LANSING ? The Michigan Supreme Court issued an opinion in Michigan Farm Bureau v Department of Environment, Great Lakes, And Energy (EGLE) yesterday, upholding EGLE?s authority to use a general permit to announce more protective permit conditions for concentrated animal feeding operations (CAFOs) than those found in promulgated rules. The Court?s ruling affirms EGLE?s discretionary ability to develop permit conditions to safeguard water quality and requires the agency to justify these conditions in contested case proceedings.?

?This decision is a critical step forward in protecting our state?s invaluable water resources,? said Michigan Attorney General Dana Nessel. ?While this is a significant procedural victory for environmental protection, we will continue to vigorously defend EGLE?s position and demonstrate the need for these permit conditions in contested cases.??

CAFOs are industrial-scale livestock facilities regulated under the National Pollution Discharge Elimination System (NPDES) permitting program. The Michigan Farm Bureau, joined by other industry groups and a subset of CAFOs, challenged some of the new permit conditions contained within the 2020 CAFO General Permit, arguing that they constituted unlawful rulemaking. The Court disagreed, finding that EGLE has discretionary authority to develop more protective permit conditions than those contained within promulgated rules. The Court also concluded that permit conditions within general permits cannot be rules because they do not bind CAFOs at all. Rather, it is the individual certificates of coverage issued to each facility, based on site-specific considerations, that establish the binding requirements. Those certificates, like the general permit, are subject to challenge only via contested case proceedings.?

The Department of Attorney General litigated this case on behalf of defendant state agency EGLE. The Department received amicus support from the following environmental groups, which also intervened in support of EGLE in the contested case proceeding: the Environmental Law and Policy Center; the Michigan Environmental Council; the Environmentally Concerned Citizens of South Central Michigan; Freshwater Future; For Love of Water; Food and Water Watch; the Michigan League of Conservation Voters; and the Alliance for the Great Lakes.

?

###

??

??

??

?