Environment
December 2008

What about the “Pig Tax”?

There has been a recent flurry of articles in the press about an EPA Pig or Cow “Tax”.  This evidently has been the result of some farm organizations raising concerns and issuing press releases about an Advance Notice of Public Rulemaking (ANPRM) that had been published by the U.S. EPA for public comment.  The ANPRM related to the question of whether greenhouse gases (and in particulate, greenhouse gases from new motor vehicles) may reasonably be anticipated to “endanger” public health and therefore should be regulated under provisions of the federal Clean Air Act.  The public comment period for this ANPRM closed on November 28, 2008.  A number of questions from producers have resulted from these articles.  The following is intended to help answer some of these questions.

Did EPA adopt a rule?  - No

EPA published an Advance Notice of Public Rulemaking (ANPRM) in order to gather comments from the public that EPA might take into consideration as they decide whether to formally propose a rule for adoption as well as the scope of what the rule would cover.  If EPA decides to proceed with a rule they will publish a formal notice and proposed rule that will be subject to public review and comment.  It is not known at this time whether EPA will in fact make a formal rule proposal or what that proposal will contain.

Did EPA specifically propose to regulate livestock operations? – No

The ANPRM primarily discusses the potential for regulation of greenhouse gas emissions from mobile sources (cars and trucks).  The concern for livestock and agriculture is that if EPA does determine that greenhouse gasses from these sources pose an “endangerment” and are to be regulated through the provisions of the federal Clean Air Act then any (or most any) human activity could be subject to mandatory permits (and permit fees) under the Clean Air Act if it produces greenhouse emissions.  This theoretically would mean that livestock production could at some point in the future be subject to this type regulation

Did EPA propose a tax on livestock? – No

If operations are required to obtain operating permits under the federal Clean Air Act they may be required to pay a permit fee based on the number of tons of air pollutants emitted.  The per-ton permit fee is set annually by EPA and is for the purpose of paying for the costs of the permitting program.  Most states have been delegated authority by EPA to administer the provisions of the Clean Air Act within their states and may set permit fees different from the fee that would be charged by EPA if they were administering the program in that state.  If livestock operations are required to obtain operating permits and pay a permit fee that fee would be fee based on the tons of pollutants emitted and not on a per animal basis.

Where did the dollar amounts per pig quoted in the press come from? – Not Known

It is not clear how the numbers quoted in the press were derived.  It may be that the numbers were derived by assuming that 200 hogs would be the number of animals required to generate the 100 tons of emission to cross the threshold for coverage under the operating permit provisions; multiplied 100 tons by the applicable federal permit fee and divided that by the 200 animals.  This is only an assumption.  The key point is that IF producers were required to obtain permits and pay a permit fee that fee would be based on amount of emissions not on a per animal basis.

Why did EPA publish the ANPRM? – In Response to a Supreme Court Decision

This issue began in the late 1990s when a coalition of environmental groups petitioned EPA to regulate greenhouse gas emissions from new motor vehicles.  EPA’s General Counsel initially issued a legal opinion indicating that the agency had authority to regulate these emissions under the Clean Air Act but later reversed this position, and EPA denied the petitions claiming that it lacked authority under the Clean Air Act to regulate greenhouse gases.  The petitioners, joined by a number of states, subsequently sued EPA in a case heard by the US Supreme Court.  In 2007, the Supreme Court reversed EPA’s decision and ruled that EPA did indeed have authority under the Clean Air Act to regulate greenhouse gas if EPA determines they cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare.  EPA’s response to the Supreme Court’s decision was the publication of the Advance Notice of Proposed Rulemaking (ANPRM).

The public comment period on the ANPRM ended November 28th, what happens now?

EPA will go forward by taking into account comments received on the ANPRM and presumably will begin the actual rule making process regarding automotive greenhouse gas emissions, which of course will have to be subject to public comment and potential litigation.

For More information contact Allan Stokes at AStokes@pork.org

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