USA - Pork Producers Fear Mixed Court Ruling Deals Blow Against Sound Environmental Regulation
Published:March 3, 2005
Source :National Pork Producers Council
This week’s mixed decision by the U.S. Court of Appeals for the Second Circuit in New York on the 2003 Clean Water Act rule applicable to livestock producers, both helps and hurts pork producers’ efforts to secure sound, sensible environmental regulations that protect water quality and allow animal agriculture to thrive in this country , said the National Pork Producers Council (NPPC).
“Parts of this ruling tell pork producers if you are following standard, good quality manure handling practices that you do not need a permit,” said NPPC President Keith Berry, a pork producer from Greencastle, Ind. “While this makes sense, other parts of the ruling will – without improving water quality – make it much more difficult and costly for operators to remain or enter into pork production.”
NPPC brought suit against the Environmental Protection Agency’s (EPA) 2003 final Clean Water Act rule on concentrated animal feeding operations (CAFOs) to correct problems in the rule, and this week’s ruling is in response to that suit. “Pork producers have actively worked over the last 10 years for a federal regulation that fully protects water quality using affordable, achievable and sustainable science and policies,” noted Berry. “While we feel good about certain aspects of the Court’s decision, we are really concerned that other parts of the decision could set us a long way back from the goal,” he added.
Of major concern is the Court’s decision on Nutrient Management Plans (NMPs), detailed documents that guide all aspects of manure handling to ensure that its use follows sound agricultural and environmental practice. These NMPs have traditionally entailed core, day-to-day business decisions made by CAFOs. The Court ruled that these NMPs must be explicitly included in the permit, reviewed and approved by the state or federal regulating agency, and open and available to the public for scrutiny, comment and changes.
“These NMPs have been part of our basic business operating system,” said Dave Roper, NPPC Environment Committee Chair and a pork producer from Kimberly, Idaho. “They help us do a good job of handling and applying manure, but they also reach into much of our farm’s daily business operations and decisions. We thought the 2003 CAFO rule struck a pretty good balance on the need for an NMP to help with sound manure management while preventing unwarranted and inappropriate federal and public involvement in our businesses and lives,” he added. “But under this Court ruling, opponents of the livestock industry could question operating decisions, large and small. The net effect will likely be more litigation, greater recordkeeping requirements and a slower permitting process and major delays in obtaining a permit,” Roper said. “They could try to make it far more costly or even impossible for us to operate, and I do not even want to think about what this means for new, young pork producers trying to get into this business. This Court’s ruling could give pork producers a whole new set of public and private business partners looking over our shoulders at most aspects of our businesses and trying to ‘help’ us. That does not seem legally right to us, and it certainly isn’t good public policy.”
On the positive side, in response to NPPC’s argument in this case, the court invalidated EPA’s new provision, in the CAFO rule that requires all livestock producers of a certain size to apply for a permit, the co-called ‘duty-to-apply’ provision. The Court held that "the Clean Water Act, on its face, prevents the EPA from imposing, upon CAFOs, the obligation to seek a permit or otherwise demonstrate that they have no potential to discharge." Berry said pork producers are pleased with this finding. “What the court is saying to pork producers is that our standard manure handling and application systems really can protect water quality and unless the farm ‘discharges’ there is no need for a permit,” he said. “But we will need to look carefully at this and understand the risks.”
