Appeals Court rejects environmental activists’ legal challenge of hog waste permits

A unanimous state Court of Appeals panel has upheld lower court rulings against environmental activist groups challenging state hog waste permits. Appellate judges found no error Tuesday in lower courts’ approach to the case.

The Environmental Justice Community Action Network and Cape Fear River Watch opposed permits issued in 2021 from the state Department of Environmental Quality. DEQ granted the permits for “new systems of hog waste management” at four Duplin and Sampson county farms owned and operated by Murphy-Brown, according to the Appeals Court opinion.

“In recognition of the importance of animal operations to the economy of this State and the inherent tension in maintaining those operations against our need for environmental safeties, our legislature has designed an alternate permitting process for animal waste management systems,” wrote Judge Jefferson Griffin. “This alternate process seeks to reduce the administrative burden of those permitting decisions while protecting the air and water resources of this State from undue pollution.”

The environmental groups argued that “DEQ failed to consider whether (1) Murphy-Brown’s proposed systems were the least adverse system available and (2) the cumulative effects of the proposed systems were reasonable under Article 21, Part 1 of Chapter 143 of the North Carolina Rules of Civil Procedure,” Griffin explained.

“DEQ did not err in declining to consider the requirements asserted by Petitioners, because the permits requested in this case fell within the alternate permitting process described in Part 1A of Article 21, not Part 1,” Griffin wrote. “We hold Petitioners’ appeal is appropriately before this Court and affirm the Superior Court’s order.”

Murphy-Brown submitted applications in December 2019 to install new “swine digester” animal waste systems at four of its industrial hog farms. DEQ authorized installation in March 2021.

The new system was designed to help convert hog waste into energy. “Prior to the Permits’ grant, the Farms had practiced a waste management system of sluicing treated animal waste into open-air lagoons, then spraying the wastewater onto fields as fertilizer for nearly twenty years,” Griffin wrote. “The addition of anaerobic digestion systems covering portions of the lagoons would allow the Farms to capture methane and other biogases produced during the waste disposal process for further use as an energy source.”

“Following the anaerobic digestion process, remaining liquid waste would then be stored in open-air lagoons and sprayed onto fields as fertilizer,” the judge added. “The Permits expressly forbade the Farms from increasing the quantity of stocked animals or volume of waste flow at each location without prior approval and instituted several additional compliance obligations.”

The state’s chief administrative law judge ruled in favor of DEQ when the environmental groups challenged the department’s decision. A New Hanover County Superior Court judge upheld that decision in August 2022.

Griffin cited a recent change in state law that helped bolster the legal argument favoring DEQ and Murphy-Brown. As of October, the relevant state law makes “Part 1A the only avenue through which an applicant may seek an animal waste management system permit,” he wrote. “The present version of the statute certainly does not apply to the Permits at issue here. However, the changes do assist in our analysis of the legislature’s intent.”

Judges Valerie Zachary and John Arrowood joined Griffin’s opinion. As an unpublished opinion, the decision holds limited value as a precedent for future disputes.