The Michigan Supreme Court has upheld the authority of the Department of Environment, Great Lakes, and Energy (EGLE) to use a general permit to implement more protective conditions for concentrated animal feeding operations (CAFOs) than those outlined in existing rules. The decision in Michigan Farm Bureau v. Department of Environment, Great Lakes, And Energy affirms EGLE's ability to establish permit conditions aimed at safeguarding water quality and mandates that these conditions be justified in contested case proceedings.
"This decision is a critical step forward in protecting our state’s invaluable water resources," stated Michigan Attorney General Dana Nessel. "While this is a significant procedural victory for environmental protection, we will continue to vigorously defend EGLE’s position and demonstrate the need for these permit conditions in contested cases."
CAFOs are large-scale livestock facilities regulated under the National Pollution Discharge Elimination System (NPDES) permitting program. The Michigan Farm Bureau, along with other industry groups and certain CAFOs, challenged some of the new conditions within the 2020 CAFO General Permit, arguing they represented unlawful rulemaking. However, the Court determined that EGLE possesses discretionary authority to develop more stringent permit conditions than those found in promulgated rules. Additionally, it concluded that general permit conditions do not constitute binding rules for CAFOs; instead, binding requirements are established through individual certificates of coverage issued based on site-specific considerations. These certificates are subject to challenge only through contested case proceedings.
The Department of Attorney General represented EGLE in this litigation and received amicus support from several environmental organizations: Environmental Law and Policy Center; Michigan Environmental Council; Environmentally Concerned Citizens of South Central Michigan; Freshwater Future; For Love of Water; Food and Water Watch; Michigan League of Conservation Voters; and Alliance for the Great Lakes.
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