NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 2 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FOOD & WATER WATCH; CENTER FOR No. 23-2146

BIOLOGICAL DIVERSITY; CENTER FOR

FOOD SAFETY; DAKOTA RURAL

ACTION; DODGE COUNTY

CONCERNED CITIZENS;

ENVIRONMENTAL INTEGRITY MEMORANDUM*

PROJECT; HELPING OTHERS

MAINTAIN ENVIRONMENTAL

STANDARDS; INSTITUTE FOR

AGRICULTURE AND TRADE POLICY;

IOWA CITIZENS FOR COMMUNITY

IMPROVEMENT; KEWAUNEE CARES;

LAND STEWARDSHIP PROJECT;

MIDWEST ENVIRONMENTAL

ADVOCATES; and NORTH CAROLINA

ENVIRONMENTAL JUSTICE

NETWORK,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent,

NATIONAL PORK PRODUCERS

COUNCIL, AMERICAN FARM BUREAU

FEDERATION, U.S. POULTRY & EGG

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ASSOCIATION, and UNITED EGG

PRODUCERS,

Intervenor-Respondents.

On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted September 12, 2024 San Francisco, California

Before: BYBEE, BEA, and MENDOZA, Circuit Judges.

Petitioners Food & Water Watch and twelve other environmental nonprofits

(collectively, “Petitioners”) petitioned the United States Environmental Protection

Agency (“EPA”) to initiate a rulemaking and revise its regulations governing

concentrated animal feeding operations (“CAFOs”) that discharge animal waste

and manure into U.S. waterways, pursuant to EPA’s authority under the Clean

Water Act (“CWA”). EPA denied the petition. It agreed with Petitioners that

CAFOs may be responsible for unlawful water pollution, but it determined that an

immediate, multipronged rulemaking may not be the best way to fix the problem.

Instead, EPA decided that it would do two things: (1) convene a committee of

stakeholders to solicit insights into the problem and (2) initiate a study addressing

the efficacy of its current regulations. After conducting these measures, EPA

would assess whether it could “address water quality concerns related to CAFOs

through improvements to implementation, enforcement, and other non-regulatory

2 initiatives, or whether regulatory revisions are appropriate.” Petitioners are

dissatisfied with EPA’s response and petition for judicial review. We have

jurisdiction under 33 U.S.C. § 1369(b)(1). See Nat’l Res. Def. Council v. EPA, 542

F.3d 1235, 1243 (9th Cir. 2008). Our review is “‘extremely limited’ and ‘highly

deferential.’” Compassion Over Killing v. U.S. Food & Drug Admin., 849 F.3d

849, 854 (9th Cir. 2017) (quoting Massachusetts v. EPA, 549 U.S. 497, 527–28

(2007)). We may set aside EPA’s denial if it was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

Because we find that EPA did not act arbitrarily, capriciously, or contrary to law,

we DENY the petition.

1. As a threshold matter, Petitioners did not waive their challenge.

Generally, the panel “will not consider issues not presented before an

administrative proceeding at the appropriate time.” Marathon Oil Co. v. United

States, 807 F.2d 759, 767 (9th Cir. 1986). But this preservation requirement is a

lenient one: a petitioner adequately preserves its objections if its initial petition

“provided sufficient notice to the agency to afford it the opportunity to rectify the

violations that the petitioners alleged.” Bahr v. Regan, 6 F.4th 1059, 1070 (9th

Cir. 2021) (quoting Nat’l Parks & Conserv. Ass’n v. Bureau of Land Mgmt., 606

F.3d 1058, 1065 (9th Cir. 2010)) (cleaned up); see also Pac. Choice Seafood Co. v.

Ross, 976 F.3d 932, 942 (9th Cir. 2020) (“[The panel] will consider any issue that

3 was raised with sufficient clarity to allow the decision maker to understand and

rule on the issue raised[.]”) (internal quotation marks and citation omitted).

Petitioners preserved their arguments for judicial review. Contrary to EPA’s

assertions otherwise, Petitioners broadly argued throughout their Petition that EPA

had a general duty under the CWA to revise their ineffective CAFO regulations.

Moreover, Petitioners focused their challenge on three specific issues, which

they presented to EPA in their Petition and to which EPA responded in detail: (1)

EPA’s “lax requirements” for CAFOs with National Pollutant Discharge

Elimination System (“NPDES”) permits; (2) EPA’s “inadequate CAFO program,”

which “allows most discharging CAFOs to avoid permit coverage”; and (3) EPA’s

broad “agricultural stormwater exemption” that “independently stand[s] in the way

of adequate regulation of CAFOs.”

Additionally, contrary to EPA’s argument, Petitioners need not seek review

of every denied issue in their Petition. EPA points to no caselaw or rationale, nor

are we aware of any, that imposes such a duty on petitioners seeking our review.

2. Here, EPA did not act unreasonably when it refused to take

Petitioners’ requested action to further regulate CAFOs. “An agency action

qualifies as ‘arbitrary’ or ‘capricious’ if it is not ‘reasonable and reasonably

explained.’” Ohio v. EPA, 144 S. Ct. 2040, 2053 (2024) (quoting FCC v.

Prometheus Radio Project, 592 U.S. 414, 423 (2021)). Under this standard, an

4 agency “cannot simply ignore ‘an important aspect of the problem’”; it must offer

“‘a satisfactory explanation for its action[,] including a rational connection

between the facts found and the choice made.’” Id. (alteration in original) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)).

Although EPA declined to open a rulemaking at this moment, it did not

refuse to take any action with respect to its CAFO regulations. In response to the

Petition, EPA acknowledged the serious problem of CAFO-based waste discharges

into U.S. waterways, and it decided that the most effective way to counter the

problem is to further study its Effluent Limitation Guidelines and to commission a

stakeholders’ subcommittee.

Petitioners compare EPA’s actions here to those underlying Massachusetts

v. EPA, 549 U.S. at 528–35. In Massachusetts, the Supreme Court found that EPA

acted arbitrarily, capriciously, and contrary to law when it denied a petition for

rulemaking after it determined that greenhouse gases present a danger but failed to

articulate “some reasonable explanation as to why it cannot or will not exercise its

discretion.” Id. Here, unlike in Massachusetts, EPA did not decline to act entirely

but instead acknowledged it needed more information before it could act.

Regardless, EPA “has broad discretion to choose how best to marshal its limited

resources and personnel to carry out its delegated responsibilities” and “significant

5 latitude as to the manner, timing, content, and coordination of its regulations with

those of other agencies.” Id. at 527, 533. Here, EPA has deemed it prudent to first

seek information about how best to tackle the problem before directing resources

toward a new rulemaking. Those justifications are reasonable and hardly at odds

with the CWA’s requirements. Compassion Over Killing, 849 F.3d at 854 (“[A]n

‘agency’s refusal to institute rulemaking proceedings is at the high end of the

range’ of levels of deference we give to agency action under our ‘arbitrary and

capricious review.’”) (citation omitted). Accordingly, EPA’s denial of the Petition

was not arbitrary, capricious, or otherwise not in accordance with the law.

PETITION FOR REVIEW DENIED.

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