Alt v. EPA: EPA’s control over CAFOs shrinks again

Lois Alt is a 61-year-old grandmother who sued EPA in federal court arguing that her large chicken farming operation is exempt from Clean Water Act (CWA) permitting requirements. On October 23, the judge ruled in her favor in an alarming decision that could mean thousands of other large industrial farming operations do not need permits. 

The case began when EPA found Ms. Alt in violation of the CWA for discharging without a permit. EPA ordered her to apply for one and informed her that, under the law, she could be subject to civil or criminal penalties. The agency later withdrew the notice, essentially mooting the case. Nevertheless, Judge Bailey felt compelled to rule on the merits.

The facts are not disputed. Ventilation fans blow litter and manure out of Ms. Alt’s eight chicken houses. Rainwater washes this pollution from the yard surrounding the chicken houses into Mudlick Run, a nearby stream, by means of “man-made ditches” (opinion, p.5). Normally, a concentrated animal feeding operation (CAFO) like Ms. Alt’s must get a permit to discharge into surface waters. Congress added a provision to the CWA in 1987 excusing agricultural stormwater discharges from permitting requirements. EPA has construed this exemption as only covering areas in which manure was applied to land in accordance with specific guidelines. Judge Bailey’s decision—that the discharge from Ms. Alt’s farm fits under the CWA’s agricultural stormwater exemption—would greatly extend the scope of the exemption.

Ms. Alt raises about 200,000 birds a year in her eight chicken houses. She is part of a nationwide trend toward larger and more consolidated animal agriculture operations. Chicken farms across the country have consolidated over the past 60 years, with production per farm increasing a thousand-fold. These massive operations have significant consequences for the health of the Chesapeake Bay and other waterways. They are such a concern that Congress specifically wrote them into the Clean Water Act, a notable move given that agriculture is generally exempt from the act.

Although EPA has a specific statutory mandate to regulate CAFOs, its oversight has been spotty and controversial. For the most part, the agricultural industry has escaped any meaningful regulation and it is fighting tooth and nail to hang on to this privileged status. Through the American Farm Bureau Federation, its powerful and well-funded trade association, the farm lobby has used every available tool to cripple efforts to regulate CAFOs, filing lawsuits and mounting PR campaigns.

The Alt case is just another example.

Ms. Alt was an ideal plaintiff. She is “a proud West Virginian, a loving mother and a doting grandmother,” according to the Bay Journal. She is a longtime electrician for the construction industry who invested her life savings into her West Virginia chicken farm.

But that’s just one side of the story.

A peak behind the curtain reveals that Big Ag was pulling the strings. According to the Bay Journal, the West Virginia Farm Bureau bankrolled Ms. Alt’s case. The American Farm Bureau Federation, which recently lost its lawsuit against EPA claiming that the entire Bay TMDL was outside the agency’s authority, was granted intervener status. Ms. Alt raises chickens for Pilgrim's Pride, which, according to its website, is the second-largest chicken producer in the world. The company employs approximately 38,000 people and has the capacity to process more than 36 million birds per week. Ms. Alt is one of about 3,900 contract growers who supply poultry for the company's operations. 

The decision, if it stands, could affect thousands of CAFOs, with disastrous consequences for clean waterways across the country. It could also succeed in tying up the courts in endless litigation, with each CAFO questioning whether its discharge is exempt from the CWA and requiring courts to decide each case one by one.

EPA is weighing its options and the environmental groups that intervened in the case may appeal. For the sake of clean water across the country, let’s hope they win.