In a high-profile and procedurally complex case, National Pork Producers Council v. U.S. EPA, the details of which I will spare you, the 5th Circuit Court of Appeals held that the U.S. EPA overreached in its 2008 Rule about Clean Water Act (“CWA”) permits for concentrated animal feeding operations (“CAFOs”).  The court held that EPA was extending liability beyond the limits allowed by the CWA, and that it could not impose a duty to obtain a permit on CAFOs unless and until they had an actual discharge.

EPA’s 2008 rule required CAFOs that discharge or “propose” to discharge to apply for a permit. (In EPA-speak, “proposed” does not mean that they intend to discharge, just that their facility is designed in such a way that they might discharge even if they don’t intend to.) This creates a separate “duty to apply” distinct from the requirement to have a permit when discharging. Thus, a CAFO that discharged without a permit could be held liable both for discharging without a permit, and for failing to apply for a permit.

In a unanimous decision, the 5th Circuit held that the EPA’s “duty to apply” was an attempt by EPA to expand the liability scheme under the CWA beyond what the statute allows.  Relying on the 2nd Circuit’s decision in Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486 (2d Cir. 2005) (which struck down parts of EPA’s 2003 CAFO rule) and related cases, the 5th Circuit found that EPA’s authority under the CWA is strictly limited to the discharge of pollutants into navigable waters, and until that discharge occurs, EPA lacks regulatory authority.

Therefore, there is no “duty to apply.“  As the court said with admirable clarity: “the imposition of failure to apply liability is an attempt by the EPA to create from whole cloth new liability provisions.  The CWA simply does not authorize this type of supplementation to its comprehensive liability scheme.“  The American Farm Bureau Federation has hailed the decision as “a major court victory.”