Association of Irritated Residents v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2007 Decided July 17, 2007

No. 05-1177

ASSOCIATION OF IRRITATED RESIDENTS, ET AL.,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND
STEPHEN L. JOHNSON, ADMINISTRATOR, US ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENTS

NATIONAL PORK PRODUCERS COUNCIL AND
ROE FARM, INC.,
INTERVENORS

Consolidated with
05-1336, 05-1337, 06-1053, 06-1209, 06-1320, 07-1038

On Petitions for Review of a Final Action of the
Environmental Protection Agency

Brent J. Newell argued the cause for petitioners. With him
on the briefs were Patrick Gallagher and Angel M. Latterell.
David G. Bookbinder entered an appearance.
 2

Norman L. Rave, Jr., Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
Carol S. Holmes, Counsel, Environmental Protection Agency.

Richard E. Schwartz and Kirsten L. Nathanson were on the
brief for intervenors in support of respondents.

Before: SENTELLE, ROGERS and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge: Community and environmental
groups petition for review of agreements between EPA and
animal feeding operations. The agreements are designed to
bring the facilities into compliance with the permitting and
reporting requirements of three environmental statutes.
Petitioners argue that the agreements are rules disguised as
enforcement actions, that EPA did not follow proper procedures
for rulemaking, and that EPA exceeded its statutory authority by
entering into the agreements. We hold that the agreements do
not constitute rules, but rather enforcement actions within EPA’s
statutory authority. We dismiss the petitions for review because
exercises of EPA’s enforcement discretion are not reviewable by
this court.

I.

Animal feeding operations (“AFOs”) are facilities where
animals are raised for eggs, dairy, or slaughter. See 40 C.F.R.
§ 122.23(b)(1). At issue in this case are AFOs producing eggs,
broiler chickens, turkeys, dairy, and swine. In the course of
their operations, AFOs emit a number of pollutants regulated by
 3

the Clean Air Act, 42 U.S.C. § 7401 et seq., the Comprehensive
Environmental Response, Compensation, and Liability Act, 42
U.S.C. § 9601 et seq. (“CERCLA”), and the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. §
11001 et seq. (“EPCRA”) (collectively, the “Acts”). The
pollutants – ammonia, hydrogen sulfide, particulate matter, and
volatile organic compounds – emanate from animal housing
structures and areas used to store and treat manure. Animal
Feeding Operations Consent Agreement and Final Order;
Notice, 70 Fed. Reg. 4958, 4959 (Jan. 31, 2005) (“Consent
Agreement”). An AFO that releases these pollutants in
sufficient quantities may be required to report them under
CERCLA and EPCRA, and may be subject to various
requirements under the Clean Air Act. Id. An AFO emitting
these pollutants in quantities below the statutory thresholds,
however, has no obligation under the Acts to obtain permits or
report its emissions.

Petitioners are a number of community and environmental
groups, some of whose members live near AFOs. They assert
that the AFOs emit particulate pollution and terrible odors, and
that they attract hordes of flies that leave their droppings on
everything from cars to outdoor furniture. As a result,
petitioners claim that their members suffer effects ranging from
reduced enjoyment of the outdoor portion of their property to
adverse health effects such as respiratory and heart problems.
Additionally, as long as the AFOs’ emissions are not definitively
determined to be above or below the statutory thresholds,
petitioners’ members suffer from the uncertainty of not knowing
whether the AFOs’ emissions exceed legal limits, and not
knowing how their long-term health may be affected.

Because the Acts apply only to emissions above specified
levels, EPA cannot enforce the statutory and regulatory
requirements without determining an AFO’s emissions.
 4

Generally, an AFO emits these pollutants in proportion to its
size: the more animals it houses, the more it pollutes. Precise
measurements have eluded the government and the AFO
industry, which are in agreement that there is no existing
methodology to measure reliably an AFO’s emissions. AD HOC
COMM. ON AIR EMISSIONS FROM ANIMAL FEEDING OPERATIONS
ET AL., NAT’L RESEARCH COUNCIL, AIR EMISSIONS FROM
ANIMAL FEEDING OPERATIONS: CURRENT KNOWLEDGE, FUTURE
NEEDS (2003), available at http:
www.nap.edu/catalog/10586.html; Consent Agreement, 70 Fed.
Reg. at 4958. The present uncertainty hampers EPA’s ability to
enforce the requirements of the Clean Air Act, EPCRA, and
CERCLA against AFOs. EPA’s solution to this problem was to
invite AFOs to sign a consent agreement under which each AFO
will assist in developing an emissions estimating methodology.
Consent Agreement, 70 Fed. Reg. at 4958. In exchange, EPA
will not pursue administrative actions and lawsuits against the
AFOs for a defined period of time. Id. at 4959. In the agency’s
judgment, this is the “quickest and most effective way” to
achieve compliance. Id. at 4958.

EPA drafted the Consent Agreement in consultation with
“representatives of state governments, environmental groups,
local citizens’ groups, and the AFO industry.” Id. at 4961. On
January 31, 2005, the agency published the final draft of the
Agreement, invited interested AFOs to sign up, and sought
public comment. Id. at 4958. After the comment period closed,
EPA concluded that the “vast majority” of the comments
received “were ones that had been previously expressed to EPA,
and they had already been considered in the development of the
Agreement.” Animal Feeding Operations Consent Agreement
and Final Order, 70 Fed. Reg. 40,016, 40,017 (July 12, 2005)
(“July 12 Notice”). To date, several thousand AFOs have signed
Agreements. Once EPA signs the Agreements, they are
forwarded to EPA’s Environmental Appeals Board (“EAB”) for
 5

approval. See 40 C.F.R. § 22.4(a)(1). The Agreements become
enforceable against EPA once they are approved by the EAB in
a final order. See id. §§ 22.18(b)(3), 22.4(a)(1). EAB has
considered the Agreements in seven sets, and approved a total
of 2,568 Agreements.

Although each participating AFO signs an individual
Agreement with EPA, all the Agreements have identical terms.
Consent Agreement, 70 Fed. Reg. at 4962-68. The AFO,
although not admitting any violation of the Acts, agrees to pay
a civil penalty for potential violations based on the size and
number of its farms. Id. at 4965-66. It agrees to help fund a
nationwide study that will monitor, over a two-year period,
emissions from animal housing structures and manure storage
and treatment areas. Id. at 4959, 4966-67. The AFO also agrees
to permit its facility to be monitored in the study upon request.
Id. at 4959-60, 4967. The study, designed in consultation with
industry and academia, aims to generate “a valid sample that is
representative of the vast majority of the participating AFOs” by
monitoring different types of AFOs in different geographic
areas. Id. at 4960. As data from the study is received, EPA will
use it along with existing emissions data to develop
scientifically sound tables or models for AFOs to estimate their
emissions. Id. at 4960. In consideration for the AFOs’
assistance, EPA agrees not to sue participating AFOs for certain
potential past and ongoing violations of the Acts for the duration
of the study. Id. at 4959, 4963-64. Within 120 days after EPA
publishes the new methodologies, however, the AFO must
initiate compliance efforts such as applying for a permit. Id. at
4964. EPA predicts that this schedule will result in compliance
by participating AFOs within about four years from the start of
the study. Id. at 4959-60.

Although the Agreement is intended to bring AFOs into
eventual compliance with the Acts, petitioners argue that EPA
 6

lacks authority to achieve compliance in this manner. They
believe that the AFOs should be forced to comply more quickly
with the statutory requirements. They also argue that the
procedures by which EPA entered into the Agreement did not
afford them the meaningful opportunity for comment required
by the Administrative Procedure Act, 5 U.S.C. § 551 et seq.
(“APA”). Petitioners challenged the Agreement before the
agency while it was being developed, and now identify ten
agency actions that they contend should be vacated. Three are
Federal Register notices: one announced the availability of the
Agreement and solicited comments, Consent Agreement, 70 Fed.
Reg. at 4958; another extended the period for sign-up and
comment, Animal Feeding Operations Consent Agreement and
Final Order, 70 Fed. Reg. 16,266 (Mar. 30, 2005); and the third
published the agency’s responses to the comments, July 12
Notice, 70 Fed. Reg. at 40,016. The seven remaining agency
actions challenged by petitioners are the EAB final orders
approving batches of the Agreements dated January 27, 2006,
April 17, 2006, May 5, 2006, July 19, 2006, August 7, 2006,
August 17, 2006, and August 21, 2006.

In EPA’s view, the Agreement is not a rulemaking, but
rather a valid exercise of the agency’s enforcement discretion.
EPA also argues that even if the Agreement constitutes a
rulemaking, the agency did not violate the notice and comment
requirements of the APA.

II.

Our analysis of this case begins and ends with subject
matter jurisdiction.1 In this case, subject matter jurisdiction

1
Although petitioners’ standing was also challenged, this court
is not bound to consider jurisdictional questions in any particular
order. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85
 7

turns on whether the Agreement constitutes a rulemaking subject
to APA review, or an enforcement proceeding initiated at the
agency’s discretion and not reviewable by this court. Under the
APA, this court may review final agency actions, including an
agency’s promulgation of a rule. 5 U.S.C. §§ 701-706.
Excluded from this court’s review, however, are agency actions
that are “committed to agency discretion by law.” Id. §
701(a)(2). Enforcement actions are generally within this
exclusion, because “a court would have no meaningful standard
against which to judge the agency’s exercise of discretion” in
deciding how to enforce the statutory provisions. Heckler v.
Chaney, 470 U.S. 821, 830 (1985).

Petitioners advance a number of arguments in support of
their contention that the Agreement is a rule. They contend that
the Agreement meets the definition of “rule” under the APA and
that it does not fall within the definition of an enforcement
action. They also argue that the Agreement must be a rule
because EPA has bound its enforcement discretion, a factor that
this court previously found significant in determining whether
an agency action is a rule. Finally, petitioners contend that even
if the Agreement is an enforcement action, the agency exceeded
its enforcement authority when it exempted AFOs from statutory
requirements.

EPA’s position that the Agreement is an exercise of
enforcement discretion rather than a rule is based on case law
explaining the substantive difference between the two. In the
agency’s view, the Agreement’s purpose and effect are
consistent with enforcement actions and inconsistent with rules.
Moreover, EPA believes that the Agreement provides no
exemption, but merely defers enforcement of certain statutory
requirements in light of the agency’s judgment that immediate

(1999).
 8

compliance is impossible or impracticable. We hold that the
Agreement represents an enforcement action not subject to our
review.

A.

Under Chaney, “an agency’s decision not to prosecute or
enforce . . . is a decision generally committed to an agency’s
absolute discretion.” 470 U.S. at 831. In that case, FDA
rejected a citizen petition for the agency to take enforcement
action against the use of drugs for lethal injection without
approval for that use. Recognizing that “an agency decision not
to enforce often involves a complicated balancing of a number
of factors which are peculiarly within its expertise,” the
Supreme Court held that such decisions are presumptively
unreviewable. Id. For example, “the agency must not only
assess whether a violation has occurred, but whether agency
resources are best spent on this violation or another, whether the
agency is likely to succeed if it acts, whether the particular
enforcement action requested best fits the agency’s overall
policies, and, indeed, whether the agency has enough resources
to undertake the action at all.” Id.

Although the Supreme Court’s decision in Chaney applies
directly to agency decisions not to enforce a statute, we have
also applied it to an agency’s decision to settle an enforcement
action. In Schering Corporation v. Heckler, we considered a
settlement agreement between FDA and Tri-Bio, a drug
manufacturer that marketed a drug without obtaining FDA
approval. 779 F.2d 683 (D.C. Cir. 1985). The agreement
terminated pending litigation in which the parties disputed
whether Tri-Bio’s product could bypass the approval process
because it was identical to a competitor’s product that was
already on the market. Id. at 684-85. The parties agreed to
dismiss the case, Tri-Bio agreed to pursue its claim before the
 9

agency instead of in the courts, and FDA agreed not to pursue
further enforcement actions for 18 months. Id. at 685. Schering
– the competitor whose drug was already approved – sued,
claiming that the agreement was invalid insofar as it granted a
de facto approval of Tri-Bio’s drug. Id. We affirmed the district
court’s ruling that FDA’s decision to terminate the litigation
with a settlement agreement was unreviewable under Chaney.
Id. We held that FDA’s agreement not to sue for 18 months
“merely postponed any decision with regard to enforcement
until it has had an opportunity to determine whether” the drug
was subject to the Federal Food, Drug, and Cosmetic Act
(“FDCA”). Id.

The present matter falls squarely within these precedents.
As in Schering, EPA has doubts about AFOs’ obligations under
the Acts. See id. at 686-87 (holding that Chaney shields from
judicial review the agency’s decision to resolve its doubts about
Tri-Bio’s compliance with statutory requirements in an
administrative rather than judicial forum). The Agreement is
intended to save the time and cost of litigation while providing
the agency with an opportunity to determine whether, and to
what extent, AFOs are subject to the statutory requirements.
Consent Agreement, 70 Fed. Reg. at 4958 (concluding that the
Agreement “will help participating AFOs pool their resources to
lower the cost of measuring emissions and ensure that they
comply with all applicable environmental regulations in the
shortest amount of time”). EPA could have pursued
enforcement actions against each individual AFO, but
determined that a broader strategy would lead to quicker
industry-wide compliance. Id.; July 12 Notice, 70 Fed. Reg. at
40,018. These judgments – arising from considerations of
resource allocation, agency priorities, and costs of alternatives
– are well within the agency’s expertise and discretion. See
Chaney, 470 U.S. at 831-32.
 10

Chaney’s presumption of non-reviewability only applies
where the governing statute’s enforcement provision describes
the agency’s role as discretionary. 470 U.S. at 835-37;
Schering, 779 F.2d at 686 (describing Chaney as holding that
“an agency judgment relating to the exercise of its enforcement
power presumptively lies beyond the reach of APA review as an
action ‘committed to agency discretion by law’”) (quoting 5
U.S.C. § 701(a)(2)). If, however, the governing statute removes
the agency’s discretion not to enforce, then there is “law to
apply” under APA § 701(a)(2) and the Chaney presumption is
rebutted. Chaney, 470 U.S. at 834-35. In Chaney, the FDCA’s
enforcement provision stated that “the Secretary is authorized”
to take certain enforcement actions and that violators “shall be
liable to be proceeded against.” Id. at 835 (quoting 21 U.S.C. §§
372, 334). The Supreme Court held that these provisions
“commit[ted] complete discretion to the Secretary to decide how
and when they should be exercised.” Id.

In this case, the relevant statutes – the Clean Air Act,
CERCLA and EPCRA – describe EPA’s authority in similarly
permissive terms. The Clean Air Act, for example, states in the
primary federal enforcement provision that “whenever, on the
basis of any information available to the Administrator, the
Administrator finds that any person has violated, or is in
violation of, any other requirement or prohibition of this
subchapter . . . the Administrator may” take any number of
enforcement actions, including issuing an administrative penalty
order, issuing a compliance order, bringing a civil action, or
requesting that the Attorney General bring a criminal action. 42
U.S.C. § 7413(a)(3) (emphasis added). CERCLA’s federal
enforcement provision states in relevant part that the President
“may” assess civil penalties, “may” bring a judicial action to
assess and collect a penalty, and “may” grant rewards to
facilitate prosecution of criminal violators. Id. § 9609(a)-(d).
CERCLA provides that a class I or class II administrative
 11

penalty “may be assessed by the President in the case of any of
the following,” and lists the CERCLA sections that are subject
to each type of penalty. The President, therefore, is not bound
to assess a given penalty for a given violation; rather, he merely
has discretion to do so. The only limiting language appears in
the subsection providing certain factors to determine the penalty
amount, and limiting the dollar amount for each penalty; there
is no limitation on the President’s ability to refrain from issuing
a penalty or take other enforcement measures. Id. § 9609(a)(1),
(a)(3), (b)-(c). The President has delegated his powers under
this CERCLA subsection to the Administrator of EPA, except
where the violation falls within the jurisdiction of other
executive departments, agencies, or the Coast Guard. Exec.
Order No. 12,580, 52 Fed. Reg. 2923, 2925-27 (Jan. 23, 1987).

Finally, EPCRA’s enforcement section provides that, for
violations of the emergency planning and notification
provisions, the Administrator “may” issue compliance orders,
“may” assess administrative penalties, and “may” sue in court
to assess and collect a penalty. 42 U.S.C. § 11045(a)-(c). The
language limiting civil enforcement discretion only provides
factors for arriving at a penalty amount. Id. § 11045(b)(1)(C).
Violations of the reporting requirements are subject to a stricter
standard, but it is not one that restricts EPA’s discretion as to
how to enforce the statute. “Any person . . . who violates” the
reporting requirements “shall be liable to the United States for
a civil penalty” in specified amounts, and each day such
violations continue “shall . . . constitute a separate violation.”
Id. § 11045(c)(1)-(3). This language makes clear that the
liability attaches immediately upon violation; but the statute
goes on to state that “[t]he Administrator may assess any civil
penalty for which a person is liable under this subsection by
administrative order or may bring an action to assess and collect
the penalty” in court. Id. § 11045(c)(4). The Administrator thus
retains discretion to decide whether and how to pursue the
 12

penalties that attach to violations.

None of the statutes’ enforcement provisions give any
indication that violators must be pursued in every case, or that
one particular enforcement strategy must be chosen over
another. See Chaney, 470 U.S. at 835. Rather, the Acts are
“framed in the permissive.” Id. Decisions about whether and
how to enforce the Acts against certain facilities are left to the
discretion of the agency. See Schering, 779 F.2d at 687
(describing FDA’s decision to settle as a product of “precisely
the sort of balancing of agency priorities and objectives,
informed by judgments based on agency expertise, that, absent
some ‘law to apply,’ should not be second-guessed by a court”).
And the statutes provide no meaningful guidelines defining the
limits of that discretion. See Chaney, 470 U.S. at 834-35
(explaining that only when such standards are present may
“courts . . . require that the agency follow that law”). Petitioners
have pointed us to no statutory language that rebuts the Chaney
presumption that the Agreement, as a civil enforcement
decision, is committed to the discretion of the agency.

***

We also reject petitioners’ argument that the Agreement is
a rule. The APA defines a “rule” as “an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy.” 5 U.S.C. §
551(4). Petitioners argue that the Agreement is intended to
“prescribe law” because it grants an exemption from the Acts for
a specified period of time. We disagree. The Agreement merely
defers enforcement of the statutory requirements, and makes that
deferral subject to enforcement conditions that will ultimately
result in compliance. An AFO that fails to fulfill specific
obligations loses the protections of the Agreement, leaving EPA
free to sue or take other enforcement actions against the AFO.
 13

A limited deferral subject to enforcement conditions works no
change in the agency’s substantive interpretation or
implementation of the Acts. As a result, it is not consistent with
the concept of a “rule” as that term has been defined.

In National Association of Home Builders v. U.S. Army
Corps of Engineers, the Corps issued nationwide permits that
authorized certain discharges into U.S. waters – something that
could not otherwise be done under the governing statute without
first obtaining an individual permit. 417 F.3d 1272 (D.C. Cir.
2005). This action effectively granted permittees the right to
bypass certain requirements of the statute. Id. at 1279-80. In
holding that the agency had in effect issued a rule, we described
the nationwide permit as a “legal prescription . . . which the
Corps has issued to implement” the permitting provisions of the
applicable statute. Id. at 1284. In another case relied on by
petitioners, Croplife America v. EPA, we held that EPA had
promulgated a rule when it announced that the agency would no
longer consider certain studies in its regulatory decisionmaking.
329 F.3d 876 (D.C. Cir. 2003). These studies had long been
submitted by applicants – and accepted by EPA – as evidence of
a pesticide’s safety. Id. at 879-80. We rejected the agency’s
argument that the statement was merely one of policy because
it was “a firm rule with legal consequences that are binding on
both petitioners and the agency.” Id. at 882. We also noted that
petitioners would not have another opportunity to challenge the
directive. Id.

Both Home Builders and Croplife address circumstances not
present in the instant case. The AFOs’ Agreement with EPA
does not express the agency’s implementation of any provision
of the Clean Air Act, CERCLA or EPCRA. Rather, the
Agreement implements a preliminary step – developing a
reliable methodology – that the agency deems a prerequisite to
enforcement of the Acts. The Agreement makes no
 14

determination of an AFO’s compliance with the Acts and makes
no definitive statement of enforcement or interpretive practices
that EPA will apply in its regulatory decisionmaking. See Int’l
Union v. Brock, 783 F.2d 237, 245-46 (D.C. Cir. 1986)
(distinguishing an agency’s announcement of a new, substantive
interpretation of the statute from those decisions that do not
affect “underlying legal or factual issues”); cf. Edison Elec. Inst.
v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (describing the
EPA’s interpretation of a statutory provision as having “to do
with the substantive requirements of the law; it is not the type of
discretionary judgment concerning the allocation of enforcement
resources that Heckler [v. Chaney] shields from judicial
review”).

More generally, in the Agreement EPA issues no statement
with regard to substantive statutory standards. EPA has not
bound itself in a way that reflects “cabining” of its prosecutorial
discretion because it imposed no limit on its general
enforcement discretion if the substantive statutory standards are
violated. It is thus unlike Community Nutrition Institute v.
Young, 818 F.2d 943, 948 (D.C. Cir. 1987) (per curiam), a case
in which we held that FDA’s announcement of action levels that
specified when merchants would be subject to enforcement
proceedings under the statute constituted a rule. That was so
because “cabining of an agency’s prosecutorial discretion can in
fact rise to the level of a substantive, legislative rule” when it “is
in purpose or likely effect one that narrowly limits
administrative discretion.” Id. (internal quotation marks and
citations omitted). In the instant case, EPA’s “cabining” of its
ability to sue AFOs for a period of time is not based on a
substantive interpretation of the statutes, but rather is a way to
defer enforcement of those substantive interpretations until EPA
has determined how their requirements apply in the particular
case of AFOs. See Schering, 779 F.2d at 686 (concluding that
the agreement in that case was “a paradigm case of enforcement
 15

discretion” because “the settlement agreement merely holds
enforcement in abeyance until the agency can determine whether
[the drug] is a product subject to the Act’s requirements”).
Moreover, to the extent EPA has limited its enforcement
discretion, it has done so only with regard to those AFOs who
have signed Agreements. Were Community Nutrition Institute
to apply to the agency’s decision to limit its enforcement
discretion in individual cases, its reach would extend to nearly
every consent agreement between an agency and a regulated
entity. We do not read that case to have such broad effect.

***

It is of little consequence that the procedural posture of this
case differs from Schering and similar cases. In those cases,
litigation was pending at the time of settlement, whereas here
EPA has not filed complaints against the AFOs. Settlement
without any court record is not uncommon in administrative law,
because the agency may attempt negotiation before proceeding
to court. If the parties succeed in negotiating a mutually
agreeable resolution to the violations, the matter will not end up
in court. The lack of a complaint does not render inapplicable
Chaney and Schering. The law as stated in those cases shields
from judicial review EPA’s decision either to refrain from
enforcement action or to settle pending litigation. Each decision
implicates a number of factors bearing on the agency’s
enforcement authority, including policy priorities, allocation of
resources, and likelihood of success – and it is the agency’s
evaluation of those factors that this court should not attempt to
review. See Chaney, 470 U.S. at 831-32 (“The agency is far
better equipped than the courts to deal with the many variables
involved in the proper ordering of its priorities.”); Schering, 779
F.2d at 685-86 (discussing the Supreme Court’s “clear signal [in
Chaney] that such decisions by the FDA involve a complex
balancing of an agency’s priorities, informed by judgments
 16

‘peculiarly within its expertise,’ and that they are therefore ill-
suited for judicial review”) (footnote omitted). The same factors
are reflected in EPA’s decision to settle potential litigation by
industry-wide agreements instead of individual complaints.
EPA has noted that requiring an AFO to monitor itself and attain
compliance on a case-by-case basis is “difficult and time
consuming,” and thus EPA has concluded that the Agreement is
the “quickest and most effective way” to achieve broad
compliance. Consent Agreement, 70 Fed. Reg. at 4958; July 12
Notice, 70 Fed. Reg. at 40,018 (noting that EPA believes the
approximately three and a half years needed to develop new
methodologies “represents the most aggressive schedule that is
reasonably possible”). We find no principled reason to treat
EPA’s decision to secure compliance by settlement in lieu of
litigation differently than its decision to initiate and
subsequently settle litigation. Cf. N.Y. State Dep’t of Law v.
FCC, 984 F.2d 1209, 1215 (D.C. Cir. 1993) (“We can see no
reason for the FCC to have less latitude in the early stages of an
enforcement action than after its completion.”). As in Schering,
“[w]e can no sooner question the soundness of th[e] bargain” to
defer litigation in exchange for participation and funding of the
study “than we could a unilateral agency decision not to
prosecute ab initio.” 779 F.2d at 687.

***

We pause briefly to note that the questions left open by
Chaney do not interfere with our conclusion today. Chaney
excluded from its holding an agency’s decision not to pursue a
violation where the agency “consciously and expressly adopted
a general policy that is so extreme as to amount to an abdication
of its statutory responsibilities.” 470 U.S. at 833 n.4 (internal
quotation marks and citation omitted). Here, however, there is
no indication that EPA has abandoned its responsibility to
enforce the Acts. Cf. Block v. SEC, 50 F.3d 1078, 1084 (D.C.
 17

Cir. 1995) (rejecting an argument that the SEC, by granting
exemptions, had abdicated its responsibility to enforce another
subsection of the Act, largely because the agency used the
exemption application process to informally achieve
compliance). The covenant not to sue participating AFOs does
not represent a policy that EPA will not enforce the Acts; to the
contrary, it is part of the agency’s attempt to ensure that AFOs
comply with the Acts. See id.; see also Schering, 779 F.2d at
687 (rejecting a description of the agreement not to prosecute for
18 months as a de facto determination of statutory requirements,
and describing it as “simply represent[ing] the quid pro quo that
the agency found necessary to procure Tri-Bio’s abandonment
of its declaratory judgment claim”). Nor is there any concern in
this case that EPA has declined to enforce the Acts because it
falsely believes that it lacks jurisdiction, the other possible
exception to the rule of Chaney. See Chaney, 470 U.S. at 833
n.4; see also id. at 839 (Brennan, J., concurring).

B.

We also reject petitioners’ argument that the Agreement
exceeds EPA’s authority under the Acts. As discussed supra
Part II.A, the Acts’ enforcement provisions grant EPA broad
enforcement authority and discretion, authorizing the agency to
choose among various methods to penalize violators and achieve
compliance. See 42 U.S.C. §§ 7413(a)(3), 7414(a)(1)(D), 9609,
11045. For example, the Clean Air Act’s primary enforcement
provision provides, in relevant part:

Except for a requirement or prohibition enforceable under
the preceding provisions of this subsection, whenever, on
the basis of any information available to the Administrator,
the Administrator finds that any person has violated, or is
in violation of, any other requirement or prohibition . . . the
Administrator may – (A) issue an administrative penalty
 18

order in accordance with subsection (d) of this section, (B)
issue an order requiring such person to comply with such
requirement or prohibition, (C) bring a civil action in
accordance with subsection (b) of this section or section
7605 of this title, or (D) request the Attorney General to
commence a criminal action in accordance with subsection
(c) of this section.

42 U.S.C. § 7413(a)(3). EPA’s discretion in enforcing the Acts
is apparent in the breadth of these enforcement options, as well
as subsequent subsections that contain further grants of
authority. For example, EPA may require a facility subject to
the Clean Air Act to take actions to facilitate implementation of
the Act or to determine whether the facility is in compliance. Id.
§ 7414(a). The agency may implement a field citation program
to deal with minor violations, and may change a previously
assessed penalty “with or without conditions.” Id. § 7413(d)(3),
(d)(2)(B). CERCLA provides that a class I or class II
administrative penalty “may be assessed by the President in the
case of any” violations listed in the statute. Id. § 9609(a)(1), (b).
Alternatively, it authorizes the President to seek judicial
assessment of a penalty. Id. § 9609(c). EPCRA’s enforcement
provision contains similarly broad language with regard to
violations of the emergency planning and notification
requirements:

The Administrator may order a facility owner or operator
. . . to comply with section 11002(c) of this title and section
11003(d) of this title. . . . A civil penalty . . . may be
assessed by the Administrator in the case of a violation . . . .
The Administrator may bring an action in the United States
District Court for the appropriate district to assess and
collect a penalty . . . .
 19

Id. § 11045(a)-(b). We also note that EPA’s regulations permit
the agency to enforce the Acts by consent agreement and final
order in lieu of filing a complaint. 40 C.F.R. § 22.13(b).

We read these enforcement provisions as broad grants of
empowerment, not limitation. The authority bestowed on the
agency sufficiently covers EPA’s actions in this case. EPA’s
power to make decisions about whether and how to enforce the
Acts reasonably contemplates the agency developing a plan for
achieving compliance that it deems best suited to the industrial
landscape and technological obstacles presented. Its ability to
choose among numerous enforcement options in a particular
case encompasses its decision that the best way to proceed in
this case is by the Agreement.

III.

The Agreements do not constitute rulemaking, but rather
enforcement actions within EPA’s statutory authority. EPA’s
exercises of its enforcement discretion are not reviewable by this
court. The petitions for review are dismissed.

So ordered.
 ROGERS, Circuit Judge, dissenting: This case involves the
intersection of two doctrines. The first involves an agency’s
unreviewable enforcement discretion, and the second relates to
agency rulemaking power. The initial question for the court is
whether the scope of enforcement discretion is expansive
enough to cover the animal feeding operation (“AFO”) protocol
formally announced by the Environmental Protection Agency
(“EPA”) in the Federal Register on January 31, 2005, Animal
Feeding Operations Consent Agreement and Final Order, 70
Fed. Reg. 4958, 4958, 4962-68 (Jan. 31, 2005) (“Initial
Notice”). The court concludes that the enforcement protocol is
an exercise of enforcement discretion that falls within the scope
of the exception to judicial review set forth in Heckler v.
Chaney, 470 U.S. 821, 832-33 (1985), see Op. at 2, 8-9, and that
EPA has not promulgated a legislative rule subject to the notice
and comment requirements of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 553, see Op. at 12-15. Undoubtedly there
is some conceptual overlap between the doctrines to the extent
that policies adopted by agencies often reflect discretionary
determinations about how to enforce statutes that Congress has
entrusted them to implement. However, by imposing a civil
penalty on AFOs in the absence of individualized determinations
of statutory violations, EPA has attempted to secure the benefits
of legislative rulemaking without the burdens of its statutory
duties. Our precedent does not permit the boundless stretching
of Chaney to undercut the purposes of notice-and-comment
rulemaking.

Additionally, even if Chaney creates a presumption of
unreviewability of the enforcement protocol, Chaney further
instructs that the presumption disappears when an agency veers
far afield of Congress’s enforcement regime. See Chaney, 470
U.S. at 832-33. By replacing the enforcement scheme in three
congressional statutes with an unauthorized system of nominal
taxation of regulated entities, EPA has promulgated a
 2

reviewable regulation. EPA cannot avoid the regulatory
responsibilities imposed by Congress by trading nominal
sanctions for amnesty to the regulated industry. However much
enforcement discretion EPA may have in determining whether
or not to file enforcement actions and whether to settle and on
what terms, Congress has not authorized EPA to allow the
regulated community to buy its way out of compliance with the
statutes. For a minimum penalty plus $2,500, an AFO can,
under the enforcement protocol, avoid liability for any potential
and ongoing violations of three statutes for at least a two-year
period while EPA gathers and studies emissions data and for an
indeterminate period thereafter while EPA develops and
publishes new estimation methodologies, see Initial Notice, 70
Fed. Reg. at 4959, 4963-67; at no point are there repercussions
beyond a possible future enforcement action if an AFO opts out
of the agreement to be bound by the methodology regulations
that EPA develops. Assuming no glitches, EPA’s endeavor to
develop reliable methodologies could, according to the
recommendations it has followed, take five, twenty, or even
thirty, years. This is not an enforcement scheme at all, and is
not a decision that Congress committed to agency discretion.
See Chaney, 470 U.S at 832-33 & n.4.

Accordingly, I respectfully dissent.

I.

In announcing the new enforcement protocol, EPA advised
AFOs in the egg, broiler chicken, turkey, dairy, and swine
industries through the Initial Notice that they could avoid
liability for “certain past and ongoing” violations of the Clean
Air Act (“CAA”), the Comprehensive Environmental Response
Compensation and Liability Act (“CERCLA”), and the
Emergency Planning and Community Right to Know Act
(“Right to Know Act”). See Initial Notice, 70 Fed. Reg. at 4959.
 3

All they had to do was agree to pay a minimal “civil penalty,”
calibrated by the number of “farms,”1 plus (approximately)
$2,500 per farm to fund the collection and study of nationwide
emissions data over an (estimated) two-year period, and if
selected, to allow EPA to monitor their operations’ emissions
during that period. See id. at 4959, 4963-67. Based on the
collected data, EPA would develop emission estimation
methodologies, loosely commencing approximately eighteen
months after completion of the study. See id. at 4960.
Publication of the new methodologies “will trigger the
obligation of participating AFOs to determine their emissions”
and to come into compliance with the CAA, CERCLA, and the
Right to Know Act. Id. at 4959. AFOs signing the identical
form agreements, appended to the Initial Notice, see id. at 4962-
68, would receive from EPA “a limited release and covenant not
to sue” until after the AFO uses the new estimation
methodologies and reports its releases under CERCLA and the
Right to Know Act and applies for and receives the requisite

1
AFOs who sign up will have to pay:

“[A] civil penalty which is based on the size of the
AFO. The penalty ranges from $200 to $1,000 per
AFO, depending upon the number of animals at the
AFO. . . . The total penalty is capped and ranges
from $10,000 for [a participant] having 10 or fewer
farms to $100,000 for [a participant] having over 200
farms.”

Initial Notice, 70 Fed. Reg. at 4959. According to the Industry
Intervenors, in the absence of the enforcement protocol, “potential
civil penalties could run up to $32,500 per day per violation.” Brief
of Intervenors for Respondents National Pork Producers Council and
Roe Farm, Inc. at 6 (citing Civil Monetary Penalty Inflation
Adjustment Rule, 69 Fed. Reg. 7121, 7125-26 (Feb. 13, 2004)).
 4

CAA permits.2 Id. Any AFO would, however, be able to opt
out of the agreement at any time without suffering any
repercussions beyond the possibility of enforcement actions for
past violations. Id. at 4959, 4963-67. The Initial Notice advised
that the protocol would become effective only if a “sufficient”
number of AFOs signed up. Id. at 4962. EPA requested public
comment, “with particular emphasis on implementation,” within
thirty days, id. at 4961, subsequently reopening the comment
period for thirty-three days, see Animal Feeding Operations
Consent Agreement and Final Order, 70 Fed. Reg. 16266, 16266
(Mar. 30, 2005).

The Initial Notice has all the earmarks of a legislative rule
subject to APA notice and comment requirements, 5 U.S.C. §
553. Because the proposed enforcement protocol is of “general
. . . applicability,” will have “future effect,” and defines the
rights and obligations of members of the regulated community,
thereby constraining EPA’s enforcement authority, it is a rule.
See id. § 551(4); Indus. Safety Equipment Ass’n. v. EPA, 837
F.2d 1115, 1120 (D.C. Cir. 1988); Batterton v. Marshall, 648
F.2d 694, 701-02 (D.C. Cir. 1980). EPA’s enforcement protocol
is not unlike the enforcement protocol in CropLife America v.
EPA, 329 F.3d 876, 878 (D.C. Cir. 2003), where EPA

2
Although the release of civil liability is described as a
“limited release and covenant not to sue,” Initial Notice, 70 Fed. Reg.
at 4959, the form agreement, set forth in Appendix 1 of the Initial
Notice, states that the release is complete for farms that an AFO lists
in Attachment A to the form agreement, except for emergency
situations due to accidental releases. Id. at 4963. Further, it is
complete even as to violations that may be uncovered using the new
methodologies: “The release and covenant not to sue found in
paragraph 26 [of the form agreement] resolves only violations
identified and quantified by applying the Emissions-Estimating
Methodologies developed using data from the national air emissions
monitoring study described herein.” Id.
 5

announced in the Federal Register that it would no longer
consider human studies in its regulatory decisionmaking on the
safety of pesticides under the Federal Insecticide, Fungicide and
Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq., and the
Federal Food, Drug and Cosmetic Act (“Food and Drug Act”),
21 U.S.C. § 301 et seq. The court held that the new enforcement
policy was a legislative rule because “it create[d] a ‘binding
norm’ that [wa]s ‘finally determinative of the issues or rights to
which it [wa]s addressed.’” Croplife, 329 F.3d at 881 (quoting
Chamber of Commerce v. U.S. Dep’t of Labor, 174 F.3d 206,
212 (D.C. Cir. 1999)). The policy was binding not only on the
individuals challenging the rule, but also “on the agency because
EPA ha[d] made it clear that it simply ‘will not consider’ human
studies.” Id. Similarly here, EPA has announced a new general
approach to carrying out its responsibilities under three statutes
— provided a “sufficient” number of AFOs sign up and the
Environmental Appeals Board (“EAB”) approves the individual
AFO form agreements. See Initial Notice, 70 Fed. Reg. at 4962,
4967. The new protocol is binding on both the AFOs who sign
up and the agency, and under its terms, see id. at 4962, it will
bind most of the regulated AFO industry.3 Under the
circumstances, EPA’s new enforcement protocol is a legislative
rule subject to notice and comment requirements under the APA.

3
Unsurprisingly, given its virtual free pass for statutory
violations, see supra notes 1, 2, approximately ninety-two percent
(92%) of AFOs signed up. EPA informed the EAB that it had reports
that there are 15,000 or more concentrated animal feeding operations
nationwide and that the identical form agreements signed by AFOs
“captured most or a lot of the largest farms.” According to EPA’s
brief, “[a]pproximately 13,908 farms are covered under the[]
agreements.” Brief for Respondent EPA at 3 n.2. Before the EAB,
EPA also acknowledged that, for the most part, industry trade
associations, and not the individual AFOs who sign up, will actually
pay the (approximately) $2,500 to fund the emissions study.
 6

The court would avoid our precedent on legislative rules on
two grounds. First, the court concludes that it lacks subject
matter jurisdiction to consider Petitioners’ challenges because
EPA’s decision to adopt the enforcement protocol is committed
to its discretion by law and therefore falls within the scope of
Chaney’s exception to judicial review, see 470 U.S. at 832-33.
See Op. at 2, 8-9. However, EPA’s decision is hardly the type
of particularized discretionary enforcement determination that
confronted the Supreme Court in Chaney. In Chaney, death row
inmates challenged the refusal of the Food and Drug
Administration (“FDA”) to take various enforcement actions to
prevent the use of lethal drugs for capital punishment. Chaney,
470 U.S. at 823. The inmates alleged that use of these drugs for
executions violated the Food and Drug Act because the drugs
had not been tested or approved for this purpose, they were
likely to be administered by untrained personnel, and they were
unlikely to induce quick and painless death as intended. Id. The
Court held that the FDA’s decision not to bring an enforcement
action against particular members of the regulated community
was “committed to agency discretion by law” under 5 U.S.C. §
701(a)(2) and therefore judicially unreviewable. Id. at 832, 837-
38. In announcing that such decisions were unsuitable for
judicial review, the Court offered three rationales: (1) such
decisions “involve[] a complicated balancing of a number of
factors which are peculiarly within [the agency’s] expertise,” id.
at 831; (2) “when an agency refuses to act it generally does not
exercise its coercive power over an individual’s liberty or
property rights, and thus does not infringe upon areas that courts
often are called upon to protect,” id. at 832; and (3) “an agency’s
refusal to institute proceedings shares to some extent the
characteristics of the decision of a prosecutor in the Executive
Branch not to indict — a decision which has long been regarded
as the special province of the Executive Branch, inasmuch as it
is the Executive who is charged by the Constitution to ‘take
Care that the Laws be faithfully executed,’” id. (quoting U.S.
 7

CONST., art. II, § 3).

The enforcement protocol set forth in the Initial Notice
involves neither EPA’s decision to bring or not to bring an
enforcement action based on an investigation giving rise to a
belief that a regulated party has failed to comply with statutory
requirements, nor is it a decision by EPA to settle an
enforcement action that it has brought against a particular entity
or is prepared to file in view of evidence of a violation. Indeed,
the Initial Notice expressly contrasts the enforcement protocol
with the type of enforcement action discussed in Chaney. See
Initial Notice, 70 Fed. Reg. at 4958. This court has applied
Chaney to such traditional enforcement actions, based on the
statutory scheme for enforcement, where an agency has made a
particularized enforcement determination following an
investigation of a regulated party’s activities showing evidence
of a statutory violation. For example, in Baltimore Gas &
Electric Co. v. Federal Energy Regulatory Commission, 252
F.3d 456, 457, 460 (D.C. Cir. 2001), the court held it lacked
jurisdiction over a challenge to the settlement of an enforcement
action brought by FERC against two vendors of natural gas.
Similarly, in Schering Corp. v. Heckler, 779 F.2d 683, 684-86
(D.C. Cir. 1985), the court held it lacked jurisdiction over a
challenge seeking to invalidate the settlement of a lawsuit
brought by a drug manufacturer against the FDA.

Although EPA could opt to forego bringing enforcement
actions entirely, and its decision might be presumptively
unreviewable, see Chaney, 470 U.S. at 832-33, that is not what
happened here. Instead, EPA adopted a new generalized
approach toward enforcing three environmental statutes in the
future by means of an enforcement protocol unrelated to
particularized findings of past or ongoing statutory violations
and untethered to the enforcement regimes established by
 8

Congress,4 which EPA has previously utilized. Unlike the
particularized actions which EPA has brought against AFOs in
the past, see Initial Notice, 70 Fed. Reg. at 4958; Sanda S.
Howland Aff. ¶¶ 8-11 (Jan. 5, 2006); Brief of Intervenors for
Respondents National Pork Producers Council and Roe Farm,
Inc. at 5 (“Industry Intervenors’ Br.”), the enforcement protocol
neither tracks the statutory enforcement mechanisms of the three
statutes nor purports to proceed on the basis of particularized
information causing the agency to believe a statutory violation
has occurred. Rather, EPA has used its coercive power to the
extent that, upon entering into the identical form agreements,
AFOs must commit, in return for a release from liability for any
potential past or ongoing violations, to paying a civil penalty, to
submitting to possible emissions monitoring, and to coming into
compliance with new measurement methodologies or, upon
opting out, to possible enforcement action, see Initial Notice, 70
Fed. Reg. at 4959. The statutory schemes for enforcement as
previously interpreted by EPA have not included bringing its
coercive power to bear absent some particularized factual basis
for concluding the subject is in violation of the statutes.

Neither EPA’s view that attaining compliance through case-
by-case enforcement actions “is difficult and time consuming,”
id. at 4958; Op. at 16, nor the novelty of the enforcement
protocol means that it is not a legislative rule. Although EPA
styles the Initial Notice as involving a consent decree, it is a
consent decree only in the sense that any regulated party has a
choice whether or not to proceed in accordance with an agency
rule; in CropLife, for example, if using human studies was
important to a regulated party, it had a choice either to proceed
or not under EPA rule’s that it would not consider such studies.
Further, contrary to the Industry Intervenors’ view, the

4
See 42 U.S.C. § 7413 (CAA); id. § 9609 (CERCLA); id. §
11045 (Right to Know Act).
 9

enforcement protocol does not propose “informal
adjudication[s],” Industry Intervenors’ Br. at 17, because the
AFOs who sign up admit to no liability (or even that the three
statutes apply to their farms), see Initial Notice, 70 Fed. Reg. at
4962 (Appendix 1), and EPA has not determined the liability of
any AFO, see id., as would occur in an informal adjudication.
See Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151,
1160-61 & n.17 (D.C. Cir. 1979).

Second, the court draws distinctions with our rulemaking
precedent that begin with mischaracterizing the challenge before
the court. The petition does not only challenge the individual
form agreements between AFOs and EPA, see Op. at 2, but
includes a challenge to the enforcement protocol in the Initial
Notice on the grounds that EPA violated the APA’s notice and
comment requirements and exceeded its statutory authority, see
Petitioners’ Br. at 26-27, 44-53. From there the court invokes
distinctions with our precedent that do not align with the terms
of the protocol. The court states that the enforcement protocol
is not a legislative rule because rather than “prescribing law,” 5
U.S.C. § 551(4), the protocol “merely defers enforcement of the
statutory requirements, and makes that deferral subject to
enforcement conditions that will ultimately result in
compliance.” Op. at 12. In fact, the enforcement protocol
forever absolves AFOs who sign up (and do not opt out) from
liability for any potential past and ongoing violations. In the
period of time that the court characterizes as a deferral, signing
AFOs will face no prospect of liability through EPA
enforcement actions for whatever they do or do not do to
comply with the three statutes because EPA has committed not
to exercise its enforcement authority. See Initial Notice, 70 Fed.
Reg. at 4959, 4963. Any liability imposed by EPA for statutory
violations will arise only sometime after EPA develops and
publishes, and AFOs apply, new measurement methodologies,
based on the two-year nationwide emissions study, and will
 10

apply only to violations found at that time. See id. at 4959.

Additionally, the court struggles to distinguish precedent
such as National Ass’n of Home Builders v. U.S. Army Corps of
Engineers, 417 F.3d 1272, 1279-80 (D.C. Cir. 2005), where the
court held that the agency’s authorization of a right to bypass
certain statutory requirements constituted a rule. See Op. at 13-
14. Under the enforcement protocol EPA has standardized
minimum civil penalties based on farm size, bypassing those
that would otherwise apply had EPA conducted site
investigations as contemplated under the statutory enforcement
schemes, supra notes 1, 4. The court’s attempt to distinguish
CropLife, 329 F.3d at 881, likewise fails. See Op. at 13-14. It
is unclear why the court views the enforcement protocol as any
different from EPA’s announcement that it would no longer
consider human studies in enforcing FIFRA and the Food and
Drug Act, see Croplife, 329 F.3d at 878-79. So too here, EPA
announced that for AFOs who sign up, it will no longer consider
evidence of statutory violations by individual AFOs but instead
will impose a farm-size minimum civil penalty, subject to a cap,
and require a $2,500 payment in exchange for which AFOs will
be absolved of liability for all past and ongoing statutory
violations. See Initial Notice, 70 Fed. Reg. at 4959.

The court concludes, notwithstanding EPA’s stated
intention to impose “a civil penalty” and to require a payment to
fund a nationwide emissions study, that the identical form
agreement for AFOs to sign “does not express the agency’s
implementation of any provision of the [three statutes].” Op. at
13. The court is correct in the sense that EPA has made “no
determination of an AFO’s compliance with the Acts,” id., after
a particularized investigation of a regulated party’s activities as
contemplated under the enforcement regimes of the statutes,
supra note 4, but it is incorrect to suggest that EPA has not made
a “definitive statement of enforcement or interpretive practices,”
 11

Op. at 14. Just as with its deferral characterization, the court
ignores the reality of EPA’s enforcement protocol, which
absolves AFOs who sign up of liability for any potential past
and ongoing violations.

The same flaw is evident in the court’s statement that “EPA
has not bound itself in a way that reflects ‘cabining’ of its
prosecutorial discretion because it imposed no limit on its
general enforcement discretion if the substantive standards are
violated.” Op. at 14. In fact, the enforcement protocol has done
precisely that. In Community Nutrition Institute v. Young, 818
F.2d 943, 948 (D.C. Cir. 1987), the court explained that
“cabining of an agency’s prosecutorial discretion can in fact rise
to the level of a substantive, legislative rule.” Under the
enforcement protocol EPA foregoes its enforcement discretion
to file actions against signing AFOs, regardless of whether EPA
may attain information during the life of the agreement that an
AFO has violated or is violating one of the statutes; only the
AFOs that do not sign the agreements — approximately eight
percent of AFOs, see supra note 3 — “will be subject to
enforcement actions in which significant penalties and
injunctive relief could be sought for violations of the CAA,
section 103 of CERCLA, and section 304 of [the Right to Know
Act].” Initial Notice, 70 Fed. Reg. at 4961. Until EPA begins
to publish the new methodologies for estimating emissions “on
a rolling basis as work is completed,” id. at 4960, following the
nationwide two-year emissions study, EPA has released the
signing AFOs from any liability prior to the time the AFO
applies the new measurement methodologies and reports its
releases under CERCLA and the Right to Know Act and applies
for and receives the requisite CAA permits, see id. at 4959.
Tellingly, the court concedes that “to the extent EPA has limited
its enforcement discretion, it has done so only with regard to
those AFOs who have signed Agreements,” Op. at 15, but
chooses to ignore that EPA conditioned its enforcement protocol
 12

on a “sufficient” number of AFOs signing up, see Initial Notice,
70 Fed. Reg. at 4962, 4965, and that, given the terms of the
enforcement protocol, the response to the sign-up invitation in
the Initial Notice has been overwhelming, see supra note 3.

Finally, detaching Chaney from its moorings undercuts one
of the key purposes of the APA. The legislative history of the
APA states that “due to the unrepresentative nature of an
administrative agency, ‘public participation . . . in the
rulemaking process is essential in order to permit administrative
agencies to inform themselves and to afford safeguards to
private interests.’”5 Batterton v. Marshall, 648 F.2d 694, 704
n.47 (D.C. Cir. 1980) (quoting S. COMM. ON THE JUDICIARY,

5
With regard to public access to agency records, the
legislative history of the APA explains that:

The public information requirements of section [5
U.S.C. § 552] are in many ways among the most
important, far-reaching, and useful provisions of the
bill. For the information and protection of the public
wherever located, these provisions require agencies
to take the mystery out of administrative procedure
by stating it. The section has been drawn upon the
theory that administrative operations and procedures
are public property which the general public, rather
than a few specialists or lobbyists, is entitled to know
or to have the ready means of knowing with
definiteness and assurance.

S. REP. NO. 79-752 (1945), as reprinted in LEGISLATIVE HISTORY OF
THE ADMINISTRATIVE PROCEDURE ACT, S. DOC. NO. 248, 79th Cong.,
2d Sess. 185, 198 (1946); see also H. REP. 79-1980 (1946), as
reprinted in LEGISLATIVE HISTORY OF THE ADMINISTRATIVE
PROCEDURE ACT, S. DOC. NO. 248, 79th Cong., 2d Sess. 233, 252, 256
(1946).
 13

79th Cong., SENATE JUDICIARY COMMITTEE PRINT (1945), as
reprinted in S. DOC. NO. 248, 79th Cong., 2d Sess. 11, 19-20
(1946)); see Nat’l Ass’n of Home Health Agencies v. Schweiker,
690 F.2d 932, 949 (D.C. Cir. 1982); Home Box Office, Inc. v.
FCC, 567 F.2d 9, 35 (D.C. Cir. 1977). The Supreme Court has
observed that “[i]n enacting the APA, Congress made a
judgment that notions of fairness and informed administrative
decisionmaking require that agency decisions be made only after
affording interested persons notice and an opportunity to
comment.” Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979).
“[P]ublic participation assures that the agency will have before
it the facts and information relevant to a particular
administrative problem . . . [and] increase[s] the likelihood of
administrative responsiveness to the needs and concerns of those
affected.” Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1061
(D.C. Cir. 1987) (omission in original) (alterations in original)
(quoting Guardian Fed. Sav. & Loan v. Fed. Sav. & Loan Ins.
Corp., 589 F.2d 658, 662 (D.C. Cir. 1978)); see Nat’l Welfare
Rights Org. v. Mathews, 533 F.2d 637, 648 n.17 (D.C. Cir.
1976).

EPA’s new enforcement protocol will have significant and
immediate negative consequences. As EPA acknowledges, it
affects both members of the regulated industry and those whom
Congress intended to protect under the statutes as well as the
safety and health of the environment. See Initial Notice, 70 Fed.
Reg. at 4959. Emissions from AFOs not only have negative
impacts on nearby residents by causing odors and other
nuisances, but they emit pollutants, including ammonia and
hydrogen sulfide, which are classified as hazardous substances
under CERCLA and the Right to Know Act, as well as
particulate matter and volatile organic compounds, which, along
with hydrogen sulfide, are regulated under the CAA. See id.
Ensuring accountability and informed decisionmaking means an
agency needs to hear from those who are affected before it
 14

adopts an enforcement policy that eliminates enforcement of
several statutes for years for a significant part of the AFO
industry, including “most or a lot of the largest farms,” supra
note 3, and perhaps for one hundred percent of the AFOs in light
of EPA’s view that its current methodology needs improvement,
see Initial Notice, 70 Fed. Reg. at 4958. Congress determined
in enacting the APA that closed door meetings and informal
discussions in the absence of public notice of the agency’s view
of a final proposal are not sufficient to the task. See Chrysler
Corp., 441 U.S. at 316; Batterton, 648 F.2d at 704 n.47.

II.

The presumption of unreviewability announced in Chaney
may be overcome “where the substantive statute has provided
guidelines for the agency to follow in exercising its enforcement
powers.” Chaney, 470 U.S. at 832-33. It also is possible that it
may be rebutted where the agency refuses to act based solely on
the belief it lacks jurisdiction or “the agency has ‘consciously
and expressly adopted a general policy’ that is so extreme as to
amount to an abdication of its statutory responsibilities.” Id. at
833 n.4 (citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.
1973) (en banc)).

Each of the three statutes at issue prescribes monetary and
other penalties for violations, including criminal penalties in
some instances, when EPA undertakes its enforcement
responsibilities. See supra note 4. For example, under the
CAA, upon finding a violation of a State Implementation Plan
or permit, the EPA Administrator is required to notify the
violator and the State and, after thirty days, may issue an order
of compliance, impose an administrative penalty, or bring a civil
action. 42 U.S.C. § 7413(a)(1). In other circumstances, the
Administrator is required to give public notice, id. § 7413(a)(2),
and for other violations the Administrator may issue compliance
 15

orders, impose administrative penalties, bring a civil action, or
request the Attorney General to commence a criminal action, id.
§ 7413(a)(3). Although Congress vested discretion in the
Administrator over whether to bring civil enforcement actions,
Congress expressly required that such actions be based upon a
determination that the subject “has violated, or is in violation of,
any requirement or prohibition of” a State plan or permit or
certain statutory provisions. Id. §§ 7413(a)(1)(C), (a)(2)(C),
(b)(1), (b)(2). Criminal penalties are likewise predicated upon
findings of knowing violations. Id. § 7413(c). CERCLA
similarly provides for civil and administrative penalties based on
found violations. Id. §§ 9609(a)(1), (b), (c). Even the Right to
Know Act includes criminal as well as civil penalties for found
violations. Id. §§ 11045(b), (c). Notwithstanding this broad
delegation of enforcement authority, however, Congress did not
authorize EPA to tax members of the regulated industry, no
matter what its motives. Instead, Congress authorized EPA to
impose penalties based on particularized evidence of statutory
violations. Further evidence that Congress intended EPA’s
imposition of penalties to be based on found violations is
apparent from the authority it delegated to EPA, under section
114 of the CAA, for example, to require AFOs to monitor and
report emissions from their facilities, id. § 7414(a).

The enforcement protocol takes an entirely different tack.
Relying on a study by the National Academy of Sciences in
2003,6 EPA has determined that its measurement methodologies

6
NAT’L ACAD. OF SCI., AD HOC COMM. ON AIR EMISSIONS
FROM ANIMAL FEEDING OPERATIONS ET AL., NAT’L RESEARCH
COUNCIL, AIR EMISSIONS FROM ANIMAL FEEDING OPERATIONS:
CURRENT KNOWLEDGE, FUTURE NEEDS (2003), available at
http://www.nap.edu/catalog/10586.html (“NAS study on AFO Air
Emissions”); see also Initial Notice, 70 Fed. Reg. at 4960 (citing
NAT’L ACAD. OF SCI., THE SCIENTIFIC BASIS FOR ESTIMATING AIR
 16

require updating and improvement. See Initial Notice, 70 Fed.
Reg. at 4958. According to the study, emission estimating
methodologies can be improved through research in the short
term, i.e., five years, but research is merely the first step in
developing the comprehensive process-based model that the
study recommends, which may involve twenty to thirty years.7
See NAS study on AFO Air Emissions at 11, 12, 16, 154-55.
EPA has nonetheless estimated that it will begin publishing new
methodologies within approximately three and a half years, see
Initial Notice, 70 Fed. Reg. at 4960, assuming, contrary to the
reality that Industry Intervenors suggest regarding monitoring
methods, see Industry Intervenors’ Br. at 4-5, that the two-year
nationwide emissions study commences promptly upon EPA’s
determination of the appropriate monitoring methods and
procedures.

EMISSIONS FROM ANIMAL FEEDING OPERATIONS, Interim Report,
National Research Council (2002)).
7
The National Academy of Sciences study concluded that
“available estimates of emissions factors, rates, and concentrations are
sufficiently uncertain that they provide a poor basis for regulating or
managing air emissions from AFOs,” NAS study on AFO Air
Emissions at 6, and that “[s]cientifically sound and practical protocols
for measuring air concentrations, emission rates, and fates are
needed,” id. at 8. The study identified short term (five years or less)
and long term (twenty to thirty years) research priorities. Under the
five year model, EPA would research concentration measurements,
dispersion modeling, odor measurement and characterization, and
abatement and management strategies. Id. at 154-61, 168. Under the
twenty-plus year model, EPA would focus on researching an
integrated program to reduce the losses of materials from AFOs to the
environment by more efficient use of input materials and increased
recycling of materials containing certain chemicals within the AFOs.
Id. at 161-68.
 17

In announcing the new enforcement protocol, EPA purports
to respond to a problem of “uncertainty regarding emissions
from AFOs” arising from lack of data involving large operations
that would require a commitment of substantial resources and
time to gather the data. Initial Notice, 70 Fed. Reg. at 4958; see
Respondent’s Br. at 21-22; Industry Intervenors’ Br. at 1, 3-5.
AFOs “have no ‘smokestacks’ from which air emissions can be
measured.” Industry Intervenors’ Br. at 2. EPA states that it
believes that the enforcement protocol, in comparison to filing
individual enforcement actions, is “the quickest and most
effective way to address the current uncertainty regarding
emissions from AFOs and to bring all participating AFOs into
compliance with all applicable regulatory requirements.” Initial
Notice, 70 Fed. Reg. at 4958 (citing NAS study on AFO Air
Emissions). Although EPA plans to establish and begin to
publish the new methodologies “on a rolling basis as work is
completed,” id. at 4960, within approximately eighteen months
after completion of the (approximately) two-year nationwide
monitoring study, how long it will actually take for EPA to
begin monitoring emissions and then to establish the new
methodologies is unclear; in the past, disputes regarding
emission monitoring methods and procedures have caused
delays, see Howland Decl. ¶¶ 6, 9. The recommendation of the
National Academy of Sciences, which EPA claims to follow, see
Initial Notice, 70 Fed. Reg. at 4960, calls for extensive air
emissions testing over a wide variety of facilities and locations
in order to have a more widely accepted standard for
determining whether AFOs are in compliance with the statutes.
See Howland Decl. at ¶ 6; NAS study on AFO Air Emissions, at
71-72, 152-68, 172-75.

Neither EPA’s “uncertainty” nor the NAS study on AFO Air
Emissions is dispositive of EPA’s authority to proceed in the
proposed manner. In the meantime, while EPA is gathering data
and developing emission estimating methodologies, the National
 18

Academy of Sciences did not suggest that EPA could do nothing
by way of enforcement. The study’s basic criticism was that
EPA had too little data but this is not the same as concluding
that relevant and sufficient data could not be collected, as
Congress provided in section 114 of the CAA, 42 U.S.C. §
7414(a), for example, by requiring AFOs to monitor and report
their emissions so that EPA could determine whether there is
evidence of a statutory violation and if so, decide whether to
bring enforcement actions. Assuming the scientific merit of the
National Academy of Sciences’ recommendations, the study
does not demonstrate, notwithstanding the industry’s objection
to the high cost of self-monitoring, see Industry Intervenors’ Br.
at 3-4; Tr. of EAB Hearing at 43-44 (Dec. 13, 2005), that
Congress’s enforcement schemes were not designed to achieve
the same results, namely enforcement based on reliable data on
AFO emissions.

EPA concludes that by imposing “a civil penalty” and
requiring a $2,500 study payment as the price for escaping
liability for any potential past or ongoing statutory violations
until EPA develops and publishes — and AFOs apply — the
new methodologies, it is likely to bring the AFO industry into
compliance with the statutes more quickly than would
traditional, individual enforcement actions, which may involve
extensive and difficult data collection efforts and lengthy
enforcement actions. See Initial Notice, 70 Fed. Reg. at 4958;
Howland Decl. at ¶¶ 8-13. Maybe so, although the forty-two
month period EPA identifies is uncertain at both ends.
Regardless, Congress has made a different choice about how to
achieve statutory compliance and until Congress determines that
evidence of violations is not the basis for imposition of
penalties, EPA is bound to adhere to the enforcement regimes
Congress has established, including directing the regulated
community to monitor and report emissions data. EPA only has
such authority as Congress has delegated to it: “As the Supreme
 19

Court has recognized, ‘an agency literally has no power to act .
. . unless and until Congress confers power upon it.’” Cal.
Indep. Sys. Operator Corp. v. Fed. Energy Regulatory Comm’n,
372 F.3d 395, 398 (D.C. Cir. 2004) (omission in original)
(quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374
(1986)).