Cleaning Up Factory Farms

By J.R. Pegg, Environment News Service. Posted March 2, 2005.

The Bush administration's regulations to limit water pollution from factory farms violate the Clean Water Act and must be revised, a federal appeals court ruled Monday. The court found the regulations failed to ensure that factory farms would be held accountable for discharging animal wastes into the nation's waters.

The ruling, released Monday by a three judge panel of the 2nd U.S. Circuit Court of Appeals in New York, is a major victory for environmentalists who filed suit against the February 2003 rules. Robert F. Kennedy Jr., president of the Waterkeeper Alliance and an NRDC senior attorney, called the regulations the "product of a conspiracy between a lawless industry and compliant public officials in cahoots to steal the public trust."

"I am grateful that the court has taken the government and the barons of corporate agriculture to the woodshed for a well-earned rebuke," Kennedy said.

The U.S. Environmental Protection Agency (EPA), which issued the rules, was not available for comment on the ruling.

The decision continues a long-running battle over how to regulate factory farms -- known as concentrated animal feeding operations (CAFOs). CAFOs have emerged as the dominant force in the modern production of agricultural livestock as the size of livestock operations has grown over the past two decades. These operations produce some 500 million tons of animal waste annually -- disposal and storage of this waste presents serious risks to public health and the environment.

CAFOs often over-apply liquid waste on land, which runs off into surface water, killing fish, spreading disease, and contaminating drinking water supplies. Waste can leak onto the land and into groundwater and drinking water supplies from the massive waste storage units on the farms.

Three decades ago the U.S. Congress identified CAFOs as point sources of water pollution to be regulated under the Clean Water Act's water pollution permitting program. The 2003 rule aimed to implement that decision -- it applies to some 15,500 livestock operations across the country.

Large CAFOs are defined in the regulations as operations raising more than 1,000 cattle, 700 dairy cows, 2,500 pigs, 10,000 sheep, 125,000 chickens, 82,000 laying hens, or 55,000 turkeys in confinement.

The regulations require these operations to apply for discharge permits under the Clean Water Act every five years and develop nutrient management plans to manage and limit pollution -- or otherwise demonstrate that they have no potential for discharge.

The Bush administration said the rules balanced environmental protection with the concerns of a competitive and economically important industry. But the court described the regulations as "arbitrary and capricious" and said the Clean Water Act "demands regulation in fact, not only in principle."

The court determined the rules illegally allowed permitting authorities to issue permits without reviewing the terms of CAFO plans to manage and limit pollution.

"The CAFO rule does nothing to ensure that each large CAFO will comply with all applicable effluent limitations and standards," the panel wrote in its 65-page ruling.

The rule also "deprives the public of the opportunity for the sort of regulatory participation that the Act guarantees because the rule effectively shields the nutrient management plans from public scrutiny and comment," the judges wrote.

The panel agreed with environmentalists who argued that the regulations violate federal law because they do not ensure that permits contain specific limits on the amount of pollution CAFOs can discharge.

"To accept the EPA's contrary argument -- that requiring a nutrient management plan is itself a restriction on land application discharges -- is to allow semantics to torture logic," the court said.

The agency also failed to require factory farms to use the necessary technological controls to reduce bacteria and other pathogens from their pollution, according the ruling.

"The court agreed that there is a better way than the Bush administration's plan," said Eric Huber, a Sierra Club attorney. "When technology and existing law can keep animal waste out of our rivers, why should Americans have to settle for a plan that puts polluters before the public?"

J.R. Pegg is Washington D.C. Bureau Chief for Environment News Service.

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