

¶ 9, Ex. H at 1 (“I keep waiting for the notice of intent to sue us from FWW et. al.

since it has now been more than two years since they filed the petition.”). The

Agency’s consideration came to a head in 2020, when records show that EPA was

preparing its formal response to the Petition. Miller Decl. ¶ 10, Ex. I at 2. However,

EPA then opted not to publish its answer, even though it was clearly poised to do so.

Miller Decl. ¶ 11, Ex. J. Following this postponement, FOIA records show that EPA

staff was “beginning to like the FWW petition more and more.” Miller Decl. ¶ 13,

Ex. K at 1. But EPA’s delay—and CAFO pollution—continue.

19
 ARGUMENT

I. Petitioners Have Standing to Pursue a Writ of Mandamus

Compelling EPA to Act

An organization has standing if “its members would otherwise have standing

to sue in their own right, the interests at stake are germane to the organization’s

purpose, and neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Friends of the Earth, Inc. v.

Laidlaw Env’t Servs., Inc. (TOC), 528 U.S. 167, 181 (2000). Ensuring that EPA

responds to the Petition, and in turn addresses the CAFO pollution crisis threatening

waterways and communities across the country, is clearly germane to Petitioners’

purposes as organizations focused on water protection and/or environmental justice.

Alschuler Decl. ¶¶ 4–6; D. Eayrs Decl. ¶¶ 4–7; Espey Decl. ¶¶ 4–8; Gibart Decl. ¶¶

4–7, 10; Hauter Decl. ¶¶ 4–8, 12–13; James Decl. ¶¶ 4–6, 11–12; Kimbrell Decl. ¶¶

4–9, 11; Lilliston Decl. ¶¶ 3–5, 7–8; Masri Decl. ¶¶ 4–7; Russ Decl. ¶¶ 4–7, 12;

Utesch Decl. ¶¶ 4–7. Indeed, Petitioners have dedicated significant time and

resources to addressing unregulated and underregulated CAFO water pollution,

working to improve state CAFO NPDES programs, and holding EPA accountable

to its Clean Water Act obligations. Id. Moreover, individual members’ participation

is not required for, nor would it aid, the proper resolution of this case. See W.

Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011).

20
 Petitioners’ members also have standing to sue in their own right for their

procedural injuries. Ordinarily, individuals have standing when they suffer an

“injury in fact” that is fairly traceable to the challenged conduct and capable of

redress by a favorable decision from the court. NRDC v. Jewell, 749 F.3d 776, 782

(9th Cir. 2014). However, a “person who has been accorded a procedural right to

protect his concrete interests can assert that right without meeting all the normal

standards for redressability and immediacy.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 572 n.7 (1992). That is, Petitioners’ members need only show that following

the procedure in question “could protect their interest.” Salmon Spawning &

Recovery All. v. Gutierrez, 545 F.3d 1220, 1228 (9th Cir. 2008).

Petitioners’ members satisfy this test because EPA violated an Administrative

Procedure Act requirement, 5 U.S.C. § 555(b), that is clearly intended to protect

citizens’ interests by ensuring agencies are not allowed to ignore concerns raised by

the public. Petitioners’ members have concrete interests “by virtue of their

geographic proximity and use of” waterways affected by CAFO pollution. Citizens

for Better Forestry v. USDA, 341 F.3d 961, 971 (9th Cir. 2003); see also Duhn Decl.

¶¶ 2, 9, 19–22; S. Eayrs Decl. ¶¶ 5–7; Gillespie Decl. ¶¶ 7–9; Kimbirauskas Decl.

¶¶ 11–18; Mendoza Decl. ¶¶ 6, 14, 16; Utesch Decl. ¶¶ 12–16. Based on concerns

about pollution from both permitted and unpermitted CAFOs in the waters they live

near and extensively use, as well as documented water quality degradation from

21
pollutants associated with CAFOs, they have curtailed their use of specific

waterbodies, limited their recreational activities within certain waterways, and

enjoyed those activities less. Duhn Decl. ¶¶ 12, 19–22; S. Eayrs Decl. ¶¶ 14–15;

Gillespie Decl. ¶ 12; Kimbirauskas Decl. ¶¶ 11, 15–18; Mendoza Decl. ¶¶ 14, 16;

Utesch Decl. ¶¶ 12–16.

Finally, continued delay is reasonably likely to threaten Petitioners’ members’

interests. As discussed above, EPA’s inadequate CAFO program has led to severe

water pollution across the nation and in the specific waterways Petitioners’ members

use and enjoy. Duhn Decl. ¶¶ 24–26; S. Eayrs Decl. ¶¶ 16–17; Gillespie Decl. ¶¶

13–14; Kimbirauskas Decl. ¶¶ 19–21, 12; Mendoza Decl. ¶¶ 17–18, 12; Utesch Decl.

¶¶ 16–18; see also W. Watersheds Project, 632 F.3d at 485−86 (finding standing for

procedural injury where group established “geographical nexus” between members’

interests and agency action). Because EPA’s response to the Petition “could protect”

these members’ interests by revising the CAFO rules, or at least enabling Petitioners

to challenge an unlawful Petition denial, Petitioners have standing to pursue a writ

of mandamus here.

II. EPA’s Delay is Sufficiently Egregious to Warrant this Court’s

Intervention

For more than five years, EPA has shirked its duty under the Administrative

Procedure Act by failing to respond to the Petition urging it to strengthen its

inadequate CAFO regulations. EPA’s egregious delay has prejudiced Petitioners,

22
their members, and the public at large by forestalling much-needed regulatory action

to combat the significant and growing public health and environmental harms caused

by CAFO water pollution. Accordingly, Petitioners are entitled to a writ of

mandamus compelling EPA to respond. In re NRDC, 956 F.3d 1134, 1138 (9th Cir.

2020) (explaining that mandamus is warranted “when an agency’s delay is

egregious”) (internal quotations omitted).

This Court has adopted the D.C. Circuit’s six-factor test to evaluate claims of

unreasonable delay, established in Telecommunications Research & Action Center

v. FCC (TRAC). 750 F.2d at 80. See, e.g., NRDC, 956 F.3d at 1138–39 (applying the

TRAC test). Under this test, courts consider: (1) whether the delay comports with the

“rule of reason”; (2) whether Congress has indicated a timeframe it considers

appropriate for the action at issue; (3) the extent to which delay could harm human

health and welfare; (4) the effect expediting would have on competing agency

priorities; (5) the nature and scope of interests prejudiced by delay; and (6) that

agency impropriety is not required for an unreasonable delay finding. TRAC, 750

F.2d at 80.

Here, the TRAC factors weigh in favor of granting mandamus relief. EPA’s

five-year delay is unreasonable, especially in light of the Clean Water Act’s clear

mandate to regulate CAFO pollution according to relevant statutory timelines for

strengthening pollution standards. Moreover, EPA acknowledges that CAFOs and

23
the dangerous wastes they produce pose a serious threat to human health, thereby

prejudicing the frontline communities in which these operations are

disproportionately sited, and whom the Agency claims to prioritize.

A. EPA Has a Clear Duty to Respond to the Petition

The Administrative Procedure Act requires an agency to “conclude a matter

presented to it” “within a reasonable time.” 5 U.S.C. § 555(b); Cmty. Voice, 878 F.3d

at 784. This includes administrative petitions that are “requests for discretionary

action.” In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004).

Thus, EPA must make a “final ruling” on the Petition—a “formal action to grant or

deny it”—that is subject to judicial review, In re Pesticide Action Network N. Am.,

798 F.3d 809, 813 (9th Cir. 2015), and it must do so “within a reasonable time.” 5

U.S.C. § 555(b).

B. TRAC Factors One & Two: EPA’s Five-Year Delay Defies the
Rule of Reason and Relevant Clean Water Act Timetables

EPA’s failure to answer the CAFO Petition plainly violates the rule of reason.

The first TRAC factor—whether the agency’s delay is reasonable—is the “most

important factor in the analysis,” Cmty. Voice, 878 F.3d at 786, and along with factor

two, requires inquiry into “whether the agency’s response time complies with an

existing specified schedule and whether it is governed by an identifiable rationale.”

Ctr. for Sci. in the Pub. Interest v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C. 2014).

24
 Although there is no rigid timetable for answering petitions, the Ninth Circuit

has repeatedly concluded that “a reasonable time for agency actions is typically

counted in weeks or months, not years.” NRDC, 956 F.3d at 1139; Cmty. Voice, 878

F.3d at 787. Indeed, this Court has routinely held years-long delays to be

unreasonable. See, e.g., NRDC, 956 F.3d at 1136 (three years); Cmty. Voice, 878

F.3d at 787 (eight years); Pesticide Action Network, 798 F.3d at 811 (eight years).

This Court has also looked to “the more developed law of the District of Columbia,”

which has found a six-year delay is “nothing less than egregious,” NRDC, 956 F.3d

at 1139 (quoting Am. Rivers & Idaho Rivers United, 372 F.3d at 419), and that a

“five year delay smacks of unreasonableness on its face.” Fund for Animals v.

Norton, 294 F. Supp. 2d 92, 113 (D.D.C. 2003).

Here, EPA’s more than five-year delay has stretched the “rule of reason”

beyond its limits. The Agency has provided no justification for its delay, nor has it

provided Petitioners a concrete timeline for its response. Furthermore, FOIA

documents show that EPA has been seemingly prepared to answer the Petition for at

least two years, yet has failed to do so. Miller Decl. ¶¶ 10–11, Ex. I–J. Without any

identifiable rationale governing its continued failure to act, this delay “smacks of

unreasonableness on its face.” Fund for Animals, 294 F. Supp. 2d at 113.

EPA’s delay is especially egregious given the Clean Water Act’s clear

mandate to regulate CAFO pollution with NPDES permits, and the relevant statutory

25
timetables that Congress provided for the review and revision of NPDES regulations.

See, e.g., 33 U.S.C. §§ 1314(b) (requiring EPA to review effluent limitations

guidelines for each industry sector, including CAFOs, “at least annually” and revise,

if appropriate), 1314(m) (requiring EPA to publish a plan every two years that

“establish[es] a schedule for the annual review and revision of promulgated effluent

guidelines”), 1342(b)(1)(B) (requiring permitting agencies to establish fixed terms

for NPDES permits not to exceed five years). The Petition seeks changes to the same

regulations and permits that EPA is already mandated to review and revise on a

shorter timeline than its delay to date. This Court has found similar delays

unreasonable in the context of far less specific Congressional mandates. See, e.g.,

Cmty. Voice, 878 F.3d at 787 (“eliminate [lead poisoning] expeditiously”). EPA’s

more than five-year delay has therefore extended beyond any rule of reason.

C. TRAC Factors Three & Five: EPA’s Delay Is Unreasonable Given

the Health and Welfare Concerns Prejudiced by the Delay

Because CAFO pollution poses a clear threat to human health but remains

largely unregulated, the third and fifth TRAC factors—impacts to human health and

welfare, and the interests prejudiced by the delay—weigh heavily in favor of

Petitioners. “When the public health may be at stake, the agency must move

expeditiously to consider and resolve the issues before it.” Pub. Citizen Health Res.

Grp. v. Comm’r, FDA, 740 F.2d 21, 34 (D.C. Cir. 1985). The Ninth Circuit has

consistently granted mandamus relief where EPA has delayed action raising human

26
health concerns—especially children’s health—and has itself acknowledged the

unmitigated public health risk. See, e.g., Cmty. Voice, 878 F.3d at 787 (finding EPA

unreasonably delayed updating lead-based paint standards for eight years given the

“clear threat to human welfare” and EPA’s own acknowledgment that lead poisoning

was a significant health threat to children and “the current standards are

insufficient”); NRDC, 956 F.3d at 1136 (ordering EPA to respond to a petition to

end the use of a dangerous pesticide in household pet products after three years of

delay where EPA acknowledged the widespread and serious risk it posed to the

neurodevelopmental health of children).

Here, EPA has likewise acknowledged the indisputable human health risks

attributable to CAFO discharges. Inadequately regulated CAFO pollution presents a

serious health risk to neighboring and downstream communities whose drinking

water and recreational waterways are contaminated with nitrates, pathogens, and

other dangerous pollutants. See supra Section I. This is particularly the case for

infants who are at risk of birth defects and nitrate poisoning when exposed to

contaminated drinking water. APP081; Gibart Decl. ¶ 19 (infant nitrate poisoning

incident). But older children and adults also face substantial, even life-threatening

health risks. APP081, 84; Gillespie Decl. ¶¶ 8–9 (near-fatal blood infection); Utesch

Decl. ¶ 12 (frequent infections and gastrointestinal diseases in community); Duhn

Decl. ¶ 20 (severe skin rash). Just as in NRDC and Cmty. Voice, EPA has

27
acknowledged these widespread CAFO health risks, as well as the heightened threat

to infants. Supra at Section I.

Moreover, the Agency has conceded that its CAFO regulations fail to remedy

the problem. EPA plainly admits that after decades of its current regulatory

approach, thousands of CAFOs are discharging without NPDES permits, Miller

Decl. ¶ 7, Ex. F at 5, 10, 12, and CAFO pollution continues to devastate waterways.

76 Fed. Reg. at 65,433. So much so, in fact, that CAFOs are one of the leading

known sources of water pollution across the country. APP010–11. Because health

risks associated with CAFO discharges are a serious, undisputed concern raised by

the Petition, and “EPA itself has acknowledged . . . that the current standards are

insufficient,” EPA’s delay in responding to the Petition is patently unreasonable, and

seriously prejudices those communities that suffer constant exposure to this

unmitigated threat. NRDC, 956 F.3d at 1141–2.

D. TRAC Factor Four: EPA’s Delay Is Unreasonable Because No

Competing Priorities Justify its Delay

Where, as here, EPA has offered “no acceptable justification for the

considerable human health interests prejudiced by the delay,” courts have given little

weight to the Agency’s competing regulatory priorities—the fourth TRAC factor–—

even when such priorities also impact human health. See, e.g., NRDC, 956 F.3d at

1141. As such, “[e]ven assuming that EPA has numerous competing priorities under

28
the fourth factor” the clear balance of the TRAC factors nevertheless favors issuance

of a writ. Id. at 1142 (quoting Cmty. Voice, 878 F.3d at 787).

This conclusion is especially warranted here because FOIA records

demonstrate that EPA has already dedicated significant time to answering the

Petition. As explained above, EPA has completed a thorough analysis of the

Petition’s merits and appears poised to act on it. Thus, the Petition is a priority that

has already outcompeted many others for agency time. Further, EPA has repeatedly

counted the issues raised by the Petition amongst its top priorities. For fourteen

years, it ranked “preventing animal waste from contaminating surface and ground

water” as a national priority. Miller Decl. ¶¶ 6, 13, Ex. F at 3, Ex. L at 2–3.

EPA is also subject to an environmental justice Executive Order mandating

the Agency prioritize clean water access and polluter accountability in

disproportionately-impacted communities “where the Federal Government has

failed to meet that commitment in the past,” which undoubtedly includes

communities plagued by CAFO pollution. Exec. Order No. 13,990, 86 Fed. Reg.

7037 (Jan. 20, 2021). Because answering the Petition would advance these priorities,

EPA’s delay in doing so is unreasonable.

E. TRAC Factor Six: EPA’s History of Resisting Needed Action on

CAFOs Absent Court Intervention Further Warrants Mandamus

Finally, EPA’s long practice of refusing to regulate CAFOs without legal

action underscores the need for the Court’s intervention in this case. While the Court

29
need not find any impropriety in the Agency’s delay to find it unreasonable, TRAC,

750 F.2d at 80, any such impropriety can further demonstrate the need for

mandamus. In NRDC, this Court found EPA’s delay in answering a petition “all the

more glaring” when it has “taken the action of [petitioner] or a court to prompt any

movement by the EPA.” NRDC, 956 F.3d at 1139–40. This petition for writ of

mandamus is far from the only time that legal action has been necessary to force

EPA to fulfill its statutory obligations under the Clean Water Act for CAFOs. See

supra at Section II.D. Against a decades-long backdrop of the Agency refusing to

regulate the CAFO industry as the Clean Water Act requires, only relenting when

compelled by litigation, EPA’s five-year delay in answering the Petition is “all the

more glaring,” further warranting the Court’s intervention.

CONCLUSION

For the foregoing reasons, Petitioners urge the Court to grant a writ of

mandamus compelling EPA to answer the Petition within 90 days, and retain

jurisdiction to ensure EPA’s response is complete.

Dated this 7th day of October 2022.

Respectfully submitted,

s/ Emily Miller
Emily Miller (CA Bar No. 336417)
Food & Water Watch

30
1616 P St. NW #300
Washington, DC 20036
(202) 683-2500
[email protected]

Counsel for Petitioners

31
 CERTIFICATE OF COMPLIANCE

I hereby certify that this petition for writ of mandamus complies with the

length limitations of Fed. R. App. P. 21(d) and Ninth Circuit Rule 21-2(c), because,

excluding the parts listed by Fed. R. App. P. 21(a)(2)(C) and 32(f), it does not exceed

30 pages or 7,800 words.

Dated this 7th day of October, 2022.

s/ Emily Miller
Emily Miller
Food & Water Watch
1616 P Street, N.W. Ste 300
Washington, D.C. 20036
(202) 683-2500
[email protected]

32
 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on October 7, 2022. I certify that this is an original

petition or other original proceeding and therefore I cannot directly serve it via the

Appellate Electronic Filing system.

Dated this 7th day of October, 2022.

s/ Emily Miller
Emily Miller
Food & Water Watch
1616 P Street, N.W. Ste 300
Washington, D.C. 20036
(202) 683-2500
[email protected]

33
 STATEMENT OF RELATED CASES

The undersigned counsel of record for Petitioners is aware of no pending

related cases.

Dated this 7th day of October, 2022.

s/ Emily Miller
Emily Miller
Food & Water Watch
1616 P Street, N.W. Ste 300
Washington, D.C. 20036
(202) 683-2500
[email protected]

34
 RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, Food & Water Watch, Center for Food

Safety, Dakota Rural Action, Dodge County Concerned Citizens, the

Environmental Integrity Project, Helping Others Maintain Environmental

Standards, Institute for Agriculture and Trade Policy, Iowa Citizens for

Community Improvement, Kewaunee CARES, Midwest Environmental

Advocates, and North Carolina Environmental Justice Network hereby disclose

that they are nonprofit organizations, and as such, have no parent corporations or

publicly held corporation owning 10% or more of their stock.

Dated this 7th day of October, 2022.

s/ Emily Miller
Emily Miller
Food & Water Watch
1616 P Street, N.W. Ste 300
Washington, D.C. 20036
(202) 683-2500
[email protected]

35