July 31, 2024: Michigan Supreme Court affirms EGLE’s authority to issue General Permit with stronger conditions for factory farms
Traverse City, Mich.— FLOW applauds the Michigan Supreme Court’s decision yesterday, rejecting the Court of Appeals’ dangerously flawed ruling in Michigan Farm Bureau v. Michigan Department of Environment, Great Lakes, and Energy. Unsatisfied with permit terms that have allowed their industry to pollute Lake Huron and Lake Erie to such an extent that, at one point, the City of Toledo had to shut down its municipal drinking water intake 2.5 miles from shore, Farm Bureau – the lobbying arm of an insurance agency – and its allies had sued to block slightly firmer permit standards.
The lower court held that EGLE’s 2020 Clean Water Act General Permit for Confined Animal Feeding Operations (CAFOs) should have been challenged by Farm Bureau as an unpromulgated rule. The General Permit is an environmental compliance document developed by EGLE, whose terms CAFOs agree to abide by under a Certificate of Coverage. Affirming this ruling would have meant that EGLE could never tighten its CAFO General Permit, because in 2006 the Legislature stripped EGLE of its authority to enact new water protection regulations. A bill is pending in the current Legislature to restore that vital governmental function.
Thanks to this protracted litigation, factory farms have enjoyed an additional four years of lax regulation, continuing to dump pollution into Michigan’s ground and surface water.
Now the Michigan Supreme Court has held that EGLE acted within its authority to amend the CAFO General Permit. Stronger permit terms will take effect immediately. Litigating every attempt to reduce factory farm pollution is standard procedure for Farm Bureau and industrial ag, but this time, thanks to Michigan’s spirited defense of our freshwater heritage, they failed.
FLOW has vigorously supported AG Nessel and EGLE in their defense of the 2020 permit, including submitting an amicus curiae (friend of the court) brief to the Michigan Supreme Court in partnership with the Environmental Law and Policy Center, the Michigan Environmental Council, the Environmentally Concerned Citizens of South Central Michigan, Freshwater Future, Food and Water Watch, the Michigan League of Conservation Voters, and the Alliance for the Great Lakes.
FLOW looks forward to prompt issuance of a more protective 2025 CAFO General Permit, so that Michiganders may begin to make up some of the ground lost on water quality due to this procedural odyssey. FLOW and its many supporters and allies remain committed to this goal, and we are grateful for the leadership of AG Nessel, Gov. Whitmer, and EGLE in this fight.
Thank you to all the groups that worked together to submit the amicus curiae brief for this case. Happy to learn about the Court’s ruling on this case.
Excellent result even if the court’s reasoning is bit perplexing. Keep the pressure on… let this be a data point on a trend line that bends ever more clearly toward putting water first in public policy making.