Industrial Farms Evade Modern Operating Standards

By: Hannah Russell

When describing a farm, many Americans might paint a picture of animals grazing in green fields along rows of wheat. While that pastoral serenity may have been a reality in the past, that picture no longer exists today. Instead, most American farms, renamed as “concentrated animal feeding operations” (CAFOs), stink of ankle-deep manure juxtaposed against the image of animal corpses that have not been removed for weeks.[1] CAFOs provide challenges for both animal rights and environmental lawyers. The unsanitary, unnatural, and inhumane conditions that farm animals are forced to endure negatively impacts the quality of water, air, and life of humans.[2]

What are CAFOs?

CAFOs have varying definitions based on how many of a particular animal are housed in the facility.[3] The Environmental Protection Agency (EPA) defines a CAFO in the Clean Water Act (CWA) as a facility where animals are confined for at least 45-days a year, during which they are fed nutrients, including “residues” that “are not sustained in the normal growing facility . . .”[4] Essentially, CAFOs are high-density housing confinements where animals, instead of grazing on land, are brought nutrients usually in the form of corn-based feed that is not naturally digestible.[5] These operations are more commonly known of as “mega” or “industrial” farms and “animal factories.”[6]

Tyson and Smithfield, which control more than half of all U.S. pork production, are two primary examples of CAFOs.[7] Companies such as these drastically lower the price of livestock and poultry products not only by feeding their animals “residues,” but also by storing them into unsanitary facilities where animals live on top of each other without room to move.[8]

For example, laying hens live in caged areas smaller than a piece of paper, while sows lives so closely together that farmers cut their tails to prevent them from biting each other.[9]

Why are CAFOs bad?

Aside from the animal cruelty issues of CAFOs, they also have extremely poor and unregulated manure storage and disposal methods. This poor handling of manure acts as a major contributor to environmental degradation.[10] Agricultural animals in the United States produce three times more excrement than humans, and this manure often ends up in the air and bodies of water.[11]

Much of the environmental harms caused by CAFOs can be attributed to the poor living conditions of animals.[12] For example, CAFO housing barns have industrial fans to circulate the highly concentrated noxious fumes caused by piling manure and corpses that have not been removed.[13] To prevent their cash cows from dying, CAFO farmers use the fans to push the harmful gases and particulate matter outside—into the air we all breathe.[14]

When the waste is finally collected and disposed of, CAFO operators generally spread the manure throughout crop fields, further aerating the ammonia, hydrogen sulfide, and methane.[15] When the manure saturates the fields, it often leaks through the soil into underground drinking water, and any runoff effluent trickles down to nearby surface water.[16] The contamination of drinking water and groundwater caused by CAFOs is the leading cause of pollution to surface water bodies.[17]

People who live or work near CAFOs often complain of symptoms attributable to water and air contamination from the facilities.[18] However, CAFOs do not only affect nearby environments. For example, CAFO runoff often includes excess nitrogen and phosphorus from manure. These contaminants travel down the Mississippi River into the Gulf of Mexico where it ultimately destroys habitats and marine life.[19]

Who regulates CAFOs?

There are virtually no laws, federal or otherwise, that regulate farm animal living conditions.[20] The Federal Animal Welfare Act regulates companion animals and certain animals affecting commerce but expressly excludes farm animals.[21] The Humane Methods of Slaughter Act regulates methods of killing livestock but does not include poultry, and the Twenty-Eight Hour Law regulates transportation of farm animals but does not extend to living conditions.[22] While states could also regulate farms to a certain extent, most exclude farm animals from anti-cruelty statutes.[23]

Turning to environmental regulations, both the CWA and the Clean Air Act (CAA) indirectly address CAFOs. However, neither provide any means of redress for their environmental impacts.[24] The CWA implements the National Pollution Discharge Elimination System (NPDES), which requires any CAFO that has previously discharged pollution into surface water to obtain a permit before it can continue operating.[25] That said, “small” CAFOs, such as those housing less than 37,500 chickens, are not subject to NPDES unless individual states choose to be more restrictive than federal guidelines.[26]

Meanwhile, the CAA authorizes the EPA to protect and enhance air quality by establishing National Ambient Air Quality Standards (NAAQS).[27] Although CAFOs can emit more than 160 gases, the EPA rarely enforces the CAA against them.[28] Even if a CAFO emits enough air pollutants to trigger NAAQS, the EPA would never know because CAFOs are not required to monitor their emissions.[29]

Lastly, the Farm Service Agency (FSA), a branch of the U.S. Department of Agriculture, funds many construction and expansion efforts of CAFOs by either directly lending to CAFO farmers or connecting them with USDA-approved lending organizations.[30] FSA rules originally dictated that any CAFO receiving funding through USDA efforts must comply with the National Environmental Policy Act (NEPA). [31] NEPA requires federally subsidized agencies to compile impact statements that analyze possible environmental ramifications of their actions and alternatives.[32] Unfortunately, on July 16, 2020, the Council on Environmental Quality (CEQ), the entity responsible for developing NEPA enforcement procedures, issued a rule that completely exempts FSA-funded CAFOS from NEPA review.[33] Although NEPA did not require CAFOs to change their actions whatsoever, the reports at least made the activity of CAFOs available to the public.[34]

Some states also enforce anti-whistleblower “ag-gag” laws, which “make taking pictures, filming, or recording on farms and livestock production facilities illegal.”[35] These “ag-gag” laws, in combination with the lack of publicly available CAFO Environmental Impact Statements, makes it significantly harder for neighbors, organizations, or other concerned citizens to file a complaint with the state.[36] Exacerbated by CAFOs being repealed from NEPA oversight, the legal hole created by the lack of regulatory laws over CAFOs leads to an inherent outcome—unregulated agricultural practices—which directly affect human health and welfare.

What’s the bottom line?

Although most Americans do not live near CAFOs, they affect everyone. Zoonotic illnesses, fostered by unsanitary farming tactics, directly contributed to the COVID-19 pandemic.[37] Not coincidentally, in 2020, the American Public Health Association called for the EPA to begin monitoring CAFO air emissions to study how they contribute to community health risks.[38]

Toothless environmental statutes, combined with no federal statutes pertaining to animal living conditions, allow for CAFOs to go completely unchecked. While these farm animals are generally not in our backyards, their welfare is intimately connected to our welfare. Turning a blind eye to CAFOs will only exacerbate the damage they continue to do.[39]

 

 

[1] Michael Pollan, The Omnivore’s Dilemma 317 (2007); Why are CAFOs bad?, Sierra Club Michigan Chapter, https://www.sierraclub.org/michigan/why-are-cafos-bad (last visited Nov. 22, 2022).

[2] Lindsay Walton & Kristen K. Jaiven, Regulating CAFOs for the Well-Being of Farm Animals, Consumers, and the Environment, 50 ELR 10484, 10485 (2022); Sierra Club, supra note 1.

[3] Env’t Prot. Agency, Regulatory Definitions of Large CAFOs, Medium CAFOs, and Small CAFOs, https://www3.epa.gov/npdes/pubs/sector_table.pdf; Doug Gurian-Sherman, Union of Concerned Scientists, CAFOs Uncovered, The Untold Costs of Confined Animal Feeding Operations 13 (2008), https://www.ucsusa.org/resources/confined-animal-feeding-operations-uncovered

[4] 40 C.F.R. § 122.23(b) (2022).

[5] Walton & Jaiven, supra note 2 at 10486; E.g. Sierra Club, supra note 1.

[6] Sierra Club, supra note 1.

[7] See Walton & Jaiven, supra note 2 at 10487.

[8] E.g., Lars Johnson , Pushing NEPA’s Boundaries: Using NEPA to Improve the Relationship Between Animal Law and Environmental Law, 17 N.Y.U. Envtl. L.J. 1367 (2009).

[9] Id. at 1386-87.

[10] Walton & Jaiven, supra note 2 at 10486.

[11] Pew Comm’n on Indus. Farm Animal Prod., Putting Meat on the Table: Industrial Farm Animal Production in America, The Pew Charitable Trusts and Johns Hopkins Bloomberg School of Public Health, 23 (2008), https://www.pewtrusts.org/-/media/legacy/uploadedfiles/phg/content_level_pages/reports/pcifapfinalpdf.pdf; e.g. Gurian-Sherman, supra note 3 at 3-4.

[12] E.g. Gurian-Sherman, supra note 3, at 5-6.

[13] Sierra Club, supra note 1.

[14] Id.

[15] Id.; Walton & Jaiven, supra note 2, at 10486.

[16] See Walton & Jaiven, supra note 2, at 10493.

[17] Id.

[18] Id. at 10487.

[19] Compare id. at 10484, with National Oceanic and Atmospheric Administration, What is a dead zone?, https://oceanservice.noaa.gov/facts/deadzone.html (last visited Nov. 23, 2022).

[20] See, e.g., Bonnie M. Ballard, COVID and CAFOs: How a Federal Livestock Welfare Statute May Prevent the Next Pandemic, 100 NCLR 282, 291 (2021); See also Walton & Jaiven, supra note 2, at 10489-91.

[21] Walton & Jaive, supra note 2, at 10489-90 (citing 7 U.S.C. § 2131); Ballard, supra note 20, at 284 (citing 7 U.S.C. § 2132(g)).

[23] See David J. Wolfson & Marianne Sullivan, Foxes in the Hen House— Animals, Agribusiness, and the Law: A Modern American Fable, in Animal Rights: Current Debates and New Directions (Cass R. Sunstein & Martha C. Nussbaum eds., 2004); See also Pew Comm’n on Indus. Farm Animal Prod., supra note 11, at 38.

[24] Walton & Jaiven, supra note 2, at 10493.

[25] Sierra Club, supra note 1.

[26] Id.; Env’t Prot. Agency, supra note 3.

[27] 42 U.S.C. § 7408.

[28] Walton & Jaiven, supra note 2, at 10494 (citing J. Nicholas Hoover, Can’t You Smell That Smell? Clean Air Act Fixes for Factory Farm Air Pollution, 6 STAN. J. Animal L. & POL’Y 1, 7 (2013)).

[29] See, e.g., Env’t Integrity Project, Raising a Stink: Air Emissions from Factory Farms, http://www.environmentalintegrity.org/pdf/publications/CAFOAirEmissions_white_paper.pdf

[30] David N. Cassuto & Tala DiBenedetto, Suffering Matters: NEPA, Animals, and the Duty to Disclose, 42 U. Haw. L. Rev. 41, 59-60 (2020).

[31] 7 C.F.R. § 799.1.

[32] See 42 U.S.C. § 4332(C).

[33] 85 F.R. 43303, https://www.federalregister.gov/documents/2020/07/16/2020-15179/update-to-the-regulations-implementing-the-procedural-provisions-of-the-national-environmental; see Challenging CEQ’s CAFO Exemptions Under NEPA, Animal Legal Defense Fund, https://aldf.org/case/challenging-ceqs-cafo-exemptions-under-nepa/ (last visited Nov. 23, 2022).

[34] Challenging CEQ’s CAFO Exemptions Under NEPA, supra note 33.

[35] Sonci Kingery, The Agricultural Iron Curtain: Ag Gag Legislation and the Threat to Free Speech, Food Safety, and Animal Welfare, 17 Drake J. Agric. L. 645, 647 (2012).

[36] See generally Id. at 656.

[37] Kenji Mizumoto, Katsushi Kagaya & Gerardo Chowell, Effect of a Wet Market on Coronavirus Disease (COVID-19) Transmission Dynamics in China, 2019-2020, 97 INT’L J. INFECTIOUS DISEASES 96, 96 (2020).

[38] Johns Hopkins Center for a Livable Future, Action 4: Requiring Strengthening CAFO Regulations Under the Clean Air Act (June 2020), https://clf.jhsph.edu/sites/default/files/2020-06/apha-cafo-4.pdf.

[39] Ballard, supra note 20, at 307.