A Michigan Supreme Court ruling upholding the Department of Environment, Great Lakes and Energy’s (EGLE) ability to announce stricter permit conditions for concentrated animal feeding operations (CAFOs) than outlined in the department’s formal rules is being celebrated by multiple environmental groups, as well as Michigan Attorney General Dana Nessel.
Chief Justice Elizabeth Clement, alongside Justices Richard Bernstein, Megan Cavanagh, Elizabeth Welch and Kyra Harris Bolden, held that EGLE had not violated proper rulemaking when issuing new general permit requirements limiting the amount of phosphorus that can be applied to land and revising setback requirements for where these feeding operations cna apply livestock waste. Justices Brian Zahra and David Viviano dissented.
The Environmental Law and Policy Center released a report earlier this year calling for stricter regulations on CAFOs, examining the various ways these operations contribute to pollution in the state.
With permitted large scale feeding operations producing 17 million more pounds a day than the state’s 10 million person population daily, many dairy and hog feeding operations use liquid manure systems and store untreated waste in liquid form in “lagoons” which are later applied to crop fields as fertilizer. The report notes that this waste often contains components that can be harmful to the environment, including detergents, antibiotics, PFAS and pathogens like E. coli.
Additionally, excess nutrients like phosphorus can lead to harmful algal blooms when this waste is overapplied or misapplied.
Nitrates, another excess nutrient found in feeding operation waste, also pose a risk to groundwater and have been linked to birth defects, miscarriage, blue baby syndrome and cancer.
When EGLE issued its 2020 CAFO General Permit, the Michigan Farm Bureau alongside multiple farmers associations and livestock farms challenged the new rules, arguing EGLE had acted beyond its authority, and failed to follow proper procedures to bring forth the new requirements under the Administrative Procedures Act.
The court ultimately found that EGLE has discretionary authority to implement additional permitting conditions stricter than those contained in the rules that had already been put forth. It also held that the conditions of the permit are not considered rules under the Administrative Procedures Act because they are not binding, instead serving as a statement of how EGLE will exercise its permitting authority.
However, the individual certificates of coverage issued to these facilities which establish the binding requirements can still be disputed in a contested case hearing, the Michigan Department of Attorney General noted in a statement.
The Department of Attorney General represented EGLE in the case, with several environmental groups filing amicus briefs in support of EGLE.
“This decision is a critical step forward in protecting our state’s invaluable water resources,” Michigan Attorney General Dana Nessel said. “While this is a significant procedural victory for environmental protection, we will continue to vigorously defend EGLE’s position and demonstrate the need for these permit conditions in contested cases.”
Since the Supreme Court issued its decision, many of the environmental groups who supported EGLE are cheering the decision, calling it a victory for water quality.
“The state Supreme Court got it right. EGLE will now be able to focus on drafting effective, science-based permits that protect Michigan’s waters, which are the lifeblood of the state’s identity and economy. We applaud the ruling and look forward to EGLE exercising the full extent of its authority to control the hazardous waste generated by concentrated animal feeding operations (CAFOs) and other industrial polluters,” Rob Michaels, a managing attorney at the Environmental Law and Policy Center said in a statement.
“Any administrative law judges or courts who may hear future permit challenges will be able to focus on the only question that ever should have mattered: whether the permit’s conditions are necessary to protect Michigan’s waters,” Michaels said.
Tyler Lobdell, a staff attorney with Food & Water Watch, said the decision will uphold the state’s ability to issue strong factory farm permits that protect clean water and public health.
While the Michigan Farm Bureau disagreed with the court’s decision, it noted the 2020 general permit is still under review.
“The 2020 permit that is at issue is still being reviewed by an administrative law judge to determine if it is based on sound science and environmental policy, and — as required by the Michigan Supreme Court’s decision — that the ‘discretionary conditions in the general permit are necessary to achieve Part 4 water-quality standards or to comply with other applicable laws,’” Michigan Farm Bureau Assistant General Counsel Allison Eicher said in a statement.
“Our goal is to ensure that state government regulates farms in a manner that protects the Great Lakes in a scientific manner, taking thoughtful consideration of input from experts, farmers and citizens,” Eicher said.
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