In a rare rebuke to the industrial farm sector, the Michigan Supreme Court this week ruled that state environmental regulators have full authority to require big livestock and poultry operations to improve their handling of billions of pounds of manure that contributes to serious contamination of state waters.
The 5-2 decision issued Wednesday is one of the most significant environmental protection measures in Michigan in years. It comes after four years of battles between state officials and operators of poultry and hog feeding operations and large dairies over regulatory efforts to reduce agriculture-related water pollution. Farm-related nitrates and phosphorus have fouled Lake Erie and other state waters for decades.
“In the context of factory farms taking over rural areas there is, finally, recognition that regulatory bodies have authority for managing nutrient and animal waste pollution,” said Liz Kirkwood, executive director of the Traverse City-based For Love of Water, a water law and policy center that also intervened in support of the state. “It’s huge.”
The court’s decision recognizes that the Michigan Department of Environment, Great Lakes, and Energy (EGLE) not only has the power but also has the obligation under state and federal law to issue permits aimed at cleaning up Michigan’s water keeping it free of dangerous pollutants, said Rob Michaels, managing attorney of the Chicago-based Environmental Law and Policy Center, one of eight environmental organizations that filed a brief in support of the state.
A Farm Bureau setback
The ruling is a rare defeat for industrial agriculture interests, particularly the Michigan Farm Bureau, which is supported by the major state associations for milk, pork, and poultry producers. The bureau did not respond to requests for comment.
The Supreme Court ruling stems from a permit issued by EGLE in March 2020 directing the state’s largest meat, milk and egg producers to improve practices for managing manure and other wastes produced by 291 concentrated animal feeding operations, or CAFOs.
Michigan ranks sixth nationally in dairy production with 440,000 cows on 900 farms. Michigan also has 1.2 million hogs, 62 million broiler chickens, 53 million turkeys, and 65 million chickens laying eggs. The animals generate an estimated 4 billion gallons of liquid manure and 60 million tons of solid manure annually, according to EGLE. Operators are not required to treat their livestock wastes before they spread the mammoth tide of feces and urine on fields.
The intent of the new permit was to compel producers to adopt changes in storage and spreading practices that would go a bit further than previous rules for keeping untreated manure from reaching state waters. The permit included a reduction of the limit on the amount of phosphorus that may be applied to land in order to halt harmful blooms that appear every summer in Lake Erie and other state lakes. It required farms to develop 35-foot wide vegetated barriers and not spread manure within 100 feet of any surface water. And it limited the spreading of wastes during winter.
On May 27, 2020, two months to the day after the permit was issued, the Michigan Farm Bureau, six other farm associations, and 165 CAFO operators filed a formal petition with EGLE contesting the new permit.
The groups asserted the new provisions were “costly and cumbersome,” had a “tenuous relation to water quality,” are of “minimal environmental benefit,” would have “a significant adverse impact on food production,” and are unlawful because EGLE does not have the authority to issue them.
The Farm Bureau’s May 27 petition said that EGLE “has imposed these substantial costs on Michigan’s largest family farms during a time when our country’s health and economy have been ravaged by COVID-19 and our dependence on such farms to provide an abundant, stable, and healthy food-supply system is even greater than ever.”
Days later, EGLE stayed the new provisions from going into effect. The state Farm Bureau brought its arguments to two more state courts before the case made its way to the state Supreme Court in January.
Old rules not working
For this and other reasons, the three previous CAFO permits written by Michigan’s regulators had no effect on the state’s largest source of polluting nitrates and phosphorus. Monitoring stations show that concentrations of dissolved reactive phosphorus, the form of the mineral on which toxic cyanobacteria thrive, are elevated in watersheds where CAFOs are located.
There’s a reason for that. The number of CAFOs in Michigan is increasing. There are 291 today, according to state figures. That’s 257 more than Michigan permitted in 2005.
They are larger and produce more waste. In 2020, for instance, the 14 CAFOs in Lenawee and Hillsdale counties in southern Michigan — 11 dairies and 3 hog operations — spread 221.4 million gallons of liquid manure and nearly 100,00 tons of solid manure on 14,650 acres of farmland, according to the state. That’s a sizable increase from 2015, when the two counties’ CAFOs spread 170 million gallons and almost 93,000 tons on roughly the same amount of farmland.
The same trend of increasing quantities of manure is occurring throughout Michigan and in the other Great Lakes and Cornbelt states, all of which are contending with nitrate contamination and harmful algal blooms. The USDA spends $8.2 million a year on a research group — the Conservation Effects Assessment Project (CEAP) — to evaluate how well the more than $5 billion a year that the agency spends on conservation is performing. The research team is interested in soil erosion, whether farms are embracing more ecologically sensitive cultivation practices, and how much nitrogen and phosphorus drain from farm fields.
In March 2022 CEAP released its latest national assessment. It found that environmentally sensitive approaches to producing the nation’s food were being embraced by a few more farmers and that ecological damage was diminishing — with one important exception. The amount of phosphorus — especially dissolved reactive phosphorus — draining into streams was increasing. The CAEP researchers found that phosphorus applications increased to 18.6 pounds per acre on average in 2016 from 16.2 pounds in 2006. That’s a 15 percent increase.
Among the highest increases in phosphorus application occurred in Michigan, Ohio, Wisconsin and the four other states of the upper Middle West.
“The geographic separation of livestock from cropland drove a nutrient imbalance between the two,” said the report’s authors, “reducing opportunities for manure nutrients to be used productively, and creating incentives for overapplication of manure nutrients as a waste disposal solution.”
In November 2021, ELPC and other non-profit state and regional environmental organizations formally intervened in the contested case hearing. Their legal briefs aggressively countered the Farm Bureau’s arguments and made the case that the new permit is not nearly sufficient to meet water quality standards and the requirements of state law. The nonprofits called for the new permit to be substantially strengthened, including banning waste application in the winter and requiring sampling and testing of all observed discharges to surface water.
In June 2022, Dana Nessel, Michigan’s attorney general, also submitted a brief in the case that essentially argued that EGLE was well within its responsibilities and the law in issuing the permit. “Under the age-old public trust doctrine, as well as contemporary federal and state law, the Michigan Department of Environment, Great Lakes, and Energy is bound to protect Michigan’s water from harmful pollution,” said Nessel.
