Md. circuit court judge reverses final AFO permit (Ag Law)
(Editor’s note: Paul Goeringer is a University of Maryland Extension legal specialist in agricultural and resource economics. This column should not be interpreted as legal or financial advice for the reader.)
Earlier this month, a circuit court judge in Montgomery County reversed the Maryland Department of the Environment’s final 2020 Animal Feeding Operation Discharge Permit for not considering ammonia emission discharges into the air as a pollutant into the water, since the ammonia discharges could fall into waters covered by Clean Water Act.
MDE has recently announced that they will be appealing this decision.
The MDE began work on reissuing the AFO discharge permit in 2019 and allowed the public to comment on the draft permit during this process.
Assateague Coastal Trust provided comments during the comment period related to gaseous ammonia discharge from concentrated animal feeding operations.
In particular, ACT had concerns that the permit did not adequately address discharges of air pollution (including ammonia) from exhaust fans and manure storage areas into the air and surface waters.
MDE responded to this concern by pointing out that the Environmental Protection Agency (EPA) does not regulate odors and air quality through the CWA permitting program.
Because MDE derives its authority through that delegated to it by EPA, MDA consequently also refused to take odors and air quality into account.
MDE issued the final permit in July 2020, with no limitations on ammonia emissions.
ACT filed a petition for judicial review of the final AFO permit for not limiting ammonia discharges.
Typically, courts will defer to an agency’s interpretation of the law unless that interpretation interprets the law erroneously.
If a ruling erroneously interprets the law, then the court can substitute its judgment for the agency’s interpretation.
To the circuit court judge in this case, the Maryland General Assembly broadened the CWA’s reach in the state with water quality legislation passed to provide additional remedies for the state’s waters.
Included in this expansive view was the use of the word “emit” by the General Assembly in the definition of discharge.
Looking at the dictionary definition of “emit,” the court determined it would include gaseous emissions such as ammonia from a poultry fan in a gaseous state.
MDE argued that using this interpretation would broaden the existing law and require MDE to regulate chimneys and cars for potential gas discharges that would hit the waters in the state.
To support this, MDE cited a federal case, “Chemical Weapons Working Group, Inc. versus U.S. Department of the Army.”
In that case, a group argued that pollution caused by incinerating chemical weapons would fall to the earth and land in CWA-covered waterways, requiring the Army to receive a discharge permit first.
The Tenth Circuit Court of Appeals refused to construe the CWA to require a permit for air emissions.
The circuit court disagreed that this decision supported MDE’s argument because incinerating chemical weapons was authorized by Congressional action.
The General Assembly had not provided similar authorizations to allow ammonia discharges.
Incinerating chemical weapons to the circuit court was a one-time event, and possible CWA violations were insubstantial compared to potential repeated violations by the AFOs here.
he circuit court ruled that MDE erred as a matter of law by not including gaseous ammonia emissions and reversing the AFO permit’s final determination.
As mentioned earlier, MDE is currently appealing this lower court decision, so it will not be the last word on the decision.
One important note is that the circuit court quickly rejected the Tenth Circuit’s decision as not on point with this case.
The three-judge panel in that case found that taking the Chemical Working Group’s argument to regulate the emissions from the incineration of chemical weapons would create direct conflict between the CWA and the Clean Air Act, the federal law regulating air emissions.
In that case, the Army had received the necessary permits including a CAA-required permit.
To the panel, this direct conflict would create an irrational result of regulating air emissions under the CWA and not the CAA.
If we compare this to the circuit court’s decision, here we have an activity currently exempt under the CAA, but a circuit court ruling that would now regulate the discharges under water pollution statutes. Courts often try to avoid irrational results or putting statutes in conflict when interpreting statutory provisions.
With that said, this decision could have real-world implications far beyond the agricultural sector in Maryland. We will have to wait and see what the final outcome could be based on the appeal.