JEFFERSON CITY -- A group opposed to a proposed large hog confinement in Grundy County asked the Missouri Supreme Court on Wednesday to strike down a 2016 law that changed the composition of the committee that issues permits for confined animal feeding operations, or CAFOs.
The opponents, a group called Hickory Neighbors United, represented by anti-CAFO attorney Stephen Jeffery, argued the law was passed in violation of the Missouri Constitution’s single-subject rule, which requires all provisions of a bill to be about one subject.
Several of the commissioners who voted to uphold an operating permit for Trenton Farms to set up a hog confinement in Grundy County were appointed in violation of the constitution, Jeffery argued.
The court’s decision will help determine the fate of a similar case in Cooper County, where a group of neighbors also represented by Jeffery is using the same argument to try to invalidate a permit the state issued for a proposed hog confinement near Clarksburg, called Tipton East.
The Department of Natural Resources issued an operating permit to Trenton Farms to set up a hog confinement in Grundy County in 2015. A group of neighbors opposed to the operation appealed the permit, and the Clean Water Commission vacated it in February 2016 by a 4-2 vote, with one commissioner absent.
Those in favor of vacating the permit said the professional engineer who approved the design for the manure containment system didn’t certify that the operation would be safe from a 100-year flood, and that the department didn’t have evidence that Trenton Farms could operate and maintain the proposed CAFO.
Later in 2016, the Missouri legislature passed a wide-ranging bill that changed several laws governing the Department of Natural Resources, including changing the composition of the Clean Water Commission.
Before 2016, the seven-member commission had four members representing the general public, one with experience with wastewater, and no more than two representing agriculture, mining and industry.
The new law required at least two members representing industry, and no more than four could represent the general public. The representatives of the general public should “have an interest in and knowledge of conservation and the effects and control of water contaminants,” according to the statute.
Trenton Farms applied again, and the department issued another permit in November 2016. The same group of neighbors appealed, and it again came before the Clean Water Commission in December 2017.
Of the seven people on the commission when it heard the first appeal in 2016, only Ashley McCarty remained. On the second appeal, the commission voted 5-0 to follow the Administrative Hearing Commission’s recommendation to uphold the permit, with Ben Hurst, son of Missouri Farm Bureau President Blake Hurst, abstaining from the vote.
Jeffery argued the change to the Clean Water Commission was unconstitutional because it was added as an amendment and didn’t fit under the bill’s title. The state constitution says no bill can be amended to change its original purpose, and no bill can be about more than one subject, which must be in the title of the bill. The final title for Remole’s bill was “relating to water systems,” and the original title was “relating to wastewater treatment systems.”
The original bill, filed by Rep. Tim Remole, R-Excello, would have required the Department of Natural Resources to tell municipalities with wastewater treatment systems what options they have to update their system to meet discharge regulations.
That bill passed the House and moved on to the Senate, where then-Sen. Brian Munzlinger, R-Williamstown, amended it to alter the composition of the Clean Water Commission.
Jeffery argued “water systems” shouldn’t include changes to the Clean Water Commission.
“If you look at the entire set of statute books, the only definition of the term ‘water systems,’ I believe, appears in the group of statutes that deal with the Safe Drinking Water Commission, which is a completely separate and apart rulemaking body,” Jeffery said.
The state, represented by Solicitor General John Sauer, argued “regulation of water systems” is well within the scope of “broad, umbrella” bill subjects that the court has upheld in the past.
Jeffery and Sauer both referenced a 1998 case where the court ruled that a bill that changed statutes for both solid and hazardous waste management was passed unconstitutionally because the title only referenced solid waste. Jeffery used the ruling as evidence that the 2016 water systems bill was unconstitutional, but Sauer disagreed.
“The court said it is too narrow to have ‘solid waste management,’ and then have provisions related to hazardous waste, where hazardous waste is defined completely separate from solid waste,” Sauer said. “But the court went on to say, if you just use ‘waste management’ as the single subject, that would be perfectly fine.”
Sauer also argued the opponents didn’t have standing to challenge the constitutionality of the law. They could have raised their constitutional objection before the commission heard their appeal, but they waited until the commission voted against their favor. A party raising a constitutional objection has to do so at the first available opportunity, which was the administrative appeal of the second permit, the state argued.
Jeffery made motions to disqualify three commissioners from voting on the appeal, but none of his motions alleged that they were appointed in violation of the constitution, the state argued. Beyond that, the opponents never showed definite injury from the commission’s decision, because they have no way of proving that a commission formed under the previous law would have ruled in their favor, it argued. It also hasn’t argued that the people serving on the commission in the second appeal wouldn’t have met the old requirements, Sauer said.
Serving on the commission when it ruled on the appeal for the second permit were:Ben Hurst, an assistant U.S. attorney and son of Missouri Farm Bureau President Blake Hurst John Kliebocker, executive director of the Missouri Beef Industry Council Ashley McCarty, executive director of Missouri Farmers Care Pat Thomas, chief of staff for then-state Sen. Brian Munzlinger, a leading agriculture advocate who added the amendment to change the commission’s composition John Reece, retired executive director of the Little Blue Valley Sewer District in Jackson County Stan Coday, a farmer, agriculture teacher, and Wright County Farm Bureau president
Jeffery argued his clients did have standing to challenge the law’s constitutionality, citing Missouri v. Ralls, a 1999 case where the Missouri Supreme Court ruled a state statute allowing drug court commissioners to preside over cases like a circuit judge. In that case, the court allowed a direct appeal from Bilah Ralls, who a jury found guilty of drug trafficking, with a drug commissioner presiding. The cases are “strikingly similar,” and the precedent should give his plaintiffs the standing for direct judicial review of the underlying law, Jeffery argued.