Beriah Smith

The agricultural industry is the last frontier of environmental law. It currently enjoys some kind of exemption or loophole under every major environmental statute.[1] Though these exemptions may have seemed reasonable in the past, the agricultural industry has changed significantly since the days these policies were enacted.[2] In the dairy industry, the number of farms in the United States has dropped while the average herd size per dairy farm has risen.[3] This means higher concentration of manure in smaller areas. There is a growing concern about dairies storing large amounts of manure in unlined lagoons. The lagoons allow for nitrates from the manure to leak into groundwater.[4] A 200 cow dairy farm produces about the same amount of nitrogen from its manure as a community of 5,000–10,000 people.[5] This Note analyzes a court case that deals with cow manure generated by a dairy farm that cares for 11,000 cows and the nitrate level in the surrounding groundwater is above what the Environmental Protection Agency (EPA) recognizes as safe.[6]

Environmental advocacy groups have been unsatisfied with the slow progress of environmental enforcement on the agricultural sector. With legislatures and administrative agencies slow to move against farmers’ interests, environmental advocacy groups have shifted their focus to using nuanced legal arguments to bring agriculture under the regulation of existing statutes. Community Association for Restoration of the Environment, Inc. (CARE) filed a suit in the District Court for the Eastern District of Washington against a large dairy farm in Washington called Cow Palace.[7] Their claim attempts to bring cow manure under the regulation of the Resource Conservation and Reclamation Act (RCRA).[8] The EPA has traditionally exempted cow manure applied to soil as fertilizer under RCRA.[9] CARE claims that the manure has been over-applied to the point that it is no longer being used as a fertilizer and should be considered a dumping of a solid waste. This argument compelled the District Court of Washington to find that the way the farmer stored the manure in unlined lagoons and applied it to fields constituted the manure as a solid waste under RCRA.

This Note presents an overview of how this case came to be and follows it from beginning to end. It highlights the arguments presented on both sides while analyzing the reasoning of the District Court’s ruling under the nebulous case law surrounding RCRA. The note also offers policy guidance in determining how much applied manure is too much. Then it goes on to suggest that the courts present a clear rule to determine when RCRA is “inconsistent” with other statutes by adopting an analysis similar to the federal pre-emption doctrine. This is followed by an analysis of the appropriate remedies available to the plaintiffs, which the court has yet to decide. Finally, the Note concludes by finding that this case should be a warning to farmers nationwide. Farmers should assess their current operations and adopt new manure management policies to avoid citizen suits and agency enforcement actions.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] See generally J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 Ecology L.Q. 263 (2000).

[2] U.S. Dep’t of Agric., Changes in the Size and Location of U.S. Dairy Farms, in Profits, Costs, and the Changing Structure of Dairy Farming 2 (2007), available at http://www.ers.usda.gov/media/430528/err47b_1_.pdf (statistics as of 2006).

[3] Id. at 1.

[4] Joshua H. Viers et al., Nitrogen Sources and Loading to Groundwater 6–7 (U.C. Davis 2012).

[5] See U.S. Dep’t of Agric., supra note 2, at 1.

[6] EPA, Lower Yakima Valley Groundwater Quality 6–7 (2010).

[7] Cmty. Ass’n for Restoration of the Env’t, Inc. v. Cow Palace, LLC, No. 13-CV-3016-TOR, 2013 WL 3179575 (E.D. Wash. June 21, 2013).

[8] 42 U.S.C. § 7412 (2012).

[9] 40 C.F.R. § 261.4 (2011).