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Federal appeals court rejects challenge to EPA-industry emissions agreements

[JURIST] The US Court of Appeals for the District of Columbia Circuit ruled [PDF text] 2-1 Tuesday that the Environmental Protection Agency (EPA) [official website] did not improperly enter into consent agreements with "animal feeding operations" (AFOs). Several community and environmental groups challenged the consent agreements, which allow AFOs to emit pollution regulated by the Clean Air Act [text] without liability by paying a nominal fine, arguing that the EPA was actually making rules without following the proper procedure. Instead the court held that "the Consent Agreements do not constitute rulemaking, but rather enforcement actions within EPA's statutory authority," The court said that "exercises of EPA's enforcement discretion" are not subject to the review of the court.

The EPA and AFOs say that there are currently no reliable methods of tracking AFO pollution emissions, and maintain that consent agreements constitute the "quickest and most effective way" to achieve eventual compliance. The EPA says the nominal fines are helping to fund a nationwide study that will provide data to develop scientific models for the industry to monitor their emissions. The National Pork Producers Council [advocacy website] "applauded" the decision, saying that the industry is aiding the development of the scientific knowledge [press release] necessary to help the EPA regulate emissions from animal agriculture. AP has more.

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