Protecting Our At-Risk Communities from the Ground(Water) Up: CAFOs, the Clean Water Act, and a Framework for Offering Clarity to an Imprecise Maui Test
For rural communities across the country, the problems associated with concentrated animal feeding operations (CAFOs) are nothing new. These industrial-sized operations emit a tremendous amount of waste, polluting the surrounding air, land, and water. In many regions, minority, indigent, and uneducated groups disproportionately bear the ill-effects of these inhumane operations. Under the Clean Water Act, CAFOs are explicitly included in the definition of a point source and are thus subject to the National Pollutant Discharge Elimination System (NPDES) permitting requirements, which regulates the discharge of pollutants. However, many operations do not fit within this regulatory scheme as they do not directly discharge to navigable waters. In April 2020, the Supreme Court held in County of Maui v. Hawaii Wildlife Fund that point sources do not actually need to discharge directly into jurisdictional waters to fall within the ambit of the NPDES permitting program; instead, a “functional equivalent” of a direct discharge will suffice. Applying this “functional equivalent” doctrine to encompass select instances of CAFO groundwater contamination would give our rural communities a real avenue to meaningfully combat environmental injustices that had previously been just a reality with which they had to cope.
This Comment argues that the Maui doctrine can uniquely work as a doctrinal tool against concentrated animal feeding operations that contaminate surface waters through groundwater, placing those operations under the scope of the NPDES regulatory framework and providing multi-faceted relief to affected communities. It explores the difficulties involved with establishing sufficient scientific linkage on the issue of groundwater contamination by CAFOs and why that task is far from insurmountable. It then spotlights the application of the Maui doctrine to actual, real-world CAFOs and offers factors, goals, and directives that bring CAFOs that pollute into nearby waterbodies through groundwater squarely within the ambit of the Clean Water Act. Finally, this Comment discusses the substantial environmental implications of CAFO regulation and this Comment’s utility for other foreseeable applications of the Maui doctrine.
Shawn D. Ren,
Protecting Our At-Risk Communities from the Ground(Water) Up: CAFOs, the Clean Water Act, and a Framework for Offering Clarity to an Imprecise Maui Test,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol71/iss3/3