Of Pigs, Plain Text, and Pyrrhic Victories: National Pork Producers Council v. United States Environmental Protection Agency

Christopher Ralph Brown JD MPA, Texas State University

Abstract

Any court charged with defining the scope of the Environmental Protection Agency’s (EPA’s) authority to enforce the Clean Water Act should do so in light of the Act’s ultimate purpose: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” So much is certain in statutory construction: if one possible statutory construction serves to frustrate the purpose of the statute according to its own terms, one should go back to the drawing board. This article evaluates the legal reasoning of a recent decision by the United States Court of Appeals for the Fifth Circuit in light of its impact on the ultimate goals of the Clean Water Act. Specifically, this article addresses this decision’s possible implications for the EPA’s efforts to regulate Confined Animal Feeding Operations (CAFOs), factory farms, under the Clean Water Act: National Pork Producers Council v. United States Environmental Protection Agency (Pork Producers), No. 08-61093 (5th Cir. March 29, 2011).

In order to analyze the Pork Producers decision, this article does the following:

First, this article provides a larger context for the need to regulate CAFO facilities by explaining their characteristics and their massive role in surface water pollution.

Second, this article explains EPA’s 2003 CAFO rules and the challenge to them in Waterkeeper Alliance et al. v. Envtl. Prot. Agency, 399 F.3d 486 (2d Cir. 2005).

Third: after explaining in basic terms the 2003 rules and the Waterkeeper Alliance decision, this article considers the 2008 CAFO rules and the challenge to them under Pork Producers. This part of the article provides a detailed analysis of the Pork producers decision in light of accepted principles of statutory interpretation.

Fourth: this article considers policy implications that could result from the Pork Producers decision in the absence of rule-based changes or a more unlikely amendment of the Clean Water Act by Congress.