Cow Palace Decision: A Parade of Horribles
Updated: Jul 8, 2020
This post should not be relied upon as legal advice.
Back in February, I posted a summary of the Federal district court opinion in the Cow Palace case. This decision found manure to be a solid waste under the Resource Conservation and Recovery Act (RCRA) when the manure was applied beyond whatwas required by the nutrient management plan and plant needs and was leaching into groundwater from improper designed storage facilities. See www.aglaw.umd.edu/blog/wait-now-youre-telling-me-manure-can-be-a-solid-waste to view the post. Recently the Cow Palace and two other dairies entered into a consent agreement with various environmental groups who were suing them for the alleged violations (see my overview of the settlements here: www.aglaw.umd.edu/blog/settlement-reached-in-washington-state-dairy-cases and Ashley’s overview here www.aglaw.umd.edu/blog/washington-dairies-enter-into-consent-agreements).
These consent agreements and the district court opinion has caused some concerns among the ag community. Consent agreements carry no precedential value (meaning a court cannot rely on the agreements in a future decision), but the district court opinion does. The district court opinion could potentially be relied on by other courts (even those in Maryland) with far reaching ramifications.
Let’s consider some of those far-reaching ramifications. The district court found that when manure is applied without regard to a nutrient management plan and without regard to the plant needs, then the manure is discarded and becomes a solid waste. The Cow Palace Dairy never tested the manure to determine the actual nutrient requirements before applying and the dairy failed to account for residual nutrients in the soil to determine application rates.
Most producers in Maryland already apply manure and other nutrients according to their nutrient management plan. Producers in other states may only be required to utilize a nutrient management plan when operating a concentrated animal feeding operation (CAFO). The Cow Palace case potentially creates a new national requirement to follow your nutrient management plan or face additional penalties under Federal law, in this case RCRA. Cow Palace may also force producers in states without nutrient management requirements to get a nutrient management plan and apply nutrients accordingly.
One potentially interesting issue is the fact the dairy in Cow Palace failed to consider residual nutrients when determining application rates. In Maryland, a soil test is good for three years. Could a Maryland court (state or Federal), using the Cow Palace decision in a future dispute, interpret that decision to require annual soil testing? This question is currently unanswered due to the Cow Palace decision.
Looking at manure storage, the Cow Palace decision relied on previous decisions in the 9th Circuit which found a material could become a solid waste when it escapes into the environment from its intended use. In this case, manure leaking out of lagoons is escaping from its intended use and becomes a solid waste regulated under RCRA. In Cow Palace, there was limited evidence to show that the dairy had built the lagoons according to NRCS guidelines. But what if the dairy had built the lagoon or any manure storage area according to NRCS guidelines and a liner failed? Would the outcome have been the same? What if state law did not require a lagoon or manure storage area to be built according to NRCS guidelines? Could producers be liable under RCRA for manure leaking out?
This decision also has implications with states’ right-to-farm laws. Many states’ right-to-farm laws require the producer seeking to use the law be in compliance with applicable Federal environmental laws. Maryland’s right-to-farm law, for instance, requires this. A Maryland producer could potentially have to factor in RCRA compliance into the equation for using the right-to-farm law as a defense to a nuisance claim (for more information on Maryland’s right-to-farm law, see (ter.ps/mdrtf)).
I called this post a parade of horribles, which are often used by courts to show potential negative outcomes if a certain decision is made. I have no idea if the issues I have raised will actually come to pass. These are issues I see developing from the decision in Cow Palace. Potential future decisions may provide us with further guidance, or Congress could step in and remove some of the concerns raised by this decision.