Courts hand down rulings on dust, pesticides, water, manure, wildlife

By MATEUSZ PERKOWSKI

Capital Press

Farming in the U.S. is expected to become more complicated as legal battles over dust, pesticides, manure, water and other issues may result in stringent new regulations.

Even so, farmers and industry groups are standing up for themselves and occasionally besting their rivals in court.

Coarse particulate matter -- dust -- was the subject of two important legal decisions this year.

A federal appeals court ruled that dust in rural areas can be regulated as a form of pollution, which could set the stage for new regulations and Clean Air Act permit requirements.

"You can see the dust cloud on the horizon," said Tim Bernasek, attorney for the Oregon Farm Bureau.

The court found that EPA does have the authority to regulate dust, which it characterized as a potentially hazardous substance.

However, the same appeals court later found that dust kicked up by high winds should be exempt from pollution regulations.

American Farm Bureau Federation and the National Mining Association officials say they were relieved by the decision, since controlling dust can be impossible in some circumstances.

"Even when physically possible to do so, the cost would often be extremely high," the groups said in a court document.

Pesticides will also be subjected to a "whole new level of bureaucracy" due to another appeals court decision earlier this year, said Danielle Quist, an attorney for the American Farm Bureau Federation.

As part of that ruling, pesticide use near or over waterways will be subject to pollutant discharge permits.

The U.S. Environmental Protection Agency initially wanted to exclude such pesticide use from permitting requirements under the Clean Water Act, but environmental groups sued and a federal appeals court vacated the agency's decision.

The court has given EPA two years to write new regulations that comply with its ruling.

Those rules may expose farmers to lawsuits and will add further regulatory burdens for the entire industry, said Quist.

"Pesticides are already heavily regulated, not only in their development but when the farmer wants to use them," she said.

Two major cases dealing with feedlots and other confined animal feeding operations are currently up in the air.

In 2005, a federal appeals court found that EPA regulations that required certain CAFOs to obtain pollutant discharge permits violated federal law.

The operations had to obtain the permits even if they weren't proven to discharge, which the court found was impermissible.

The agency revised its regulations in 2008, but environmental groups challenged those rules, and the case is once again being considered by a federal appeals court.

Agricultural groups worry that the new rules still impose permit requirements on feedlots that don't actually pollute the water.

"The real question is: Are they required to get them if they don't discharge?" said Tamara Thies, an attorney for the National Cattlemen's Beef Association.

In another federal case, the state of Oklahoma is suing Tyson Foods and other chicken companies for allegedly applying excessive amounts of manure to the soil, thereby contaminating the watershed.

The state claims the manure contains hazardous substances, and it is seeking to recover damages from the companies for environmental cleanups.

"That is a politically charged case," Quist said.

The case has been in court since 2005, and chicken companies won an important battle in 2007 when the judge presiding over the case refused to issue a preliminary injunction barring them from applying manure to fields.

However, the case is still pending, and the judge recently cleared it to go to a jury trial, which the defendants opposed.

This particular lawsuit centers on chicken production, but it may set precedent for other industries, said Thies.

"It has huge ramifications for all animal agriculture because we have to spread our manure," she said.

Recent cases demonstrate that agriculture and natural resource industries can prevail in environmental cases.

For example, an Iowa feedlot won an administrative decision that found the EPA should not have faulted the company for failing to obtain a pollutant discharge permit.

"It says EPA cannot use modeling to show discharge," said Thies. "It needs evidence of discharge."

In another case in which EPA regulations favored farmers, a federal appeals court ruled against environmentalists who claimed that transferring water from an irrigation canal into a lake constituted pollution.

That case originated in Florida, but it is likely to be appealed, Quist said. It's of importance to Western growers due to their reliance on irrigation, she said.

"Water transfers in drought areas are very important," she said. "It will impact irrigation districts."

Some U.S. Supreme Court decisions have given natural resource industries a stronger footing in court.

In a national forest-related case earlier this year, the court ruled environmentalists lacked standing to challenge federal regulations unless they've actually been harmed by a specific application of the rules, such as a timber sale.

The real effect of that decision will play out in lower courts, Quist said. "That's one to watch."

Another Supreme Court decision from 2008 is already having a noticeable effect on environmental lawsuits.

Environmentalists challenged the U.S. Navy's use of sonar in military exercises, alleging the technology harmed marine mammals.

The Supreme Court ruled that a preliminary injunction to block the exercises should be vacated, in part because lower courts were too lenient in issuing such orders.

Plaintiffs must show that irreparable harm is likely to occur, rather than simply possible, the court ruled.

That decision was recently cited by a federal judge in California, who refused to block salvage logging in a burned area of the Plumas National Forest.

A federal judge also relied on the ruling in his refusal to stop hunting of gray wolves in Idaho and Montana.

The Supreme Court decision was particularly important in the wolf lawsuit.

Apart from the likelihood of irreparable harm, environmental groups met other requirements for a preliminary injunction, the judge said.

The outcome of that case is likely to have repercussions on wolf policy in other parts of the West, such as Oregon, Bernasek said. "Idaho and Montana have been dealing with it longer than we have, so we can see how it's playing out."

Staff writer Mateusz Perkowski is based in Salem, Ore. E-mail: mperkowski@capitalpress.com.

 

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