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Fighting an entire industry, Maryland's Environmental Law Clinic

Legislators from Maryland's Eastern Shore continue to be exercised about the University of Maryland Environmental Law Clinic’s active support for a federal lawsuit against a chicken operation that could have major implications for the entire poultry industry in the state. (Update: And nationally. It IS federal court, after all.)

The clinic has aided two groups, Assateague Coastkeeper and the Waterkeeper Alliance, which filed a Clean Water Act citizens complaint in March 2010 in U.S. District Court in Maryland against Hudson Farms and Perdue Farms, Inc. (Assateague news release). The dispute turned into a full-blown controversy when state Senator Lowell Stoltzfuss sought to withhold funds from the Law School in retaliation for its anti-business activities. Editorialists excoriated what they viewed as an attack on academic freedom, but why, after all, should taxpayer funds be used to drive the poultry industry out of business?  We discussed the issue at length in our April 12, 2010, post, “Chicken suit.”

Judge William Nickerson dismissed Assateague Coastkeeper as a plaintiff last July while allowing Robert F. Kennedy’s Waterkeepers Alliance to continue the suit. In its fall newsletter, the Environmental Law Clinic hailed Nickerson’s ruling, “Clinic Wins Key Ruling in Chesapeake Bay Pollution Lawsuit Against Poultry Industry”:

On July 20, 2010, a federal judge gave the Environmental Law Clinic an important victory in its suit charging Perdue Farms Incorporated (“Perdue”) with improper disposal of chicken waste. Judge William M. Nickerson denied Perdue’s claim that it could not be held legally responsible for the waste and refused to dismiss the case. The Clinic’s theory of liability against Perdue focuses on Perdue’s control of concentrated animal feeding operations (CAFO) or “integrator” liability. This is the first case of integrator liability under the Clean Water Act brought in federal court against the poultry industry.

The newsletter explains the suit’s policy goals in using the courts to force a different standard of liability.

Extending liability beyond the individual farmer to corporations controlling CAFOs is an important step to reigning in these large animal (and waste) producing operations for two inter-related reasons. First, integrators such as Perdue control numerous factory farms. If they can be held liable for pollution from those factory farms, they will have a financial incentive to control numerous farms’ pollution. Second, Perdue has the financial means to eliminate or reduce pollution from their factory farms.

At a Feb. 25, 2011, meeting in Annapolis, Eastern Shore lawmakers sharply criticized Law School Dean Phoebe Haddon for the clinic’s support of what they viewed as anti-business political agenda. Haddon insisted the clinic was focused only on educational goals and that ideology was not an issue. From StarDem.com, “Shore legislators cross-examine U.Md. law school dean about lawsuit against farmer, Perdue”:

Del. Jeannie Haddaway-Riccio, R-37B-Talbot, questioned continuing with the case since the Assateague Coastkeeper's portion of the matter was dismissed and the Waterkeepers Alliance is an out-of-state organization that probably does not need the law school's assistance.

Haddon said that is up to the clinic to decide. She said the case is a citizens' lawsuit and the Waterkeepers are a resource in the case. "They are not the citizens who are creating the suit," Haddon said.

Del. Michael A. McDermott, R-38B-Worcester, said it is disingenuous to say the case would not have been accepted if a state resident did not file it when that person is a member of the groups involved. McDermott said there needs to be sensitivity to the Shore's biggest industry before families' life savings are drained in defense of suit brought by the state's law students.

For such a hot issue in 2010, this case has fallen out of the news. We have uploaded three relevant documents to Scribd, starting with Judge Nickerson’s July 20 order and memorandum, and the court’s scheduling orderissued Jan. 25, 2011, which suggests a trial this autumn.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.