CAFO stands for concentrated animal feeding operation. These are large farms raising hundreds, often thousands, of animals like cattle, hogs and chickens.
All those livestock produce a lot of liquid waste filled with animal feces, pharmaceuticals, hormones, heavy metals and also nutrients like phosphorus and nitrogen — a mixture that’s often applied to fields as fertilizer.
Michigan's Department of Environment, Great Lakes, and Energy, also known as EGLE, sets conditions for how farmers should apply all that waste. The idea is to prevent those pollutants, largely excess nutrients, from running off the farm and into surface water.
A few years ago, EGLE cracked down. In 2020, its general permit for CAFOs contained stricter requirements than ever before.
PROCESS PROBLEMS
But the specific requirements themselves are not the focus of the case facing the Michigan Supreme Court in Michigan Farm Bureau v. Department of Environment, Great Lakes, and Energy.
“It’s really about the process,” said Zach Larsen, the attorney representing Michigan Farm Bureau on behalf of several CAFO farmers. He says the state didn’t follow the proper procedure with its latest permit.
That’s because one section of a state law — Part 31 of Michigan’s Natural Resources and Environmental Protection Act (NREPA) — was amended in the early 2000s.
“The farms are simply asking for the same benefit of those procedures that are applied in really any federal and state agency policy-making process."
Zach Larsen
attorney representing the Michigan Farm Bureau
The amendment says EGLE cannot promulgate new rules when it comes to regulating CAFO water pollution.
Larsen and the Farm Bureau argue that the stricter 2020 general permit was essentially a new rule.
“The farms are simply asking for the same benefit of those procedures that are applied in really any federal and state agency policy-making process,” said Larsen.
Farm Bureau says EGLE violated the state’s rule-making process and overstepped its authority. But EGLE and several environmental policy groups disagree.
Jim Olson is an environmental attorney and legal advisor to For Love of Water (FLOW). The Traverse City-based organization is one of many independent environmental policy groups that urged the Michigan Supreme Court to take this case.
“The fact is, the way the law reads this, EGLE has its hands tied behind its back. It cannot amend the general permit,” said Olson. “They’re stuck with this Part 31 amendment [of NREPA] that says they cannot do that.”
But EGLE can issue updated permits; and EGLE argues that’s what it did in 2020.
“It’s basically a go-ahead to continue polluting the waters of the state by massive animal operations."
Jim Olson
attorney for FLOW
Plus, Olson and others say there’s a glaring issue with Farm Bureau’s argument: The same law that prevents EGLE from promulgating new rules also obligates the agency to protect Michigan’s water and to control the pollution that flows into it.
Olson and other environmental attorneys say a ruling in Farm Bureau’s favor would force the state to violate its own laws and the state constitution (which also includes a directive to protect the state’s natural resources).
They argue it would freeze an old general permit in place, preventing much-needed updates to regulate water pollution from CAFOs.
“It’s basically a go-ahead to continue polluting the waters of the state by massive animal operations,” said Olson.
THE BIG PICTURE
Farm Bureau has a problem with process. They say EGLE illegally promulgated a new rule when it updated the general permit in 2020.
EGLE and its allies say the general permit needs to be updated and the state has a right to update it. Without those updates, they argue, EGLE cannot do what it’s legally bound to do: protect water in Michigan. (They also take issue with how Farm Bureau worked the state’s court system to bring this case.)
But what’s at stake?
Zach Larsen, for Farm Bureau, says it’s holding the state accountable to following the right procedure.
“We view this as pretty significant in terms of the burdens that are being imposed by the state,” said Larsen. “And that deserves the same deliberative process and democratic process that any other action by the state setting similar standards gets.”
Plus, farmers say the 2020 general permit is restrictive and costly, making business even harder in an industry where farmers generally can’t set their own prices.
EGLE and environmental groups say Michigan’s water quality, and the state’s ability to regulate it, are at risk. And a ruling in Farm Bureau's favor could pave the way for other polluting industries to make the same argument.
Justices will hear oral arguments on Jan. 11 and will likely issue a decision later this year.
