Michigan Supreme Court Backs Tighter Animal Waste Restrictions

LANSING, MI — The Michigan Supreme Court has upheld the state’s authority to tighten environmental restrictions on large livestock farms that generate large amounts of waste.

In a 5-2 majority decision, the justices sided with the Michigan Department of Environment, Great Lakes and Energy (EGLE) in its dispute with the state’s agribusiness lobby over the issuance of a general permit four years ago that tightened wastewater discharge rules for industrial-scale farms.

On Aug. 1, the justices rejected an argument by agribusiness representatives who argued that EGLE’s permit to operate a concentrated animal feeding operation (CAFO) was essentially an administrative regulation and therefore invalid because it was not developed through that process.

The ruling reaffirms EGLE’s discretion to design permit conditions to protect water quality and requires the agency to justify those conditions in dispute proceedings.

The ruling follows a 2023 ruling by the state Court of Appeals, which ruled in favor of the Michigan Farm Bureau, agribusiness groups and large cattle, poultry and hog farm owners who sued EGLE in state Court of Claims in 2020.

A separate but related administrative proceeding remains ongoing, with EGLE officials saying that while the terms of the 2020 permits are currently technically feasible, the agency does not intend to do so until that contentious case is resolved.

Environmental groups hailed the court’s decision as a victory for Michigan waters and warned that upholding the appeals court ruling would effectively freeze indefinitely a 2006 law limiting the development of certain new water regulations.

A bill is pending in Lansing to overturn this restriction.

“The state Supreme Court made the right decision,” said Rob Michaels, an attorney with the Chicago-based Environmental Law and Policy Center, which filed an amicus curiae brief in the case.

“Any administrative judge or court that hears future permitting issues will be able to focus on the only question that should ever matter: whether the permit conditions are necessary to protect Michigan waters,” Michaels said.

Allison Eicher, an attorney for Michigan Farm Bureau, said the organization disagrees with the court’s decision.

“We believe states should follow established procedures when issuing regulations to their citizens,” Eicher said.

“Our goal is to ensure that state government regulates farm operations in a way that protects the Great Lakes in a science-based manner that takes into account the opinions of experts, farmers and citizens,” she said.

Under state law, Michigan’s roughly 290 commercial livestock farms must operate under a National Pollutant Discharge Elimination System (NPDES) permit, which regulates the amount of nutrients, such as nitrogen and phosphorus, a farm can discharge.

Waste from closed livestock farms is typically stored in large lagoons to be spread on crop fields as fertilizer. While this can help increase crop yields, it can also degrade water quality.

Nutrient runoff is causing algae growth in surface waters, and manure spills are causing fish kills in Michigan rivers. Bacterial spills can make water unsafe to drink.

According to a 2024 report by the Environmental Law and Policy Center, state officials estimate that all the cows, pigs, chickens and turkeys on Michigan factory farms generate more than 62 million pounds of manure per day — more than the daily waste produced by the state’s 10 million residents.

In 2020, EGLE revised its five-year CAFO permit to, among other things, restrict manure spreading in winter when it is more likely to runoff into waterways.

The change lowers allowable soil phosphorus levels, requires soil testing before manure is moved and quarterly reporting of manure applications. It also prohibits manure application within 100 feet of waterways and requires a 35-foot vegetation barrier.

In drafting the more stringent permit for 2020, EGLE argued that previous permits did not ensure proper monitoring of waste, that farmers applied more manure in winter than was necessary for crops, and that some farms created separate legal entities and transferred their waste to them to avoid responsibility for its management.

The 2020 licensing regulations have not been implemented.

The additional restrictions went beyond the requirements set forth in the federal permit, prompting the state Court of Appeals to accept the Farm Bureau’s argument that the permit was an improperly issued administrative rule.

For the majority, Judge Elizabeth Clement found that EGLE’s authority to issue administrative regulations for factory farms is limited by the Legislature, but the agency retains the authority to impose permitting requirements on individual sites.

“Because it is common ground that EGLE does not have the authority to issue regulations governing NPDES permits issued to CAFOs, neither the general permit nor the discretionary conditions contained therein can have the force and effect of law and therefore cannot be ‘regulations’ under the APA definition,” Clement wrote. “They can be merely a statement explaining how EGLE plans to exercise its discretionary permitting authority or a statement explaining what conditions EGLE plans to demonstrate are necessary to achieve applicable Part 4 water quality standards or to comply with other applicable laws and regulations in CAFO determinations.”

Justices Richard Bernstein, Megan Cavanagh, Elizabeth Welch, and Kyra Harris Bolden concurred in Clement’s opinion. Justices David Viviano and Brian Zahra dissented.

The dispute is not the first challenge to the state’s authority to regulate CAFOs. In 2008, the Farm Bureau and agricultural groups challenged EGLE’s (then DEQ’s) authority to require a discharge permit, arguing that one should be required only after a facility had discharged manure into surface waters or if it planned to do so.

Michigan EGLE officials said they were “pleased that the court ruled in the department’s favor.”

“After meeting with more than 50 CAFO permittees and collecting more than 2,400 public comments, our blanket permit balanced common-sense protections for the state’s water resources while maintaining the state’s agricultural sector as a vibrant part of the state’s economy,” said agency spokesman Hugh McDiarmid. “Today’s ruling gives EGLE the tools it needs to protect our lakes — both large and small — and our water resources from excessive pollution and CAFO waste.”

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