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AFBF v. Environmental Protection Agency

United States Court of Appeals for the Third Circuit; Case No. 13-4079

Case Summary: On September 13, 2013, the District Court for the Middle District of Pennsylvania upheld EPA’s 2010 TMDL imposing caps on nitrogen, phosphorus, and sediment loadings for waters throughout the entire 64,000-square-mile Chesapeake Bay watershed. While the Bay TMDL only directly affects farmers, home builders, towns, and others within the Bay watershed, the court’s decision leaves an open path for EPA to take similar actions to assign pollution caps across other watersheds – including potentially the entire Mississippi River Basin.

The court deferred to EPA’s interpretation that the Clean Water Act term “total maximum daily load” is ambiguous and allows the agency to set detailed “allocations” setting pollution caps for sources throughout a watershed, including poultry, livestock and row crop farms, builders, and towns. The court also upheld EPA’s demand of “reasonable assurances” that EPA’s caps will be achieved on EPA’s timeline – without regard to cost, technical feasibility, or whether the Bay’s water quality goals are even achievable. The court also deferred to EPA’s technical expertise in the modeling that served as a basis for its “allocations,” despite AFBF’s demonstration that EPA arbitrarily relied on admittedly false data. Finally, the court found no harm in EPA’s failure to provide the public with complete information on the proposed TMDL during the public comment period.

AFBF and its allies filed an appeal to the U.S. Court of Appeals for the Third Circuit.
Importance to
Agricultural
Community:
To ensure that EPA cannot dictate how and when states choose to implement water quality goals, particularly where achieving those goals involves important land use and economic decisions.
AFBF Role: Plaintiff
Select Filings: 2014.09.10 Order Scheduling Oral Argument..pdf2014.08.20 AFBF Reply Brief.pdf2014.06.30 Opposition to Members of Congress Amicus Brief.pdf2014.06.20 Congressional Brief.pdf2014.04.28 MD DE and DC Amicus Brief.pdf2014.04.28 - Law Professors Amicus Brief.pdf2014.04.09 Virginia Amicus Brief.pdf2014.04.09 City of Annapolis Amicus Brief.pdf2014.04.02 EPA Response Brief.pdf2014.02.03 State Amicus Brief in Support of AFBF Appeal.pdf2014.02.03 County Amicus Brief in Support of AFBF Appeal.pdf2014.01.27 AFBF Joint Opening Brief.pdf2013.12.16 Third Circuit Scheduling Order.pdf2013.09.13 District Court Opinion.pdf2012.11.02 AFBF Reply Brief on Deference.pdf2012.10.24 Chesapeake Bay Foundation Post Argument Brief on Deference.pdf2012.10.24 EPA Post Argument Brief on Deference.pdf2012.10.17 AFBF Post Argument Brief on Deference.pdf2012.08.10 Chesapeake Bay Foundation Opposition to Oral Argument.pdf2012.07.20 Chesapeake Bay Foundation Reply Brief.pdf2012.07.18 AFBF Memo in Support of Motion to Strike.pdf2012.07.16 City of Annapolis Amicus.pdf2012.07.13 Pennsylvania Municipal Authorities Assn. Reply Brief.pdf2012.07.13 National Assn. of Clean Water Authorities Reply Brief.pdf2012.06.20 EPA Memo in Support of Cross Motion for Summary Judgment.pdf2012.05.21 AFBF Reply Brief.pdf2012.04.20 National Assn. of Clean Water Authorities Brief.pdf2012.04.20 Pennsylvania Municipal Authorities Assn. to Opposition to AFBF Motion for Summary Judgment.pdf2012.04.12 Chesapeake Bay Foundation Opposition to AFBF Motion for Summary Judgment.pdf2012.03. 27 EPA Memo in Support of Cross Motion for Summary Judgment.pdf2012.01.27 AFBF Motion for Summary Judgment.pdf2012.01.11 Amended Case Management Order.pdf2011.12.30 District Court of Pennsylvania Order Partially Granting Motion to Complete Administrative Record.pdf2011.10.11 AFBF Memo in Support of Motion to Complete Administrative Record.pdf2011.10.11 AFBF Motion to Complete Administrative Record.pdf2011.07.28 Pennsylvania Municipal Authorities Assn. Reply to Opposition to Motion to Intervene.pdf2011.07.07 Chesapeake Bay Foundation Reply to Opposition to Motion to Intervene.pdf2011.07.05 Municipal Clean Water Assn. Reply to Opposition to Motion to Intervene.pdf2011.06.27 Pennsylvania Municipal Authorities Assn. Motion to Intervene.pdf2011.06.24 National Assn. of Home Builders Complaint.pdf2011.06.20 AFBF Opposition to Motions to Intervene.pdf2011.06.02 Chesapeake Bay Foundation Motion to Intervene.pdf2011.05.25 Municipal Clean Water Assn. Motion to Intervene.pdf2011.04.04 AFBF First Amended Complaint.pdf2011.01.10 AFBF Complaint.pdf

AFBF v. EPA

United States District Court for the District of Minnesota; Case No. 13-cv-01751

Case Summary: AFBF filed a lawsuit in the U.S. District Court for the District of Minnesota in order to stop EPA from violating the privacy rights of farmers and ranchers by disclosing personal information in response to several pending Freedom of Information Act (FOIA) requests. AFBF asked the court for a temporary restraining order to swiftly enjoin EPA’s imminent release of personal information in response to the FOIA requests. More broadly, the lawsuit seeks to clarify the legal obligations of federal agencies to protect the privacy interests of citizens in response to FOIA requests. AFBF's goal is to make favorable law establishing that the privacy protections provided in FOIA’s “Exemption 6” extend to the name, personal home address, email and phone number of individual farm families. The National Pork Producers Council joined with AFBF in filing the lawsuit.
Importance to
Agricultural
Community:
To ensure that EPA and other federal agencies do not disclose personal information about farmers, ranchers and their families in response to FOIA requests.
AFBF Role: Plaintiff
Select Filings: 2014.10.15 EPA Opening Brief.pdf2014.10.15 Environmental Intervenors Opening Brief.pdf2014.08.15 AFBF Memorandum of Law in Support of Summary Judgment.pdf2014.01.10 Scheduling Order.pdf2013.07.10 Letter Withdrawing Motion for Temporary Restraining Order.pdf2013.07.05 AFBF Complaint.pdf2013.07.05 AFBF Motion for Temporary Restraining Order.pdf2013.07.05 AFBF Memorandum in Support of Temporary Restraining Order.pdf

Alaska Community Action on Toxics v. Aurora Energy Services, LLC

United States Court of Appeals for the Ninth Circuit; Case No. 13-35709

Case Summary: In a September 3, 2014 decision, the U.S. Court of Appeals for the Ninth Circuit ruled that an Alaska coal company’s general stormwater permit explicitly prohibited coal dust discharges from conveyer belts into navigable waters. The court’s narrow ruling leaves the broader legal question of whether the CWA general permit shield applies equally to general and individual permits unanswered. This is one of several cases before the courts of appeals reviewing whether general permits, as opposed to more costly individual permits, provide a more limited shield from CWA liability. In this case, the coal company operated under an individual permit for many years and was encouraged by EPA to seek a multi-section general stormwater permit for its facility’s stormwater discharges. Activists later filed a citizen suit alleging that the company violated its general permit because the permit does not authorize coal dust discharges. The plaintiffs contend that unlike the broad scope of permit coverage afforded to dischargers who seek individual permits, general permits authorize the discharge of pollutants only if they are within the specified scope of the general permit. The district court sided with the company, concluding that because the coal dust discharges were not explicitly prohibited by the general permit, the company was protected from CWA liability by the permit shield defense. On appeal, EPA joined the activists’ side, filing an amicus brief opposing a broad general permit shield defense. AFBF filed an amicus brief supporting the coal company in this case, and the similar Sierra Club v. ICG Hazard case below, because the scope of the permit shield is important for CAFO operators who hold state-issued NPDES general permits and farmers who depend on pesticide general permits for crop protection. ACAT has filed a petition seeking reconsideration from the 9th Circuit panel or review from the full 9th Circuit Court.
Importance to
Agricultural
Community:
The AFBF brief will urge the court not to narrow the permit shield for those who obtain coverage under a general permit. The scope of the permit shield is important for CAFO operators who hold state-issued NPDES general permits and farmers who depend on pesticide general permits for crop protection.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.09.17 Petition for Rehearing En Banc.pdf2014.09.03 9th Circuit Decision.pdf2014.06.23 Joint AFBF Amicus Brief.pdf

Alt v. EPA

United States Court of Appeals for the Fourth Circuit; Case No. 13-2200

Case Summary: AFBF and the West Virginia Farm Bureau intervened in a lawsuit brought against EPA by West Virginia poultry farmer Lois Alt. Despite her exemplary-run family farm operation, EPA issued an Administrative Compliance Order in 2012 demanding that she obtain a Clean Water Act discharge permit for ordinary stormwater from the farmyard outside her poultry houses or face fines of up to $37,500 a day. Alt’s family farm is considered a large concentrated animal feeding operation (CAFO), consisting of eight poultry houses with approximately 200,000 broilers. EPA’s Order to Alt represents an effort to regulate non-discharging farmers by unlawfully narrowing the Clean Water Act’s exemption for “agricultural storm water discharges”. EPA withdrew its Order mandating that Lois Alt seek a discharge permit for stormwater runoff from her farmyard, and subsequently asked the court to dismiss the case as moot. The court rejected EPA’s efforts, agreeing with AFBF that the case should go forward because the ultimate decision on the merits will clarify the extent of Clean Water Act discharge liability and permit requirements for ordinary precipitation runoff from a typical farmyard to the benefit of Alt and all farmers. On October 23, 2013, the U.S. District Court for the Northern District of West Virginia became the first court to decide whether ordinary stormwater runoff from a CAFO farmyard – carrying incidental amounts of dust, feathers and manure – is “agricultural stormwater” exempt from federal regulation under the Clean Water Act. The court soundly rejected EPA’s position that the “agricultural stormwater” exemption does not apply to CAFOs other than land application areas where crops are grown. The court also rejected EPA’s argument that such CAFO farmyard runoff is “industrial stormwater” subject to EPA’s industrial stormwater regulations. The court found that runoff from Ms. Alt’s CAFO farmyard is “agricultural stormwater” exempt from Clean Water Act regulation. The court determined that it should interpret the statutory language based on the words’ common meaning and common sense. Despite efforts by EPA and the environmental intervenors to paint Alt’s farm as an “industrial” operation, the court concluded that CAFOs are “agricultural” and precipitation-induced runoff containing incidental amounts of pollutants from the farmyard is “stormwater”. The court distinguished the CAFO “production areas” – where animals, feed, and manure are maintained or stored – from the farmyard outside those areas. The court found stormwater runoff from the farmyard is exempt from federal Clean Water Act regulation so long as the discharge is caused by rainfall and not by improper practices.

EPA filed a notice of appeal, but that appeal has been stayed while the Chesapeake Bay Foundation pursued an appeal of the district court’s denial of its motion to intervene. The 4th Circuit concluded on July 14, 2014, that the district court did not abuse its discretion when it denied the Chesapeake Bay Foundation’s motion to intervene.
Importance to
Agricultural
Community:
This case raises important national issues about EPA’s authority to regulate livestock and poultry farms and the scope of the 40-year old exemption of “agricultural stormwater discharges” from Clean Water Act permit requirements.
AFBF Role: IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.09.22 Environmental Appellants Motion for Abeyance of Briefing.pdf2014.09.22 New Briefing Schedule for Environmental Appellants.pdf2014.08.18 Order Amending Briefing Schedule.pdf2014.07.23 Briefing Schedule.pdf2014.07.14 Final Order Affirming Denial of Intervention.pdf2014.03.20 Notice of Oral Argument.pdf2013.12.23 CBF Reply Brief Appeal of Intervention Denial.pdf2013.12.09 AFBF Joint Brief Opposing CBF Intervention Denial.pdf2013.11.06 CBF Brief Appeal of Intervention Denial.pdf2013.10.23 District Court Order in Favor of Alt and AFBF.pdf2013.10.04 EPA Reply Brief.pdf2013.10.03 Environmental Intervenors Reply Brief.pdf2013.09.04 AFBF Joint Response and Reply to Motion for Summary Judgment.pdf2013.08.19 CBF Reply to Opposition to Amicus.pdf2013.08.19 Environmental Intervenors Opposition to CBF Amicus.pdf2013.08.08 AFBF Joint Opposition to CBF Amicus Brief.pdf2013.08.01 CBF Amicus Brief.pdf2013.08.01 EPA Motion for Summary Judgment.pdf2013.08.01 Environmental Intervenors Cross Motion for Summary Judgment.pdf2013.07.30 Order Denying Chesapeake Bay Foundation Motion to Intervene.pdf2013.07.09 AFBF Joint Opposition to Chesapeake Bay Foundation Intervention.pdf2013.07.02 Chesapeake Bay Foundation Motion to Intervene.pdf2013.07.01 AFBF Joint Motion For Summary Judgment.pdf2013.04.22 Order Denying EPA Motion to Dismiss.pdf2013.04.19 AFBF Joint Surreply in Reply to EPA Motion to Dismiss.pdf2013.04.09 Potomac Riverkeeper Reply in Support of Motion to Dismiss.pdf2013.04.09 EPA Reply in Response to AFBF.pdf2013.04.09 EPA Reply in Response to Alt.pdf2013.03.29 Alt Opposition to Motion to Dismiss.pdf2013.03.29 AFBF Joint Opposition to Motion to Dismiss.pdf2013.03.12 EPA Motion to Dismiss.pdf2013.01.17 Joint Motion to Stay Summary Judgment Briefing.pdf2013.01.07 Potomac Riverkeeper Reply in Support of Motion to Intervene.pdf2013.01.07 EPA Response to Alt's Opposition to Potomac Riverkeeper Motion to Intervene.pdf2012.12.14 Alt Opposition to Potomac Riverkeeper et. al., Motion to Intervene.pdf2012.12.06 Potomac Riverkeeper et. al., Motion to Intervene.pdf2012.10.09 Order Granting AFBF Motion to Intervene.pdf2012.09.04 AFBF Reply in Support of Motion to Intervene.pdf2012.08.13 EPA Opposition to AFBF Motion to Intervene.pdf2012.07.20 AFBF and WVFB Motion to Intervene.pdf2012.06.14 Alt Complaint.pdf

Aransas Project v. Shaw

United States District Court for the Southern District of Texas; Case No. 10-cv-00075

Case Summary: The 5th Circuit ruled that the Texas Commission of Environmental Quality (TCEQ) did not violate §9 of the Endangered Species Act (ESA) when it failed to use its regulatory authority over state surface water flows to prevent the “take” of 23 endangered Whooping Cranes during a severe 2008-2009 drought. The state of Texas owns all surface waters and third parties such as farmers, cities and other water users divert water for various beneficial uses, such as stock watering and irrigation, either through state-issued permits or based on property rights under the system of prior appropriation. In 2013, the district court prohibited the issuance of future permits after finding that TCEQ’s failure to regulate was the proximate cause of crane deaths. The court concluded that the ESA’s prohibition of unauthorized “take” of listed species applies broadly to actions (or inaction) by TCEQ and other state agencies, which administer state regulatory programs and approve actions by third parties (such as farmers’ and ranchers’ use of irrigation and stock watering) that result in a “take” of listed species. The court also held that state laws and regulations that conflict with the ESA’s “take” prohibitions (e.g. TCEQ authorization of water diversions) are preempted by federal law by the Supremacy Clause to the U.S. Constitution.

The 5th Circuit reversed, concluding that as a matter of law, TCEQ cannot be held liable for the death of Whooping Cranes. According to the court, the plaintiffs failed to prove that the actions by third parties were the foreseeable or direct cause of the cranes’ deaths. Accordingly, the causal connection between TCEQ’s permit approvals and the ultimate harm to the cranes was too remote. Moreover, the intervening actions by third party water users and nature itself were beyond the control of TCEQ. ESA liability requires some amount of foreseeability, and the 5th Circuit ruled that TCEQ could not have foreseen that issuing permits, or failing to alter existing water flows, would cause harm to the cranes.

AFBF joined with Texas FB and several other state FBs in filing amicus briefs supporting TCEQ before the district court and the court of appeals.
Importance to
Agricultural
Community:
To ensure that private property rights, including water rights, are not subordinated to the Endangered Species Act.
AFBF Role: IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.06.30 Fifth Circuit Opinion.pdf2013.05.09 Joint Farm Bureau Amicus Brief.PDF2013.03.20 State of Texas Motion for Stay Pending Appeal.pdf2013.03.11 District Court Opinion and Verdict.pdf2011.12.05 District Court Order Denying All Motions for Summary Judgment.pdf2011.10.06 Joint Farm Bureau Amicus Brief.pdf2010.12.22 5th Circuit Opinion Denying AFBF and TXFB Appeal for Motion to Intervene.PDF2010.08.04 AFBF and TXFB Joint Appeal to 5th Circuit.pdf2010.07.20 Intervenors Joint Motion to Expedite Consideration.pdf2010.07.14 Order denying TXFB and AFBFs Motion for Stay.pdf2010.07.12 TXFB and AFBF Motion for Stay.pdf2010.06.18 District Court Order Denying AFBF and TXFB Motion to Intervene.pdf2010.05.17 River Authority Motion to Dismiss.pdf2010.05.06 AFBF Joint Motion to Intervene.pdf2010.03.11 Aransas Complaint.pdf

Catskill Mountains Chapter of Trout Unlimited, Inc., et al. v. EPA

United States Court of Appeals for the Second Circuit; Case No. 14-1823

Case Summary: AFBF joined with the Florida Farm Bureau Federation in filing an amicus brief urging the U.S. Court of Appeals for the 2nd Circuit to uphold EPA’s 2008 Water Transfer Rule. The brief defended this favorable EPA rule interpreting the Clean Water Act (CWA) to not require NPDES permits for transfers of water (containing pollutants) from one jurisdictional water body into another. The rule provides that unless there is an intervening municipal, industrial or agricultural use, the transfer of water containing pollutants from one body of navigable water to another is not an “addition” of a pollutant “to navigable waters” within the meaning of the CWA. In other words, transferring pollutants between jurisdictional water bodies is not an addition of pollutants to navigable waters within the meaning of the CWA. EPA’s reasoning is based on its interpretation of the CWA to mean that all waters that fall within the Act’s definition of “navigable waters” should be viewed as a unitary whole for NDPES permitting purposes.

AFBF urged the court to uphold the rule not in deference to EPA’s interpretation of the CWA, but because the plain language of the CWA does not authorize the NPDES regulation of water transfers. EPA should not have any discretion to require permits for water transfers in the future, particularly as EPA seeks to redefine “waters of the U.S.” to include ditches and ephemeral drains located in and around farmland.
Importance to
Agricultural
Community:
To ensure that NPDES permits are not required for transfers of water on and off the farm.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.09.19 AFBF FFBF Amicus Brief.pdf

Center for Biological Diversity v. EPA

United States District Court for the Northern District of California; Case No. 3:11-cv-293

Case Summary: AFBF and ten agricultural pesticide user and applicator groups intervened to oppose a lawsuit seeking to impose use restrictions, if not outright bans, on hundreds of registered pesticides. In its 2011 complaint, Center for Biological Diversity (CBD) alleged that EPA violated Endangered Species Act (ESA) §7(a)(2) by failing to consult with national wildlife agencies over the potential effects of 381 pesticides on 214 threatened and endangered species in 49 states (as well as Puerto Rico). The complaint cited stormwater runoff, aerial and groundwater application, and spray drift as sources of potential injury to listed species. AFBF intervened in the lawsuit as part of a “growers group” to guard against interim restrictions on pesticide use that are not justified by evidence of likely harm to protected species. After protracted and ultimately unsuccessful settlement negotiations, the district court agreed with arguments made by EPA and industry intervenors and dismissed the lawsuit. On April 22, 2013, the court’s ruling rejected plaintiffs’ claims on several grounds, concluding that the plaintiffs’ complaint challenged existing pesticide registrations outside of the appropriate legal forum and failed to identify affirmative agency actions by EPA that would trigger ESA consultation requirements or confer standing to the plaintiffs. Despite the favorable ruling, the court allowed plaintiffs the opportunity to cure the defects in the original complaint. On June 5, 2013, the plaintiffs filed a 437-page amended complaint focusing on 50, as opposed to 381 pesticides. On November 25, 2013, the district court partially granted EPA and industry intervenors’ motions for a more specific complaint, instructing CBD to again re-file with specific information about each EPA action that allegedly violated the ESA. CBD filed its second amended complaint on January 21, 2014.
Importance to
Agricultural
Community:
To avoid unnecessary restrictions on pesticides that many farmers depend on for crop protection purposes.
AFBF Role: IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.09.19 CBD Motion for Entry of Final Judgment.pdf2014.08.13 Order Partially Granting Motions to Dismiss.pdf2014.07.10 Industry Intervenors Reply in Support of Motion to Dismiss.pdf2014.07.10 EPA Reply in Support of Motion to Dismiss.pdf2014.06.26 CBD Opposition to Motion to Dismiss.pdf2014.05.12 Intervenors' Motion to Dismiss.pdf2014.05.05 Government Motion to Dismiss Second Amended Complaint.pdf2014.01.21 Second Amended Complaint.pdf2013.11.25 Order for More Definitive Statement.pdf2013.08.29 Plaintiffs' Opposition to Government Motion for More Definitive Statement.pdf2013.08.28 Intervenors Motion for More Definitive Statement.pdf2013.06.05 Amended Complaint.pdf2013.04.22 Court Opinion Granting Motion to Dismiss.pdf2013.01.18 Industry Intervenors Reply in Support of Motion to Dismiss.pdf2013.01.18 EPA Reply in Support of Motion to Dismiss.pdf2012.12.21 Center for Biological Diversity Opposition to Motion to Dismiss.pdf2012.11.16 AFBF Motion to Dismiss.pdf2012.11.16 Industry Intervenors Motion to Dismiss.pdf2012.11.16 EPA Motion to Dismiss.pdf2012.11.16 Grower Group Brief in Support of Industry Intervenors Motion to Dismiss.pdf2012.10.24 EPA Notice of Failure to Reach Settlement.pdf2012.09.14 Intervenor-Defendant Joint Status Report.pdf2012.02.21 CropLife America Motion to Dismiss.pdf2012.02.21 AFBF Motion to Dismiss.pdf2011.06.03 District Court Hearing Transcript.pdf2011.01.19 Center for Biological Diversity Complaint.pdf

Center for Food Safety, et al. v. Jewell, et al.

United States District Court for the District of Columbia; Case No.14-cv-00360

Case Summary: AFBF joined with allies in filing an amicus brief in support of the U.S. Fish & Wildlife Service in Center for Food Safety, et al. v. Jewell, et al. The U.S. district court for the District of Columbia will determine whether the U.S. Fish & Wildlife Service’s decision to authorize the cultivation of genetically engineered (GE) crops and the use of certain pesticides (2,4-D, dicamba and neonicotinoids) in certain Midwestern National Wildlife Refuges (NWR) violated the National Environmental Policy Act (NEPA). This is the second lawsuit filed by the plaintiffs seeking a ban on the planting of GE crops in Midwestern NWRs.
Importance to
Agricultural
Community:
Through its continued opposition to these claims, AFBF seeks to maintain a level of certainty in the USDA deregulatory process and minimize potential disruptions to farmers’ ability to utilize GE products.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.06.27 AFBF Joint Amicus Brief.pdf

Environmental Integrity Project, et al. v. EPA, et al.

United States District Court for the District of Columbia; Case No.1:13-cv-1306

Case Summary: AFBF filed an amicus brief supporting EPA’s decision to withdraw its proposed Clean Water Act Section 308 concentrated animal feeding operation reporting rule (CAFO Reporting Rule). If finalized, the CAFO Reporting Rule would have unlawfully used the Clean Water Act’s information collection authority to impose additional regulatory reporting requirements on all CAFOs. The reporting requirements would have mandated all CAFOs to file information with EPA about the owners and the farm on a regular basis or face administrative fines. These requirements would have applied to all CAFOs, including those that do not discharge or cannot discharge. In addition to AFBF’s legal concerns, AFBF opposed the rule because it would have been unduly burdensome on farmers and ranchers and the information sought by EPA was already available from many state regulatory authorities. AFBF’s brief supported EPA’s decision to withdraw the rule as a lawful exercise of the agency’s discretion.
Importance to
Agricultural
Community:
To ensure that EPA cannot use the Clean Water Act’s information collection authority to impose a new, burdensome and unnecessary CAFO regulation.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.10.10 EPA Reply.pdf2014.08.08 AFBF Amicus Brief.pdf2014.08.01 EPA Cross Motion for Summary Judgment.pdf2014.06.16 Plaintiffs' Motion for Summary Judgment.pdf2013.08.28 Complaint.pdf

Front Range Equine Rescue v. USDA

United States Court of Appeals for the Tenth Circuit; Case No. 13-2187

Case Summary: AFBF, the New Mexico Farm and Livestock Bureau and the National Cattlemen’s Beef Association joined in an amicus brief opposing HSUS’s lawsuit seeking to expand the National Environmental Policy Act (NEPA) to USDA’s meat processing approvals and inspection directives. HSUS and its allies argued that USDA violated NEPA in approving the “grant of inspection” for a new New Mexico equine slaughterhouse. HSUS also claimed that USDA’s drug residue testing protocols used to approve equine processing facilities violated NEPA. The District Court rejected the lawsuit, concluding that NEPA does not apply and deferring to USDA’s judgment in approving meat processing facilities for equines. HSUS filed an appeal to the 10th Circuit and oral argument is scheduled for October 1, 2014.
Importance to
Agricultural
Community:
AFBF’s brief seeks to prevent the expansion of NEPA to meat processing facilities.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.05.02 AFBF NCBA amicus brief.pdf2013.11.01 District Court decision.pdf2013.08.02 Order Granting TRO.pdf2013.07.19 HSUS First Amended Complaint.pdf

Gulf Restoration Network v. EPA

United States Court of Appeals for the Fifth Circuit; Case No. 13-31214

Case Summary: On September 20, 2013 a federal district court in Louisiana issued a mixed ruling – partially favorable and partially unfavorable – in litigation brought to force EPA to establish numeric nutrient criteria (NNC) for all waters within the entire Mississippi River basin. Although the court ruled in favor of plaintiffs that EPA’s 2011 denial of their petition to set federal NNC was unlawful, the decision also provides EPA with a legal basis for concluding that federal NNC are not “necessary” under the Clean Water Act. AFBF, 15 state Farm Bureau organizations and dozens of other groups and state governments intervened in the suit to oppose the imposition of arbitrary federal nutrient caps across 40 percent of the contiguous United States. The court held that EPA’s denial of the plaintiffs’ petition unlawfully failed to answer the essential question posed by the petition: whether federal NNC are “necessary” within the meaning of the Clean Water Act. Importantly, however, the court rejected the plaintiffs’ arguments that the Clean Water Act confines EPA to considering only scientific and technical factors in answering that question. The court agreed with AFBF and its allies in concluding that EPA can consider a broad range of factors in making its determination, including the primary role of states in setting and meeting water quality standards under the Clean Water Act. Nothing in the court’s ruling precludes EPA from determining that federal NNC are not “necessary” based on the very same factors it relied on in denying the petition previously (e.g., collaborative federal-state efforts, EPA’s policy preference for states to take the lead, etc.). The court remanded the matter, instructing EPA to make a decision on the plaintiffs’ original petition within 180 days. EPA has filed an appeal and this case is fully briefed.
Importance to
Agricultural
Community:
To ensure that costly, scientifically indefensible, and overly stringent federal numeric nutrient criteria are not imposed by a court on 40 percent of the U.S. land mass.
AFBF Role: IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.04.29 EPA Reply Brief.pdf2014.04.08 Environmental Groups Opening Brief.pdf2014.02.27 EPA Opening Appellate Brief.pdf2013.09.20 District Court Opinion.pdf2013.05.10 EPA Reply Brief.pdf2013.05.10 AFBF Joint Reply Brief.pdf2013.04.03 Plaintiffs' Reply in Support of Motion for Summary Judgment.pdf2013.05.10 State Intervenors' Reply Brief.pdf2013.03.04 Joint Intervenor Brief.pdf2012.11.19 Plaintiffs' Motion for Summary Judgment.pdf2012.09.20 Case Management Order.pdf2012.07.13 State Governments Motion to Intervene.pdf2012.05.29 Mosaic Motion to Intervene.pdf2013.01.18 EPA Motion to Dismiss and for Summary Judgment.pdf2012.05.21 EPA Answer.pdf2012.05.23 National Association of Clean Water Agencies Motion to Intervene.pdf2012.05.10 AFBF Joint Motion to Intervene.pdf2012.03.13 Complaint.pdf2012.05.10 AFBF Joint Memorandum in Support of Motion to Intervene.pdf2008.07.30 Petition for Rulemaking for Numeric Nutrient Criteria and Total Maximum Daily Loads.pdf2011.07.29 EPA Denial of Petition for Rulemaking.pdf

Hawkes Co., Inc., et al. v. United States Army Corps of Engineers

United States Court of Appeals for the Eighth Circuit; Case No. 13-3067

Case Summary: AFBF joined with industry allies in an amicus brief supporting a Minnesota landowner's lawsuit seeking judicial review of the Corps of Engineers' assertion of jurisdiction over private land. In this case, the landowner filed suit after the Corps asserted Clean Water Act jurisdiction over wetlands on a 537-acre parcel of land. The Corps claimed that the wetlands had a “significant nexus” to a distant navigable waterway. The district court dismissed the landowner’s case, concluding that the Corps’ assertion of jurisdiction over private property under the Clean Water Act does not generate sufficient legal consequences to create a right to judicial review. Throughout the history of the Clean Water Act, landowners have been denied the right to challenge agency assertions of jurisdiction unless they first go through the expensive and time-consuming permitting process.
Importance to
Agricultural
Community:
The AFBF amicus brief urged the U.S. Court of Appeals for the Eighth Circuit to recognize the serious legal and financial consequences that flow from an agency’s assertion of Clean Water Act jurisdiction and allow the landowner to seek immediate judicial review.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2013.11.15 AFBF Joint Amicus Brief in Support of Hawkes.pdf

National Mining Association, et al. v. EPA, et al.

United States Court of Appeals for the District of Columbia Circuit; Case No. 12-5310

Case Summary: The D.C. Circuit ruled that EPA did not violate the Administrative Procedure Act (APA) when it adopted guidance imposing new and burdensome “Enhanced Coordination Procedures” for coal surface mines seeking Clean Water Act § 404 “dredge and fill” permits from the Army Corps of Engineers. Although the district court concluded that EPA adopted the guidance in violation of the APA, the DC Circuit reversed. The D.C. Circuit ruled that the guidance was merely procedural and therefore not subject to the APA’s public notice and comment rulemaking procedures. In addition, the court held that any legal challenge to the guidance was premature because the guidance was not a final agency action and did not subject regulated parties or state enforcement agencies to any requirements or liabilities. The court stated that the guidance could be ignored and if/when the guidance is relied upon by the Corps of Engineers to grant or deny a permit, a lawsuit might be appropriate. AFBF joined with industry allies in an amicus brief urging the D.C. Circuit to reject efforts by EPA to grant itself a broad new authority to change the law through “guidance.”
Importance to
Agricultural
Community:
A favorable ruling in this case would provide helpful precedent on the issue of EPA’s CWA authority and on the issue of agency efforts to change the law through “guidance.”
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.07.11 D.C. Circuit Opinion.pdf2013.07.22 Joint Amicus Brief.pdf

San Luis & Delta Mendota, et al. v. Jewell

United States Court of Appeals for the Ninth Circuit; Case No. 11-15871

Case Summary: On May 22, 2014 AFBF joined with farm lenders and other farm organizations in an amicus brief urging the full U.S. Court of Appeals for the Ninth Circuit to grant rehearing en banc and reverse a three-judge panel’s decision to restrict water deliveries to seven million acres of prime California farmland to protect the threatened delta smelt. The panel’s ruling prohibits federal wildlife agencies from considering the economic impacts of “reasonable and prudent measures” that they require federal agencies to take to avoid jeopardizing listed species. On July 23, 2014 the United States Court of Appeals for the Ninth Circuit denied rehearing en banc.
Importance to
Agricultural
Community:
AFBF’s interest in this case is to make favorable precedent prohibiting the wildlife agencies from requiring measures to protect listed species at any and all costs to the agricultural community and society.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.07.23 Order Denying Rehearing.pdf2014.05.22 Amicus Brief in Support of Rehearing.pdf

Sierra Club v. ICG Hazard, LLC

U.S. Court of Appeals for the Sixth Circuit

Case Summary: AFBF filed an an amicus brief urging the U.S. Court of Appeals for the Sixth Circuit court not to narrow the so-called National Pollutant Discharge Elimination System (NPDES) “permit shield” for permittees who obtain coverage under a general, as opposed to an individual, permit. AFBF argued that the scope of the permit shield applies equally to both individual and general permits.
Importance to
Agricultural
Community:
A favorable ruling will ensure that farmers and ranchers who seek coverage under a general permit are shielded from liability for discharges of pollutants not explicitly listed in a general permit.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. Brief
Select Filings: 2013.05.01 AFBF Joint Amicus Brief.pdf

Utility Air Regulatory Group v. EPA
(Consolidated Cases)

United States Supreme Court; Case No. 12-1272

Case Summary: On June 26, 2012 a panel of three judges upheld EPA’s four-part regulation of greenhouse gases (GHGs) under the Clean Air Act (CAA). AFBF, along with dozens of industry groups and state governments, had filed a lawsuit challenging the rules, which set GHG emission standards for cars and light duty vehicles (mobile sources) and required permits from power plants and large industrial sources of GHGs (stationary sources). The D.C. Circuit ruled that despite any uncertainties, EPA had substantial evidence to support its conclusion. The court also agreed with EPA that, once such an “endangerment finding” has been made, the CAA requires that EPA (1) set emission standards for mobile sources and (2) require Title V and Prevention of Significant Deterioration (PSD) permits for stationary sources. The court declined to rule on the merits of EPA’s “Tailoring” rule, in which EPA raised the emission thresholds that trigger Title V or PSD permit requirements for stationary sources. Instead, the court found that it lacked jurisdiction to consider this issue because industry and state governments benefit from the Tailoring rule and therefore lack standing to challenge it. The full panel of the D.C. Circuit Court denied petitions for en banc review on December 20, 2012. The majority of the court’s judges concluded that while the policy issues surrounding the regulation of GHGs are of exceptional importance, the “legal issues presented, however, are straightforward, requiring no more than the application of clear statutes and binding Supreme Court precedent.” Three of the eight judges, however, voted to grant rehearing. Two dissenting judges filed lengthy explanations agreeing with several of the key arguments AFBF and other industry parties made in this lengthy and complex litigation. Among those key arguments is that EPA cannot rewrite the CAA’s emissions thresholds in order to make its flawed statutory interpretation workable. The fact that EPA’s reading of the statute requires rewriting the statute itself to avoid regulating potentially millions of sources demonstrates that EPA’s interpretation is wrong.

On April 19, 2013 AFBF joined with the U.S. Chamber of Commerce and state of Alaska in filing a petition seeking Supreme Court review of the D.C. Circuit's decision upholding the GHG regulations.

On October 15, 2013, the Supreme Court agreed to review the case to determine whether EPA permissibly determined that its decision to regulate GHG emissions from new motor vehicles also triggered CAA permitting requirements for non-mobile sources, such as power plants and industrial sources that also emit GHGs.
Importance to
Agricultural
Community:
To ensure that agricultural operations are not burdened by increased costs associated with direct greenhouse gas regulation of agricultural operations emissions and increased costs resulting from economy-wide regulation of inputs.
AFBF Role: PetitionerA party who presents a petition to a court or other official body.  / IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.06.23 Supreme Court Opinion.pdf2013.12.09 AFBF Joint Merits SCOTUS Brief.pdf2013.07.22 Environmental Organizations' Opposition to Cert.pdf2013.07.22 EPA Opposition to Cert.pdf2013.04.19 AFBF Joint Petition for Certiorari.pdf2012.12.20 Order Denying Petitions for Rehearing.pdf2012.10.12 EPA Brief in Opposition to Rehearing.pdf2012.10.12 Industy Intervenors Brief in Support of Rehearing.pdf2012.08.12 Pacific Legal Foundation Petition for Rehearing.pdf2012.08.10 U.S. Chamber of Commerce Petition for Rehearing.pdf2012.06.26 D.C. Circuit Opinion Upholding Green house Gas Regulations.pdf2011.12.14 Final EPA Brief.pdf2011.11.28 EPA Brief.pdf2011.11.16 Industry Brief Challenging Tailoring Rule.pdf2011.11.16 State Brief Challenging Tailoring Rule.pdf2011.11.14 EPA Opening Brief.pdf2011.10.31 Non State Petitioners Joint Reply Brief Tailpipe Rule.pdf2011.10.17 NonState Petitioners and Supporting Intervenors Joint Reply Brief.pdf2011.08.18 EPA Opposition Brief on Endangerment.pdf2011.05.20 NonState Petitioners and Intervenors Brief on Endangerment.pdf2010.02.12 AFBF Petition for Review.pdf