April 6, 2017. An earlier post described the intersection of environmental permitting and civil rights laws in the environmental justice movement. A 2014 environmental justice complaint filed by Earth Justice, REACH and the Waterkeepers (the “Earth Justice complaint”) argues the state of N.C. has discriminated against African-American, Latino and Native American residents by issuing a general permit for swine farm waste management systems that fails to protect those communities from air and water pollution. On January 12, the U.S. Environmental Protection Agency (EPA) sent a “Letter of Concern” to the Department of Environmental Quality (DEQ) about possible discrimination against minority residents as a result of the swine waste general permit. This post will look at the basis for the Earth Justice complaint and the significance of EPA’s letter.
First, what is a general permit? An individual permit covers a single facility; a general permit covers a category of facilities. The state general permit for swine farms covers swine farms with more than 250 animals (the number triggering the need for a state permit). Most swine farms in North Carolina meet state permitting requirements by qualifying for coverage under the general permit. The general permit allows farms to use large open lagoons to store and treat swine waste and spray liquid waste on crops as a fertilizer. Permit conditions prohibit discharge of waste to rivers and streams; require measures to maintain the structural integrity of waste lagoons; limit spray irrigation of wastewater to avoid runoff and groundwater contamination; and require other management practices to reduce environmental impacts. The Department of Environmental Quality (DEQ) has reviewed and reissued the general permit about every five years since issuance of the first general permit in 1997. The Earth Justice complaint concerns the most recent version of the general permit issued by DEQ in 2014.
For purposes of this post, I will assume the Earth Justice complaint correctly describes the racial makeup of communities near large swine farms. The next question would be: What does the Civil Rights Act of 1964 require of the state?
The Earth Justice complaint. The most significant issues:
Failure to do a disparate impact analysis. The complaint contends DEQ failed to determine whether the state swine farm general permit has a disparate impact on African-American, Native American and Hispanic communities. A disparate impact analysis determines whether policies that appear racially neutral have a greater negative impact on minority communities in practice. It seems indisputably true that the state has not considered the racial or ethnic makeup of communities near swine farms in adopting laws, rules and permit conditions for operation of those facilities.
Failure of the swine farm general permit to protect minority communities. The complaint then argues the general permit fails to protect minority communities from environmental and health impacts, such as well contamination, odors, and exposure to ammonia emissions. The complaint questions the adequacy of specific permit conditions (such as setbacks between sprayfields and drinking water wells), but essentially faults the state for continuing to allow existing swine farms to use conventional lagoon and spray field systems to manage swine waste.
Unlawful intimidation of a person who complains of discrimination. After mediation efforts collapsed in 2016, the complainants added a new allegation of intimidation. EPA took the intimidation charge seriously and discussed evidence of intimidation at some length in the January 12, 2017 letter to DEQ. The EPA letter cites reports of intimidation by swine farm operators or employees rather than by DEQ staff. but emphasizes DEQ’s responsibility to prevent or effectively respond to reports of intimidation.
This post will focus on the allegation that N.C.’s swine farm general permit fails to protect minority communities.
North Carolina’s history with lagoon and sprayfield systems. Lagoon and sprayfield systems are the most common method of swine waste management, but have also been controversial since the 1990s. Explosive growth in North Carolina swine operations and several large swine waste spills raised public concern and attracted legislative attention. In 1997, the legislature tightened permitting requirements and put a temporary moratorium on construction of new or expanded swine farms using conventional lagoon and sprayfield systems. The legislature extended the temporary moratorium several times before permanently barring construction of new or expanded swine farms using lagoon and sprayfield systems in 2007. As a result, all of the farms covered by the state general permit began operation before March 1, 1997.
Those existing swine farms have continued to use lagoon and sprayfield systems while the state researched more environmentally friendly alternatives. In 2000, the state commissioned a N.C. State University (NCSU) study funded by an agreement with Smithfield Foods and other swine producers to identify “environmentally superior” waste management technologies. Under the “Smithfield Agreement”, Smithfield Foods agreed to convert company-owned swine farms to a waste management technology identified by NCSU as environmentally superior to the lagoon/sprayfield system and both operationally and economically feasible. An “environmentally superior” technology would:
(1) Eliminate the discharge of animal waste to surface water and groundwater through direct discharge, seepage, or runoff.
(2) Substantially eliminate atmospheric emission of ammonia.
(3) Substantially eliminate the emission of odor that is detectable beyond the boundaries of the parcel or tract of land on which the swine farm is located.
(4) Substantially eliminate the release of disease-transmitting vectors and airborne pathogens.
(5) Substantially eliminate nutrient and heavy metal contamination of soil and groundwater.
In 2006, NCSU’s Dr. Mike Williams identified several innovative technologies that in combination met the environmental standards and could be operationally/economically feasible for use on new farms. But Dr. Williams concluded none of the technologies would be economically feasible for use on existing farms because of conversion costs. Dr. Williams has reviewed new generations of those technologies since 2006. Although costs for some technologies have come down, Dr. Williams has still not designated any technology as economically feasible for use on existing swine farms. Dr. Williams’ last update appears to have been issued in 2013.
On a separate track, the N.C. legislature included a set-aside for energy generated by capturing methane from swine waste systems as part of the state’s 2007 Renewable Energy Portfolio Standard (REPS). One purpose of the set-aside was to encourage development of swine waste-to-energy systems that may have the additional benefit of reducing environmental impacts including odors and ammonia emissions. Several companies have begun development of swine waste-to-energy systems, but for technical reasons those projects have been slow to reach completion.
So the state has recognized potential problems with lagoon and sprayfield systems and invested time, energy and money in researching alternatives. But the state has not required farms to adopt new technologies or imposed significant additional conditions on operation of existing systems. In questioning the decision to continue permitting lagoon and sprayfield systems, the Earth Justice complaint puts that 20-year state policy debate and the decision not to impose additional regulatory requirements in the context of racial discrimination.
The U.S. Environmental Protection Agency. When mediation of the Earth Justice complaint fell apart in 2016, EPA reopened review of the complaint under Title VI of the Civil Rights Act. EPA has not completed its investigation, but the January 12 letter set out preliminary findings. The letter expressed concern that the state swine farm general permit may discriminate against minority communities and recommended specific steps to address the concern. Some of the recommendations are procedural, such as creation of a grievance procedure and designation of a DEQ staff person to coordinate response to environmental justice complaints as required under EPA rules. Other recommendations require review of N.C. laws, rules and enforcement policies on swine operations.
Historically, federal environmental justice guidance focused on the permitting process rather than environmental standards. EPA emphasized providing information and outreach to minority communities; encouraging minority participation in permit reviews; and considering impacts to minority communities in environmental impact statements and federal air quality decisions. (See the earlier post for detail on the 1994 Federal Executive Order on environmental justice and the requirements of EPA rules.) The January 12 EPA letter took the unusual path of recommending review of both the general permit conditions and state rules to determine whether environmental standards should be changed to reduce impacts to minority communities. EPA noted the Smithfield Agreement study and other research identified practices that can minimize impacts, but are not required under current state rules. Examples cited by EPA included: covering waste lagoons; limiting the time of day for land application of waste; eliminating some methods for handling dead animals.
Issued in the final days of the Obama administration, the EPA letter hints at a newly broad application of civil rights principles to state environmental policy decisions. The letter suggests the Civil Rights Act may require state regulators to change environmental standards if existing standards do not adequately protect minority communities. Environmental regulations have traditionally been shaped by seemingly race-neutral factors — health and ecological effects balanced by economic considerations. The Earth Justice complaint and EPA’s preliminary response question whether the result of the regulatory process has been race-neutral. EPA provides little guidance to the state on the role race should play in environmental regulation beyond hinting that if the state can do more to reduce impacts to minority communities, it should. Perhaps the question in the background is this: Can a disproportionate impact on minority communities be a sign that the race/ethnicity of the people being affected influenced the state’s willingness to tolerate negative impacts?
What comes next? Under the usual EPA process for environmental justice investigations, the state has an opportunity to respond to preliminary findings by either carrying out the EPA recommendations or suggesting a different response. DEQ Secretary Michael Regan quickly indicated an intent to follow up on EPA’s concerns and work with stakeholders to reach a resolution. If the state does not satisfy EPA’s concerns and EPA makes a formal finding of discrimination, the ultimate penalty could be withdrawal of federal funds from DEQ.
In the meantime, EPA leadership has changed. A week after EPA sent the January 12 letter, the Trump administration took office. Budget cuts proposed by the Trump administration reportedly include elimination of EPA’s environmental justice program which provides grant funding and policy direction to environmental justice efforts. Although EPA would still have an obligation to comply with the Civil Rights Act, the budget proposal signals a lack of Trump administration concern about environmental justice concerns. If that causes EPA to step back from environmental justice complaints, it will likely be up to the state to decide whether and how to resolve these issues.