Ace Weekly

When the Sierra Club got involved in the fight between the state and farm groups upset with new regulations imposed on huge livestock farms, the environmental group made no secret of its suspicions.

"The [Natural Resources Cabinet] is a governmental bureaucracy and is capable of changing positions with the political winds," the Sierra Club argued in court documents filed with Franklin Circuit Court.

Representing residents who claim they've suffered health problems or losses of property value because of a neighboring factory farm, the Sierra Club vowed to stiffen the state's backbone.

And in court filings entered September 26, the Sierra Club is challenging the state not just to stick with its regulations but to toughen them.

Generally, the rules cover "concentrated animal feeding operations" (CAFOs) that are defined as more than 1,000 cattle, 700 dairy cattle, 2,500 pigs or 100,000 chickens. The rules detail setback requirements from waterways as well as schools, cities, roads and churches to combat water and air pollution. The regulations also specify permanent storage structures for poultry waste.

Among its many complaints, the Sierra Club asserts the state rules fail to sufficiently prevent nuisance odors or fully protect water resources in areas with karst geology.

"The setback requirements are woefully inadequate," said Hank Graddy, a Midway attorney representing the Cumberland Chapter of the Sierra Club and chairman of the Sierra Club's national campaign against CAFOs.

So far, the state is not showing any interest in reworking its regulations to please the Sierra Club. In its answer filed with the court, the Natural Resources Cabinet denied the Sierra Club's accusations and questioned whether the group even has enough grounds to challenge the rules in court.

Graddy said the state's response was expected.

"The cabinet's position is not surprising," Graddy said. "They feel they've acted within the bounds of the law and responded to comments from the public and the concerns of the industry. I would be surprised if they said otherwise."

Friction between the state and the Sierra Club could make some forget legal action was initiated by farm groups that want the regulations struck down, not strengthened.

These groups are particularly upset the rules would make large poultry processing companies like Perdue and Tyson share responsibility with the farmer in the event of an environmental accident.

The state argues giant companies should share liability when they retain ownership of the animals and dictate to the farmer exactly how the livestock will be raised.

But farm groups complain these giant companies won't stand for joint liability and will move their operations to states without such requirements. The farm groups argue farmers will then lose out on an economic opportunity at a time when many are already struggling in the wake of tobacco quota cuts.

At least one lawyer for the farm groups raised an eyebrow when the Sierra Club filed its effort to pair its complaints with this lawsuit.

"One of the issues I raised [when the court allowed the Sierra Club to join the state in defending the rules] is that the Sierra Club will clutter the lawsuit," said attorney Mark Overstreet.

Graddy dismissed Overstreet's complaint as "nonsense," arguing this is precisely the lawsuit for working out issues like those raised by the Sierra Club.

And although the Sierra Club has a bone to pick with the state, the group is not shirking its duty to defend the CAFO rules as written.

In one of its lines of legal attack, the Sierra Club is attempting to disqualify several of the farm groups from the lawsuit.

"We don't believe the Kentucky Corn Growers Association or the Kentucky Soybean Association have a dog in this fight any more than a farm equipment company or the Board of Realtors has," Graddy said. "They only have an indirect interest, so indirect as not to have standing [to sue]."

In addition to the corn and soybean growers, the Sierra Club is looking to run off the road the Small Grain Growers Association and the Council for Burley Tobacco.

Overstreet said if the Sierra Club pushes the issue, he is confident these commodity groups can survive the challenge. He suggests members of these associations also raise livestock.

But Graddy said that isn't enough.

If the Rotary Club has a member who owns a CAFO, that wouldn't be enough for the Rotary Club to become involved in the suit, Graddy argued.

The Sierra Club is also seeking to eliminate the Kentucky Cattlemen's Association from the lawsuit, arguing there are no beef cattle CAFOs in Kentucky so there is no reason for that group to be involved.

Yet, even if the Sierra Club successfully drives away those groups, there would still be a sizable number of opponents: the Kentucky Farm Bureau, the Kentucky Milk Producers Association, the Kentucky Pork Producers Association, the Kentucky Poultry Federation, IPKY (a pork producer based in Nicholasville), and an Owensboro farmer.

For its part, the state is seeking to have all the complaints - those of the farm groups and the Sierra Club - dismissed.

Alex De Grand can be reached at 225-4889 ext. 232 or adegrand@aceweekly.com