(The Center Square) – The Michigan Supreme Court sided with the Department of Environment, Great Lakes, and Energy regarding the authority of the agency to issue stricter water pollution permits.
The Wednesday decision green lighted EGLE’s 2020 General CAFO Permit, which tightened environmental regulations on how industrial livestock facilities discharge waste. Animal waste, which many farmers use as fertilizer, includes high concentrations of nitrates and phosphorus that can contaminate nearby waterways.
“This decision is a critical step forward in protecting our state’s invaluable water resources,” Michigan Attorney General Dana Nessel said. “While this is a significant procedural victory for environmental protection, we will continue to vigorously defend EGLE’s position and demonstrate the need for these permit conditions in contested cases.”
The waste procedures for these Concentrated Animal Feeding Operations, or CAFOs, are regulated under the National Pollution Discharge Elimination System permitting program. The case plaintiffs–the Michigan Farm Bureau, joined by a collection of CAFOs and industry groups–had challenged the updated 2020 permit as unlawful rulemaking.
The court disagreed, finding that EGLE has the authority to develop more protective permit conditions than those found in the rules, given that there is a distinction between licenses and rulemaking.
“Neither the general permit nor the discretionary conditions therein can have the force and effect of law, and so they cannot be “rules” as defined by the APA,” the court stated. “They can be only a statement explaining how EGLE plans to exercise its discretionary permitting power or a statement explaining what conditions EGLE plans to prove are necessary to achieve applicable Part 4 water-quality standards or to comply with other applicable laws and regulations in adjudications involving a CAFO.”
The United States Department of Agriculture has recognized CAFOs can “generate environmental and health risks for society, as industrialization concentrates animals and animal wastes in localized areas,” as well as hurt Michigan’s tourism industry by forcing the state to spend millions in waterway cleanup.
