PRETEXTUAL PREEMPTION: THE MODERN WEAPONIZATION OF PREEMPTION IN THE REGULATION OF CONCENTRATED ANIMAL FARMING OPERATIONS.

• Author: Moran, Lily

INTRODUCTION 1590 I. THE EXTERNALITIES AND REGULATORY STRUCTURE OF THE CAFO INDUSTRY 1594 A. Animal Feeding Operations and Their Impacts 1595 B. The Existing Regulatory Structure Governing CAFOs 1599 l. Federal Regulation of CAFOs Under the Clean Water Act 1599 2. State Government Regulation of CAFOs 1602 C. The Importance of Local Governance 1604 II. FROM TRADITION TO PRETEXT: THE ROLE OF LOCAL PREEMPTION IN A SHIFTING POLITICAL BATTLEGROUND 1605 A. Distinguishing Traditional Preemption of Local Government 1606 B. The Rise of Pretextual Preemption 1607 l. The Origins of Pretextual Preemption 1607 2. The Modern Manifestation of Pretextual Preemption 1609 C. Pretextual Preemption and Factory Farming 1612 III. PRETEXTUAL PREEMPTION AND THE REGULATORY VACUUM 1613 A. The Regulatory Vacuum 1614 B. Defining the Existence of a State Conflict 1618 l. Case Study: Missouri Senate Bill 391 1619 2. Exceptions to Preemption: The Ohio Test 1622 CONCLUSION 1624 INTRODUCTION

Over the last century, the United States agricultural system has shifted from a large number of small, diversified livestock farms to a concentrated system of industrial facilities called Concentrated Animal Feeding Operations (CAFOs). (1) As modern meat operations strived to maximize profits, they significantly increased the efficiency of meat production and ushered in a new era of agricultural practices. (2) As a result, animal feeding operations have grown in size and have become increasingly geographically concentrated. (3) Unable to keep pace with recent advancements, traditional family farms have largely been replaced by these industrial operations. (4) The modern livestock market is now concentrated between several large and influential production companies. (5)

Large agricultural companies have continued to grow over the years and it is now estimated that ninety-nine percent of domestic farm animals are contained within factory farm operations. (6) The facilities are primarily concentrated in rural America, particularly in the South and Midwest. (7) As they expand and relocate, and populations grow, livestock operations have crept nearer to residential populations. (8) CAFOs produce much more than simply meat products; CAFO byproducts include expansive externalities, and the impacts of those externalities are felt acutely by those communities nearest to the source.

The U.S. Department of Agriculture (USDA) estimates that millions of tons of dry manure are generated by CAFOs annually. (9) On traditional farms, there are both fewer animals and typically more land area, making it possible for the waste to be recycled into a "semi-sustainable feedback loop." (10) Comparable recycling is impossible for industrial operations given the quantity of waste produced, which quickly overwhelms local fertilizer demand. (11) Consequently, most of the manure from CAFOs is stored within mere miles of the originating facilities. (12) However, this waste does not remain contained within this system and can be released into the environment through natural processes or accidents--raising concerns about public health and environmental protection as residential areas are directly impacted by these events. (13)

The externalities produced by CAFOs create serious public health and welfare concerns for the surrounding residents. A myriad of consequences from physical illness to an overall depressed quality of life plague the nearest communities. (14) While some limited federal regulation exists, it is largely left to individual states to issue permits, site operations, and enact regulations to protect health and safety in and around the facilities. (15) The effectiveness of these regulations varies widely as states can choose whether to address health and safety concerns. (16) As a result, troubling deficiencies in CAFO monitoring pervade across the country. (17)

Despite the impacts of industrial farm waste pollution on their lives, local residents have little say in the development or oversight of the facilities. (18) Although local governments attempt to fill regulatory gaps left by higher levels of government, their ability to do so is limited by the authority granted by the state. (19)

Local preemption is historically based on the goals of federalism and governmental efficiency. (20) Today, widening ideological divides and shifts in key political battlegrounds have caused some states to snuff out progressive policies under the pretext of preemption. (21) Pretextual preemption is often used as a political tool when there is (1) an absence of regulatory guidance, (2) a law forbidding localities from enacting legislation to fill certain regulatory gaps, and (3) a failure by states to fill those gaps themselves.

This distinct manifestation of preemption may be challenging to detect and limit, but several tools can assist courts in doing so. The presence of regulatory vacuums, which are created by the elimination of local laws, is one way to assess both the motivations of the state in enacting the preemptive legislation and determining if and how it should be constrained. (22) Additionally, the arguments advanced by rural communities in ongoing lawsuits related to this issue present another opportunity to evaluate possible solutions. For example, several Missouri counties have found themselves at the center of this political and legal battle. (23) Currently entangled in litigation with the state, the counties defend regulations that address the health and environmental harms caused by CAFO byproduct pollution and argue that they cannot be preempted except by state regulations on that matter. (24) Similarly, the Ohio Supreme Court has adopted a four-part test which limits the circumstances under which a conflict between local and state laws are found, and which is determined in part upon whether the state law is intended to enact regulations or merely to prevent the local governments from doing so. (25)

This Comment explores state preemption against the backdrop of a particularly consequential industry and advances these frameworks to determine the narrow circumstances under which a state's otherwise legitimate exercise of its preemptive authority should be limited. In Part I, I discuss the many risks posed by the CAFO industry, describe the current regulatory regimes governing the industry at each level of government, and clarify the importance of local governance in this space. In Part II, I attempt to distinguish the traditional rationales for preemption from its modern manifestation and usage as justification for its heightened scrutiny in legal analyses. Finally, in Part III, I examine the suppressive effect of pretextual preemption, particularly when it prevents local governments from protecting their citizens against dire environmental hazards. In light of the distinction between traditional and pretextual preemption, I argue that courts should scrutinize where preemption is used to nullify otherwise legitimate exercises of local governance, specifically in areas where states refuse to govern themselves. Part III describes the ongoing Missouri CAFO litigation and lays out the Ohio Supreme Court test which investigates the purpose of preemptive action. While it is no small request, a limitation on the preemptive authority of states is appropriate in extreme circumstances, including where necessary to protect public and welfare against the otherwise unabated pollution of their communities.

1. THE EXTERNALITIES AND REGULATORY STRUCTURE OF THE CAFO INDUSTRY

   In this Part, I will examine the regulatory regime governing CAFO operations and the origins of the regulatory gap that has gone unaddressed in the age of pretextual preemption. In order to understand this policy gap, this Part will begin by describing how regulatory bodies identify CAFO operations and define scope of the harm they produce. This Part will then describe the federal, state, and local government regulatory schemes currently governing CAFOs, concluding with a brief discussion of the importance of local government-level regulation.

   1. Animal Feeding Operations and Their Impacts

      Animal feeding operations are denned by the U.S. Environmental Protection Agency (EPA) as "enterprises where animals are kept and raised in confined situations." (26) There are approximately 450,000 operations of this kind in the U.S.27 Animal feeding operations are facilities where animals "have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period" and where "vegetation . . . [is] not sustained in the normal growing season over any portion of the lot or facility." (28) CAFOs specifically refer to the largest of these facilities, containing more than 1,000 animal units confined for longer than 45 days annually or those operations that discharge wastewater into any waterway, regardless of the size of the operation. (29) These operations have considerable transnational impacts spanning animal welfare, (30) the treatment of immigrant worker populations, (31) and climate change. (32) Some of the most acute environmental and societal impacts, however, are experienced by the local communities closest to the source.

      Animal feeding operations produce a staggering amount of waste. (33) This material is typically collected in "vast open-air pits" or lagoons, which can each hold many millions of gallons of wastewater. (34) The waste is then directly applied in liquid form to "sprayfield[s]" through sprinkler systems. (35) While these methods provide a short-term management solution, the waste does not always remain contained. Waste material can escape into the surrounding environment through natural processes, which cause contaminants to flow into the nearby waterways and groundwater. (36) These existing environmental consequences may be exacerbated further by climate change because of increased flooding and more severe weather events. (37) Leakage events pose an...