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April 2013 Archive for Ag in the Courtroom

RSS By: John Dillard,

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.




Court Allows Farm Bureau Suit Against EPA to Proceed

Apr 22, 2013

It looks like EPA will have to defend its position on "dust and feather" discharges.  A West Virginia federal court allowed a lawsuit that pits American Farm Bureau against EPA to proceed.  The case, Alt v. EPA, contests EPA’s authority to require Concentrated Animal Feeding Operations (CAFOs) to obtain NPDES permits on the basis that a "discharge" occurs when dust, feathers, and dander released through ventilation fans comes into contact with precipitation.  The lawsuit has national implications for livestock producers and has attracted high profile intervenors such as American Farm Bureau Federation, Waterkeeper Alliance, and the Center for Food Safety.

The last time I reported on this case, EPA had dropped its order requiring the broiler operation to obtain an NPDES permit.  EPA’s basis for withdrawing the order was that the farmer, Lois Alt, had taken steps to remedy and prevent environmental harm from her operation.  EPA then sought to dismiss the case on the basis that the lawsuit was "moot," meaning there was no longer a live controversy and further litigation would be merely academic.

American Farm Bureau opposed EPA’s motion to dismiss on the grounds that even though EPA changed course in regards to Lois Alt’s farm, it had not changed its national policy regarding whether small accumulations of dust, feathers, and dander outside CAFO ventilation fans constitute a discharge under the Clean Water Act.  American Farm Bureau argued that dismissing the Alt case would essentially allow EPA to punt instead of defending its national policy regarding CAFO regulation.

The court sided with Farm Bureau and denied EPA’s motion to dismiss.  The court reasoned that EPA could not avoid litigating the dust-and-feathers issue in this one case by voluntarily ceasing its conduct towards one farmer while it was actively pursuing the same contested actions against other farmers.

The upshot of this decision is that the court is going to keep EPA’s feet to the fire.  EPA will be forced to defend its policy of requiring NPDES permits for CAFOs on the basis of airborne emissions that come into contact with precipitation.  On the other hand, much is at stake for animal agriculture.  An unfavorable decision for agriculture could establish precedent that requires livestock producers to obtain NPDES permits.  NPDES permits are often burdensome to comply with and empower EPA and state environmental agencies with substantial control over livestock facilities.

The parties in this suit will be submitting briefs containing their arguments this summer.  I will keep you updated as developments occur.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer.

HSUS, Horse Slaughter & Paper(work) Tigers

Apr 09, 2013

HSUS intends to use a federal lawsuit over horse slaughter as a vehicle to advance a novel legal argument that could burden all slaughter facilities with additional regulatory compliance costs.  If HSUS is successful, then all animal slaughter plants would be subject to lengthy regulatory delays prior to commencing operations.

Horse slaughter, to be certain, is a contentious issue.  The issue forces us to weigh our nation's collective emotional attachment to horses against the harsh reality of a need for an outlet to control the overpopulation of horses.  Congress has wrestled with the issue as well.  Horse slaughter was effectively banned from 2007 to 2011.  Recognizing that the ban led to a dramatic increase in the number of American horses bound for Canadian and Mexican slaughter plants, Congress lifted the ban in 2011.

With no legal barriers to domestic horse slaughter, several facilities have requested USDA to provide inspectors, which will allow horse slaughter to commence.  One such facility, Valley Meats Co., filed a lawsuit in a New Mexico federal court to compel USDA to provide inspectors for their facility.  While much of the discussion of Valley Meats' suit has centered around the ethics of horse slaughter, HSUS has raised an issue that may have an impact well beyond the slaughter of horses.

HSUS intervened in the suit to oppose Valley Meats' request to begin processing horses.  In its complaint, HSUS argues that horse slaughter cannot commence until USDA considers the environmental impacts of its decision to allow Valley Meats to begin slaughtering horses.  HSUS argues that USDA is required to take this action under the National Environmental Policy Act (NEPA).

NEPA is essentially a paperwork requirement.  NEPA requires federal agencies to take a hard look at the environmental consequences of their projects before taking action.  If the federal agency determines that its actions may affect the environment, then it must conduct what is known as an "Environmental Assessment" to determine whether a proposed action would have a significant impact on the environment.  If a significant effect is found, then the agency must then conduct an Environmental Impact Study, which details potential environmental effects.  The Environmental Assessment and the Environmental Impact Study are not slight endeavors.  They take years to compile, cost millions of dollars, and the results can be contested in court after they completed. 

HSUS contends that NEPA analysis should be conducted prior to the opening of horse slaughter at Valley Meats.  Recent history suggests HSUS will file these same lawsuits at other horse slaughter facilities.  In 2007, HSUS prevailed in such a lawsuit, HSUS v. Johanns, which held that USDA failed to comply with NEPA by not considering the environmental impacts of allowing horse slaughter facilities to pay USDA on a fee-for-service arrangement to inspect horses for slaughter.

If you are confused as to how a change in a payment arrangement for inspectors has an impact on our environment, you are not alone.  The court's reasoning in Johanns is baffling. Nonetheless, HSUS used the courts and NEPA's paperwork mandate to bring about an end to domestic horse slaughter.

We cannot expect HSUS to limit its use of NEPA to barring horse slaughter.  It will certainly use NEPA to stifle and delay openings of other slaughter plants, causing many operations to never come to fruition.  The courts and Congress will do what it may with horse slaughter, but agriculture should certainly beware of HSUS and its use of NEPA as a sword against animal agriculture.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer

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