Politicians frequently engage in long, pitched battles over merely incremental changes in law.
Now, however, the governor of Arkansas and the attorney general of Oklahoma are fighting over an issue that some might say is purely excremental.
The latest skirmish in the battle came just last week, when Arkansas Gov. Mike Huckabee accused Oklahoma AG Drew Edmondson of “playing politics” in demanding reductions in poultry-farm runoff that, Huckabee says, have “no scientific basis of possibility.” Edmondson has been prosecuting his animus against animal wastes by filing a lawsuit (State of Oklahoma vs. Tyson Foods, US. District Court for the Northern District of Oklahoma) against various poultry farmers (many located in Arkansas) — with serious ramifications also for hog farmers and cattle ranchers, as well as for organic farmers who use animal manure instead of chemicals in numerous other states.
With the help of three big-hitting plaintiffs’ law firms, Edmondson is trying to collect (on behalf of Oklahoma) major financial assessments against the farmers because, he alleges, the manure has caused “injury to, destruction of, and loss of … natural resources … including the land, fish, wildlife, biota, air, water, ground water, [and] drinking water supplies.”
The suit says the runoff violates, among other laws, the Comprehensive Environmental Response Compensation and Liability Act. The common name for CERCLA is the “Superfund” law—yes, the law originally meant to provide for cleaning up major hazardous chemical sites.
Natural animal waste has been around for several billion years, of course, long before the animals were farm-raised, and humans heretofore have always managed to share their rivers with other fauna. It might seem odd to use the Superfund law to force the regulation of such wastes. Edmondson, though, said “this waste contains arsenic, zinc, hormones and microbiological pathogens like E. coli and fecal coliform — not exactly things you want in your drinking water.”
A press release from his office also noted that in the Illinois River Watershed, “the phosphorous from poultry waste is equivalent to the waste that would be generated by 10.7 million people, a population greater than the states of Arkansas, Kansas and Oklahoma combined.”
In response, the lawsuit demands not just an “immediate cessation of all releases of poultry waste constituents to the soils and waters of the state of Oklahoma,” but also payment for alleged financial damages and punitive damages over and above the actual harm caused.
The defendants doubtless will argue that the Superfund law is not applicable to animal waste, that they are violating no laws anyway, and probably that the pollution is less than Edmondson claims. And nearly 200 members of the U.S. House of Representatives have introduced H.R. 4341, which would clarify CERCLA to ensure that courts can’t misread the law so as to apply it to manure. If passed, such a law could make Edmondson’s case moot before it reaches its scheduled 2008 trial date.
Either way, this is one case where legal technicalities should not obscure basic common sense. As a Sept. 29 front-page Washington Post article noted, plenty of the harmful bacteria in waterways around the D.C. area comes from the dung of wild animals. In fact, the level of pollution from wildlife waste alone at times violates standards set by the federal Environmental Protection Agency.
As a result, The Post reported, scientists studying the Willis River in central Virginia “determined that there needed to be an 83 percent reduction in the amount of waste that wildlife left directly in streams.”
Right. Good luck with getting the wildlife to comply with that directive.
The relevance of the statistics on wildlife dung is that it’s more than a little fatuous to be suing farmers for the waste from managed livestock when the critters would be equally fouling the rivers if they still were wild. And it borders on the absurd to try to associate a natural substance such as poultry droppings, no matter how foul, with the sort of pollution mandated for cleanup by the Superfund law.
Supreme Court cases have repeatedly noted that laws should not be interpreted in a way that produces absurd results (for one example, see Regions Bank vs. Provident Bank Inc., 2003) — which also is, of course, a basic rule of statutory construction dating back to the old “British Rule” that legislative language should be accorded its “plain meaning” and not interpreted in a way amounting to a “manifest absurdity.”
It might be one thing to try to force farmers to find more ecologically beneficial ways to dispose of their natural wastes. But to try to soak them for financial damages because their animals produce what animals by nature always produce, by using a law designed to combat major chemical spills, is not just somewhat absurd but also obnoxious.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator. He can be reached at [email protected].
