Environmental groups file lawsuit to block New York dairy CAFO changes

A coalition of environmental groups has filed a lawsuit against the New York State Department of Environmental Conservation (DEC), seeking to roll back initiatives designed to make it easier for dairy farms with fewer than 200 cows to expand to meet the state yogurt industry’s growing demand for milk. The changes would allow dairies to grow to 299 cows without facing some costly and extensive environmental permits. 

The environmental groups allege DEC’s rule allows medium-sized concentrated animal feeding operations (CAFOs) to operate without a permit, and is a violation of both federal and state law. The groups are co-represented in the lawsuit by Pace Law School's Environmental Litigation Clinic and Earthjustice.

New York Gov. Andrew M. Cuomo hosted the first New York State Yogurt Summit to hear ideas from industry leaders, farmers and other stakeholders to help ensure that the yogurt industry continues to grow in New York. Following a hearing process, he announced initiatives to expand milk production in the state.  The New York Farm Bureau estimated there are 800 dairy farms with 100-199 cows that could benefit from CAFO reforms and expand milk production. If just 10% of those farms add 100 cows to their herd, milk production would grow by more than 160 million lbs. of milk per year. 

The environmental groups filed formal comments in response to Gov. Cuomo’s proposed rule-making in January 2013, stating that DEC had not adequately reviewed the human health, environmental and economic impacts such an action would have on state and local communities, which it must do prior to taking such an action. 

The groups’ lawsuit, filed in the state Supreme Court in Albany County, raises a number of claims against the state’s action, including:

  •     DEC exceeded its regulatory authority by creating a loophole for industrial dairies in the Water Pollution Control Law enacted by the New York State legislature, undermining the legislature’s intent to prevent discharges of pollutants into state waters. 
  •     DEC did not adequately examine all adverse environmental impacts the deregulation will have, nor fully consider alternative strategies that could provide both an economic and environmental benefit to the state and its dairy farmers.
  •     • DEC failed to obtain EPA approval as required prior to revising Clean Water Act permitting standards.
  •     DEC violated the Clean Water Act and state law by making its CAFO Permit Program less stringent than the minimum Federal requirements.
What they said …

Environmental groups filing the lawsuit issued the following comments:

“The burden of the massive amounts of manure and other waste generated by industrial-sized dairy facilities is borne by the communities who live near them and by the environment,” said Eve Gartner, the Earthjustice attorney handling the case. “Requiring regulatory oversight of the disposal of these tons of manure is just common sense.” 


Factory farms are one of the greatest sources of water pollution in the country,” stated Robert F. Kennedy, Jr., President of Waterkeeper Alliance and Chief Prosecuting Attorney for Riverkeeper. “Deregulating an already dirty business in other states has destroyed water quality and done nothing more than put money in the hands of a few corporations at the expense of the public. It is a shame that New York would want to follow that terrible precedent, rather than support family farms with the resources they need to operate in a way that protects the water quality we’ve fought so hard to maintain.”


Paul Gallay, President and Hudson Riverkeeper, stated: “What the state did, when it eliminated key clean water regulations for medium sized dairy farms, is a textbook case of sacrificing the environment in a misguided attempt to advance economic interests. Rather than eliminating these regulations, which had been on the books for years, the state should have assisted farmers in meeting those standards. Instead, they adopted a voluntary approach to protecting our precious rivers, lakes and streams from farm runoff, which they had explicitly rejected as ‘neither credible nor effective,’ only a year ago.” 


“DEC admits that animal manure and other dairy waste will be discharged into New York’s waterways unless these dairy operations voluntarily implement the permitting system pollution controls, which is highly unlikely," said Marc Yaggi, Executive Director of Waterkeeper Alliance. "DEC acknowledges that the nitrogen, phosphorus and pathogens that would be discharged pose serious threats to public health, water quality, fisheries, water supplies, recreation, and groundwater wells in New York. DEC's actions are unacceptable and violate state and federal law.”


“The health of New Yorkers cannot be placed at risk by exposing us to raw, untreated manure. Industries should not be exempt from clean water regulations nor should the laws be weakened to accommodate a particular industry. Weakening and ignoring clean water regulations is bad public health policy and unacceptable to the people and environment of our state. Citizens Campaign for the Environment is happy to stand with our partners to protect public health, our water and our environment,” said Adrienne Esposito, Citizens Campaign for the Environment Executive Director.  


"The false narrative that water quality protections are suppressing milk production will hurt everyone in the long run,” said Roger Downs, conservation director for the Sierra Club Atlantic Chapter. “Clean water is a central element to any successful dairy farm and removing protections that keep manure out of our rivers and streams will only  make people sick and harm the quality of milk and the products made from that milk. "


“The impact of changing the regulation will be felt at a much greater distance than where the cattle waste is deposited because of the brooks, streams and tributaries that will lead to the Hudson River that is used extensively for recreational fishing. Drinking water will also be negatively impacted throughout whatever water system the new regulations allow the spreading of cattle manure,” stated Bert Darrow, President, Theodore Gordon Flyfishers. 


Michael R Helfrich, Lower Susquehanna Riverkeeper, added: "The lower Susquehanna River is thick with algae, mostly from agricultural pollution. We have been working diligently to improve Pennsylvania's implementation of pollution reductions to heal the Susquehanna River and Chesapeake Bay. We don't need New York to reduce their standards on controlling their agricultural pollution."