Court sends Daley decision back to MPCA over greenhouse gas issue

By Brian Todd via The Post Bulletin

The Minnesota Court of Appeals on Monday gave the Minnesota Pollution Control Agency a bit of homework when it delivered its decision in a case involving Daley Farms of Lewiston, Minn.

The ruling, which affirms the majority of the MPCA's decision in the case, revokes the agency's permit to Daley Farms for an expansion of the dairy's feedlot until the MPCA can explain its decision with regard to greenhouse gas emissions resulting from an expanded dairy.

"[We] reverse and remand the EIS order for further proceedings consistent with this opinion," the court wrote in an unpublished opinion. "[We] also reverse and remand the MPCA’s approval of Daley Farms’ request to modify its NPDES permit."

Darin Broton, a spokesperson with the MPCA, said, "The MPCA is still reviewing today's court decision and will determine the appropriate next steps in the coming weeks."

In January, the MPCA granted a permit to Daley Farms for its proposed expansion of the dairy and approved the findings of an environmental assessment worksheet. The MCEA and Lewiston-based Land Stewardship Project appealed those decisions, arguing that the state should have required a more stringent environmental impact statement and that the permit should be revoked.

Aaron Klemz, director of public engagement for the MCEA, said, "In the case of the Daley expansion, MPCA failed to conduct an environmental impact statement. Instead, it relied on a brief review of the proposal that glossed over the impacts to drinking water, and completely failed to study the greenhouse gas pollution that the expansion would create."

Back to MPCA

The MCEA's claim of victory seems a little premature, said Matthew Berger, an attorney for New Ulm-based Gislason & Hunter, who represented the interests of Daley Farms in the case. Berger said the "vast majority of the issues" brought up by MCEA and LSP, including their points concerning groundwater and nitrates, were ruled against by the court of appeals.

"The court just ruled the MPCA hadn't shown their work (concerning greenhouse gas emissions) in their order," Berger said. "So, I don't believe this is going back to start from square one. It's going back to the MPCA so they can explain why they reached this conclusion."

In fact, Berger noted, part of the decision by the court of appeals noted that environmental review of greenhouse gas emissions isn't appropriate for a single feedlot project.

"We acknowledge Daley Farms’ assertion that there is no easy measure for determining the environmental impact from a feedlot permit because of the substantial difficulty and uncertainty in estimating emissions from animal feedlots," the decision read. "But although it may be difficult to measure the impact of greenhouse-gas emissions, the MPCA did not offer this as an explanation when it denied the EIS for Daley Farms’ project because it did not consider the issue."

The ruling also notes that "neither the MPCA guidance document nor our unpublished decision require the MPCA specifically to evaluate greenhouse-gas emissions."

Berger said he submitted a brief to the court of appeals that noted even the federal Environmental Protection Agency had been unable to create accurate models for livestock facilities' impact on air quality because there are too many variables in the process.

Fewer cows overall

Ben Daley, one of the owners of Daley Farms, added that if you are trying to reduce greenhouse gasses produced by feedlots, the question then becomes reduce them from what level?

"The amount of cows we're adding is less than the number of cows that left this county in the last five or six years," Daley said, referring to the numbers from the 2017 Census of Agriculture, which show Winona County is losing dairy cows as more and more dairies close their doors.

In other portions of the decision, the court of appeals ruled that the MPCA's own call for a generic EIS to study how nitrates are absorbed into the groundwater in the karst geology of Southeast Minnesota does not impact its decision to permit the Daley's expansion request.

"[The] MPCA's decision to request a generic EIS on nitrate pollution is for a different purpose than its decision on an EIS for Daley Farms’ project," the decision reads. "The MCEA’s concern about nitrate groundwater pollution has substantial support, but the administrative record establishes that the source of this pollution is unclear. ... The 'issue of nitrate contamination is bigger than any one project or site.'"

Daley said that while he'd have preferred the court reject all the claims made by the MCEA and LSP, the fact that only one issue — what Berger referred to as a "procedural issue" — was sent back to the MPCA is a good sign for the project going forward.

In fact, Daley said, the next big step is the appeal by the dairy of the Winona County decision to deny its request for a variance against the county's animal unit cap of 1,500 AU.

While the two cases have kept the expansion project in the courts instead of on the farm, Daley said it will all be worthwhile if the family wins. The dairy's infrastructure and land base is all located in Winona County, and expanding the dairy will allow more Daleys to earn their living from the farm, and will keep more jobs in Winona County, he said.

"We're a family dairy farm that has been in Winona County for six generations," he said. "This is not something we're going to take lightly from an organization that's never set foot on our place."

What is an unpublished opinion?

The Minnesota Court of Appeals delivered an unpublished opinion on the case where the Minnesota Center for Environmental Advocacy appealed the decision of the Minnesota Pollution Control Agency not to require an environmental impact statement and to grant a permit to Daley Farms of Lewiston for an expansion of its dairy feedlot.

According to Minnesota Statute 480A.08, the court must publish its decision if that decision meets any of the following criteria:

• Establish a new rule of law.

• Overrules a previous court of appeals' decision not reviewed by the supreme court.

• Provides important procedural guidelines in interpreting statutes or administrative rules.

• Involves a significant legal issue.

• Would significantly aid in the administration of justice.

Since the opinion in the case did not meet any of the following criteria, it was delivered as an unpublished decision. Because the opinion is "unpublished," it is not considered precedential in future cases.

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