Appellate court says three challenged conditions invalid



(The Center Square) – Thousands of poultry, hog and cattle farms in North Carolina were delivered a legal victory Tuesday by the state Court of Appeals.

Lagoon and sprayfield systems are quite common for all, and the state’s Department of Environmental Quality had three General Permit conditions that Jake Parker of the North Carolina Farm Bureau Legal Foundation says needed to be challenged in order to hold DEQ “accountable for violating North Carolina’s Administrative Procedure Act.”

Justices Jeffery Carpenter, John Tyson and Fred Gore were unanimous overturning a June 20, 2022, decision by Judge Mark Sternlicht in Wake County Superior Court.

“Today’s ruling,” Parker wrote in an email to The Center Square, “was a good day for North Carolina’s farm families, but we have a lot more work to do in the courts to make sure our farmers can continue to feed and clothe people here in North Carolina, the United States, and around the globe.”

The three-judge panel said the three challenged conditions in general animal-waste permits are invalid because they did not come through the Administrative Procedure Act’s rule-making process. A second part of the litigation was related to a settlement agreement and influence on the Division of Water Resources creating those three conditions challenged; because they are invalid, the judges said that part need not be addressed.

“The permits contained three conditions that would impose significant regulatory and financial burdens on farmers, but the conditions weren’t adopted as rules before they were included in the permits,” Parker wrote. “As a result, DEQ was able to get around the APA’s rulemaking process, which provides important procedural protections, including, among others, an analysis of the conditions’ economic impact on farmers.”

On its website, the Farm Bureau Legal Foundation explained why it took a case to court, a step away from its usual role of defending laws.

“We believe DEQ’s developed the permits after agreeing to a legal settlement with nonprofit groups that oppose the permits,” the foundation says. “NCFB doesn’t typically file lawsuits – we usually defend laws, but we were very concerned about how the permits were put together and felt that we had to take the issue to court.”

Parker says an appeal of this decision could happen.

“The Court of Appeals decision, if it holds, means permit conditions like the ones at issue here must be supported by properly adopted rules before they can be included in future animal waste permits,” Parker wrote. “That’s a good thing because the rulemaking process, while burdensome for the agency, provides meaningful procedural rights for the regulated community and general public.”

Of the chance the environmental groups and the state’s attorney general could appeal, Parker said, “DEQ is also renewing the animal waste permits for another five years. Drafts of these new permits contain the same three conditions. With today’s ruling, Farm Bureau hopes DEQ will take these conditions out of the final version of the renewed permits. If not, Farm Bureau may have to go to court again to protect the interests of its farmer members. Hopefully, things won’t come to that.”

Parker added, “Unfortunately, it seems North Carolina’s farmers and agribusinesses will continue to face lawsuits from groups that don’t like their farming practices. We saw it with the farm nuisance lawsuits against Smithfield Foods and there are currently numerous challenges pending in state and federal courts relating to environmental laws that impact farmers.”

North Carolina’s national ranks in production are second in turkeys, third in hogs, fourth in broilers, 25th in beef cattle and 28th in dairy cattle.

The North Carolina Pork Council, on its website speaking of the lagoon and sprayfield system, says it “remains the most sustainable manner for us to manage our farms.” It was a mandate from lawmakers in 1994, when Democrats held a trifecta – party in governor’s office, party of majority in the Senate and House of Representatives – in state government.

On the state’s Extension Office website, the lagoon and sprayfield system is explained. It says more than 2,200 swine operations “rely on this manure management system” in the state.

Concentrated animal feeding operations “produce millions of gallons of manure (urine, feces, and water used in the production process) each year, which are flushed from swine barns to lagoons where manure is stored and treated,” the Extension Office says. “Manure contains nutrients and digested organics that require careful management.”

Manure is stored in open-air lagoons on the property, capable of holding millions of gallons of animal manure.

“These lagoons allow the flushed manure to separate into settled solids that decompose in the lagoon underneath a liquid layer,” the Extension Office said. “The liquid layer contains decomposed dilute organic matter, soluble nitrogen, and phosphorus. This liquid is typically applied as fertilizer to crop and grass fields, with part of the liquid recycled for use in flushing the barns.”

The liquid is land-applied in spray irrigation systems. Crops grow on these sprayfields “in order to uptake the nutrients contained in the manure.”

The respondent-appellant in the case was the North Carolina Farm Bureau Legal Foundation, represented by Parker, Steven Woodson and Stacy Revels Sereno. Petitioner-appellees were state Attorney General Josh Stein, represented by Special Deputy Attorney General Marc Bernstein and Assistant Attorney General Taylor Hampton Crabtree; the Southern Environmental Law Center; and the North Carolina Environmental Justice Network.



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