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A Victory for Oklahoma in Poultry Pollution Case

By: Christine Grillo

A long-awaited court decision is the most recent example of the slow but powerful arm of litigation in addressing the public health impacts of industrial livestock production. The recent decision is paving the way for cleaner water and protection of natural resources in Oklahoma, and it came 18 years after the lawsuit was filed. The decision clearly finds fault with 11 poultry companies for polluting the Illinois River watershed. As the saying goes, sometimes the wheels of justice turn slowly, but they grind fine.

The lawsuit was filed in 2005 by Oklahoma’s Attorney General at the time, Drew Edmondson, and it alleged that poultry litter was polluting the watershed. Poultry litter is chicken manure (waste including feces and urine) plus bedding material such as sawdust, and feathers. The poultry companies regularly spread litter on crop land, allegedly to fertilize crops. But poultry litter is high in phosphorus, and when it’s applied directly to land, it can leach into nearby streams and groundwater, and disrupt their aquatic ecosystems.

“There are three pathways to reform. There’s legislation. There’s regulation. And there are the courts,” says Bob Martin, a Senior Advisor at the Center for a Livable Future. “The most powerful pathway is the courts.”

In this case, the presiding judge, US District Court Judge Gregory Frizell, agreed that phosphorus from the litter was causing excess green algae, blue-green algae in Lake Tenkiller, low-dissolved oxygen in the Illinois River, and reduced transparency of the waterways. With more algae and less dissolved oxygen, waterways can suffer from eutrophication, which leads to an overgrowth of still more algae, an excess of aquatic plants that deplete the system of oxygen and eventually leads to mass fish die-offs and dead zones.

“The court concludes all defendants [the poultry companies], by their conduct, have unreasonably interfered with the public’s right to the use and enjoyment of the waters of the IRW (Illinois River watershed) in Oklahoma,” Judge Frizzell wrote in his report. The 11 poultry companies responsible for the pollution will be legally obligated to provide remediation efforts to the watershed, and they will not be allowed to spread more litter on their land than is deemed agronomically acceptable.

Despite the lawsuit being filed in 2005, the case was not heard until 2009, and the bench trial consumed 52 days, spread out over a 148-day period. For reasons that are not clear to the public, the case languished for 18 years after the suit was filed.

Bob Lawrence, the founding director of the Johns Hopkins Center for a Livable Future, speculates that it languished that long because the stakes were so high. “The Attorney General was going up against Tyson and Cargill and a lot of other big corporations,” he says. (The 11 defendants included Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production LLC, George’s Inc., George’s Farms Inc., Peterson Farms Inc., and Simmons Foods Inc.)

Charlie Tebbutt, an environmental lawyer who specializes in litigation against concentrated animal feeding operations (CAFOs), feels that the win is tempered by how long it took.

“Justice delayed is justice denied,” says Tebbutt. “The decision came 18 years after the start, and in those intervening years, the pollution, which was rampant, became even more significant. It’s important that these decisions come out earlier so that justice can be meted out.”

Over more than two decades, the Center for a Livable Future has worked with people such as Charlie Tebbutt and organizations dedicated to taking legal action against the potential hazards to human health from factory farms, also known as industrial food animal production, or IFAP. Through collaborations with the Community Association of Restoration of the Environment (CARE), led by Helen Reddout, Friends of Toppenish Creek, Public Justice, and the Center for Food Safety, the Center has supported lawsuits that rely on rigorous scientific evidence to make their cases.

One such case that is referred to throughout the food and environmental movements as “landmark,” “groundbreaking,” and “precedent-setting” is the case of CARE et al. v. Cow Palace LLC. In this instance, the plaintiffs, CARE and the Center for Food Safety, brought suit against a megadairy that was responsible for pollution in the Yakima Valley in Oregon. Bob Lawrence testified as an expert witness for the health implications of nitrate pollution of drinking water from wells that were contaminated by leachate in the groundwater beneath manure piles. The case was decided in 2015 by a federal judge who interpreted the Resource Conservation and Recovery Act to include manure as a solid waste. (The Resource Conservation and Recovery Act, or RCRA, dictates the proper control of hazardous and non-hazardous solid waste.)

“The court case victory was critically important,” says Lawrence.

“The significance of the Yakima decision was that, for the first time, a federal court defined the over-application of livestock waste as a hazardous waste under RCRA,” says Martin. “The courts are where you make progress.”

Sometimes the court system is the only recourse for communities whose homes, neighborhoods, livelihoods, and health are threatened by IFAP. Ideally, local and state regulatory agencies would address the hazards, but reduced enforcement capacity and weak regulations, as well as right-to-farm laws and ag-gag laws, hobble the agencies. When these agencies are weakened, they’re unable to hold IFAP operators accountable or protect communities’ health and environment.

“For these reasons, the courts have become one of the few ways to begin to address these injustices,” says D’Ann Williams, an Assistant Scientist at CLF. “Unfortunately, the power and deep pockets of industry often lead to sealed settlements with only monetary relief, which inhibits true system change.”

More meaningful court outcomes, says Williams, would involve injunctive relief that would require specific actions to address historic harms or prevent future harms by the corporations responsible for damage.

Lawrence and the Center came to be involved in the Oklahoma case because of expert witness testimony that he provided on an earlier case in Missouri in 2009. That earlier case in Missouri was one in which the plaintiff comprised seven Missouri farm families who were suing Premium Standard Farms, a pork manufacturer with a large scale CAFO  —up to 80,000 hogs—in northern Missouri. The farm families, who lived within a mile and a half of the facility, were suing because the stench from the CAFO was a life-altering nuisance. Premium Standard Farms had been acquired by Smithfield Foods in 2007.

Lawrence recalls that he met with a few of the farmers that had been part of the suit. “I heard firsthand their stories of being out on the tractor, preparing a field for planting or harvesting, and the wind would shift and the stench from hog CAFO was so overwhelming that they’d retch and run indoors. They stopped holding BBQs and picnics, which had been a mainstay of relationships with people in town.”

Representing the Missouri plaintiffs was Charlie Speer, a lawyer who devoted his career to battling CAFOs and tried to hold them accountable for the environmental damage they caused. As an expert witness in the Missouri case, Lawrence was interrogated by Speer. Speer showed slides of the hog manure lagoons, one with a 5-inch crust of flies feasting on it. Lawrence cited data about the range of that species—"filth flies”—and how they could contaminate whatever they came into contact with. “While I was looking at the jury, I caught a juror’s eye and said, ‘Can you imagine how the farmers and families might feel about one of those flies landing on their egg salad?’” says Lawrence. Speer later told him that when he saw the juror nod, he knew that was the tipping point for the case. In 2010, the jury found for the plaintiffs, awarding $11 million to the families.

Charlie Speer connected Lawrence to the Edmondson’s team in Oklahoma, suggesting that he would be a good witness for that case. After a call with Edmondson, Lawrence flew to Tulsa to learn more about that case against the poultry companies. One thing he learned is that the state’s Department of the Environment had been focusing on the wrong pollutants—bacterial contamination—of the waterways instead of phosphorus pollution. But phosphorus was the real culprit with regard to algae in waterways like Lake Tenkiller and the Illinois River.

In the Oklahoma case, the defendants—the poultry companies comprised of Tyson, Cargill and more—contended that they were already ameliorating the pollution situation. Some of those mediations included stream bank restoration and filter strips.

“But the unique aspect of the Illinois River watershed is that it’s karst limestone, which has been around long enough for water erosion to create openings down into groundwater and caves,” says Lawrence. “Streambank restoration and filter strips would have dealt with lateral runoff, but not vertical penetration of groundwater [made possible by the karst limestone].”

Some of the expert witnesses in the case were hydrologists, and Lawrence collaborated with them to build a case for how the poultry litter runoff was penetrating into the groundwater, and what the environmental and ecosystem impacts of phosphorus are in that situation.

In the Missouri case, residents living near a large-scale CAFO took legal action against the CAFO because of how the operation was ruining their quality of life. In the Oklahoma case, the state took action against a group of poultry companies because of how the poultry operation polluted public waterways. Cases like this have been tried across the country, including a 2018 case in which the Des Moines Water Works in Iowa sued three counties with hog CAFOs for nitrate pollution of the Des Moines River, the city’s main drinking water supply.

While corporations such as Smithfield, Tyson, and Cargill may wield political influence to block legislation or water down regulation aimed at their industry, the courts could operate outside of that sphere of influence. Advocates and scientists hope that eventually, the fear of costly punitive rulings may serve as a deterrent to the common CAFO practices that routinely damage environment and degrade the rural communities where they’re sited.

“At CLF we continue to support food system change and to communicate evidence of these harmful and unsustainable IFAP practices. We advise and assist communities suffering from IFAP-related exposures and injustices,” says Williams. “Our work helps to fill many of the evidence gaps so we can advance these critical cases and provide expert support when addressing the harms to human health and the environment created by IFAP. “

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