Split Appeals Court sides with N.C. Farm Bureau in animal waste regulation dispute | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The N.C. Court of Appeals has issued an order blocking new state animal waste regulations as a legal dispute moves forward. The N.C. Farm Bureau Federation had requested the order. The group is fighting new rules from the state Department of Environmental Quality.

    The case could have implications for more than 2,000 N.C. farms with hogs, cattle, and poultry. The farms use a "lagoon-and-spray-field system" to address animal waste.

    The order issued Wednesday blocks a lower court ruling that would have allowed the disputed rules to take effect. That June 20 decision is stayed "pending the resolution of petitioner's appeal."

    Judges made their decision "by majority vote," meaning a 2-1 split. Appeals Court rules will keep the judges' names secret for 90 days.

    A unanimous Appeals Court panel had issued an order Sept. 15 granting a temporary stay to the Farm Bureau.

    "In this case, Farm Bureau challenges the validity of three identical conditions that appear in three general permits that regulate certain animal waste activities that occur on the State's cattle, swine, and wet waste poultry farms," according to the Farm Bureau's petition to the Appeals Court. "Specifically, Farm Bureau contends that DEQ's inclusion of the three conditions in the permits (i.e., groundwater monitoring, phosphorus loss assessment tool analysis, and the filing of annual reports) violates North Carolina's Administrative Procedure Act."

    "If imposed, the three conditions will require Farm Bureau's farmer members who hold animal waste general permits to incur additional production and operational costs, comply with unnecessary and burdensome administrative requirements, restrict the use of their property, and invade the privacy of their business operations, including increasing the likelihood of disclosure of their confidential and other protected commercial business information," according to Farm Bureau attorneys.

    "Once the conditions are enforced, the resulting harm cannot be undone. Farmers cannot recover the cost of installing wells or acquiring new fields from the State, and confidential information, once disclosed, is not easily retrieved, if it ever can be."

    The Farm Bureau started the legal fight in 2019. It argues that the disputed conditions were rules that should have proceeded through the state's standard rule-making process, as set out in the APA. The Farm Bureau also argues that the conditions first appeared in a "draft swine general permit that DEQ developed behind closed doors with several nonprofit organizations." The complaint contends that DEQ never subjected that draft permit to mandated public review and comment.

    The Office of Administrative Hearings issued rulings in the case favoring the Farm Bureau, but a Superior Court judge revived the disputed conditions after state officials appealed. The N.C. Environmental Justice Network and N.C. NAACP also have intervened in the case to defend DEQ's position.

    "Farmers who operate under the animal waste permits will sustain irreparable harm if this Court fails to stay DEQ from enforcing the three conditions pending appeal," Farm Bureau attorneys argued. "Once enforced, the three conditions will make it more difficult for farmers to compete in the marketplace, make a profit, attract additional investment, and stay in business."

    The new conditions require "substantial capital and operating costs" and a larger regulatory burden, the Farm Bureau argued. "The increased costs to comply with the three conditions could not come at a worse time as the State's farmers struggle with the very real impacts that inflation and increased fuel costs are having on their operations."