Agriculture and the Clean Air Act
| Author | Teresa B. Clemmer |
| Pages | 163-184 |
Page 163
Chapter 10
Agriculture and the Clean Air Act
Teresa B. C lemm er
As livestock production has become more concentrated, factory farming has generated vast quantities
of air pollution and caused severe human health and environmental impacts in surrounding com-
munities.1 Factory farms emit several di erent types of toxic a nd conventional air pollution, and
these are far more dangerous than many people may realize.2 Despite the serious health and environmental
impacts resulting from factory farm a ir pollution and despite the clear applicability of federal air pollution
control and release-reporting obligations, the U.S. Environmental Protection A gency (EPA) has shown a
reluctance to hold the factory farm industry to the same sta ndards as other industries reg ulated under the
Clean Air Act and other federal statutes.3
EPA has even taken the unusua l step of entering into an industrywide consent agreement eectively
excusing the industry from liability associated with its longstanding noncompliance with federal permit-
ting and release reporting requirements.4 EPA’s industry-friendly approach has discouraged many states
from vigorously applying and enforcing the Clean Air Act and other laws in the factory farm context as
well.5 Some st ates, however, have recognized the air pollution threats associated with factory farms, and
they have taken some import ant rst steps to address the most egregious problems.6 Moreover, citizen
groups frustrated with the lack of regulation for this highly polluting industry have repeatedly called upon
EPA to implement and enforce existing air pollution permitting and release reporting requirements and to
initiate rulemakings that would establish appropriate regulatory tools.7
EPA’s decision not to apply traditional Clean Air Ac t permitting requirements to factor y farms is now
converging with the ongoing controversy over the applicability of these same permitting requirements
to greenhouse gases, such as methane and nitrous oxide, which are emitted in large quant ities by fac-
tory farms.8 Here again, some state s are taking steps to address greenhouse ga s emis sions from factory
farms,9 but EPA le adership in implement ing and enforcin g applicable Clean Air Act requirements will
be importa nt in broadening the scope of these eorts and expeditin g the eort needed to meet the chal-
lenges ahead.
1. See supra Chapter 5.
2. See infra Section A.1. (discussing health and environmental impacts of particulate matter (PM) and ozone pollution); and Sections A.4. and
B. (discussing health hazards posed by ammonia and hydrogen sulde pollution).
3. e factory farm industry has lobbied aggressively against governmental eorts to protect public health and welfare through air pollution
regulation. See, e.g., P C I F A P, P M T: I F A
P A viii, available at http://www.ncifap.org/bin/e/j/PCIFAPFin.pdf; M M. M, EPA S F
R CAFO U F E L 5-6 (2006), available at http://www.environmentalintegrity.org/pdf/publications/
EPA_State_Failures_Regulate_CAFO.pdf.
4. See infra Section C.2.
5. See infra Section D.2.
6. See infra Sections D.2-D.4.
7. See infra Section A.1. (discussing citizen petition led in 2011 urging EPA to regulate ammonia as a criteria air pollutant under the Clean Air
Act); Sections A.3. and E.2. (discussing citizen petition led in 2009 urging EPA to regulate factory farm air pollution on an industrywide
basis under the NSPS program of the Clean Air Act); Section A.4. (discussing citizen petition led in 2009 urging EPA to regulate hydrogen
sulde as a hazardous air pollutant under the Clean Air Act); Section C.2. (discussing citizen group comments and subsequent lawsuit objecting
to EPA’s entry into an industrywide consent agreement in 2005); and Section E.2. (discussing citizen petition led in 2008 and subsequent
lawsuit seeking to compel EPA to regulate greenhouse gas emissions from non-road engines, including those used in agricultural operations).
8. See infra Section E.1.
9. See infra Section E.3.
Page 164 Food, Agriculture, and Environmental Law
A. Clean Air Act
e purpose of the Clean Air Act is “to protect and enhance the quality of the Nation’s air resources so as to
promote the public health and welfare and the productive capacity of its population.”10 Because the Clean
Air Act represents the increasing involvement of the federal government in areas traditionally regulated by
the states—public health, nuisance, industrial facility siting, transportation, and land use—the U.S. Con-
gress has relied on the principle of “cooperative federalism” to preserve state sovereignty as much as possible
and thereby minimize state opposition to federal participation in air pollution control.11 As a result, the con-
cept of a federal-state partnership has been at the heart of the modern Clean Air Act since it was enacted in
1970.12 With this in mind, Congress designed the Clean Air Act in a bifurcated fashion: Congress assigned
the federal government the duty to set ambient air quality standards,13 and it gave states the responsibility to
develop laws and regulations sucient to achieve and maintain these overarching standards.14 Both EPA and
states have been granted responsibility for enforcing applicable air quality requirements.15
1. National Ambient Air Quality Standards and State Implementation Plans
Under the Clean Air Act, EPA must designate as “criteria” pollutants those ubiquitous air pollutants gen-
erated by “numerous or diverse mobile or stationary sources” that, in EPA’s judgment, “may reasonably
be anticipated to enda nger public health or welfare.”16 To date, EPA has designated six criteria air pollut-
ants: ozone, particulate matter (PM), nitrogen oxides (NOx), sulfur d ioxide, carbon monoxide, and lead.17
is designation, in turn, triggered a duty for EPA to establish a national a mbient air quality standard
(NAAQS) for each criteria pollutant, and to review and, if appropriate, revise such standa rds at least once
every ve years.18 Primary NAAQS are set at levels that EPA deems “requisite to protect the public health”
with an “adequate margin of safety.”19 Secondary NAAQS are set at levels that EPA deems “requisite to
protect the public welfare,” including environmental, recreational, economic, aesthetic, and other consider-
ations, “from any known or anticipated adverse eects associated with the presence of such air pollutant in
the ambient air.”20 After the promulgation or revision of a NAAQS, each state must prepare and submit to
EPA for approval a state implementation plan (SIP) that “provides for implementation, maintenance, and
enforcement” of each NAAQS within each a ir quality control region of the state.21 e Clean Air Act sets
forth detailed requirements for SIPs, and EPA relies on these criteria to assess their adequacy.22
Presently, the NAAQS standards most relevant for agricultural operations are those for ne and coarse
PM (PM2.5 and PM10), as well as ozone.23 Scientic studies have shown that PM pollution can cause and
contribute to a variety of human health problems, including decreased lung function, asthma, chronic
bronchitis, irregular heartbeat, heart attacks, and premature death.24 PM is also responsible for haze and
visibility impairment in ma ny areas, and it contributes to acid rain.25 Ozone is the primary constituent of
10. 42 U.S.C. §7401(b)(1).
11. See generally Robert Glicksman, From Cooperative to Inoperative Federalism: e Perverse Mutation of Environmental Law and Policy, 41 W
F L. R. 719 (Jan. 2011).
12. See generally id.
13. See 42 U.S.C. §7409.
14. See id. §7410.
15. See id. §§7410, 7413.
16. Id. §7408(a)(1).
17. 40 C.F.R. §§50.1-50.17.
18. 42 U.S.C. §7409(a), (b), (d)(2)(B).
19. Id. §7409(b)(1).
20. Id. §7409(b)(2).
21. Id. §7410(a)(1). For purposes of developing and implementing SIPs, EPA designates one or more “air quality control regions” within each
state. See id. §7407. Commonly, these coincide with major metropolitan areas or county boundaries, but there are examples of smaller and
larger air quality control regions throughout the nation.
22. Id. §7410(a)(2)-(6) et seq.
23. 40 C.F.R. §50.6 (PM10), §50.7 (PM2.5), §50.9 (one-hour ozone standard), §50.10 (eight-hour ozone standard), §50.13 (PM2.5), §50.15 (eight-
hour ozone standard).
24. See, e.g., U.S. EPA, P A R P M N A A Q S (Apr.
2011) [hereinafter 2011 Policy Assessment for PM NAAQS], available at http://www.epa.gov/ttn/naaqs/standards/pm/data/20110419pmpanal.
pdf; National Ambient Air Quality Standards for Particulate Matter, Final Rule, 71 Fed. Reg. 61144 (Oct. 17, 2006) [hereinafter 2006 PM
NAAQS].
25. See 2011 Policy Assessment for PM NAAQS and 2006 PM NAAQS, supra note 24.
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