Court sides with Michigan regulators in poop dispute with big farms

• The state’s top court on Wednesday sided with the state in a case with far-reaching implications for Michigan’s pollution regulations
• The case stems from a 2020 permit update that required large livestock farms to better control manure pollution
• Farm groups argued the changes were too sweeping and should have included an outside review

The Michigan Supreme Court this week sided with regulators in a lawsuit over manure pollution that could have had broad implications on the state’s ability to take measures to protect the environment.

In a 5-2 decision on Wednesday, the court ruled that the Michigan Department of Environment, Great Lakes and Energy was free to ramp up pollution controls on factory farms without going through a lengthy rulemaking process.

The case stemmed from a 2020 update to Michigan’s waste disposal permit for confined animal feeding operations, which are large livestock operations where hundreds or even thousands of animals are raised in close quarters, generating copious amounts of manure and urine.

Michigan’s largest 290 CAFOs generate more feces and urine than the state's human population. The waste from animals is often spreading on farm fields as fertilizer, which can oversaturate fields and pollute waterways with bacteria and nutrients.

RELATED: 

• Supreme Court poop dispute could have big impact on Michigan environment
• Michigan farm industry pushes back against state limits on manure spread 
• Michigan farm czar: Our fight against Lake Erie pollution isn’t working

Alarmed that the waste was polluting waterways including Lake Erie, the state Department of Environment, Great Lakes and Energy added new requirements in 2020 to limit that runoff, which farm operators contended were too expensive.

A coalition led by the Michigan Farm Bureau mounted an administrative challenge in May 2020, and then followed three months later with a lawsuit that eventually made its way to Michigan’s highest court.

The Farm Bureau contended that the state can’t update the permit without going through a lengthy rulemaking process that requires legislative consent.

The catch: A 2004 law bars EGLE from making almost any new water quality rules. That means a ruling favoring farming interests could have left the state powerless to rein in CAFO pollution at all.  

Environmentalists feared a precedent that would gut state regulators’ ability to address a host of environmental issues, from farm pollution to factory discharges.

Farmers, in turn, contended they simply wanted more checks on authority. 

But in a decision Wednesday written by Chief Justice Elizabeth Clement, the court’s majority rejected the farm group’s arguments.

“We hold that neither the general permit nor the challenged conditions in it are ‘rules’ under the APA,” wrote Clement, who was first appointed to the court by Gov. Rick Snyder, a Republican.

That means anyone challenging the permit needs to exhaust administrative appeals before they have the right to a court challenge.

Environmental groups applauded the ruling. Many of them have long pushed for EGLE to enact tougher farm pollution regulations. 

“Today’s decision is a victory for clean water in Michigan and sensible regulation of a dangerous industry,” said Tyler Lobdell, staff attorney for Food & Water Watch, a Washington, D.C.-based nonprofit. 

The Michigan Farm Bureau did not immediately respond to a request for comment.

The Legislature is considering bills that would restore EGLE’s water quality rule-making power.