Court axes regulatory exception for mid-sized factory farms; hundreds of them will need environmental assessments

A beef-cattle feedlot (Photo via Northern Ag Network)

A federal court has thrown out an environmental examption for some concentrated animal feeding operations. "Medium-sized CAFOs receiving Department of Agriculture loans will be required to have an environmental assessment after a federal court vacated part of a 2016 Farm Service Agency rule," reports Todd Neeley of Progressive Farmer. "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."

FSA's 2016 exemption sped up USDA loan approvals, which one individual called an "onerous impediment to obtaining financing for operations that will often include young or beginning farmers," Needley reports. Judge Colleen Kollar-Kotelly of the District Court for the District of Columbia said the FSA had violated the National Environmental Policy Act. "USDA admitted the FSA failed to provide notice and comment before creating the exemption," Neeley notes. "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."

Poor environmental outcomes and insufficient evidence supporting the exemption have made factory farms controversial. "CAFOs have been a point of contention between the livestock industry and environmental activists since they began to proliferate in the 1990s, overtaking small, pasture-feeding operations as the dominant form of animal agriculture in the U.S.," reports Madison McVan of the Midwest Center for Investigative Reporting. "One large CAFO can easily produce more than one million tons of manure per year — more than the yearly waste of a large city." 

An exact count of how many CAFOs will be affected is not available, but the animal-welfare groups that filed the lawsuit found through the Freedom of Information Act that "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," Neeley reports. "The FSA 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."

"The ruling makes no mention of the economic impact, including shortages and price increases that might result from the newly added environmental hurdles," reports Dan Flynn of the Food Safety Network. However, the judge's opinion noted, "Although FSA admitted error in September 2019, to date, it appears that FSA has taken no action to correct its error . . . 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."