Local Food Movement Under Attack by New EPA Rule

Cattle on a grass field on the left and EPA in a magnifying glass on the right.

A new EPA regulatory rule that will force small meat and poultry producers to invest heavily in new water filtration systems while letting industrial factory farms off the hook is an attack on the local food movement and domestic agriculture, critics say.

Story at a Glance:

  • A new U.S. Environmental Protection Agency (EPA) regulatory rule will harm local food producers by forcing small meat and poultry producers to invest heavily in new water filtration systems or face closure.
  • This rule threatens to have long-term repercussions on the food supply and benefits factory farms and multi-national beef producers by punishing small domestic producers and incentivizing imported meat and poultry products.
  • The Kansas Natural Research Coalition, American Stewards of Liberty and a myriad of smaller coalitions have denounced these rules as a departure from the EPA’s constitutional and statutory authority.
  • Federal regulators have evaded accountability in court for decades by using their interpretation of ambiguous statutes. Consumers are best served buying beef products with American Grassfed Association Certification rather than a U.S. Department of Agriculture (USDA) stamp.

A new EPA regulatory rule is an attack on the local food movement and domestic agriculture. It will force small meat and poultry products (MPP) producers to invest heavily in new water filtration systems or face closure.

The EPA moved quickly to implement new rules on wastewater generated by the domestic MPP industry. This effort to regulate wastewater was not without opposition though.

The Kansas Natural Resource Coalition (KNRC), American Stewards of Liberty and smaller coalitions argue this is an example of federal overreach. The rule incentivizes meat importation, which may force small businesses to close.

Effluent limitations guidelines and standards

Effluent limitations guidelines (ELGs) were first defined in the Clean Water Act of 1974.

These wastewater standards are developed by the EPA based on the current technological performance of treatment and control technologies. The goal was to prevent the discharge of harmful pollutants at levels that could adversely affect human health and the environment.

ELGs vary by industry, reflecting the unique characteristics and pollution profiles of different types of industrial activities. For the MPP industry, ELGs are designed to minimize the release of nutrients, pathogens and organic matter that could deplete oxygen levels in water bodies, harm aquatic life and compromise water quality.

The standards for meat and poultry producers were last updated in 2004. Currently, they apply to approximately 150 of the 5,055 MPP facilities in the U.S.

As the KNRC pointed out, “The history of EPA’s regulation of MPP effluent guidelines and standards has never extended beyond direct discharge facilities. The proposed rule seeks to significantly expand EPA regulatory reach.”

EPA rules previously covered only direct discharge facilities

EPA rules for the MPP did not previously cover direct discharge facilities. A direct discharge facility in this industry refers to a plant or operation that releases treated or untreated effluent directly into surface waters, such as rivers, lakes or estuaries.

This contrasts with indirect discharge facilities that release effluent into municipal sewage systems for further treatment before being released into the environment.

Direct discharge facilities are subject to stringent regulatory oversight because their effluents enter the water system directly, where they can have immediate impacts on water quality and aquatic ecosystems.

EPA shifts enforcement priorities away from factory farms

The new effluent guidelines represent a major change. The EPA’s proposed amendment establishes strict limitations on nitrogen and phosphorus while adding E. coli bacteria limitations for direct discharge facilities. But they have also greatly expanded the reach of their regulations.

The EPA’s proposal, at a cost of an estimated $232 million annually, is designed to reduce pollutant discharges by 100 million pounds per year. It is just part of an aggressive plan to update effluent guidelines nationwide, applying a wave of new industry-specific standards.

Waters of the United States expanded to include private sources

Most water used in meat and poultry farming is from well sources or privately owned water sources. Under the Clean Water Act, the EPA’s authority extends to the regulation of pollutants discharged into the Waters of the United States, a term that encompasses the scope of waterbodies under federal jurisdiction.

The definition of Waters of the United States has been subject to change and legal battles, which significantly impacts regulatory scope.

These waterbodies typically include major rivers, lakes and coastal waters, along with their tributaries and adjacent wetlands. Expanding EPA rules to include private water sources represents a massive expansion of federal reach.

Moreover, as the KNRC noted in their comment to the EPA, the stringent requirements under the updated ELGs for the MPP industry raise concerns among smaller producers about the financial and operational feasibility of meeting these enhanced environmental protections.

New clean water rules fast-tracked

With something as important as the expansion of federal authority over private water sources and laws that could shutter domestic meat producers in an era of inflation and supply chain issues, you should expect a period of deliberation.

The Clean Water Act Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category rule was proposed by Biden Administration regulators on Jan. 23.

The public hearings were held Jan. 24 and Jan. 31. The minimum for public comment closed on March 24 and the new rules took effect on March 25.

The EPA public comment process requires a minimum of 60 days following the publication date. Considering the initial Clean Water Act was last updated in 2004, the stakeholders impacted by these rules hardly had time to mount a defense before they took effect.13

New meat and poultry regulations, an EPA power grab?

The KNRC argues this rulemaking’s proposal to regulate indirect discharge facilities strikingly stray from constitutional and statutory grounds, threatening to upend the delicate balance of power between state and federal governments. While it took immediate effect, it is certain to face legal challenges.

The Clean Water Act was crafted by Congress with a clear intent — to keep the primary control over land and water use firmly in the hands of the states.

As KNRC noted in their comment, the U.S. Supreme Court, in Sackett v. Environmental Protection Agency et al., highlighted the dangers of stretching the Clean Water Act’s scope too far, warning it could infringe on this critical state authority.

Nitrogen and phosphorous pollution turned up by EPA field tests

In the case of MPP producers, EPA field researchers failed to find much in the way of viruses, bacteria, heavy metals or traditional toxins. What they did find were significant quantities of two nutrients — nitrogen and phosphorus.

Nitrogen and phosphorus, while essential for the growth and health of aquatic plants, are damaging in excessive quantities. For meat and poultry producers, controlling the discharge of these nutrients within acceptable EPA guidelines can pose a major challenge.

High concentrations of nutrients in bodies of water lead to eutrophication. This is a process characterized by the overgrowth of algae that depletes oxygen levels, harming fish and other aquatic species, as has happened in Florida.

This imbalance not only disrupts ecosystems but also compromises water quality, affecting the wildlife and human populations depending on these water resources.

Concerns about new EPA restrictions

Reducing pollution of public or private water sources is an admirable goal on paper. But there is more here than meets the eye. The rules list 17 species of endangered animals, setting the table for future lawsuits by environmental groups citing the Endangered Species Act to sue the EPA and private businesses.

In their comments in the federal comment register, the KNRC stated the new rules “gives priority to environmental justice goals and emphasizes ecological benefits, but the EPA jurisdiction under the Clean Water Act is not based on ecological importance or environmental justice.”

Rules are silent about greenhouse emissions and future carbon taxes

One method of reducing nitrogen and phosphorus is anaerobic wastewater treatment.

This method uses microorganisms that consume biodegradable organic compounds, reducing organic matter and biooxygen demand in wastewater. The process generates CH4 and CO2. This combination of gases, predominantly CH4, is commonly referred to as biogas.

The new guidelines are silent on the topic of future carbon taxes and the financial toll of biogas produced by newly mandated anaerobic wastewater facilities. This is especially relevant considering the new carbon credit/taxes introduced by the Biden Administration through the Commodities Credit Corporation.

States like Oregon, California and Washington have taken the lead, implementing their own Cap and Trade laws, which require businesses to buy carbon credits to keep their doors open. This marks a significant shift in how environmental regulation and corporate responsibility are approached.

BEEF Act introduced to protect local meat processors

Reps. Ron Estes (R-Kan.) and Eric Burlison (R-Mo.) introduced the Banning EPA’s Encroachment on Facilities (BEEF) Act, H.R.7079 in response to the new EPA guidelines on Jan. 26.

This law would, “Prohibit the Administrator of the Environmental Protection Agency from finalizing, implementing or enforcing certain changes to regulations regarding meat and poultry products effluent discharges and for other purposes.”

However, supporters of the bill are not optimistic about the odds of the BEEF Act ever passing out of committee and plan legal challenges to the EPAs authority.

Fall of Chevron doctrine means legal challenges are now possible

Until recently, this is where this story would end due to Chevron deference. This is a principle of administrative law that compels federal courts to defer to a federal agency’s interpretation of an ambiguous law that the agency administers unless the interpretation is unreasonable.

The Chevron deference stems from the 1984 U.S. Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Historically, cases against new EPA rules would advance to federal court and the judge would not consider the case on its merit due to the precedent of Chevron.

Landmark 2022 SCOTUS ruling hobbled EPA

This principle significantly impacts how environmental regulations, among others, are interpreted and implemented, affecting the balance of power between the judiciary and federal agencies. Chevron deference made it nearly impossible for private businesses to sue or slow the expansion of federal regulatory power.

Chevron deference has been largely dismantled by recent Supreme Court decisions. West Virginia v. Environmental Protection Agency has put the deference into question, particularly when it concerns significant questions of economic and political impact that Congress did not clearly delegate to the agency.

This shift in judicial thinking suggests that the EPA’s new regulations on meat and poultry producers could face significant legal challenges, especially where authority under the Clean Water Act is interpreted to include broad regulatory actions that have substantial economic consequences.

Critics long argued that such expansive interpretations by the EPA need more explicit congressional approval, reflecting a judicial recalibration of the balance of power between the legislative and executive branches in environmental regulation.

Chevron deference circumvents the legislative process and consolidates power within federal agencies, raising concerns about the separation of powers and the democratic accountability of regulatory actions.

Beef Checkoff Program is another obstacle for local producers

Small beef and poultry producers are also facing other challenges to their businesses. Apart from the new EPA rules that are likely to cripple small local farms, the mandatory USDA Beef Checkoff program has also been structured to benefit the concentrated animal feeding operation, or CAFO, model.

The program requires cattle producers to pay a $1 fee per head of cattle sold. This fund pays for the marketing of beef in the U.S., including messaging contrary to the interests of small producers who adhere to more exacting standards. The American Grassfed Certification represents a far higher standard than the USDA’s Grass-fed Beef Label.

The Supreme Court denied a 2022 petition to hear a case brought by a group of Montana-based cattle producers called R-Calf, ending years of legal challenges. R-Calf contended the Beef Checkoff program was “unconstitutionally compelled subsidies of private speech.”