Farm Bureau details ‘sue-and-settle’ complaints about NC animal waste rules

The N.C. Farm Bureau Federation detailed concerns in a court filing Monday about a “sue-and-settle” scheme that could have influenced new state animal waste regulations. The N.C. Court of Appeals is scheduled to address the Farm Bureau’s complaint in the coming months.

The Farm Bureau is challenging “three identical conditions that appear in three general permits,” according to earlier court documents. Regulators in Gov. Roy Cooper’s Department of Environmental Quality created those permits for cattle, hog, and poultry farms in North Carolina.

The case could have implications for more than 2,000 N.C. farms. Each uses a “lagoon-and-spray-field system” to address animal waste.

A split 2-1 N.C. Court of Appeals issued an order in October 2022 blocking the rules from taking effect. That order is scheduled to remain in place during the Farm Bureau’s appeal.

The Farm Bureau started the legal fight in 2019. It argues that the disputed conditions were rules that should have proceeded through the state’s standard rule-making process, as set out in the state Administrative Procedure Act. The Farm Bureau also argues that the conditions first appeared in a “draft swine general permit that DEQ developed behind closed doors with several nonprofit organizations.” The complaint contends that DEQ never subjected that draft permit to mandated public review and comment.

In its latest court filing, the Farm Bureau referred to the nonprofit groups as federal “Title VI complainants.” Title VI refers to the portion of the federal Civil Rights Act of 1964 that environmental activist groups have used to pursue their goals through the courts.

The brief states “the question at the core of Farm Bureau’s sue-and-settle claim: What did the Title VI Complainants get through the settlement agreement?”

“The Community Groups put it best,” according to the Farm Bureau brief. “The Title VI Complainants got a starting point to make changes in the General Permits they had been trying to obtain for years. Through the Title VI process they were finally able to get their policy positions included as conditions in a draft swine permit.”

“It is hardly misleading to say that at that moment the Title VI Complainants’ policy preferences ‘first appeared’ in a draft swine permit,” Farm Bureau’s brief argued. “It is also not a stretch to say the draft permit was written behind closed doors without input from farmers, when the Title VI Complainants were responsible for representatives of the regulated community being excluded from the negotiations.”

“In the settlement agreement, the Complainants secured a promise that DEQ would ‘advance and explain’ their policy changes through the stakeholder process,” the brief continued. “While the settlement agreement contained various caveats, the fact that DEQ agreed to move the proposed changes forward and to advocate for them is significant.”

“It is true DEQ reserved the right to adjust, but in the end, the Title VI Complainants got what they wanted: new permit conditions imposing additional regulatory burdens on the farmers who must implement them,” Farm Bureau’s brief argued. “In sum, the Complainants used the negotiations as leverage to accomplish their long-sought policy objectives.”

“The practical effect of getting the conditions in the draft swine permit via the settlement agreement and having the permit serve as the starting point for development of the General Permits is that Title VI Complainants policy preferences enjoyed a significant advantage over those of the regulated community,” the brief continued. “Even though the Division and Community Groups refuse to admit it, once a policy concept is included in a draft permit, regulation, or bill, it is hard to get the concept removed.”

“No matter how much the Division and Community Groups want to ignore or dismiss
it, the Division’s approach to developing the General Permit was unfair,” the Farm Bureau argued.

The Appeals Court has not yet scheduled the case yet for review by a three-judge panel.

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