Alternatives & Consequences:
description
Transcript of Alternatives & Consequences:
Alternatives & Consequences:
Arkansas & Oklahoma:Legal and Policy Backdrop ForWater Quality Situation
An Assessment of the Situation & Discussion of the Roles for
Extension/Land Grant Professionals
2
Assessment: Judicial Backdrop
What does litigation do? Involves specific claims between specific parties
We’re talking multi-jurisdictional litigation here – we’re also talking water quality issues
Look back before look forward Early series of cases involving multiple states
Missouri v. Illinois (1901) & (1906)Court: should use extreme caution in trans-boundary pollution matters since these matters speak toward a legislative solution as opposed to a judicial solution
Established a federal common law of nuisance to govern interstate water pollution
3
Judicial backdrop
Additional multi-jurisdictional water pollution cases: Georgia v. Tennessee Copper Co. (1907)
Followed the principles of the Missouri v. Illinois case
Ultimate remedy was granting an injunction against pollution in one state causing problems in another
New York v. New Jersey – three decisions between 1921 & 1931
All cases involved trans-boundary pollution and applied Missouri v. Illinois principles
4
Cases Decided Post-CWA Clean Water Act passed
Illinois v. City of Milwaukee (1972) Federal common law of nuisance is applicable to
interstate water pollution cases Milwaukee v. Illinois (1981) (Milwaukee II)
Clean Water Act was intended to comprehensively address water pollution
Clean Water Act preempted federal common law
5
Post-CWA cases
International Paper Company v. Ouellette (1987)
State Law at the source of the pollution must apply
CWA principles would be frustrated if the law of the receiving state could apply to discharges from the source state
Common law of the downstream state is preempted by the CWA
Then came Oklahoma v. Arkansas
6
Oklahoma - Arkansas
Oklahoma sued Arkansas – early 1980s City of Fayetteville – half its effluent was going
into the Illinois River, half into the White River EPA had granted a permit to Fayetteville
controlling its effluent discharge Illinois River is an Ok (state) designated Scenic
River Oklahoma adopted water quality standards that
wouldn’t be met by Fayetteville Oklahoma sued Arkansas – asserting that the
actions of Fayetteville would harm the Illinois River & that OK water quality standards should apply
7
Oklahoma – Arkansas
Tenth Circuit – CWA required that the law of neither state
applied and that no state could impose its standards on another state
Appeal to the U.S. Supreme Court
1992 Supreme Court decision upheld the “federal character” of Oklahoma’s
EPA-approved federal water quality standards water quality standards of the downstream state
must be implemented by the upstream state
8
Post-Arkansas v. Oklahoma
City of Albuquerque v. Browner (1996) Water quality standards of the
downstream Tribe must be implemented by the upstream state
9
Oklahoma - Arkansas During briefing and argument of the original
OK/AR case, what else was happening on the water and agricultural front? 1988 & 1991 – OK legislature relaxed restrictions on
corporate farming to address economic development needs in western OK
Tax incentives, state grant funds and easing of regulatory and statutory restrictions were put in place to encourage agricultural development
The relaxed restrictions and incentives were in response to the needs of the state following a devastating oil bust and agricultural bust period
Similar activities occurring in other states Encourage agricultural growth Respond to goals of “efficiency” and “economic
returns”
10
Oklahoma – Arkansas
The “state of regulation” regarding CAFOs was voluntary and incentive-based
Poultry industry was growing in AR and eastern OK, and in other areas of the U.S.
1993 – OK law again relaxed restrictions on corporate farming enterprises & increased protections against nuisance suits for CAFO operations
1991 to 1997- increase in hog numbers from 200,000 to 1.64 million
Increase in community, citizen & legislative concern over water quality issues related to CAFO increase
11
Oklahoma – Arkansas
1997 – OK policy activities regarding CAFOs Executive Order 97-07 created Governor’s Task
Force on Animal Waste and Water Quality Final recommendations & report issued called for
increased scrutiny 1997 – OK HJR 1093 – moratorium on hog
farms AR/OK River Compact commission
(created after AR/OK litigation adopted goal of 40% reduction of total phosphorous in Illinois watershed
12
Oklahoma – Arkansas
1998 – OK SB 1170 (poultry) – most stringent bill of its kind at the time
Registration of growers Certification of applicators Restrictions on land application in
vulnerable watersheds Compliance inspections Mandatory education & training Animal waste management plans Integrator funding of education
13
Oklahoma – Arkansas
1998 – OK SB 1175 (swine) Increased setback distances Odor abatement plans Mandatory education and training in
waste management Gave landowners legal standing to
challenge proposed CAFOs Fees for regulation Monitoring wells and liner retrofitting Liability for waste
14
Oklahoma – Arkansas During this time period, Arkansas had Reg 5 in
place that addressed CAFO waste management issues – but did not control dry litter
Arkansas was the only state in Region VI EPA that was not under a CAFO NPDES General Permit (1993) that was designed to address permitting issues and waste management
NWA was experiencing record population growth and development – continually ranked as one of the top 10 places to live
1997 – 2001 – OK/AR discussions began and continued spurred by the City of Tulsa
15
Most Recent Litigation involving Oklahoma & Arkansas – City of Tulsa v. Tyson
City of Tulsa v. Tyson, et al (filed December 2001) water quality issues relating to city’s water
source Lake Eucha and Oologah are drinking water
sources for the city of Tulsa March, 2003 – Order on preliminary motions
Phosphates in litter are a CERCLA hazardous substance
Companies are vicariously liable for state law trespass or nuisance created by growers
16
Litigation - Tulsa
Settlement discussions followed & Order of March 2003 vacated – Agreement reached 7/16/03
Purpose to resolve case without further litigation “ensure that nutrient management protocols
are used in the (Eucha-Spavinaw) Watershed to reduce the risk of harm to the city of Tulsa’s water supply”
Harm due to land application of nutrients and the City of Decatur’s WWTP discharge
17
Litigation - Tulsa
Recognized right of Poultry companies and their growers to continue to conduct poultry operations in the watershed within protocols
Recognized importance of clean lakes, safe drinking water and a viable poultry industry to the economies of NE OK and NWA
Settlement required appointment of Special Master and appointment of Executive Director of nonprofit created by Poultry Defendants SM and Executive Director of nonprofit would
work together, along with a watershed monitoring team, to ensure that NMPs are issued with PI number for each operation within the ESW
Moratorium on land application of litter in the ESW
18
Litigation - Tulsa Settlement applies to the Poultry Defendant
companies and their contract grower farms (who are not parties to the litigation) and to any field using company or contract grower litter Agreement to terminate within 4 years PIndex to be developed and submitted by 1/1/04
Team of scientists - OSU and UA – designated as the PI Team (not parties to the litigation) Responsible for development of phosphorous risk-
based index PI will control terms and conditions under which
nutrients can be land applied in the watershed PI must achieve least amount of total P loading
reasonably attainable from each application site (farm) from all sources of phosphorus while meeting agronomic requirements for growth of grasses, crops and other desirable plant life
19
Litigation - Tulsa PI Team couldn’t reach agreement on a
final PI PPM calculator – OSU ESPI 1.0 - UA
Court to determine an appropriate PI under the settlement agreement
Poultry companies submitted proposed PI method; Tulsa submitted a proposed PI tool
Evidentiary hearing on 2/9/04 regarding the separate PI proposals
20
Litigation - Tulsa Court found that neither Univ. proposal complied
completely with the Settlement Agreement Established a trial implementation period, nominally
until 12/31/04 – court approved its own PI (the AR version as modified) for utilization
No nutrients may be applied if soil test phosphorous level is 300 mg/kg or greater Soil samples collected at determined depths (0” - 4”) Litter samples analyzed according to court-determined
methods Eligible BMPs must adhere to NRCS Conservation
practice standards for water quality Other NRCS-recommended limitations on land
application apply to each site
21
Litigation - Tulsa
Total amount of litter that can be applied in ESW from all sources covered by the Moratorium cannot exceed 2/3 of the amount of litter produced annually within ESW by the Poultry Defendants and their Growers
As NMPs are written the SM maintains a cumulative record of litter amounts allowed in the ESW
SM and Watershed Monitoring Team required to run both models/tools for each application site
UA and OSU – ordered to continue collaboration Research and field-study programs in ESW re: edge-
of-field issues Utilize resulting data to further refine, calibrate and
validate the OSU predictive model Develop a joint quantitative PI in collaboration with
the SM
22
Litigation - Tulsa
SM and Executive Director of non-profit are required to make reasonable attempts to transport litter out of the ESW so goals not exceeded
OSU, UofA, SM and ED ordered to report to the court within 6 months
Hearing/reporting – September 2004 Court heard updates/evidence and determined that
continued work should be done – earlier order indicates that if no joint quantitative PI is developed court will determine an appropriate PI based on results found during the trial period
23
Litigation - Tulsa
Role of a Litter Bank Physical and Non-physical Must organize the litter in order to utilize the
litter Potential for use in alternative enterprises,
some energy related, some not LG/Ext leadership in organizing,
conceptualizing, obtaining community support, engaging financial support and providing ongoing research support for creation
Sustainability?
24
Other Litigation – Grand Lake Grand Lake property owners sued Tyson Foods
Alleged the company was polluting the area from releases from processing plants
2003 – lawsuit amended to include Simmons and Peterson companies
2003 – Defendants attorneys submitted motion to allow expansion of suit regarding over 11,000 additional Defendants allegedly causing water quality problems around Grand Lake
Additional defendants : Ottawa Co. Rural Water & Sewer District No. 1 Shangri La Resort (and golf course) Residents and Homeowners individually and in their
associations Grand Lake Public Works Authority Others
25
Litigation – Grand Lake
Still in pre-trial stages – hearings on discovery disputes
Class of plaintiffs certified – two classes Property owners - who had damages at the time
of the filing Current owners - damages as of the time of class
certification Certification decision is before the Court of Appeals Could be months before outcomes known If class denied certification, could be appealed to
U.S. Supreme Court Those producers growing for Tyson, Simmons &
Peterson in the Grand Lake area could be affected by outcome at trial or settlements reached
26
Other Litigation – Been v. OK Foods Been and others are contract growers for OK Foods
Seeking determination that the contracts under which they grow are unconscionable
Seeking rulings that they are in fact employees of the company
Testing a previous AG opinion opining that under certain circumstances, contract poultry growers could be deemed “employees” of their company
Case still in pre-trial stages New Judge assigned to case Plaintiffs certified as a class
27
Litigation - Been Recent rulings against the growers
contracts were not unconscionable – ruled contracts were between sophisticated parties
contracts were equal in terms of risk and reward
Packers & Stockyards Act claims remain Tournament system Unfair acts
Pre-trial motions remain to be filed March 2005 trial date set
28
On the State Regulatory Front:Regulations - Adoption of state standards
2001 – Okla. Water Resources Board recommended numerical criterion as a part of the Oklahoma Water Quality Standards Anti-degradation Policy
March 2002 – OWRB adopted a numeric standard Total P concentration cannot exceed
0.037 ppm– to be fully implemented in 10 years
29
Meeting the standards
Meeting the standards Fayetteville currently meets Fayetteville, Springdale, Rogers, Bentonville and
Siloam Springs have committed to OK’s request for cleaner discharges
Standard submitted to EPA for approval in 2002
2003 – EPA was sent a citizen’s letter giving it 60 days to approve the standard or be sued
December 2003 – EPA approved the 0.037 standard
30
Potential for additional litigation
AG is threatening lawsuit by State of Oklahoma v. entire poultry industry To protect the IRW And other watersheds? Will other defendants be contemplated?
Current offer to Settle offered by the Poultry Industry to the AG
31
Additional litigation Settlement offer
Continued work on developing science-based joint nutrient index relating to land application
Development of contract grower plans based on joint index
Provision of litter management alternatives, such as transportation out of the watershed, new energy or heat recovery technology, composting and processing into organic fertilizer
Reduction of litter application Supplemental environmental projects Creation and maintenance of conservation
easements Reporting
32
Changes in AR state standards
AR legislature adopted new laws in 2003 Registration of producers Certification of nutrient applicators Nutrient application plans Applying nutrients on 2.5 acres or more must
be in compliance with a plan ASWCC is conducting hearings that will
lead to adoption of regulations interpreting those standards
ADEQ is also in process of conducting hearings on new CAFO standards – regarding dry nutrients regulation
33
Nutrient Surplus Areas Arkansas’ state legislature has created
Nutrient Surplus Areas throughout the NWA region
Enhanced scrutiny for nutrient application throughout those regions
Different regulations apply to nutrient issues in those areas
Storm water regional community education groups now exist in the region
34
Options for producers Is producer in the ESW or the IRW? What if
they grow in one state and transport/land apply in another?
Federal laws & regulations Oklahoma law and regulations Maybe a moratorium if in OK Nutrient surplus area in AR Contracts with company Municipalities in growing region Litigation – member of class? Affected by
case? Party?
35
Role of Extension/Land Grant Professionals
Public Issues Analysis Do Extension/Land Grant Professionals
Get Involved? Let’s walk through what we know…
Multiple stakeholders Public Resources Decisions involved laws, regs, policies,
public resource use
36
Role of Extension/Land Grant Professionals
Complex issues Passion, emotion Who makes decision? Group?
Municipalities? Public Body? Multiple Jurisdictions involved Decisions will affect multitude of people Started as private issue/became public Media plays huge role Everything hinges on POWER
37
Role of Extension/Land Grant Professionals
Limited early public education role No registration of poultry contract
growers or companies – no educational component in one state; advanced educational component in another – but seen as “helper” not “regulator”
“Spiral of Unmanaged Conflict” – where are we? Definitely at the Top of the Spiral! So, do we get involved?
38
Role of Extension/Land Grant Professionals
Attitudes toward the conflict (re: parties) OK AG – win at all costs – education has
no impact OK AG relationship with the companies
and former Tulsa Mayor relationship with companies – BAD – no opportunity for education or collaboration
Lack of mutual respect
39
Role of Extension/Land Grant Professionals
What about “teachable moments” or possibilities for collaborative dialogue between/among those who are NOT parties to the litigation but who ARE AFFECTED? Contract growers Citizens of both states
What about conflict resolution? OSU has Institute for Conflict Resolution but
they are not involved in this ongoing issue
40
Role of Extension/Land Grant Professionals
Role of Ext/LG Professionals in the litigation PI Team – teams at both OSU and UofA Litter bank Called upon to provide education and
update to those affected by the litigation (contract growers and lenders)
Multiple Research projects underway
41
Role of Extension/Land Grant Professionals
Ext/LG professionals appearing before court as experts/court ordered team Defend existing models Create new models Costs of research – who pays Places them in new role vis-à-vis their existing
clientele Expert, Convener, Neutral, Mediator, Moderator?
Does one role preclude all other roles? Does one role by one professional preclude other roles within same institution?
If entity is involved in the litigation, is the entity no longer neutral?
42
Role of Extension/Land Grant Professionals
What about Ext/LG records – are they public? Can they be discovered?
What about Ext/LG professionals’ advancement & promotion?
What about Ext/LG professionals who have patented technology? What about personal financial interests conflicting with professional judgment? What happens if there is a collision of these interests?
43
Role of Extension/Land Grant Professionals
Should we not get involved? In any capacity? What about our continuing
responsibility to provide education? Are we the only conceivable “neutral”?
If so, does this override any indications that would require non-involvement?
Clarification of the issues
44
Conclusion
Poster Children for Dysfunction Dueling Policies One-upsmanship Courts and AG office making policy Lack of collaboration Cooperative compliance is a possibility
Requires regional group of cooperators Requires intense public education efforts
45
Conclusion
Rural economic issues What will happen to historically
economically challenged regions if ag infrastructure vanishes?
Do we have other alternatives for rural economic stability in the wings?
46
Conclusion
Role of Tribal Nations Have clearly identified right to the
natural resources in question – issues clearly decided by prior litigation
Arkansas River – Cherokee, Choctaw & Chickasaw
Cherokee Nation – leased ESW to Tulsa EPA designated as a state status
Do they want to be involved? In what way?
47
Conclusion
Post-Litigation Repair (After the Storm) Re-establishment of relationships Engagement in meaningful education Shared vision? Shattered by ongoing adversarial activity Encouragement of sustainable solutions to
problems Rural entrepreneurial activity in support of
those solutions Channeling crisis-oriented research into
ongoing body of work
48
Conclusion
Post-Litigation Repair Multi-state research and extension efforts
Joint education Joint research
Historically strong connection between institutions – rebuilding
Ongoing needs of alternative enterprises Ongoing need for dialogue and citizen
involvement in the issues
49
Conclusion
My comments: It is our responsibility as LG/Ext
professionals to remember our mission Need protocol and methodology
addressing our involvement post-litigation
50
Contact Information
Janie Simms Hipp, J.D., LL.M. Assistant Professor Agricultural Law Natural Resources Regulatory Policy
217 AA AEAB University of Arkansas Fayetteville, AR 72701
479-575-6935 479-575-5306 (fax) [email protected]