Attorneys representing more than 100 individual farmers, along with Michigan Farm Bureau and other prominent ag groups, made their case for why the Michigan Department of Environment, Great Lakes, and Energy (EGLE) overstepped its authority in adding mountains of burdensome regulations to permitted livestock farms.
The case stems from a new National Pollutant Discharge Elimination System (NPDES) permit issued by EGLE in 2020.
MFB and the farmers argued that instead of following the language of the Administrative Procedures Act for new rules that are required to go through a legislative process, EGLE arbitrarily wrote new rules into the 2020 permit governing how large livestock operations should be regulated and went beyond its powers in doing so.
The Michigan Milk Producers Association, Michigan Pork Producers Association, Select Milk, Dairy Farmers of America, Foremost Farms, Greenstone Farm Credit Services, and Michigan Allied Poultry Association joined MFB in the legal challenge that began in June 2020 in lower courts, which has over time led to the Supreme Court hearing.
During the nearly hour-long hearing Jan. 11, the seven Michigan Supreme Court Justices heard from attorneys representing EGLE, including State Assistant Attorney General Elizabeth Morrisseau.
She said the state’s agricultural industry has simplified the permit’s new buffer requirements calling for a 35’ vegetated buffer and a 100’ manure application setback from all waterways — which goes beyond EPA requirements.
“But they've simplified it to the point that they apparently don't understand it. And they've confused everyone who they've tried to explain it to,” Morrisseau said.
“That’s sort of aggressive — but OK,” Justice David Viviano said in response to that assertion.
Morrisseau responded that “there are now three times as many CAFOs (Concentrated Animal Feeding Operations) as there used to be. They are larger and they produce more waste and more concentrated waste that they wish to dispose of in our water.
“Putting this into perspective, we are not talking about applying a small amount of fertilizer so that your crops grow, we are talking about disposing of millions of gallons of liquid waste, and millions of tons of solid waste,” Morrisseau added, comparing the volume to “more than 24-and-a-half Deepwater Horizon spills every year.”
Justice Richard Bernstein questioned EGLE’s process in adding 10 pages of new standards to the existing permit.
“I just want to focus on one key concern that I have here, which is ultimately that when you're dealing with the rule versus the license, people have the opportunity to come, they have the opportunity to explain, they can do a cost benefit, they have the opportunity to be heard,” Bernstein said.
“The concern that I have here is under your argument does that allow for folks the opportunity to be heard in the standard process that would normally be done?”
Bernstein’s concerns echo that of many farmers who are grappling with what a future would look like under EGLE’s additional, restrictive permitting, according to MFB Senior Conservation and Regulatory Relations Specialist Laura Campbell.
The 2020 permit’s new requirements include lower phosphorus application limits, hampering farmers’ ability to provide sufficient nitrogen to crops that need it.
“It also mandates 15 days advance notice before applying additional nitrogen beyond university recommendations in the case of crop stress or additional need — which makes the timeline too long to save a nutrient-deficient crop,” Campbell said.
The permit also bans the transfer of manure to other farms from January through March — a common time for farms to receive manure to prepare for spring planting — and calls for requiring permitted farms to collect private business information from the recipient for reporting to EGLE, even for recipients who are not subject to permit requirements.
Campbell said the new permit also dramatically increased reporting requirements, proposing to replace existing annual reports with a monthly schedule to monitor transfer and application dates of manure, and imposed new construction standards for poultry litter storage and new calculation requirements for liquid storage.
Zach Larsen from the Clark Hill law firm laid out farmers’ concerns to the court, detailing their argument that EGLE overstepped its bounds and referred to the Administrative Procedures Act, the Michigan law setting forward what is and is not a rule.
He also spelled out the importance of why multiple steps are required to demonstrate the need, impact, and justification for changing how people and businesses are impacted by regulation — especially small businesses, including most Michigan farms.
“Michigan farmers are simply asking our Supreme Court to hold state regulators accountable under well-established procedural law when imposing new, industry-altering rules like EGLE did here,” Larsen commented.
“The Administrative Procedures Act procedural safeguards (such as cost-benefit analysis and legislative oversight) provide a level of due process and transparency that is necessary to protect regular citizens from the whims of unelected bureaucrats. What the Court does in this case will significantly impact not only Michigan agriculture but also the broader Michigan business community.”
Michael Pattwell, who is also representing MFB and the farmers in the matter, noted, “We were pleased with the Justices’ level of engagement on these issues. And we are hopeful the Court will reaffirm its prior rulings that agencies cannot circumvent the Legislature’s prescribed process when they write binding regulations.”
While it’s impossible to know the outcome of the case with a decision likely not coming until late spring or early summer, Campbell said much more rides on this decision than just how strict EGLE can make a livestock permit without changing the rules underpinning it.
“The question of how much legal authority a regulatory agency has to set limits, standards, and requirements beyond the language of a rule is a crucial question for many businesses and people around the state,” Campbell noted.
“Essentially, just as food and agriculture are far more important to Michigan than most citizens realize, so too are the legal battles farmers and agricultural groups take on to protect the ability of farms to keep doing what they do best: producing a safe, abundant, and affordable food supply, being good neighbors, and protecting the resources around them so future generations can live and farm here.”
Watch the full hearing below.
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