By Keith Schneider
For decades, Americans have mostly turned a blind eye to the industrial-scale livestock production operations that churn out cheap supplies of meat and dairy for the masses. Occasional opposition to local pollution problems and the casual animal cruelty that characterize conventional US dairy, hog, and poultry production did little to alter practices that have become embedded in the rural landscape.
But that may be changing. A new wave of frontline resistance is now breaking across the Upper Midwest and around the country as organized campaigns aimed at regulating concentrated animal feeding operations, known as CAFOs, are being felt at every level of government, and in state and federal courts.
Opposition to large livestock operations is more intense than at any time in recent memory, say environmental advocates.
“It’s been building and building,” said Rob Michaels, an attorney for the Environmental Law & Policy Center (ELPC), a Chicago-based legal group working to limit CAFO manure discharges in Ohio and Michigan. “It’s now being raised as a political issue. As a legal issue. As a legislative issue.”
On October 19, the 9th US Circuit Court of Appeals issued a ruling that lends legal muscle to a five-year old petition that Food & Water Watch and 36 allies filed to compel the US Environmental Protection Agency (EPA) to issue new rules that limit discharges of CAFO wastes into waters. The court said the plaintiff’s petition “raises issues that warrant an answer” from the agency. A Food & Water Watch attorney said the Justice Department has been in touch to schedule a negotiating meeting.
A week later, Earthjustice, a nonprofit public interest law group, and 50 allied non-profit and citizen organizations from around the US filed a separate petition calling on the EPA to improve its oversight of water pollution from CAFOs. The groups pointed out that while large CAFOs make up less than 1% of farms in the US, the animals confined at the industrial facilities produce approximately one-third of all manure from farms nationwide, and a single large CAFO can generate as much waste as a city.
An EPA spokesman said the agency would not comment on the legal filings.
Calls for moratoriums on new CAFO construction are being heard by legislatures in Iowa, Missouri, Minnesota, and Wisconsin. Counties in South Dakota and Arkansas have issued local moratoriums. The Missouri Supreme Court is set to decide, perhaps by the end of the year, whether counties can regulate CAFO development through local public health ordinances.
At least five Wisconsin counties and three towns have enacted temporary moratoriums, and one county is considering imposing a local ordinance next year. Last year the Wisconsin Supreme Court affirmed the authority of the Wisconsin Department of Natural Resources (DNR) to restrict large livestock farms to protect the state’s water, a rebuke to a 2011 state law that limited the DNR’s authority to regulate CAFOs.
A study for the Wisconsin Legislature made public in October found that the number of private wells contaminated with nitrates or E.coli, the intestinal bacteria, was expanding steadily and identified the source as agricultural discharges.
The EPA has identified more than 21,000 large CAFOs across the country but just 6,266 of those operate with wastewater discharge permits under the Clean Water Act designed to control and restrict pollutants discharged into waterways, according to the EPA. CAFOs are the only types of industrial polluting facilities not required to treat their wastes.
In Iowa, where almost 4,000 CAFOs operate, nearly every mile of streams and acre of surface water is impaired by nutrients or E. coli. Just 167 Iowa CAFOs have wastewater discharge permits, according to the EPA.
In 2016, the EPA identified phosphorus and nitrogen discharges from U.S. farmland as “the single greatest challenge to our nation’s water quality.”
“EPA is weak on regulations on CAFOs,” said Emily Miller, a Food & Water Watch attorney. “Only a fraction have permits and the permits that do exist are just simply ineffective.”
Harmful algal blooms caused by phosphorus discharges from CAFOs now contaminate many of America’s iconic waters, among them Chesapeake Bay, Lake Okeechobee, Lake Champlain, California’s Clear Lake, and Lake Erie.
“Somewhere between 88% and 94% of the problem is caused by these CAFOs, these megafarms and their nutrient nonpoint source runoff. Everyone knows it,” said Toledo, Ohio Mayor Wade Kapszukiewicz. In 2014, Toledo was forced to shut down its drinking water plant for three days because of algal bloom-generated toxins. Half a million residents lost their drinking water supply temporarily.
CAFO opponents know full well that changing the regulatory rules of the CAFO game is a fierce, ongoing struggle. Politically powerful farm groups led by the American Farm Bureau Federation and its allies in the various state and national dairy, pork, poultry, and beef associations have a long history of victories on this front.
In 2003, in response to a lawsuit brought by Natural Resources Defense Council and Public Citizen, the EPA issued a new rule that obligated CAFOs to apply for discharge permit unless they could demonstrate that they had “no potential to discharge” damaging nutrients. That rule was challenged by livestock operators, and struck down by a federal court.
The EPA tried again with a new rule in 2008 that limited the permitting obligation to CAFOs that “propose to discharge” wastes. But in 2011, in a case brought by the National Pork Producers Council and other farm groups, again a federal court struck down the measure. In both cases, plaintiffs argued the law didn’t give the agency authority to regulate “potential” or “proposed” sources of pollution.
Nevertheless, the activists pressing EPA for new action on CAFOs are optimistic.
“The EPA under its current leadership acknowledges that what we’ve asked for needs to happen,” said Amy van Saun, a senior attorney for the Center for Food Safety, which is a party to the 2017 petition. “I don’t think they have any legal way to say no.”
The American Farm Bureau Federation declined to comment. The National Milk Producers Federation issued a statement saying regulation of CAFOs requires “a responsible approach, which sometimes isn’t the case among environmental activists who seek to use regulations to reduce the availability of animal protein products for consumers.”