Ruling could come soon after final arguments in lawsuit challenging Missouri CAFO law

A lawsuit seeking to block a state law restricting local governments’ ability to rein in industrial hog farms has expanded to challenge a wide-ranging bill passed this year in response to the COVID-19 pandemic.

On Friday, attorneys for Cooper County argued that House Bill 271, passed this year to restrict local government’s ability to issue public health orders, was unconstitutional. The bill, signed by Gov. Mike Parson, also changed a few words in an existing law aimed at tamping down further on counties that try to regulate concentrated animal feeding operations, or CAFOs. 

Cooper County originally sued in 2019 to block  Senate Bill 391, which restricted local regulations on CAFOs that were more stringent than state law.

Stephen Jeffery, who represents Cooper County in a lawsuit over both laws, urged Cole County Circuit Judge Daniel Green on Friday to strike down the new law, arguing it violated the Missouri Constitution’s requirement that legislation stick to a single subject. 

“It stretches the imagination by looking at the current title of House Bill 271…that it relates to local government,” Jeffery said, adding the litany of state laws amended by the bill “are not germane or logically relevant to the subject of local government.”

Health and environmental advocates have been watching for two years as Cooper County battles the state over Senate Bill 391. It’s one of several pieces of legislation the Missouri General Assembly has adopted in recent years to make it more difficult to challenge CAFOs. 

House Bill 271 included a provision stating that local governments couldn’t establish CAFO rules that were “in addition to (or) different from” the state’s.

Justin Smith of the Missouri Attorney General’s Office argued Friday that the hodgepodge of amendments in the bill related to school districts, police boards, county courts and sewer districts was appropriate. 

“If those don’t relate to local government, it’s unclear what (they) think does relate to local government,” Smith said. 

CAFOs cram thousands of animals, typically hogs, into confined barns and often collect manure underground before pumping it offsite to be used as fertilizer. Critics contend they present a risk to the groundwater when manure makes its way offsite. One CAFO earlier this year spilled more than 350,000 gallons of hog manure and wastewater, contaminating water along several miles of streams.

Cooper County officials adopted a rule prohibiting construction of underground manure pits on CAFO sites because soil in parts of the county is susceptible to shrinking and swelling, raising the risk of cracks and leaks from those pits. 

The county in 2019 sent a letter to owners of the Tipton East CAFO, which had been issued a state permit the year before, spelling out the rule. Days later, Senate Bill 391 went into effect.

The state argues both 2019’s Senate Bill 391 and 2021’s House Bill 271 bar Cooper County from imposing that restriction.

Jeffery argues the original legislation wasn’t retroactive, and thus, Cooper County’s regulation still stands. He also contends that the Missouri Constitution’s “Right to Farm” protections give power to local governments to regulate agriculture. 

Parties in the case already presented their final arguments on the challenge to SB 391. Friday’s hearing allowed an opportunity to argue HB 271. 

Jeffery said it appeared HB 271 came along as a “legislative fix.” The original SB 391 restricted local regulations that were more stringent than state law, but he argued Cooper County’s health ordinance created rules that weren’t considered in state law, meaning there wasn’t a comparable state law to determine whether the county’s rule was stricter. 

Attorneys in the case are expected to file proposed judgements by the end of next week for Green to consider. Jeffery said he expected a ruling soon thereafter.