Big Chicken Loses Round One in Groundbreaking Water Pollution Case

by Shana Campbell Jones

July 22, 2010

Thanks to a strong ruling from a federal judge in Baltimore Wednesday, large poultry companies are one step closer to being held accountable for the pollution (manure) the small farms that grow chickens for them generate. Responsibility: it’s not just for the little guys anymore.

In March, several environmental groups in Maryland sued Perdue Farms, Inc. and Hudson Farm, a chicken farm that raises Perdue’s chickens, alleging violations of the Clean Water Act. (I blogged earlier about the political brouhaha that erupted here.) Samples taken on five different occasions from a ditch flowing from Hudson Farm showed excessive levels of fecal coliform, E. coli, nitrogen, phosphorus, and ammonia. Agriculture is the largest source of nutrient pollution in the Chesapeake Bay, contributing an estimated 38 percent of the nitrogen and 45 percent of the phosphorous.

The groundbreaking suit not only targeted the specific geographic source of the pollution – Hudson Farm and its stockpiles of uncovered poultry manure – but it also alleged that Perdue, a poultry company with $4 billion in sales annually, was responsible for the mess as well. The court rightly rejected Perdue’s argument that it should be dismissed from the lawsuit because it was a poultry integrator – not a grower – and was, the company asserted, not required to obtain a discharge permit under the Clean Water Act.

In fact, it is unlawful for any person – not just a permitted facility – to violate the Clean Water Act, the court noted. And in this case, the plaintiffs had stated specific allegations as to the extent of control Perdue actually exercises over Hudson Farm. So Perdue, even though it does not itself technically hold the CWA permit, is not simply off the hook.

After all, as the “integrator” that contracts with Hudson Farm, Perdue gives the chicks to Hudson Farm to raise, owns the chickens that are raised, and provides all of the feed, fuel, litter, medications, vaccinations and other supplies necessary for the chickens it owns. Perdue, like other integrators, even dictates how Hudson Farm’s facilities and buildings are used. As Tuesday's Baltimore Sun reminded us, given the growing objections chicken farmers are having about integrators that threaten to cancel contracts if “costly upgrades on poultry houses aren’t made” or if growers “speak out” against an integrator, it’s not a secret to anyone in the industry who really runs the show: guys like Perdue and Tyson Foods do.

As Tim Wheeler notes in this blog post, “the judge's ruling was significant because it is the first in a federal court to say a poultry company can be held liable for the actions of its contract growers.” According to Jane Barrett of the University of Maryland School of Law (who directs the legal clinic helping in the suit), there have been similar rulings in state courts in Alabama and Kentucky, but getting a federal court to side with you is a wholly different story.

Let’s hope the federal court continues on this path and finds that Perdue, which takes responsibility for so much else in Hudson Farm’s chicken coops, shouldn’t be given a free pass when it comes to taking responsibility for the poop their chickens generate. After all, cleaning up after your own mess only seems fair, doesn’t it?

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Also from Shana Campbell Jones

Shana Campbell Jones, J.D., is a consultant to the Center for Progressive Reform on Chesapeake Bay issues.  She joined CPR in 2007 as a policy analyst, and took on the role of executive director in 2009, before leaving the staff to teach environmental policy at Old Dominion University.

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