Kansas Supreme Court Gives Green Light to Hog CAFO Challenges

Hog CAFO
Photo by Kent Becker, usgs.gov


By Mimi Moffat, Chapter Legal Chair

On June 2, 2023, the Kansas Supreme Court overturned last year’s Court of Appeals decision reversing a December 6, 2019 district court order upholding Sierra Club’s challenges to four permits improperly issued by the Kansas Department of Health and Environment. The permits allowed Concentrated Animal Feeding Operations (CAFOs) to circumvent state law requiring minimum setbacks to surface waters in order to minimize their contamination by swine wastes. Holding that the appeal of the district court decision was moot because those permits had been replaced by 2021 permits, the Supreme Court dismissed the case on technical grounds. The reinstatement of the district court decision, which indicated that the CAFO owners and state regulators were gaming the system, leaves Sierra Club free to challenge the later permits on the same grounds.

“We have fought these permits for almost 6 years because KDHE has failed to do its job. They’re called the Department of Health and Environment for a reason. We look to them to preserve health and environment, not endanger it,” said Sierra Club Chapter Chair Elaine Giessel.

“Swine waste can carry pathogens, excess nutrients, and bacteria which are often antibiotic resistant. Swine waste also contributes to groundwater pollution in the forms of groundwater seepage and waste spray into neighboring areas with sprinklers,” she explained, “and the smells can be intolerable for nearby residents.” 
    
“The Supreme Court did not rule on Sierra Club’s interpretation of the statutory requirements” she continued, “but the district judge studied the issues carefully and ruled in our favor. That interpretation stands and we are firm in our commitment to protect our waterways and the health of rural Kansans.”

I am proud of the excellence and sustained efforts of our our legal team who made this victory possible.

  • Chapter Agriculture Chair Craig Volland, who now co-leads the national Sierra Club Grassroots Network CAFO team. He has spent thousands of hours reviewing CAFO permits, and KDHE files, drafting comments on permit applications, and reviewing and editing an untold number of legal documents. His passion has driven these struggles and they would not have happened without him. 
     
  •  Timothy Laughlin,  our lead outside counsel, Schoonover and Moriarty LLC, who was recruited by Craig and mentored by attorney Bob Eye. Since he joined our team, he has done the lion's share of the legal work. He argued the case before the Kansas Supreme Court. 
     
  • Bob Eye, our original outside counsel, who tried the district court case we will rely on for our future litigation. He has been involved every step of the way since the beginning.
     
  • Our generous Sierra Club donors and supporters. We use tax-deductible 501(c) 3 donations for litigation expenses but we also rely on non-deductible 501(c)(4) gifts to support our volunteer operations. We could not bring this kind of case without both kinds of donations. 
The case is No. 123,023, SIERRA CLUB, Petitioner/Appellee,  v.  JANET STANEK, in her Official Capacity as Secretary of the Kansas Department of  Health and Environment, and the DEPARTMENT OF HEALTH AND ENVIRONMENT,  an Agency of the State of Kansas,  Respondents/Appellees,  and  HUSKY HOGS, L.L.C., PRAIRIE DOG PORK L.L.C.,  ROLLING HILLS PORK, L.L.C., and STILLWATER SWINE, L.L.C., Intervenors/Appellants.