Michigan Court Rules State Can Require CAFO Permits Before a Spill

On Tuesday, March 29, the Michigan Court of Appeals in the case Michigan Farm Bureau v. Department of Environmental Quality upheld Michigan Department of Environmental Quality (DEQ) Rule 2196.  That Rule requires a CAFO to obtain a National Pollutant Discharge Elimination System (NPDES) permit if the CAFO has the potential to discharge pollutants.  Rule 2196 also provides an administrative process for a CAFO to avoid getting a permit if the CAFO can demonstrate it does not have the potential to discharge pollutants.

Recently, the Federal Court of Appeals for the Fifth Circuit in National Pork Producers Council v. EPA ruled that the U.S. Environmental Protection Agency (EPA) does not have the authority under the federal Clean Water Act to impose a duty to apply for a NPDES permit on a CAFO that has not yet discharged pollutants.  The Michigan court distinguished its ruling – that the Michigan DEQ can impose this duty to apply for a NPDES permit on CAFOs – from the federal court ruling on three grounds.

First, the court ruled that Michigan administers the NPDES program, in lieu of the federal EPA, under state law.  The federal Clean Water Act provides that the states can impose more stringent requirements than the federal EPA.

Next, the Michigan court looked to Michigan’s Natural Resources and Environmental Protection Act (NREPA) and found that the Act gives the Michigan DEQ broad authority to protect that water resources of Michigan from waste disposal, including CAFO waste disposal.  The court found that the threat of pollution from CAFOs was high and that the NREPA allowed the DEQ to act to prevent pollution.

Third, the Michigan court looked at the record of waste spills from CAFOs and, seeing the extensive record of spills, determined that the imposition on CAFOs by DEQ of a duty to apply for a NPDES permit was not arbitrary and capricious.

For a look at the environmental impact of CAFOs in just one region in Michigan, take a look at the home page of the Environmentally Concerned Citizens of South Central Michigan.

Missouri Appeals Court Upholds Nuisance Award to Farmer Neighbors of CAFOs

Also on March 29, a Missouri Court of Appeals issued an opinion in the case Owens v. ContiGroup Companies, Inc. that upheld a jury award of $11.5 million in damages to sixteen neighbors of a large hog CAFO in Gentry County, Missouri.  The plaintiffs, including neighboring farmers, claimed that the intense odors from the confinement facility and from land applied swine effluent constituted a temporary nuisance that interfered with the farmers’ use and enjoyment of their property, including their farmland.  They sought damages for the loss of use and enjoyment from 1999 to 2010.

The CAFO’s operator, Premium Standard Farms (PSF), used “traveling guns” that shot swine effluent 300 feet into the air.  Swine effluent could blow in the wind and it was also left to pool on top of the soil.  At trial, a jury found that substances such as hydrogen sulfide and ammonia from the CAFO could cause ill odors that would interfere with the use of neighboring farm property.  The trial judge also allowed expert testimony that flies from the CAFO posed a health threat to the neighbors.

PSF challenged the award to its farmer neighbors contending that only residential property owners could bring claims of temporary nuisance and that farm owners should be limited to much smaller awards based on the diminished value of the property.  The Appeals Court disagreed ruling that there is no persuasive reason that land used for business purposes could not support an award for the loss of the use and enjoyment of such property by the business owner.  It refused to say as a matter of law that the owners of farmland are not entitled to the reasonable use and enjoyment of that farmland merely because business activities are conducted on it.

In the meantime, the Missouri House and Senate have both passed bills that would limit the ability of neighbors of even the largest CAFOs to sue for damages based on a CAFO’s repeated failure to control emissions of harmful gasses, flies, and other nuisances.  Neighboring farms and business could only receive an award of the partial value of their property and could subjected to a continuing nuisance.

If enacted, this legislation would send a clear signal that Missouri only welcomes large-scale CAFOs as the future for rural development and farming.  Other new farms and businesses would locate in rural Missouri at the risk of losing the ability to use their property and to live in communities that are not subjected to the noxious odors, toxic gas emissions, flies and other health threats from improperly operated CAFOs.

Tim Gibbons with the Missouri Rural Crisis Center also emphasized in a recent news article that this legislation would  remove the incentive of lawsuits that are effective in making corporate-controlled factory farms be accountable to the family farms that have been on the land for generations.