Summary of a Recent
Judicial Development in
Animal Feeding Operations

Court Upholds Issuance of an Air
Pollution Control Permit to CAFO

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Sierra Club v. Mississippi Environmental Quality Permit Board, 943 So. 2d 673 (Miss. 2006), the Supreme Court of Mississippi affirmed the chancery court's order affirming the issuance of an air pollution control permit to an owner of a confined animal feeding operation (CAFO) by the Environmental Quality Permit Board (Permit Board).

Background

Bill Cook was the owner and operator of a CAFO, and was issued a National Pollutant Discharge Elimination System (NPDES) permit. Id. at 675-76. Cook submitted an application for a multimedia permit to the Permit Board in December of 1999. Id. at 676. The Mississippi Department of Environmental Quality (MDEQ) created a draft permit and invited public comment on the draft. Id. The MDEQ conducted a public hearing after receiving many comments. Id. The MDEQ recommended that the Permit Board transfer Cook's permit into a multimedia permit by adding an air pollution control chapter to his existing permit. Id. The added controls required the construction of a windbreak wall behind the exhaust fans of each housing unit because the exhaust fans were determined to be the primary source of the off-site odor transfer. Id. Both Cook and the objectors to the permit requested an evidentiary hearing. Id. Cook requested a hearing because the permit required too much of him and was beyond the authority of the Permit Board. Id. The objectors requested a hearing because it required too little of Cook and was, therefore, arbitrary and capricious. Id. After holding an evidentiary hearing, the Permit Board voted to uphold its previous issuance of the multimedia permit as written. Id. at 676-77. The chancery court upheld the Permit Board's decision, stating that it was supported by substantial evidence and was, therefore, not arbitrary and capricious. Id. at 677.

Arguments

The objectors argued that the Permit Board erroneously ignored the factors favorable to the objectors by focusing on a single factor, leading to an unreasonable interpretation of the regulation. Id. at 678.

The objectors next argued that the Permit Board ignored complaints that were made by neighbors of the CAFO. Id. at 679. The objectors further argued that the Permit Board unreasonably interpreted various regulations so that it could not include terms that impose a large economic burden. Id. at 680.

The objectors argued that the Permit Board ignored "voluminous technical evidence and expert testimony submitted with respect to the odor and human health impacts of industrial hog farms . . . ." Id. at 681.

Analysis and Holdings

The court found that there was no error in the Permit Board's construction and application of the Mississippi regulations, stating that the factors required to be considered by the Commission provide a subjective standard. Id. at 679. The court accorded great deference to the agency's interpretation of its own rules and regulations. Id.

The court did find that the evidence that the Permit Board ignored complaints was not supported by the record. Id. The court recognized that the Permit Board detailed several of the complaints in its findings and ultimately affirmed the imposition of multiple air quality control requirements. Id. The Permit Board was required to examine three relatively objective factors in making its decision, and the court could not determine that the Permit Board did not consider all of the evidence in making its decision. Id. at 680. Therefore, the decision by the Permit Board was entitled to the requisite deference by the court. Id.

The court pointed out that Kennard (one of the objectors) could not show that the Permit Board's interpretation was in any way erroneous or unreasonable. Id. The court found that the Permit Board properly interpreted the regulations to require cost effective measures to achieve "the stated goal of regulation." Id. at 680. The Permit Board found that the current violations were not of such a degree that would justify "an imposition of conditions in Cook's permit that would place a potentially insurmountable economic burden on the facility." Id. at 680-81. The Permit Board found that the more elaborate measures, advocated by the objectors' expert, were unnecessary and that an installation of a windbreak was reasonable. Id. at 681. The court deferred to the Permit Board's interpretation finding that it was neither unreasonable nor contrary. Id.

The court found that the Permit Board provided sufficient findings of fact and conclusions of law, and the air permit approval was supported by substantial evidence. Id. at 682. The Permit Board was presented with "conflicting yet credible" evidence, and even thought the Permit Board's findings did not refer to each and every piece of evidence, they were specific enough to prove to the court that it was supported by substantial evidence. Id. at 681. The court stated that an agency does not have to refer to every piece of evidence in exhaustive detail in its findings. Id.

The case was decided on November 30, 2006; this summary was posted April 23, 2008.