Environmental advocates appeal, arguing in favor of stricter regulations on factory farms

A coalition of environmental advocacy groups is challenging a court decision striking down multiple provisions of the environmental permit regulating how factory farms in Michigan manage animal waste.

Judge Richard Garcia of Ingham County’s 30th Judicial Circuit Court ruled on June 8 that the decision to include multiple regulations that had been stripped out of the permit by an administrative law judge was in violation of due process. 

While Garcia’s decision struck down regulations added by Department of Environment, Great Lakes, and Energy Director Phil Roos in his final opinion on the permit, Garcia retained the provisions approved by an administrative law judge.

Garcia’s decision invalidated regulations including a ban on applying animal waste to agricultural land for the first two weeks of March. It upheld, however, provisions including a wintertime ban on concentrated animal feeding operations applying, selling or giving away animal waste and stricter standards on phosphorus found in soil, intended to prevent the growth of harmful algae in nearby waterways.

Michigan court strikes down parts of contested livestock waste permit

Groups including the Environmental Law and Policy Center, Food and Water Watch,  the Michigan Environmental Council, Flow Water Advocates, the Alliance for the Great Lakes, Environmentally Concerned Citizens of South Central Michigan, Freshwater Future and the Michigan League of Conservation Voters filed a petition to appeal on Monday. 

In their application, the environmental groups challenged Garcia’s determination that the Department of Environment, Great Lakes and Energy did not provide sufficient public notice when its director added terms to the final general permit. 

They argued Garcia’s ruling was in direct conflict with legal precedent, and could upend the state’s contested case procedure.

“In essence, the Circuit Court held that the contested case process — including but not limited to the Director’s review of ALJ decisions — can only delete permit terms, it cannot add new ones without repeating the initial public notice process,” the application reads.

The environmental groups also challenged Garcia’s finding that the factory farms and agricultural industry groups were denied an impartial decision maker, with Roos serving as the final authority in the permit’s contested case process.

“This argument directly conflicts with a central tenet of Michigan administrative law: the ‘presumption of honesty and integrity in those serving as adjudicators,’ which applies even where an agency conducts a ‘combination of investigative and adjudicative functions,’” the application states.

The environmental groups argue the provisions Garcia stripped from the permit are vital for protecting the state’s natural resources, with runoff from livestock waste contributing to environmental concerns like harmful algal bloom growth and E. coli contamination in waterways.

“Unless the Michigan Court of Appeals acts, Michigan’s waters will suffer from preventable CAFO pollution and members of the public will lose their right to have a voice in EGLE permitting decisions,” Katie Garvey, a senior attorney for the Environmental Law and Policy Center, said in a statement.

Zachary Larsen, an attorney with the Clark Hill law firm who represented the coalition of agricultural interest groups and concentrated animal feeding operations that initially challenged the terms of the permit, did not respond to multiple requests for comment left via email and voicemail. This story will be updated when a response is received.