Opponents of Oklahoma attorney general Drew Edmondson’s lawsuit against poultry companies are studying a July 30 ruling from the U.S. Court of Appeals for the 2nd circuit to determine what impact it might have on the Oklahoma lawsuit.
In that ruling the federal appeals court ruled that animal waste runoff from concentrated animal feeding operations (CAFO’s) cannot be subject to the Resource Conservation and Recovery Act (RCRA) because the discharges are already regulated under the Clean Water Act.
The potential impact of the ruling is considered significant in Oklahoma because of the 2005 lawsuit filed against poultry companies by Oklahoma attorney general Drew Edmondson.
In late 2007 Drew Edmondson asked a federal judge in Tulsa for an emergency injunction banning the use of poultry litter in the Illinois River watershed. During testimony presented in February and March of 2008, Edmondson argued the use of poultry litter as fertilizer constituted “waste disposal” and as such was subject to RCRA. Closing arguments were heard on March 13, 2008 with regard to Edmondson’s request for an emergency ban on poultry litter. As of August 13, 150 days have passed since those closing arguments without a ruling by the court in Tulsa.
Opponents of Edmondson’s lawsuit are cautiously optimistic with the appellate ruling that RCRA “cannot regulate an activity or substance that is already regulated under the Clean Water Act,” even though the ruling does not officially set precedent because Oklahoma courts are controlled by 10th Circuit precedent.
John Ward with the Poultry Federation believes that poultry farmers, who he said are heavily regulated by the Oklahoma Department of Agriculture, should enjoy the same “permit shield” that dairy farmers have been granted by the 2nd circuit.
“To be a grower or an operator of a poultry feeding operation, you have to be registered with the State of Oklahoma and receive state mandated training regarding the handling and application of poultry litter. The curriculum for the initial and annual training is evaluated by the Oklahoma Secretary of the Environment and is provided by the Oklahoma State University Cooperative Extension Service,” Ward commented.
“To spread poultry litter applicators must be certified and keep records that account for every step of the application of poultry litter as fertilizer – where the poultry litter is from, where it is applied, when it is applied, the amount applied, for whom it was applied, the most recent required soil tests and be in compliance with the land nutrient management plan or the animal waste management plan,” Ward continued.
Ward said,“Every aspect that could be considered to restrict and regulate poultry litter has been put in place by law or administrative rule.”
Bev Saunders, spokesperson for Poultry Partners, echoed Ward’s comments.
“Oklahoma poultry producers are already governed by some of the most stringent regulations in the United States. I believe that farmers have been doing their best to abide by these regulations.”
Saunders said if solid science shows that Oklahoma laws are inadequate, then the process should be directed to lawmakers for correction. She said Poultry Partner members do not believe that Oklahoma law should be made by out-of-state law firms, referring to the law firms that Drew Edmondson contracted with before filing the lawsuit against poultry companies in 2005.
The Poultry Partner spokesperson said, “I am very happy to read this ruling. While this case apparently targets Concentrated Animal Feeding Operations, I believe the ruling would be the same for smaller operations like we have here in Oklahoma.”
Oklahoma Senator Jim Inhofe released a statement in which he said, “This decision recognizes that the confusion of bureaucratic processes, multiple laws and layered regulations are not required to protect citizens and the environment.”
Inhofe also stated, “With my leadership on the Senate Environment and Public Works Committee I’ve worked diligently in Congress, and with the Environmental Protection Agency and U.S. Department of Agriculture, to ensure government acts efficiently by applying appropriate laws that continue to achieve cleaner water and air for all Oklahomans.”
Senator Inhofe included language in the 2007 Farm Bill requiring the U.S. Department of Agriculture to give priority consideration to grant proposals to help address animal waste challenges through innovative methods and technologies that allow agricultural operators to make use of animal waste, and particularly poultry waste, in an environmentally friendly manner.”