by Professor Karl Coplan

Large meat production enterprises like Perdue and Smithfield have long sought to avoid environmental liabilities by contracting out animal production to smaller farms.  The “integrator” owns the animals, provides the feed and medication, and dictates the conditions under which the animals are raised.  The integrator hopes to avoid any responsibility for environmental compliance, leaving those liabilities in the lap of the family farmers who contract to grow the animals.

Now a District Court in Maryland has refused to dismiss a Clean Water Act citizen suit alleging that Perdue exercised sufficient control over its contract farmer to make it liable for Clean Water Act violations at a family-owned farm. The case, Assateague Coastkeeper v. Allen and Kristin Hudson Farms, Inc., No. WMN-10-CV-0487 (Jul. 21, 2010)  involves pollutant-laden runoff in a ditch flowing from a poultry Concentrated Animal Feeding Operation (CAFO) holding 800,000 birds. The ditch–from which samples revealed extremely high levels of fecal coliform, E Coli, nitrogen and phosphorus–empties into the Franklin Branch of the Pokomoke River and subsequently the Chesapeake Bay. “The Eastern Shore is one of the most abundant and productive coastal waterways in the United States, and we can no longer afford to ignore the pollution and contamination of these waters…We need to take action against persistent violators like Hudson Farm and Perdue to protect the future of the Chesapeake and all who depend on it,” said Scott Edwards, a Pace Law alumnus who is representing one of the plaintiffs, Waterkeeper Alliance, in this case.

Judge William Nickerson reasoned that liability under the Clean Water Act is not limited to the holder of the permit or owner of the facility, but extends to all entities that exercise sufficient control to be responsible for causing the violation, including contract integrators like Perdue.  Of course, the plaintiffs still need to prove that Perdue exercised sufficient control to be held liable, but they will be entitled to discovery on this issue.

This decision is an important step towards establishing integrator responsibility for environmental compliance, and eliminating the perceived loophole that allowed integrators to dictate CAFO management practices without taking responsibility for the huge environmental impacts of these operations.  The victory for the environmentalists in this case is especially sweet, since it was this litigation that lead Perdue to an (ultimately unsuccessful) lobbying effort with the state legislature to close down the University of Maryland Environmental Clinic, which represents the plaintiffs.