In April 2017, the D.C. Circuit issued a decision in Waterkeeper Alliance v. EPA, 853 F.3d 527, which, if upheld, will require approximately 63,000 small- and medium-sized farms that were previously exempt from the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements to come into compliance. Read Husch Blackwell’s analysis of the decision and its implications here.
Earlier this week, the U.S. Environmental Protection Agency (EPA) filed a motion to stay the mandate for six months. If the stay is issued, farms will have until January to come into compliance with the reporting requirements. It will also give the farming industry more time to file a petition for certiorari with the US Supreme Court and challenge the D.C. Circuit decision. Otherwise, October 1 will be the deadline for filing a petition for certiorari as the mandate will be issued on that date and the reporting requirement will then take immediate effect.
According to EPA, farmers from all over the country have asked EPA for help in calculating their emissions. A stay is needed so the agency can develop guidance on how to measure emissions from animal waste and comply with the new reporting requirements. A stay would also provide farms relief from enforcement actions while they come into compliance. EPCRA and CERCLA contain citizen suit provisions and noncompliance carries the risk of administrative, civil, or even criminal penalties. A stay of the issuance of the mandate would allow farms temporary relief from these risks and enable them to focus on coming into compliance.