Enviromental Law

You have graduated from SNHU and are doing environmental work for the Conservation Law Foundation. A group of citizens has contacted you with complaints about a nearby pig farm that they claim is causing environmental problems. You and one of your colleagues are doing a preliminary assessment. You are addressing issues that arise under the federal environmental statutes. Your colleague is addressing any common-law actions, so you should not spend any time on the common-law aspects of this case. Your organization has done some preliminary investigation that reveals the information given below.

The pig farm is owned and operated by a company called Oh My Porky Inc. The operation is one of the largest pig farm operations in the United States. Raising pigs is a messy business, as the pigs prefer wet, dark piles of mud and manure. The operation sluices water through manure piles with a series of pipes and collects runoff from the piles in ditches. The ditches flow out of one of the farm buildings down to a large collecting pond. From the pond, the water is pumped back up into an open holding tank before being recirculated through the manure piles. The operation reuses its water in part because it is efficient to do so, but more importantly, the manure-infused vat of water contains a high concentration of nutrients that facilitate growth of organisms that pigs enjoy.

The operation is extremely smelly. Especially on warm, sunny days, the farm produces an odor noticeable for many miles. Oh My Porky Inc. borders on a residential neighborhood, and the smell has produced hundreds of complaints. The drainage ditches, collection pond, and the holding tank for the recirculated water are all completely exposed to the elements. On rainy days, the drainage ditches commonly overflow and run off over land into the Found River, a small river that runs adjacent to Oh My Porky Inc. On very rainy days, the storage tank also overflows. Finally, during periods of heavy rain, often in the spring, the pond overflows its banks and spills over into the Found River. On these occasions, the river carries the smell of raw manure many miles downstream.

Simply putting a roof over the storage tank would avoid much of this problem, as it would reduce the extent of overflow. Oh My Porky Inc., however, has refused to do this. Even if it did, some problems would remain unresolved. Overflow from the pond (which would be difficult to cover) would still sometimes occur, and ditches and the like on the property also leak into the river.

Your research reveals that the EPA has never granted a National Pollution Discharge Elimination System (NPDES) permit for a pig farm and has
identified no particular set of technological requirements that would be appropriate for such an operation.

The Found River flows for another five miles from Oh My Porky Inc. in Maine before it flows into New Hampshire, and from there on to Great Bay, which goes out to the ocean. Maine has designated its stretch of the Found River as a drinkable waterway. New Hampshire, by contrast, designates the waterway as a fishable waterway, thereby demanding higher water quality than Maine does. Although the Found River’s water quality is such that it satisfies the drinkable standard, it does not satisfy New Hampshire’s fishable standard. Specifically, sewage treatment plants upstream from Oh My Porky Inc. deposit so much inadequately treated water into the Found River that it does not support New Hampshire’s fishable designation. Part of the river’s failure to meet the standard, however, arises from the fact that the Narragansett River joins the Found River just north of the Maine border. The Narragansett River is a fairly heavily polluted waterway, as a small Maine town known as Needs People pours an enormous amount of poorly treated sewage into the Narragansett River just before it flows into the Found River.

Finally, a fish listed as endangered by the U.S. Fish and Wildlife Service (FWS) also inhabits the Found River. This fish, known as the artful dodger bass, has dwindled in population in recent years, owing to the inflow of sewage from both the treatment plants in Maine and from the Oh My Porky Inc. farm operation. The FWS has determined that the size of the artful dodger bass population has declined in rough proportion to the amount of untreated organic compounds in the river. The FWS has also designated the Found River as a critical habitat for the fish. A study conducted by the FWS has identified the sewage treatment plants in Maine and the Oh My Porky Inc. farm operation as contributing jointly to the fish’s decline.

The individuals who have contacted you reside alongside the banks of the Found River in both Maine and New Hampshire. They complain that the water smells bad. They contend that the smell is so bad in the summer that they have to keep their windows closed. Several report that they used to swim in the river but no longer feel safe doing so. The residents closest to the facility also report that the odors keep them indoors with windows closed for much of the year.

Sketch out what kinds of actions your organization could take against Oh My Porky Inc. to get them to alter their activities. Assume that your organization is prepared to sue Oh My Porky Inc. directly using any aspect of law at its disposal and is willing to sue any state or federal agency to get it to crack down on Oh My Porky Inc. Again, remember that you are only addressing the issues that arise under federal environmental law, and not the common law.