Action supports state agency's duty to prevent excess nutrients, E. coli, & other pathogens
Photo: A harmful algae bloom causing a dead zone in Lake Erie primarily due to excess agricultural nutrient pollution.
Editor’s note: Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or (231) 944-1568.
Lansing, MI – Eleven environmental groups, including FLOW (For Love of Water) late last week filed an amicus or “friend of the court” brief asking the Michigan Supreme Court to reverse a state appellate court ruling that wrongly locks into place a failing Clean Water Act permit for industrial livestock operations that are polluting Michigan’s waters with E. coli and contributing to toxic algal blooms.
The Michigan Supreme Court is poised to decide whether to take the case of the Michigan Farm Bureau v. Michigan Department of Environment, Great Lakes, and Energy (EGLE) where the state Court of Appeals erroneously interpreted the Michigan Administrative Procedure Act. That ruling, if left unchanged, effectively wipes out two landmark environmental laws that embody the Michigan Constitution’s explicit directive to protect the State’s natural resources, which are “of paramount public concern.”
“Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result,” Zach Welcker, Legal Director, For Love of Water (FLOW).
The dispute involves the Clean Water Act permit for concentrated animal feeding operations (CAFOs), which confine thousands––sometimes hundreds of thousands––of animals in a relatively small space. As a result, they generate far more manure and other waste than they can safely dispose of. A single large CAFO annually produces one and a half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined. When not properly regulated, CAFOs cause pollution by inundating Michigan’s waters with excess nutrients (nitrogen and phosphorus), pharmaceuticals, E. coli, and other pathogens.
“The Court of Appeals ruling is wrong on the law and dangerous for clean water in Michigan,” said Rob Michaels, Senior Attorney at the Environmental Law & Policy Center, one of the groups represented in the amicus brief. “The stakes couldn’t be higher. If left standing, this ruling will handcuff EGLE from issuing clean water permits that are strong enough to protect Michigan waters from the growing dangers of CAFO pollution. The Court of Appeals ruling also imperils EGLE’s ability to issue adequate permits for other types of polluters. It turns Michigan law upside down and halts environmental protection in its tracks.”
In effect, the appellate court ruling says EGLE permits cannot contain new measures that weren’t specifically listed in the original rules when a permitting program was established. Instead, the agency has to create a new rule. But EGLE no longer has the authority to issue new rules, so this court decision freezes the agency’s current CAFO permit in place. Importantly, that permit was first issued in 2005 when the number of such industrial agricultural farms was much smaller, and the science linking CAFOs with water pollution was less well understood. EGLE’s own staff admitted the existing permit is failing to protect Michigan’s waters.
The non-profits signed on to the amicus brief are: Alliance for the Great Lakes, Environmental Law & Policy Center, Environmentally Concerned Citizens of South Central Michigan, Food & Water Watch, Freshwater Future, For Love of Water, Michigan Environmental Council, Michigan League of Conservation Voters, National Wildlife Federation, Sierra Club, and University of Detroit Mercy Law School’s Environmental Law Clinic.
Additional quotes from the above groups:
Tom Zimnicki, Agriculture and Restoration Policy Director, Alliance for the Great Lakes, said, “The Michigan Supreme Court’s ruling will be a precedent-setting decision with ramifications far beyond the 2020 CAFO General Permit. Michigan’s freshwater resources are an invaluable resource to Michigan residents and protecting them is vital for everyone in the Great Lakes Basin. If this decision stands, Michigan will be unable to adequately protect its waters for current and future generations. We urge the Michigan Supreme Court to overturn the erroneous lower court ruling.”
Tyler Lobdell, Staff Attorney, Food & Water Watch, said, “The Michigan Farm Bureau has long shown contempt for reasonable regulation of factory farms’ pervasive water pollution. This latest effort to undermine effective pollution oversight and upend environmental protection throughout the state is the latest chapter in that story. The Supreme Court must uphold EGLE’s ability to follow the science and protect Michigan waters from this dangerous industry.”
Zach Welcker, Legal Director, For Love of Water (FLOW), said, “Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result.”
Megan Tinsley, Water Policy Director, Michigan Environmental Council, said, “For too long, laws that are supposed to protect our water have given industrial agriculture a free pass and because of that, we continue to see industrial livestock operations spew manure and fecal waste into our drinking water, lakes, and rivers with no recourse. The 2020 CAFO permit was a good first step by our state decision-makers to start to hold these polluters accountable. The Court of Appeals decision was misguided and also removes one of the only tools our environmental regulators have to protect our water from CAFO waste. We urge the Michigan Supreme Court to overturn this order.”
Nick Occhipinti, State Government Affairs Director, Michigan League of Conservation Voters, said, “The Department of Environment Great Lakes and Energy (EGLE) is the State of Michigan’s lead agency in protecting our Great lakes, inland lakes, and streams from harmful industrial farm operations. This ruling directly blocks their ability to do that. We must uphold EGLE’s authority to protect our health, drinking water and water resources through enforcing permits.”
Marc Smith, Policy Director, National Wildlife Federation Great Lakes Regional, said, “Unfortunately, the Court ruling does not protect our drinking water, wildlife, communities, or our quality of life here in Michigan. We need stronger, not weaker, regulation of CAFO pollution. We call on the Michigan Supreme Court to overturn this decision and provide EGLE the authority to protect our drinking water and the entire Great Lakes from the spreading concern of CAFO pollution.”
Anne Woiwode, Chair of Michigan Chapter, Sierra Club, said, “For more than twenty years Michigan’s industrial agribusinesses have resisted every effort to require factory farms to be good corporate citizens that meet the same pollution standards as every other polluter. The industry’s efforts to undermine Michigan’s right to protect the health and well-being of our citizens and our right to clean water has to end now, and Sierra Club is proud to join with these partners to support EGLE in this case.”