Foster Swift Agricultural Law Update
Recently, the Michigan Court of Appeals upheld Administrative Rule 2196 ("Rule 2196") issued by Department of Environmental Quality ("DEQ"). Rule 2196 requires all owners or operators of Concentrated Animal Feeding Operations ("CAFO") to apply either for an individual National Pollutant Discharge Elimination System ("NPDES") permit or a certificate of coverage under a NPDES general permit. The rule also provides an administrative process by which owners and operators may obtain a waiver by proving their CAFO has "no potential to discharge" pollutants into the waters of Michigan.
A few years ago, a federal court struck down similar requirements found in a federal rule issued by the Environmental Protection Agency ("EPA"). After the federal rule was stuck down, the Michigan Farm Bureau asked a Michigan court to, among other things, vacate Michigan Rule 2196 and enjoin the DEQ from making similar rules in the future. The Michigan Milk Producers Association, Michigan Allied Poultry Industries, Michigan Pork Producers Association, Crockery Creek Turkey Farm and Four D. Farms also joined the farm bureau in its challenge.
After carefully considering the issues, the Michigan Court of Appeals rejected the Michigan Farm Bureau’s challenge to Rule 2196 and upheld the rule’s requirements. In its decision, the Court openly acknowledged that Rule 2196 would "displease" producers because it "certainly impose[d] new costs and requirements." Nonetheless, based on the Court’s decision, CAFOs are bound by the rule and must either seek a NPDES permit or exemption.
In support of its decision, the court noted that the EPA granted Michigan the authority to administer its own NPDES program, and that federal law "allows Michigan to adopt discharge standards and effluent limitations that are more stringent than the federal NPDES standards and limitations." The court also noted that under Michigan’s Natural Resources and Environmental Protection Act (NREPA) the DEQ has broad authority to protect Michigan waters from pollution, including waste from CAFOs. The Court also ruled that Rule 2196 was "rationally related to the...purpose [of preventing] the pollution of the waters of this state" noting that the regulatory impact statement citing two environmental studies supported the DEQ’s claim that the "expanded rule was needed to protect the environment."
Click here to read the full opinion. (As of April 2015, this link is no longer active)
While the Fifth Circuit’s March 15, 2011 decision benefits CAFOs on the federal level, the March 29, 2011 Michigan Court of Appeals decision upheld Michigan’s CAFO rule, which is more restrictive than the federal requirements. According to the Michigan Farm News, Michigan Farm Bureau’s Legal Counsel Andy Kok said appealing the decision to the Michigan Supreme Court is being considered, but that action would not be decided until all parties in the lawsuit were consulted. We will continue to monitor the status of this litigation and Michigan Rule 2196.