Industrial swine, poultry and dairy operations emit planet-warming gases and toxic air pollutants that contribute to thousands of deaths a year. But these facilities have long skirted key provisions of air pollution laws under a deal pushed by livestock industry representatives and embraced by George W. Bush’s Environmental Protection Agency in 2005.

Even as President Biden heads to Scotland to discuss his plans to reduce global greenhouse gases with other world leaders at the U.N. Climate Change Conference, his administration continues to allow climate-altering factory farm polluters to evade oversight.

On Tuesday, nearly two decades after the EPA adopted a confidential industry proposal to couple air monitoring with “protections from enforcement,” two dozen public interest groups filed a legal petition calling on the Biden administration to enforce federal laws meant to control hazardous emissions from industrial polluters like factory farms.

Nearly 14,000 industrial animal feeding operations or AFOs, also known as CAFOs (for Concentrated Animal Feeding Operations), signed on to the Bush-era deal, known as the Air Consent Agreement. The agreement was intended to help the EPA develop reliable ways to measure emissions so it could better enforce clean air laws. The agency justified the deal, in a notice seeking public comment, as a way to achieve “real environmental benefits to protect public health and the environment while supporting a sustainable agricultural sector.”

Yet 16 years later, the promised estimation methods have still not emerged in final form, allowing factory farms to continue emitting hazardous air and climate pollutants without adequate oversight.

The fact that there’s been no regulation of industrial animal farms under federal air pollution laws since the Bush era is “pretty shocking,” said Emily Miller, an attorney with Food and Water Watch, one of the lead organizations on the petition.

The EPA also exempted AFOs from two federal laws that require facilities to report emissions of hazardous substances that exceed set thresholds, including the Emergency Planning and Community Right-to-Know Act, which requires those reports to be publicly accessible.

The whole point of the EPA’s deal with the industry, Miller said, was to generate data and develop methods that would allow federal and state regulators, as well as citizens, to calculate factory farm air pollution and begin enforcing clean air laws. 

“The amnesty deal was supposed to end in 2010, when EPA basically committed to putting out these methodologies,” Miller said. “But because EPA has yet to put out any  final emission estimating methodologies like they said they would do over a decade ago, 14,000 AFOs continue to enjoy this amnesty from EPA enforcement of federal air pollution laws.”

Asked why the EPA has continued an “enforcement amnesty” policy that allows industrial animal farms to remain major sources of climate and air pollutants, Tim Carroll, a spokesman for the agency, responded: “We will review the petition.”

The EPA has the authority to rescind the safe harbor provisions of the consent agreement but has instead granted extended immunity to AFOs that emit significant air pollution and cause adverse public health impacts in surrounding communities, the petitioners wrote.

Beyond agreeing not to enforce the law for thousands of factory farms, the EPA has held back from taking other regulatory actions with respect to this industry, said Brent Newell, a senior attorney with the Public Justice Food Project, a lead signatory on the petition. As a result, safe harbor for the livestock industry has become “a broader de facto policy platform at the agency,” he said.

“Multiple administrations have carried on this policy of agricultural exceptionalism where ag, cloaked in a false narrative of family farmers, has expanded the industry,” said Newell, who has filed other petitions urging the EPA to regulate AFOs and their pollutants under the Clean Air Act. 

“Over the last several decades, the number of industrial dairy and hog operations have grown, and the amount of liquefied manure creating methane has increased while EPA is standing idly by,” Newell said. “EPA needs to end the consent agreement.”

Consolidating Farms Along with Risks

Over the last several decades, U.S. livestock production has shifted from small pasture-based farms to increasingly concentrated industrial facilities to improve profitability. As operators concentrated more and more animals and their waste in confined—and often relatively small—areas, communities and researchers documented numerous threats to public health and the environment.

Regulators first recognized they lacked the information needed to rein in emissions from the rapidly consolidating livestock industry during the Clinton administration.

In 1997, the Department of Food and Agriculture estimated that livestock generated 1.1 billion tons of manure, six times the amount of waste produced by people. Around the same time, the EPA realized its staff lacked the necessary data to develop what the agency calls emissions estimating methodologies, or EEMs. 

Agency staff met with livestock industry representatives four years later to address these gaps, and announced the consent agreement in 2005, extending the signup period for AFOs several times.

When the livestock industry entered the agreement with the EPA, the agency was struggling to figure out how to gather the information needed to implement existing law, said Michael Formica, general counsel for the National Pork Producers Council. “They didn’t have the data and every farm was different.”

The agency received a huge volume of emissions monitoring data as part of the agreement and wrestled with how to make sense of it, Formica recalled. Meanwhile, farmers still don’t know what their emissions are, he added, which means they don’t know what will be required of them when the EPA finally issues permitting or notification requirements.

“EPA should have finished this process a long, long time ago,” Formica said. “And we have been asking for them to finish the process for a long, long time.”

Factory farms emit ammonia, particulate matter, volatile organic compounds and other harmful pollutants classified as hazardous substances under three federal air laws, including the Clean Air Act. These pollutants emanate, often simultaneously, from several areas of these facilities, including barns, covered feedlots and manure piles, as well as massive pits of liquified manure, which emit the climate super-pollutant methane.

When the EPA announced its air consent agreement, the agency insisted that it was not intended to affect “in any way EPA’s ability to respond to an imminent and substantial endangerment to public health, welfare or the environment.”

Yet a recent study published in the journal PNAS attributed nearly 13,000 deaths a year to emissions from livestock production. Industrial animal farms reduce nearby residents’ quality of life and increase the risk of numerous health conditions, including asthma, bronchitis and other respiratory diseases, headaches, pneumonia, infections, depression and other neurobehavioral problems. And they tend to be located in disadvantaged communities. 

“Low-income communities of color are disproportionately burdened by the public health impacts of factory farm air pollution,” said Miller.

Flawed Methods

The EPA laid out plans to collect data for a national air emissions monitoring study to get a “representative sample” of structures that confine animals and store manure when it announced the agreement in 2005.

Yet when an EPA Scientific Advisory Board reviewed the agency’s first pass at developing emissions estimating methods in 2013, the panel concluded they “should not be applied on a national scale as intended.”

Not only did the agency fail to include a representative sample of sites, the board found, but the analyses didn’t capture all the climate conditions that affect air emissions.

Four years later, the advisory board reported that monitoring had occurred at just 27 sites at 23 AFOs in 10 states—a mere 0.16 percent of the thousands of farms the agency was supposed to regulate. The number of sites selected for monitoring was simply “too small relative to the size of the industry,” the board found, pointing to several modifications to improve the agency’s methods.

The agency still lacked the “scientifically defensible” methods needed to make federal air regulation compliance determinations, the advisory board concluded in 2017. In addition, the civil enforcement protections for the approximately 14,000 AFOs that participated in the agreement remained in effect more than six years after their intended expiration, and several important EPA actions were on hold pending development of the emissions estimating methodologies.

“From the outset,” the petitioners charged, “the design and implementation of the study was limited because industry exerted significant control on the pool of potential study sites.”

It’s been the EPA’s responsibility for almost two decades to develop emissions estimating methodologies that can be put to use, said Miller. But the process has resulted in one failure after another, she added, from the way the agency designed the study to how they collected and tried to use the data.

“When they tried to put out these EEMs as drafts in 2012, they basically got lambasted by the science advisory board, saying that they were unusable, they should not be applied on a national scale and they couldn’t do anything other than predict emissions from the small number of facilities that EPA studied in the first place,” said Miller.

Today, some 10 billion animals generate 1.4 billion tons of manure, nearly half a billion more tons than when the EPA began its failed attempt to estimate, and regulate, emissions from factory farms.

“The Biden administration has made promises about taking aggressive action on climate and putting environmental justice at the center of its climate policy,” Newell said. “Yet the Biden administration is allowing rural communities to twist in the wind when it comes to pollution from industrial ag.”

It’s the EPA’s duty under the law to hold major polluting industries accountable and to safeguard public health and the environment in the process, said Miller.

But the agency has essentially abdicated its enforcement authority and shirked its duty to protect the public, she added. “We don’t think that EPA should trade amnesty with a polluting industry at all. But the fact that this has dragged on for almost 20 years at this point is just incredibly unacceptable.”