Association of Irritated Residents v. Environmental Protection Agency
494 F.3d 1027, 37 Envtl. L. Rep. (Envtl. Law Inst.) 20178, 377 U.S. App. D.C. 381 (2007)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An agency's decision to enter into consent agreements with regulated entities, deferring enforcement actions in exchange for cooperation in developing compliance methodologies, constitutes an unreviewable exercise of enforcement discretion, rather than a reviewable rulemaking, when the agreements do not establish new substantive legal obligations or standards and the governing statutes grant the agency broad discretionary enforcement authority.
Facts:
- Animal feeding operations (AFOs) are facilities where animals are raised for eggs, dairy, or slaughter, and they emit various pollutants.
- These pollutants (ammonia, hydrogen sulfide, particulate matter, and volatile organic compounds) are regulated by the Clean Air Act, CERCLA, and EPCRA.
- An AFO releasing pollutants above statutory thresholds must report them and comply with requirements; below thresholds, there is no obligation.
- Community and environmental groups, whose members live near AFOs, claim to suffer from particulate pollution, terrible odors, flies, reduced enjoyment of property, and adverse health effects.
- There is no existing reliable methodology to precisely and consistently measure AFOs' emissions, hindering EPA's ability to enforce the Acts.
- The EPA, in consultation with various stakeholders, drafted a Consent Agreement to develop an emissions estimating methodology.
- Under the Agreement, participating AFOs pay a civil penalty, help fund a nationwide emissions study, and allow their facilities to be monitored upon request.
- In exchange, EPA agrees not to pursue administrative actions and lawsuits against these AFOs for certain potential past and ongoing violations for the study's duration, requiring them to initiate compliance efforts with new methodologies once published.
Procedural Posture:
- On January 31, 2005, EPA published the final draft of the Consent Agreement in the Federal Register, invited AFOs to sign up, and sought public comment.
- EPA extended the period for sign-up and public comment on March 30, 2005.
- After the comment period closed, EPA published its responses to the comments on July 12, 2005.
- Several thousand AFOs signed the Agreements, which were then forwarded to EPA's Environmental Appeals Board (EAB) for approval.
- The EAB approved a total of 2,568 Agreements in seven batches on various dates in 2006 (Jan 27, Apr 17, May 5, Jul 19, Aug 7, Aug 17, Aug 21).
- Community and environmental groups (Petitioners) challenged ten agency actions related to the Agreement, including the Federal Register notices and the EAB final orders, before the U.S. Court of Appeals for the District of Columbia Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Environmental Protection Agency's (EPA) Consent Agreement with animal feeding operations (AFOs), which defers enforcement of environmental statutes in exchange for AFOs' participation in an emissions study, constitute a reviewable rule under the Administrative Procedure Act, or is it an unreviewable exercise of the agency's enforcement discretion?
Opinions:
Majority - Sentelle, Circuit Judge
No, the EPA's Consent Agreement with animal feeding operations does not constitute a reviewable rule, but rather an unreviewable exercise of the agency's enforcement discretion. The court held that subject matter jurisdiction turns on whether the Agreement is a rulemaking (reviewable under APA) or an enforcement proceeding (generally unreviewable as "committed to agency discretion by law" under 5 U.S.C. § 701(a)(2)). Citing Heckler v. Chaney, the court reiterated that an agency's decision not to enforce is generally committed to its absolute discretion, especially when it involves balancing factors like resource allocation, agency priorities, and costs of alternatives, which are within the agency's expertise. The relevant statutes (Clean Air Act, CERCLA, EPCRA) use permissive terms like "may" when describing EPA's enforcement authority, thereby committing enforcement decisions to the agency's discretion and providing "no meaningful standard" for judicial review. The court distinguished the Agreement from a "rule" under APA § 551(4) because it merely defers enforcement of existing statutory requirements, making it subject to conditions that will ultimately lead to compliance, rather than prescribing new law or granting an exemption. It does not establish new substantive interpretations or practices, unlike the rules in National Association of Home Builders or CropLife America. The court emphasized that the limited deferral of enforcement discretion applied only to signing AFOs and was a paradigm of enforcement discretion, not a binding legislative rule or an abdication of statutory responsibility.
Dissenting - Rogers, Circuit Judge
Yes, the EPA's Consent Agreement is a legislative rule subject to judicial review because it creates a binding norm and goes beyond the scope of unreviewable enforcement discretion, effectively replacing Congress's enforcement scheme. Judge Rogers argued that the enforcement protocol, formally announced in the Federal Register, has all the earmarks of a legislative rule because it is of "general applicability," has "future effect," and defines rights and obligations, thereby constraining EPA’s enforcement authority. This "new generalized approach" is unrelated to particularized findings of past violations or specific enforcement actions, which Chaney addressed. The dissent contended that the Agreement is binding on both AFOs and the agency, and that it "forever absolves" signing AFOs from liability for past and ongoing violations for a "minimal civil penalty" and payment to a study, effectively allowing them to "buy its way out of compliance." This system of "nominal taxation" replaces the statutory enforcement schemes and constitutes an abdication of EPA's statutory responsibilities, which rebuts the Chaney presumption of unreviewability. The dissent also highlighted that the protocol undermines the APA's notice and comment requirements, which ensure public participation and informed decision-making, particularly given the significant negative impacts of AFO emissions on nearby residents and the environment.
Analysis:
This case significantly reaffirms the broad scope of agency enforcement discretion under Heckler v. Chaney, particularly in contexts where statutory language uses permissive terms like "may." It clarifies that an agency can structure industry-wide compliance programs, even those involving temporary enforcement deferrals, without triggering APA rulemaking requirements, so long as it does not promulgate new substantive legal standards or fundamentally abandon its statutory responsibilities. The decision provides agencies with substantial flexibility in addressing complex regulatory challenges, especially when precise compliance measurement methodologies are lacking. However, the dissent highlights the potential for agencies to bypass public participation and accountability mechanisms by framing broad policy initiatives as discretionary enforcement actions, raising concerns about the balance between agency efficiency and transparency.
