Judge Finds State Not Doing Enough With CAFO Emissions

BERLIN — A landmark decision by a Montgomery County Circuit Court judge last week could have a lasting impact on the chicken farming industry in Worcester County and across the Eastern Shore.

The Assateague Coastal Trust, through its legal counsel the Chesapeake Legal Alliance, is claiming a major victory after a Montgomery County Circuit Court judge last week ruled against the Maryland Department of the Environment (MDE). The impacts of the judge’s ruling could greatly impact the poultry industry on the Eastern Shore.

Last year, the MDE completed a final revision to its five-year general discharge permit, which governs the poultry industry and the vast number of chicken-raising operations across the shore. MDE regulates pollution generated by Concentrated Animal Feeding Operations (CAFOs), which are industrial-sized agricultural facilities, but ACT, through the Chesapeake Legal Alliance (CLA), challenged the department’s lack of oversight on the level of nitrogen, in the form of ammonia emissions from chicken houses, that finds its way into local waterways.

In the suit filed in Montgomery County Circuit Court, ACT asserted tens of millions of pounds of nitrogen, in the form of ammonia, blast out of the thousands of chicken houses on the Eastern Shore onto surrounding land and waterways. The plaintiffs allege the ammonia discharge causes algal blooms, robbing local waterways of oxygen and devastating aquatic life. The Montgomery County judge saw it that way with her opinion released on March 11.

The court ordered MDE to go back to the drawing board to fix the state’s permit that regulates CAFO pollution. The judge opined MDE must regulate the millions of pounds of ammonia emanating from the poultry industry production areas and require those emissions to be accounted for and controlled because of the “definite and real impact on the bay.”

Environmental groups in Maryland, including the plaintiff ACT, quickly applauded the judge’s ruling and claimed victory for local waterways. ACT Executive Director and Assateague Coast Keeper Kathy Phillips was among those praising the decision.

“Today, communities on the Lower Shore of Maryland can breathe a sigh of relief, literally, knowing Maryland clean water regulations will not better protect the water they drink and the waterways they fish and recreate in,” she said. “This ruling will work to protect watershed communities, including those communities facing environmental injustices, who will see improved water quality and the co-benefit of reduced air pollution.”

The CLA is a non-profit organization that provides free legal services to protect and restore clean water and promote healthy ecosystems in the Chesapeake Bay watershed and represented ACT in the suit against MDE.

CLA Co-Director David Reed said in a statement the court’s ruling will go a long way in helping to achieve those goals.

“Today, CLA not only celebrates a win for our client, Assateague Coastal Trust, but a win for the Chesapeake Bay,” he said. “This landmark decision protects our waters and reduces pollution in neighborhoods and communities across Maryland’s Eastern Shore. We commend the court for recognizing that ammonia pollution emitted into the air impacts our water too.”

Meanwhile, the Delmarva Chicken Association (DCA) immediately railed against the court’s ruling, calling it a potential death knell to the poultry industry. In a statement, DCA Executive Director Holly Porter called out ACT for taking the case to a jurisdiction not necessarily known for being agriculture-friendly.

“It’s no accident the plaintiffs in this case crossed the Chesapeake Bay to file their challenge in chicken-free Montgomery County,” the statement reads. “They deliberately searched for a forum that rarely adjudicates matters of agricultural law. Delmarva Chicken Association fully expects the state of Maryland to appeal this decision and see that the Maryland Department of the Environment’s AFO permit, which received the EPA’s approval during review, is sustained by a higher court.”

In the statement, Porter asserts the ACT suit relied on flimsy science and said chicken farmers across the shore are already taking steps to alleviate ammonia pollution from chicken houses.

“Ambient air quality data collected by Maryland environmental regulators show that ammonia levels on Maryland’s Eastern Shore are far below an MDE-determined 350 parts-per-billion-threshold, even in areas near chicken farms,” the statement reads. “The plaintiffs relied on a faulty mathematical model for ammonia emissions that assumes chicken farms house birds every single day of the year, which they don’t, assumes farmers never control ammonia with little amendments, which they do, and assumes the Eastern Shore has no ammonia-absorbing forested land, which, needless to say, it does. The researchers have admitted their model is not a realistic approach, but it fits these plaintiffs’ preconceived notions and they were only too eager to rely on it in court.”

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.