Known as Concentrated Animal Feeding Operations, the facilities confine and raise large populations of livestock.
And lawyers on both sides of the cases agree the legal landscape is expected to change even further as a result of a new federal appeals court decision that rejected the Environmental Protection Agency’s air emission reporting exemption for CAFOs.
“EPA recently estimated that there are about 19,000 CAFOs in the country and that of those, about three-quarters probably discharge into waterways and should be regulated under the Clean Water Act,” Tarah Heinzen, staff attorney for Food & Water Watch in Washington, told Bloomberg BNA.
They also say the regulatory vacuum hampers citizen suits filed under such federal statutes as the Clean Air Act and the Clean Water Act.
“This rule had been in place since 2008, and essentially the court held that Congress made it very clear that all facilities that report over a certain threshold of regulated pollutants have to report.” The ruling, unless it is overturned on appeal, could extend beyond federal cases.
State right-to-farm laws typically apply a who-was-there-first rule, and protect a farm from nuisance liability if it lawfully operated for more than a year and wasn’t considered a nuisance when it began.
“If you suddenly have a court ruling that says that many farms are not complying with the law because they’re not doing air emission reporting, that could potentially impact right-to-farm act defenses,” Janzen said.
Nuisance Suits Surge Regardless of environmentalists’ recent victories under the right-to-know law and RCRA, state-law nuisance claims, not federal environmental actions, are the bread-and-butter of most CAFO cases, some of the lawyers said.
But many cases are still pending, including dozens on a mass tort docket in the U.S. District Court for the Eastern District of North Carolina, where wholly-owned subsidiaries of Smithfield Foods are among the defendants.
848, would amend the federal statute to make clear it doesn’t govern animal or crop waste from farms.