EPA agrees to regulate factory farm emissions & effluents

From ANIMAL PEOPLE, June 2010:

WASHINGTON, D.C.–Thirty-eight years after Congress told
agribusiness to clean up their act, an estimated 20,000 factory
farms may at last have to account for what they do with 500 million
tons per year of cattle, pig, and poultry effluent.
Settling a lawsuit brought in 2009 by the Natural Resources
Defense Council, Sierra Club, and the Waterkeeper Alliance, the
U.S. Environmental Protection Agency on June 1, 2010 agreed to
identify and investigate manure discharges by factory farms.
If the EPA honors the settlement, the outcome could be the
biggest economic blow to the meat industry yet, following three
years of losses attributed to rising feed and fuel costs.

“Though experts say the U.S. pork industry is showing signs
of turning around, producers have lost money in 27 of the last 29
months,” reported Bill Draper of Associated Press. Smithfield, the
world’s largest pig producer, reported a $190 million loss for the
fiscal year. “Industrywide,” wrote Draper, “the National Pork
Producers Council says hog producers have lost nearly $4.4 billion
since September 2007.” The poultry and dairy industries have also
reported steep losses.
Of concern to animal advocates and environmentalists is that
the EPA action might now be thwarted by agribusiness influence in the
current Congress. U.S. federal agencies have in the past settled
lawsuits from advocacy groups on terms favorable to the plaintiffs,
only to be exempted by Congress from honoring the settlement
agreements.
For example, in 2000 the U.S. Department of
Agriculture settled a case brought by a subsidiary of the American
Anti-Vivisection Society by agreeing to extend Animal Welfare Act
protection to rats, mice, and birds, in accord with the letter of
the 1971 law. Then two amendments to budget bills cut off funding
for enforcing the settlement and made permanent the exclusion of
rats, mice, and birds from Animal Welfare Act coverage.
Won first test
Agribusiness clout in opposition to EPA regulation, in
alliance with the fossil fuel industry, was tested in the U.S.
Senate on June 10, 2010 by a “resolution of disapproval” introduced
by Lisa Murkowski (R-Alaska) which would have prohibited the EPA from
further regulating so-called greenhouse gases that contribute to
global warming. The Murkowski resolution was defeated, 53-47,
after U.S. President Barack Obama pledged to veto it if it cleared
Congress.
But the National Cattleman’s Beef Association pledged to
“continue to fight against EPA greenhouse gas regulatory efforts,”
spokesperson Bethany Shively announced in the electronic newsletter
Cattlemen’s Capitol Concerns only moments after the Senate vote. In
addition to supporting the Murkowski resolution “and similar
resolutions introduced in the House by Represent-atives Ike Skelton
(D-Missouri) and Joe Barton (R-Texas),” Shively wrote, the National
Cattleman’s Beef Association “has taken legal action to prevent the
EPA from moving forward on greenhouse gas regulation,” including
separate cases filed in December 2009 and April 2010.
The United Nations Food & Agricultural Organization reported
in 2006 that animal agriculture contributes more greenhouse gases to
the earth’s atmosphere than any other human activity, including all
forms of transportation combined. The EPA derives authority to
regulate greenhouse gases from the 1972 Clean Air Act, a parallel
law to the Clean Water Act of the same year, which the NRDC, Sierra
Club, and Waterkeeper Alliance sued to enforce.

Deadly emissions

Historically agribusiness has been most concerned about the
Clean Water Act, but more use of the Clean Air Act to curtail
greenhouse gas emissions could raise the profile of yet another
problematic and potentially politically explosive aspect of factory
farming: there are increasing epidemiological indications that
effluents and emissions from factory farms contribute to human
mortality.
The Pew Commission on Industrial Farm Animal Production
reported in 2008 that factory farms “can be harmful to workers,
neighbors, and even those living far from the facilities through air
and water pollution, and via the spread of disease.” The Pew
Com-mission noted that “Workers in and neighbors of [these] facilities experience high levels of respiratory problems, including
asthma.”
Center for Rural Affairs cofounder Marty Strange reported
similar findings more than 30 years earlier. But now there is
considerably more documentation.
Wellesley College professor Stacy Sneeringer in 2008 reported
in the American Journal of Agricultural Economics that infant
mortality data for the years 1982-1997 suggested that doubling
livestock production in a county “induces a 7.4% increase in infant
mortality,” summarized Meredith Niles of Grist.
“Sneeringer recognized that this phenomenon is a result of
air pollution, most likely from ammonia and hydrogen sulfide,” Niles
continued. “These two gases also contribute to greenhouse gas
emissions. Hydrogen sulfide is also responsible for deaths when
farmworkers enter poorly ventilated manure containment systems and
die almost instantly. This is significant for policy,” Niles
suggested, “since most of the regulation of confinement and feeding
operations to date has been implemented under the Clean Water
Act–not the Clean Air Act.”
U.S. factory farms annually produce 130 times more excrement
than the entire human population. Much of the excrement is allegedly
disposed of in defiance of both the Clean Air Act and Clean Water
Act.
The potential applications of the Clean Air Act to animal
agriculture were not immediately recognized, but Congress in 1972
explictly identified agribusiness as one of the industries to be
regulated by the Clean Water Act. Agribusiness lobbying pressure
stalled EPA regulation of manure disposal, however, until the
Natural Resources Defense Council won a consent decree from the
agency in 1992.
In December 2000 the EPA at last proposed the long awaited
enforcement regulations, but appointees of then-U.S. President
George W. Bush amended the final rule that took effect in February
2003 by exempting factory farms from meeting water quality standards
and letting them write their own permits for manure spraying on
fields.
Calling the amended final rule “a conspiracy between a
lawless industry and compliant public officials in cahoots to steal
the public trust,” Waterkeeper Alliance president and NRDC senior
attorney Robert F. Kennedy, Jr. sued the EPA again, joined by the
Sierra Club. The plaintiffs in February 2005 won a U.S. Court of
Appeals ruling against the Bush administration action, but results
were again slow to come.
The EPA at last proposed a new rule governing manure disposal
in November 2008, but it met only one of the three main objections
that the Waterkeeper Alliance, Sierra Club, and NRDC had raised in
court.
Meanwhile the EPA and the U.S. Fish and Wildlife Service
identified livestock excrement as the biggest single cause of
declining fish populations in 60,000 miles of polluted waterways,
including 1,795 bodies of water in 39 states. Another 113,000 miles
of waterways were found to be seriously affected.
Weak as they are, the existing provisions of the Clean Water
Act pertaining to agricultural discharges were sufficient for
Manhattan federal judge Harold Baer, Jr. to rule on May 6, 2010
against Hudson Valley Foie Gras in a case alleging more than 800
violations of the federal Clean Water Act by the largest U.S. foie
gras producer. Baer enjoined Hudson Valley Foie Gras against
further violations of the Clean Water Act, recommended a fine of
$25,000 per day per offense for further violations, ordered the
company to take remedial action, and further ordered the company to
pay $50,000 for an environmental project in lieu of paying civil
penalties.
The case was one of three lawsuits brought against New York
state agencies and Hudson Valley Foie Gras in 2006 by the Humane
Society of the U.S., after the New York Department of Environmental
Conserv-ation fined Hudson Valley Foie Gras $30,000 for environmental
violations, but the state-funded Empire State Development
Corpor-ation granted Hudson Valley Foie Gras $420,000 to invest in
expanding operations.
Larger branches of agribusiness have often used the
weaknesses of the Clean Water Act enforcement regulations as a lever
against efforts to strengthen state laws governing manure disposal.
The typical argument is that if a state adopts stronger laws than the
Clean Water Act, agribusiness within the state will be put at a
competitive disadvantage against agribusiness in other states.
In New Mexico, for example, the EPA in 2007 ordered 11
major dairy producers to comply with the Clean Water Act. The New
Mexico legislature in 2009 ordered the state Water Quality Control
Commission to reinforce the federal action with stricter state
regulations. The commission is to hold hearings on the proposed new
regulations in summer 2010. The New Mexico dairy industry “contends
added expense from the regulations would cost cities, counties and
the state millions in tax revenue as dairies are forced to close or
leave,” Associated Press writer Sue Major Holmes summarized when the
draft regulations were published. This is no small threat, Holmes
continued, since “Milk is New Mexico’s top cash commodity,
producing more than $1.36 billion in 2008, according to the state
Department of Agriculture.”

“Atomic bomb”

Pig producers nationwide are even more concerned about
stronger anti-pollution standards. Of the 67,000 pig farms in the
U.S. today, more than 34,000 send at least 5,000 pigs per year to
slaughter. The volume and noxiousness of the manure from pig farms
has provoked more litigation than discharges from all other farming
combined.
The Waterkeeper Alliance and Sierra Club have brought
numerous cases against pig farm pollution, but the attorneys most
active against pig producers are reputedly Charlie Speer of Missouri
and Richard H. Middleton, Jr. of Georgia. Speer and Middleton in
April 2009 cofounded a nonprofit law firm called the Center to Expose
& Close Animal Factories.
Meanwhile Speer alone has reportedly won almost $10 million
since 1999 from Premium Standard Farms and PSF affiliates. His
biggest win was a $1.1 million settlement obtained for Ed and Ruth
McEowen, of Cedar County, Missouri, in July 2009.
“The case revealed that one of the six barns constructed for
the hog confinement and feeding operation was built without a
required construction permit,” summarized Wally Kennedy of the
Joplin Globe. “The barns were built closer than 1,000 feet to the
McEowen’s home, in clear violation of regulations maintained by the
Missouri Department of Natural Resources,” Kennedy continued, and
operated for six years before obtaining required operating permits.
The settlement enjoined contract pig farmers Douglas and
Edith Mullings, the pig farming companies North View Swine and
Tri-County Swine, the Missouri Farmers Association, which supplied
pigs to the companies, and the Missouri Farm Bureau, which insured
the operation, against “any future odor releases that might
negatively impact the McEowens,” Kennedy wrote.
“This is basically an atomic bomb when it comes to this type
of case,” exulted Speer. “There are over 400 nuisance cases like
this one pending in Missouri, including 50 in Southwest Missouri,”
Speer told Kennedy. “This $1.1 million settlement,” Speer
predicted, “sets the bar for future settlements.”
But the Missouri Supreme Court in the same week denied an
appeal by the Richland Township Board of Directors against a ruling
by a three-judge panel of the Missouri Court of Appeals against the
township’s attempt to regulate land use by pig farms.
A year later, in April 2010, a different three-judge panel
of the Missouri Court of Appeals overturned the effort of the
Missouri Parks Association and the village of Arrow Rock to prevent a
pig farm from expanding in the vicinity of the village. Arrow Rock
was in entirety designated a National Historic Landmark in 1964.
Yet another legal showdown over pig excrement is imminent,
predicted Draper of Associated Press in May 2010.
“Hog processing giant Premium Standard Farms spent $40
million over the last decade developing technology,” Draper
explained, “after a court ordered it to sharply reduce odors at its
Missouri farms. A panel of experts recently approved a barn-scraper
system that met goals established under a 1999 court settlement with
environmental groups. But the deadline to implement the system is
July 31, 2010 and the company–which said it had little success
developing the technology until now–needs another two years to get
the system in place. Missing the deadline would allow the state to
sue.”
Premium Standard Farms in 2004 won a six-year extension of
the original deadline for compliance. Premium Standard keeps about
97,000 sows in Missouri, and sends about 1.8 million market hogs per
year to slaughter from Missouri properties.