Waterkeeper Alliance v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2016 Decided April 11, 2017

No. 09-1017

WATERKEEPER ALLIANCE, ET AL.,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

U.S. POULTRY AND EGG ASSOCIATION, ET AL.,
INTERVENORS

Consolidated with 09-1104

On Petitions for Review of Final Regulation
Issued by the U.S. Environmental Protection Agency

Jonathan J. Smith argued the cause for petitioners
Waterkeeper Alliance, et al. With him on the briefs was Eve
C. Gartner.

David Y. Chung argued the cause for petitioner National
Pork Producers Council. With him on the briefs were Richard
E. Schwartz and Sherrie A. Armstrong. Ellen Steen entered an
appearance.
 2

Daniel H. Lutz and Hope M. Babcock were on the brief
for amici curiae American Lung Association and American
Thoracic Society in support of petitioners Waterkeeper
Alliance, et al.

Jonathan Skinner-Thompson and Erica M. Zilioli,
Attorneys, U.S. Department of Justice, argued the causes for
respondent. With them on the brief was John C. Cruden,
Assistant Attorney General. Sue S. Chen and Cynthia J.
Morris, Attorneys, U.S. Department of Justice, entered
appearances.

Eve C. Gartner and Jonathan J. Smith were on the brief
for intervenors-respondents Waterkeeper Alliance, et al.

Richard E. Schwartz and David Y. Chung were on the
brief for intervenor-respondent U.S. Poultry and Egg
Association. Sherrie A. Armstrong and James T. Banks
entered appearances.

Before: BROWN and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Concurring opinion filed by Circuit Judge BROWN.

WILLIAMS, Senior Circuit Judge: Anyone with a pet
knows firsthand that raising animals means dealing with
animal waste. But many of us may not realize that as the
waste breaks down, it emits serious pollutants—most notably
ammonia and hydrogen sulfide. While those emissions are
miniscule for pet owners, they can be quite substantial for
farms that have hundreds or thousands of animals.
 3

Two provisions of federal law—sections of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (“CERCLA”) and the Emergency
Planning and Community Right-to-Know Act of 1986
(“EPCRA”)—require parties to notify authorities when large
quantities of hazardous materials (such as ammonia or
hydrogen sulfide) are released into the environment. See 42
U.S.C. § 9603 (CERCLA); id. § 11004 (EPCRA). On
learning of such a release, the EPA has broad powers to take
remedial actions or order further monitoring or investigation
of the situation. See id. § 9604.

In 2008 the EPA issued a final rule that generally
exempts farms from CERCLA and EPCRA reporting
requirements for air releases from animal waste. (“Air
releases” refer only to emissions made into the air, rather than
into water or soil.) The EPA reasoned that those “reports are
unnecessary because, in most cases, a federal response is
impractical and unlikely.” CERCLA/EPCRA Administrative
Reporting Exemption for Air Releases of Hazardous
Substances from Animal Waste at Farms, 73 Fed. Reg.
76,948, 76,956/1 (Dec. 18, 2008) (“Final Rule”). In a change
from the proposed rule, the EPA somewhat limited the
exemption. Commenters had expressed a “desire to receive
information regarding releases from large concentrated animal
feeding operations,” known as “CAFOs,” which generally
house thousands or even tens of thousands of animals. In
response, the EPA retained the reporting requirement for
CAFOs under EPCRA, which, as we’ll see in more detail
later, has a public-disclosure requirement that’s missing from
the relevant CERCLA provisions. See id. at 76,950/2; see
also id. at 76,952/1-2, 76,953/3; (CAFO thresholds).

A number of environmental groups objected, claiming
that the Final Rule ran afoul of the underlying statutes (and
was therefore outside the EPA’s delegated authority). The
 4

dispute brings into play our longtime recognition that agencies
have “implied de minimis authority to create even certain
categorical exceptions to a statute ‘when the burdens of
regulation yield a gain of trivial or no value.’” Public Citizen
v. FTC, 869 F.2d 1541, 1556 (D.C. Cir. 1989) (quoting
Alabama Power v. Costle, 636 F.2d 323, 360-61 (D.C. Cir.
1979)). Although the EPA never explicitly invokes the de
minimis exception, its analysis tracks the exception’s logic.
And intervenor U.S. Poultry and Egg Association specifically
pointed to the agency’s de minimis power as a reason to
uphold the Final Rule. It thus poses the question whether the
record adequately supports the EPA’s conclusion that these
animal-waste reports are truly “unnecessary.” 73 Fed. Reg. at
76,956/1. By contrast, the environmental petitioners’
argument, when framed in the language of Alabama Power, is
essentially that the reports “provide benefits, in the sense of
furthering the regulatory objectives.” 636 F.2d at 361. In
light of the record, we find that those reports aren’t nearly as
useless as the EPA makes them out to be. (We do not address
the potential questions of whether the reports’ costs outweigh
their benefits and whether the exact statutory language
(discussed below) authorizes an exception for measures
failing a cost/benefit analysis; the EPA makes no claim for
such a reading of the statute.) We therefore grant
Waterkeeper’s petition and vacate the Final Rule.

***

Congress has long sought to ensure that federal, state, and
local authorities can adequately respond when hazardous
chemicals threaten public safety or the environment.
CERCLA gives federal authorities (generally the EPA) broad
power to investigate and respond to actual or threatened
releases of hazardous substances. See 42 U.S.C. § 9604. And
since the EPA can’t respond to releases it doesn’t know about,
§ 103 of CERCLA requires parties to immediately notify the
 5

National Response Center (“NRC”) of any release of a
hazardous substance over a threshold set by the EPA—known
in regulatory speak as the “reportable quantity.” See id.
§ 9603; Fertilizer Institute v. EPA, 935 F.2d 1303, 1306 (D.C.
Cir. 1991). The NRC, which is staffed by the U.S. Coast
Guard and “acts as the single [federal] point of contact for all
pollution incident reporting,” 40 C.F.R. § 300.125(a), must
“convey the notification expeditiously to all appropriate
Government agencies, including the Governor of any affected
State,” 42 U.S.C. § 9603(a). After receiving a report from the
NRC, the EPA determines if a response is appropriate. See 40
C.F.R. § 300.130(c).

EPCRA has a parallel reporting mandate, except that it
requires the relevant parties to notify state and local (rather
than federal) authorities whenever covered pollutants (which
it refers to as “extremely hazardous substances”) are released
into the environment. See 42 U.S.C. § 11004; see also Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 86 (1998).

The parties here focus on two of the hazardous substances
emitted by animal waste as it decomposes—ammonia and
hydrogen sulfide. (There are other such substances (e.g.,
nitrous oxide, methane, volatile organic compounds), see 73
Fed. Reg. at 76,950/2-3; see also NATIONAL RESEARCH
COUNCIL OF THE NATIONAL ACADEMIES, AIR EMISSIONS FROM
ANIMAL FEEDING OPERATIONS: CURRENT KNOWLEDGE,
FUTURE NEEDS 50-56 (2003) (“National Research Council
Report”), but we need not address them.) The EPA has
classified ammonia and hydrogen sulfide as both CERCLA
“hazardous substances” and EPCRA “extremely hazardous
substances”; the EPA set the reportable quantity for each at
100 pounds per day. See 40 C.F.R. § 302.4(a) (CERCLA); id.
pt. 355 App. A (EPCRA). None of the parties contends that
the daily emissions of commercial farms fall below that
threshold.
 6

There appears to have been no clear resolution of the best
way to measure these releases, which after all do not come
conveniently out of a smokestack. See National Research
Council Report at 2, 99-101; Draft Air Emissions Estimating
Methodologies for Animal Feeding Operations, EPA,
https://www.epa.gov/afos-air/draft-air-emissions-estimating-
methodologies-animal-feeding-operations (last visited Mar.
24, 2017). The statute accommodates the problem a bit by
providing for annual notice of so-called “continuous
release[s],” 42 U.S.C. § 9603(f)(2), i.e., releases that are
“continuous and stable in quantity and rate,” 40 C.F.R.
§ 302.8(a), subject to a requirement of special notification for
a “statistically significant increase in the quantity . . . above
that previously reported,” 42 U.S.C. § 9603(f)(2), which the
EPA has defined as an increase “above the upper bound of the
reported normal range,” 40 C.F.R. § 302.8(b).

In December 2007, the EPA proposed exempting farms
from CERCLA and EPCRA reporting of air releases from
animal waste. See CERCLA/EPRCRA Administrative
Reporting Exemption for Air Releases of Hazardous
Substances from Animal Waste, 72 Fed. Reg. 73,700
(proposed Dec. 28, 2007) (“Proposed Rule”). The EPA noted
that it had never taken response action based on notifications
of air releases from animal waste. Id. at 73,704/2. Nor could
the Agency “foresee a situation where [it] would take any
future response action as a result of such
notification[s] . . . because in all instances the source (animal
waste) and nature (to the air over a broad area) are such that
on-going releases makes an emergency response unnecessary,
impractical and unlikely.” Id. The EPA specifically
requested comments “on whether there might be a situation
where a response would be triggered by such a notification of
the release of hazardous substances to the air from animal
waste at farms, and if so, what an appropriate response would
be.” Id. at 73,704/3-73,705/1.
 7

The EPA finalized that proposed exemption on December
18, 2008. 73 Fed. Reg. at 76,948. So far as CERCLA
authority is concerned, the Final Rule (like the Proposed
Rule) exempts all farms from reporting air releases from
animal waste. None of the public comments changed the
EPA’s view that those reports “are unnecessary because, in
most cases, a federal response is impractical and unlikely (i.e.,
[the EPA] would not respond to them since there is no
reasonable approach for the response).” Id. at 76,956/1. But
public comments seeking information about emissions from
the largest farms (so-called CAFOs), led the EPA to carve
CAFOs out of its EPCRA exemption. Id. at 76,952/3-
76,953/1. (A CAFO is a farm that “stables or confines” more
than a certain (relatively large) number of animals—for
example, more than 1,000 cattle, 10,000 sheep, or 55,000
turkeys. Id. at 76,959-60.) The Final Rule thus requires
CAFOs to continue reporting air emissions under EPCRA, but
not under CERCLA; other farms are exempt from both.

Environmental and agricultural groups challenged the
Final Rule. The environmentalists—the Waterkeeper
Alliance, the Sierra Club, the Humane Society of the United
States, the Environmental Integrity Project, and the Center for
Food Safety (for ease of reference we’ll call them
“Waterkeeper”)—principally argue that CERCLA and
EPCRA don’t permit the EPA to grant reporting exemptions,
but instead require reports of any and all releases over the
reportable quantity. The Final Rule is, in Waterkeeper’s
view, arbitrary to boot because it treats air releases from
animal waste at farms more favorably than those from other
sources (like a leaky ammonia tank) or other locations (like
animal waste at zoos, circuses or slaughterhouses). The
National Pork Producers Council, on the other hand, argues
that the Final Rule’s CAFO carve-out can’t stand because it
was based on a factor, the public’s desire for information,
which the Council argues is irrelevant to the statutory purpose
 8

of facilitating emergency response. See, e.g., Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).

***

We start with a jurisdictional issue posed by the two
statutes’ unusual relationship. Absent a specific statutory
provision assigning review to the court of appeals, a challenge
to agency action must go first to district court. See Int’l
Brotherhood of Teamsters v. Peña, 17 F.3d 1478, 1481 (D.C.
Cir. 1994). But in CERCLA Congress gave this court direct
(and exclusive) jurisdiction over CERCLA rules. See 42
U.S.C. § 9613(a). Thus the congressional allocation of
jurisdiction is no bar to our hearing the CERCLA-based
challenges to the Final Rule.

The Final Rule, however, wasn’t limited to CERCLA; it
relied on EPCRA too. EPCRA has no judicial review
provision and therefore challenges under it must ordinarily be
brought in district court. See Barrick Goldstrike Mines, Inc.
v. Browner, 215 F.3d 45, 47 (D.C. Cir. 2000). But where, as
here, a single agency action relies on multiple statutory bases,
it would be a wasteful exaltation of form over substance to
require piecemeal challenges in various courts. We thus
commonly examine the entire agency action in a
“comprehensive and coherent fashion” so long as at least one
of the statutes provides for our direct review. Shell Oil Co. v.
FERC, 47 F.3d 1186, 1195 (D.C. Cir. 1995); contra Loan
Syndications & Trading Ass’n v. SEC, 818 F.3d 716, 723
(D.C. Cir. 2016) (finding we lacked jurisdiction where the
statute providing essential authority, as acknowledged by the
parties, did not provide for direct appellate review). Since
CERCLA does precisely that, jurisdiction doesn’t seem a
problem.
 9

Hold your horses, responds the EPA. It argues that while
of course we could hear a consolidated CERCLA/EPCRA
challenge, Waterkeeper lacks standing to challenge the
CERCLA portions of the Final Rule because while both
statutes require reporting, CERCLA (unlike EPCRA) has no
requirement of disclosure. Thus, in the EPA’s view, the
CERCLA portion of the rule inflicts no informational injury
on Waterkeeper. We disagree.

A plaintiff suffers an “injury in fact” when agency action
cuts him off from “information which must be publicly
disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11,
21 (1998). Given the longstanding rule that for standing
purposes we assume the merits in favor of the plaintiff, Parker
v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007),
the upshot of Akins is that the plaintiff must assert “a view of
the law under which the defendant (or an entity it regulates) is
obligated to disclose certain information that the plaintiff has
a right to obtain,” Am. Soc. for Prevention of Cruelty to
Animals v. Feld Entertainment, Inc., 659 F.3d 13, 22-23 (D.C.
Cir. 2011). On this line of analysis, the question is whether a
reporting mandate under CERCLA triggers a requirement of
public disclosure. If so, exempting a release from the
mandate extinguishes the corresponding disclosure.

Because CERCLA itself doesn’t require disclosure, the
EPA argues there can’t be an injury. But due to the complex
interplay between CERCLA and EPCRA, the EPA’s allegedly
unlawful CERCLA exemption reduces the information that
must be publicly disclosed under EPCRA. As a result
Waterkeeper (and others) who previously sought that
information no longer have a statutory right to access it. For
the purpose of standing, that’s injury enough.
 10

In drafting the EPCRA reporting requirements, Congress
expressly tied them to CERCLA’s. Repeatedly referring back
to CERCLA, Congress set two of the three notification
provisions in its new state-targeted measure (EPCRA) to
require reports whenever the “release [also] requires a
notification under section 103(a) of CERCLA,” 42 U.S.C.
§§ 11004(a)(1), (a)(3). In other words, a release that triggers
the CERCLA duty also automatically trips the EPCRA
reporting requirements in subsections (1) and (3) of
§ 11004(a). And under subsection (2), the remaining notice
provision, even a release that “is not subject to the notification
requirements under section 103(a) of CERCLA” requires
EPCRA reporting when it “occurs in a manner which would
require notification under section 103(a) of CERCLA.” Id.
§ 11004(a)(2). Thus all of EPCRA’s reporting mandates are
piggybacked on the CERCLA mandates in one form or
another. And once EPCRA reporting is required, EPCRA
goes on to mandate that the information from those reports be
disclosed to the general public. See 42 U.S.C. § 11044(a); see
also Ctr. for Biological Diversity, Inc. v. BP Am. Production
Co., 704 F.3d 413, 429 (5th Cir. 2013). (Of course § 11044(a)
only requires disclosure of EPCRA “followup emergency
notice[s],” but that’s a meaningless technicality since
§ 11004(c) requires those “followup emergency notice[s]” to
“set[] forth” the information from the initial notices that
preceded them.) Though slightly roundabout, a CERCLA
reporting mandate does, in fact, trigger a public disclosure
requirement.

The Final Rule, by cutting back on CERCLA reporting
requirements, had the automatic effect of cutting back on
EPCRA reporting and disclosure requirements. It thus
deprives Waterkeeper of information, the public disclosure of
which would otherwise be required by EPCRA. Because we
find informational standing exists on this basis, we need not
 11

reach Waterkeeper’s remaining theories of injury and instead
proceed to the merits.

***

We review the Final Rule for reasonableness under the
familiar standard of Chevron, USA, Inc. v. NRDC, Inc., 467
U.S. 837 (1984), “which . . . means (within its domain) that a
‘reasonable agency interpretation prevails.’” Northern
Natural Gas Co. v. FERC, 700 F.3d 11, 14 (D.C. Cir. 2012)
(quoting Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208,
218 n. 4 (2009)). Of course, “if Congress has directly spoken
to an issue then any agency interpretation contradicting what
Congress has said would be unreasonable.” Entergy, 556 U.S.
at 218 n.4.

Rather than identifying particular text that’s ambiguous,
the EPA points to provisions setting forth unrelated
exemptions and ones giving the EPA authority to set
reportable quantities. It says that these “collectively create
ambiguity” as to whether the EPA can create new exemptions
like those in the Final Rule. Resp’t Br. at 34. That
conclusion doesn’t follow from the premise. Consider the
statutory exemptions that the EPA relies upon. No report is
required for releases of engine exhaust, certain nuclear
material, the normal application of fertilizer, or those that
expose persons solely within a workplace (i.e., those that
don’t escape into the broader environment). 42 U.S.C.
§ 9601(22). CERCLA similarly exempts from reporting the
application of federally-registered pesticides, releases
authorized under a federal environmental statute or ones that
are already reported to the NRC under the Solid Waste
Disposal Act. Id. §§ 9603(a), (e), (f)(1). And as we saw
earlier it adjusts the reporting requirements for so-called
“continuous release[s],” id. § 9603(f)(2), i.e., those releases
 12

that are “continuous and stable in quantity and rate,” 40
C.F.R. § 302.8(a).

To be sure, the fact that Congress thought to write certain
exceptions into the statutes doesn’t necessarily mean it meant
to bar all others. The canon of expressio unius est exclusio
alterius is “an especially feeble helper in an administrative
setting, where Congress is presumed to have left to reasonable
agency discretion questions that it has not directly resolved.”
Cheney R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990). Had
Congress done nothing more than place certain exemptions in
these statutes we might have reasonably concluded that the
EPA had discretion to fashion other exemptions consistent
with the statutory purposes. Indeed we did precisely that in
Texas Rural Legal Aid, Inc. v. Legal Services Corp., where we
held that statutory provisions barring an agency from
supporting certain types of litigation (school desegregation
and abortion) didn’t preclude the agency from creating an
additional bar precluding redistricting litigation. 940 F.2d 685,
694 (D.C. Cir. 1991). But here Congress paired those specific
exemptions with a sweeping reporting mandate. It made clear
that the statutes require notification of “any release . . . of a
hazardous substance . . . in quantities equal to or greater than”
the reportable quantities authorized under § 9602. 42 U.S.C.
§ 9603(a) (emphasis added) (CERCLA); see also id.
§§ 11004(a)(1), (a)(3) (EPCRA report required when release
requires notice under CERCLA). Read together those
statutory provisions set forth a straightforward reporting
requirement for any non-exempt release (over the reportable
quantity). See New York v. EPA, 443 F.3d 880, 885 (D.C. Cir.
2006). Conspicuously missing is any language of delegation,
such as that reports be “as appropriate,” “effective,”
“economical,” or made “under circumstances to be
determined by the EPA.”
 13

That brings us to the next set of provisions—permitting
the EPA to set reportable quantities and adopt necessary
regulations. Admittedly Congress gave the EPA broad
authority to designate additional hazardous substances and
establish reportable quantities. See 42 U.S.C. § 9602(a)
(CERCLA); see also id. § 11002(a) (similar authority under
EPCRA). And both statutes provide the EPA with general
rulemaking authority “to promulgate any regulations
necessary to carry out the[ir] provisions.” Id. § 9615
(CERCLA); see also id. §11048 (EPCRA). But those general
grants of rulemaking authority don’t tell us much about
whether the specific rule in question passes muster.

While none of those provisions even hints at the type of
reporting exemption the EPA adopted in the Final Rule, the
EPA extracts from them a notion that Congress meant to
“avoid[] duplication of effort . . . and minimiz[e] the burden
on both regulated entities and government response agencies.”
Resp’t Br. at 33. Perhaps. But as we’ve long made clear,
“[a]gencies are . . . ‘bound, not only by the ultimate purposes
Congress has selected, but by the means it has deemed
appropriate, and prescribed, for the pursuit of those
purposes.’” Colorado River Indian Tribes v. Nat’l Indian
Gaming Comm’n, 466 F.3d 134, 139-40 (D.C. Cir. 2006)
(quoting MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231
n.4 (1994)). We have no doubt that a desire for efficiency
motivated some of the exceptions Congress provided, but
those concerns don’t give the agency carte blanche to ignore
the statute whenever it decides the reporting requirements
aren’t worth the trouble. See Util. Air Regulatory Grp. v.
EPA, 134 S. Ct. 2427, 2446 (2014) (“[A]n agency may not
rewrite clear statutory terms to suit its own sense of how the
statute should operate.”).

Agencies are not, however, “helpless slaves to literalism.”
Public Citizen v. Young, 831 F.2d 1108, 1112 (D.C. Cir.
 14

1987). The de minimis doctrine is an expression of courts’
reluctance “to apply the literal terms of a statute to mandate
pointless expenditures of effort,” and is thus a “cousin” of the
doctrine permitting courts to avoid absurd results in the face
of a statute’s seemingly plain meaning. Alabama Power, 636
F.2d at 360 & n.89. But that de minimis power is strictly
limited; an agency can’t use it to create an exception where
application of the literal terms would “provide benefits, in the
sense of furthering the regulatory objectives, but the agency
concludes that the acknowledged benefits are exceeded by the
costs.” Id. at 360-61.

The EPA purported to find an absence of regulatory
benefit. It asserted that the animal-waste “reports are
unnecessary because, in most cases, a federal response is
impractical and unlikely.” 73 Fed. Reg. at 76.956/1 (emphasis
added). The qualification suggests that at least some
circumstances would call for a response. Other portions of the
Final Rule, however, seem to reject that notion and instead
state simply that the EPA could “not foresee a situation where
the Agency would initiate a response action as a result of such
notification.” Id. at 76,953/2.

But commenters in the rulemaking claimed to foresee just
such situations. They put before the EPA a good deal of
information, not refuted by the EPA, suggesting scenarios
where the reports could be quite helpful in fulfilling the
statutes’ goals. Specifically, commenters explained that
“when [manure] pits are agitated for pumping,” hydrogen
sulfide, methane, and ammonia “are rapidly released from the
manure and may reach toxic levels or displace oxygen,
increasing the risk to humans and livestock.” 73 Fed. Reg. at
76,957/2; see also Manure Gas Dangers, FARM SAFETY
ASS’N, http://nasdonline.org/static_content/documents/48/
d001616.pdf (last visited Mar. 24, 2017). That risk isn’t just
theoretical; people have become seriously ill and even died as
 15

a result of pit agitation. See K.J. Donham, Community &
Occupational Health Concerns in Pork Production: A
Review, 88 J. ANIM. SCI. 102, 107 (2010), available at
https://www.animalsciencepublications.org/publications/jas/p
dfs/88/13/E102 (cited by Amici Br. at 12 & n.55). (One
might reasonably then ask why bother agitating at all. The
answer—at least according to the EPA—is that it’s necessary
to maintain storage in liquid manure storage systems. See
NPDES Permit Writers’ Manual for Concentrated Animal
Feeding Operations 5-15, EPA (Feb. 2012), https://
www.epa.gov/sites/production/files/201510/documents/cafo_
permitmanual_entire.pdf.) The EPA didn’t dispute that
“various pit pumping techniques may cause emissions to
exceed reportable quantities” (truly an understatement), but
dismissed the comments by simply noting “it is unclear what
response the commenter had in mind.” Joint App’x at 626.
The Final Rule added that “based on the EPA’s experience,
the Agency would rarely respond to such scenarios.” 73 Fed.
Reg. at 76,957/3 (emphasis added). Although we (like the
EPA) don’t know what particular response the commenter had
in mind, the EPA suggested at oral argument that one option
might be requiring “some sort of change in the
farm’s . . . waste management system [to] eliminate the risk.”
Oral Arg. Tr. at 32:13-14. That hardly sounds “impractical.”
And as we’ll see in a minute, such responses appear to be
within the EPA’s remedial powers.

Commenters also pointed to the role of information in
enabling responses by local officials. The National
Association of Clean Air Agencies (“Clean Air Agencies”)
(which represents hundreds of air pollution control agencies)
submitted Congressional testimony from an Iowa regulator
saying that the Final Rule “prevent[s] local, state and federal
emergency responders from having critical information about
potentially dangerous releases” and limits the ability of
federal or state authorities to take action through
 16

“investigations or clean-up[s]” or “issuing abatement orders.”
Human Health, Water Quality, and Other Impacts of the
Confined Animal Feeding Operation Industry: Hearing
Before the S. Env’t & Pub. Works Comm., 110th Cong. 1
(2007) (statement of Catharine Fitzsimmons, Chief of the Air
Quality Bureau of the Iowa Dep’t of Natural Resources).
Likewise, the National Association of SARA Title III
Program Officials (“SARA Title III Officials”) (which is
made up of members of local and state emergency planning
commissions) discussed how emergency commissions could
use those reports when responding to citizen complaints or
genuine emergencies. It explained:

The 911 call that comes in from a member of
the public in the dark of night reporting a foul
or chemical odor rarely contains information
on the source. The responders are forced to
guess at that source as they ga[u]ge their
response. “Immediate” release reporting by
facilities under EPCRA provides crucial
information to those responders. Without such
information responders are forced to blindly
drive through an area not knowing what they
are looking for—is it a vehicle accident, a
facility release or something worse will be the
question in their minds.

Comment Letter from Timothy R. Gablehouse, Pres., Nat’l
Ass’n of SARA Title III Program Officials, to Superfund
Docket, U.S. EPA at 2 (Mar. 27, 2008). Then-Oklahoma
Attorney General Drew Edmondson also invoked the benefits
of alerting local agencies. Comment Letter from W.A. Drew
Edmondson, Okla. Att’y Gen., to Superfund Docket, U.S.
EPA at 3 (Mar. 27, 2008).
 17

Whatever the EPA’s past experience in responding to
mandated information may have been, it plainly has broad
authority to respond. CERCLA authorizes both removal and
remedial actions. See 42 U.S.C. § 9604(a)(1); see also
Montrose Chem. Corp. of California v. EPA, 132 F.3d 90, 92
n.3 (D.C. Cir. 1998). “Removal” includes both cleanup of
hazardous substances from the environment and broad
authority to institute monitoring, investigative and
preventative activities designed to evaluate and minimize the
impact of possible releases. See 42 U.S.C. §§ 9601(23),
9604(b)(1) (authorizing “investigations, monitoring, surveys,
testing, and other information gathering”). “Remedial
actions” are ones designed to permanently prevent or
minimize the risk of a release. See id. § 9601(24). They can
range from enormously invasive measures (like permanently
relocating residents) to relatively minor ones (like digging
protective trenches or requiring covers). See id.

Thus the comments undermine the EPA’s primary
justification for the Final Rule—namely, that notifications of
animal-waste-related releases serve no regulatory purpose
because it would be “impractical or unlikely” to respond to
such a release. 73 Fed. Reg. at 76,950/1. It’s not at all clear
why it would be impractical for the EPA to investigate or
issue abatement orders (as suggested by the Clean Air
Agencies) in cases where pumping techniques or other actions
lead to toxic levels of hazardous substances such as hydrogen
sulfide. And the SARA Title III Officials provide at least one
way that local or state authorities might use the CERCLA
release reports—to narrow an investigation when they get a
phone call reporting a suspicious smell or similarly vague
news of possibly hazardous leaks.

The record therefore suggests the potentiality of some
real benefits. Of course it’s possible that these are outweighed
by the costs, which the EPA estimates as substantial. See 73
 18

Fed. Reg. at 76,958/1 (estimating that, over ten years, the
Final Rule would save farms more than a million hours and
more than $60 million in compliance costs and cut out
roughly 160,000 hours and $8 million in government costs
related to those reports). But as we have noted, such facts
(assuming their correctness) are not enough to support
application of the de minimis exception.

***

Because the EPA’s action here can’t be justified either as
a reasonable interpretation of any statutory ambiguity or
implementation of a de minimis exception, we grant
Waterkeeper’s petition and vacate the Final Rule. That
necessarily moots Pork Producers’ challenge to the CAFO
carve-out; we therefore dismiss their petition.

So ordered.
 BROWN, Circuit Judge, concurring: I join in the Panel
Opinion because “the Final Rule ran afoul of the underlying
statutes (and was therefore outside the EPA’s delegated
authority).” Op. 3. To reach this result, the court dances
around the familiar Chevron two-step with the following
formulation: “Of course, ‘if Congress has directly spoken to
an issue then any agency interpretation contradicting what
Congress has said would be unreasonable.’” Op. 11 (quoting
Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 n.4
(2009)). I assume this reasoning casts no aspersions on the first
step of Chevron. But see United States v. Home Concrete &
Supply, LLC, 132 S. Ct. 1836, 1846 n.1 (2012) (Scalia, J.,
concurring in part and concurring in the judgment).

Entergy Corp. merely establishes an agency’s
unreasonable statutory interpretation is outside the scope of any
statutory ambiguity. The decision does not comment on the
situation in which a court might find an agency’s interpretation
reasonable without satisfying Chevron Step One, i.e., without
a judicial determination that the “traditional tools” of
interpretation identify a statutory ambiguity that, in turn,
authorizes agency action on the “precise question at issue.”
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842, 843 n.9 (1984).

This case extends no further than what Entergy Corp.
established. As the Panel acknowledges, EPA set forth no
statutory ambiguity authorizing its Final Rule. Op. 11. Under
Step One, this ends the matter. See, e.g., La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374 (1986) (holding “an
agency literally has no power to act . . . unless and until
Congress confers power upon it”). Step One would decompose
if EPA’s premise here were accepted: An agency can take
“unrelated” statutory provisions that, in its view, “collectively
create ambiguity,” and command deference because a court
finds the agency’s interpretation “reasonable” at Step Two. See
Op. 11.
 2
Chevron’s “reasonableness” inquiry could (and should) be
governed by statutory text, but Step Two jurisprudence reveals
statutory text need not play much of a role at all—let alone a
dispositive one. See, e.g., Stephen G. Breyer, et al.,
ADMINISTRATIVE LAW AND REGULATORY POLICY: PROBLEMS,
TEXT, AND CASES 359 (7th ed. 2011) (“The weight of scholarly
opinion endorses an equation of step two with arbitrary and
capricious review.” Such review is “not an inquiry into
congressional instructions, but an assessment of whether the
agency’s decision is reasonable on the merits and not, in the
[Supreme] Court’s words, arbitrary or capricious in
substance.”). This is why Step One is so critical. For all its
potential for manipulation, it is Chevron Step One where “[t]he
court’s task is to fix the boundaries of delegated authority, an
inquiry that includes defining the range of permissible criteria.
. . . [T]he judicial role is to specify what the statute cannot
mean, and some of what it must mean, but not all that it does
mean.” Henry P. Monaghan, Marbury and the Administrative
State, 83 COLUM. L. REV. 1, 27–28 (1983); see also Gerald L.
Neuman, Law Review Articles that Backfire, 21 U. MICH. J.L.
REFORM 697, 711–12 (1988) (“Monaghan’s thesis reappeared,
without citation, as the core of Justice Stevens’s new approach
to statutory interpretation in [Chevron].”).

Truncating the Chevron two-step into a one-step
“reasonableness” inquiry lets the judiciary leave its statutory
escort to blow on an agency’s dice. “It isn’t fair. It isn’t nice.”
FRANK SINATRA, Luck Be A Lady, on SINATRA ’65: THE SINGER
TODAY (Reprise Records 1965). In fact, some advocates of a
one-step reasonableness approach appeal to the judiciary’s fear
of commitment—promising that courts can avoid
“ascertain[ing] whether the statute has a single, clear meaning
before deciding whether the agency’s interpretation is
reasonable.” See Matthew C. Stephenson & Adrian Vermeule,
Chevron Has Only One Step, 95 VA. L. REV. 597, 605 (2009).
 3
Congress is out of the picture altogether. When all that matters
is aligning judicial and administrative views of reasonableness,
and reasonableness at Step Two need not be primarily or solely
determined by the “traditional tools” of statutory interpretation,
there is no incentive to petition the legislature for statutory
clarity. Agencies are free to experiment with various
interpretations, and courts are free to avoid determining the
meaning of statutes. See Kenneth A. Bamberger & Peter L.
Strauss, Chevron’s Two Steps, 95 VA. L. REV. 611, 618–19
(2009).

An Article III renaissance is emerging against the judicial
abdication performed in Chevron’s name. If a court could
purport fealty to Chevron while subjugating statutory clarity to
agency “reasonableness,” textualism will be trivialized. “For
whatever the agency may be doing under Chevron, the problem
remains that courts are not fulfilling their duty to interpret the
law.” Guiterrez-Brizuela v. Lynch, 834 F.3d 1142, 1152–53
(10th Cir. 2016) (Gorsuch, J., concurring).

I join in the Panel Opinion because it does not extend to
the situation in which an agency’s statutory interpretation is
found to be “reasonable” without a court first determining the
statutory bounds of agency authority. But if Chevron’s two-
step inquiry can be collapsed into one “reasonableness” inquiry
no different than current Step Two jurisprudence, there is yet
another reason to question Chevron’s consistency with “the
judicial department[’s]” “emphatic[]” “province and duty . . .
to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803).