require livestock operations to prevent manure from running into state waters. Photo © J. Carl Ganter/ Circle of Blue
A recent state court decision has the potential to significantly transform how animal agriculture is regulated in Michigan and could influence how other states and the U.S. Environmental Protection Agency oversee the industry’s mammoth waste stream, said environmental lawyers and activists.
On July 31 , in a case that pit the administration of Democratic Gov. Gretchen Whitmer against the state’s Farm Bureau, the Michigan Supreme Court ruled that he Department of Environment, Great Lakes, and Energy (EGLE) has full authority to require industrial animal agriculture to much more responsibly manage the torrent of manure waste that has been polluting waterways.
“The court ruling affirming EGLE’s authority to issue permits that include greater protective conditions better positions our state to safeguard water quality,” said Tim Boring, the director of the Michigan Department of Agriculture and Rural Development, said in an email message.
Michigan is one of more than two dozen states at the center of the country, and on both coasts, contending with rampant ground and surface water pollution caused by agriculture, and especially the more than 21,000 large dairy, cattle, hog, and poultry farms across the country, or so-called Concentrated Animal Feeding Operations (CAFOs).
Opposition to CAFOS and the Farm Bureau, their primary supporter, is more intense than at any time in recent memory. CAFO opponents in other states said they were encouraged by the Michigan decision.
“It means a lot for Wisconsin,” said Lisa Doerr, a hay farmer from Cushing who worked with Wisconsin towns to pass ordinances blocking CAFO development, in an interview. “We have a similar attempt by industrial farm factories here to stop regulation. The Michigan ruling is a beacon of hope for all these rural communities dealing with giant livestock factories.”
“This is a rare win for water protection,” said Sam Carpenter, executive director of the Hoosier Environmental Council in Indiana, in an email message. “This is something that Indiana can look to as an example of important measures to protect our lakes, streams and waterways.”
Environmental advocates said the ruling also strengthens work by an advisory committee of advocates and experts that the E.P.A convened earlier this year to “restore and maintain the integrity of the nation’s waters, in this case by addressing discharges from CAFOs.” The panel’s report is due next year.
“For years, the Farm Bureau has pushed extreme arguments through the courts to protect the profits of industrial-scale factory farms,” said Tyler Lobdell, staff attorney for Food and Water Watch, a national environmental law and policy group that petitioned the EPA to regulate CAFO wastes. “Michigan’s highest court made clear that they aren’t buying it. The truth is that the Farm Bureau has never stood with science or farmers — their illusion is beginning to crack, and our water quality will be better for it.”
The Michigan Farm Bureau did not respond to requests for comment.
The July 31 court decision ends 20 years of weak CAFO oversight that started on April 22, 2004, Earth Day’s 34th anniversary. That day Democratic Governor Jennifer Granholm signed amendments to Michigan’s primary environmental protection law that included a little-noticed provision promoted by the Michigan Farm Bureau. The two-line directive barred the state environmental agency from issuing any new rules to stem pollution or improve the condition of streams, rivers, lakes, and groundwater.
Along with distorting the essential principles of the annual celebration of Michigan’s role in protecting its water — inarguably its most vital natural resource — the ban had profound consequences for encouraging the development of a nascent industrialized livestock and poultry feeding industry, then numbering 35 CAFOs, it was meant to advance.
Weakened or intimidated by the restriction, the state environment agency issued a flimsy CAFO operating permit in 2005 that did little to stem discharges of manure into Michigan’s waters. Two more similar permits were issued in 2010 and 2015. Meanwhile, the state’s industrial-scale meat and milk operations became larger, more numerous, and much more polluting.
By 2020, the number of Michigan CAFOs had increased to 291. The state’s meat, milk, and egg production sector added 40,000 dairy cows, 3.1 million hogs, and 12 million chickens and turkeys over the last 20 years, according to federal figures. They are responsible for most of the 4 billion gallons of untreated urine and feces and some 40 million to 60 million tons of solid manure generated in Michigan each year and spread on 600,000 acres, according to state and federal figures.
Manure contains toxic levels of nitrates, phosphorus, and harmful E.coli bacteria that has contaminated surface and groundwater across Michigan, with the heaviest concentrations in areas with big industrialized livestock and poultry operations, according to state data. Discharges from Michigan CAFOs contribute to phosphorus pollution that causes the big annual toxic algal bloom in Lake Erie. State waters also are periodically polluted by overflowing manure storage lagoons.
Recognizing the extent of pollution, and encouraged by Gov. Whitmer, EGLE issued a new permit in 2020 that called for modest new requirements in how CAFOs should spread manure, including restrictions on spreading in winter, and limiting spread on fields already saturated with phosphorus.
A New Permit Prompted Response
The state Farm Bureau clearly viewed the new permit language as a fresh challenge to 1) the 2004 ban on any new rules to protect water quality and 2) its then 16-year strategy of preventing the state from issuing environmental measures that it believed would hamper the growth of animal agriculture.
The Farm Bureau sued in state court, asserting that the new provisions were “rules” that were prohibited under the 2004 law. The Michigan court, in a 5-2 ruling disagreed, asserting that EGLE has full authority to regulate the industry.
“The Farm Bureau had a clear strategy to help the industry,” said James Olson, one of Michigan’s top environmental attorneys. “This monkey business has been there a long time. It was a calculated move to open the door to massive big ag operations without any concern for environmental controls. It worked. And it ruined the waters of Michigan.”
Hugh McDiarmid Jr., EGLE’s communications manager, said his agency has “not yet made a decision on next steps.” Olson and other environmental attorneys said EGLE can now take much stronger action, including requiring CAFOS to install effective pollution prevention practices and equipment, just like any other large industrial polluters.
In plain language, EGLE could:
- Direct industrial-scale meat and milk producers to adopt tools and practices they have long resisted.
- Require CAFOs to treat manure in wastewater facilities to remove toxic chemicals and bacteria before it’s spread on fields.
- Require operations to install sensing and monitoring networks to assure that manure storage tanks and lagoons are not leaking and watersheds are not being polluted.
- Require animal agriculture to meet state limits for phosphorus, bacteria, and other pollutants in state waters.
- Limit the number of animals housed in a CAFO.
“The decision is extremely powerful language for EGLE to act,” said Carrie La Seur, the legal director of For Love of Water, a Traverse City-based environmental law and policy group that intervened in behalf of the state. “It’s clear that EGLE regained a lot of authority through this ruling.”
“What’s coming is a monumental decision for Michigan’s environmental agency,” said Lobdell, the Food and Water Watch attorney. “It can now clearly do what is necessary to protect water quality in Michigan. It’s fully empowered to rein in factory farm pollution.”
Huge Victory In The Public Interest
Perhaps not since 2013 has an American court issued such a strong decision in opposition to the Farm Bureau and in favor of clean water. That year a Federal District Court Judge in Pennsylvania turned back a Farm Bureau challenge, and ruled that the U.S. Environmental Protection Agency and six states could collaborate to limit farm pollution in Chesapeake Bay.
In most other big cases, the Farm Bureau has prevailed in state and federal courts to block environmental safeguards in agriculture.
In one case, the Farm Bureau collaborated with the National Pork Producers Council and seven other national and state farm trade groups in a lawsuit challenging a 2008 rule issued by the EPA that required large livestock operations to seek permits for discharging manure in order to reduce runoff into groundwater and streams.
The Farm Bureau and the other plaintiffs asserted that the environmental agency’s rule exceeded its authority under the Clean Water Act. In 2011 the U.S. Fifth Circuit Court of Appeals agreed and nullified the rule. It was the last time the EPA proposed regulating discharges from animal operations.
After Des Moines Water Works — the utility supplying water from the Raccoon River to Iowa’s capital city — sued three drainage district from three upstream counties in 2015 to curb the toxic nitrate contamination from crop and livestock operations that was showing up at elevated levels in its treated drinking water, The Iowa Farm Bureau financed the counties’ legal defense. US Judge Leonard Strand dismissed all claims against the counties in 2017, ruling that Iowa’s contaminated water is a systemic problem for state lawmakers to solve.
County health departments in Missouri felt the power of the Farm Bureau after they adopted ordinances to regulate air emissions and water discharge to limit pollution from livestock operations. The Missouri Farm Bureau challenged that authority. In concert with other state farm groups, the Farm Bureau convinced the state Senate in 2019 to pass a bill that prohibited counties from imposing rules on big livestock operations that were “inconsistent with or more stringent than” state law. The state House approved similar legislation in 2021. Last year the Missouri Supreme Court said both bills were lawful under the state constitution.
EGLE’s new authority to regulate CAFO waste is supported by Michigan’s clear legal directives to secure Michigan’s waters. The Michigan Constitution, ratified in 1963, states that “the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
The Michigan Environment Protection Act (MEPA), enacted by the Legislature in 1970, implements that constitutional mandate. The statute gives state courts the authority a d duty to prevent conduct that causes “pollution, impairment, or destruction” unless “there is no feasible and prudent alternative.” Those directives have been consistently upheld for a half century by the state’s Circuit, Appellate, and Supreme Court judges.
“In this latest case our state Supreme Court confirmed again the responsibility EGLE has to protect our water,” said Olson. “They have a mandatory duty to act, and they should act now.”
— Keith Schneider
