|THE COUNTY HEALTH ORDINANCE AND CAFOs
UPDATED OCTOBER, 2020
Recently, I have learned from several different people that the perception on social media seems to be that the county commission has the authority to turn down a CAFO (Confined Animal Feeding Operation) application if it does not comply with County rules that conflict with state laws or regulations governing CAFOs. That perception is misleading and inaccurate.
In 2019, the Missouri General Assembly passed Senate Bill 391, which was signed by the governor and went into effect in August of 2019. The law states that county health ordinances cannot have standards that are inconsistent with or more stringent than state law. The effect of that law means that the County is bound by the state laws and regulations referenced in SB 391 which are generally administered by the Missouri Department of Natural Resources. The law allows the County to: 1) conduct a public hearing as to whether or not DNR regulations were met; and, 2) hire an independent engineer to assess whether or not a CAFO application complies with the state regulations (and any County regulations not preempted by the state regulations). If those standards are met, or the applicant agrees to conditions needed to ensure that those standards are met, the county commission is required BY LAW to approve the application.
I think some people hope that the Livingston County Commission can ignore the law and vote no on a CAFO even if the binding standards are met. The answer to that is that we cannot disregard state law. Doing so would be to violate our oath of office to uphold the laws of the state of Missouri and subject the county to potential law suits and significant liability from knowingly violating the law.
Here is some background regarding Livingston County's Health Ordinance. The Livingston County Commission adopted a health ordinance in 1997 (amended in 2009). There are currently 20 counties out of 114 counties in the state of Missouri that have health ordinances. Counties with health ordinances have more stringent standards on CAFOs than counties that don't.
This is my sixth year as Presiding Commissioner; and in my six years, our commission has made no attempt to change or modify our existing health ordinance and had no intention to change it. As I have stated many times publicly, I felt that our health ordinance was appropriate for our county. In fact, before Senate Bill 391 was passed, I met with our state legislator along with the three past commissioners, two of whom were involved in writing the original ordinance, and we told our legislator that we felt our ordinance was appropriate for our county, and we wanted to keep it. I also called our state senator's office on behalf of our commission with the same message. As already mentioned, the legislature passed the bill anyway, and it was signed by the governor and is currently law. (It should be noted that people who are unhappy with Senate Bill 391 should contact their representatives with their concerns.)
A CAFO application was filed with our county and with the DNR in February of this year. DNR approved that application in May. Our county commission scheduled a public hearing on September 15th. A few days before the hearing, the CAFO withdrew their application, so we cancelled the hearing. A few days later, the CAFO resubmitted a new application for a different type of CAFO which starts the process all over.
It should be mentioned that there are various law suits by counties in Missouri that question the legality of the law and or whether or not counties with health ordinances can be grandfathered. These cases will most likely drag on through appeals for several years. The only court ruling that I am aware of is a circuit court ruling in Knox County that stated that state law prohibited that county from standards in their health ordinance more stringent than State Law. Although a circuit court ruling in another county is not binding on us, I am sure this ruling will be appealed. We have been advised by our legal counsel that the law is the law until a court tells you differently. So just because there are law suits in various courts does not mean we can ignore the law. It is law until an appeals court or the State Supreme Court rules differently.
I am very sympathetic with the concerns about water quality, air quality, and general public health created by CAFOs. However, those concerns do not give me or the Livingston County Commission the ability to violate state law. The commission's hands are effectively bound by state law.
I hope this helps clarify the authority of the county commission regarding its health ordinance as effectively modified by Bill 391.
The Livingston County passed a health ordinance in 1997 which was later amended in 2009. The Health ordinance states that "the adoption and enforcement of said standards is hereby found to be necessary in order to enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into Livingston County."
The County's Health Ordinance regulates Concentrated Animal Feeding Operations (or "CAFOs"). The Ordinance establishes set back distances from buildings and populated areas, requires a public hearing, and other standards that minimize the health impacts of CAFOs.
This is my sixth year as Presiding Commissioner. When I first came into office, I tried to learn as much as I could about the pros and cons of Health Ordinances. After studying this issue, I concluded that our Health Ordinance was appropriate for Livingston County. Consequently, in the six years that I have been Presiding Commissioner, our Commission has made no attempt to alter or change our Health Ordinance and had no intention to do so.
Last year, the Missouri State Legislature passed Senate Bill 391 which states that counties like ours cannot have Health Ordinances with standards that are inconsistent with or stricter than certain state statutes and regulations, which are primarily those of the Department of Natural Resources (DNR). This law went into effect in August of last year. It should be noted that before Senate bill 391 was passed, I had our State Legislator in to discuss this with several former commissioners, who had written our original Health Ordinance, and we indicated to him that we believed our Health Ordinance was appropriate for Livingston County.
Our Commission is in the process of doing its due diligence. One part involves hiring an engineer to oversee compliance with our standards under our current Health Ordinance. Another part involves approval from the Department of Natural Resources.
Although Senate Bill 391's intention as passed by the legislature is clear ( which is to eliminate counties like ours from the ability to have stricter standards than state law), the issue becomes complicated by the fact that there is a lawsuit filed by another county in Missouri with a Health Ordinance like ours. They are trying to overturn Senate Bill 391 as either being unconstitutional and or saying that counties like ours should be grandfathered in. We do not know when this law suit will be decided at the trial court level. Regardless of how the trial court rules, the case will most likely be appealed by the losing side all the way up to the State Supreme Court, which could take up to several years for a final decision.
We are working with our attorney who originally wrote our Health Ordinance as to what action the County Commission should take regarding permit applications that are filed while these lawsuits are pending. Unless a court rules otherwise, the state law is binding on the county, and we are ultimately required to follow the law.
Currently, we are processing any CAFO application that is filed while simultaneously keeping our eye on this lawsuit regarding Senate Bill 391. Based on the result of the lawsuit, our Commission plans to request legal opinions on what the county's next step should be.
I hope this gives you an update on where this issue stands. If you have questions, feel free to contact us.