Top NC Court to hear animal waste permit dispute on April 23

The North Carolina Supreme Court will hear arguments next month in a case pitting the state Department of Environmental Quality against the North Carolina Farm Bureau. The farm group opposes three conditions tied to state animal waste permits affecting 2,000 farmers statewide.

Oral arguments are scheduled for April 23.

DEQ’s Division of Water Resources hopes the state’s highest court will reverse a unanimous decision from a three-judge panel of the State Court of Appeals. Appellate judges ruled in November 2023 that the challenged permit conditions were state rules that should have been approved through North Carolina’s rule-making process.

“The Division has a robust process for issuing general permits for animal waste management systems and has been employing that process for decades to issue these permits for this important sector of North Carolina’s economy,” DEQ’s lawyers wrote in a brief filed Monday. “The Farm Bureau and other stakeholders have participated in that process over many iterations of these permits. … And the General Assembly has itself on multiple occasions enacted legislation dealing specifically with these permits and the process for issuing them without ever suggesting that the Division should have been adopting these permits as rules.”

“Now, because the Farm Bureau is dissatisfied with just three of the over eighty conditions in these permits, it seeks to upend the entire permitting program,” DEQ’s lawyers added.

The NC Chamber and National Federation of Independent Business filed a joint brief on Feb. 28 supporting the Farm Bureau’s case.

“NFIB’s and the N.C. Chamber’s members have an interest in ensuring that the government follows the administrative rulemaking process and considers the vital input of those being regulated,” the two business groups’ lawyers wrote. “When agencies neglect to promulgate rules that are binding on the public, this harms businesses, depriving them of the benefit of various levels of review that can improve a rule or stop its promulgation entirely.”

“[T]he issues presented in this case have implications far beyond the interests of the parties in this case,” the court filing continued. “If the Court of Appeals decision is overturned, it is likely that small businesses in every industry within the State of North Carolina will be negatively affected, as such a decision would open the door for every executive branch agency to regulate without having to go through the rulemaking process.”

The Farm Bureau filed its own brief in the case on Feb. 21.

“This case presents a foundational question of administrative accountability: whether state agencies may sidestep the safeguards of rulemaking by imposing sweeping regulatory mandates through general permits,” Farm Bureau lawyers wrote in their state Supreme Court brief. “North Carolina Farm Bureau asks this Court to affirm the Court of Appeals’ unanimous decision holding that three onerous conditions in the Division’s animal waste general permits are ‘rules’ under the Administrative Procedure Act.”

“These conditions, which dictate how thousands of farmers manage their operations, carry the force of law, expose farmers to penalties, and function exactly like rules, as defined by the APA,” the court filing continued.

An administrative law judge agreed with the Farm Bureau, but a Superior Court judge reversed that decision. Then a three-judge Appeals Court panel overturned the trial court’s ruling.

Appellate judges agreed with the Farm Bureau that three challenged conditions tied to general animal-waste permits adopted in 2019 were state rules. None of the three conditions proceeded through the state’s official rule-making process in the Administrative Procedure Act. All of those conditions are invalid, according to the Appeals Court opinion.

Each of the 2,000 affected hog, cattle, and poultry farms across North Carolina uses a “lagoon-and-spray-field system” to address animal waste.

Each challenged condition had been tied to a settlement agreement DEQ reached with the North Carolina Environmental Justice Network and other groups after a federal civil rights complaint.

“[T]he General Permit conditions are regulations under the NCAPA because they are ‘authoritative rule[s] dealing with details’ of animal-waste management systems,” Judge Jeff Carpenter wrote for the unanimous Appeals Court panel.  

“The challenged conditions are invalid until they are adopted through the rulemaking process,” Carpenter concluded.

A split 2-1 Court of Appeals panel issued an order in October 2022 blocking the rules from taking effect.

The post Top NC Court to hear animal waste permit dispute on April 23 first appeared on Carolina Journal.