Rules and regs: Attorney reviews EPA impact on agWritten by Christy Martinez
Cheyenne – The Environmental Protection Agency’s (EPA) regulations continue to increase, and as they increase they continue to overlap into an industry traditionally regulated only by the USDA – agriculture.
Cheyenne attorney Kara Brighton, of the firm Hageman and Brighton, spoke on the topic at the 2011 Wyoming Water and Natural Resources Law conference held in Cheyenne April 7-8.
“Agriculture has typically been fairly exempt from EPA regulations, as it’s pretty expensive to regulate because there are so many small farms, and there’s also the competing interest of sustainable production and whether we should regulate agriculture the same way we regulate other industries,” explained Brighton in her introduction.
As the EPA promulgates rules to carry out statutes enacted by Congress, Brighton said there are a few Congressional options to deal with those rules, should Congress not agree with the final result.
“Through the Congressional Review Act they can amend current law, introduce new legislation or prevent funding,” she said. “The act is a procedure for Congress to nullify any regulation within 60 days.”
The act takes a joint resolution from Congress, the President can veto it, and the two-thirds overriding majority process applies.
“If the joint resolution is passed and effective, the rule is void and nullified, and it cannot go into law, nor can the agency reintroduce it at a later time,” said Brighton. “Because it’s such a strong remedy, in my research I could only find where it’s been used once, in 2001 when the Department of Labor passed an ergonomics rule.”
The second option for Congress is to amend the law the agency is trying to pass the rule to enforce. However, Brighton said it’s difficult to find majorities for such an action, as many of the environmental laws that affect agriculture do not originate in the ag committees of the House and Senate.
“There was an attempt in the last Congress to amend the Clean Air Act to revoke some of the powers of the EPA in regulating greenhouse gases, and that failed,” she noted.
Congress can also introduce new legislation to specifically limit the authority of an agency, such as Senator Barrasso’s recent bill to restrict the EPA’s ability to regulate greenhouse gases.
“That bill has failed, and it’s difficult to do that, in terms of stopping or stripping authority,” said Brighton. “Where this has been effective is in at least delaying the authority. A House and Senate bill delayed the EPA’s stationary source permitting for two years. It didn’t strip the authority, but it put it off for a couple years.”
“The most popular way for Congress to limit agency action once it’s occurred is to prevent funding by amending the agency’s appropriations bill for that year,” she stated. “An example is restricting EPA funds for certain climate change regulatory activities that affect agriculture.”
Regarding how the EPA is attempting to implement regulations that would negatively affect the U.S. agriculture industry, Brighton says the areas include air, water, energy and chemicals.
“In 2008, Congress passed the Consolidated Appropriations Act, and in that act they required the EPA to develop and publish a final rule to require mandatory reporting of greenhouse gas emissions above appropriate thresholds for all economic sectors, including agriculture,” explained Brighton. “The EPA did propose a rule Oct. 30, 2009, and the reporting requirements will start this year and will include 10,000 facilities and 42 sources. That includes suppliers of fossil fuels, manufacturers of vehicles, power plants and other industrial sources. Reporting is required if they emit more than 25,000 tons of carbon dioxide, or the equivalent of five other greenhouse gases, including methane and nitrous oxide.”
She said it’s the methane and nitrous oxide that make the rule a concern for agriculture.
“Because of those two, manure management systems are included in the rule – that means feedlots,” said Brighton, noting the threshold would affect 107 livestock facilities nationwide.
“Congress stepped in, and they restricted funding to EPA in the 2010 appropriations bill relating to reporting for manure management facilities. The EPA still has no funding source to require those livestock facilities to report under that rule,” she added.
The second way EPA is regulating agriculture related to air quality is the Tailoring Rule, or the “Cow Tax.”
“On June 30, 2010 they issued rules to reduce emissions, and under Title 5 of those rules they’re required to regulate anything emitting over 75,000 tons of greenhouse gas, which brings in 13,000 facilities in the U.S. The other six million small businesses and farms are exempt at this point, but in 2013 the EPA wants to go another layer into those,” said Brighton.
The EPA’s 2010 appropriations bill prohibited the agency from using funds to implement the Title 5 program on livestock production.
The next EPA effort focuses on reducing emissions from gasoline and diesel stationary engines. Brighton said that affects ag producers mostly through irrigation systems. After litigation from both sides of the issue, the EPA has said the rule doesn’t apply to any engine less than 300 horsepower, but that the federal government will require operators to conduct proper management practices, such as changing the oil, but Brighton said she’s not sure how they’ll check on that.
The EPA is also addressing confined animal feeding operations (CAFOs) through the Clean Water Act, a subject which has also gone through litigation. In May 2010 the agency settled with the environmentalists, saying they would issue guidance to CAFO owners on how to report under the Clean Water Act, and that they would complete an inventory record of all CAFOs in the U.S. and make that available as a public record.
On the agriculture industry side of the litigation, the court agreed the Clean Water Act only allows facilities that actually discharge to seek a permit, rather than including everyone who might propose to, but doesn’t actually, discharge.
“That narrowed the authority of the EPA to oversee the Clean Water Act and CAFOs,” said Brighton of the case.
Concerning the Renewable Fuel Standard, Brighton said that’s where agriculture has seen a lot of pressure.
“By 2011 we were required to have 13.95 billion gallons of biofuel in the national gasoline system, and that goes up to 36 billion by 2022,” she said.
“The unintended consequences of the ethanol and biofuel push are that it’s put pressure on limited ag resources and has raised the prices of commodities that compete for cropland,” she explained. “We’re seeing increased demand for corn for livestock and the fuel market, which, among other things, is expanding cultivation on marginal lands, like CRP lands coming back into production for corn to meet ethanol requirements.”
“Those competing interests are increasing the environmental impact from agriculture in some areas because it’s doing these things in other areas to meet other environmental regulations,” she said.
In addition, the EPA is also reaching into pesticide application regulation near water through the Clean Water Act.
“Pesticide application has historically been regulated by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) under USDA. In 2006 the EPA said FIFRA is sufficient to regulate any discharges or applications of pesticides as it relates to water of the United States. In January 2009 the court disagreed, and said if there are applications of pesticides near waters of the U.S., there must be a permit,” stated Brighton. “There are two things there that are open for hours of debate – ‘near’ and ‘waters of the U.S.’”
In February 2010 the Supreme Court declined to hear the case, and the EPA immediately requested a two-year extension on the permits, which expired April 9, 2011. Immediately before expiration the EPA was granted another extension through October.
In the meantime, Wyoming’s Department of Environmental Quality has drafted a permit system, although Brighton said that, because the EPA has not issued their draft permit, the states are not sure what theirs should look like.
“There is a bill in Congress to strip EPA of the authority to regulate pesticide application, and to limit that authority to the USDA under FIFRA,” said Brighton. “That bill is not moving at this point, so we’ll see what happens. If we can’t get the legislation we need to clarify the regulatory authority, then EPA will take over a huge amount of jurisdiction related to pesticide application.”