CAFOs Lose Environmental Exemption

Court Vacates FSA Policy Exempting Medium-Sized CAFOs From Environmental Review

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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A federal court threw out a Farm Service Agency rule that exempted medium concentrated animal feeding operations from environmental reviews on federal loans. (DTN file photo)

LINCOLN, Neb. (DTN)-- Medium-sized concentrated animal feeding operations receiving USDA loans will be required to have an environmental assessment after a federal court on Tuesday vacated part of a 2016 Farm Service Agency rule.

The court's ruling is likely to affect hundreds of CAFOs across the country.

FSA adopted a rule in 2016 that exempted from environmental review livestock facilities that confine up to 2,500 pigs, 1,000 beef cattle, 700 dairy cows, 125,000 chickens or 55,000 turkeys.

In 2018, a coalition of animal-welfare groups sued USDA for failing to provide adequate public notice or evidence-based justification for the exemption. The groups argued USDA violated the National Environmental Policy Act and Administrative Procedure Act.

It's not known the exact number of medium-sized CAFOs receiving such loans. The animal-welfare groups provided a snapshot in their 2018 lawsuit of how many CAFOs might be affected.

A Freedom of Information Act request, for example, found the FSA made 130 direct loans of more than $100,000 or guaranteed loans of more than $300,000 each to animal facilities in Indiana alone from August 2016 to August 2018.

The Farm Service Agency told the court it receives about 3,000 loan applications from medium-sized CAFOs each year. The agency also did a review of its loan decisions for 2010 and 2011, finding there were more than 650 loans issued to broiler chicken medium-sized CAFOs alone.

A judge in the U.S. District Court for the District of Columbia ruled on Tuesday that the FSA violated the National Environmental Policy Act in exempting the medium-sized CAFOs.

"Like all agency actions, these loans are subject to the National Environmental Policy Act," Judge Colleen Kollar-Kotelly said in the opinion.

"The record provides no indication the FSA began to consider this course of action until it received, sometime between September 2014 and August 2016, precisely one comment placed into the Federal Register arguing in short shrift: 'As proposed the provisions for medium CAFOs would be an onerous impediment to obtaining financing for operations that will often include young or beginning farmers.'"

The judge said FSA "evidently inferred" that the commenter to FSA viewed environmental review as "overly onerous," so the agency decided to review.

"Oddly, FSA repeated the same reply to a similar comment in the notice of the final rule, despite reversing course in the final rule," the opinion said.

"Again, at this time, FSA provided essentially no notice that it would reverse course in the final rule."

The groups filing the original lawsuit include the Animal Legal Defense Fund, Association of Irritated Residents, Citizens Action Coalition, Iowa Citizens for Community Improvement, the Institute for Agriculture and Trade Policy, and Food and Water Watch are represented by ALDF, Public Justice, and Food and Water Watch. Dakota Rural Action and White River Waterkeeper are represented by Public Justice and Food and Water Watch.

In the case, USDA admitted the FSA failed to provide notice and comment before creating the exemption but asked the court to overlook the error.

During the five years that the case has been pending, the agency failed to offer mechanisms for community feedback or evidence that medium-sized CAFOs lack environmental impact.

"Although FSA admitted error in September 2019, to date, it appears that FSA has taken no action to correct its error," the judge said in the opinion.

"More importantly, however, there is nothing in the record to confirm FSA's insistence that it will be able to substantiate the challenged (exemption) on remand."

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Todd Neeley

Todd Neeley
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