AuthorMoberg, Josie
  1. INTRODUCTION 772 II. THE ISSUES 773 III. FAILED LEGAL PATHWAYS 775 IV. AN EJ-CENTERED APPROACH: AIR EMISSIONS REGULATION 778 A. The Federal Clean Air Act 779 1. The Loophole: EPA & CAFOs'Air Compliance Agreement 780 2. Immediate & Future Application of CAA to CAFOs 781 3. National Ambient Air Quality Standards 782 4. New Source Review: Nonattainment New Source Review & Prevention of Significant Deterioration 783 5. National Emissions Standards for Hazardous Air Pollutants & Hazardous Air Pollutants 784 6. New Source Performance Standards 784 B. Oregon State Air Pollution Laws 786 C. Potential Impact of Air Emissions Regulation on EJ Issues 787 V. CONCLUSION 790 I. INTRODUCTION

    Large concentrated animal feeding operations (CAFOs) are lots or facilities where large threshold numbers of land animals (for example, more than 1,000 cattle, 10,000 pigs, or 125,000 chickens) are confined for over forty-five days each year. (1) Animal agribusiness consolidates operations into these crowded facilities to maximize output and profit. (2) However, the crowding creates environmental harms, which are disproportionately borne by vulnerable communities, predominantly comprised of low-income people of color. (3) This Comment uses the term environmental justice (EJ) communities when referring to these populations. Oregon in particular has a growing number of large CAFOs, despite recent scandals involving poor regulation and catastrophic pollution in the state. (4) The EJ implications of the rising CAFO presence in Oregon include neighborhood pollution, workers' rights, water wars, global hunger, and climate crisis.

    This Comment argues that air emissions are the epicenter of both EJ issues and regulatory solutions. Accordingly, this Comment argues that the most relevant pathway toward heightened checks on CAFO operations lies in air emissions regulation under the federal Clean Air Act and Oregon state legislation. Part II unpacks the many EJ issues associated with CAFOs. (5) Part III then touches on previous failed attempts to regulate the industry. (6) Part IV delves into an air-emissions-based approach to CAFO regulation and the relevant federal and state regulatory structures at play. (7) The Comment concludes with a projection of various EJ benefits that could result from the proposed approaches. (8)


    CAFOs are often located near EJ communities, including both low-income (9) and Black, Indigenous, and people of color (BIPOC) populations. (10) For example, Oregon's two largest CAFOs are located in a county with more than double the state average Latinx population. (11) Neighborhood pollution is a serious EJ issue as emissions from the large quantities of livestock manure stored at CAFOs can contain unsafe quantities of ammonia, nitrous oxide, hydrogen sulfide, volatile organic compounds, and particulate matter. (12) Urine, animal hair, antibiotics, and hormones also release harmful compounds. (13) These pollutants can cause respiratory problems, headaches, nausea, low blood oxygen, stomach and esophageal cancer, and infection, in addition to further impacts such as decreasing property values, which impact generational wealth and further entrench the poverty cycle. (14) Oregon communities are often well aware of these threats, but the permitting agencies do not weigh their concerns equally with the interests of the CAFO industry. For example, during a public comment period in 2016, community members submitted thousands of comments opposing a new large CAFO, but the agency ultimately permitted the operation despite this public outcry. (15)

    The laborers employed by animal feeding operations are also members of marginalized demographics, as they are often undocumented immigrants. (16) CAFOs pay their workers decidedly low wages even though the workers face serious physical dangers as a result of the tiring work with long hours using sharp equipment for slaughter. (17) CAFO workers also experience psychological trauma as a result of slaughtering animals at ever-quickening paces. (18) There are other inherent health hazards for CAFO workers, including chronic obstructive airways disease, interstitial lung disease, occupational asthma, acute and chronic bronchitis, and organic dust toxic syndrome. (19) These trends are exacerbated as farms grow in size and density. (20) Data on workers' rights abuses specific to Oregon are sparse, although there are records of individual instances. For example, the Oregon Lost Valley CAFO initially received a permit even though it failed to provide restroom facilities for its employees. (21) Furthermore, Oregon employers are not required to pay overtime to CAFO workers and may also be exempt from paying minimum wage. (22)

    Another EJ concern is the impacts of CAFO operations' massive water use on Indigenous communities in Oregon. In 2020, the local ranching industry threatened the Klamath Tribe's water rights by seeking to restore irrigation operations in the basin even after a federal judge validated existing water-rights agreements. (23) The battle over water rights between the agriculture industry and Indigenous communities is another example of how CAFO facilities pose serious EJ threats to Oregon's population.

    Lastly, EJ harm by the CAFO industry reaches across the globe. Half of the world's grain crops go toward feeding livestock, rather than directly to human beings, which wastes resources due to the land, fossil fuel, and water inefficiency of meat-heavy diets, such as those prevalent in the U.S., despite growing hunger crises across the world. (24) CAFOs also heavily contribute to climate change through emissions of the greenhouse gases (GHGs) carbon dioxide, nitrous oxide, and methane. (25) As climate change disproportionately harms EJ communities, (26) CAFOs' generation of GHGs also contributes to that harm. Despite Oregon's demonstrated interest in being a positive global actor, exemplified by Governor Kate Brown's Climate Executive Order, (27) Oregon has surprisingly increased deregulation of the CAFO industry.


    The U.S. government consistently creates statutory exclusions and economic subsidies to support agribusiness, a practice known as "agricultural exceptionalism." (28) Legal advocates acknowledge the absurdity of these free passes as they relate to the CAFO industry: "It is past time for [the federal government] to start treating factory farming as the polluting industry it is, and bring these facilities into the 21st Century of pollution control regulation." (29)

    One recent example is that the 2018 Fair Agricultural Reporting Method (FARM) Act (30) exempts CAFOs from reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (31) and the Emergency Planning and Community Right-to-Know Act. (32) These latter two acts were established to require emitters of hazardous pollutants (for example, CAFOs emitting ammonia and hydrogen sulfide) to report significant emissions to national, state, and local response centers, making this data publicly available. (33) This information is instrumental to community and environmental advocacy group efforts, allowing for crucial insights into polluters' activities to bolster calls for accountability and regulation (and creating a deterrent as a result of this threat). (34) Oregon specifically feels the effects of this deregulation. (35) Without these statutes, the state rates "low" for the transparency in CAFO data, including low transparency of manure storage, type of animal, and owner information, which could contribute to the chronic lack of support for CAFO regulation. (36)

    Another systematic support mechanism of the agriculture industry is state Right-To-Farm (RTF) laws. (37) Oregon's RTF law affords significant protections to CAFOs, (38) shielding operators (and other operations, including meat processing facilities) from nuisance and trespass tort law liability for all practices that are or may become accepted as "reasonable and prudent," which is undefined. (39) The immunity encompasses all actions or claims based on physical contaminants such as noise, odors, dust, and mist from irrigation. (40) Although Oregon's RTF law applies to most sectors of the agricultural industry, the problems may be most severe with respect to CAFOs. (41) As slaughterhouses and CAFOs continue appearing in Oregon communities, neighbors cannot bring claims against the facilities for trespass caused by the physical intrusions commonly associated with feeding operations, such as flies, pesticides, contaminated runoff, or animal wastes. (42) Due to these frustrations, non-farmers may someday challenge Oregon's RTF law. However, RTF laws cannot protect the industry from environmental regulations. (43) Therefore, environmental regulations "may be the public's only avenue of protection against polluting agricultural operations." (44)

    Currently, the sole federal CAFO environmental regulation was promulgated by the U.S. Environmental Protection Agency (EPA) under the Clean Water Act (CWA) (45) and prohibits point sources of pollution from discharging into surface waters without a National Pollutant Discharge Elimination System (NPDES) permit. (46) The law still enables facilities to pollute waterways and does nothing to regulate discharges into groundwater, but it provides important parameters and limits on discharges. (47) The EPA defines a CAFO as a point source and therefore requires the permitting program to be applied to its operations. (48) However, only a fraction of all large CAFOs currently have CWA permits because NPDES permits are not required until a point source is already discharging pollutants. (49) As state governments administer these permits, several states, including Oregon, require NPDES (or equivalent state) permits for all CAFOs, including those that have not been caught discharging pollutants. (50) The Oregon Department of Environmental Quality (DEQ)...

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