February 23, 2023
Lansing, MI – Eleven environmental groups late last week filed a “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.”
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.