Court of Appeals rules against Michigan CAFO operators

Mar 30, 2011

Large factory farms have lost a major court case in the Michigan Court of Appeals. The case involves farming operations with hundreds, sometimes thousands of animals. They are often called CAFOs, or Concentrated Animal Feeding Operations.

The appellate court upheld a lower court ruling that the state could require large confined animal feeding operations to get pollution discharge permits before opening. Farm groups challenged the state rule insisting they should only need a permit after releasing manure causing water pollution.  But today, the three judge panel disagreed:

We conclude that the DEQ was fully authorized to require CAFOs to either (1) seek and obtain an (federal) permit (irrespective of whether they actually discharge pollutants), or (2) satisfactorily demonstrate that they have no potential to discharge.  The circuit court  properly denied plaintiffs’ motion for summary disposition and granted summary disposition in favor of the DEQ.

Ann Wiowode  is the director of the Michigan chapter of the Sierra Club. She welcomes this week’s ruling. 

 “That is essential in insuring they’re not allowed to begin operation and potentially pollute the water  without going through proper review.”

But while she welcomes the decision, Wiowode says more work is needed to protect Michigan from water pollution connected to agriculture. 

 “We think the regulations are still too weak.  And based on our experience, the permits themselves have many things that could be improved.”   

The Michigan Farm Bureau expressed disappointment with the decision.

We maintain that it is unnecessary and illogical for the Michigan Department of Environmental Quality (DEQ) to require a farmer who operates a Concentrated Animal Feeding Operation (CAFO) and who does not discharge to be forced to obtain a National Pollutant Discharge Elimination System (NPDES) permit. DEQ doesn't take this approach with other industries, so it should not regulate farms this way.  Federal courts have reached the same conclusion. Most recently, the U.S. Court of Appeals Fifth Circuit ruled March 15 that the Environmental Protection Agency (EPA) cannot require livestock farmers to apply for Clean Water Act (CWA) permits unless their farms actually discharge manure into U.S. waters. This marks the second time the U.S. Court of Appeals has ruled that EPA’s authority is limited by the CWA to jurisdiction over only actual discharges to navigable waters, not potential discharges.  

The Michigan Farm Bureau statement goes on to say the bureau and its co-plaintiffs are mulling their options in this case.   That may include an appeal to the Michigan Supreme Court.