The courtroom clash

Factory farm operators and environmental regulators faced off in Ingham County circuit court on Monday over new state rules restricting how concentrated animal feeding operations handle animal waste.

A coalition of Michigan farmers and agricultural industry groups asked Judge Richard Garcia of the 30th Circuit Court to strike down several conditions of the Michigan Department of Environment, Great Lakes and Energy (EGLE) 2025 general permit. The groups argued they were denied an impartial hearing.

What the new permit requires

EGLE Director Phil Roos issued his final opinion in October, establishing new regulations for concentrated animal feeding operations across the state. The permit includes:

  • A ban on applying animal waste as fertilizer on snow-covered ground
  • A blanket ban on applying waste to land in January, February and most of March
  • A prohibition on factory farms giving away animal waste during the winter
  • Authority for EGLE to require groundwater monitoring
  • Notification requirements for operations applying waste to tile-drained fields
  • Reduced permitted levels of phosphorus found in soil
  • Site-specific regulations for feeding operations in watersheds that fail to meet state water quality standards

A 2024 report from the Environmental Law and Policy Center noted that concentrated animal feeding operations in Michigan produce 62.7 million pounds of animal waste daily. Many hog and dairy farms store the liquid waste in lagoons before applying it to crop fields.

Excess nutrients from animal waste, particularly phosphorus, can cause harmful algal blooms in nearby waterways. The waste can also contribute E. coli to bodies of water, carrying illness risks for people swimming in or drinking from those water sources.

The due process argument

Zachary Larsen, attorney for the agricultural groups appealing the permit, argued that EGLE failed to provide an impartial decision-making process.

EGLE held two meetings as part of the contested case review process for the permit. During one meeting, Larsen raised concerns about a 2024 executive order from Gov. Gretchen Whitmer that eliminated the Environmental Permitting Review Committee. The order gave EGLE’s director the authority to hear permit review appeals and make decisions on permit application review petitions.

Larsen argued that EGLE staff was now asking agency leadership to restore provisions that had been removed during Administrative Law Judge Daniel Pulter’s review.

“The right to an impartial decision maker is a fundamental guarantee of due process, but here again, EGLE overturned an independent ALJ’s decision after a nearly five-year, cost-intensive and time-intensive administrative process through an appeal to itself,” Larsen said.

Larsen also argued that EGLE failed to provide proper notice on some of the permitting conditions Roos included in the 2025 general permit for discussion at the hearing.

“For a hearing to be meaningful, you can’t simply cram through changes into a permit that were not raised in a manner that would have given appellants the opportunity to provide evidence, to cross-examine witnesses and to address those issues,” Larsen said.

EGLE’s defense

Assistant Attorney General Elizabeth Morrisseau, representing EGLE, argued that the Administrative Procedures Act permits directors of state agencies to review decisions made by administrative law judges in a contested case.

Morrisseau said whether the decision involves issuing a non-binding general permit under the Natural Resources and Environmental Protection Act, revoking a license under the public health code, or subpoenaing a provider to re-audit a Medicaid decision, all are legal and standard procedure in Michigan.

She noted that the Administrative Procedures Act provides an opportunity for parties to file an affidavit and move to disqualify the officer presiding over a contested case if they believe the presiding officer is not impartial. Morrisseau said that did not happen in this case.

Katie Garvey, senior attorney for the Environmental Law and Policy Center, emphasized that agency directors can adjudicate disputes involving their own agencies.

“The appellants have not cited any evidence of actual bias; rather, they’re asking the court to infer that he must be biased because he’s the so-called boss of EGLE. And that is a radical request, because the law requires the opposite,” Garvey said.

Morrisseau also argued that EGLE satisfied its timely public notice requirements when it issued the initial draft permit in November 2019. That draft included a ban on applying animal waste to fields between January 1 and March 19, alongside requirements for factory farms to use a phosphorus reduction assessment tool.

EGLE issued its final general permit in April 2020, along with a document explaining the changes made to the draft, Morrisseau said.

“Once a contested case is sought and moves forward, any evidence that comes from a contested case can be used to uphold the permit as issued, or to change it, whether that remains removing conditions, adding conditions, or modifying conditions,” Morrisseau said. “The Court of Appeals has concluded that the public notice and comment period only applies to those initial permitting decisions, and once that petition for a contested case is filed, new evidence can be adduced, and it is not limited to matters subject to public notice and comment.”

What happens next

Judge Garcia took the matter under advisement. A ruling is expected at a later date.

The outcome could reshape how Michigan regulates concentrated animal feeding operations across the state, including in Allegan County and the Holland area, where dairy and livestock operations are a significant part of the local agricultural economy.

The case also raises broader questions about Governor Whitmer’s executive order that consolidated permitting authority within EGLE’s leadership rather than an independent review committee.