State Preemption of Local Control Over Intensive Livestock Operations
| Date | 01 June 2014 |
| Author |
44 ELR 10506 ENVIRONMENTAL LAW REPORTER 6-2014
State Preemption
of Local Control
Over Intensive
Livestock
Operations
by Nadia S. Adawi
Nadia S. Adawi is an attorney in Philadelphia, Pennsylvania.
Summary
Attempts to regulate intensive livestock operations at
the local level have met sti resistance from state legis-
latures. Local governments, frustrated by the hands-o
approach of federal and state law, have tried to pass
local ordinances that address potential detrimental
impacts to the water, air, and quality of life from fac-
tory farms in their communities. Yet, increasingly, state
legislatures have blocked these eorts. States preempt
local control in three main ways: by setting statewide
standards for agricultural operations that cannot be
exceeded by local law; by prohibiting local zoning and
often local health ordinances for agricultural opera-
tions; and by broadening Right to Farm laws to super-
sede local ordinances. In the absence of additional
regulation or enforcement of existing regulation, those
who are most aected by industrial agriculture are left
with no way to address perceived harms.
The nature of agriculture has changed, yet the way
we regulate its environmental and public health
eects has not. Many contemporary livestock oper-
ations are now industrial in nature and can have signicant
environmental and health impacts on the communities in
which they are located. But even as the scale, intensity, and
impacts of agriculture have grown, environmental law has
continued to take a hands-o approach. Federal environ-
mental laws largely exempt agricultural activities, as does
most state law. In fact, at the state level, agriculture is not
just unregulated, it tends to be actively protected in a way
that no other industr y is.1 In the absence of federal a nd
state regulation, the only remaining governmental option
is local laws. But many state legislatures have actively
worked to take that option away.
States have routinely deleg ated decisions about zoning,
siting, construc tion, permit issuance, enforcement and
inspections, environmental control, and health to loca l
governments. Even where regulatory authority ha s been
retained at the state level, states have historically allowed
local governments to enact r ules that are more stringent
than state rules.2 However, in recent years, when local
governments around the country have attempted to e xer-
cise their authority to regulate intensive livestock opera-
tions, a number of state legislatures have inter vened to
take such control away. is state preemption is occurring
even in states that grant local governments broad “home
rule” powers.
is Article explores how many localities have attempted
to regulate industrial livestock operations and what state
legislatures have done to undermine these local eorts,
eectively taking away local residents’ democratic right
to control what is happening in their communities. e
Article surveys some of the increasingly well-documented
environmental and hea lth impacts of intensive livestock
operations, the origins and desirability of local governing
authority, and the various ways that local control3 is being
stied by state legislatures. A concluding appendix contains
detailed state-specic examples that support the conten-
tion that the agriculture industry is granted extraordinary
protections, despite its environmental impacts. Whatever
merit there may have been historically to exempting the
agricultural sector from basic environmental protections
no longer squares with the reality of industria l livestock
production in 2014—especially when it comes to the needs
of directly aected communities and citizens.
1. Every state has a “Right to Farm” Act, but no state has, for example, a “Right
to Smelt” Act.
2. See, e.g., I C §331.301(6) (2013).
3. As used in this Article, “local control” refers to the ability of local govern-
ments to regulate proposed or existing intensive livestock operations located
in their communities.
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
6-2014 NEWS & ANALYSIS 44 ELR 10507
I. Intensive Livestock Operations and
Their Impacts on Local Communities
Many contemporary livestock operations are no longer
bucolic farms, but rather industrial-scale operations with
huge concentrations of animals. Since 1978, the number of
pigs, chickens, cows, and cattle raised for meat and dairy
has almost tripled, but the number of farms on which
they are raised has decreased by almost one-half.4 In 2012,
the 3,006 largest hog and pig operations averaged almost
15,000 animals each.5
Of the approximately 1.2 million6 farms with livestock
and poultry in the United States, the U.S. Environmen-
tal Protection Agency (EPA) estimates that 450,0007 are
animal feeding operations (AFOs),8 where livestock and
poultry are conned, reared, and fed. Of these AFOs, an
estimated 18,6229 are concentrated animal feeding opera-
tions (CAFOs),10 which conne large numbers of animals
and meet certain pollutant discharge criteria. e number
of large operations has been increasing in recent years, as
livestock raising has become more concentrated in fewer,
larger operations. e U.S. Department of Agriculture
(USDA) estimates that from 1982 to 1997, the total num-
4. U.S. Dep’t of Agric. (USDA), Nat’l Agric. Statistics Serv., -
, tbl. 1. Historica l Highlights: 2012 and Ear-
lier Census Years, availa ble at h ttp://www.agce nsus.usda.g ov/Publica-
tions/2 012/Full_ Report/Volume _1,_Chap ter_1_US /st99_1_ 001_001.
pdf. In 1978, 3,164,399,774 pigs, dair y cows, beef cattle, and broiler hens
were raised on 1,743,315 farms. In 2012, 8,567,430,404 such animals
were raised on 888,185 farms. Data on the number of laying hens is not
available for censuses prior to 2007, so the se animals are not included in
the comparison.
5. USDA Nat’l Agric. Statistics Serv.,
States Data, tbl. 19. Hogs and Pigs—Inventory: 2012 and 2007, available
at http://www.agcensus.usda.gov/Publications/2012/Full_Report/Volume_
1,_Chapter_1_US/st99_1_017_019.pdf. In 2007, 3,006 farms had
5,000 or more hogs and pigs, and these farms reported an inventory of
44,719,035 animals.
6. USDA, Nat’l Agric. Statistics Serv., —
States Data, tbl. 1. Historical Highlights: 2012 and Earlier Census Years,
available at http://www.agcensus.usda.gov/Publications/2012/Full_Report/
Volume_1,_Chapter_1_US/st99_1_001_001.pdf.
7.
, U.S. EPA, http://cfpub.epa.gov/np-
des/faqs.cfm?program_id=7 (last visited Apr. 26, 2014).
8. EPA denes an AFO as an agricultural operation where animals are raised
and kept conned for 45 days or more in a 12-month period, and where
feed is brought to the animals rather than the animals grazing or forag-
ing. U.S. EPA,
, http://cfpub.epa.gov/npdes/home.
cfm?program_id=7 (last visited Apr. 26, 2014).
9. U.S. EPA,
Endyear 2012, completed 12/31/12 (as reported by EPA Regions), available
at http://www.epa.gov/npdes/pubs/afo_tracksum_endyear2012.pdf.
10. An AFO is characterized as a CAFO by EPA based on the number of ani-
mals at the facility, whether the facility has a man-made ditch or pipe that
carries manure or wastewater to surface water or the animals come into con-
tact with surface water that passes through the area where they are conned,
or if the facility has been designated as a CAFO by the permitting authority
as a signicant contributor of pollutants. See 40 C.F.R. Part 122.23.
ber of livestock operations decreased by 24% and total
operations with conned livestock similarly fell by 27%.11
At t he same time, the number of a nimals raised at large
feedlots increased by 88%, and the number of large feed-
lots/CAFOs increased by 51%.12
Intensive livestock operations are blamed for a broad
range of environmental, public health, social, and anima l
welfare harms.13 For example, the systematic feeding of
maintenance doses of a ntibiotics to promote faster animal
growth and prevent infections that tend to occur under
intensive connement conditions is implicated in the
development of antibiotic-resistant bacteria that are trans-
ferred from anima ls to humans, posing signica nt risks
for human health.14 e extremely close quarters in which
animals are housed inhibits their ability to express natural
behaviors, or often even turn around.15
A number of harms, discussed further below, a re dis-
proportionately borne by those living nearby. e mostly
rural communities in which intensive livestock operations
are located can endure water contaminated by nitrogen
and pathogens, hig her rates of respiratory and other dis-
eases, depressed property values, and a reduced quality of
life as residents are forced to curtail normal daily activi-
ties because of poor air quality.16 ese impacts to the air
and water quality, the health of workers, and the quality of
life of community residents are the primary targets of local
attempts to regulate intensive livestock operations.
11. USDA, Natural Resources Conservation Service, Manure Nutrients Relative
, Publication No. nps00-579, 17
(Dec. 2000), available at http://www.nrcs.usda.gov/wps/portal/nrcs/detail/
national/technical/?cid=nrcs143_014126.
12. Id. at 18.
13. See, e.g., Pew Commission on Industrial Farm Animal Production, Putting
(April
2008); David Osterberg, MS, & David Wallinga, MD, Addressing Externali-
ties From Swine Production to Reduce Public Health and Environmental Im-
pacts, 94 A. J. P. H 1703 (2004); U.S. Government Accountabil-
ity Oce (GAO),
, GAO-08-944, 23-26 (Sept. 2008), reviewing
15 studies completed since 2002 that “directly link pollutants from animal
waste to human health or environmental impacts,” available at http://www.
gao.gov/new.items/d08944.pdf.
14. National Research Council,
, e Nation-
al Academies Press (2010), available at http://www.nap.edu/openbook.
php?record_id=12925&page=1.
15. Pew Commission on Industrial Farm Animal Production,
, *41 (July
2008), available at http://www.ncifap.org/_images/212-7_PCIFAP_Aml-
WlBng_FINAL_REVISED_7-14-08.pdf.
16. Carrie Hribar,
eir Impact on Communities, National Association of Local Boards of
Health, 8 (2010). See also Steve Wing et al., -
, 116 (10) E. H P.
1362 (Oct. 2008).
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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