Jump to Navigation
Jump to Content

Environmental Integrity Project v. McCarthy

ELR Citation: 45 ELR 20183
Nos. 13-1306, (D.D.C., 09/29/2015) (Moss, J.)

A district court upheld EPA's decision to withdraw a proposed rule that would have required concentrated animal feeding operations (CAFOs) to provide information to the Agency to help facilitate EPA's ability to regulate their discharge of pollutants into the waters of the United States under the CWA. An agency's decision to withdraw a proposed rule after a notice-and-comment period is subject to judicial review under the APA, but the agency is entitled to even greater deference than would be given to an agency's decision to promulgate a new rule or to rescind an existing one. Here, environmental groups argued that EPA's decision to withdraw the proposal lacked clear reasoning, but EPA adequately explained the basis for its decision. EPA concluded that it would attempt to rely on existing sources of information before deciding whether to impose mandatory reporting requirements under a new rule. It reasoned that this approach made sense because, while not perfect, existing sources may yield much of the information that the Agency needs. Meanwhile, the proposed rule, which is also not perfect, may divert Agency resources, and EPA still has the option of adopting a mandatory reporting requirement or other approach based on what the Agency learns from its current efforts. Nor does EPA's determination run counter to the evidence in the administrative record or reflect a clear error in judgment. And EPA's decision to withdraw the proposal does not conflict with its obligations under the CWA. No statute mandates that EPA require that all CAFOs self-report, and the CWA expressly leaves it to the EPA Administrator to decide what information she "may reasonably require."