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Each month, One Green Planet reports on major cases in animal law. Because attorneys use the law in creative ways to protect animals, we cover all sorts of issues ranging from cases protecting endangered species to those defending the free-speech rights of activists.

This month, we’re discussing an environmental case in which environmental, Animal rights and local agriculture groups came together and successfully sued the government, making it harder for companies to create and expand factory farms.

The Environmental Harms of Raising and Slaughtering Animals

As most readers know all too well, “animal agriculture” facilities aren’t just problematic because of the systemic cruelty they inflict on billions of animals each year.  In addition, the industry wreaks havoc on the environment through, for example, air and water pollution.  With respect to water Pollution, agriculture contributes to the impairment of at least 170,750 miles of rivers, 2,417,801 lake acre, and 1,827 estuary square miles in the U.S., with animal waste accounting for a large portion of this Pollution.

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Concentrated Animal Feeding Operations (“CAFOs“), agricultural facilities that keep a large number of animals confined to a small, densely populated space, are responsible for some of the worst treatment of animals and the worst Pollution.  CAFOs for pigs, for example, typically collect the pigs’ waste in massive lagoons that can stretch the length of several football fields.   According to the Environmental Protection Agency, such manure can be a source of salts, ammonia, heavy metals, antibiotics, pesticides, and hormones.

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The National Environmental Policy Act (“NEPA”): How it Works

NEPA is one of the most important environmental laws in the United States because it requires all federal agencies to take environmental issues into account before effecting an agency decision or policy.  There are three levels of environmental analysis an agency may conduct under NEPA:

  1. Environmental Impact Statement (“EIS”): An EIS is a thorough analysis that agencies must prepare before taking any action that will significantly affect the quality of the environment.
  2. Environmental Assessment (“EA”):  An EA is a less rigorous analysis that agencies can use to decide whether or not a federal action has the potential to cause significant environmental effects.  If the agency determines there’s a potential for significant effects, it conducts an EIS.  Otherwise, it issues a “Finding Of No Significant Impact” (“FONSI”).
  3. Categorical Exclusion (“CATEX”): CATEXs exempt agencies from preparing EAs or EISs for categories of actions because the actions do not normally have a significant effect on the environment.

Because CATEXs allow agencies to avoid environmental reviews for discrete actions, agencies can’t simply create CATEXs offhandedly.  Instead, agencies need to make a determination that the category of actions will not—individually or cumulatively—have a significant environmental impact; they must provide an opportunity for public comment; and they must submit the CATEX to the Council on Environmental Quality to review.

Striking Down a CATEX for CAFO Loans

In 2016, the Farm Service Agency (“FSA”) passed a rule for making loans to “medium-size” CAFOs: CAFOs that can hold up to 699 dairy cows, nearly a thousand veal calves, or almost 125,000 chickens, for up to 45 days.  Incredibly, even though loans would enable businesses to create or continue CAFOs, and CAFOs have a huge impact on the environment, the agency implemented a CATEX for these operations.

In Dakota Rural Action v. USDA, plaintiffs sued the government arguing that the CATEX for medium-size CAFO loans was improper.  As they explained, keeping hundreds or thousands of animals in cramped conditions poses major threats to water and air quality, as well as health and safety in rural communities, and the agency’s rule inexplicably ignored these harms.

This month, the Court sided with the plaintiffs.  Judge Kollar-Kotelly explained in her ruling that the agency had failed to follow the necessary procedures.  It did not provide notice to the public that it was considering a CATEX for these loans and “failed to undertake the reasoned analysis required by NEPA before creating [one].”  In fact, as the Judge noted, the agency’s position was strikingly inconsistent; the agency issued the CATEX for medium-sized CAFO loans after stating, for years, that doing so would be improper.

Because of the Court’s ruling, FSA must undertake a proper environmental analysis before funding medium-sized CAFOs—marking a major victory for animals and the environment.  Daniel Waltz of the Animal Legal Defense Fund, one of the attorneys for plaintiffs, summed up the opinion by explaining that the government can no longer make “harmful decisions to create and expand waste-spewing factory farms” without notifying communities and allowing them to weigh in.

For previous Animal Law Updates, be sure to check out:

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