Maximizing CAFO Accountability: A Regulatory Framework

By: Peyton Woodbrown

Pollution from Concentrated Animal Feeding Operations (CAFOs), the largest type of factory farms in the United States, is largely uncontrolled and underregulated.[1] CAFOs are defined by the USDA as operations in which, “over one thousand animal units are confined for over forty-five days per year.”[2] In this context, one animal unit equals over one thousand pounds of animal weight.[3] One CAFO might produce around “1.6 million tons of manure per year.”[4] Consequently, CAFO animal waste production has adverse public health and environmental effects, which largely affect marginalized groups in the United States.[5]

Under the Clean Water Act (CWA), the Environmental Protection Agency (EPA) may promulgate rules that require point sources to report their pollution levels.[6] At one time, the EPA had proposed a reporting rule under the CWA—the Information Rule.[7] The Information Rule would have required all CAFOs to submit operational information to the EPA.[8] Regrettably, the EPA later withdrew the proposed rule and decided to gather information using sources existing at the time.[9] In consequence, the EPA has failed to hold CAFOs accountable for their emissions.[10] The EPA’s decision to withdraw the proposed rule adversely affected public health outcomes and pollution levels across the country. Currently, CAFOs benefit from certain EPA “agriculture exemptions.”[11] This allows CAFOs to operate and emit pollutants without National Pollutant Discharge Elimination System (NPDES) permits.[12]

The CAFO exemption from critical environmental regulation means that the federal government is failing to protect communities and the environment from overwhelming air and water pollution resulting from CAFO waste.[13] In many states, CAFO concentration is highest in poor areas with predominantly non-white populations, making CAFO pollution an environmental justice issue.[14]

To combat public health crises in low-income and communities of color, to address harm to wildlife and our nation’s groundwater supply and waterways, large and medium CAFO oversight should not be left to states.[15] Instead, CAFOs should be aggressively monitored through the development of a national CAFO inventory.[16] This would require CAFOs to keep strict emissions reporting records.[17] These requirements would alleviate Environmental Justice communities’ need to confront these issues alone. However, exemptions found in statutory loopholes demonstrate that a new AFO operational standard should be simultaneously developed with the national inventory.[18]

The need for these two legal standards is underscored when one considers that since the 1950s, US dairy and meat production has more than doubled, while the number of these operations has decreased by eighty percent.[19] Federal government subsidies support AFO consolidation, making CAFO costs artificially low.[20] Instead, subsidies should be tied to strict compliance with NPDES reporting standards.[21] Because CAFOs currently fail to meet CWA standards, this new operational compliance standard would mean that CAFOs would necessarily decrease in size.[22] Less subsidization would force farmers and consumers to confront CAFOs costs, but this could lessen the demand for meat and animal products.[23] It would also allow AFO numbers to rebound, creating space for more American farmers to raise animals at a less damaging scale.[24]

The government needs to more fully consider the surrounding communities, soil health, aquifers, water, and air as it regulates and monitors CAFOs.[25] The current regulatory scheme has proven ineffective. Given the historical legal landscape, increasing EPA permit enforcement power is insufficient.[26] Consequently, a national CAFO inventory must be created simultaneously to tying CAFO subsidies to regulatory compliance.

[1] Shelby White, Note, Reducing Pollution from Concentrated Animal Feeding Operations by Enforcing National Pollutant Discharge Elimination System Permit Requirements Under the Clean Water Act, 36 Colo. Nat. Res. Energy & Env’t L. Rev., 167, 176 (2025).

[2] Id. at 168–69.

[3] Id.

[4] Id. at 170.

[5] Id.

[6] 33 U.S.C. § 1318(a)(A).

[7] National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, 77 Fed. Reg. 42679 (proposed July 20, 2012) (to be codified at 40 C.F.R. pts. 9, 122); Env’t. Integrity Project v. McCarthy, 139 F. Supp. 3d 25, 33 (D.D.C. 2015).

[8] Id.

[9] National Pollutant Discharge Elimination System Permit Regulation for Concentrated Animal Feeding Operations: Removal of Vacated Elements in Response to 2011 Court Decision, 77 Fed. Reg. 44494 (proposed July 30, 2012) (codified at 40 C.F.R. pt. 122).

[10] Id.

[11] White, supra note 1, at 174.

[12] Id. at 175.

[13] Environmental Impacts of Concentrated Animal Feeding Operations (CAFOs), Ctr. for Biological Diversity (2019), https://coilink.org/20.500.12592/5zwt52v [COI: 20.500.12592/5zwt52v].

[14] Steve Wing, Dana Cole & Gary Grant, Environmental Injustice in North Carolina’s Hog Industry, 108 Env’t. Health Persp., 225, 225 (2000).

[15] Environmental Impacts of Concentrated Animal Feeding Operations (CAFOs), supra note 13.

[16] Id.

[17]Id.

[18] White, supra note 1, at 190.

[19] Environmental Impacts of Concentrated Animal Feeding Operations (CAFOs), supra note 13.

[20] White, supra note 1, at 190.

[21] Environmental Impacts of Concentrated Animal Feeding Operations (CAFOs), supra note 13.

[22] White, supra note 1, at 173.

[23] Id. at 190.

[24] Id.

[25] Mountville Poultry Farms., S.C. Env’l L. Proj., https://scelp.org/cases/mountville-poultry-farms (last visited Sept. 10, 2026).

[26] See 40 C.F.R. § 122.23(e) (stating that CAFOs are exempt from NPDES requirements for agricultural stormwater discharges under certain conditions).