A hog CAFO in eastern North Carolina. (Photo: Rick Dove)
This article originally appeared on Inside Climate News, a nonprofit, non-partisan news organization that covers climate, energy and the environment. Sign up for their newsletter here.
The North Carolina Supreme Court seemed to side with the agriculture lobby last Wednesday in a hearing for a case whose outcome could nullify key environmental, civil rights and public health protections for neighbors of the state’s 2,000 industrialized livestock farms.
If the justices uphold an appellate court’s decision in favor of the N.C. Farm Bureau Federation, the N.C. Department of Environmental Quality would not be allowed to enforce three provisions in the state’s general permits for concentrated animal feeding operations that were forged as part of a civil rights settlement.
Instead, those three requirements for certain farms—groundwater monitoring, annual reporting and soil testing for phosphorus loss—would have to go through a more extensive rule-making process led by the Environmental Management Commission.
The EMC is composed of political appointees, whose appetite for regulation varies.
“This case presents a foundational question of administrative accountability whether state agencies may sidestep the safeguards of rulemaking by imposing sweeping regulatory mandates through general permits,” the Farm Bureau Federation attorneys wrote in court documents.
The case stems from several settlement conditions contained within a 2014 civil rights complaint. Lawyers for several environmental justice groups and neighbors of industrialized hog farms had filed a complaint with the U.S. Environmental Protection Agency, alleging that DEQ, by issuing general permits without adequate protections, disproportionately burdened people of color and low-income residents, who are more likely to live near the farms.
Most of the state’s concentrated animal feeding operations, or CAFOs, hold a general permit, which applies to a class of operations. A smaller number have individual permits, whose conditions are tailored to specific farms. DEQ renews and, if necessary, revises general permits every five years, after several public hearings and opportunities to comment.
As part of the settlement, DEQ incorporated three conditions in a 2019 general permit.
All CAFOs must file a two-page annual report summarizing information from existing records, such as the number of animals, permitted lagoons and acres on which waste is applied. CAFOs whose lagoons or waste collection systems lie within a 100-year flood plain must conduct annual groundwater monitoring; this accounts for fewer than 3 percent of general permit holders, according to DEQ. Based on soil testing, some CAFOs would have to measure phosphorus loss from their fields where animal waste is applied. This requirement would affect roughly 5 percent of CAFOs.Groundwater monitoring is important because runoff or leakage from enormous hog waste lagoons can seep into private drinking water wells or rivers and streams. Annual reporting, environmental groups argued, can detect problems at the CAFOs sooner.
Phosphorus loss tests are key because they can indicate erosion or runoff from the farms, which in turn can create harmful algae blooms in waterways.
This map shows the locations of all permitted concentrated animal feeding operations in North Carolina. In total, these farms raise 86,000 cattle and cows, 9.45 million swine, and 7.19 million poultry where the animal waste is stored and applied as a liquid. The map does not show the millions of poultry on farms that use dry waste systems; those farms aren’t required to obtain a permit. (Credit: N.C. Department of Environmental Quality)The N.C. Farm Bureau Federation contested those aspects of the general permit before an administrative law judge, who ruled in its favor.
DEQ appealed to Wake County Superior Court, which reversed the administrative law judge’s ruling. The Farm Bureau subsequently won in state appellate court.
For 28 years the state legislature has enacted and revised statutes allowing DEQ and other agencies to write and issue general permits without going through rulemaking, a process that can take years.
Only if a provision has “general applicability” does it need to be a rule.
Associate Justice Trey Allen, a Republican, agreed that state lawmakers granted some permitting authority to state agencies, but said “it’s difficult for me to believe GA’s intent was to enable the agency to avoid rulemaking.”
“These permit conditions do not have general applicability,” said Taylor Crabtree, an attorney with the N.C. Department of Justice representing DEQ. Even though the permits are “general,” farmers can apply for an individual permit instead, Crabtree said, and potentially avoid the three provisions in dispute.
State law also requires every requirement in a general permit to tie back to a specific condition or statute, which the three provisions achieve, Crabtree said.
DEQ’s actions for the three provisions, Republican Associate Judge Richard Dietz said, “sound like rulemaking.”
Dietz said that while the legislature has the authority to delegate some rulemaking to the executive branch, such as DEQ, that power has limits, such as procedural safeguards.
A farm can still challenge the permit conditions in court, Crabtree told the justices. “It’s not accurate to say this regime has no procedural safeguards.”
Jacob Parker, attorney for the Farm Bureau Federation, argued without the guardrails of formal rule-making, “an agency can go off into its black box and make decisions” about what to include in permits, “which we contend is what sort of happened here with the sue and settle issue.”
The “sue and settle issue” is the 2014 civil rights complaint against DEQ, which the EPA determined was valid. The EPA directed DEQ and environmental groups to enter confidential mediation, but those talks broke down in 2016, when agency officials in a conservative administration allowed the NC Pork Council to attend a confidential mediation session. ??
Attorneys for the neighbors and environmental groups asked the pork industry representatives to leave the building. Instead they stayed in the hallway near the mediation room during the talks, according to a second complaint, a move that neighbors alleged was a form of intimidation.
The EPA found the second complaint to be valid and wrote in a letter to DEQ that it had “grave concerns” about the incidents.
Two years later, under new DEQ Secretary Michael Regan, the parties reached a settlement. Regan went on to become EPA administrator under President Joe Biden.
Parker, the Farm Bureau Federation attorney, told the court today that “absent the farm interests, we ended up with a draft swine permit with conditions that had not been adopted as rules.” Unlike rules, the conditions contained no fiscal note, so farmers didn’t know how much compliance would cost, Parker said.
Associate Justice Anita Earls, one of two Democrats on the bench, asked about the possible ramifications on DEQ’s other 21 general permits as well as all state agencies. “If we were to say the conditions for the permitting process here have to go through rulemaking … would these extend beyond DEQ?”
Crabtree, the DEQ attorney, replied that if the scope of the opinion is broad, it could affect all state agencies that issue general permits. “It would work a great deal of uncertainty into the system,” Crabtree said. In that case, any statutory clarifications should fall to state lawmakers, he said. “If there’s a change, it’s an argument for the General Assembly, not the courts.”
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