Professional Documents
Culture Documents
2022.10.7 Petition For Writ of Mandamus
2022.10.7 Petition For Writ of Mandamus
_______________________
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.
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
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
In re A Cmty. Voice, 878 F.3d 779 (9th Cir. 2017) .......................................... passim
In re Cal. Power Exch. Corp., 245 F.3d 1110 (9th Cir. 2001) .................................. 5
In re Pesticide Action Network N. Am., 798 F.3d 809 (9th Cir. 2015).............. 24, 25
Nat’l Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011) ................ 4, 12
iv
NRDC v. EPA, 808 F.3d 556 (2d Cir. 2015) ........................................................... 11
Peabody Coal Co. v. EPA, 522 F.2d 1152 (8th Cir. 1975) ....................................... 4
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
Federal Statutes
33 U.S.C. § 1314(b)................................................................................................. 26
v
33 U.S.C. § 1342 ..................................................................................................... 11
33 U.S.C. § 1342(b)(1)(B)....................................................................................... 26
State Statutes
Regulations
vi
40 C.F.R. § 412.31(a)(1)(i)...................................................................................... 13
vii
INTRODUCTION
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.
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,
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,
RELIEF SOUGHT
Petitioners Food & Water Watch, Center for Food Safety, Dakota Rural
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
approving or denying it in writing. Petitioners ask the Court to order EPA to respond
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. §
STATEMENT OF JURISDICTION
The All Writs Act, 28 U.S.C. § 1651(a), authorizes the courts of appeals to
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
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
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
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).
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
4
water pollution in the Circuit, including in California, Oregon, Washington, Idaho,
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
with facilities growing far larger and more geographically concentrated. As a result,
time have become the dominant method of livestock production. APP009, 70. And
watersheds, so too have the vast quantities of waste these facilities generate.
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
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
Decades of research make clear that standard CAFO practices are driving this
water pollution crisis. CAFOs store millions of gallons of untreated manure and
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
manure lagoons, feed storage areas, and mortality management areas. APP011.
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
layer of film” that develops on lake surfaces due to CAFO waste); Masri Decl. ¶ 6
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
application fields contain direct conduits to waterways, such as tile lines, ditches, or
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.
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
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
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
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
When disposed of, this waste can cause antibiotic-resistant bacteria to proliferate in
9
systems of aquatic species and humans. Id. See also Utesch Decl. ¶ 12 (discussing
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. ¶¶
II. EPA’s Attempts to Regulate CAFO Pollution Under the Clean Water
Act Have Proven Ineffective
A. The Clean Water Act and NPDES Permits
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
that demonstrated capability. In this manner, the Act was designed to ratchet up
quality over time through more stringent controls. Id. § 1311(b)(2)(A) (requiring the
EPA, 808 F.3d 556, 563–64 (2d Cir. 2015) (“Congress designed [these standards] to
“numeric effluent limitations are infeasible,” a permit may instead require “[b]est
11
NPDES permits must also require both representative effluent monitoring and
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,
establish compliance with those limits, thereby work together to reduce pollution.
CAFO pollution discharges are “point source” discharges subject to the Clean
Revised NPDES Permit Regulation and Effluent Limitations Guidelines for CAFOs
(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
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
412.31(a)(1)(i). EPA also requires CAFOs that land apply waste to “minimiz[e]
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
the Clean Water Act excludes from the definition of a point source. 33 U.S.C. §
source CAFOs apply waste in accordance with Nutrient Management Plans, any land
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
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
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.
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
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
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
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
would improve its broken CAFO program and better protect impacted communities.
The Agency believes it could “improve the effectiveness of the CAFO regulations”
production and land application areas, and requiring discharge monitoring. EPA
Environmental Justice Report, supra note 4, at 75. The Petition urges EPA to adopt
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
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
III. EPA Has Failed to Respond for More Than Five Years to
Petitioners’ Petition for Rulemaking
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
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
and establishing a presumption that certain CAFOs discharge; and (2) strengthening
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,
19
ARGUMENT
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
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
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
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
“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).
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.
¶¶ 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
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;
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
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
of mandamus here.
For more than five years, EPA has shirked its duty under the Administrative
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
mandamus compelling EPA to respond. In re NRDC, 956 F.3d 1134, 1138 (9th Cir.
This Court has adopted the D.C. Circuit’s six-factor test to evaluate claims of
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
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
23
the dangerous wastes they produce pose a serious threat to human health, thereby
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
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
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.
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
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
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.
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
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.
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
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
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
Here, EPA has likewise acknowledged the indisputable human health risks
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
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. ¶ 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
Moreover, the Agency has conceded that its CAFO regulations fail to remedy
the problem. EPA plainly admits that after decades of its current regulatory
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
Where, as here, EPA has offered “no acceptable justification for the
considerable human health interests prejudiced by the delay,” courts have given little
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
demonstrate that EPA has already dedicated significant time to answering 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
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,
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
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
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
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]
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
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
petition or other original proceeding and therefore I cannot directly serve it via the
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
related cases.
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
Standards, Institute for Agriculture and Trade Policy, Iowa Citizens for
that they are nonprofit organizations, and as such, have no parent corporations or
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