A lawsuit over a controversial law that prevents counties from passing their own regulations on livestock operations will proceed with only state officials and agencies as defendants after a Cole County judge dismissed claims against several agricultural groups on Wednesday.
Judge Daniel Green of the 19th Circuit Court in Cole County approved motions to dismiss claims against the Missouri Farm Bureau, Missouri Pork Producers’ Association, Missouri Cattleman’s Association, and PVC Management II, the LLC behind the Tipton East hog operation proposed and permitted to be built in southern Cooper County. Green denied the state’s motion to dismiss the lawsuit.
The Cedar County Commission and the Cooper County Public Health Board have passed regulations on large livestock confinements called concentrated animal feeding operations, or CAFOs. They, along with three individuals who have been actively opposing CAFOs near their homes, are fighting to protect their regulations from a new law the Missouri General Assembly passed this year that bans any county-level agricultural ordinance that surpasses the standards of state regulations.
The plaintiffs argued the agricultural groups threatened to sue counties with health ordinances as a way to enforce the new state law. Attorney Robert Brundage, representing the agricultural groups and PVC, said the plaintiffs were speculating about lawsuits that haven’t been filed. The plaintiffs can’t show any threatened or actual injury caused by the groups, and the state, not the groups, should be defending the constitutionality of the law, he argued.
Brundage also stated that two of the plaintiffs are appealing the operating permit the state issued to PVC to build Tipton East. The appeal is in the Western District court waiting on the Missouri Supreme Court to rule on an identical argument in an appeal over a different proposed CAFO in Grundy County. Until that appeal is resolved, the plaintiffs still have other avenues to resolve their issues with PVC, he argued.
“The company hasn’t even decided to build yet, they haven’t started building, so it’s not ripe for adjudication,” he said.
Heart of lawsuit still going forward
Green agreed to dismiss the agricultural groups and PVC from the lawsuit, but left the state defendants — Gov. Mike Parson, the Missouri Clean Water Commission and the Missouri Air Conservation Commission — to answer the central questions of the lawsuit: Is the law constitutional, and does it apply to regulations that were already in place when it took effect?
The plaintiffs contend that the law violates the “Right to Farm” amendment to the Missouri Constitution, which voters approved in 2014.
The amendment guaranteed the rights to use farming and ranching practices, but stated farmers and ranchers are still subject to the authority local governments are granted under article six of the Missouri Constitution, attorney Stephen Jeffery argued.
When voters approved Right to Farm, state law allowed county commissions and health boards to pass regulations that enhance public health and prevent the spread of disease, but said they could not be in conflict with the state Department of Health and Senior Services or the Department of Social Services.
The plaintiffs argue that voters intended to allow counties and health boards to make rules that were more stringent than the Department of Natural Resources, because that’s what the law allowed at the time. The new law goes against the intent of the voters, and violates the Right to Farm Amendment, the plaintiffs stated.
The state asserted in its motion to dismiss the case that the Right to Farm amendment “protects farmers and farming practices, not counties and their farming restrictions.” The new law isn’t related to Right to Farm because it regulates the powers of counties, not agriculture, Assistant Attorney General Jason Lewis, representing the state, argued in court. Nothing in the text of the amendment limits the state’s ability to regulate the powers of local governments, he argued.
The plaintiffs also argued the law violates the state constitution because it is retrospective — it is meant to eliminate county-level rules that were already in place when the law took effect. That violates the state constitution, and existing regulations, like in Cooper and Cedar counties, should be allowed to stand.
Lewis argued the General Assembly can’t make laws that apply retrospectively, but they make laws that preempt existing county ordinances. Brundage argued the law doesn’t have to apply retrospectively to wipe out the existing regulations because the General Assembly determines what authority counties have.
“So if we have something going forward that’s in conflict with the statute, then it’s clearly void at that point,” Brundage said.
Cooper County Question
The plaintiffs assert that, even if the law is constitutional, it doesn’t apply to the Cooper County regulation, because it regulates emissions of hydrogen sulfide, ammonia and particulate matter into the air, as well as what soil and geology underground manure storage pits can’t be built on. Those aren’t regulated by the Department of Natural Resources, so the regulations don’t violate the new law, they argued.
The Cooper County Health Board initially passed a set of CAFO regulations in 2018, then rescinded them in June. It passed the new set of regulations in August, just before the new law took effect. They address specific concerns with Tipton East, a proposed and permitted hog CAFO that PVC was granted a permit to build in southern Cooper County, near Clarksburg.
Opponents of Cooper County CAFOs, a group of area landowners, have been pushing back against the permit over concerns the operation will pollute drinking water.
There is no public water supply in the area, and the soil on the site has a high potential to swell when wet, putting pressure on underground manure storage tanks that could cause them to crack, the group contends. The karst geology of the area, characterized by springs, sinkholes and underground channels, means that a leak could spread manure through the water supply, the opponents have argued, based on the testimony of geohydrologist Thomas Aley.
The CAFO opponents appealed to the Clean Water Commission to rescind the operating permit it issued to Tipton East. The commission upheld the permit, and the opponents then took their challenge to the courts, arguing a law changing the composition of the commission was passed in violation of the state constitution. The Missouri Supreme Court has yet to rule on an identical argument in a different case it heard in September.
Brundage argued a Cooper County lawsuit brought against the county health board by 100 area farmers after the board passed its first regulation last year will resolve the question of whether the health board’s regulation will stand, so it doesn’t need to be adjudicated in Cole County. Jeffery argued the Cole County lawsuit was filed before the Cooper County plaintiffs amended their lawsuit to focus on the health board’s new regulation.
He said he expects the health board, who he represents, to file a motion to move the case to Cole County now that they’ve filed to include the office of the governor, the clean water commission and the air conservation commission as third-party defendants in the case. Cole County is the only appropriate venue when there are state parties involved, Jeffery argued.
The next hearing in the case is scheduled for Dec. 9.