Can a Court Compel the EPA to Protect Communities of Color From CAFO Pollution? | Civil Eats

Can a Court Compel the EPA to Protect Communities of Color From CAFO Pollution?

Only a third of factory farms have permits to discharge waste into water, soil, and air. A new legal effort from environmental groups seeks enforcement of the Clean Water Act.

During Hurricane Florence, concentrated animal feeding operations (CAFOs) like this one in Warsaw, North Carolina, flooded the surrounding community with hog waste. (Photo credit: Justin Cook for Earthjustice)

During Hurricane Florence, concentrated animal feeding operations (CAFOs) like this one in Warsaw, North Carolina, flooded the surrounding community with hog waste. (Photo credit: Justin Cook for Earthjustice)

The first time he caught a fish riddled with sores and boils, Devon Hall didn’t immediately draw the connection to the hog farms located near his home in Duplin County, North Carolina. But it didn’t take long for him to realize that the fish he had grown up catching and eating were no longer safe, likely due to the manure running off the hog lagoons located just upstream.

With more than 500 concentrated animal feeding operations (CAFOs) housing millions of pigs, Duplin County is known as the “hog capital of the world.” And its residents are paying the price: Hall hasn’t gone fishing in more than 20 years. He doesn’t even drink his own tap water for fear of contamination.

“It’s unbearable,” said Hall.

Devon Hall, executive director of REACH, is fighting against air and water pollution from the CAFOs that surround his community. (Photo credit: Justin Cook for Earthjustice)

Devon Hall, executive director of REACH, is fighting against air and water pollution from the CAFOs that surround his community. (Photo credit: Justin Cook for Earthjustice)

A petition filed today from the environmental nonprofit Earthjustice aims to help residents like Hall by changing the way CAFOs are classified under the Clean Water Act. A mountain of research over the past couple decades has shown the human and environmental health impacts of water pollution stemming from CAFOs. And yet, as many as two-thirds of the more than 20,000 CAFOs across the country are unregulated under the Act, leaving them with little to no regulatory oversight in their pollution discharge.

CAFOs and the Clean Water Act

For 50 years now, the Clean Water Act has governed water quality and pollution across the U.S. That’s done in part through an Environmental Protection Agency (EPA) permit program called the National Pollutant Discharge Elimination System (NPDES), which caps the amount of pollution an entity—such as a factory farm—can discharge.

But because CAFOs pollute intermittently—that is, when it rains heavily and their manure lagoons overflow, or they spray waste on a field for disposal—it’s harder to monitor them through the NPDES.

“Right now, EPA is using what’s essentially a self-reporting system,” said Alexis Andiman, a senior attorney with Earthjustice. “The problem there is, it’s very hard to check the CAFOs work, because EPA and state agencies just don’t have the resources to go out and figure out whether every CAFO that says it’s not discharging actually isn’t discharging.”

State agencies often require pollution permits, too, but many state-run permitting systems don’t include protections for water that are as stringent as the federal Clean Water Act.

The EPA has tried twice before to come up with rules that would ultimately increase the number of CAFOs required to obtain Clean Water Act permits. However, courts struck down the efforts in both cases, claiming the rules went beyond the scope of the Act by classifying some non-polluting CAFOs as pollution sources.

A Petition for Change

In its new petition, Earthjustice—along with the Environmental Working Group, Sierra Club, Natural Resources Defense Council and dozens of other environmental groups across the country—is following up on the EPA’s prior attempts with a specific legal suggestion. In order to regulate more CAFOs through the Act, the petitioners argue the agency should adopt a rebuttable presumption that large CAFOs using wet manure systems actually discharge pollutants. In other words, the EPA could operate under the assumption that CAFOs are sources of pollution—which would require them to get a permit—unless proven otherwise.

The EPA has tried twice before to come up with rules that would ultimately increase the number of CAFOs required to obtain Clean Water Act permits. However, courts struck down the efforts in both cases.

“Basically, [if this presumption is adopted,] the thumb is on the scale for getting a permit because we know that a permit is usually required,” Andiman said. “So, it flips the script a little bit.”

Requiring more CAFOs to get pollution permits would not only increase regulatory oversight—by capping the quantity of pollution they could emit and fining them if they surpass those caps—it would also increase transparency.

“Right now, it’s not always easy to find out where CAFOs are located, how close to your house they are, how many animals they confine, how they’re dealing with that manure,” Andiman said.

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Under the Act, that information would become more readily available, which could help neighboring communities get a better sense of what’s impacting their water (and air) quality. It could also open the door to more lawsuits against CAFOs that are violating the terms of their permit.

The EPA declined to comment on this specific petition prior to its publication, stating in an email: “We will review the petition when we receive it.”

But it’s not the only pressure the agency is under to better regulate CAFO pollution. Last week, a group led by the nonprofit Food & Water Watch sued the EPA after the agency failed to respond to a 2017 petition to strengthen CAFO pollution oversight via the Clean Water Act.

While the Earthjustice petition is narrower in legal scope, both petitions share the goal of better protecting communities from the environmental and health hazards associated with CAFO pollution.

“I think the fact that both of these things are happening really shows how urgent this issue is,” said Andiman.

Disproportionate Impact on Communities of Color

The recommendations in the petition—if adopted—would have lasting impacts on downstream communities like Devon Hall’s.

Hall co-founded the Rural Empowerment Association for Community Help (REACH) and now serves as its executive Director. Much of REACH’s work revolves around large hog facilities in the area, and Hall said he’s tried to file complaints at the local and state level and even helped some neighbors file a nuisance lawsuit against the companies behind large CAFOs. And yet, he said his Duplin County community is still dealing with unmitigated pollution, which is causing all kinds of environmental and health hazards, including high rates of asthma, lung and heart diseases and high blood pressure.

“I just feel that there’s more that can be done,” he said.

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Devon Hall speaks at a REACH meeting. (Photo credit: Justin Cook for Earthjustice)

As a mostly rural, low-income, predominantly Black community, Duplin County represents the disproportionate impact of CAFO pollution. According to a recent study, in North Carolina, the percentage of Black residents who live within three miles of a large swine CAFO is 1.42 times higher than the percentage of white residents. That trend bears out in other states with large swaths of animal agriculture, including California.

“I often tell people, for you to get a glimpse of [what it’s like to live near a CAFO], you really have to spend a day here. You hear people talking about the eyes watering and nose burning and coughing and things of that nature, but that don’t really describe it.”

“CAFO industries can have a lot of power, money, and political influence in a state,” said Arbor Quist, a postdoctoral fellow at the University of Southern California who researches environmental epidemiology and helped Earthjustice conduct research for the petition. “Certain groups—often low-income communities and communities of color—unfortunately don’t have as much political power in the state government.”

Factory farms have political sway in states like North Carolina, where the legislature has frequently protected the industry from legal battles. Meanwhile, some advocates and legislators—including in Iowa and Wisconsin—are pushing for a moratorium on CAFO expansion, claiming pollution from large farms decimates water quality, but the industry is pushing back.

That leaves communities like Hall’s vulnerable. “I often tell people, for you to get a glimpse of [what it’s like to live near a CAFO], you really have to spend a day here,” Hall said. “You hear people talking about the eyes watering and nose burning and coughing and things of that nature, but that don’t really describe it.”

The smell alone is unbearable, he said. An avid gardener, Hall can’t tend to his garden if the farm nearby is spraying manure on the fields. He can’t host barbecues or even open his windows at night. It has a big impact on his mental health, too, he said.

In its petition, Earthjustice is appealing to the Biden administration’s environmental justice goals. In addition to Duplin County, it could have an impact in communities such as the Delmarva Peninsula, the region known for producing around 7 percent of the nation’s chicken, and the large swaths of Iowa where farmers raise upwards of 23 million hogs a year.

“The presumption will better allow EPA to collect the data necessary to show that CAFOs disproportionately harm environmental justice communities—and, thereby, enable EPA to act to protect human health in those communities,” the petition states.

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It also appeals to the administration’s climate goals, as CAFOs emit high levels of methane and nitrous oxide—two of the most potent greenhouse gasses contributing to climate change. In a vicious feedback loop, CAFO pollution is also worsening due to climate change. With more intense and unpredictable storms, animal waste lagoons are more frequently flooding over, exacerbating toxic runoff into local waterways.

Climate change—and how it could make factory farm pollution worse—is front of mind for Devon Hall.

“I’ve got children and grandchildren. What am I going to do?” he wondered. “What kind of environment am I going to leave them?”

Dana Cronin is an independent audio and print journalist based in Oakland, California. She has covered agriculture and environmental issues for Illinois Public Media and Harvest Public Media, a Midwest reporting collaborative focused on food and agriculture. Her work has been regularly featured on national broadcasts, including NPR’s Morning Edition, All Things Considered, PBS Newshour and Science Friday. Read more >

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